Volume 46 Number 25 June 18, 2021 Pages 3653 - 3770

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Breanna Mutschler Barbara Strickland LICENSURE AND REGULATION OF MARRIAGE Appointments...... 3657 AND FAMILY THERAPISTS Proclamation 41-3822...... 3657 22 TAC §801.205...... 3694 Proclamation 41-3823...... 3658 TEXAS BEHAVIORAL HEALTH EXECUTIVE COUNCIL ATTORNEY GENERAL GENERAL PROVISIONS Requests for Opinions...... 3661 22 TAC §881.21...... 3696 APPLICATIONS AND LICENSING Withdrawal of Advisory Opinion Requests/Questions...... 3663 22 TAC §882.11...... 3697 EMERGENCY RULES RENEWALS HEALTH AND HUMAN SERVICES COMMISSION 22 TAC §883.1...... 3698 COVID-19 EMERGENCY HEALTH CARE FACILITY FEES LICENSING 22 TAC §885.1...... 3700 26 TAC §500.4...... 3665 TEXAS DEPARTMENT OF INSURANCE LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES TRADE PRACTICES 26 TAC §553.2001...... 3665 28 TAC §§21.2 - 21.4, 21.6 ...... 3704 PROPOSED RULES 28 TAC §§21.102, 21.104, 21.120...... 3705 TEXAS EDUCATION AGENCY 28 TAC §§21.203 - 21.205 ...... 3706 28 TAC §21.301...... 3707 CHARTERS 28 TAC §21.403, §21.408...... 3707 19 TAC §100.1067...... 3667 28 TAC §§21.701, 21.703 - 21.705 ...... 3708 TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS 28 TAC §21.901...... 3709 APPLICATIONS AND EXAMINATIONS 28 TAC §§21.1004 - 21.1007 ...... 3709 22 TAC §463.9...... 3671 28 TAC §21.1101, §21.1110 ...... 3710 RULES OF PRACTICE 28 TAC §§21.2001, 21.2006, 21.2010, 21.2011...... 3712 28 TAC §21.2106...... 3713 22 TAC §465.2...... 3674 28 TAC §§21.2202, 21.2204, 21.2212...... 3714 22 TAC §465.38...... 3677 28 TAC §21.2501...... 3715 TEXAS STATE BOARD OF EXAMINERS OF PROFESSIONAL COUNSELORS 28 TAC §§21.2601, 21.2604, 21.2606...... 3715 PROFESSIONAL COUNSELORS 22 TAC §21.2702...... 3717 22 TAC §681.2...... 3679 28 TAC §21.2819...... 3718 22 TAC §681.41...... 3681 28 TAC §21.2901, §21.2902...... 3718 22 TAC §681.72...... 3684 28 TAC §21.3201...... 3720 22 TAC §681.73...... 3686 28 TAC §§21.3302, 21.3303, 21.3305...... 3721 22 TAC §681.82...... 3688 28 TAC §21.3701...... 3721 22 TAC §681.93...... 3689 28 TAC §21.3802...... 3722 22 TAC §681.114...... 3691 28 TAC §21.4105...... 3723 22 TAC §681.205...... 3693 DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES TEXAS STATE BOARD OF EXAMINERS OF MARRIAGE AND FAMILY THERAPISTS CHILD PROTECTIVE SERVICES 40 TAC §700.104, §700.106...... 3723

TABLE OF CONTENTS 46 TexReg 3655 GENERAL ADMINISTRATION Local Sales Tax Rate Changes Effective July 1, 2021...... 3757 40 TAC §§702.201, 702.203, 702.205, 702.207, 702.209, 702.211, Notice of Public Hearing on Proposed §3.340 - Qualified Research and 702.213, 702.221 ...... 3726 §3.599 - Margin: Research and Development Activities Credits..3759 40 TAC §§702.205, 702.209, 702.217, 702.223...... 3728 Office of Consumer Credit Commissioner 40 TAC §§702.251, 702.255, 702.257...... 3728 Notice of Rate Ceilings...... 3759 40 TAC §702.253...... 3729 Texas Commission on Environmental Quality ADOPTED RULES Agreed Orders...... 3759 CREDIT UNION DEPARTMENT Chisholm Trail Redi-Mix, LLC: Proposed Registration No. 164790...... 3761 CHARTERING, OPERATIONS, MERGERS, LIQUIDATIONS Enforcement Orders...... 3762 7 TAC §91.809...... 3731 Enforcement Orders...... 3762 TEXAS EDUCATION AGENCY Enforcement Orders...... 3763 BUDGETING, ACCOUNTING, AND AUDITING Notice and Comment Hearing: Draft Permit No. O2771...... 3764 Notice of Hearing on Lubrandon English: SOAH Docket No. 582-21- 19 TAC §109.41...... 3731 2294; TCEQ Docket No. 2021-0507-LIC ...... 3765 TEXAS DEPARTMENT OF INSURANCE Notice of Opportunity to Comment on Agreed Orders of Administra- STATE FIRE MARSHAL tive Enforcement Actions ...... 3766 28 TAC §§34.511, 34.512, 34.516...... 3734 Notice of Opportunity to Comment on Default Orders of Administra- tive Enforcement Actions ...... 3767 28 TAC §34.611...... 3735 Notice of Opportunity to Comment on Shutdown/Default Orders of an 28 TAC §34.711...... 3736 Administrative Enforcement Action...... 3767 28 TAC §34.811...... 3736 Notice of Public Hearing on Assessment of Administrative Penalties COMPTROLLER OF PUBLIC ACCOUNTS and Requiring Certain Actions of Harmen Waterlander: SOAH Docket No. 582-21-2304; TCEQ Docket No. 2019-0633-AGR-E ...... 3768 PROPERTY TAX ADMINISTRATION Texas Health and Human Services Commission 34 TAC §9.419...... 3736 Notice of Post Award Forum for the 1115 Texas Healthcare Transfor- RULE REVIEW mation Quality Improvement Program Waiver (THTQIP Waiver); No- tice of Post Award Forum for the Texas Healthy Women 1115 Waiver Adopted Rule Reviews (HTW); and Notice of Public Hearing on the THTQIP Waiver Exten- Credit Union Department...... 3739 sion Request...... 3769 Texas State Library and Archives Commission...... 3740 Texas Department of Housing and Community Affairs Texas Department of Insurance ...... 3740 Request for Qualifications...... 3769 TABLES AND GRAPHICS Request for Qualifications...... 3769 ...... 3745 Request for Qualifications ...... 3770 IN ADDITION Request for Qualifications...... 3770 Office of the Attorney General Texas Department of Insurance Texas Health and Safety Code and Texas Water Code Settlement No- Company Licensing ...... 3770 tice...... 3757 Public Utility Commission of Texas Comptroller of Public Accounts Notice of Petition for Rulemaking...... 3770

TABLE OF CONTENTS 46 TexReg 3656 Appointments tion to ensure the safety of all Texans by augmenting federal border security efforts at the Texas-Mexico border; and Appointments for June 3, 2021 WHEREAS, since 2014, Texas has spent roughly $3.5 billion to help Designated as Chairman of the Texas Higher Education Coordinating secure the border and protect public safety; and Board, for a term to expire at the pleasure of the Governor, Fred Farias, III, O.D. of McAllen, Texas (Dr. Farias is replacing Stuart W. Stedman WHEREAS, in 2021 alone, I have deployed 1,000 troopers from the of Houston). Texas Department of Public Safety (DPS) and hundreds of soldiers from the Texas National Guard to the border; and Designated as Vice Chairman of the Texas Higher Education Coor- dinating Board, for a term to expire at the pleasure of the Governor, WHEREAS, on March 6, 2021, amidst escalating border crossings, I Donna N. Williams of Arlington, Texas (Ms. Williams is replacing directed DPS to initiate Operation Lone Star and devote additional law Fred Farias, III, O.D. of McAllen). enforcement resources towards deterring illegal border crossings and protecting our border communities; and Appointments for June 7, 2021 WHEREAS, on March 17, 2021, I expanded Operation Lone Star to Appointed to the Podiatric Medical Examiners Advisory Board, for a have DPS interview unaccompanied alien children to identify victims term to expire February 1, 2027, Leslie Campbell, D.P.M. of Plano, of human trafficking and gain actionable intelligence that will aid in Texas (Dr. Campbell is being reappointed). the arrest of traffickers; and Appointed to the Podiatric Medical Examiners Advisory Board, for a WHEREAS, in fewer than three months since Operation Lone Star term to expire February 1, 2027, Amanda S. Nobles of Longview, Texas began, DPS has made over 1,300 criminal arrests, apprehended over (replacing Nancy C. Windham of Nacogdoches, whose term expired). 35,000 illegal migrants, and seized over 10,000 pounds of drugs and Appointed to the Podiatric Medical Examiners Advisory Board, for a over 100 firearms; and term to expire February 1, 2027, Renee K. Pietzsch, D.P.M. of George- WHEREAS, the federal government used to take seriously its responsi- town, Texas (Dr. Pietzsch is being reappointed). bility to enforce federal immigration laws and secure the international Appointments for June 8, 2021 border, which allowed Texas to collaborate on law enforcement and re- lated activities along the border; and Appointed to the Texas Historical Commission, for a term to expire February 1, 2027, Monica P. Burdette of Rockport, Texas (Ms. Bur- WHEREAS, under the Biden Administration, however, the federal dette is being reappointed). government has shown unwillingness, ambivalence, or inability to enforce federal immigration laws, to deter and stop illegal border Appointed to the Texas Historical Commission, for a term to expire crossings into the , or to meaningfully partner with Texas February 1, 2027, Lilia M. Garcia of Raymondville, Texas (Ms. Garcia in pursuing these goals; and is being reappointed). WHEREAS, my calls for the federal government to do its job and se- Appointed to the Texas Historical Commission, for a term to expire cure the border have gone unanswered; and February 1, 2027, David A. Gravelle of Highland Park, Texas (Mr. Gravelle is being reappointed). WHEREAS, the Biden Administration's inaction, whether intentional, reckless, or negligent, is causing a dramatic increase in the number of Appointed to the Texas Historical Commission, for a term to expire individuals unlawfully crossing the international border into Texas; and February 1, 2027, John L. Nau, III of Houston, Texas (Mr. Nau is being reappointed). WHEREAS, the Biden Administration's immigration policies are fail- ing Texans, causing a humanitarian crisis in many Texas communities Appointed to the Texas Historical Commission, for a term to expire along the border; and February 1, 2027, Frank T. "Tom" Perini of Buffalo Gap, Texas (Mr. Perini is being reappointed). WHEREAS, there are numerous reports of farmers, ranchers, and other Texans suffering property damage as a result of the increase in unlaw- , Governor ful crossings, including damage to crops, livestock, ranch fences, and TRD-202102249 homes; and ♦ ♦ ♦ WHEREAS, the Biden Administration's open-border policies have en- abled escalating violence from the cartels, dramatically increased the Proclamation 41-3822 risk of human trafficking, and created a severe crisis of illegal drugs TO ALL TO WHOM THESE PRESENTS SHALL COME: crossing into the United States, including 21.5 million lethal doses of fentanyl that were intercepted by DPS from January through April WHEREAS, securing the international border is the federal govern- 2021, all of which threatens harm throughout Texas and in other states; ment's responsibility, but the State of Texas has consistently taken ac- and

GOVERNOR June 18, 2021 46 TexReg 3657 WHEREAS, the arrest of human smugglers by state and local law en- Edwards, El Paso, Goliad, Gonzales, Hidalgo, Hudspeth, Jeff Davis, forcement, combined with increased arrests connected with other bor- Jim Hogg, Kenedy, Kinney, La Salle, Lavaca, Maverick, McMullen, der-related crime, threatens to substantially increase inmate population Pecos, Presidio, Real, Reeves, Starr, Sutton, Terrell, Uvalde, Val in jails to the extent that there may not be an adequate number of jail Verde, Webb, Willacy, Zapata, and Zavala counties, and for all state beds available; and agencies affected by this disaster. I do hereby declare a state of disaster for all listed counties covered by this disaster declaration and for all WHEREAS, the federal government's failure to secure the border has state agencies affected by this disaster. led to so many individuals unlawfully crossing the border that it has unilaterally established roughly ten new migrant detention facilities in Pursuant to Section 418.017, I authorize the use of all available re- Texas that are operated exclusively by the federal government, without sources of state government and of political subdivisions that are rea- any state regulation or oversight; and sonably necessary to cope with this disaster, including the use of all available resources of state and local law enforcement to assist and pro- WHEREAS, while Texas previously licensed certain residential facili- tect Texans from criminal activity and property damage. ties that house unaccompanied alien children or families, the U.S. Con- stitution prohibits the federal government from commandeering the I hereby direct DPS to use available resources to enforce all applicable State of Texas or its officials to continue administering state-licensed federal and state laws to prevent the criminal activity along the border, facilities in response to a federal migrant detention crisis caused by the including criminal trespassing, smuggling, and human trafficking, and acts or omissions of the federal government; and to assist Texas counties in their efforts to address those criminal activ- ities. WHEREAS, the unabated influx of individuals resulting from federal government policies threatens to negatively impact state-licensed res- I hereby direct the Texas Commission on Jail Standards and the Texas idential facilities, including those that serve Texas children in foster Commission on Law Enforcement to work with Texas counties, to pro- care; and vide appropriate guidance, and to request from the Office of the Gover- nor any necessary suspensions of law, in order to ensure that the coun- WHEREAS, in the Texas Disaster Act of 1975, the Legislature charged ties have the flexibility needed to establish adequate alternative deten- the Governor with the responsibility "for meeting ... the dangers to the tion facilities or otherwise add or expand capacity; to streamline pro- state and people presented by disasters" under Section 418.011 of the cedures for licensing and transfers; and to address any staffing issues Texas Government Code, and expressly granted the Governor broad that may arise in expanding capacity . authority to fulfill that responsibility; and I hereby direct the Texas Health and Human Services Commission WHEREAS, the Legislature has, in Section 418.004(1), defined a "dis- (HHSC) to take all necessary steps to discontinue state licensing of aster" as "the occurrence or imminent threat of widespread or severe any child-care facility in this state that shelters or detains unlawful damage, injury, or loss of life or property resulting from any natural or immigrant s or other individuals not lawfully present in the United man-made cause;" and States under a contract with the federal government. Pursuant to Sec- WHEREAS, under Texas law, declaring a disaster allows the use of all tion 418.016 of the Texas Government Code, I hereby suspend Sec- available state and local resources needed to manage the situation, acti- tions 42.046 and 42.048 of the Texas Human Resources Code, and all vates the state emergency management plan, and empowers the Texas other relevant laws, to the extent necessary to allow HHSC to deny a Division of Emergency Management to reassign and fully utilize ap- license application for any new child-care facility that shelters or de- propriate personnel where they are needed most; and tains unlawful immigrants or other individuals not lawfully present in the United States under a contract with the federal government, to re- WHEREAS, the Legislature has also, in Section 12.50 of the Texas new any existing such licenses for no longer than a 90-day period fol- Penal Code, increased the punishments available for certain criminal lowing the date of this order, and to provide notice and initiate a 90-day offenses committed in an area for which a disaster has been declared, period beginning on the date of this order to wind down any existing including for criminal trespass, burglary, and theft; and such licenses. WHEREAS, declaring a disaster also allows the State of Texas to re- Pursuant to Section 418.016, any regulatory statute prescribing the pro- quest federal funding for costs related to the disaster, and a number of cedures for conduct of state business or any order or rule of a state counties have already declared a local disaster and started accounting agency that would in any way prevent, hinder, or delay necessary action for costs that can be made part of a request (Crockett, Edwards, Goliad, in coping with this disaster shall be suspended upon written approval Gonzales, Hudspeth, Jeff Davis, Jim Hogg, Kinney, Lavaca, La Salle, of the Office of the Governor. However, to the extent that the enforce- Maverick, Presidio, Uvalde, Real, and Val Verde counties); and ment of any state statute or administrative rule regarding contracting WHEREAS, declaring a disaster also allows the State of Texas to re- or procurement would impede any state agency's emergency response quest federal funding for costs related to the disaster, and a number of that is necessary to protect life or property threatened by this declared counties have already declared a local disaster and started accounting disaster, I hereby authorize the suspension of such statutes and rules for costs that can be made part of a request (Crockett, Edwards, Goliad, for the duration of this declared disaster. Gonzales, Hudspeth, Jeff Davis, Jim Hogg, Kinney, La Salle, Lavaca, In accordance with the statutory requirements, copies of this proclama- Maverick, Presidio, Real, Uvalde, and Val Verde counties); tion shall be filed with the applicable authorities. NOW, THEREFORE, I, GREG ABBOTT, Governor of the State IN TESTIMONY WHEREOF, I have hereunto signed my name and of Texas in accordance with the authority vested in me by Section have officially caused the Seal of State to be affixed at my office in the 418.014 of the Texas Government Code, do hereby certify that the City of Austin, Texas, this the 31st day of May, 2021. ongoing surge of individuals unlawfully crossing the Texas-Mexico border poses an ongoing and imminent threat of widespread and Greg Abbott, Governor severe damage, injury, and loss of life and property, including property TRD-202102164 damage, property crime, human trafficking, violent crime, threats to public health, and a violation of sovereignty and territorial integrity, ♦ ♦ ♦ in Brewster, Brooks, Cameron, Crockett, Culberson, Dimmit, Duval, Proclamation 41-3823

46 TexReg 3658 June 18, 2021 Texas Register TO ALL TO WHOM THESE PRESENTS SHALL COME: Pursuant to Section 418.016, any regulatory statute prescribing the pro- cedures for conduct of state business or any order or rule of a state WHEREAS, I, Greg Abbott, , issued a disaster agency that would in any way prevent, hinder, or delay necessary action proclamation on March 13, 2020, certifying under Section 418.014 of in coping with this disaster shall be suspended upon written approval the Texas Government Code that the novel coronavirus (COVID-19) of the Office of the Governor. However, to the extent that the enforce- poses an imminent threat of disaster for all counties in the State of ment of any state statute or administrative rule regarding contracting Texas; and or procurement would impede any state agency's emergency response WHEREAS, in each subsequent month effective through today, I have that is necessary to cope with this declared disaster, I hereby suspend issued proclamations renewing the disaster declaration for all Texas such statutes and rules for the duration of this declared disaster for that counties; and limited purpose. WHEREAS, I have issued executive orders and suspensions of Texas In accordance with the statutory requirements, copies of this proclama- laws in response to COVID-19, aimed at protecting the health and tion shall be filed with the applicable authorities. safety of Texans and ensuring an effective response to this disaster; IN TESTIMONY WHEREOF, I have hereunto signed my name and and have officially caused the Seal of State to be affixed at my office in the WHEREAS, a state of disaster continues to exist in all counties due to City of Austin, Texas, this the 4th day of June, 2021. COVID-19; Greg Abbott, Governor NOW, THEREFORE, in accordance with the authority vested in me by TRD-202102222 Section 418.014 of the Texas Government Code, I do hereby renew the disaster proclamation for all counties in Texas. ♦ ♦ ♦ Pursuant to Section 418.017, I authorize the use of all available re- sources of state government and of political subdivisions that are rea- sonably necessary to cope with this disaster.

GOVERNOR June 18, 2021 46 TexReg 3659

Requests for Opinions For further information, please access the website at www.texasattor- neygeneral.gov or call the Opinion Committee at (512) 463-2110. RQ-0409-KP TRD-202102229 Requestor: Austin Kinghorn The Honorable Senfronia Thompson General Counsel Chair, House Committee on Licensing & Administrative Procedures Office of the Attorney General Filed: June 8, 2021 Post Office Box 2910 ♦ ♦ ♦ Austin, Texas 78768-2910 Re: Effect of Executive Order GA-36 on the federal requirements re- lated to face coverings on public transit (RQ-0408-KP)

ATTORNEY GENERAL June 18, 2021 46 TexReg 3661

Withdrawal of Advisory Opinion Requests/Questions tion event at which public officials from other governmental entities are present and distributing personal campaign items purchased with The Texas Ethics Commission (the commission) will not be consid- their campaign funds. These questions appeared in the June 11, 2021, ering the Advisory Opinion Requests/Questions on whether an officer issue of the Texas Register. or employee of a political subdivision may use public funds to adver- tise an event that uses the officer's title, such as "Mayor's Unity Walk," Effective immediately on filing. whether an officer of a political subdivision may announce, at a pub- TRD-202102166 lic meeting of the political subdivision that is recorded and broadcast J. R. Johnson on a television channel, Internet website, or social media profile con- trolled by the subdivision, that the officer will have a booth at the event General Counsel where he or she will distribute merchandise purchased with personal Texas Ethics Commission funds, and whether an officer or employee of a political subdivision Filed: June 4, 2021 may spend public funds--including the use of paid staff time--to set up ♦ ♦ ♦ tents and provide tables, chairs, and traffic control for a food distribu-

TEXAS ETHICS COMMISSION June 18, 2021 46 TexReg 3663

TITLE 26. HEALTH AND HUMAN SERVICES ♦ ♦ ♦ PART 1. HEALTH AND HUMAN CHAPTER 553. LICENSING STANDARDS SERVICES COMMISSION FOR ASSISTED LIVING FACILITIES SUBCHAPTER K. COVID-19 RESPONSE CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING 26 TAC §553.2001 The Health and Human Services Commission is renewing the SUBCHAPTER A. HOSPITALS effectiveness of emergency new §553.2001 for a 60-day pe- 26 TAC §500.4 riod. The text of the emergency rule was originally published in the February 19, 2021, issue of the Texas Register (46 TexReg The Health and Human Services Commission is renewing the ef- 1124). fectiveness of emergency new §500.4 for a 60-day period. The text of the emergency rule was originally published in the Febru- Filed with the Office of the Secretary of State on June 3, 2021. ary 19, 2021, issue of the Texas Register (46 TexReg 1123). TRD-202102165 Filed with the Office of the Secretary of State on June 7, 2021. Nycia Deal Attorney TRD-202102220 Health and Human Services Commission Nycia Deal Original effective date: February 7, 2021 Attorney Expiration date: August 5, 2021 Health and Human Services Commission For further information, please call: (512) 438-3161 Original effective date: February 8, 2021 Expiration date: August 6, 2021 ♦ ♦ ♦ For further information, please call: (512) 834-4591

EMERGENCY RULES June 18, 2021 46 TexReg 3665

TITLE 19. EDUCATION property when the charter holder has purchased the property with state funds. PART 2. TEXAS EDUCATION AGENCY Proposed new §100.1067(c)(2) would describe the commis- sioner's authority to direct the method of distribution of personal CHAPTER 100. CHARTERS property when the charter holder has purchased the property SUBCHAPTER AA. COMMISSIONER'S with state funds. RULES CONCERNING OPEN-ENROLLMENT Proposed new §100.1067(c)(3) would describe the commis- sioner's authority to direct the method of distribution of property CHARTER SCHOOLS when the charter holder has leased the property with state DIVISION 4. PROPERTY OF OPEN- funds. ENROLLMENT CHARTER SCHOOLS Proposed new §100.1067(d) would describe the authority of the commissioner with regard to expenditures for maintenance of the 19 TAC §100.1067 property. The Texas Education Agency (TEA) proposes an amendment Proposed new §100.1067(e) would describe the actions the to §100.1067, concerning possession and control of the pub- charter holder shall take upon the termination of operations of lic property of a former charter holder. The proposed amend- the open-enrollment . ment would implement Senate Bill (SB) 1454, 86th Texas Leg- islature, 2019, which established state oversight of related-party Proposed new §100.1067(g) would specify that the commis- and other transactions conducted by charter schools and de- sioner has discretion to direct disposition of the property in the scribed how closed charter school funds and property are to be best interest of Texas students. handled. FISCAL IMPACT: Kelvey Oeser, deputy commissioner for edu- BACKGROUND INFORMATION AND JUSTIFICATION: Section cator support, has determined that for the first five-year period 100.1067 describes the commissioner's authority to take control the proposal is in effect there are no additional costs to state or of and dispose of public property held by a former charter holder. local government, including school districts and open-enrollment charter schools, required to comply with the proposal. SB 1454, 86th Texas Legislature, 2019, amended Texas Edu- cation Code (TEC), Chapters 12 and 39A. The bill established LOCAL EMPLOYMENT IMPACT: The proposal has no effect on state oversight of related-party and other transactions conducted local economy; therefore, no local employment impact statement by charter schools and provided for the management of assets of is required under Texas Government Code, §2001.022. an open-enrollment charter school that ceases to operate. Prior SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMU- to the enactment of SB 1454, the TEC did not expressly address NITY IMPACT: The proposal has no direct adverse economic provisions for property disposition of former charter holders or impact for small businesses, microbusinesses, or rural commu- closed open-enrollment charter schools. nities; therefore, no regulatory flexibility analysis, specified in SB 1454 pertains to the control and disposition of real property Texas Government Code, §2006.002, is required. purchased with public funds upon a charter holder's ceasing op- COST INCREASE TO REGULATED PERSONS: The proposal erations. The proposed changes would outline two general ac- does not impose a cost on regulated persons, another state tions TEA may direct the former charter holder to take -- retain agency, a special district, or a local government and, therefore, or sell the property or transfer the property -- and details the pro- is not subject to Texas Government Code, §2001.0045. cedures associated with each. TAKINGS IMPACT ASSESSMENT: The proposal does not im- The proposed amendment to §100.1067(a) would clarify the pose a burden on private real property and, therefore, does not commissioner's authority to direct disposition of the charter constitute a taking under Texas Government Code, §2007.043. holder's property. GOVERNMENT GROWTH IMPACT: TEA staff prepared a Gov- The proposed amendment to §100.1067(b) would align the lan- ernment Growth Impact Statement assessment for this proposed guage with SB 1454 and clarify the commissioner's authority to rulemaking. During the first five years the proposed rulemaking cure defective audits submitted by charter schools. would be in effect, it would expand an existing regulation by clar- Proposed new §100.1067(c)(1) would describe the commis- ifying the commissioner's authority to take control and direct dis- sioner's authority to direct the method of disposition of real position of former charter holder property purchased and leased

PROPOSED RULES June 18, 2021 46 TexReg 3667 with public money. The proposed amendment would revise the authority such a board of managers would have with regard to rule to be consistent with SB 1454, 86th Texas Legislature, 2019. a school's final closure. The proposed rulemaking would not create or eliminate a gov- CROSS REFERENCE TO STATUTE. The amendment im- ernment program; would not require the creation of new em- plements Texas Education Code, §12.106 and §12.128, as ployee positions or elimination of existing employee positions; amended by Senate Bill (SB) 1454, 86th Texas Legislature, would not require an increase or decrease in future legislative 2019; §§12.1281, 12.1282, 12.1283, and 12.1284, as added appropriations to the agency; would not require an increase or by SB 1454, 86th Texas Legislature, 2019; and 39A.256, as decrease in fees paid to the agency; would not create a new reg- amended by SB 1454, 86th Texas Legislature, 2019. ulation; would not limit or repeal an existing regulation; would not §100.1067. Possession and Control of the Public Property of a For- increase or decrease the number of individuals subject to its ap- mer Charter Holder. plicability; and would not positively or adversely affect the state's (a) Disposition of audited property. The [If the exhibits to the economy. annual audit reports filed by a former charter holder are in substantial PUBLIC BENEFIT AND COST TO PERSONS: Ms. Oeser has compliance with §100.1063(f) of this title (relating to Use of Public determined that for each year of the first five years the proposal Property by a Charter Holder), the] commissioner of education shall is in effect, the public benefit anticipated as a result of enforcing take possession, assume control, and supervise the disposition of the the proposal would be implementing legislation and ensuring that public property disclosed by the annual audit report as filed with the rule language is based on current law. There is no anticipated Texas Education Agency (TEA) or as revised pursuant to subsection economic cost to persons who are required to comply with the (b) of this section. At any time, the commissioner may appoint a board proposal. of managers to transfer the property or may direct the governing board of the charter holder to transfer the property. The commissioner may DATA AND REPORTING IMPACT: The proposal would have no transfer or direct the transfer of property to any public school if the data and reporting impact. commissioner determines that the transfer is in the best interest of stu- PRINCIPAL AND CLASSROOM TEACHER PAPERWORK RE- dents. For purposes of this section, references to a charter holder refers QUIREMENTS: TEA has determined that the proposal would not to both an organization that currently holds a charter contract and an require a written report or other paperwork to be completed by a organization that formerly held a charter contract [those exhibits as pro- principal or classroom teacher. vided by subsection (c) of this section]. PUBLIC COMMENTS: The public comment period on the (b) Disposition of property--defective audit. If the [exhibits proposal begins June 18, 2021, and ends July 19, 2021. to the] annual audit reports filed by a former charter holder are not A request for a public hearing on the proposal submitted in substantial compliance with §100.1063(f) of this title (relating to under the Administrative Procedure Act must be received Use of Public Property by a Charter Holder), the commissioner shall by the commissioner of education not more than 14 calen- use such legal process as may be available under Texas law to take dar days after notice of the proposal has been published possession and assume control of all property of the former charter in the Texas Register on June 18, 2021. A form for sub- holder and, using such legal process, supervise the disposition of such mitting public comments is available on the TEA website property in accordance with law. The commissioner may transfer or at https://tea.texas.gov/About_TEA/Laws_and_Rules/Com- direct the transfer of property to any public school if the commissioner missioner_Rules_(TAC)/Proposed_Commissioner_of_Educa- determines that the transfer is in the best interest of students. tion_Rules/. (1) At any time [prior to taking possession and assuming STATUTORY AUTHORITY. The amendment is proposed under control of the affected property], the commissioner may determine Texas Education Code (TEC), §12.106, as amended by Senate whether the [exhibits to the] annual audit reports filed by a former Bill (SB) 1454, 86th Texas Legislature, 2019, which describes charter holder substantially comply with §100.1063(f) of this title. the nature of state funding that a charter holder is entitled to (2) At the commissioner's sole discretion, the commis- receive and details disposition of state funds after a charter sioner may cure any defects in the annual audit reports by reviewing school ceases to operate; TEC, §12.128, as amended by the audit reports and reclassifying the transactions and restating the SB 1454, 86th Texas Legislature, 2019, which outlines how financial statements or [filed exhibits] by securing, at the former charter schools may use and dispose of property purchased charter holder's expense, such professional services as may be required with public funds; TEC, §12.1281, as added by SB 1454, 86th to create and/or audit the necessary exhibits to the annual audit reports. Texas Legislature, 2019, which describes how a former charter holder may dispose of its property purchased with state funds (3) The [If successful in curing all defects in such exhibits, after the charter school ceases to operate; TEC, §12.1282, the] commissioner may, at the commissioner's sole discretion, take pos- as added by SB 1454, 86th Texas Legislature, 2019, which session, assume control, and supervise the disposition of the public details how a former charter holder may be permitted to transfer property disclosed by the annual audit reports and any revisions made property purchased with state funds; TEC, §12.1283, as added under this subsection [those exhibits as provided by subsection (c) of by SB 1454, 86th Texas Legislature, 2019, which details how this section]. the agency may sell property from a former charter holder, (c) Method of disposition of property. The commissioner may originally purchased with state funds; TEC, §12.1284, as added take possession, assume control, and supervise the disposition of prop- by SB 1454, 86th Texas Legislature, 2019, which describes erty by taking one or more of the following actions. generally final disposition of funds by Texas Education Agency after closure of charter school operations; and TEC, §39A.256, (1) For real property purchased with funds received under as amended by SB 1454, 86th Texas Legislature, 2019, which the Texas Education Code (TEC), §12.106, the commissioner shall di- describes generally how a board of managers may be appointed rect the charter holder to dispose of the property through one of the to a closing charter school by the commissioner and details the following methods.

46 TexReg 3668 June 18, 2021 Texas Register (A) The charter holder may retain or sell the property comptroller within 30 calendar days of TEA's determination of the and provide reimbursement to the state. The following provisions ap- final state reimbursement amount or as otherwise ordered by the ply to a charter holder that retains or sells the property. commissioner. (i) The charter holder must notify the commissioner (III) Once the charter holder has filed its final au- more than 30 calendar days prior to the last day of instruction that the dit report under TEC, §44.008, and sufficient funds are on deposit with charter holder intends to reimburse the state for its interest in the prop- the comptroller to pay the final reimbursement amount, the commis- erty and specify whether the charter holder intends to retain or sell the sioner may request the comptroller to distribute the deposit as directed real property. by TEA and release any state claim on the property. Any remaining funds on deposit with the comptroller may be returned to the former (ii) The charter holder must provide the commis- charter holder once the state has received the full final reimbursement sioner a written assurance that the charter holder will comply with the amount. requirements of TEC, §12.1284. (IV) If the charter holder fails to complete its fi- (iii) The charter holder must obtain the written con- nal financial audit under TEC, §44.008, or fails to make an additional sent of the commissioner. payment to the comptroller as required, the charter holder shall for- (iv) The charter holder must file an affidavit in the feit the amount deposited with the comptroller and shall dispose of the real property records of the county in which the real property is located property as ordered by the commissioner. disclosing the state interest in the property at least 30 calendar days (ix) The following provisions apply if the charter prior to the last day of instruction. holder sells the property. (v) Not later than 30 calendar days after the charter (I) The property must be sold for at least fair- school's last day of operation, the charter holder must deposit with the market value, as determined under this section. Texas Comptroller of Public Accounts an amount equal to 110% of the estimated state reimbursement for the property as directed by the com- (II) The property must be sold no later than one missioner, which TEA will calculate by taking the fair-market value of year after the last day of instruction. the property as determined by an appraisal approved by the commis- (III) If the property is sold prior to the comple- sioner, subtracting the principal amount of any debt described by TEC, tion of the final audit report under TEC, §44.008, for an amount greater §12.128(e), and multiplying that result by the percentage of funds re- than the fair-market value used to determine the estimated state reim- ceived under TEC, §12.106, used to purchase the property as disclosed bursement amount, the charter holder shall deposit with the comptroller in the most recent audit under TEC, §44.008. an amount equal to the difference between the estimated fair-market (vi) The charter holder must prepare and submit a value and the sales price multiplied by the percentage of state funds final audit under TEC, §44.008. This audit must be filed by the deadline used to purchase the property based on the most recent audit pursuant specified in TEC, §44.008, and must disclose: to TEC, §44.008. (I) the total amount of funds received under TEC, (IV) After the property has been sold and the fi- §12.106, that were used to purchase each separate item of real property nal audit report, pursuant to TEC, §44.008, has been filed, TEA shall to be retained or sold by the charter holder; calculate the final state reimbursement amount. (II) the total amount of federal funds that were (V) The final state reimbursement amount is cal- used to purchase each separate item of real property to be retained or culated by taking the final gross sales price of the property less the re- sold by the former charter holder; and maining principal amount of any debt described by TEC, §12.128(e), that was incurred prior to the charter school's cessation of operations (III) the total amount of funds that were used and multiplying that amount by the percent of funds received under to purchase the property to be retained or sold by the former charter TEC, §12.106, used to purchase the property as disclosed in the final holder. audit report under TEC, §44.008, or as revised pursuant to this section. (vii) The charter holder shall timely make all re- (VI) If the final state reimbursement amount is quired payments relating to the property, including note payments; greater than the total deposit made with the comptroller, the former shall maintain the premises; and shall maintain full insurance coverage charter holder must make the additional deposit to the comptroller as determined by the commissioner until the state has received its full within 30 calendar days or as otherwise ordered by the commissioner. reimbursement and released its claim to the property. (VII) Once the former charter holder has filed its (viii) The following provisions apply if the charter final audit report under TEC, §44.008, and sold the property, and once holder elects to retain the property. sufficient funds are on deposit with the state comptroller's office to pay (I) After the final annual audit report is filed, the final reimbursement amount, the commissioner may request the TEA will calculate the final state reimbursement amount, which is comptroller to distribute the deposit and release any state claim on the calculated by taking the fair-market value of the property as deter- property. Any funds on deposit with the comptroller may be returned mined by the commissioner less the final principal amount of any debt to the former charter holder once the state has received the full final described by TEC, §12.128(e), that was incurred prior to the charter reimbursement amount. school's cessation of operations and multiplying that amount by the (VIII) The release of claims may be made in a percent of funds received under TEC, §12.106, used to purchase the closing where an independent third party is responsible for distributing property as disclosed in the final audit report filed under TEC, §44.008, the funds necessary to supplement the escrow account with the comp- or as modified pursuant to this section. troller's office. If the property is sold before the final audit has been (II) If the final state reimbursement amount is submitted to TEA, TEA may elect to release its claim on the property greater than the deposit made with the comptroller under this section, based on the most recent audit report. the former charter holder must make the additional deposit to the

PROPOSED RULES June 18, 2021 46 TexReg 3669 (IX) If the charter holder fails to complete its fi- (-b-) a that has the highest or nal financial audit under TEC, §44.008, fails to sell the property within second-highest accountability rating with no campus rated at the lowest one year after the last day of instruction, or fails to make an additional or second-lowest accountability rating and whose geographic boundary payment to the comptroller as required, the charter holder shall forfeit includes the property to be transferred; the amount deposited with the state comptroller and shall dispose of (-c-) a charter school with the third-highest the property as ordered by the commissioner. accountability rating with no campus rated at the lowest or second-low- est accountability rating and whose approved geographic boundary en- (x) For purposes of determining the fair-market compasses the property to be transferred; and value of the real property, the charter holder shall provide an appraisal (-d-) a school district with the third-highest from a certified appraiser approved by the commissioner not less than accountability rating with no campus rated at the lowest or second-low- 30 calendar days after the final order of revocation, non-renewal, est accountability rating and whose geographic boundary encompasses surrender, or return of the charter, or as otherwise directed by the the property to be transferred. commissioner. (II) A school district or an open-enrollment char- (xi) The commissioner may direct the charter holder ter school may receive property under this clause only if: to contract with a specified, certified appraiser or require the charter (-a-) the open-enrollment charter school or holder to obtain additional appraisals and may then choose which ap- school district receiving the property: praisal will be used to calculate fair-market value. (-1-) has not received notice of the (xii) Subject to the satisfaction of any security in- expiration or revocation of the contract for charter, notice of reconstitu- terest or lien described by TEC, §12.128(e), if the commissioner de- tion of its governing body, or the assignment of an accreditation rating termines a former charter holder failed to comply with this section or of Not Accredited-Revoked; TEC, §12.1282, on request of TEA, the attorney general shall take any appropriate legal action to compel the former charter holder to convey (-2-) agrees to the transfer; title to TEA or other governmental entity authorized by TEA to main- (-3-) agrees to identify the property tain or dispose of the property. as purchased wholly using state funds on the school's annual financial (xiii) All payments made by the charter holder to re- report filed under TEC, §44.008; and tain real property must be made with non-state funds. Lease payments (-4-) agrees that if the property is received for state property are state property. sold within three years, the charter holder or school district will remit (xiv) A decision by the commissioner under this sec- the sales proceeds back to TEA to be deposited in the charter school tion is final and may not be appealed. liquidation fund; (-b-) any creditor with a security interest in (B) The charter holder may transfer the property using or lien on the property described by TEC, §12.128(e), agrees to the one of the following methods. transfer; and (i) Transfer to TEA. (-c-) the transfer of the property does not make the open-enrollment charter school or school district receiving (I) Subject to the satisfaction of any security in- the property insolvent. terest or lien, the former charter holder shall transfer the property, in- cluding a conveyance of title, to TEA no later than two weeks after the (III) Property received by an open-enrollment last day of instruction. charter school or school district under this clause is considered state property. TEA may require a set amount of remuneration in exchange (II) The following provisions apply to the sale of for the property, may accept bids, or may accept bids with a minimum public real property by TEA. bid amount established. If TEA takes bids, TEA shall transfer the (-a-) After TEA receives title to real property property to the highest qualified bidder from the highest priority described by TEC, §12.128, TEA may sell the property at any price category established in subclause (I) of this clause, except as provided acceptable to TEA. by subsection (g) of this section. (-b-) On request of TEA, the General Land Office shall enter into a memorandum of understanding to sell real (2) For personal property purchased with state funds, the property for TEA as required by TEC, §12.1283. The memorandum commissioner shall direct the charter holder to dispose of the property of understanding may allow the General Land Office to recover from through one of the following methods. the sale proceeds any cost incurred by the office or commission in the (A) If TEA determines that the cost of disposing of per- sale of the property. sonal property described by TEC, §12.128, transferred to TEA by an (-c-) Subject to the satisfaction of any secu- open-enrollment charter school that ceases to operate exceeds the re- rity interest or lien described by TEC, §12.128(e), proceeds from the turn of value from the sale of the property, TEA may distribute the sale of property under this section shall be deposited in the charter personal property to open-enrollment charter schools and school dis- school liquidation fund. tricts in a manner determined by the commissioner. (ii) Transfer to a school district or open-enrollment (B) On request of TEA, the Texas Facilities Commis- charter school under TEC, §12.1282. sion shall enter into a memorandum of understanding to sell personal (I) The following order of priority shall be used property for TEA as required by TEC, §12.1283. when transferring to a school district or open-enrollment charter school (i) A memorandum of understanding entered into as under this clause: provided by this subparagraph may allow the Texas Facilities Commis- (-a-) a charter school with the highest or sec- sion to recover from the sale proceeds any cost incurred by the office ond-highest accountability rating with no campus rated at the lowest or or commission in the sale of the property. second-lowest accountability rating and whose approved geographic boundary encompasses the property to be transferred;

46 TexReg 3670 June 18, 2021 Texas Register (ii) Subject to the satisfaction of any security inter- [(4) may liquidate property designated by the former char- est or lien described by TEC, §12.128(e), proceeds from the sale of ter holder and, if the commissioner determines it to be necessary, liq- personal property under this section shall be deposited in the charter uidate other property; and] school liquidation fund. [(5) shall return to the possession and control of the former (3) For property leased with state funds, the commissioner charter holder any property in excess of the ownership interest of the may direct the charter holder to assign the charter holder's interest in State of Texas and/or federal grant or funding agencies of all public the lease to TEA or may direct the charter holder to cancel the lease. property disclosed by the annual audit reports, in accordance with cur- rent fair market valuation of the property.] (d) Maintenance of property. TEA may approve an expendi- ture of remaining funds by a former charter holder for insurance or utili- (f) [(d)] Use of legal process. Notwithstanding subsection (c) ties for or maintenance, repairs, or improvements to property described of this section, the commissioner may use such legal process as may by this section, and TEA may lease the property in its possession if be available under Texas law to take possession and assume control TEA determines that the action is reasonably necessary to dispose of over the public property disclosed by the annual audit reports and, us- the property or preserve the property's value. ing such legal process, supervise the disposition of such property in accordance with law. (e) Funds and assets following termination of operations. Af- ter extinguishing all payable obligations owed by the charter school that (g) Commissioner authority. The commissioner has discretion ceases to operate, and after disposing of all real and personal property to direct disposition of the property in the best interest of Texas stu- owned by the charter school that ceases to operate, the former charter dents. holder shall: The agency certifies that legal counsel has reviewed the pro- (1) remit to TEA any remaining funds as described by posal and found it to be within the state agency's legal authority TEC, §12.106(h), and any state reimbursement amounts as described to adopt. by TEC, §12.128, to be deposited in the charter school liquidation fund; Filed with the Office of the Secretary of State on June 7, 2021. (2) transfer all or a portion of the remaining funds to an- TRD-202102191 other charter school that has all or part of the operations of the former Cristina De La Fuente-Valadez charter school assigned to it under TEC, §12.116(d)(2), if ordered by Director, Rulemaking the commissioner, only if the charter school: Texas Education Agency (A) has not received notice of possible adverse action Earliest possible date of adoption: July 18, 2021 or sanction by the commissioner; For further information, please call: (512) 475-1497 (B) has an academic accountability rating at the district ♦ ♦ ♦ level of A or B and no campus with a rating of D or F; TITLE 22. EXAMINING BOARDS (C) has a Charter FIRST rating of Meets Standard Achievement or above; PART 21. TEXAS STATE BOARD OF (D) has an accreditation rating of Accredited; EXAMINERS OF PSYCHOLOGISTS (E) does not have any warrant holds by which state pay- ments issued to payees indebted to the state, or payees with a tax delin- CHAPTER 463. APPLICATIONS AND quency, are held by the comptroller until the debt is satisfied in accor- EXAMINATIONS dance with Texas Government Code, §403.055; and SUBCHAPTER B. LICENSING REQUIRE- (F) agrees to classify the property as state property; or MENTS (3) take any combination of the actions described by para- graphs (1) and (2) of this subsection. 22 TAC §463.9 [(c) Method for audited property. In taking possession, assum- The Texas Behavioral Health Executive Council proposes ing control, and supervising the disposition of property that has been amendments to §463.9, relating to Licensed Specialist in School properly recorded by a former charter holder under §100.1063(f) of this Psychology. title, the commissioner:] Overview and Explanation of the Proposed Rule. Trainee status [(1) shall accept and rely on the cost basis disclosure of all for LSSPs is now obsolete since applicants are no longer preap- public property and all other property acquired by the former charter proved to take the jurisprudence examination. Since applicants holder disclosed by the annual audit reports already on file with the must pass the examination prior to application, future trainee sta- agency and, if needed, by the annual audit report for the fiscal year in tus for LSSP applicants will no longer be issued; therefore this which the charter holder ceased operations;] part of the rule is proposed to be amended to reflect this change. [(2) shall take possession and assume control over all pub- If a rule will pertain to the qualifications necessary to obtain a lic property disclosed by the annual audit reports;] license; the scope of practice, standards of care, or ethical prac- tice for a profession; continuing education requirements; or a [(3) shall permit the former charter holder to designate the schedule of sanctions then the rule must first be proposed to the property to be used by the commissioner to satisfy the amount required Executive Council by the applicable board for the profession be- by paragraph (2) of this subsection, and defer to the reasonable wishes fore the Executive Council may propose or adopt such a rule, see of the former charter holder in this respect;] §507.153 of the Tex. Occ. Code. The proposed rule pertains to the qualifications necessary to obtain a license to practice psy-

PROPOSED RULES June 18, 2021 46 TexReg 3671 chology. Therefore, this rule is covered by §507.153 of the Tex. not require an increase or decrease in fees paid to the agency; Occ. Code. it does not create a new regulation; it does not expand an exist- ing regulation; it does not increase or decrease the number of The Texas State Board of Examiners of Psychologists, in accor- individuals subject to the rule's applicability; and it does not pos- dance with §501.2015 of the Tex. Occ. Code, previously voted itively or adversely affect the state's economy. and, by a majority, approved to propose this rule to the Execu- tive Council. Therefore, the Executive Council has complied with Takings Impact Assessment. Mr. Spinks has determined that Chapters 501 and 507 of the Tex. Occ. Code and may propose there are no private real property interests affected by the pro- this rule. posed rule. Thus, the Executive Council is not required to pre- pare a takings impact assessment pursuant to §2007.043 of the Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- Tex. Gov't Code. tive Council, has determined that for the first five-year period the proposed rule is in effect, there will be no additional estimated Request for Public Comments. Comments on the proposed cost, reduction in costs, or loss or increase in revenue to the state rule may be submitted to Brenda Skiff, Executive Assistant, or local governments as a result of enforcing or administering the Texas Behavioral Health Executive Council, 333 Guadalupe, rule. Additionally, Mr. Spinks has determined that enforcing or Ste. 3-900, Austin, Texas 78701, within 30 days of publication administering the rule does not have foreseeable implications re- of this proposal in the Texas Register. Comments may also be lating to the costs or revenues of state or local government. submitted via email to [email protected]. Public Benefit. Mr. Spinks has determined for the first five-year The Executive Council specifically invites comments from the period the proposed rule is in effect there will be a benefit to public on the issues of whether or not the proposed rule will licensees, applicants, and the general public because the pro- have an adverse economic effect on small businesses; if the pro- posed rule will provide greater clarity and consistency in the Ex- posed rule is believed to have an adverse effect on small busi- ecutive Council's rules. Mr. Spinks has also determined that for nesses, estimate the number of small businesses believed to be each year of the first five years the rule is in effect, the public impacted by the rule, describe and estimate the economic im- benefit anticipated as a result of enforcing the rule will be to help pact of the rule on small businesses, offer alternative methods the Executive Council protect the public. of achieving the purpose of the rule; then explain how the Exec- utive Council may legally and feasibly reduce that adverse effect Probable Economic Costs. Mr. Spinks has determined for the on small businesses considering the purpose of the statute un- first five-year period the proposed rule is in effect, there will be der which the proposed rule is to be adopted; and finally describe no additional economic costs to persons required to comply with how the health, safety, environmental and economic welfare of this rule. the state will be impacted by the various proposed methods. See Small Business, Micro-Business, and Rural Community Impact §2006.002(c) and (c-1) of the Tex. Gov't Code. Statement. Mr. Spinks has determined for the first five-year pe- Statutory Authority. The rule is proposed under Tex. Occ. Code, riod the proposed rule is in effect, there will be no adverse effect Title 3, Subtitle I, Chapter 507, which provides the Texas Be- on small businesses, micro-businesses, or rural communities. havioral Health Executive Council with the authority to make all Regulatory Flexibility Analysis for Small and Micro-Businesses rules, not inconsistent with the Constitution and Laws of this and Rural Communities. Mr. Spinks has determined that the State, which are reasonably necessary for the proper perfor- proposed rule will have no adverse economic effect on small mance of its duties and regulations of proceedings before it. businesses, micro-businesses, or rural communities. Thus, the Additionally, the Executive Council proposes this rule pursuant Executive Council is not required to prepare a regulatory flexibil- to the authority found in §507.152 of the Tex. Occ. Code which ity analysis pursuant to §2006.002 of the Tex. Gov't Code. vests the Executive Council with the authority to adopt rules nec- Local Employment Impact Statement. Mr. Spinks has deter- essary to perform its duties and implement Chapter 507 of the mined that the proposed rule will have no impact on local em- Tex. Occ. Code. ployment or a local economy. Thus, the Executive Council is not In accordance with §501.2015 of the Tex. Occ. Code the Board required to prepare a local employment impact statement pur- previously voted and, by a majority, approved to propose this suant to §2001.022 of the Tex. Gov't Code. rule to the Executive Council. The rule is specifically authorized Requirement for Rules Increasing Costs to Regulated Persons. by §501.2015 of the Tex. Occ. Code which states the Board The proposed rule does not impose any new or additional shall propose to the Executive Council rules regarding the qual- costs to regulated persons, state agencies, special districts, or ifications necessary to obtain a license; the scope of practice, local governments; therefore, pursuant to §2001.0045 of the standards of care, and ethical practice; continuing education re- Tex. Gov't Code, no repeal or amendment of another rule is quirements for license holders; and a schedule of sanctions for required to offset any increased costs. Additionally, no repeal or violations of this chapter or rules adopted under this chapter. amendment of another rule is required because the proposed The Executive Council also proposes this rule in compliance with rule is necessary to protect the health, safety, and welfare of the §507.153 of the Tex. Occ. Code. The Executive Council may residents of this state and because regulatory costs imposed by not propose and adopt a rule regarding the qualifications neces- the Executive Council on licensees is not expected to increase. sary to obtain a license; the scope of practice, standards of care, Government Growth Impact Statement. For the first five-year and ethical practice for a profession; continuing education re- period the proposed rule is in effect, the Executive Council esti- quirements; or a schedule of sanctions unless the rule has been mates that the proposed rule will have no effect on government proposed by the applicable board for the profession. In this in- growth. The proposed rule does not create or eliminate a gov- stance, the underlying board has proposed this rule to the Ex- ernment program; it does not require the creation or elimination ecutive Council. Therefore, the Executive Council has complied of employee positions; it does not require the increase or de- with Chapters 501 and 507 of the Texas Occupations Code and crease in future legislative appropriations to this agency; it does may propose this rule.

46 TexReg 3672 June 18, 2021 Texas Register Lastly, the Executive Council proposes this rule under the au- (B) organization and operation of schools; thority found in §2001.004 of the Tex. Gov't Code which requires (C) classroom management; or state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. (D) educational administration; No other code, articles or statutes are affected by this section. (4) Assessment, including: §463.9. Licensed Specialist in School Psychology. (A) psychoeducational assessment; (a) License Requirements. An applicant for licensure as a spe- (B) socio-emotional, including behavioral and cultural, cialist in school psychology must: assessment; (1) hold an appropriate graduate degree; (5) Interventions, including: (2) provide proof of specific graduate level coursework (A) counseling; (3) provide proof of an acceptable internship; (B) behavior management; (4) provide proof of passage of all examinations required (C) consultation; by the Council; and (6) Professional, Legal and Ethical Issues; and (5) meet the requirements imposed under §501.2525(a)(3) (7) A Practicum. - (9) of the Occupations Code. (f) Applicants applying under subsection (d) of this section (b) Applicants who hold active certification as a Nationally must have completed an internship with a minimum of 1200 hours and Certified School Psychologist (NCSP) are considered to have met all that meets the following criteria: requirements for licensure under this rule except for passage of the Jurisprudence Examination. Applicants relying upon this subsection (1) At least 600 of the internship hours must have been must provide the Council with their NCSP certification number. completed in a public school. (c) Applicants who graduated from a training program (2) The internship must be provided through a formal approved by the National Association of School Psychologists or course of supervised study from a regionally accredited institution of accredited in School Psychology by the American Psychological higher education in which the applicant was enrolled; or the internship Association are considered to have met all training and internship must have been obtained in accordance with Council §463.11(d)(1) requirements for licensure under this rule. Applicants relying upon and (d)(2)(C) of this section. this subsection must submit an official transcript indicating the degree (3) Any portion of an internship completed within a public and date the degree was awarded or conferred. school must be supervised by a Licensed Specialist in School Psychol- (d) Applicants who do not hold active NCSP certification, or ogy, and any portion of an internship not completed within a public who did not graduate from a training program approved by the National school must be supervised by a Licensed Psychologist. Association of School Psychologists or accredited in School Psychol- (4) No experience which is obtained from a supervisor who ogy by the American Psychological Association, must have completed is related within the second degree of affinity or consanguinity to the a graduate degree in psychology from a regionally accredited institu- supervisee may be utilized. tion of higher education. Applicants applying under this subsection must have completed, either as part of their graduate degree program (5) Unless authorized by the Council, supervised experi- or after conferral of their graduate degree, at least 60 graduate level ence received from a supervisor practicing with a restricted license may semester credit hours from a regionally accredited institution of higher not be utilized to satisfy the requirements of this rule. education. A maximum of 12 internship hours may be counted toward (6) Internship hours must be obtained in not more than two this requirement. For purposes of this rule, a graduate degree in psy- placements. A school district, consortium, and educational co-op are chology means the name of the candidate's major or program of studies each considered one placement. is titled psychology. (7) Internship hours must be obtained in not less than one (e) Applicants applying under subsection (d) of this section or more than two academic years. must submit evidence of graduate level coursework as follows: (8) An individual completing an internship under this rule (1) Psychological Foundations, including: must be designated as an intern. (A) biological bases of behavior; (9) Interns must receive no less than two hours of supervi- (B) human learning; sion per week, with no more than half being group supervision. The amount of weekly supervision may be reduced, on a proportional basis, (C) social bases of behavior; for interns working less than full-time. (D) multi-cultural bases of behavior; (10) The internship must include direct intern application (E) child or adolescent development; of assessment, intervention, behavior management, and consultation, for children representing a range of ages, populations and needs. (F) psychopathology or exceptionalities; [(g) Trainee Status.] (2) Research and Statistics; [(1) An applicant for the specialist in school psychology (3) Educational Foundations, including any of the follow- license who has not yet passed the Jurisprudence Examination, but who ing: otherwise meets all licensing requirements under this rule, may practice (A) instructional design;

PROPOSED RULES June 18, 2021 46 TexReg 3673 in the public schools under the supervision of a Licensed Specialist in CHAPTER 465. RULES OF PRACTICE School Psychology, as a trainee for not more than one year.] 22 TAC §465.2 [(2) A trainee status letter shall be issued to an applicant upon proof of licensing eligibility, save and except proof of passage of The Texas Behavioral Health Executive Council proposes the Jurisprudence Examination.] amendments to §465.2, relating to Supervision. [(3) An individual with trainee status is subject to all appli- Overview and Explanation of the Proposed Rule. Trainee status cable laws governing the practice of psychology.] for LSSPs is now obsolete since applicants are no longer preap- proved to take the jurisprudence examination. Since applicants [(4) A trainee's status may be suspended or revoked upon must pass the examination prior to application, future trainee sta- a showing of a violation of the Council's rules or any law pertaining to tus for LSSP applicants will no longer be issued; therefore this the practice of psychology, and the individual may be made the subject part of the rule is proposed to be amended to reflect this change. of an eligibility proceeding. The one-year period for trainee status shall not be tolled by any suspension of the trainee status.] If a rule will pertain to the qualifications necessary to obtain a license; the scope of practice, standards of care, or ethical prac- [(5) Following official notification from the Council upon tice for a profession; continuing education requirements; or a passage of the Jurisprudence Examination or the expiration of one year, schedule of sanctions then the rule must first be proposed to the whichever occurs first, an individual's trainee status shall terminate.] Executive Council by the applicable board for the profession be- [(6) An individual practicing under trainee status must be fore the Executive Council may propose or adopt such a rule, see designated as a trainee.] §507.153 of the Tex. Occ. Code. The proposed rule pertains to the scope of practice, standards of care, or ethical practice for (g) [(h)] Provision of psychological services in the public the practice of psychology. Therefore, this rule is covered by schools by unlicensed individuals. §507.153 of the Tex. Occ. Code. (1) An unlicensed individual may provide psychological The Texas State Board of Examiners of Psychologists, in accor- services under supervision in the public schools if: dance with §501.2015 of the Tex. Occ. Code, previously voted (A) the individual is enrolled in an internship, and, by a majority, approved to propose this rule to the Execu- practicum or other site based training in a psychology program in a tive Council. Therefore, the Executive Council has complied with regionally accredited institution of higher education; or Chapters 501 and 507 of the Tex. Occ. Code and may propose this rule. (B) the individual has completed an internship that meets the requirements of this rule, and has submitted an application Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- for licensure as a Licensed Specialist in School Psychology to the tive Council, has determined that for the first five-year period the Council that has not been denied or returned.[; or] proposed rule is in effect, there will be no additional estimated cost, reduction in costs, or loss or increase in revenue to the state [(C) the individual has been issued a trainee status let- or local governments as a result of enforcing or administering the ter.] rule. Additionally, Mr. Spinks has determined that enforcing or (2) An unlicensed individual may not provide psychologi- administering the rule does not have foreseeable implications re- cal services in a private school setting unless the activities or services lating to the costs or revenues of state or local government. provided are exempt under §501.004 of the Psychologists' Licensing Public Benefit. Mr. Spinks has determined for the first five-year Act. period the proposed rule is in effect there will be a benefit to (3) An unlicensed individual may not engage in the prac- licensees, applicants, and the general public because the pro- tice of psychology under paragraph (1)(B) of this subsection for more posed rule will provide greater clarity and consistency in the Ex- than forty-five days following receipt of the application by the Council. ecutive Council's rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the public (4) The authority to practice referenced in paragraph (1)(B) benefit anticipated as a result of enforcing the rule will be to help [and (C)] of this subsection is limited to the first or initial application the Executive Council protect the public. filed by an individual under this rule, but is not applicable to any sub- sequent applications filed under this rule. [The Council will not issue Probable Economic Costs. Mr. Spinks has determined for the more than one trainee status letter to an individual, regardless of the first five-year period the proposed rule is in effect, there will be number of applications filed.] no additional economic costs to persons required to comply with this rule. The agency certifies that legal counsel has reviewed the pro- posal and found it to be within the state agency's legal authority Small Business, Micro-Business, and Rural Community Impact to adopt. Statement. Mr. Spinks has determined for the first five-year pe- riod the proposed rule is in effect, there will be no adverse effect Filed with the Office of the Secretary of State on June 4, 2021. on small businesses, micro-businesses, or rural communities. TRD-202102167 Regulatory Flexibility Analysis for Small and Micro-Businesses Darrel D. Spinks and Rural Communities. Mr. Spinks has determined that the proposed rule will have no adverse economic effect on small Executive Director businesses, micro-businesses, or rural communities. Thus, the Texas State Board of Examiners of Psychologists Executive Council is not required to prepare a regulatory flexibil- Earliest possible date of adoption: July 18, 2021 ity analysis pursuant to §2006.002 of the Tex. Gov't Code. For further information, please call: (512) 305-7706 Local Employment Impact Statement. Mr. Spinks has deter- ♦ ♦ ♦ mined that the proposed rule will have no impact on local em- ployment or a local economy. Thus, the Executive Council is not

46 TexReg 3674 June 18, 2021 Texas Register required to prepare a local employment impact statement pur- In accordance with §501.2015 of the Tex. Occ. Code the Board suant to §2001.022 of the Tex. Gov't Code. previously voted and, by a majority, approved to propose this rule to the Executive Council. The rule is specifically authorized Requirement for Rules Increasing Costs to Regulated Persons. by §501.2015 of the Tex. Occ. Code which states the Board The proposed rule does not impose any new or additional shall propose to the Executive Council rules regarding the qual- costs to regulated persons, state agencies, special districts, or ifications necessary to obtain a license; the scope of practice, local governments; therefore, pursuant to §2001.0045 of the standards of care, and ethical practice; continuing education re- Tex. Gov't Code, no repeal or amendment of another rule is quirements for license holders; and a schedule of sanctions for required to offset any increased costs. Additionally, no repeal or violations of this chapter or rules adopted under this chapter. amendment of another rule is required because the proposed rule is necessary to protect the health, safety, and welfare of the The Executive Council also proposes this rule in compliance with residents of this state and because regulatory costs imposed by §507.153 of the Tex. Occ. Code. The Executive Council may the Executive Council on licensees is not expected to increase. not propose and adopt a rule regarding the qualifications neces- sary to obtain a license; the scope of practice, standards of care, Government Growth Impact Statement. For the first five-year and ethical practice for a profession; continuing education re- period the proposed rule is in effect, the Executive Council esti- quirements; or a schedule of sanctions unless the rule has been mates that the proposed rule will have no effect on government proposed by the applicable board for the profession. In this in- growth. The proposed rule does not create or eliminate a gov- stance, the underlying board has proposed this rule to the Ex- ernment program; it does not require the creation or elimination ecutive Council. Therefore, the Executive Council has complied of employee positions; it does not require the increase or de- with Chapters 501 and 507 of the Texas Occupations Code and crease in future legislative appropriations to this agency; it does may propose this rule. not require an increase or decrease in fees paid to the agency; it does not create a new regulation; it does not expand an exist- Lastly, the Executive Council proposes this rule under the au- ing regulation; it does not increase or decrease the number of thority found in §2001.004 of the Tex. Gov't Code, which requires individuals subject to the rule's applicability; and it does not pos- state agencies to adopt rules of practice stating the nature and itively or adversely affect the state's economy. requirements of all available formal and informal procedures. Takings Impact Assessment. Mr. Spinks has determined that No other code, articles or statutes are affected by this section. there are no private real property interests affected by the pro- §465.2. Supervision. posed rule. Thus, the Executive Council is not required to pre- pare a takings impact assessment pursuant to §2007.043 of the (a) Supervision in General. The following rules apply to all Tex. Gov't Code. supervisory relationships. Request for Public Comments. Comments on the proposed (1) Licensee is responsible for the supervision of all indi- rule may be submitted to Brenda Skiff, Executive Assistant, viduals that the licensee employs or utilizes to provide psychological Texas Behavioral Health Executive Council, 333 Guadalupe, services of any kind. Ste. 3-900, Austin, Texas 78701, within 30 days of publication (2) Licensees shall ensure that their supervisees have legal of this proposal in the Texas Register. Comments may also be authority to provide psychological services. submitted via email to [email protected]. (3) Licensees may delegate only those responsibilities that The Executive Council specifically invites comments from the supervisees may legally and competently perform. public on the issues of whether or not the proposed rule will have an adverse economic effect on small businesses; if the pro- (4) All individuals who receive psychological services re- posed rule is believed to have an adverse effect on small busi- quiring informed consent from an individual under supervision must nesses, estimate the number of small businesses believed to be be informed in writing of the supervisory status of the individual and impacted by the rule, describe and estimate the economic im- how the patient or client may contact the supervising licensee directly. pact of the rule on small businesses, offer alternative methods (5) All materials relating to the practice of psychology, of achieving the purpose of the rule; then explain how the Exec- upon which the supervisee's name or signature appears, must indicate utive Council may legally and feasibly reduce that adverse effect the supervisory status of the supervisee. Supervisory status must be on small businesses considering the purpose of the statute un- indicated by one of the following: der which the proposed rule is to be adopted; and finally describe how the health, safety, environmental and economic welfare of (A) Supervised by (name of supervising licensee); the state will be impacted by the various proposed methods. See (B) Under the supervision of (name of supervising li- §2006.002(c) and (c-1) of the Tex. Gov't Code. censee); Statutory Authority. The rule is proposed under Tex. Occ. Code, (C) The following persons are under the supervision of Title 3, Subtitle I, Chapter 507, which provides the Texas Be- (name of supervising licensee); or havioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this (D) Supervisee of (name of supervising licensee). State, which are reasonably necessary for the proper perfor- (6) Licensees shall provide an adequate level of supervi- mance of its duties and regulations of proceedings before it. sion to all individuals under their supervision according to accepted Additionally, the Executive Council proposes this rule pursuant professional standards given the experience, skill and training of the to the authority found in §507.152 of the Tex. Occ. Code, which supervisee, the availability of other qualified licensees for consultation, vests the Executive Council with the authority to adopt rules nec- and the type of psychological services being provided. essary to perform its duties and implement Chapter 507 of the (7) Licensees shall utilize methods of supervision that en- Tex. Occ. Code. able the licensee to monitor all delegated services for legal, competent, and ethical performance. No more than fifty percent of the supervision

PROPOSED RULES June 18, 2021 46 TexReg 3675 may take place through remote or electronic means. Licensees may rules apply to all supervisory relationships involving Licensed Special- exceed fifty percent remote or electronic supervision if supervision is ists in School Psychology, as well as all interns and other individuals provided through synchronous audiovisual means. authorized by §463.9(g)(1) [trainees] working toward licensure as a specialist in school psychology. (8) Licensees must be competent to perform any psycho- logical services being provided under their supervision. [(1) A supervisor must provide an LSSP trainee with at least one hour of supervision per week, with no more than half be- (9) Licensees shall document their supervision activities in ing group supervision. A supervisor may reduce the amount of weekly writing, including any remote or electronic supervision provided. Doc- supervision on a proportional basis for trainees working less than full- umentation shall include the dates, times, and length of supervision. time.] (10) Licensees may only supervise the number of super- (1) [(2)] Supervision within the public schools may only be visees for which they can provide adequate supervision. provided by a Licensed Specialist in School Psychology who has a min- (b) Supervision of Students, Interns, Residents, Fellows, and imum of 3 years of experience providing psychological services within Trainees. The following rules apply to all supervisory relationships the public school system without supervision. To qualify, a licensee involving students, interns, residents, fellows, and trainees. must be able to show proof of their license, credential, or authority to provide unsupervised school psychological services in the jurisdiction (1) Unlicensed individuals providing psychologi- where those services were provided, along with documentation from cal services pursuant to §§501.004(a)(2), 501.2525(a)(2)(A), or the public school(s) evidencing delivery of those services. 501.260(b)(3) of the Occupations Code must be under the supervision of a qualified supervising licensee at all times. (2) [(3)] Supervisors must sign educational documents completed for students by the supervisee, including student evaluation (2) Supervision must be provided by a qualified supervis- reports, or similar professional reports to consumers, other profession- ing licensee before it will be accepted for licensure purposes. als, or other audiences. It is not a violation of this rule if supervisors (3) A licensee practicing under a restricted status license is do not sign documents completed by a committee reflecting the delib- not qualified to, and shall not provide supervision for a person seek- erations of an educational meeting for an individual student which the ing to fulfill internship or practicum requirements or a person seeking supervisee attended and participated in as part of the legal proceedings licensure under the Psychologists' Licensing Act, regardless of the set- required by federal and state education laws, unless the supervisor ting in which the supervision takes place, unless authorized to do so by also attended and participated in such meeting. the Council. A licensee shall inform all supervisees of any disciplinary (3) [(4)] Supervisors shall document all supervision ses- order restricting the licensee's license and assist the supervisees with sions. This documentation must include information about the duration finding appropriate alternate supervision. of sessions, as well as the focus of discussion or training. The docu- (4) A supervisor must document in writing a supervisee's mentation must also include information regarding: performance during a practicum, internship, or period of supervised (A) any contracts or service agreements between the experience required for licensure. The supervisor must provide this public school district and university school psychology training pro- documentation to the supervisee. gram; (5) A supervisor may allow a supervisee, as part of a re- (B) any contracts or service agreements between the quired practicum, internship, or period of supervised experience re- public school district and the supervisee; quired for licensure under Chapter 501, to supervise others in the de- livery of psychological services. (C) the supervisee's professional liability insurance coverage, if any; (6) Licensees may not supervise an individual to whom they are related within the second degree of affinity or consanguinity. (D) any training logs required by the school psychology training program; and (c) Supervision of Provisionally Licensed Psychologists and Licensed Psychological Associates. The following rules apply to all (E) the supervisee's [trainee or] licensure status or legal supervisory relationships involving Provisionally Licensed Psycholo- authority to provide psychological services. gists and Licensed Psychological Associates. (4) [(5)]Supervisors must ensure that each individual com- (1) Provisionally Licensed Psychologists must be under the pleting any portion of the internship required for licensure as an LSSP, supervision of a Licensed Psychologist and may not engage in indepen- is provided with a written agreement that includes a clear statement of dent practice unless the provisional licensee is licensed in another state the expectations, duties, and responsibilities of each party, including to independently practice psychology and is in good standing in that the total hours to be performed by the intern, benefits and support to be state. provided by the supervisor, and the process by which the intern will be supervised and evaluated. (2) A Provisionally Licensed Psychologist may, as part of a period of supervised experience required for licensure as a psychol- (5) [(6)]Supervisors must ensure that supervisees have ac- ogist, supervise others in the delivery of psychological services. cess to a process for addressing serious concerns regarding a super- visee's performance. The process must protect the rights of clients to (3) A supervisor must provide at least one hour of indi- receive quality services, assure adequate feedback and opportunities vidual supervision per week. A supervisor may reduce the amount of for improvement to the supervisee, and ensure due process protection weekly supervision on a proportional basis for supervisees working less in cases of possible termination of the supervisory relationship. than full-time. (e) The various parts of this rule should be construed, if pos- (d) Supervision of Licensed Specialists in School Psychology sible, so that effect is given to each part. However, where a general interns and other individuals authorized by §463.9(g)(1) (relating to provision conflicts with a more specific provision, the specific provi- Licensed Specialist in School Psychology) [trainees]. The following sion shall control.

46 TexReg 3676 June 18, 2021 Texas Register The agency certifies that legal counsel has reviewed the pro- riod the proposed rule is in effect, there will be no adverse effect posal and found it to be within the state agency's legal authority on small businesses, micro-businesses, or rural communities. to adopt. Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that the Filed with the Office of the Secretary of State on June 4, 2021. proposed rule will have no adverse economic effect on small TRD-202102168 businesses, micro-businesses, or rural communities. Thus, the Darrel D. Spinks Executive Council is not required to prepare a regulatory flexibil- Executive Director ity analysis pursuant to §2006.002 of the Tex. Gov't Code. Texas State Board of Examiners of Psychologists Local Employment Impact Statement. Mr. Spinks has deter- Earliest possible date of adoption: July 18, 2021 mined that the proposed rule will have no impact on local em- For further information, please call: (512) 305-7706 ployment or a local economy. Thus, the Executive Council is not required to prepare a local employment impact statement pur- ♦ ♦ ♦ suant to §2001.022 of the Tex. Gov't Code. 22 TAC §465.38 Requirement for Rules Increasing Costs to Regulated Persons. The Texas Behavioral Health Executive Council proposes The proposed rule does not impose any new or additional amendments to §465.38, relating to Psychological Services for costs to regulated persons, state agencies, special districts, or Schools. local governments; therefore, pursuant to §2001.0045 of the Tex. Gov't Code, no repeal or amendment of another rule is Overview and Explanation of the Proposed Rule. Rules 463.10, required to offset any increased costs. Additionally, no repeal or 463.11, and 465.12 have been amended so the references to amendment of another rule is required because the proposed these rules in subsection (e), of this rule, are proposed to be rule is necessary to protect the health, safety, and welfare of the amended to reflect these changes. residents of this state and because regulatory costs imposed by If a rule will pertain to the qualifications necessary to obtain a the Executive Council on licensees is not expected to increase. license; the scope of practice, standards of care, or ethical prac- Government Growth Impact Statement. For the first five-year tice for a profession; continuing education requirements; or a period the proposed rule is in effect, the Executive Council esti- schedule of sanctions then the rule must first be proposed to the mates that the proposed rule will have no effect on government Executive Council by the applicable board for the profession be- growth. The proposed rule does not create or eliminate a gov- fore the Executive Council may propose or adopt such a rule, see ernment program; it does not require the creation or elimination §507.153 of the Tex. Occ. Code. The proposed rule pertains to of employee positions; it does not require the increase or de- the scope of practice, standards of care, or ethical practice for crease in future legislative appropriations to this agency; it does the practice of psychology. Therefore, this rule is covered by not require an increase or decrease in fees paid to the agency; §507.153 of the Tex. Occ. Code. it does not create a new regulation; it does not expand an exist- The Texas State Board of Examiners of Psychologists, in accor- ing regulation; it does not increase or decrease the number of dance with §501.2015 of the Tex. Occ. Code, previously voted individuals subject to the rule's applicability; and it does not pos- and, by a majority, approved to propose this rule to the Execu- itively or adversely affect the state's economy. tive Council. Therefore, the Executive Council has complied with Takings Impact Assessment. Mr. Spinks has determined that Chapters 501 and 507 of the Tex. Occ. Code and may propose there are no private real property interests affected by the pro- this rule. posed rule. Thus, the Executive Council is not required to pre- Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- pare a takings impact assessment pursuant to §2007.043 of the tive Council, has determined that for the first five-year period the Tex. Gov't Code. proposed rule is in effect, there will be no additional estimated Request for Public Comments. Comments on the proposed cost, reduction in costs, or loss or increase in revenue to the state rule may be submitted to Brenda Skiff, Executive Assistant, or local governments as a result of enforcing or administering the Texas Behavioral Health Executive Council, 333 Guadalupe, rule. Additionally, Mr. Spinks has determined that enforcing or Ste. 3-900, Austin, Texas 78701, within 30 days of publication administering the rule does not have foreseeable implications re- of this proposal in the Texas Register. Comments may also be lating to the costs or revenues of state or local government. submitted via email to [email protected]. Public Benefit. Mr. Spinks has determined for the first five-year The Executive Council specifically invites comments from the period the proposed rule is in effect there will be a benefit to public on the issues of whether or not the proposed rule will licensees, applicants, and the general public because the pro- have an adverse economic effect on small businesses; if the pro- posed rule will provide greater clarity and consistency in the Ex- posed rule is believed to have an adverse effect on small busi- ecutive Council's rules. Mr. Spinks has also determined that for nesses, estimate the number of small businesses believed to be each year of the first five years the rule is in effect, the public impacted by the rule, describe and estimate the economic im- benefit anticipated as a result of enforcing the rule will be to help pact of the rule on small businesses, offer alternative methods the Executive Council protect the public. of achieving the purpose of the rule; then explain how the Exec- Probable Economic Costs. Mr. Spinks has determined for the utive Council may legally and feasibly reduce that adverse effect first five-year period the proposed rule is in effect, there will be on small businesses considering the purpose of the statute un- no additional economic costs to persons required to comply with der which the proposed rule is to be adopted; and finally describe this rule. how the health, safety, environmental and economic welfare of the state will be impacted by the various proposed methods. See Small Business, Micro-Business, and Rural Community Impact §2006.002(c) and (c-1) of the Tex. Gov't Code. Statement. Mr. Spinks has determined for the first five-year pe-

PROPOSED RULES June 18, 2021 46 TexReg 3677 Statutory Authority. The rule is proposed under Tex. Occ. Code, (2) The assessment of emotional or behavioral disturbance, Title 3, Subtitle I, Chapter 507, which provides the Texas Be- solely for educational purposes, using psychological techniques and havioral Health Executive Council with the authority to make all procedures is considered the practice of school psychology. rules, not inconsistent with the Constitution and Laws of this (3) The delivery of school psychological services in the State, which are reasonably necessary for the proper perfor- public schools of this state shall be consistent with nationally recog- mance of its duties and regulations of proceedings before it. nized standards for the practice of school psychology. Licensees pro- Additionally, the Executive Council proposes this rule pursuant viding school psychological services in a private school should comply to the authority found in §507.152 of the Tex. Occ. Code, which with those same nationally recognized standards where possible, but at vests the Executive Council with the authority to adopt rules nec- a minimum, must comply with all applicable Council rules, including essary to perform its duties and implement Chapter 507 of the those related to informed consent, notification of the right to file a com- Tex. Occ. Code. plaint, competency, forensic services, and misuse of services. In accordance with §501.2015 of the Tex. Occ. Code the Board (c) The specialist in school psychology license permits the li- previously voted and, by a majority, approved to propose this censee to provide school psychological services only in public and pri- rule to the Executive Council. The rule is specifically authorized vate schools. A person utilizing this license may not provide psycho- by §501.2015 of the Tex. Occ. Code, which states the Board logical services in any context or capacity outside of a public or private shall propose to the Executive Council rules regarding the qual- school. ifications necessary to obtain a license; the scope of practice, (d) The correct title for an individual holding a specialist in standards of care, and ethical practice; continuing education re- school psychology license is Licensed Specialist in School Psychol- quirements for license holders; and a schedule of sanctions for ogy or LSSP. An LSSP who has achieved certification as a Nationally violations of this chapter or rules adopted under this chapter. Certified School Psychologist (NCSP) may use this credential along The Executive Council also proposes this rule in compliance with with the license title of LSSP. §507.153 of the Tex. Occ. Code. The Executive Council may (e) Providers of Psychological Services Within the Public not propose and adopt a rule regarding the qualifications neces- Schools. sary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education re- (1) School psychological services may be provided in quirements; or a schedule of sanctions unless the rule has been Texas public schools only by individuals authorized by this Council proposed by the applicable board for the profession. In this in- to provide such services. Individuals who may provide such school stance, the underlying board has proposed this rule to the Ex- psychological services include: ecutive Council. Therefore, the Executive Council has complied (A) LSSPs; and with Chapters 501 and 507 of the Texas Occupations Code and may propose this rule. (B) interns and post-doctoral fellows working towards licensure as a psychologist. Lastly, the Executive Council proposes this rule under the au- thority found in §2001.004 of the Tex. Gov't Code, which requires [(B) Those individuals listed in §463.11; and] state agencies to adopt rules of practice stating the nature and [(C) Individuals seeking to fulfill the licensing require- requirements of all available formal and informal procedures. ments of §463.10 of this title (relating to Licensed Psychological As- No other code, articles or statutes are affected by this section. sociate) or §463.12 of this title (relating to Licensed Psychologist).] §465.38. Psychological Services for Schools. (2) Licensees who do not hold the specialist in school psy- chology license may contract for specific types of psychological ser- (a) This rule acknowledges the unique difference in the deliv- vices, such as clinical psychology, counseling psychology, neuropsy- ery of school psychological services in public and private schools from chology, and family therapy, but any such contracting may not involve psychological services in the private sector. The Council recognizes the broad range of school psychological services listed in subsection the purview of the State Board of Education and the Texas Education (b)(1) of this section. Agency in safeguarding the rights of school children in Texas. The mandated multidisciplinary team decision making, hierarchy of super- (3) An LSSP who contracts with a school to provide school vision, regulatory provisions, and past traditions of school psychologi- psychological services must notify the school of any intent or plan to cal service delivery both nationally and in Texas, among other factors, subcontract or assign those services to another provider prior to en- allow for rules of practice in public and private schools which reflect tering into the agreement. An LSSP subject to this provision shall be these occupational distinctions from the private practice of psychology. responsible for ensuring the school psychological services delivered comply with subsection (b)(3) of this section. (b) Scope of Practice. (f) Compliance with Applicable Education Laws. LSSPs shall (1) An LSSP is a person who is trained to address psycho- comply with all applicable state and federal laws affecting the practice logical and behavioral problems manifested in and associated with ed- of school psychology, including, but not limited to: ucational systems by utilizing psychological concepts and methods in programs or actions which attempt to improve the learning, adjustment (1) Texas Education Code; and behavior of students. Such activities include, but are not limited (2) Family Educational Rights and Privacy Act (FERPA), to, addressing special education eligibility, conducting manifestation 20 U.S.C. §1232g; determinations, and assisting with the development and implementa- tion of individual educational programs, conducting behavioral assess- (3) Individuals with Disabilities Education Improvement ments, and designing and implementing behavioral interventions and Act (IDEIA), 20 U.S.C. §1400 et seq.; supports. (4) Texas Public Information Act, Texas Government Code, Chapter 552;

46 TexReg 3678 June 18, 2021 Texas Register (5) Section 504 of the Rehabilitation Act of 1973; rule to the Executive Council. Therefore, the Executive Council has complied with Chapters 503 and 507 of the Tex. Occ. Code (6) Americans with Disabilities Act (ADA) 42 U.S.C. and may propose this rule. §12101; and Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- (7) HIPAA when practicing in a private school. tive Council, has determined that for the first five-year period the (g) Informed Consent in a Public School. Informed consent proposed rule is in effect, there will be no additional estimated for a Licensed Specialist in School Psychology must be obtained in cost, reduction in costs, or loss or increase in revenue to the state accordance with the Individuals with Disabilities Education Improve- or local governments as a result of enforcing or administering the ment Act (IDEIA) and the U.S. Department of Education's rules gov- rule. Additionally, Mr. Spinks has determined that enforcing or erning parental consent when delivering school psychological services administering the rule does not have foreseeable implications re- in the public schools, and is considered to meet the requirements for lating to the costs or revenues of state or local government. informed consent under Board rules. No additional informed consent, Public Benefit. Mr. Spinks has determined for the first five-year specific to any Council rules, is necessary in this context. Licensees period the proposed rule is in effect there will be a benefit to providing psychological services under subsection (e)(2) of this sec- licensees, applicants, and the general public because the pro- tion, or in a private school however, must obtain informed consent as posed rule will provide greater clarity and consistency in the Ex- otherwise required by the Council rules. ecutive Council's rules. Mr. Spinks has also determined that for The agency certifies that legal counsel has reviewed the pro- each year of the first five years the rule is in effect, the public posal and found it to be within the state agency's legal authority benefit anticipated as a result of enforcing the rule will be to help to adopt. the Executive Council protect the public. Probable Economic Costs. Mr. Spinks has determined for the Filed with the Office of the Secretary of State on June 4, 2021. first five-year period the proposed rule is in effect, there will be TRD-202102169 no additional economic costs to persons required to comply with Darrel D. Spinks this rule. Executive Director Small Business, Micro-Business, and Rural Community Impact Texas State Board of Examiners of Psychologists Statement. Mr. Spinks has determined for the first five-year pe- Earliest possible date of adoption: July 18, 2021 riod the proposed rule is in effect, there will be no adverse effect For further information, please call: (512) 305-7706 on small businesses, micro-businesses, or rural communities. ♦ ♦ ♦ Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that the PART 30. TEXAS STATE BOARD proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities. Thus, the OF EXAMINERS OF PROFESSIONAL Executive Council is not required to prepare a regulatory flexibil- COUNSELORS ity analysis pursuant to §2006.002 of the Tex. Gov't Code. Local Employment Impact Statement. Mr. Spinks has deter- CHAPTER 681. PROFESSIONAL mined that the proposed rule will have no impact on local em- COUNSELORS ployment or a local economy. Thus, the Executive Council is not required to prepare a local employment impact statement pur- SUBCHAPTER A. GENERAL PROVISIONS suant to §2001.022 of the Tex. Gov't Code. 22 TAC §681.2 Requirement for Rules Increasing Costs to Regulated Persons. The Texas Behavioral Health Executive Council proposes The proposed rule does not impose any new or additional amendments to §681.2, relating to Definitions. costs to regulated persons, state agencies, special districts, or local governments; therefore, pursuant to §2001.0045 of the Overview and Explanation of the Proposed Rule. The proposed Tex. Gov't Code, no repeal or amendment of another rule is amendment to §681.2 is intended to provide clarity to the defini- required to offset any increased costs. Additionally, no repeal or tion of art therapy and correct a typographical error. amendment of another rule is required because the proposed If a rule will pertain to the qualifications necessary to obtain a rule is necessary to protect the health, safety, and welfare of the license; the scope of practice, standards of care, or ethical prac- residents of this state and because regulatory costs imposed by tice for a profession; continuing education requirements; or a the Executive Council on licensees is not expected to increase. schedule of sanctions then the rule must first be proposed to the Government Growth Impact Statement. For the first five-year Executive Council by the applicable board for the profession be- period the proposed rule is in effect, the Executive Council esti- fore the Executive Council may propose or adopt such a rule, mates that the proposed rule will have no effect on government see §507.153 of the Tex. Occ. Code. The proposed rule pro- growth. The proposed rule does not create or eliminate a gov- vides definitions for the rules in Chapter 681, which pertain to the ernment program; it does not require the creation or elimination qualifications necessary to obtain a license as well as the scope of employee positions; it does not require the increase or de- of practice, standards of care, or ethical practice for the prac- crease in future legislative appropriations to this agency; it does tice of professional counseling. Therefore, this rule is covered not require an increase or decrease in fees paid to the agency; by §507.153 of the Tex. Occ. Code. it does not create a new regulation; it does not expand an exist- The Texas State Board of Examiners of Professional Coun- ing regulation; it does not increase or decrease the number of selors, in accordance with §503.2015 of the Tex. Occ. Code, individuals subject to the rule's applicability; and it does not pos- previously voted and, by a majority, approved to propose this itively or adversely affect the state's economy.

PROPOSED RULES June 18, 2021 46 TexReg 3679 Takings Impact Assessment. Mr. Spinks has determined that No other code, articles or statutes are affected by this section. there are no private real property interests affected by the pro- §681.2. Definitions. posed rule. Thus, the Executive Council is not required to pre- pare a takings impact assessment pursuant to §2007.043 of the The following words and terms, as used in this chapter, shall have the Tex. Gov't Code. following meanings unless the context clearly indicates otherwise. Request for Public Comments. Comments on the proposed (1) Accredited school--An institution of higher education rule may be submitted to Brenda Skiff, Executive Assistant, accredited by a regional accrediting agency recognized by the Council Texas Behavioral Health Executive Council, 333 Guadalupe, for Higher Education Accreditation, the Texas Higher Education Co- Ste. 3-900, Austin, Texas 78701, within 30 days of publication ordinating Board, or the United States Department of Education. of this proposal in the Texas Register. Comments may also be submitted via email to [email protected]. (2) Act--The Licensed Professional Counselor Act, Texas Occupations Code, Chapter 503. The Executive Council specifically invites comments from the public on the issues of whether or not the proposed rule will (3) Art therapy--A form of counseling [ human service pro- have an adverse economic effect on small businesses; if the pro- fession] in which clients[, facilitated by the art therapist,] use art media, posed rule is believed to have an adverse effect on small busi- the creative process, and the resulting artwork to explore their feelings, nesses, estimate the number of small businesses believed to be reconcile emotional conflicts, foster self-awareness, manage behavior, impacted by the rule, describe and estimate the economic im- develop social skills, improve reality orientation, reduce anxiety and pact of the rule on small businesses, offer alternative methods increase self-esteem. of achieving the purpose of the rule; then explain how the Exec- (4) Board--The Texas State Board of Examiners of Profes- utive Council may legally and feasibly reduce that adverse effect sional Counselors. on small businesses considering the purpose of the statute un- der which the proposed rule is to be adopted; and finally describe (5) Client(s)--A person(s) who requests and receives coun- how the health, safety, environmental and economic welfare of seling services from a licensee or who has engaged in a therapeutic the state will be impacted by the various proposed methods. See relationship with a licensee. §2006.002(c) and (c-1) of the Tex. Gov't Code. (6) Consent for services--Process for receiving permission Statutory Authority. The rule is proposed under Tex. Occ. Code, from the legally authorized person who agrees to services. Title 3, Subtitle I, Chapter 507, which provides the Texas Be- (7) Consent Form--A document executed by the legally au- havioral Health Executive Council with the authority to make all thorized person to ensure the client is aware of fees and arrangements rules, not inconsistent with the Constitution and Laws of this for payment; counseling purposes, goals, and techniques; restrictions State, which are reasonably necessary for the proper perfor- placed on the license by the Council; limits on confidentiality; intent mance of its duties and regulations of proceedings before it. of the licensee to use another individual to provide counseling treat- Additionally, the Executive Council proposes this rule pursuant ment intervention to the client; supervision of the licensee by another to the authority found in §507.152 of the Tex. Occ. Code, which licensed health care professional including the name, address, contact vests the Executive Council with the authority to adopt rules nec- information, and qualifications of the supervisor; and the name, ad- essary to perform its duties and implement Chapter 507 of the dress, and telephone number of the Council for the purpose of report- Tex. Occ. Code. ing violations of the Act or this chapter. In accordance with §503.2015 of the Tex. Occ. Code the Board (8) Council--The Texas Behavioral Health Executive previously voted and, by a majority, approved to propose this Council. rule to the Executive Council. The rule is specifically authorized (9) Counseling-related field--A mental health discipline by §503.2015 of the Tex. Occ. Code, which states the Board using human development, psychotherapeutic, and mental health prin- shall propose to the Executive Council rules regarding the qual- ciples including, but not limited to, clinical or counseling psychology, ifications necessary to obtain a license; the scope of practice, psychiatry, social work, marriage and family therapy, and counseling standards of care, and ethical practice; continuing education re- and guidance. Non-counseling related fields include, but are not quirements for license holders; and a schedule of sanctions for limited to, sociology, education, administration, dance therapy and violations of this chapter or rules adopted under this chapter. theology. The Executive Council also proposes this rule in compliance with (10) Executive Director--The executive director for the §507.153 of the Tex. Occ. Code. The Executive Council may Texas Behavioral Health Executive Council. The executive director not propose and adopt a rule regarding the qualifications neces- may delegate responsibilities to other staff members. sary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education re- (11) Direct client contact--Time spent counseling clients. quirements; or a schedule of sanctions unless the rule has been (12) Health care professional--Any person licensed, certi- proposed by the applicable board for the profession. In this in- fied, or registered by the state in a health related profession. stance, the underlying board has proposed this rule to the Ex- ecutive Council. Therefore, the Executive Council has complied (13) Indirect hours--Time spent in management, adminis- with Chapters 503 and 507 of the Texas Occupations Code and tration or other aspects of counseling service ancillary to direct client may propose this rule. contact. Lastly, the Executive Council proposes this rule under the au- (14) Jurisprudence exam--The Texas State Board of Exam- thority found in §2001.004 of the Tex. Gov't Code, which requires iners of Licensed Professional Counselors Jurisprudence exam. An on- state agencies to adopt rules of practice stating the nature and line exam based upon the statutes and rules relating to the practice of requirements of all available formal and informal procedures. counseling.

46 TexReg 3680 June 18, 2021 Texas Register (15) License--An LPC license, LPC license with art tice for a profession; continuing education requirements; or a therapy specialty designation, or LPC Associate license issued by the schedule of sanctions then the rule must first be proposed to the Council. Executive Council by the applicable board for the profession be- fore the Executive Council may propose or adopt such a rule, see (16) Licensee---A person who holds an LPC license, LPC §507.153 of the Tex. Occ. Code. The proposed rule pertains to license with art therapy specialty designation, or LPC Associate li- the scope of practice, standards of care, or ethical practice for cense. the practice of professional counseling. Therefore, this rule is (17) LPC--Licensed Professional Counselor. A person covered by §507.153 of the Tex. Occ. Code. holding an LPC license as a professional counselor with authority to The Texas State Board of Examiners of Professional Coun- practice in independent practice. selors, in accordance with § 503.2015 of the Tex. Occ. Code, (18) LPC Associate--Licensed Professional Counselor As- previously voted and, by a majority, approved to propose this sociate. A person who holds an LPC Associate license to practice coun- rule to the Executive Council. Therefore, the Executive Council seling only under a [board]Council-approved supervisor and not as an has complied with Chapters 503 and 507 of the Tex. Occ. Code independent practitioner. and may propose this rule. (19) Recognized religious practitioner--A rabbi, clergy- Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- man, or person of similar status who is a member in good standing of tive Council, has determined that for the first five-year period the and accountable to a denomination, church, sect or religious organiza- proposed rule is in effect, there will be no additional estimated tion legally recognized under the Internal Revenue Code, 26 U.S.C. cost, reduction in costs, or loss or increase in revenue to the state §501(c)(3) and other individuals participating with them in pastoral or local governments as a result of enforcing or administering the counseling if: rule. Additionally, Mr. Spinks has determined that enforcing or administering the rule does not have foreseeable implications re- (A) the counseling activities are within the scope of the lating to the costs or revenues of state or local government. performance of their regular or specialized ministerial duties and are performed under the auspices of sponsorship of the legally recognized Public Benefit. Mr. Spinks has determined for the first five-year denomination, church, sect, religious organization or an integrated aux- period the proposed rule is in effect there will be a benefit to iliary of a church as defined in Federal Tax Regulations, 26 Code of licensees, applicants, and the general public because the pro- Federal Regulations, L1.6033-2(g)(i)(2012); posed rule will provide greater clarity and consistency in the Ex- ecutive Council's rules. Mr. Spinks has also determined that for (B) the individual providing the service remains ac- each year of the first five years the rule is in effect, the public countable to the established authority of that denomination, church, benefit anticipated as a result of enforcing the rule will be to help sect, religious organization or integrated auxiliary; and the Executive Council protect the public. (C) the person does not use the title of or hold himself Probable Economic Costs. Mr. Spinks has determined for the or herself out as a professional counselor. first five-year period the proposed rule is in effect, there will be (20) Supervisor--An LPC approved by the Council as no additional economic costs to persons required to comply with meeting the requirements set out in §681.93 of this title (relating to this rule. Supervisor Requirements) to supervise an LPC Associate. Small Business, Micro-Business, and Rural Community Impact The agency certifies that legal counsel has reviewed the pro- Statement. Mr. Spinks has determined for the first five-year pe- posal and found it to be within the state agency's legal authority riod the proposed rule is in effect, there will be no adverse effect to adopt. on small businesses, micro-businesses, or rural communities. Regulatory Flexibility Analysis for Small and Micro-Businesses Filed with the Office of the Secretary of State on June 4, 2021. and Rural Communities. Mr. Spinks has determined that the TRD-202102181 proposed rule will have no adverse economic effect on small Darrel D. Spinks businesses, micro-businesses, or rural communities. Thus, the Executive Director Executive Council is not required to prepare a regulatory flexibil- Texas State Board of Examiners of Professional Counselors ity analysis pursuant to §2006.002 of the Tex. Gov't Code. Earliest possible date of adoption: July 18, 2021 Local Employment Impact Statement. Mr. Spinks has deter- For further information, please call: (512) 305-7706 mined that the proposed rule will have no impact on local em- ployment or a local economy. Thus, the Executive Council is not ♦ ♦ ♦ required to prepare a local employment impact statement pur- SUBCHAPTER B. RULES OF PRACTICE suant to §2001.022 of the Tex. Gov't Code. 22 TAC §681.41 Requirement for Rules Increasing Costs to Regulated Persons. The proposed rule does not impose any new or additional The Texas Behavioral Health Executive Council proposes costs to regulated persons, state agencies, special districts, or amendments to §681.41, relating to General Ethical Require- local governments; therefore, pursuant to §2001.0045 of the ments. Tex. Gov't Code, no repeal or amendment of another rule is required to offset any increased costs. Additionally, no repeal or Overview and Explanation of the Proposed Rule. The proposed amendment of another rule is required because the proposed amendment clarifies a licensee's duty to take reasonable action rule is necessary to protect the health, safety, and welfare of the in response to actions by third-parties. residents of this state and because regulatory costs imposed by If a rule will pertain to the qualifications necessary to obtain a the Executive Council on licensees is not expected to increase. license; the scope of practice, standards of care, or ethical prac-

PROPOSED RULES June 18, 2021 46 TexReg 3681 Government Growth Impact Statement. For the first five-year and ethical practice for a profession; continuing education re- period the proposed rule is in effect, the Executive Council esti- quirements; or a schedule of sanctions unless the rule has been mates that the proposed rule will have no effect on government proposed by the applicable board for the profession. In this in- growth. The proposed rule does not create or eliminate a gov- stance, the underlying board has proposed this rule to the Ex- ernment program; it does not require the creation or elimination ecutive Council. Therefore, the Executive Council has complied of employee positions; it does not require the increase or de- with Chapters 503 and 507 of the Texas Occupations Code and crease in future legislative appropriations to this agency; it does may propose this rule. not require an increase or decrease in fees paid to the agency; Lastly, the Executive Council proposes this rule under the au- it does not create a new regulation; it does not expand an exist- thority found in §2001.004 of the Tex. Gov't Code, which requires ing regulation; it does not increase or decrease the number of state agencies to adopt rules of practice stating the nature and individuals subject to the rule's applicability; and it does not pos- requirements of all available formal and informal procedures. itively or adversely affect the state's economy. No other code, articles or statutes are affected by this section. Takings Impact Assessment. Mr. Spinks has determined that there are no private real property interests affected by the pro- §681.41. General Ethical Requirements. posed rule. Thus, the Executive Council is not required to pre- (a) A licensee must not make any false, misleading, deceptive, pare a takings impact assessment pursuant to §2007.043 of the fraudulent or exaggerated claim or statement about the licensee's ser- Tex. Gov't Code. vices, including, but not limited to: Request for Public Comments. Comments on the proposed (1) the effectiveness of services; rule may be submitted to Brenda Skiff, Executive Assistant, (2) the licensee's qualifications, capabilities, background, Texas Behavioral Health Executive Council, 333 Guadalupe, training, experience, education, professional affiliations, fees, prod- Ste. 3-900, Austin, Texas 78701, within 30 days of publication ucts, or publications; or of this proposal in the Texas Register. Comments may also be submitted via email to [email protected]. (3) the practice or field of counseling. The Executive Council specifically invites comments from the (b) A licensee must not make any false, misleading, deceptive, public on the issues of whether or not the proposed rule will fraudulent or exaggerated claim or statement about the services of a have an adverse economic effect on small businesses; if the pro- mental health organization or agency, including, but not limited to, the posed rule is believed to have an adverse effect on small busi- effectiveness of services, qualifications, or products. nesses, estimate the number of small businesses believed to be (c) A licensee must discourage a client from holding exagger- impacted by the rule, describe and estimate the economic im- ated or false ideas about the licensee's professional services, including, pact of the rule on small businesses, offer alternative methods but not limited to, the effectiveness of the services, practice, qualifi- of achieving the purpose of the rule; then explain how the Exec- cations, associations, or activities. If a licensee learns of exaggerated utive Council may legally and feasibly reduce that adverse effect or false ideas held by a client or other person, the licensee must take on small businesses considering the purpose of the statute un- immediate and reasonable action to correct the ideas held. der which the proposed rule is to be adopted; and finally describe how the health, safety, environmental and economic welfare of (d) A licensee must make reasonable efforts to discourage oth- the state will be impacted by the various proposed methods. See ers whom the licensee does not control from making misrepresenta- §2006.002(c) and (c-1) of the Tex. Gov't Code. tions; exaggerated or false claims; or false, deceptive, or fraudulent statements about the licensee's practice, services, qualifications, asso- Statutory Authority. The rule is proposed under Tex. Occ. Code, ciations, or activities. If a licensee learns of a misrepresentation; ex- Title 3, Subtitle I, Chapter 507, which provides the Texas Be- aggerated or false claim; or false, deceptive, or fraudulent statement havioral Health Executive Council with the authority to make all made by another, the licensee must take [immediate and] reasonable rules, not inconsistent with the Constitution and Laws of this action to correct the statement. State, which are reasonably necessary for the proper perfor- mance of its duties and regulations of proceedings before it. (e) Regardless of setting, a licensee must provide counseling only in the context of a professional relationship. Prior to providing Additionally, the Executive Council proposes this rule pursuant services, a licensee must obtain from an individual a signed informed to the authority found in §507.152 of the Tex. Occ. Code, which consent, signed written receipt of information, or in the case of invol- vests the Executive Council with the authority to adopt rules nec- untary treatment a copy of the appropriate court order, including the essary to perform its duties and implement Chapter 507 of the following: Tex. Occ. Code. (1) fees and arrangements for payment; In accordance with §503.2015 of the Tex. Occ. Code the Board previously voted and, by a majority, approved to propose this (2) counseling purposes, goals, and techniques; rule to the Executive Council. The rule is specifically authorized (3) any restrictions placed on the license by the Council; by §503.2015 of the Tex. Occ. Code, which states the Board shall propose to the Executive Council rules regarding the qual- (4) the limits on confidentiality; ifications necessary to obtain a license; the scope of practice, (5) any intent of the licensee to use another individual to standards of care, and ethical practice; continuing education re- provide counseling treatment intervention to the client; quirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter. (6) supervision of the licensee by another licensed health care professional including the name, address, contact information and The Executive Council also proposes this rule in compliance with qualifications of the supervisor; §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications neces- (7) the name, address and telephone number of the Council sary to obtain a license; the scope of practice, standards of care, for the purpose of reporting violations of the Act or this chapter; and

46 TexReg 3682 June 18, 2021 Texas Register (8) the established plan for the custody and control of the (D) business associates. client's mental health records in the event of the licensee's death or (6) The licensee must not give or accept a gift from a client incapacity, or the termination of the licensee's counseling practice. or a relative of a client valued at more than $50, borrow or lend money (f) A licensee must inform the client in writing of any changes or items of value to clients or relatives of clients, or accept payment in to the items in subsection (e) of this section, prior to initiating the the form of goods or services rendered by a client or relative of a client. change. (7) The licensee must not enter into a non-professional re- (g) Technological means of communication may be used to lationship with a client's family member or any person having a per- facilitate the therapeutic counseling process. sonal or professional relationship with a client if the licensee knows or reasonably should have known such a relationship could be detrimen- (h) In accordance with §503.401(a)(4) of the Act, a licensee tal to the client. must not intentionally or knowingly offer to pay or agree to accept any remuneration directly or indirectly, overtly or covertly, in cash or in (n) The licensee must not knowingly offer or provide counsel- kind, to or from any person, firm, association of persons, partnership, ing to an individual concurrently receiving counseling treatment inter- corporation, or entity for securing or soliciting clients or patronage. vention from another mental health services provider except with that provider's knowledge. If a licensee learns of such concurrent therapy, (i) A licensee employed or under contract with a chemical de- the licensee must request release from the client to inform the other pendency facility or a mental health facility must comply with the re- professional and strive to establish positive and collaborative profes- quirements in the Texas Health and Safety Code, §164.006, relating sional relationships. to soliciting and contracting with certain referral sources. Compliance with the Treatment Facilities Marketing Practices Act, Texas Health (o) A licensee may take reasonable action to inform medical and Safety Code Chapter 164, will not be considered as a violation of or law enforcement personnel if the licensee determines there is a prob- state law relating to illegal remuneration. ability of imminent physical injury by the client to the client or others, or there is a probability of immediate mental or emotional injury to the (j) A licensee must not engage in activities for the licensee's client. personal gain at the expense of a client. (p) The licensee must take reasonable precautions to protect (k) A licensee may promote the licensee's personal or business clients from physical or emotional harm resulting from interaction: activities to a client if such activities, services or products are to facili- tate the counseling process or help achieve the client's counseling goals. (1) within a group; or Prior to engaging in any such activities, services or product sales with (2) individual counseling. the client, the licensee must first inform the client of the licensee's per- sonal and/or business interest therein. A licensee must not exert undue (q) For each client, a licensee must keep accurate records of: influence in promoting such activities, services or products. (1) signed informed consent, signed written receipt of in- (l) A licensee must set and maintain professional boundaries. formation, or, in the case of involuntary treatment, a copy of the appro- priate court order (m) Except as provided by this subchapter, non-therapeutic re- lationships with clients are prohibited. (2) intake assessment; (1) A non-therapeutic relationship is any non-counseling (3) dates of counseling treatment intervention; activity initiated by either the licensee or client that results in a rela- (4) principal treatment methods; tionship unrelated to therapy. (5) progress notes; (2) A licensee may not engage in a non-therapeutic rela- tionship with a client if the relationship begins less than two (2) years (6) treatment plan; and after the end of the counseling relationship; the non-therapeutic rela- (7) billing information. tionship must be consensual, not the result of exploitation by the li- censee, and is not detrimental to the client. (r) In the absence of applicable state and federal laws, rules or regulations, records held by a licensee must be kept for a minimum of (3) A licensee may not engage in sexual contact with a seven (7) years from the date of termination of services with the client, client if the contact begins less than five (5) years after the end of the or five (5) years after the client reaches the age of majority, whichever counseling relationship; the non-therapeutic relationship must be con- is greater. sensual, not the result of exploitation by the licensee, and is not detri- mental to the client. (s) Records created by licensees during the scope of their em- ployment by agencies or institutions that maintain client records are not (4) For purposes of paragraphs (2) and (3) of this subsec- required to comply with (q) and (r) of this section. tion, the licensee must be able to demonstrate there has been no ex- ploitation and the non-therapeutic relationship is not detrimental to the (t) Billing Requirements. client in light of all relevant factors, including, but not limited to, the (1) A licensee must bill clients or third parties for only factors set forth in §681.42(b)(4)(A) - (G) of this title (relating to Sex- those services actually rendered or as agreed to by mutual understand- ual Misconduct). ing at the beginning of services or as later modified by mutual written (5) The licensee must not provide counseling services to agreement. previous or current: (2) Relationships between a licensee and any other person (A) family members; used by the licensee to provide services to a client must be so reflected on billing documents. (B) personal friends; (3) Pursuant to Texas Health and Safety Code, Chapter 611, (C) educational associates; or on the written request of a client, a client's guardian, or a client's parent

PROPOSED RULES June 18, 2021 46 TexReg 3683 (sole managing, joint managing or possessory conservator) if the client SUBCHAPTER C. APPLICATION AND is a minor, a licensee must provide, in plain language, a written expla- nation of the types of treatment and charges for counseling treatment LICENSING intervention previously made on a bill or statement for the client. This 22 TAC §681.72 requirement applies even if the charges are to be paid by a third party. The Texas Behavioral Health Executive Council proposes (4) A licensee may not knowingly overcharge a client. amendments to §681.72, relating to Required Application Mate- (5) With the exception of an unkept appointment, a licensee rials. may not submit to a client or a third party payor a bill for counseling Overview and Explanation of the Proposed Rule. The proposed treatment intervention the licensee knows or should know is improper, amendment is necessary to ensure the regulatory standard for unreasonable, or unnecessary. substantial equivalency comports with the underlying statutory (u) A licensee must comply with all requirements of Texas requirement. Health and Safety Code Chapters 611 and 181 concerning the release If a rule will pertain to the qualifications necessary to obtain a of mental health records and confidential information. license; the scope of practice, standards of care, or ethical prac- (v) Prior to the commencement of counseling services to a mi- tice for a profession; continuing education requirements; or a nor client who is named in a custody agreement or court order, a li- schedule of sanctions then the rule must first be proposed to the censee must obtain and review a current copy of the custody agreement Executive Council by the applicable board for the profession be- or court order, as well as any applicable part of the divorce decree. A fore the Executive Council may propose or adopt such a rule, see licensee must maintain these documents in the client's record and abide §507.153 of the Tex. Occ. Code. The proposed rule pertains to by the documents at all times. When federal or state statutes provide the qualifications necessary to obtain a license. Therefore, this an exemption to secure consent of a parent or guardian prior to provid- rule is covered by §507.153 of the Tex. Occ. Code. ing services to a minor, a licensee must follow the protocol set forth in The Texas State Board of Examiners of Professional Coun- such federal or state statutes. selors, in accordance with §503.2015 of the Tex. Occ. Code, (w) A licensee must terminate a professional counseling rela- previously voted and, by a majority, approved to propose this tionship when it is reasonably clear the client is not benefiting from the rule to the Executive Council. Therefore, the Executive Council relationship. has complied with Chapters 503 and 507 of the Tex. Occ. Code and may propose this rule. (x) Upon termination of a relationship if professional counsel- ing is still necessary, the licensee must take reasonable steps to facilitate Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- the transfer to appropriate care. tive Council, has determined that for the first five-year period the proposed rule is in effect, there will be no additional estimated (y) A licensee must not evaluate any individual's mental, emo- cost, reduction in costs, or loss or increase in revenue to the state tional, or behavioral condition unless the licensee has personally inter- or local governments as a result of enforcing or administering the viewed the individual or the licensee discloses in the evaluation the rule. Additionally, Mr. Spinks has determined that enforcing or licensee has not personally interviewed the individual. administering the rule does not have foreseeable implications re- (z) A licensee must not knowingly overtreat a client. lating to the costs or revenues of state or local government. (aa) A licensee must not aid or abet the unlicensed practice of Public Benefit. Mr. Spinks has determined for the first five-year professional counseling by a person required to be licensed under the period the proposed rule is in effect there will be a benefit to Act. licensees, applicants, and the general public because the pro- posed rule will provide greater clarity and consistency in the Ex- (bb) A licensee must report to the Council knowledge of any ecutive Council's rules. Mr. Spinks has also determined that for unlicensed practice of counseling. each year of the first five years the rule is in effect, the public (cc) A licensee or an applicant must not participate in the fal- benefit anticipated as a result of enforcing the rule will be to help sification of any materials submitted to the Council. the Executive Council protect the public. (dd) A licensee must not provide services while impaired by Probable Economic Costs. Mr. Spinks has determined for the a physical, mental, or medical condition or by medication, drugs or first five-year period the proposed rule is in effect, there will be alcohol. no additional economic costs to persons required to comply with this rule. The agency certifies that legal counsel has reviewed the pro- posal and found it to be within the state agency's legal authority Small Business, Micro-Business, and Rural Community Impact to adopt. Statement. Mr. Spinks has determined for the first five-year pe- riod the proposed rule is in effect, there will be no adverse effect Filed with the Office of the Secretary of State on June 4, 2021. on small businesses, micro-businesses, or rural communities. TRD-202102182 Regulatory Flexibility Analysis for Small and Micro-Businesses Darrel D. Spinks and Rural Communities. Mr. Spinks has determined that the proposed rule will have no adverse economic effect on small Executive Director businesses, micro-businesses, or rural communities. Thus, the Texas State Board of Examiners of Professional Counselors Executive Council is not required to prepare a regulatory flexibil- Earliest possible date of adoption: July 18, 2021 ity analysis pursuant to §2006.002 of the Tex. Gov't Code. For further information, please call: (512) 305-7706 Local Employment Impact Statement. Mr. Spinks has deter- ♦ ♦ ♦ mined that the proposed rule will have no impact on local em- ployment or a local economy. Thus, the Executive Council is not

46 TexReg 3684 June 18, 2021 Texas Register required to prepare a local employment impact statement pur- In accordance with §503.2015 of the Tex. Occ. Code the Board suant to §2001.022 of the Tex. Gov't Code. previously voted and, by a majority, approved to propose this rule to the Executive Council. The rule is specifically authorized Requirement for Rules Increasing Costs to Regulated Persons. by §503.2015 of the Tex. Occ. Code, which states the Board The proposed rule does not impose any new or additional shall propose to the Executive Council rules regarding the qual- costs to regulated persons, state agencies, special districts, or ifications necessary to obtain a license; the scope of practice, local governments; therefore, pursuant to §2001.0045 of the standards of care, and ethical practice; continuing education re- Tex. Gov't Code, no repeal or amendment of another rule is quirements for license holders; and a schedule of sanctions for required to offset any increased costs. Additionally, no repeal or violations of this chapter or rules adopted under this chapter. amendment of another rule is required because the proposed rule is necessary to protect the health, safety, and welfare of the The Executive Council also proposes this rule in compliance with residents of this state and because regulatory costs imposed by §507.153 of the Tex. Occ. Code. The Executive Council may the Executive Council on licensees is not expected to increase. not propose and adopt a rule regarding the qualifications neces- sary to obtain a license; the scope of practice, standards of care, Government Growth Impact Statement. For the first five-year and ethical practice for a profession; continuing education re- period the proposed rule is in effect, the Executive Council esti- quirements; or a schedule of sanctions unless the rule has been mates that the proposed rule will have no effect on government proposed by the applicable board for the profession. In this in- growth. The proposed rule does not create or eliminate a gov- stance, the underlying board has proposed this rule to the Ex- ernment program; it does not require the creation or elimination ecutive Council. Therefore, the Executive Council has complied of employee positions; it does not require the increase or de- with Chapters 503 and 507 of the Texas Occupations Code and crease in future legislative appropriations to this agency; it does may propose this rule. not require an increase or decrease in fees paid to the agency; it does not create a new regulation; it does not expand an exist- Lastly, the Executive Council proposes this rule under the au- ing regulation; it does not increase or decrease the number of thority found in §2001.004 of the Tex. Gov't Code, which requires individuals subject to the rule's applicability; and it does not pos- state agencies to adopt rules of practice stating the nature and itively or adversely affect the state's economy. requirements of all available formal and informal procedures. Takings Impact Assessment. Mr. Spinks has determined that No other code, articles or statutes are affected by this section. there are no private real property interests affected by the pro- §681.72. Required Application Materials. posed rule. Thus, the Executive Council is not required to pre- pare a takings impact assessment pursuant to §2007.043 of the (a) To apply for LPC Associate, the applicant must submit: Tex. Gov't Code. (1) the Council's application form; Request for Public Comments. Comments on the proposed (2) all applicable fees; rule may be submitted to Brenda Skiff, Executive Assistant, Texas Behavioral Health Executive Council, 333 Guadalupe, (3) official examination results from the National Board of Ste. 3-900, Austin, Texas 78701, within 30 days of publication Certified Counselors verifying a passing score on the National Coun- of this proposal in the Texas Register. Comments may also be selor Exam (NCE) or National Clinical Mental Health Counselor Exam submitted via email to [email protected]. (NCMHCE) issued no more than five (5) years before the date the ap- plication was received; The Executive Council specifically invites comments from the public on the issues of whether or not the proposed rule will (4) completion certificate for the Texas jurisprudence exam have an adverse economic effect on small businesses; if the pro- dated no more than six months before the date the application was re- posed rule is believed to have an adverse effect on small busi- ceived; nesses, estimate the number of small businesses believed to be (5) an official graduate transcript(s); impacted by the rule, describe and estimate the economic im- pact of the rule on small businesses, offer alternative methods (6) a practicum/graduate intern documentation form; of achieving the purpose of the rule; then explain how the Exec- (7) a supervisory agreement form; and utive Council may legally and feasibly reduce that adverse effect on small businesses considering the purpose of the statute un- (8) The holder of a current license in good standing issued der which the proposed rule is to be adopted; and finally describe by another jurisdiction equivalent to the Texas LPC Associate license how the health, safety, environmental and economic welfare of must submit official verification of his or her license, including official the state will be impacted by the various proposed methods. See verification of any supervised experience recognized by the issuing ju- §2006.002(c) and (c-1) of the Tex. Gov't Code. risdiction. If supervised experience cannot be verified by the issuing jurisdiction, the Council may consider a supervised experience docu- Statutory Authority. The rule is proposed under Tex. Occ. Code, mentation form with verification of the supervisor's credentials. Title 3, Subtitle I, Chapter 507, which provides the Texas Be- havioral Health Executive Council with the authority to make all (b) To apply for LPC as the holder of a current Texas LPC rules, not inconsistent with the Constitution and Laws of this Associate license, the applicant must submit: State, which are reasonably necessary for the proper perfor- (1) the Council's application form; mance of its duties and regulations of proceedings before it. (2) all applicable fees; Additionally, the Executive Council proposes this rule pursuant to the authority found in §507.152 of the Tex. Occ. Code, which (3) completion certificate for the jurisprudence exam dated vests the Executive Council with the authority to adopt rules nec- no more than six months before the date the application for LPC was essary to perform its duties and implement Chapter 507 of the received; Tex. Occ. Code. (4) the Council's supervised experience documentation form; and

PROPOSED RULES June 18, 2021 46 TexReg 3685 (5) other information or forms as requested by the Council. formation that the American Art Therapy Association is being re- placed as an accrediting body. This amendment will allow the (c) To apply for LPC as the holder of a current license equiv- agency to rely upon accreditation by its successor. alent to a Texas LPC license issued by another jurisdiction, the appli- cant's license must be in good standing and must submit: If a rule will pertain to the qualifications necessary to obtain a license; the scope of practice, standards of care, or ethical prac- (1) all of the items listed in subsection (a)(1)- (5) of this tice for a profession; continuing education requirements; or a section; schedule of sanctions then the rule must first be proposed to the (2) official verification of the license, including official ver- Executive Council by the applicable board for the profession be- ification of any supervised experience recognized by the issuing juris- fore the Executive Council may propose or adopt such a rule, see diction; and §507.153 of the Tex. Occ. Code. The proposed rule pertains to the qualifications necessary to obtain a license. Therefore, this (3) other information or forms as requested by the Council. rule is covered by §507.153 of the Tex. Occ. Code. (4) The five-year expiration of the NCE or NCMHCE score The Texas State Board of Examiners of Professional Coun- does not apply to an applicant who has held a license issued by a United selors, in accordance with § 503.2015 of the Tex. Occ. Code, States jurisdiction in good standing for at least two (2) years before the previously voted and, by a majority, approved to propose this date the application for LPC was received. rule to the Executive Council. Therefore, the Executive Council (d) To apply for supervisor status, an LPC must: has complied with Chapters 503 and 507 of the Tex. Occ. Code and may propose this rule. (1) have held the LPC license in good standing for at least 60 months; Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- tive Council, has determined that for the first five-year period the (2) submit an application and all applicable fees; and proposed rule is in effect, there will be no additional estimated (3) submit a completion certificate for an acceptable super- cost, reduction in costs, or loss or increase in revenue to the state visor training. An acceptable supervisor training is: or local governments as a result of enforcing or administering the rule. Additionally, Mr. Spinks has determined that enforcing or (A) a doctoral level course in the supervision of profes- administering the rule does not have foreseeable implications re- sional counseling or mental health services which was taken for credit lating to the costs or revenues of state or local government. at an accredited school and documented on an official transcript; the qualifying doctoral level course may have been completed no more Public Benefit. Mr. Spinks has determined for the first five-year than five (5) years before the date the application for supervisor status period the proposed rule is in effect there will be a benefit to was received; or licensees, applicants, and the general public because the pro- posed rule will provide greater clarity and consistency in the Ex- (B) a 40-clock-hour supervision course as set forth in ecutive Council's rules. Mr. Spinks has also determined that for §681.147 of this title (relating to 40-Clock-Hour Supervisor Training each year of the first five years the rule is in effect, the public Course); the qualifying 40-clock-hour supervision course may have benefit anticipated as a result of enforcing the rule will be to help been completed no more than two (2) years before the date the appli- the Executive Council protect the public. cation for supervisor status was received. Probable Economic Costs. Mr. Spinks has determined for the (e) An applicant who holds a current LPC license in good first five-year period the proposed rule is in effect, there will be standing issued by another jurisdiction must be substantially equiva- no additional economic costs to persons required to comply with lent to Texas licensure requirements. this rule. [(f) Licensure requirements that either match or exceed Texas Small Business, Micro-Business, and Rural Community Impact requirements are considered to be substantially equivalent.] Statement. Mr. Spinks has determined for the first five-year pe- The agency certifies that legal counsel has reviewed the pro- riod the proposed rule is in effect, there will be no adverse effect posal and found it to be within the state agency's legal authority on small businesses, micro-businesses, or rural communities. to adopt. Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that the Filed with the Office of the Secretary of State on June 4, 2021. proposed rule will have no adverse economic effect on small TRD-202102183 businesses, micro-businesses, or rural communities. Thus, the Darrel D. Spinks Executive Council is not required to prepare a regulatory flexibil- Executive Director ity analysis pursuant to §2006.002 of the Tex. Gov't Code. Texas State Board of Examiners of Professional Counselors Local Employment Impact Statement. Mr. Spinks has deter- Earliest possible date of adoption: July 18, 2021 mined that the proposed rule will have no impact on local em- For further information, please call: (512) 305-7706 ployment or a local economy. Thus, the Executive Council is not required to prepare a local employment impact statement pur- ♦ ♦ ♦ suant to §2001.022 of the Tex. Gov't Code. 22 TAC §681.73 Requirement for Rules Increasing Costs to Regulated Persons. The Texas Behavioral Health Executive Council proposes The proposed rule does not impose any new or additional amendments to §681.73, relating to Application for Art Therapy costs to regulated persons, state agencies, special districts, or Specialty Designation. local governments; therefore, pursuant to §2001.0045 of the Tex. Gov't Code, no repeal or amendment of another rule is Overview and Explanation of the Proposed Rule. The proposed required to offset any increased costs. Additionally, no repeal or amendment is necessary because the agency has received in- amendment of another rule is required because the proposed

46 TexReg 3686 June 18, 2021 Texas Register rule is necessary to protect the health, safety, and welfare of the The Executive Council also proposes this rule in compliance with residents of this state and because regulatory costs imposed by §507.153 of the Tex. Occ. Code. The Executive Council may the Executive Council on licensees is not expected to increase. not propose and adopt a rule regarding the qualifications neces- sary to obtain a license; the scope of practice, standards of care, Government Growth Impact Statement. For the first five-year and ethical practice for a profession; continuing education re- period the proposed rule is in effect, the Executive Council esti- quirements; or a schedule of sanctions unless the rule has been mates that the proposed rule will have no effect on government proposed by the applicable board for the profession. In this in- growth. The proposed rule does not create or eliminate a gov- stance, the underlying board has proposed this rule to the Ex- ernment program; it does not require the creation or elimination ecutive Council. Therefore, the Executive Council has complied of employee positions; it does not require the increase or de- with Chapters 503 and 507 of the Texas Occupations Code and crease in future legislative appropriations to this agency; it does may propose this rule. not require an increase or decrease in fees paid to the agency; it does not create a new regulation; it does not expand an exist- Lastly, the Executive Council proposes this rule under the au- ing regulation; it does not increase or decrease the number of thority found in §2001.004 of the Tex. Gov't Code which requires individuals subject to the rule's applicability; and it does not pos- state agencies to adopt rules of practice stating the nature and itively or adversely affect the state's economy. requirements of all available formal and informal procedures. Takings Impact Assessment. Mr. Spinks has determined that No other code, articles or statutes are affected by this section. there are no private real property interests affected by the pro- §681.73. Application for Art Therapy Specialty Designation. posed rule. Thus, the Executive Council is not required to pre- pare a takings impact assessment pursuant to §2007.043 of the (a) A person applying for licensure with an art therapy spe- Tex. Gov't Code. cialty designation must: Request for Public Comments. Comments on the proposed (1) meet the requirements for an LPC license set out in this rule may be submitted to Brenda Skiff, Executive Assistant, chapter; Texas Behavioral Health Executive Council, 333 Guadalupe, Ste. 3-900, Austin, Texas 78701, within 30 days of publication (2) hold either: of this proposal in the Texas Register. Comments may also be (A) a master's or doctoral degree in art therapy that in- submitted via email to [email protected]. cludes 700 hours of supervised practicum from an accredited school; The Executive Council specifically invites comments from the or public on the issues of whether or not the proposed rule will (B) all of the following: have an adverse economic effect on small businesses; if the pro- posed rule is believed to have an adverse effect on small busi- (i) a master's degree in a counseling-related field; nesses, estimate the number of small businesses believed to be (ii) a minimum of 21 semester hours or the equiva- impacted by the rule, describe and estimate the economic im- lent of sequential course work in the history, theory, and practice of art pact of the rule on small businesses, offer alternative methods therapy; of achieving the purpose of the rule; then explain how the Exec- utive Council may legally and feasibly reduce that adverse effect (iii) 700 hours of supervised practicum from an ac- on small businesses considering the purpose of the statute un- credited school; der which the proposed rule is to be adopted; and finally describe (3) have the experience requirements set out in subsection how the health, safety, environmental and economic welfare of (c) of this section; and the state will be impacted by the various proposed methods. See §2006.002(c) and (c-1) of the Tex. Gov't Code. (4) submit documentation of successful completion of the Certification Examination in Art Therapy of the Art Therapy Creden- Statutory Authority. The rule is proposed under Tex. Occ. Code, tials Board. Title 3, Subtitle I, Chapter 507, which provides the Texas Be- havioral Health Executive Council with the authority to make all (b) The Council will accept an individual course from an art rules, not inconsistent with the Constitution and Laws of this therapy program accredited through the American Art Therapy Associ- State, which are reasonably necessary for the proper perfor- ation (or its successor) as satisfying the education requirements set out mance of its duties and regulations of proceedings before it. in §681.82 of this title (relating to Academic Requirements) if not less than 75% of the course content is substantially equivalent to the con- Additionally, the Executive Council proposes this rule pursuant tent of a course required in §681.83 of this title (relating to Academic to the authority found in §507.152 of the Tex. Occ. Code which Course Content). vests the Executive Council with the authority to adopt rules nec- essary to perform its duties and implement Chapter 507 of the (c) As part of the supervised experience requirements for art Tex. Occ. Code. therapy specialty designation under the Act, §503.303, an applicant must fulfill the requirements of §§681.91-681.93 of this title and must In accordance with §503.2015 of the Tex. Occ. Code the Board have the following: previously voted and, by a majority, approved to propose this rule to the Executive Council. The rule is specifically authorized (1) 1,500 client contact hours under supervision of a li- by §503.2015 of the Tex. Occ. Code which states the Board censed professional counselor with an art therapy specialty designa- shall propose to the Executive Council rules regarding the qual- tion, if the applicant holds a master's or doctoral degree in art therapy ifications necessary to obtain a license; the scope of practice, that includes 700 hours of practicum; or standards of care, and ethical practice; continuing education re- (2) 2,000 client contact hours under supervision of a li- quirements for license holders; and a schedule of sanctions for censed professional counselor with an art therapy specialty designation, violations of this chapter or rules adopted under this chapter. if the applicant holds a master's degree in counseling or a counseling related field and has a minimum of 21 semester hours or the equiva-

PROPOSED RULES June 18, 2021 46 TexReg 3687 lent of sequential course work in the history, theory, and practice of art Small Business, Micro-Business, and Rural Community Impact therapy with 700 hours practicum. Statement. Mr. Spinks has determined for the first five-year pe- riod the proposed rule is in effect, there will be no adverse effect The agency certifies that legal counsel has reviewed the pro- on small businesses, micro-businesses, or rural communities. posal and found it to be within the state agency's legal authority to adopt. Regulatory Flexibility Analysis for Small and Micro-Businesses and Rural Communities. Mr. Spinks has determined that the Filed with the Office of the Secretary of State on June 4, 2021. proposed rule will have no adverse economic effect on small TRD-202102184 businesses, micro-businesses, or rural communities. Thus, the Executive Council is not required to prepare a regulatory flexibil- Darrel D. Spinks ity analysis pursuant to §2006.002 of the Tex. Gov't Code. Executive Director Texas State Board of Examiners of Professional Counselors Local Employment Impact Statement. Mr. Spinks has deter- Earliest possible date of adoption: July 18, 2021 mined that the proposed rule will have no impact on local em- For further information, please call: (512) 305-7706 ployment or a local economy. Thus, the Executive Council is not required to prepare a local employment impact statement pur- ♦ ♦ ♦ suant to §2001.022 of the Tex. Gov't Code. 22 TAC §681.82 Requirement for Rules Increasing Costs to Regulated Persons. The proposed rule does not impose any new or additional The Texas Behavioral Health Executive Council proposes costs to regulated persons, state agencies, special districts, or amendments to §681.82, relating to Academic Requirements. local governments; therefore, pursuant to §2001.0045 of the Overview and Explanation of the Proposed Rule. The proposed Tex. Gov't Code, no repeal or amendment of another rule is amendment is necessary to ensure the minimum degree require- required to offset any increased costs. Additionally, no repeal or ment applies equally to counseling and counseling-related de- amendment of another rule is required because the proposed grees. Additionally, the proposed amendment is being made to rule is necessary to protect the health, safety, and welfare of the streamline the application process for qualified out of state ap- residents of this state and because regulatory costs imposed by plicants. the Executive Council on licensees is not expected to increase. If a rule will pertain to the qualifications necessary to obtain a Government Growth Impact Statement. For the first five-year license; the scope of practice, standards of care, or ethical prac- period the proposed rule is in effect, the Executive Council esti- tice for a profession; continuing education requirements; or a mates that the proposed rule will have no effect on government schedule of sanctions then the rule must first be proposed to the growth. The proposed rule does not create or eliminate a gov- Executive Council by the applicable board for the profession be- ernment program; it does not require the creation or elimination fore the Executive Council may propose or adopt such a rule, see of employee positions; it does not require the increase or de- §507.153 of the Tex. Occ. Code. The proposed rule pertains to crease in future legislative appropriations to this agency; it does the qualifications necessary to obtain a license. Therefore, this not require an increase or decrease in fees paid to the agency; rule is covered by §507.153 of the Tex. Occ. Code. it does not create a new regulation; it does not expand an exist- ing regulation; it does not increase or decrease the number of The Texas State Board of Examiners of Professional Coun- individuals subject to the rule's applicability; and it does not pos- selors, in accordance with § 503.2015 of the Tex. Occ. Code, itively or adversely affect the state's economy. previously voted and, by a majority, approved to propose this rule to the Executive Council. Therefore, the Executive Council Takings Impact Assessment. Mr. Spinks has determined that has complied with Chapters 503 and 507 of the Tex. Occ. Code there are no private real property interests affected by the pro- and may propose this rule. posed rule. Thus, the Executive Council is not required to pre- pare a takings impact assessment pursuant to §2007.043 of the Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- Tex. Gov't Code. tive Council, has determined that for the first five-year period the proposed rule is in effect, there will be no additional estimated Request for Public Comments. Comments on the proposed cost, reduction in costs, or loss or increase in revenue to the state rule may be submitted to Brenda Skiff, Executive Assistant, or local governments as a result of enforcing or administering the Texas Behavioral Health Executive Council, 333 Guadalupe, rule. Additionally, Mr. Spinks has determined that enforcing or Ste. 3-900, Austin, Texas 78701, within 30 days of publication administering the rule does not have foreseeable implications re- of this proposal in the Texas Register. Comments may also be lating to the costs or revenues of state or local government. submitted via email to [email protected]. Public Benefit. Mr. Spinks has determined for the first five-year The Executive Council specifically invites comments from the period the proposed rule is in effect there will be a benefit to public on the issues of whether or not the proposed rule will licensees, applicants, and the general public because the pro- have an adverse economic effect on small businesses; if the pro- posed rule will provide greater clarity and consistency in the Ex- posed rule is believed to have an adverse effect on small busi- ecutive Council's rules. Mr. Spinks has also determined that for nesses, estimate the number of small businesses believed to be each year of the first five years the rule is in effect, the public impacted by the rule, describe and estimate the economic im- benefit anticipated as a result of enforcing the rule will be to help pact of the rule on small businesses, offer alternative methods the Executive Council protect the public. of achieving the purpose of the rule; then explain how the Exec- utive Council may legally and feasibly reduce that adverse effect Probable Economic Costs. Mr. Spinks has determined for the on small businesses considering the purpose of the statute un- first five-year period the proposed rule is in effect, there will be der which the proposed rule is to be adopted; and finally describe no additional economic costs to persons required to comply with how the health, safety, environmental and economic welfare of this rule.

46 TexReg 3688 June 18, 2021 Texas Register the state will be impacted by the various proposed methods. See (d) The 48/60 semester hours must be designed to train a per- §2006.002(c) and (c-1) of the Tex. Gov't Code. son to provide direct services to assist clients in a professional coun- seling relationship using a combination of mental health and human Statutory Authority. The rule is proposed under Tex. Occ. Code, development principles, methods, and techniques to achieve the men- Title 3, Subtitle I, Chapter 507, which provides the Texas Be- tal, emotional, social, moral, educational, spiritual, or career-related havioral Health Executive Council with the authority to make all development and adjustment of the client throughout the client's life. rules, not inconsistent with the Constitution and Laws of this The 48/60 semester hours may be course work that was part of the grad- State, which are reasonably necessary for the proper perfor- uate degree in a counseling-related field, may be in addition to course mance of its duties and regulations of proceedings before it. work taken for the qualifying program, or a combination of both. Additionally, the Executive Council proposes this rule pursuant The agency certifies that legal counsel has reviewed the pro- to the authority found in §507.152 of the Tex. Occ. Code which posal and found it to be within the state agency's legal authority vests the Executive Council with the authority to adopt rules nec- to adopt. essary to perform its duties and implement Chapter 507 of the Tex. Occ. Code. Filed with the Office of the Secretary of State on June 4, 2021. In accordance with §503.2015 of the Tex. Occ. Code the Board TRD-202102185 previously voted and, by a majority, approved to propose this Darrel D. Spinks rule to the Executive Council. The rule is specifically authorized by §503.2015 of the Tex. Occ. Code which states the Board Executive Director shall propose to the Executive Council rules regarding the qual- Texas State Board of Examiners of Professional Counselors ifications necessary to obtain a license; the scope of practice, Earliest possible date of adoption: July 18, 2021 standards of care, and ethical practice; continuing education re- For further information, please call: (512) 305-7706 quirements for license holders; and a schedule of sanctions for violations of this chapter or rules adopted under this chapter. ♦ ♦ ♦ The Executive Council also proposes this rule in compliance with 22 TAC §681.93 §507.153 of the Tex. Occ. Code. The Executive Council may The Texas Behavioral Health Executive Council proposes not propose and adopt a rule regarding the qualifications neces- amendments to §681.93, relating to Supervisor Requirements. sary to obtain a license; the scope of practice, standards of care, and ethical practice for a profession; continuing education re- Overview and Explanation of the Proposed Rule. The Council is quirements; or a schedule of sanctions unless the rule has been no longer mailing renewal permits; verification of licensure status proposed by the applicable board for the profession. In this in- is done online. The proposed amendment will reduce regulatory stance, the underlying board has proposed this rule to the Ex- burden by allowing the supervisor to print and keep a copy of the ecutive Council. Therefore, the Executive Council has complied online license verification in lieu of a wall certificate. with Chapters 503 and 507 of the Texas Occupations Code and If a rule will pertain to the qualifications necessary to obtain a may propose this rule. license; the scope of practice, standards of care, or ethical prac- Lastly, the Executive Council proposes this rule under the au- tice for a profession; continuing education requirements; or a thority found in §2001.004 of the Tex. Gov't Code which requires schedule of sanctions then the rule must first be proposed to the state agencies to adopt rules of practice stating the nature and Executive Council by the applicable board for the profession be- requirements of all available formal and informal procedures. fore the Executive Council may propose or adopt such a rule, see §507.153 of the Tex. Occ. Code. The proposed rule per- No other code, articles or statutes are affected by this section. tains to the qualifications necessary to obtain a license, as well §681.82. Academic Requirements. as the scope of practice, standards of care, or ethical practice for a profession. Therefore, this rule is covered by §507.153 of (a) Persons applying for licensure must have a graduate degree the Tex. Occ. Code. in counseling or a counseling-related field of: The Texas State Board of Examiners of Professional Coun- (1) at least 48 semester hours of coursework in a counseling selors, in accordance with §503.2015 of the Tex. Occ. Code, or counseling-related field for applicants who began the qualifying pro- previously voted and, by a majority, approved to propose this gram before August 1, 2017; and rule to the Executive Council. Therefore, the Executive Council (2) at least 60 semester hours of coursework in a counseling has complied with Chapters 503 and 507 of the Tex. Occ. Code or counseling-related field for applicants who began the qualifying pro- and may propose this rule. gram on or after August 1, 2017. Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- (b) An applicant who holds a graduate degree in a counseling tive Council, has determined that for the first five-year period the related field must have an official transcript documenting satisfaction of proposed rule is in effect, there will be no additional estimated the requirements described in §681.83 of this title (relating to Academic cost, reduction in costs, or loss or increase in revenue to the state Course Content). or local governments as a result of enforcing or administering the rule. Additionally, Mr. Spinks has determined that enforcing or (c) An applicant who has held a full active LPC in good stand- administering the rule does not have foreseeable implications re- ing issued by a United States jurisdiction for at least two (2) years im- lating to the costs or revenues of state or local government. mediately preceding the date the application was received will be[is] deemed to have met all academic and experience requirements, includ- Public Benefit. Mr. Spinks has determined for the first five-year ing the practicum, if the applicant can demonstrate 3,000 hours of su- period the proposed rule is in effect there will be a benefit to pervised experience and has completed at least 48 semester hours of licensees, applicants, and the general public because the pro- coursework in a graduate degree program in a counseling or a counsel- posed rule will provide greater clarity and consistency in the Ex- ing-related field, with 300 clock hours of supervised practicum. ecutive Council's rules. Mr. Spinks has also determined that for

PROPOSED RULES June 18, 2021 46 TexReg 3689 each year of the first five years the rule is in effect, the public impacted by the rule, describe and estimate the economic im- benefit anticipated as a result of enforcing the rule will be to help pact of the rule on small businesses, offer alternative methods the Executive Council protect the public. of achieving the purpose of the rule; then explain how the Exec- utive Council may legally and feasibly reduce that adverse effect Probable Economic Costs. Mr. Spinks has determined for the on small businesses considering the purpose of the statute un- first five-year period the proposed rule is in effect, there will be der which the proposed rule is to be adopted; and finally describe no additional economic costs to persons required to comply with how the health, safety, environmental and economic welfare of this rule. the state will be impacted by the various proposed methods. See Small Business, Micro-Business, and Rural Community Impact §2006.002(c) and (c-1) of the Tex. Gov't Code. Statement. Mr. Spinks has determined for the first five-year pe- Statutory Authority. The rule is proposed under Tex. Occ. Code, riod the proposed rule is in effect, there will be no adverse effect Title 3, Subtitle I, Chapter 507, which provides the Texas Be- on small businesses, micro-businesses, or rural communities. havioral Health Executive Council with the authority to make all Regulatory Flexibility Analysis for Small and Micro-Businesses rules, not inconsistent with the Constitution and Laws of this and Rural Communities. Mr. Spinks has determined that the State, which are reasonably necessary for the proper perfor- proposed rule will have no adverse economic effect on small mance of its duties and regulations of proceedings before it. businesses, micro-businesses, or rural communities. Thus, the Additionally, the Executive Council proposes this rule pursuant Executive Council is not required to prepare a regulatory flexibil- to the authority found in §507.152 of the Tex. Occ. Code which ity analysis pursuant to §2006.002 of the Tex. Gov't Code. vests the Executive Council with the authority to adopt rules nec- Local Employment Impact Statement. Mr. Spinks has deter- essary to perform its duties and implement Chapter 507 of the mined that the proposed rule will have no impact on local em- Tex. Occ. Code. ployment or a local economy. Thus, the Executive Council is not In accordance with §503.2015 of the Tex. Occ. Code the Board required to prepare a local employment impact statement pur- previously voted and, by a majority, approved to propose this suant to §2001.022 of the Tex. Gov't Code. rule to the Executive Council. The rule is specifically authorized Requirement for Rules Increasing Costs to Regulated Persons. by §503.2015 of the Tex. Occ. Code which states the Board The proposed rule does not impose any new or additional shall propose to the Executive Council rules regarding the qual- costs to regulated persons, state agencies, special districts, or ifications necessary to obtain a license; the scope of practice, local governments; therefore, pursuant to §2001.0045 of the standards of care, and ethical practice; continuing education re- Tex. Gov't Code, no repeal or amendment of another rule is quirements for license holders; and a schedule of sanctions for required to offset any increased costs. Additionally, no repeal or violations of this chapter or rules adopted under this chapter. amendment of another rule is required because the proposed The Executive Council also proposes this rule in compliance with rule is necessary to protect the health, safety, and welfare of the §507.153 of the Tex. Occ. Code. The Executive Council may residents of this state and because regulatory costs imposed by not propose and adopt a rule regarding the qualifications neces- the Executive Council on licensees is not expected to increase. sary to obtain a license; the scope of practice, standards of care, Government Growth Impact Statement. For the first five-year and ethical practice for a profession; continuing education re- period the proposed rule is in effect, the Executive Council esti- quirements; or a schedule of sanctions unless the rule has been mates that the proposed rule will have no effect on government proposed by the applicable board for the profession. In this in- growth. The proposed rule does not create or eliminate a gov- stance, the underlying board has proposed this rule to the Ex- ernment program; it does not require the creation or elimination ecutive Council. Therefore, the Executive Council has complied of employee positions; it does not require the increase or de- with Chapters 503 and 507 of the Texas Occupations Code and crease in future legislative appropriations to this agency; it does may propose this rule. not require an increase or decrease in fees paid to the agency; Lastly, the Executive Council proposes this rule under the au- it does not create a new regulation; it does not expand an exist- thority found in §2001.004 of the Tex. Gov't Code which requires ing regulation; it does not increase or decrease the number of state agencies to adopt rules of practice stating the nature and individuals subject to the rule's applicability; and it does not pos- requirements of all available formal and informal procedures. itively or adversely affect the state's economy. No other code, articles or statutes are affected by this section. Takings Impact Assessment. Mr. Spinks has determined that there are no private real property interests affected by the pro- §681.93. Supervisor Requirements. posed rule. Thus, the Executive Council is not required to pre- (a) A supervisor must keep a written record of each supervi- pare a takings impact assessment pursuant to §2007.043 of the sory session in the file for the LPC Associate. Tex. Gov't Code. (1) The supervisory written record must contain: Request for Public Comments. Comments on the proposed (A) a signed and dated copy of the Council's supervi- rule may be submitted to Brenda Skiff, Executive Assistant, sory agreement form for each of the LPC Associate's supervisors; Texas Behavioral Health Executive Council, 333 Guadalupe, Ste. 3-900, Austin, Texas 78701, within 30 days of publication (B) a copy of the LPC Associate's online license verifi- of this proposal in the Texas Register. Comments may also be cation [wall certificate] noting the dates of issuance and expiration; submitted via email to [email protected]. (C) fees and record of payment; The Executive Council specifically invites comments from the (D) the date of each supervisory session; public on the issues of whether or not the proposed rule will have an adverse economic effect on small businesses; if the pro- (E) a record of an LPC Associate's leave of one month posed rule is believed to have an adverse effect on small busi- or more, documenting the supervisor's approval and signed by both the nesses, estimate the number of small businesses believed to be LPC Associate and the supervisor; and

46 TexReg 3690 June 18, 2021 Texas Register (F) a record of any concerns the supervisor discussed (3) hours accumulated under the person's supervision after with the LPC Associate, including a written remediation plan as pre- the date of license expiration may not count as acceptable hours. scribed in subsection (e) of this section. (i) Supervision of an LPC Associate without having Council (2) The supervisor must provide a copy of all records to the approved supervisor status is grounds for disciplinary action. LPC Associate upon request. The agency certifies that legal counsel has reviewed the pro- (b) The full professional responsibility for the counseling ac- posal and found it to be within the state agency's legal authority tivities of the LPC Associate rests with the LPC Associate's approved to adopt. supervisor(s). If the LPC Associate receives disciplinary action by the Council, the supervisor may also be subject to disciplinary action. Filed with the Office of the Secretary of State on June 4, 2021. (1) Supervisors must review all provisions of the Act and TRD-202102186 Council rules in this chapter during supervision. Darrel D. Spinks (2) The supervisor must ensure the LPC Associate is aware Executive Director of and adheres to all provisions of the Act and Council rules. Texas State Board of Examiners of Professional Counselors Earliest possible date of adoption: July 18, 2021 (c) The supervisor must avoid any relationship that impairs the For further information, please call: (512) 305-7706 supervisor's objective, professional judgment. (1) The supervisor may not be related to the LPC Associate ♦ ♦ ♦ within the second degree of affinity or within the third degree of con- 22 TAC §681.114 sanguinity. The Texas Behavioral Health Executive Council proposes (2) The supervisor may not be an employee of his or her amendments to §681.114, relating to Licensing of Military LPC Associate. Service Members, Military Veterans, and Military Spouses. (d) The supervisor must submit to the Council accurate docu- Overview and Explanation of the Proposed Rule. The proposed mentation of the LPC Associate's supervised experience within 30 days amendment is necessary to determine substantial equivalency of the end of supervision or the completion of the LPC Associate's re- for out of state licensees that are military service members, mil- quired hours, whichever comes first. itary veterans, and military spouses. (e) If a supervisor determines the LPC Associate may not have If a rule will pertain to the qualifications necessary to obtain a the counseling skills or competence to practice professional counsel- license; the scope of practice, standards of care, or ethical prac- ing under an LPC license, the supervisor will develop and implement tice for a profession; continuing education requirements; or a a written plan for remediation of the LPC Associate, which must be schedule of sanctions then the rule must first be proposed to the reviewed and signed by the LPC Associate and maintained as part of Executive Council by the applicable board for the profession be- the LPC Associate's file. fore the Executive Council may propose or adopt such a rule, see (f) The supervisor must ensure the supervised counseling ex- §507.153 of the Tex. Occ. Code. The proposed rule pertains to perience of the LPC Associate were earned: the qualifications necessary to obtain a license. Therefore, this rule is covered by §507.153 of the Tex. Occ. Code. (1) after the LPC Associate license was issued; and The Texas State Board of Examiners of Professional Coun- (2) in not less than 18 months of supervised counseling ex- selors, in accordance with § 503.2015 of the Tex. Occ. Code, perience. previously voted and, by a majority, approved to propose this (g) A supervisor whose license has expired is no longer an ap- rule to the Executive Council. Therefore, the Executive Council proved supervisor and: has complied with Chapters 503 and 507 of the Tex. Occ. Code and may propose this rule. (1) must immediately inform all LPC Associates under his or her supervision and assist the LPC Associates in finding alternate Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- supervisors; and tive Council, has determined that for the first five-year period the proposed rule is in effect, there will be no additional estimated (2) must refund all supervisory fees for supervision after cost, reduction in costs, or loss or increase in revenue to the state the expiration of the supervisor status. or local governments as a result of enforcing or administering the (3) Hours accumulated under the person's supervision after rule. Additionally, Mr. Spinks has determined that enforcing or the date of license expiration may not count as acceptable hours. administering the rule does not have foreseeable implications re- lating to the costs or revenues of state or local government. (h) Upon execution of a Council order for probated suspen- sion, suspension, or revocation of the LPC license with supervisor sta- Public Benefit. Mr. Spinks has determined for the first five-year tus, the supervisor status is revoked. A licensee whose supervisor status period the proposed rule is in effect there will be a benefit to is revoked: licensees, applicants, and the general public because the pro- posed rule will provide greater clarity and consistency in the Ex- (1) must immediately inform all LPC Associates under his ecutive Council's rules. Mr. Spinks has also determined that for or her supervision and assist the LPC Associates in finding alternate each year of the first five years the rule is in effect, the public supervisors; and benefit anticipated as a result of enforcing the rule will be to help (2) must refund all supervisory fees for supervision after the Executive Council protect the public. the date the supervisor status is revoked; and Probable Economic Costs. Mr. Spinks has determined for the first five-year period the proposed rule is in effect, there will be

PROPOSED RULES June 18, 2021 46 TexReg 3691 no additional economic costs to persons required to comply with on small businesses considering the purpose of the statute un- this rule. der which the proposed rule is to be adopted; and finally describe how the health, safety, environmental and economic welfare of Small Business, Micro-Business, and Rural Community Impact the state will be impacted by the various proposed methods. See Statement. Mr. Spinks has determined for the first five-year pe- §2006.002(c) and (c-1) of the Tex. Gov't Code. riod the proposed rule is in effect, there will be no adverse effect on small businesses, micro-businesses, or rural communities. Statutory Authority. The rule is proposed under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Be- Regulatory Flexibility Analysis for Small and Micro-Businesses havioral Health Executive Council with the authority to make all and Rural Communities. Mr. Spinks has determined that the rules, not inconsistent with the Constitution and Laws of this proposed rule will have no adverse economic effect on small State, which are reasonably necessary for the proper perfor- businesses, micro-businesses, or rural communities. Thus, the mance of its duties and regulations of proceedings before it. Executive Council is not required to prepare a regulatory flexibil- ity analysis pursuant to §2006.002 of the Tex. Gov't Code. Additionally, the Executive Council proposes this rule pursuant to the authority found in §507.152 of the Tex. Occ. Code which Local Employment Impact Statement. Mr. Spinks has deter- vests the Executive Council with the authority to adopt rules nec- mined that the proposed rule will have no impact on local em- essary to perform its duties and implement Chapter 507 of the ployment or a local economy. Thus, the Executive Council is not Tex. Occ. Code. required to prepare a local employment impact statement pur- suant to §2001.022 of the Tex. Gov't Code. In accordance with §503.2015 of the Tex. Occ. Code the Board previously voted and, by a majority, approved to propose this Requirement for Rules Increasing Costs to Regulated Persons. rule to the Executive Council. The rule is specifically authorized The proposed rule does not impose any new or additional by §503.2015 of the Tex. Occ. Code which states the Board costs to regulated persons, state agencies, special districts, or shall propose to the Executive Council rules regarding the qual- local governments; therefore, pursuant to §2001.0045 of the ifications necessary to obtain a license; the scope of practice, Tex. Gov't Code, no repeal or amendment of another rule is standards of care, and ethical practice; continuing education re- required to offset any increased costs. Additionally, no repeal or quirements for license holders; and a schedule of sanctions for amendment of another rule is required because the proposed violations of this chapter or rules adopted under this chapter. rule is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by The Executive Council also proposes this rule in compliance with the Executive Council on licensees is not expected to increase. §507.153 of the Tex. Occ. Code. The Executive Council may not propose and adopt a rule regarding the qualifications neces- Government Growth Impact Statement. For the first five-year sary to obtain a license; the scope of practice, standards of care, period the proposed rule is in effect, the Executive Council esti- and ethical practice for a profession; continuing education re- mates that the proposed rule will have no effect on government quirements; or a schedule of sanctions unless the rule has been growth. The proposed rule does not create or eliminate a gov- proposed by the applicable board for the profession. In this in- ernment program; it does not require the creation or elimination stance, the underlying board has proposed this rule to the Ex- of employee positions; it does not require the increase or de- ecutive Council. Therefore, the Executive Council has complied crease in future legislative appropriations to this agency; it does with Chapters 503 and 507 of the Texas Occupations Code and not require an increase or decrease in fees paid to the agency; may propose this rule. it does not create a new regulation; it does not expand an exist- ing regulation; it does not increase or decrease the number of Lastly, the Executive Council proposes this rule under the au- individuals subject to the rule's applicability; and it does not pos- thority found in §2001.004 of the Tex. Gov't Code which requires itively or adversely affect the state's economy. state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. Takings Impact Assessment. Mr. Spinks has determined that there are no private real property interests affected by the pro- No other code, articles or statutes are affected by this section. posed rule. Thus, the Executive Council is not required to pre- §681.114. Licensing of Military Service Members, Military Veterans, pare a takings impact assessment pursuant to §2007.043 of the and Military Spouses. Tex. Gov't Code. Request for Public Comments. Comments on the proposed (a) An applicant applying for licensure under this section rule may be submitted to Brenda Skiff, Executive Assistant, must comply with Council rule, §882.60 of this title (relating to Texas Behavioral Health Executive Council, 333 Guadalupe, Special Provisions Applying to Military Service Members, Veterans, Ste. 3-900, Austin, Texas 78701, within 30 days of publication and Spouses). of this proposal in the Texas Register. Comments may also be (b) Substantial Equivalency Determination. In accordance submitted via email to [email protected]. with §55.004 of the Occupations Code, the licensing requirements for The Executive Council specifically invites comments from the a license to practice professional counseling in another jurisdiction public on the issues of whether or not the proposed rule will will be considered substantially equivalent to Texas' requirements if have an adverse economic effect on small businesses; if the pro- the following criteria are met: posed rule is believed to have an adverse effect on small busi- (1) the applicant has been fully licensed to practice profes- nesses, estimate the number of small businesses believed to be sional counseling for the two years immediately preceding the date the impacted by the rule, describe and estimate the economic im- application is received; and pact of the rule on small businesses, offer alternative methods of achieving the purpose of the rule; then explain how the Exec- (2) has no disciplinary history. utive Council may legally and feasibly reduce that adverse effect [(b) Licensing requirements that either match or exceed Texas requirements are considered substantially equivalent.]

46 TexReg 3692 June 18, 2021 Texas Register (c) If an applicant has been fully licensed to practice profes- Public Benefit. Mr. Spinks has determined for the first five-year sional counseling in another United States jurisdiction for less than two period the proposed rule is in effect there will be a benefit to years immediately preceding the date the application is received, and licensees, applicants, and the general public because the pro- has no disciplinary history, staff may grant 125 hours of credit for ev- posed rule will provide greater clarity and consistency in the Ex- ery month of independent professional counseling practice toward any ecutive Council's rules. Mr. Spinks has also determined that for deficit in experience requirements. 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 to help (d) [(c)] For an application submitted by a verified military ser- the Executive Council protect the public. vice member or military veteran, the applicant must receive credit to- wards any licensing requirements, except an examination requirement, Probable Economic Costs. Mr. Spinks has determined for the for verified military service, training, or education that the Council de- first five-year period the proposed rule is in effect, there will be termines is relevant to the licensing requirements.[, unless he or she no additional economic costs to persons required to comply with holds a restricted license issued by another jurisdiction or has a crimi- this rule. nal history for which adverse licensure action is authorized by law.] Small Business, Micro-Business, and Rural Community Impact The agency certifies that legal counsel has reviewed the pro- Statement. Mr. Spinks has determined for the first five-year pe- posal and found it to be within the state agency's legal authority riod the proposed rule is in effect, there will be no adverse effect to adopt. on small businesses, micro-businesses, or rural communities. Regulatory Flexibility Analysis for Small and Micro-Businesses Filed with the Office of the Secretary of State on June 4, 2021. and Rural Communities. Mr. Spinks has determined that the TRD-202102187 proposed rule will have no adverse economic effect on small Darrel D. Spinks businesses, micro-businesses, or rural communities. Thus, the Executive Director Executive Council is not required to prepare a regulatory flexibil- Texas State Board of Examiners of Professional Counselors ity analysis pursuant to §2006.002 of the Tex. Gov't Code. Earliest possible date of adoption: July 18, 2021 Local Employment Impact Statement. Mr. Spinks has deter- For further information, please call: (512) 305-7706 mined that the proposed rule will have no impact on local em- ployment or a local economy. Thus, the Executive Council is not ♦ ♦ ♦ required to prepare a local employment impact statement pur- SUBCHAPTER D. SCHEDULE OF suant to §2001.022 of the Tex. Gov't Code. SANCTIONS Requirement for Rules Increasing Costs to Regulated Persons. The proposed rule does not impose any new or additional 22 TAC §681.205 costs to regulated persons, state agencies, special districts, or local governments; therefore, pursuant to §2001.0045 of the The Texas Behavioral Health Executive Council proposes Tex. Gov't Code, no repeal or amendment of another rule is amendments to §681.205, relating to Schedule of Sanctions. required to offset any increased costs. Additionally, no repeal or Overview and Explanation of the Proposed Rule. The proposed amendment of another rule is required because the proposed amendments to §681.41(d) and §681.93(a)(1)(B), found else- rule is necessary to protect the health, safety, and welfare of the where in this edition of the Texas Register, requires correspond- residents of this state and because regulatory costs imposed by ing amendments to this rule, the Schedule of Sanctions. the Executive Council on licensees is not expected to increase. If a rule will pertain to the qualifications necessary to obtain a Government Growth Impact Statement. For the first five-year license; the scope of practice, standards of care, or ethical prac- period the proposed rule is in effect, the Executive Council esti- tice for a profession; continuing education requirements; or a mates that the proposed rule will have no effect on government schedule of sanctions then the rule must first be proposed to the growth. The proposed rule does not create or eliminate a gov- Executive Council by the applicable board for the profession be- ernment program; it does not require the creation or elimination fore the Executive Council may propose or adopt such a rule, of employee positions; it does not require the increase or de- see §507.153 of the Tex. Occ. Code. The proposed rule per- crease in future legislative appropriations to this agency; it does tains to a schedule of sanctions. Therefore, this rule is covered not require an increase or decrease in fees paid to the agency; by §507.153 of the Tex. Occ. Code. it does not create a new regulation; it does not expand an exist- ing regulation; it does not increase or decrease the number of The Texas State Board of Examiners of Professional Coun- individuals subject to the rule's applicability; and it does not pos- selors, in accordance with § 503.2015 of the Tex. Occ. Code, itively or adversely affect the state's economy. previously voted and, by a majority, approved to propose this rule to the Executive Council. Therefore, the Executive Council Takings Impact Assessment. Mr. Spinks has determined that has complied with Chapters 503 and 507 of the Tex. Occ. Code there are no private real property interests affected by the pro- and may propose this rule. posed rule. Thus, the Executive Council is not required to pre- pare a takings impact assessment pursuant to §2007.043 of the Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- Tex. Gov't Code. tive Council, has determined that for the first five-year period the proposed rule is in effect, there will be no additional estimated Request for Public Comments. Comments on the proposed cost, reduction in costs, or loss or increase in revenue to the state rule may be submitted to Brenda Skiff, Executive Assistant, or local governments as a result of enforcing or administering the Texas Behavioral Health Executive Council, 333 Guadalupe, rule. Additionally, Mr. Spinks has determined that enforcing or Ste. 3-900, Austin, Texas 78701, within 30 days of publication administering the rule does not have foreseeable implications re- of this proposal in the Texas Register. Comments may also be lating to the costs or revenues of state or local government. submitted via email to [email protected].

PROPOSED RULES June 18, 2021 46 TexReg 3693 The Executive Council specifically invites comments from the TRD-202102189 public on the issues of whether or not the proposed rule will Darrel D. Spinks have an adverse economic effect on small businesses; if the pro- Executive Director posed rule is believed to have an adverse effect on small busi- Texas State Board of Examiners of Professional Counselors nesses, estimate the number of small businesses believed to be Earliest possible date of adoption: July 18, 2021 impacted by the rule, describe and estimate the economic im- For further information, please call: (512) 305-7706 pact of the rule on small businesses, offer alternative methods of achieving the purpose of the rule; then explain how the Exec- ♦ ♦ ♦ utive Council may legally and feasibly reduce that adverse effect on small businesses considering the purpose of the statute un- PART 35. TEXAS STATE BOARD OF der which the proposed rule is to be adopted; and finally describe how the health, safety, environmental and economic welfare of EXAMINERS OF MARRIAGE AND the state will be impacted by the various proposed methods. See FAMILY THERAPISTS §2006.002(c) and (c-1) of the Tex. Gov't Code. Statutory Authority. The rule is proposed under Tex. Occ. Code, CHAPTER 801. LICENSURE AND Title 3, Subtitle I, Chapter 507, which provides the Texas Be- REGULATION OF MARRIAGE AND havioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this FAMILY THERAPISTS State, which are reasonably necessary for the proper perfor- SUBCHAPTER C. APPLICATIONS AND mance of its duties and regulations of proceedings before it. LICENSING Additionally, the Executive Council proposes this rule pursuant to the authority found in §507.152 of the Tex. Occ. Code which 22 TAC §801.205 vests the Executive Council with the authority to adopt rules nec- The Texas Behavioral Health Executive Council proposes new essary to perform its duties and implement Chapter 507 of the §801.205, relating to Remedy for Incomplete License Require- Tex. Occ. Code. ments. In accordance with §503.2015 of the Tex. Occ. Code the Board Overview and Explanation of the Proposed Rule. The new rule is previously voted and, by a majority, approved to propose this necessary to allow the Texas State Board of Examiners of Mar- rule to the Executive Council. The rule is specifically authorized riage and Family Therapists to make exceptions for applicants by §503.2015 of the Tex. Occ. Code which states the Board that have difficulty fulfilling certain licensing requirements due shall propose to the Executive Council rules regarding the qual- to a declared disaster. For example, some LMFT Associates ifications necessary to obtain a license; the scope of practice, have expressed difficulty in meeting the required in-person su- standards of care, and ethical practice; continuing education re- pervised experience hours because, due to the COVID-19 pan- quirements for license holders; and a schedule of sanctions for demic, some supervisors or employers are only allowing tele- violations of this chapter or rules adopted under this chapter. health services. The new rule will grant the Board flexibility in The Executive Council also proposes this rule in compliance with approving these future applications for the full LMFT license. §507.153 of the Tex. Occ. Code. The Executive Council may If a rule will pertain to the qualifications necessary to obtain a not propose and adopt a rule regarding the qualifications neces- license; the scope of practice, standards of care, or ethical prac- sary to obtain a license; the scope of practice, standards of care, tice for a profession; continuing education requirements; or a and ethical practice for a profession; continuing education re- schedule of sanctions then the rule must first be proposed to the quirements; or a schedule of sanctions unless the rule has been Executive Council by the applicable board for the profession be- proposed by the applicable board for the profession. In this in- fore the Executive Council may propose or adopt such a rule, stance, the underlying board has proposed this rule to the Ex- see §507.153 of the Tex. Occ. Code. The proposed new rule ecutive Council. Therefore, the Executive Council has complied pertains to qualifications necessary to obtain a license to prac- with Chapters 503 and 507 of the Texas Occupations Code and tice marriage and family therapy; therefore, this rule is covered may propose this rule. by §507.153 of the Tex. Occ. Code. Lastly, the Executive Council proposes this rule under the au- The Texas State Board of Examiners of Marriage and Family thority found in §2001.004 of the Tex. Gov't Code which requires Therapists, in accordance with §502.1515 of the Tex. Occ. state agencies to adopt rules of practice stating the nature and Code, previously voted and, by a majority, approved to propose requirements of all available formal and informal procedures. this new rule to the Executive Council. Therefore, the Executive No other code, articles or statutes are affected by this section. Council has complied with Chapters 502 and 507 of the Tex. Occ. Code and may propose this new rule. §681.205. Schedule of Sanctions. Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- The following standard sanctions shall apply to violations of the Act tive Council, has determined that for the first five-year period the and these rules. proposed rule is in effect, there will be no additional estimated Figure: 22 TAC §681.205 cost, reduction in costs, or loss or increase in revenue to the state [Figure: 22 TAC §681.205] or local governments as a result of enforcing or administering the The agency certifies that legal counsel has reviewed the pro- rule. Additionally, Mr. Spinks has determined that enforcing or posal and found it to be within the state agency's legal authority administering the rule does not have foreseeable implications re- to adopt. lating to the costs or revenues of state or local government.

Filed with the Office of the Secretary of State on June 4, 2021.

46 TexReg 3694 June 18, 2021 Texas Register Public Benefit. Mr. Spinks has determined for the first five-year The Executive Council specifically invites comments from the period the proposed rule is in effect there will be a benefit to public on the issues of whether or not the proposed rule will licensees, applicants, and the general public because the pro- have an adverse economic effect on small businesses; if the pro- posed rule will provide greater equity in the Executive Council's posed rule is believed to have an adverse effect on small busi- rules. Mr. Spinks has also determined that for each year of the nesses, estimate the number of small businesses believed to be first five years the rule is in effect, the public benefit anticipated as impacted by the rule, describe and estimate the economic im- a result of enforcing the rule will be to help the Executive Council pact of the rule on small businesses, offer alternative methods protect the public. of achieving the purpose of the rule; then explain how the Exec- utive Council may legally and feasibly reduce that adverse effect Probable Economic Costs. Mr. Spinks has determined for the on small businesses considering the purpose of the statute un- first five-year period the proposed rule is in effect, there will be der which the proposed rule is to be adopted; and finally describe no additional economic costs to persons required to comply with how the health, safety, environmental and economic welfare of this rule. the state will be impacted by the various proposed methods. See Small Business, Micro-Business, and Rural Community Impact §2006.002(c) and (c-1) of the Tex. Gov't Code. Statement. Mr. Spinks has determined for the first five-year pe- Statutory Authority. The rule is proposed under Tex. Occ. Code, riod the proposed rule is in effect, there will be no adverse effect Title 3, Subtitle I, Chapter 507, which provides the Texas Be- on small businesses, micro-businesses, or rural communities. havioral Health Executive Council with the authority to make all Regulatory Flexibility Analysis for Small and Micro-Businesses rules, not inconsistent with the Constitution and Laws of this and Rural Communities. Mr. Spinks has determined that the State, which are reasonably necessary for the proper perfor- proposed rule will have no adverse economic effect on small mance of its duties and regulations of proceedings before it. businesses, micro-businesses, or rural communities. Thus, the Additionally, the Executive Council proposes this rule pursuant Executive Council is not required to prepare a regulatory flexibil- to the authority found in §507.152 of the Tex. Occ. Code, which ity analysis pursuant to §2006.002 of the Tex. Gov't Code. vests the Executive Council with the authority to adopt rules nec- Local Employment Impact Statement. Mr. Spinks has deter- essary to perform its duties and implement Chapter 507 of the mined that the proposed rule will have no impact on local em- Tex. Occ. Code. ployment or a local economy. Thus, the Executive Council is not In accordance with §502.1515 of the Tex. Occ. Code the Board required to prepare a local employment impact statement pur- previously voted and, by a majority, approved to propose this rule suant to §2001.022 of the Tex. Gov't Code. to the Executive Council. The rule is specifically authorized by Requirement for Rules Increasing Costs to Regulated Persons. §502.1515 of the Tex. Occ. Code, which states the Board shall The proposed rule does not impose any new or additional propose to the Executive Council rules regarding qualifications costs to regulated persons, state agencies, special districts, or necessary to obtain a license; the scope of practice, standards of local governments; therefore, pursuant to §2001.0045 of the care, or ethical practice for the profession; continuing education Tex. Gov't Code, no repeal or amendment of another rule is requirements; or a schedule of sanctions for violations of this required to offset any increased costs. Additionally, no repeal or chapter or rules adopted under this chapter. amendment of another rule is required because the proposed The Executive Council also proposes this rule in compliance with rule is necessary to protect the health, safety, and welfare of the §507.153 of the Tex. Occ. Code. The Executive Council may residents of this state and because regulatory costs imposed by not propose and adopt a rule regarding qualifications necessary the Executive Council on licensees is not expected to increase. to obtain a license; the scope of practice, standards of care, Government Growth Impact Statement. For the first five-year or ethical practice for the profession; continuing education re- period the proposed rule is in effect, the Executive Council esti- quirements; or a schedule of sanctions unless the rule has been mates that the proposed rule will have no effect on government proposed by the applicable board for the profession. In this in- growth. The proposed rule does not create or eliminate a gov- stance, the underlying board has proposed this rule to the Ex- ernment program; it does not require the creation or elimination ecutive Council. Therefore, the Executive Council has complied of employee positions; it does not require the increase or de- with Chapters 502 and 507 of the Texas Occupations Code and crease in future legislative appropriations to this agency; it does may propose this rule. not require an increase or decrease in fees paid to the agency; Lastly, the Executive Council proposes this rule under the au- it does not create a new regulation; it does not expand an exist- thority found in §2001.004 of the Tex. Gov't Code, which requires ing regulation; it does not increase or decrease the number of state agencies to adopt rules of practice stating the nature and individuals subject to the rule's applicability; and it does not pos- requirements of all available formal and informal procedures. itively or adversely affect the state's economy. No other code, articles or statutes are affected by this section. Takings Impact Assessment. Mr. Spinks has determined that there are no private real property interests affected by the pro- §801.205. Remedy for Incomplete License Requirements. posed rule. Thus, the Executive Council is not required to pre- (a) An applicant who does not meet all of the prerequisites for pare a takings impact assessment pursuant to §2007.043 of the a particular license under Chapter 502 of the Occupations Code, may Tex. Gov't Code. petition the Council for a waiver or modification of the prerequisite(s). An applicant may not petition for the waiver or modification of the Request for Public Comments. Comments on the proposed degree required for the particular license sought or passage of the req- rule may be submitted to Brenda Skiff, Executive Assistant, uisite examinations. Texas Behavioral Health Executive Council, 333 Guadalupe, Ste. 3-900, Austin, Texas 78701, within 30 days of publication (b) The Council may waive or modify a prerequisite for ob- of this proposal in the Texas Register. Comments may also be taining a license under Chapter 502 of the Occupations Code, subject submitted via email to [email protected]. to subsection (a) of this section, if:

PROPOSED RULES June 18, 2021 46 TexReg 3695 (1) the prerequisite is not mandated by federal law, the state no additional economic costs to persons required to comply with constitution or statute, or 22 TAC Part 41 (relating to Texas Behavioral this rule. Health Executive Council); and Small Business, Micro-Business, and Rural Community Impact (2) the failure or inability to meet the prerequisite was due Statement. Mr. Spinks has determined for the first five-year pe- to a disaster declared under Chapter 418 of the Government Code or riod the proposed rule is in effect, there will be no adverse effect under similar authority in another jurisdiction. on small businesses, micro-businesses, or rural communities. (c) The Council may approve or deny a petition under this rule, Regulatory Flexibility Analysis for Small and Micro-Businesses and in the case of approval, may condition the approval on reason- and Rural Communities. Mr. Spinks has determined that the able terms and conditions designed to ensure the applicant's education, proposed rule will have no adverse economic effect on small training, and experience provide reasonable assurance that the appli- businesses, micro-businesses, or rural communities. Thus, the cant has the knowledge and skills necessary for entry-level practice Executive Council is not required to prepare a regulatory flexibil- under the license sought. ity analysis pursuant to §2006.002 of the Tex. Gov't Code. The agency certifies that legal counsel has reviewed the pro- Local Employment Impact Statement. Mr. Spinks has deter- posal and found it to be within the state agency's legal authority mined that the proposed rule will have no impact on local em- to adopt. ployment or a local economy. Thus, the Executive Council is not required to prepare a local employment impact statement pur- Filed with the Office of the Secretary of State on June 4, 2021. suant to §2001.022 of the Tex. Gov't Code. TRD-202102170 Requirement for Rules Increasing Costs to Regulated Persons. Darrel D. Spinks The proposed rule does not impose any new or additional Executive Director costs to regulated persons, state agencies, special districts, or Texas State Board of Examiners of Marriage and Family Therapists local governments; therefore, pursuant to §2001.0045 of the Earliest possible date of adoption: July 18, 2021 Tex. Gov't Code, no repeal or amendment of another rule is For further information, please call: (512) 305-7706 required to offset any increased costs. Additionally, no repeal or amendment of another rule is required because the proposed ♦ ♦ ♦ rule is necessary to protect the health, safety, and welfare of the residents of this state and because regulatory costs imposed by PART 41. TEXAS BEHAVIORAL the Executive Council on licensees is not expected to increase. HEALTH EXECUTIVE COUNCIL Government Growth Impact Statement. For the first five-year period the proposed rule is in effect, the Executive Council esti- CHAPTER 881. GENERAL PROVISIONS mates that the proposed rule will have no effect on government growth. The proposed rule does not create or eliminate a gov- SUBCHAPTER B. RULEMAKING ernment program; it does not require the creation or elimination 22 TAC §881.21 of employee positions; it does not require the increase or de- crease in future legislative appropriations to this agency; it does The Texas Behavioral Health Executive Council proposes not require an increase or decrease in fees paid to the agency; amendments to §881.21, relating to Petition for Rulemaking. it does not create a new regulation; it does not expand an exist- Overview and Explanation of the Proposed Rule. The proposed ing regulation; it does not increase or decrease the number of amendment corrects a typographical error. Currently subsection individuals subject to the rule's applicability; and it does not pos- (f) of this rule references §201.021(d) of the Tex. Gov't Code, itively or adversely affect the state's economy. but the correct citation should be §2001.021(d). Therefore, this Takings Impact Assessment. Mr. Spinks has determined that proposed amendment is necessary to correct this statutory ref- there are no private real property interests affected by the pro- erence. posed rule. Thus, the Executive Council is not required to pre- Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- pare a takings impact assessment pursuant to §2007.043 of the tive Council, has determined that for the first five-year period the Tex. Gov't Code. proposed rule is in effect, there will be no additional estimated Request for Public Comments. Comments on the proposed cost, reduction in costs, or loss or increase in revenue to the state rule may be submitted to Brenda Skiff, Executive Assistant, or local governments as a result of enforcing or administering the Texas Behavioral Health Executive Council, 333 Guadalupe, rule. Additionally, Mr. Spinks has determined that enforcing or Ste. 3-900, Austin, Texas 78701, within 30 days of publication administering the rule does not have foreseeable implications re- of this proposal in the Texas Register. Comments may also be lating to the costs or revenues of state or local government. submitted via email to [email protected]. Public Benefit. Mr. Spinks has determined for the first five-year The Executive Council specifically invites comments from the period the proposed rule is in effect there will be a benefit to public on the issues of whether or not the proposed rule will licensees and the general public because the proposed rule will have an adverse economic effect on small businesses; if the pro- provide greater clarity and consistency in the Executive Council's posed rule is believed to have an adverse effect on small busi- rules. Mr. Spinks has also determined that for each year of the nesses, estimate the number of small businesses believed to be first five years the rule is in effect, the public benefit anticipated as impacted by the rule, describe and estimate the economic im- a result of enforcing the rule will be to help the Executive Council pact of the rule on small businesses, offer alternative methods protect the public. of achieving the purpose of the rule; then explain how the Exec- Probable Economic Costs. Mr. Spinks has determined for the utive Council may legally and feasibly reduce that adverse effect first five-year period the proposed rule is in effect, there will be on small businesses considering the purpose of the statute un-

46 TexReg 3696 June 18, 2021 Texas Register der which the proposed rule is to be adopted; and finally describe The agency certifies that legal counsel has reviewed the pro- how the health, safety, environmental and economic welfare of posal and found it to be within the state agency's legal authority the state will be impacted by the various proposed methods. See to adopt. §2006.002(c) and (c-1) of the Tex. Gov't Code. Filed with the Office of the Secretary of State on June 4, 2021. Statutory Authority. The rule is proposed under Tex. Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the Texas Be- TRD-202102174 havioral Health Executive Council with the authority to make all Darrel D. Spinks rules, not inconsistent with the Constitution and Laws of this Executive Director State, which are reasonably necessary for the proper perfor- Texas Behavioral Health Executive Council mance of its duties and regulations of proceedings before it. Earliest possible date of adoption: July 18, 2021 Additionally, the Executive Council proposes this rule pursuant For further information, please call: (512) 305-7706 to the authority found in §507.152 of the Tex. Occ. Code, which vests the Executive Council with the authority to adopt rules nec- ♦ ♦ ♦ essary to perform its duties and implement Chapter 507 of the CHAPTER 882. APPLICATIONS AND Tex. Occ. Code. LICENSING The Executive Council also proposes this rule under the author- ity found in §2001.004 of the Tex. Gov't Code, which requires SUBCHAPTER A. LICENSE APPLICATIONS state agencies to adopt rules of practice stating the nature and 22 TAC §882.11 requirements of all available formal and informal procedures. The Texas Behavioral Health Executive Council proposes Lastly, the Executive Council proposes this rule under the au- amendments to §882.11, relating to Applicants with Foreign thority found in §2001.021 of the Tex. Gov't Code, which re- Degrees. quires state agencies to prescribe by rule the form for a petition for adoption of rules by interested persons and the procedure for Overview and Explanation of the Proposed Rule. The proposed its submission, consideration, and disposition. amendment expands the number of acceptable foreign degree evaluation services who conduct foreign degree evaluations to No other code, articles or statutes are affected by this section. include members of the Association of International Credential §881.21. Petition for Rulemaking. Evaluators, Inc. This proposed change is being brought based in part upon the suggestion of the Registrar's Office at the Uni- (a) Any interested person may petition for rulemaking in ac- versity of Texas at Austin. cordance with §2001.021 of the Government Code by submitting to the Council a written request for the adoption of a rule or rule change. The Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- written request must contain a return mailing address for the agency's tive Council, has determined that for the first five-year period the response. proposed rule is in effect, there will be no additional estimated cost, reduction in costs, or loss or increase in revenue to the state (b) The written request must, at a minimum, set forth or iden- or local governments as a result of enforcing or administering the tify the rule the petitioner wants the Council to adopt or change, rea- rule. Additionally, Mr. Spinks has determined that enforcing or sons why the petitioner believes the requested rulemaking is necessary, administering the rule does not have foreseeable implications re- and include a copy of the proposed rule or any proposed changes with lating to the costs or revenues of state or local government. deletions crossed through and additions underlined. Additionally, the written request must affirmatively show that the requestor qualifies as Public Benefit. Mr. Spinks has determined for the first five-year an interested person under this rule. Requests which do not affirma- period the proposed rule is in effect there will be a benefit to appli- tively show that the requestor qualifies as an interested person under cants and the general public because the proposed rule will pro- this rule may be denied. vide greater opportunity to comply with the Executive Council's licensing requirements while still applying a consistent standard. (c) The written request should also address the economic cost Mr. Spinks has also determined that for each year of the first to persons required to comply with the rule, the effects of the rule on five years the rule is in effect, the public benefit anticipated as a small or micro-businesses or rural communities, and the impact the rule result of enforcing the rule will be to help the Executive Council would have on local employment or economics, if such information can protect the public. be derived from available sources without undue cost or burden. Probable Economic Costs. Mr. Spinks has determined for the (d) A petition for rulemaking which involves any of those mat- first five-year period the proposed rule is in effect, there will be ters set forth in §507.153(a) of the Occupations Code will be submitted no additional economic costs to persons required to comply with by agency staff to the appropriate member board for initial review and this rule. consideration. Small Business, Micro-Business, and Rural Community Impact (e) The Council will respond to a written request for adoption Statement. Mr. Spinks has determined for the first five-year pe- of a rule from an interested person in accordance with §2001.021 of the riod the proposed rule is in effect, there will be no adverse effect Government Code. on small businesses, micro-businesses, or rural communities. (f) The term "interested person" as used in this rule, shall have Regulatory Flexibility Analysis for Small and Micro-Businesses the same meaning as that assigned by §2001.021(d) [§201.021(d)] of and Rural Communities. Mr. Spinks has determined that the the Government Code. Additionally, a person who submits a petition proposed rule will have no adverse economic effect on small under this rule must affirm that they qualify as an interested person in businesses, micro-businesses, or rural communities. Thus, the the petition. Petitions which do not contain such an affirmation may be Executive Council is not required to prepare a regulatory flexibil- denied. ity analysis pursuant to §2006.002 of the Tex. Gov't Code.

PROPOSED RULES June 18, 2021 46 TexReg 3697 Local Employment Impact Statement. Mr. Spinks has deter- essary to perform its duties and implement Chapter 507 of the mined that the proposed rule will have no impact on local em- Tex. Occ. Code. ployment or a local economy. Thus, the Executive Council is not The Executive Council also proposes this rule under the author- required to prepare a local employment impact statement pur- ity found in §2001.004 of the Tex. Gov't Code which requires suant to §2001.022 of the Tex. Gov't Code. state agencies to adopt rules of practice stating the nature and Requirement for Rules Increasing Costs to Regulated Persons. requirements of all available formal and informal procedures. The proposed rule does not impose any new or additional No other code, articles or statutes are affected by this section. costs to regulated persons, state agencies, special districts, or local governments; therefore, pursuant to §2001.0045 of the §882.11. Applicants with Foreign Degrees. Tex. Gov't Code, no repeal or amendment of another rule is (a) An applicant with a foreign degree must submit an official required to offset any increased costs. Additionally, no repeal or transcript and certified translation when applying for licensure. The of- amendment of another rule is required because the proposed ficial transcript must be translated to English by the issuing institution, rule is necessary to protect the health, safety, and welfare of the a translator that is certified by the American Translators Association, a residents of this state and because regulatory costs imposed by reputable foreign translator or translation service, or a U.S. college or the Executive Council on licensees is not expected to increase. university official. Government Growth Impact Statement. For the first five-year (b) An applicant with a foreign degree must have the degree period the proposed rule is in effect, the Executive Council esti- evaluated to determine if it is comparable to the degree required for mates that the proposed rule will have no effect on government the particular license sought. Foreign degree evaluations must be sent growth. The proposed rule does not create or eliminate a govern- directly to the Council from the evaluation service, submitted by the ment program; it does not require the creation or elimination of applicant in the sealed envelope in which they are received from the employee positions; it does not require the increase or decrease evaluation service, or be submitted as directed by agency staff. in future legislative appropriations to the this agency; it does not (c) Foreign degree evaluations must be conducted by a foreign require an increase or decrease in fees paid to the agency; it degree evaluation service that is a member of the National Association does not create a new regulation; it does not expand an exist- of Credential Evaluation Services (NACES) or the Association of Inter- ing regulation; it does not increase or decrease the number of national Credential Evaluators, Inc. (AICE). Alternatively, the Coun- individuals subject to the rule's applicability; and it does not pos- cil will accept foreign degree evaluations from the National Register itively or adversely affect the state's economy. of Health Service Psychologists for persons applying under Chapter Takings Impact Assessment. Mr. Spinks has determined that 501 of the Occupations Code and the International Social Work De- there are no private real property interests affected by the pro- gree Recognition and Evaluation Service for persons applying under posed rule. Thus, the Executive Council is not required to pre- Chapter 505 of the Occupations Code. pare a takings impact assessment pursuant to §2007.043 of the (d) The Council retains the exclusive authority to determine Tex. Gov't Code. whether a foreign degree is comparable to the degree required for li- Request for Public Comments. Comments on the proposed censure. rule may be submitted to Brenda Skiff, Executive Assistant, The agency certifies that legal counsel has reviewed the pro- Texas Behavioral Health Executive Council, 333 Guadalupe, posal and found it to be within the state agency's legal authority Ste. 3-900, Austin, Texas 78701, within 30 days of publication to adopt. of this proposal in the Texas Register. Comments may also be submitted via email to [email protected]. Filed with the Office of the Secretary of State on June 4, 2021. The Executive Council specifically invites comments from the TRD-202102175 public on the issues of whether or not the proposed rule will Darrel D. Spinks have an adverse economic effect on small businesses; if the pro- posed rule is believed to have an adverse effect on small busi- Executive Director nesses, estimate the number of small businesses believed to be Texas Behavioral Health Executive Council impacted by the rule, describe and estimate the economic im- Earliest possible date of adoption: July 18, 2021 pact of the rule on small businesses, offer alternative methods For further information, please call: (512) 305-7706 of achieving the purpose of the rule; then explain how the Exec- utive Council may legally and feasibly reduce that adverse effect ♦ ♦ ♦ on small businesses considering the purpose of the statute un- CHAPTER 883. RENEWALS der which the proposed rule is to be adopted; and finally describe how the health, safety, environmental and economic welfare of SUBCHAPTER A. GENERAL PROVISIONS the state will be impacted by the various proposed methods. See 22 TAC §883.1 §2006.002(c) and (c-1) of the Tex. Gov't Code. The Texas Behavioral Health Executive Council proposes Statutory Authority. The rule is proposed under Tex. Occ. Code, amendments to §883.1, relating to Renewal of a License. Title 3, Subtitle I, Chapter 507, which provides the Texas Be- havioral Health Executive Council with the authority to make all OVERVIEW AND EXPLANATION OF THE PROPOSED RULE. rules, not inconsistent with the Constitution and Laws of this The proposed amendment is intended to modify the assessment State, which are reasonably necessary for the proper perfor- of late fees such that licensees need only pay a late renewal fee mance of its duties and regulations of proceedings before it. for late renewals, rather than a late fee in addition to the standard renewal fee. Additionally, the Executive Council proposes this rule pursuant to the authority found in §507.152 of the Tex. Occ. Code which FISCAL NOTE. Darrel D. Spinks, Executive Director of the Ex- vests the Executive Council with the authority to adopt rules nec- ecutive Council, has determined that for the first five-year pe-

46 TexReg 3698 June 18, 2021 Texas Register riod the proposed rule is in effect, there will be no additional es- increase or decrease in future legislative appropriations to the timated cost, reduction in costs, or increase in revenue to the this agency; it does not require an increase in fees paid to the state or local governments as a result of enforcing or admin- agency but it is estimated to result in a decrease in fees paid istering the rule. Additionally, Mr. Spinks has determined that to this agency; it does not create a new regulation; it does not enforcing or administering the rule does not have foreseeable expand an existing regulation; it does not increase or decrease implications relating to the costs of state or local government. the number of individuals subject to the rule’s applicability; and Conversely, Mr. Spinks has determined there will be a decrease it does not positively or adversely affect the state's economy. or loss in revenues to state government as a result of this pro- TAKINGS IMPACT ASSESSMENT. Mr. Spinks has determined posed amendment. Under the proposed amendment a licensee that there are no private real property interests affected by the filing a late renewal would only have to pay the late renewal fee, proposed rule. Thus, the Executive Council is not required to as opposed to currently having to pay the renewal fee in addi- prepare a takings impact assessment pursuant to §2007.043 of tion to the late fee. If the same historical number of licensees the Tex. Gov't Code. that filed late renewals this past year continue to do so, then the amount of fees collected by this agency will be reduced by ap- REQUEST FOR PUBLIC COMMENTS. Comments on the proximately $241,769.00 on an annual basis. proposed rule may be submitted to Brenda Skiff, Executive Assistant, Texas Behavioral Health Executive Council, 333 PUBLIC BENEFIT. Mr. Spinks has determined for the first five- Guadalupe, Ste. 3-900, Austin, Texas 78701, within 30 days of year period the proposed rule is in effect there will be a benefit to publication of this proposal in the Texas Register. Comments licensees because the proposed rule will provide greater equity may also be submitted via email to [email protected]. in the Executive Council’s rules. Mr. Spinks has also determined that for each year of the first five years the rule is in effect, the The Executive Council specifically invites comments from the public benefit anticipated as a result of enforcing the rule will be public on the issues of whether or not the proposed rule will to help the Executive Council protect the public. have an adverse economic effect on small businesses; if the pro- posed rule is believed to have an adverse effect on small busi- PROBABLE ECONOMIC COSTS. Mr. Spinks has determined nesses, estimate the number of small businesses believed to be for the first five-year period the proposed rule is in effect, there impacted by the rule, describe and estimate the economic im- will be no additional economic costs to persons required to com- pact of the rule on small businesses, offer alternative methods ply with this rule. of achieving the purpose of the rule; then explain how the Exec- SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COM- utive Council may legally and feasibly reduce that adverse effect MUNITY IMPACT STATEMENT. Mr. Spinks has determined for on small businesses considering the purpose of the statute un- the first five-year period the proposed rule is in effect, there will der which the proposed rule is to be adopted; and finally describe be no adverse effect on small businesses, micro-businesses, or how the health, safety, environmental and economic welfare of rural communities. the state will be impacted by the various proposed methods. See §2006.002(c) and (c-1) of the Tex. Gov't Code. REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MI- CRO-BUSINESSES AND RURAL COMMUNITIES. Mr. Spinks STATUTORY AUTHORITY. The rule is proposed under Tex. has determined that the proposed rule will have no adverse eco- Occ. Code, Title 3, Subtitle I, Chapter 507, which provides the nomic effect on small businesses, micro-businesses, or rural Texas Behavioral Health Executive Council with the authority to communities. Thus, the Executive Council is not required to pre- make all rules, not inconsistent with the Constitution and Laws pare a regulatory flexibility analysis pursuant to §2006.002 of the of this State, which are reasonably necessary for the proper Tex. Gov't Code. performance of its duties and regulations of proceedings before it. LOCAL EMPLOYMENT IMPACT STATEMENT. Mr. Spinks has determined that the proposed rule will have no impact on local Additionally, the Executive Council proposes this rule pursuant employment or a local economy. Thus, the Executive Council to the authority found in §507.152 of the Tex. Occ. Code which is not required to prepare a local employment impact statement vests the Executive Council with the authority to adopt rules nec- pursuant to §2001.022 of the Tex. Gov't Code. essary to perform its duties and implement Chapter 507 of the Tex. Occ. Code. REQUIREMENT FOR RULES INCREASING COSTS TO REG- ULATED PERSONS. The proposed rule does not impose any The Executive Council proposes this amended rule pursuant to new or additional costs to regulated persons, state agencies, the authority found in §507.154 of the Tex. Occ. Code which special districts, or local governments; therefore, pursuant to authorizes the Executive Council to set fees necessary to cover §2001.0045 of the Tex. Gov't Code, no repeal or amendment the costs of administering Chapters 501, 502, 503, 505, and 507 of another rule is required to offset any increased costs. Ad- of the Tex. Occ. Code; as well as §507.255 of the Tex. Occ. ditionally, no repeal or amendment of another rule is required Code which requires the Executive Council to charge late re- because the proposed rule is necessary to protect the health, newal fees. safety, and welfare of the residents of this state and because The Executive Council also proposes this rule under the author- regulatory costs imposed by the Executive Council on licensees ity found in §2001.004 of the Tex. Gov't Code which requires is not expected to increase. state agencies to adopt rules of practice stating the nature and GOVERNMENT GROWTH IMPACT STATEMENT. For the first requirements of all available formal and informal procedures. five-year period the proposed rule is in effect, the Executive No other code, articles or statutes are affected by this section. Council estimates that the proposed rule will have no effect on government growth. The proposed rule does not create or §883.1. Renewal of a License. eliminate a government program; it does not require the creation (a) All licenses subject to the jurisdiction of the Council are or elimination of employee positions; it does not require the renewable on a biennial basis and must be renewed online.

PROPOSED RULES June 18, 2021 46 TexReg 3699 (b) Renewals are due on the last day of the license holder's Fiscal Note. Darrel D. Spinks, Executive Director of the Execu- birth month, but may be completed up to 60 days in advance. tive Council, has determined that for the first five-year period the proposed rule is in effect, there will be no additional estimated (c) Licensees must pay all applicable renewal or and late cost, reduction in costs, or loss or increase in revenue to the state renewal fees, indicate compliance with any continuing education or local governments as a result of enforcing or administering the requirements, and comply with any other requests for information rule. Additionally, Mr. Spinks has determined that enforcing or or requirements contained within the online renewal system as a administering the rule does not have foreseeable implications re- prerequisite for renewal of a license. lating to the costs or revenues of state or local government. (d) In addition to the requirements of subsection (c) of this sec- Public Benefit. Mr. Spinks has determined for the first five- tion, licensees must also show compliance with each of the following year period the proposed rule is in effect there will be a ben- as a condition of renewal: efit to licensees and the general public because the proposed (1) provide or update the standardized set of information rule will provide greater clarity in the Executive Council's rules. about their training and practices required by §105.003 of the Health Mr. Spinks has also determined that for each year of the first and Safety Code; and five years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be to help the Executive Council (2) affirm or demonstrate successful completion of a train- protect the public. ing course on human trafficking prevention described by §116.002 of the Occupations Code. Probable Economic Costs. Mr. Spinks has determined for the first five-year period the proposed rule is in effect, there will be (e) Licensed psychologists must update their online profile in- no additional economic costs to persons required to comply with formation when renewing their license. this rule. (f) A license may not be renewed until a licensee has complied Small Business, Micro-Business, and Rural Community Impact with the requirements of this rule. Statement. Mr. Spinks has determined for the first five-year pe- (g) A licensee who falsely reports compliance with continuing riod the proposed rule is in effect, there will be no adverse effect education requirements on his or her renewal form or who practices on small businesses, micro-businesses, or rural communities. with a license renewed under false pretenses will be subject to disci- Regulatory Flexibility Analysis for Small and Micro-Businesses plinary action. and Rural Communities. Mr. Spinks has determined that the (h) Licensees will be sent notification of their approaching re- proposed rule will have no adverse economic effect on small newal date at least 30 days before their renewal date. This notification businesses, micro-businesses, or rural communities. Thus, the will be sent to the licensee's main address via first class mail. Respon- Executive Council is not required to prepare a regulatory flexibil- sibility for renewing a license rests exclusively with the licensee, and ity analysis pursuant to §2006.002 of the Tex. Gov't Code. the failure of the licensee to receive the reminder notification from the Local Employment Impact Statement. Mr. Spinks has deter- Council shall not operate to excuse a licensee's failure to timely renew mined that the proposed rule will have no impact on local em- a license or any unlawful practice with a subsequent delinquent license. ployment or a local economy. Thus, the Executive Council is not The agency certifies that legal counsel has reviewed the pro- required to prepare a local employment impact statement pur- posal and found it to be within the state agency's legal authority suant to §2001.022 of the Tex. Gov't Code. to adopt. Requirement for Rules Increasing Costs to Regulated Persons. The proposed rule does not impose any new or additional Filed with the Office of the Secretary of State on June 4, 2021. costs to regulated persons, state agencies, special districts, or TRD-202102178 local governments; therefore, pursuant to §2001.0045 of the Darrel D. Spinks Tex. Gov't Code, no repeal or amendment of another rule is Executive Director required to offset any increased costs. Additionally, no repeal or Texas Behavioral Health Executive Council amendment of another rule is required because the proposed Earliest possible date of adoption: July 18, 2021 rule is necessary to protect the health, safety, and welfare of the For further information, please call: (512) 305-7706 residents of this state and because regulatory costs imposed by the Executive Council on licensees is not expected to increase. ♦ ♦ ♦ Government Growth Impact Statement. For the first five-year CHAPTER 885. FEES period the proposed rule is in effect, the Executive Council esti- mates that the proposed rule will have no effect on government 22 TAC §885.1 growth. The proposed rule does not create or eliminate a govern- ment program; it does not require the creation or elimination of The Texas Behavioral Health Executive Council proposes employee positions; it does not require the increase or decrease amendments to §885.1, relating to Executive Council Fees. in future legislative appropriations to the this agency; it does not Overview and Explanation of the Proposed Rule. The proposed require an increase or decrease in fees paid to the agency; it amendment is intended to clarify that late fees are not applica- does not create a new regulation; it does not expand an exist- ble to licenses on inactive status, which is currently stated in ing regulation; it does not increase or decrease the number of §882.21. Additionally, the proposed amendment is intended to individuals subject to the rule's applicability; and it does not pos- clarify that when a person's license has been expired for cer- itively or adversely affect the state's economy. tain periods of time, it is referring to delinquent license status as Takings Impact Assessment. Mr. Spinks has determined that stated in §882.21. there are no private real property interests affected by the pro- posed rule. Thus, the Executive Council is not required to pre-

46 TexReg 3700 June 18, 2021 Texas Register pare a takings impact assessment pursuant to §2007.043 of the (5) All examination fees are to be paid to the Council's de- Tex. Gov't Code. signee. Request for Public Comments. Comments on the proposed (b) The Executive Council adopts the following chart of fees: rule may be submitted to Brenda Skiff, Executive Assistant, Figure 22 TAC 885.1(b) (No change.) Texas Behavioral Health Executive Council, 333 Guadalupe, (c) Late fees. (Not applicable to Inactive Status) Ste. 3-900, Austin, Texas 78701, within 30 days of publication of this proposal in the Texas Register. Comments may also be (1) If the person's license has been expired (i.e., delinquent) submitted via email to [email protected]. for 90 days or less, the person may renew the license by paying to the Council a fee in an amount equal to one and one-half times the base The Executive Council specifically invites comments from the renewal fee. public on the issues of whether or not the proposed rule will have an adverse economic effect on small businesses; if the pro- (2) If the person's license has been expired (i.e., delinquent) posed rule is believed to have an adverse effect on small busi- for more than 90 days but less than one year, the person may renew the nesses, estimate the number of small businesses believed to be license by paying to the Council a fee in an amount equal to two times impacted by the rule, describe and estimate the economic im- the base renewal fee. pact of the rule on small businesses, offer alternative methods (3) If the person's license has been expired (i.e., delinquent) of achieving the purpose of the rule; then explain how the Exec- for one year or more, the person may not renew the license; however, utive Council may legally and feasibly reduce that adverse effect the person may apply for reinstatement of the license. on small businesses considering the purpose of the statute un- der which the proposed rule is to be adopted; and finally describe (d) Open Records Fees. In accordance with §552.262 of the how the health, safety, environmental and economic welfare of Government Code, the Council adopts by reference the rules devel- the state will be impacted by the various proposed methods. See oped by the Office of the Attorney General in 1 TAC Part 3, Chapter §2006.002(c) and (c-1) of the Tex. Gov't Code. 70 (relating to Cost of Copies of Public Information) for use by each governmental body in determining charges under Government Code, Statutory Authority. The rule is proposed under Tex. Occ. Code, Chapter 552 (Public Information) Subchapter F (Charges for Provid- Title 3, Subtitle I, Chapter 507, which provides the Texas Be- ing Copies of Public Information). havioral Health Executive Council with the authority to make all rules, not inconsistent with the Constitution and Laws of this (e) Military Exemption for Fees. All licensing and examina- State, which are reasonably necessary for the proper perfor- tion base rate fees payable to the Council are waived for the following mance of its duties and regulations of proceedings before it. individuals: Additionally, the Executive Council proposes this rule pursuant (1) military service members and military veterans, as to the authority found in §507.152 of the Tex. Occ. Code, which those terms are defined by Chapter 55, Occupations Code, whose vests the Executive Council with the authority to adopt rules nec- military service, training, or education substantially meets all licensure essary to perform its duties and implement Chapter 507 of the requirements; and Tex. Occ. Code. (2) military service members, military veterans, and mil- The Executive Council proposes this amended rule pursuant to itary spouses, as those terms are defined by Chapter 55, Occupations the authority found in §507.154 of the Tex. Occ. Code, which Code, who hold a current license issued by another jurisdiction that has authorizes the Executive Council to set fees necessary to cover licensing requirements that are substantially equivalent to the require- the costs of administering Chapters 501, 502, 503, 505, and 507 ments of this state. of the Tex. Occ. Code. The agency certifies that legal counsel has reviewed the pro- The Executive Council also proposes this rule under the author- posal and found it to be within the state agency's legal authority ity found in §2001.004 of the Tex. Gov't Code, which requires to adopt. state agencies to adopt rules of practice stating the nature and requirements of all available formal and informal procedures. Filed with the Office of the Secretary of State on June 4, 2021. No other code, articles or statutes are affected by this section. TRD-202102180 Darrel D. Spinks §885.1. Executive Council Fees. Executive Director (a) General provisions. Texas Behavioral Health Executive Council (1) All fees are nonrefundable and cannot be waived except Earliest possible date of adoption: July 18, 2021 as otherwise permitted by law. For further information, please call: (512) 305-7706 (2) Fees required to be submitted online to the Council ♦ ♦ ♦ must be paid by debit or credit card. All other fees paid to the Council must be in the form of a personal check, cashier's check, or money TITLE 28. INSURANCE order. (3) For applications and renewals the Council is required PART 1. TEXAS DEPARTMENT OF to collect fees to fund the Office of Patient Protection (OPP) in accor- INSURANCE dance with Texas Occupations Code §101.307, relating to the Health Professions Council. CHAPTER 21. TRADE PRACTICES (4) For applications, examinations, and renewals the Coun- The Texas Department of Insurance (TDI) proposes amending cil is required to collect subscription or convenience fees to recover 28 TAC §§21.2 - 21.4, 21.6, 21.102, 21.104, 21.120, 21.203 costs associated with processing through Texas.gov. - 21.205, 21.301, 21.403, 21.408, 21.701, 21.703 - 21.705,

PROPOSED RULES June 18, 2021 46 TexReg 3701 21.901, 21.1004 - 21.1007, 21.1101, 21.1110, 21.2001, 21.2006, Subchapter H. Unfair Discrimination. Amendments are pro- 21.2010, 21.2011, 21.2202, 21.2204, 21.2212, 21.2501, posed to §§21.701, 21.703, and 21.705 to update obsolete 21.2601, 21.2604, 21.2606, 21.2702, 21.2819, 21.2902, statutory references. Amendments are proposed in §21.704 to 21.3201, 21.3302, 21.3303, 21.3305, 21.3701, 21.3802, and update an obsolete mailing address and to replace "shall" with 21.4105, concerning deceptive and unfair trade practices. "may." Additional amendments in §21.703 include replacing "mental retardation" with "intellectual disability" to conform with EXPLANATION. The proposed amendments (1) change the Diagnostic and Statistical Manual of Mental Disorders and to instances of the obsolete "State Board of Insurance" to "Depart- conform with changes to the Health and Safety and Insurance ment of Insurance," (2) replace obsolete statutory references Codes; replacing "handicap or partial handicap" with "disability to Insurance Code articles that have changed because of or partial disability" to conform with changes to Insurance Code codification, (3) update websites and addresses, (4) correct §544.002. punctuation and grammatical errors, and (5) make nonsubstan- tive language and usage changes to adhere to current agency Subchapter I. Prohibited Agent Practices. Amendments are pro- style (e.g., capitalizing "Commissioner" and changing "shall" to posed to §21.901 to update obsolete statutory references. Addi- other context-appropriate words). tional amendments include adding and deleting commas; delet- ing one instance of "shall" and replacing another instance with The proposed amendments to the sections are described in the "will"; and replacing "shall be" with "are," "pursuant" with "accord- following paragraphs, organized by subchapter. ing"; and "article" with "chapter." Subchapter A. Unfair Competition and Unfair Practices of Insur- Subchapter J. Prohibited Trade Practices. Amendments are pro- ers, and Misrepresentation of Policies. Amendments are pro- posed to §§21.1004 - 21.1007 to update obsolete statutory ref- posed to §§21.2, 21.3, and 21.6 to update obsolete statutory erences. Additional amendments include adding a hyphen in references. Additional amendments are proposed to §21.3 and §21.1004; deleting an unnecessary comma and replacing "shall" §21.4 to update obsolete references to the State Board of Insur- with "may" and "shall be" with "is" in §21.1005, as appropriate; ance. and making the word "To" lowercase in the heading of §1.006 Additional amendments include: "shall" is replaced with "may" in and replacing "shall" with "does" in §21.1006. §21.3; superfluous "or" instances are removed in §21.4; and in An amendment to §21.1004 updates a section title. An amend- §21.6, "shall" is replaced with "will." ment to §21.1007 removes an unnecessary and obsolete mailing Subchapter B. Advertising, Certain Trade Practices, and Solic- address. itation. Amendments are proposed to §§21.102, 21.104, and In addition, amendments delete §21.1004(f) and (g) because 21.120 to remove obsolete references to "viatical." An amend- subsection (f) is no longer effective, and subsection (g) is no ment is proposed to §21.120 to update an obsolete mailing ad- longer relevant. Subsection (g) contains an expiration clause dress. Amendments are proposed to §21.120 to change "shall" for subsection (f), providing for the section to expire on January to "must," change "division" to "title," and update a regulatory ref- 1, 2008. An amendment also deletes §21.1004(d) because the erence. provision provides an out-of-date effective date for the section. Subchapter C. Unfair Claims Settlement Practices. Amend- Subchapter K. Certification of Creditable Coverage. Amend- ments are proposed to §21.203 and §21.205 to update obsolete ments are proposed to §21.1101 to update obsolete statutory statutory references. Amendments are proposed to §21.204 references and an amendment is proposed to §21.1110 to re- to correct a typo in a citation to §21.203 and update obsolete move an unnecessary and obsolete mailing address. Additional references to the State Board of Insurance. amendments include adding a comma, hyphens, punctuating Additional amendments to §21.203 include replacing "shall" with "USC" to make it "U.S.C.," capitalizing "Commissioner of Insur- "may" or "will," as appropriate; capitalization of "Commissioner ance." The defined term "risk pool" is removed from §21.1101 of Insurance"; addition of missing periods; deletions of "the"; because the term is not used in the subchapter, and the para- and changes to syntax for proper grammar. In §21.204, addi- graphs that follow it are renumbered as appropriate. tional amendments include replacing "shall" with "must," replac- Subchapter L. Medical Child Support, Unfair Practices. Amend- ing "such" with "the" in two places, and replacing "of" with "by." ments are proposed to §§21.2001, 21.2006, 21.2010, and In §21.205, an additional amendment includes replacing "shall" 21.2011 to update obsolete statutory references and delete with "must." the words "shall" and "shall be" or replace it with "must," "will," Subchapter D. Statistical Agents. Amendments are proposed to or "are," as appropriate. Additional amendments in §21.2001 §21.301 to update obsolete statutory references. Amendments include replacing dashes with double hyphens, and adding also include deleting "shall" or replacing it with "will" and "must," punctuation to "USC" to make it "U.S.C.." An additional amend- as appropriate; capitalizing "Commissioner"; inserting the word ment in §21.2010 removes an unnecessary and obsolete "following"; and inserting a comma and a colon where needed. mailing address. Additional amendments in §21.2011 include deleting "will subject" and replacing with "subjects" and replac- Subchapter E. Unfair Discrimination Based on Sex or Marital ing "application" with "applicable." Status. Amendments are proposed to §21.403 to update obso- lete references to "the board," to remove obsolete references to Subchapter M. Mandatory Benefit Notice Requirements. "non-profit legal service corporations," delete unnecessary uses Amendments are proposed to §21.2106 to remove an unneces- of the word "shall" and revise text as appropriate to reflect re- sary and obsolete mailing address. moval of "shall," and correct punctuation. Amendments are pro- Subchapter N. Life Insurance Illustrations. Amendments are pro- posed to §§21.403 and 21.408 to update obsolete statutory ref- posed to §§21.2202, 21.2204, and 21.2212 to update obsolete erences. statutory references. Additional amendments to §21.2202 in- clude changing the capitalization of "subchapter" and "Commis-

46 TexReg 3702 June 18, 2021 Texas Register sioner." Additional amendments to §21.2204 include changing trative Code, replacing "shall" with "must" or "will," as appropri- the capitalization of "subchapter" and "Commissioner," deleting ate; replacing "ten" with "10;" and replacing "Department of In- two instances of an unnecessary "shall," and changes to syntax. surance" with "department." Amendments are also proposed to Additional amendments to §21.2212 include changing "subsec- update the titles of department staff, which have changed due to tion" to "subchapter," and deleting an unnecessary "shall." internal reorganizations. Subchapter Q. Complaint Records to be Maintained. Amend- Subchapter DD. Eligibility Statements. Amendments are pro- ments are proposed to §21.2501 to update obsolete statutory posed to §21.3802 to update obsolete statutory references and references and eliminating unnecessary uses of "the." eliminate an unnecessary "shall." Subchapter R. Diabetes. Amendments to §§21.2601, 21.2604, Subchapter GG. Health Care Quality Assurance Presumed and 21.2606 to update obsolete statutory references. Additional Compliance. Amendments are proposed to §21.4105 to update amendments to §21.2601 include changing a colon to a period, obsolete website references and an obsolete mailing address. eliminating unnecessary uses of "shall," capitalizing "Commis- Additional amendments include adding the word "as," making sioner," revising references to current statutes for consistency the word "department" possessive, replacing "shall" with "will," with current agency style, and adding punctuation to "USC" to and eliminating an unnecessary use of the word "internet." change it to "U.S.C." Additional amendments to §21.2604 in- FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATE- clude replacing "shall" with "must," adding hyphens and com- MENT. Justin Beam, chief clerk, Office of the Chief Clerk, Gen- mas where grammatically appropriate, changing numbers ren- eral Counsel Division, has determined that during each year of dered in words to numerals, replacing "on-going" with "ongo- the first five years the proposed new amendments are in effect, ing," and eliminating unnecessary use of "services." Additional there will be no measurable fiscal impact on state and local gov- amendments to §21.2606 include replacing "shall" with "must" ernments as a result of the proposed amendments. The pro- or "should" as appropriate and updating the title of the Commis- posed amendments are limited to updating statutory citations to sioner of Public Health. reflect the recodification of the Insurance Code, updating web- Subchapter S. Association Plans. Amendments are proposed site addresses, removing obsolete addresses and state agency to §21.2702 to update obsolete statutory references. Additional names, correcting typographical and grammatical errors, and amendments include changing a colon to a period, capitalizing other nonsubstantive changes. Because the proposed amend- "Commissioner," eliminating unnecessary uses of "shall," and ments make no substantive changes, they neither add to or de- adding commas and hyphens where appropriate. crease state revenues or expenditures nor change any require- ments placed on local governments. Subchapter T. Submission of Clean Claims. Amendments are proposed to §21.2819 to revise a reference to an Administrative Mr. Beam does not anticipate any measurable effect on local Code section and to remove an unnecessary and obsolete mail- employment or the local economy as a result of this proposal ing address. because the proposed amendments do not make any substan- tive changes. Subchapter U. Arrangements Between Indemnity Carriers and HMOs for Point-of-Service Coverage. Amendments are pro- PUBLIC BENEFIT AND COST NOTE. For each year of the first posed to §21.2901 and §21.2902 to update obsolete statutory five years the proposed amendments are in effect, Mr. Beam references. Additional amendments in §21.2901 include elimi- expects that administering the proposed amendments will have nating an unnecessary "shall" and adding commas where gram- the public benefit of ensuring that TDI's rules are accurate and matically appropriate. Additional amendments in §21.2902 in- transparent by reflecting the updated Insurance Code references clude replacing "shall" with "must," "will," "do," or "may" as ap- and the correct agency name, contact information, and website propriate; replacing "pursuant" with "according;" adding the word address for TDI. "by;" and updating the heading of a subchapter in a reference to Mr. Beam expects that the proposed amendments will not in- the Administrative Code. crease the cost of compliance for stakeholders because they do Subchapter X. Evaluation of Network Physicians and Providers. not impose substantive changes. Amendments are proposed to §21.3201 to update obsolete ECONOMIC IMPACT STATEMENT AND REGULATORY FLEX- statutory references and an out-of-date website address. Ad- IBILITY ANALYSIS. TDI has determined that the proposed ditional amendments include changing the capitalization of amendments will not have an adverse economic effect on small "Applicability," changing a colon to a period, eliminating an or micro businesses, or on rural communities because the unnecessary "shall," replacing "shall" with "must," and remov- amendments make only nonsubstantive changes. As a result, ing text addressing ways to request the Texas Standardized and in accordance with Government Code §2006.002(c), TDI is Credentialing Application via mail or over the phone. not required to prepare a regulatory flexibility analysis. Subchapter Y. Unfair Discrimination in Compensation for EXAMINATION OF COSTS UNDER GOVERNMENT CODE Women's Health Care. Amendments are proposed to §2001.0045. TDI has determined that this proposal does not §§21.3302, 21.3303, and 21.3305 to update obsolete statutory impose a cost on regulated persons, thus no additional rule- references. Additional amendments include replacing a colon makings are required under Government Code §2001.0045. with a period and eliminating an unnecessary "shall" in §21.3302 and replacing "shall" with "must," "than" with "from," and "if" with GOVERNMENT GROWTH IMPACT STATEMENT. TDI has de- "whether" in §21.3305. termined that for each year of the first five years that the pro- posed amendments are in effect, the proposed amendments: Subchapter CC. Electronic Health Care Transactions. Amend- ments are proposed to §21.3701 to update obsolete statutory - will not create or eliminate a government program; references and to update a mailing address. Additional amend- - will not require the creation of new employee positions or the ments include correcting a citation to a section in the Adminis- elimination of existing employee positions;

PROPOSED RULES June 18, 2021 46 TexReg 3703 - will not require an increase or decrease in future legislative CROSS-REFERENCE TO STATUTE. Section 21.2 implements appropriations to the agency; Insurance Code Chapter 541 and Insurance Code §543.001. Section 21.3 implements Insurance Code §541.003. Section - will not require an increase or decrease in fees paid to the 21.4 implements Insurance Code §541.061. Section 21.6 im- agency; plements Insurance Code §463.451. - will not create a new regulation; §21.2. Interpretations. - will not expand, limit, or repeal an existing regulation; The meanings given to the provisions, terms, and words of this regula- tion are not to be limited to the common law meaning, which may have - will not increase or decrease the number of individuals subject been given thereto, but are to be interpreted to accomplish the purpose to the rule's applicability; and of these sections in accordance with the provisions of [the] Insurance - will not positively or adversely affect the Texas economy. Code Chapter 541 and Insurance Code §543.001[, Article 21.21, §13]. TAKINGS IMPACT ASSESSMENT. TDI has determined that no §21.3. Unfair Trade Practices Prohibited. private real property interests are affected by this proposal and (a) Misrepresentation of insurance policies, unfair competi- that this proposal does not restrict or limit an owner's right to tion, and unfair practices by insurers, agents, and other connected per- property that would otherwise exist in the absence of government sons are prohibited by Insurance Code Chapter 541 and Insurance Code action. As a result, this proposal does not constitute a taking or §543.001 [Article 21.20 and Article 21.21] or by other provisions of the require a takings impact assessment under Government Code Insurance Code and this chapter [by these sections of the Texas State §2007.043. Board of Insurance]. No person may [shall] engage in this state in any trade practice that is a misrepresentation of an insurance policy, that is REQUEST FOR PUBLIC COMMENT. TDI will consider any writ- an unfair method of competition, or that is an unfair or deceptive act ten comments on the proposal that are received by TDI no later or practice as defined by the provisions of the Insurance Code or as than 5:00 p.m., central time, on July 19, 2021. Send your com- defined by these sections and other rules and regulations [of the State ments to [email protected] or to the Office of the Chief Board of Insurance] authorized by the Insurance Code. Clerk, MC-GC-CCO, Texas Department of Insurance, P.O. Box 12030, Austin, Texas 78711-2030. (b) Irrespective of the fact that the improper trade practice is not defined in any other section of these rules and regulations, no per- To request a public hearing on the proposal, submit a request be- son may [shall] engage in this state in any trade practice which is de- fore the end of the comment period to [email protected] termined pursuant by law to be an unfair method of competition or an or to the Office of the Chief Clerk, MC-GC-CCO, Texas Depart- unfair or deceptive act or practice in the business of insurance. ment of Insurance, P.O. Box 12030, Austin, Texas 78711-2030. The request for public hearing must be separate from any com- §21.4. Misrepresentation Defined; Standards for Determining Mis- ments and received by the department no later than 5:00 p.m., representation. central time, on July 19, 2021. If TDI holds a public hearing, TDI The term misrepresentation, or the prohibited conduct, act, or practice will consider comments presented at the hearing. that constitutes misrepresentation by a person subject to the provisions SUBCHAPTER A. UNFAIR COMPETITION of these sections, is defined as any one of the following acts or omis- sions: AND UNFAIR PRACTICES OF INSURERS, AND (1) any untrue statement of a material fact; [or] MISREPRESENTATION OF POLICIES (2) any omission to state a material fact necessary to make 28 TAC §§21.2 - 21.4, 21.6 the statements made (considered in the light of the circumstances under which they are made) not misleading; [or] STATUTORY AUTHORITY. TDI proposes amendments to §§21.2 - 21.4 and 21.6 under Insurance Code §§463.006, (3) the making of any statement in such manner or order 541.401, 543.001, and 36.001. as to mislead a reasonably prudent person to a false conclusion of a material fact; [or] Insurance Code §463.006 provides that the Commissioner adopt rules necessary to carry out and supplement the Texas Life and (4) (No change.) Health Insurance Guaranty Association Act. (5) any failure to disclose any matter required by law to be Insurance Code §541.401 provides that the Commissioner may disclosed, including failure to make disclosures [disclosure] in accor- adopt and enforce rules necessary to accomplish the purpose of dance with the provisions of these sections and other applicable rules Chapter 541, which is to regulate trade practices in the business [of the State Board of Insurance]. of insurance by defining or determining trade practices that are §21.6. Prohibition against the Use of Guaranty Fund Protection in unfair methods of competition or deceptive acts or practices and the Sale of Insurance. prohibiting them. The use in any manner of the protection afforded by the Life and Health Insurance Code §543.001 provides that the Commissioner may Insurance Guaranty Association Act [Life, Accident, Health, and Hos- adopt and enforce rules as provided by Chapter 541, Subchapter pital Service Insurance Guaranty Act] (the Act) by any person in the I, to ensure life insurance companies do not circulate statements sale of any product included within the scope of the Act ([the] Insurance that misrepresent the terms, benefits, or dividends received on Code[,] Chapter 463 [Article 21.28-D]) will [shall] constitute unfair a life insurance policy or certificate. competition and unfair practices under [the] Insurance Code[,] Chapter 541 [Article 21.21,] and will [shall] be subject to the provisions thereof. Insurance Code §36.001 provides that the Commissioner may adopt any rules necessary and appropriate to implement the The agency certifies that legal counsel has reviewed the pro- powers and duties of TDI under the Insurance Code and other posal and found it to be within the state agency's legal authority laws of this state. to adopt.

46 TexReg 3704 June 18, 2021 Texas Register Filed with the Office of the Secretary of State on June 7, 2021. (6) - (8) (No change.) TRD-202102192 §21.104. Requirement of Identification of Policy or Insurer. James Person (a) - (c) (No change.) General Counsel Texas Department of Insurance (d) All advertisements, other than institutional, shall explicitly Earliest possible date of adoption: July 18, 2021 and conspicuously disclose that the product concerned is property, life For further information, please call: (512) 676-6584 or other insurance, an annuity, HMO coverage, a [viatical or] life set- tlement contract, or a prepaid legal services contract, on the basis that ♦ ♦ ♦ each of these products are classified or addressed by statute or rule or as the products are filed with the department. It is sufficient for an in- SUBCHAPTER B. ADVERTISING, CERTAIN surer to use the term "PPO plan" in advertisements when referring to a TRADE PRACTICES, AND SOLICITATION preferred provider benefit plan offered under Insurance Code Chapter 1301. DIVISION 1. INSURANCE ADVERTISING (e) - (i) (No change.) 28 TAC §§21.102, 21.104, 21.120 §21.120. Filing for Review. STATUTORY AUTHORITY. TDI proposes amendments to §§21.102, 21.104, and 21.120 under Insurance Code §562.106 (a) Any advertisement required to be submitted or submitted and §36.001. voluntarily by an insurer licensed to do business in Texas must [shall] be accompanied by a transmittal letter addressed to the [Advertising Insurance Code §562.106 provides that if the Commissioner rea- Unit,] Texas Department of Insurance, Life and Health Lines, MC-LH- sonably believes that a program operator or marketer may not be LHL, [333 Guadalupe, Mail Code 111-2A, Austin, Texas 78701, or] operating in compliance with Chapter 562, the Commissioner by P.O. Box 12030[149104], Austin, Texas 78711-2030 [78714-9104]. order may require the program operator or marketer to submit to The transmittal letter must [shall] contain the following information: the Commissioner any advertisement, solicitation, or marketing materials or other document requested by the Commissioner. (1) - (5) (No change.) Insurance Code §36.001 provides that the Commissioner may (6) an attachment explaining all variable material; the vari- adopt any rules necessary and appropriate to implement the able material must [shall] be identified with brackets on the advertise- powers and duties of TDI under the Insurance Code and other ment(s). laws of this state. (b) All advertisements must [shall] be submitted in duplicate. CROSS-REFERENCE TO STATUTE. Sections 21.102 and (c) (No change.) 21.104 implement Insurance Code, Chapter 541, Subchapter B-1. Sections 21.102, 21.104, and 21.120 implement Insurance (d) An advertisement subject to requirements regarding filing Code §562.052. of the advertisement with the department for review under the Insur- ance Code or Texas Administrative Code, Title 28, and that is the same §21.102. Scope. as or substantially similar to an advertisement previously reviewed and For the purpose of this division: accepted by the department, is not required to be filed for review. For the purposes of this subsection, "substantially similar" means the new (1) - (2) (No change.) advertisement does not introduce any substantive content not previ- (3) "Policy" includes any policy, plan, certificate, contract, ously reviewed, nor does it eliminate any content satisfying required evidence of coverage, agreement, statement of coverage, cover note, disclosures or that would render the advertisement noncompliant with certificate of policy, rider or endorsement which provides, limits, or §21.112 of this title [division] (relating to General Prohibition). A per- controls insurance for any kind of loss or expense or because of the son or entity wishing to introduce a "substantially similar" advertise- continuation, impairment, or discontinuance of human life or annuity ment must file a signed written statement with the department at the ad- benefits issued by an insurer, [viatical or] life settlement contracts, pre- dress identified in subsection (a) of this section. Such statement must mium finance agreements, or any other product offered by an insurer identify or illustrate the changes to be introduced, and list the previ- and regulated by the Department. ously reviewed and accepted form(s) in which those changes would appear, including the form number(s) and the department's filing num- (4) "Insurer" includes any individual, partnership, corpora- ber(s) under which those forms were previously reviewed and accepted. tion, organization, or person issuing evidence of coverage or insurance, or any other entity acting as an insurer to which this division can be (e) The following rules require that advertisements be filed made legally applicable including, as applicable, Health Maintenance with the department for review at or prior to use: Organizations, and all insurance companies doing the business of insur- (1) §3.1744 [§3.1707] of this title (relating to Advertising, ance in this state such as capital stock companies, mutual companies, Sales and Solicitation Materials; Filing Prior to Use), regarding title insurance companies, fraternal benefits societies, local mutual aid [viatical and] life settlement contracts; associations, local mutual burial associations, statewide mutual assess- ment companies, county mutual and farm mutual insurance companies, (2) - (4) (No change.) Lloyds' plan companies, reciprocal or interinsurance exchanges, stipu- The agency certifies that legal counsel has reviewed the pro- lated premium insurance companies, and group hospital service com- posal and found it to be within the state agency's legal authority panies and, as can be made appropriate, premium finance companies, to adopt. and [viatical and] life settlement providers. (5) "Agent" includes each agent, solicitor, counselor, and Filed with the Office of the Secretary of State on June 7, 2021. soliciting representative of an insurer and, as can be made appropriate, TRD-202102193 [viatical and] life settlement brokers and provider representatives.

PROPOSED RULES June 18, 2021 46 TexReg 3705 James Person relation to the facts or applicable law for denial of a claim or for the General Counsel offer of a compromise settlement; Texas Department of Insurance (10) - (12) (No change.) Earliest possible date of adoption: July 18, 2021 For further information, please call: (512) 676-6584 (13) undertaking to enforce a full and final release from a policyholder when, in fact, only a partial payment has been made. (This ♦ ♦ ♦ provision will [shall] not prevent or have application to the compromise settlement of doubtful or disputed claims.); SUBCHAPTER C. UNFAIR CLAIMS (14) - (16) (No change.) SETTLEMENT PRACTICES (17) with respect to the Texas personal auto policy, 28 TAC §§21.203 - 21.205 delaying or refusing [to delay or refuse] settlement of a claim solely because there is other insurance of a different type available to satisfy STATUTORY AUTHORITY. TDI proposes amendments to partially or entirely the loss forming the basis of that claim. The §§21.203 - 21.205 under Insurance Code Chapter 542.014 and claimant who has a right to recover from either or both insurers is §36.001. entitled to choose under which coverage and in what order payment Insurance Code Chapter 542.014 provides that the Commis- is to be made; sioner may adopt rules necessary to implement the Unfair Claim (18) a violation of [the] Insurance Code Chapter 542[, Ar- Settlement Practices Act. ticle 21.55,] by an insurer subject to its provisions; or Insurance Code §36.001 provides that the Commissioner may (19) (No change.) adopt any rules necessary and appropriate to implement the powers and duties of TDI under the Insurance Code and other §21.204. Special Claim Reports and Statistical Plan. laws of this state. If the department finds [it should be found by the Texas Department of CROSS-REFERENCE TO STATUTE. Section 21.203 imple- Insurance] based on complaint or complaints of unfair claim settlement ments Insurance Code §542.003. Section 21.204 implements practices as described in §21.203 of this title (relating to Unfair Claim Insurance Code §542.006. Section 21.205 implements Insur- [Claims] Settlement Practices), that an insurer should be subjected to ance Code §542.007. closer supervision with respect to such practices, it may require the [such] insurer to file a report at such periodic intervals as the department §21.203. Unfair Claim Settlement Practices. deems necessary. The [Such] periodical reports must [shall] contain the following information: No insurer may [shall] engage in unfair claim settlement practices. Un- fair claim settlement practices means committing or performing any of (1) - (2) (No change.) the following: (3) the total number of written claims settled, including the (1) (No change.) original amount filed for by the insured, the settled amount, and the classification by [of] line of insurance of each individual settled claim, (2) failing to acknowledge with reasonable promptness for the past 12-month period or from the date of the insurer's last peri- pertinent communications with respect to claims arising under its odic report, whichever time is shorter; policies, provided that "pertinent communications" will [shall] exclude written communications that are direct responses to specific inquiries (4) (No change.) made by the insurer after initial report of a claim. An acknowledgment (5) the total number of complaints, their classification by within 15 business days is presumed to be reasonably prompt; line of insurance, the nature of each complaint, the disposition of these (3) - (5) (No change.) complaints, and the time it took to process each complaint. Such peri- odic reports must [shall] be filed with the department [State Board of (6) failure of any insurer to maintain, in substantial com- Insurance and the commissioner of insurance]. pliance with §21.2504 of this title (relating to Complaint Record; Re- quired Elements; Explanation and Instructions), a complete record of §21.205. Minimum Standard of Performance. all complaints, as that term is defined in §21.202(4) of this title (relat- All insurers must [shall] maintain their affairs so that no unfair claims ing to Definitions), which it has received during the preceding three settlement practices are committed and the minimum standard of per- years or since the date of its most recent financial examination by the formance for all insurers (as that term is used in [the] Insurance Code Commissioner of Insurance [commissioner of insurance], whichever Chapter 542, Subchapter A[, Article 21.21-2]) is to comply with the time is shorter. For purposes of this section, "substantial compliance" provisions of §21.203 of this title (relating to Unfair Claims Settlement has the meaning set out in §21.2503 of this title (relating to Compliance Practices). Standard); The agency certifies that legal counsel has reviewed the pro- (7) (No change.) posal and found it to be within the state agency's legal authority (8) not attempting in good faith to promptly settle to adopt. [promptly] claims where liability has become reasonably clear under one portion of the policy in order to influence settlement under other Filed with the Office of the Secretary of State on June 7, 2021. portions of the policy coverage. (This provision does not apply to those TRD-202102194 situations where payment under one portion of coverage constitutes James Person evidence of liability under another portion of coverage.); General Counsel (9) failing to promptly provide [promptly] to a policy- Texas Department of Insurance holder a reasonable explanation of the basis in the insurance policy in Earliest possible date of adoption: July 18, 2021 For further information, please call: (512) 676-6584

46 TexReg 3706 June 18, 2021 Texas Register ♦ ♦ ♦ James Person General Counsel SUBCHAPTER D. STATISTICAL AGENTS Texas Department of Insurance 28 TAC §21.301 Earliest possible date of adoption: July 18, 2021 For further information, please call: (512) 676-6584 STATUTORY AUTHORITY. TDI proposes amendments to §21.301 under Insurance Code §§38.207and 36.001. ♦ ♦ ♦ Insurance Code §38.207 provides that the Commissioner may SUBCHAPTER E. UNFAIR DISCRIMINATION adopt rules necessary to accomplish the purposes of Chapter 38, Subchapter E. BASED ON SEX OR MARITAL STATUS Insurance Code §36.001 provides that the Commissioner may 28 TAC §21.403, §21.408 adopt any rules necessary and appropriate to implement the STATUTORY AUTHORITY. TDI proposes amendments to powers and duties of TDI under the Insurance Code and other §21.403 and §21.408 under Insurance Code §541.401 and laws of this state. §36.001. CROSS-REFERENCE TO STATUTE. Section 21.301 imple- Insurance Code §541.401 provides that the Commissioner may ments Insurance Code Chapter 38, Subchapter E. adopt and enforce rules necessary to accomplish the purpose of §21.301. Performance Standards for Designated Statistical Agent. Chapter 541, which is to regulate trade practices in the business of insurance by defining or determining trade practices that are (a) Definitions. The following words and terms when used unfair methods of competition or deceptive acts or practices and in this section [shall] have the following meanings unless the context prohibiting them. clearly indicates otherwise. Insurance Code §36.001 provides that the Commissioner may (1) - (3) (No change.) adopt any rules necessary and appropriate to implement the (4) Designated statistical agent--An organization duly des- powers and duties of TDI under the Insurance Code and other ignated by or contracted with the Commissioner [commissioner] to laws of this state. gather insurance data from insurers according to a statistical plan. CROSS-REFERENCE TO STATUTE. Sections 21.403 and (5) Statistical plan--A document promulgated by the 21.408 implement Insurance Code §544.002. Commissioner [commissioner] that specifies the information to be §21.403. Definitions. reported, the insurers who must report the information, and the proce- dures and format for the information to be reported to the designated The following words and terms, when used in this subchapter, [shall] statistical agent. have the following meanings unless the context clearly indicates oth- erwise. (b) Each designated statistical agent must [shall] comply with the agreed upon standards of performance. (1) Insurer--Includes [Shall include], but is not be limited to, all life, health, and accident companies; [,] capital stock compa- (c) If, after notice and the opportunity for a hearing, the nies; [,] mutual assessment life insurance companies; [,] statewide mu- Commissioner [commissioner] determines that a designated statistical tual assessment corporations; [,] county mutual insurance companies; agent has failed to comply with the agreed upon standards of per- [,] local mutual aid associations; [,] farm mutual insurance compa- formance, the Commissioner [commissioner] may impose sanctions nies; [,] mutual or natural premium life or casualty insurance compa- against the designated statistical agent under [the Texas] Insurance nies; [,] general casualty companies; [,] Mexican casualty companies; Code Chapter 82 [Annotated, Article 1.10 §7], including but not [,] Lloyds, reciprocal, or inter-insurance exchanges; [,] nonprofit hos- limited to an administrative monetary penalty under [Texas] Insurance pital, medical, or dental service corporations including, but not lim- Code Chapter 84 [Annotated, Article 1.10E]. ited to, companies subject to the Insurance Code Chapter 842 [chapter (d) In determining the amount of the administrative monetary 20], as amended; [,] stipulated premium insurance companies; [,] fi- penalty, the Commissioner will [commissioner shall] consider the delity, guaranty, and surety companies; [,] title insurance companies; ,] following factors described in this subsection. health maintenance organizations; [, non-profit legal service corpora- tions,] and all other organizations, corporations, or persons engaged in (1) - (7) (No change.) the business of insurance, whether or not named previously; provided, (8) Any other consideration that the Commissioner however, these sections do [shall] not apply to any society, company, [commissioner] may deem appropriate. or other insurer whose activities are by statute exempt from the regu- lation of the department [board] and which are entitled by statute to an (e) - (f) (No change.) exemption certificate from the department [board] in evidence of their The agency certifies that legal counsel has reviewed the pro- exempt status; nor to fraternal benefit societies. posal and found it to be within the state agency's legal authority (2) Policy--Includes [Shall include] any insurance policy, to adopt. plan, certificate or subscriber agreement, statement of coverage, binder, rider, endorsement, or application, if attached, offered by any person or Filed with the Office of the Secretary of State on June 7, 2021. entity engaged in the business of insurance or board-regulated prepaid TRD-202102195 services in this state. §21.408. Amendments. The subject matters covered by this subchapter [these sections] treat only a portion of the subject matters contemplated by [the] Insurance

PROPOSED RULES June 18, 2021 46 TexReg 3707 Code Chapter 541[, Article 21.21,] and are not exhaustive on this sub- illness, and specific learning disabilities. As used in [the] Insurance ject; therefore, these sections remain open for corrections and future Code §544.002 [,] [Article 21.21-3], the words "disability or partial additions as the needs may arise or procedures require. disability" ["handicap or partial handicap"] mean a physical or mental impairment which substantially limits one or more of the person's ma- The agency certifies that legal counsel has reviewed the pro- jor life activities. posal and found it to be within the state agency's legal authority to adopt. §21.704. Unfair Discrimination. (a) General propositions. Filed with the Office of the Secretary of State on June 7, 2021. (1) No inquiry in an application for health or life insurance TRD-202102196 coverage, or in an investigation conducted by or on behalf of an insurer James Person in connection with an application for such coverage, may [shall] be General Counsel directed toward determining the proposed insured's sexual orientation. Texas Department of Insurance (2) (No change.) Earliest possible date of adoption: July 18, 2021 For further information, please call: (512) 676-6584 (3) Insurers may [shall] not direct, require, or request in- surance support organizations to investigate, directly or indirectly, the ♦ ♦ ♦ sexual orientation of a proposed insured or a beneficiary. SUBCHAPTER H. UNFAIR DISCRIMINATION (b) Medical/lifestyle applications, questions, and underwriting standards. 28 TAC §§21.701, 21.703 - 21.705 (1) No question may [shall] be used which is designed to STATUTORY AUTHORITY. TDI proposes amendments to establish the sexual orientation of the proposed insured. §§21.701 and 21.703 - 21.705 under Insurance Code §541.401 and §36.001. TDI proposes amendments to §21.705 under (2) - (6) (No change.) Insurance Code §545.003. (7) No adverse underwriting decision may [shall] be made Insurance Code §541.401 provides that the Commissioner may because medical records or a report from any other source shows that adopt and enforce rules necessary to accomplish the purpose of the proposed insured has demonstrated acquired immune deficiency Chapter 541, which is to regulate trade practices in the business syndrome-related concerns by seeking counseling from health care pro- of insurance by defining or determining trade practices that are fessionals. This paragraph does not apply to a proposed insured seeking unfair methods of competition or deceptive acts or practices and or having sought treatment. prohibiting them. (8) Whenever a proposed insured is requested to take an Insurance Code §545.003 provides that the Commissioner may HIV-related test in connection with an application for insurance, the adopt rules to be followed for an HIV-related test requested or use of such a test must be revealed to the proposed insured or to any required by an issuer. other person legally authorized to consent to such a test, and his or her written authorization obtained. The form of such authorization must Insurance Code §36.001 provides that the Commissioner may be printed on a separate piece of paper and must contain the specific adopt any rules necessary and appropriate to implement the language in the form, entitled Notice and Consent for HIV-Related powers and duties of TDI under the Insurance Code and other Testing, which the Texas Department of Insurance has adopted and in- laws of this state. corporated herein by reference, effective January 7, 1997. This form CROSS-REFERENCE TO STATUTE. Section 21.701 imple- is published by the Texas Department of Insurance and copies of this ments Insurance Code §541.001. form are available from and on file at the offices of the [Life/Health Group, Mail Code 106-1E, of the] Texas Department of Insurance, Life Section 21.703 implements Insurance Code §544.002. Sec- and Health Lines, MC-LH-LHL [at 333 Guadalupe], P.O. Box 12030 tion 21.704 implements Insurance Code Chapter 545. Section [149104], Austin, Texas 78711-2030 [78714-9104]. Other information 21.705 implements Insurance Code §545.052. may be included so long as it is not misleading or violative of any appli- §21.701. Purpose. cable law or rule. Testing may be required only on a nondiscriminatory basis. No adverse underwriting decision shall be made on the basis of The purpose of these sections is to identify specific acts or practices such a positive HIV-related test unless the established test protocol as which are prohibited by [the] Insurance Code §541.057 and §544.002[, provided by §21.705 of this title (relating to Nondiscriminatory Testing Article 21.21, §4(7), and the Insurance Code, Article 21.21-3]. for Human Immunodeficiency Virus) has been followed. §21.703. Definitions Concerning Discrimination. (9) (No change.) For the purpose of §21.702 of this title (relating to Unfairly Discrimi- (10) The result of an HIV-related test is [shall be] confi- natory Acts or Practices) and to effectuate the objectives of [the] Insur- dential. ance Code §544.002[, Article 21.21-3], the definitions specified in this (A) - (B) (No change.) section are applicable. The words "physical or mental impairment" in- clude, but are not limited to, any psychological disorder or condition, (C) Written notice of a positive HIV-related test result cosmetic disfigurement or anatomical loss affecting one or more of the must [shall] be provided by the insurer to either: following bodily systems: neurological, musculoskeletal, special sense (i) - (ii) (No change.) organs, respiratory and speech organs, cardiovascular, reproductive, di- gestive, genito-urinary, hemic and lymphatic, skin, and endocrine sys- [(c) Effective date. This section becomes effective February 1, tem or any mental or physiological disorder such as intellectual disabil- 1988, except for paragraphs (8) and (9) of subsection (b) of this section, ity [mental retardation], organic brain syndrome, emotional or mental which become effective January 7, 1997.]

46 TexReg 3708 June 18, 2021 Texas Register (c) [(d)] Severability. If any provision of this section or the (e) Declaration of unfair practice. The failure to comply with application thereof to any person or circumstance is held invalid for the provisions of this section constitutes [shall constitute] unfair com- any reason, the invalidity shall not affect the other provisions or any petition and unfair practices according [pursuant] to [the] Insurance other application of the provisions of this section which can be given Code Chapter 541[, Article 21.2,] and is [shall be] subject to the pro- effect without the invalid provisions or application. To this end, all visions of that chapter [article]. provisions of this subchapter are declared to be severable. The agency certifies that legal counsel has reviewed the pro- §21.705. Nondiscriminatory Testing for Human Immunodeficiency posal and found it to be within the state agency's legal authority Virus. to adopt. A proposed insured for life or health and accident insurance, or for coverage by a company licensed under [the] Insurance Code[,] Chap- Filed with the Office of the Secretary of State on June 7, 2021. ter 842 [20], or with a licensed health maintenance organization may TRD-202102198 be required to be tested for the presence of the human immunodefi- James Person ciency virus (HIV). Requiring such testing is not unfair discrimination General Counsel provided: Texas Department of Insurance (1) - (3) (No change.) Earliest possible date of adoption: July 18, 2021 The agency certifies that legal counsel has reviewed the pro- For further information, please call: (512) 676-6584 posal and found it to be within the state agency's legal authority ♦ ♦ ♦ to adopt. SUBCHAPTER J. PROHIBITED TRADE Filed with the Office of the Secretary of State on June 7, 2021. PRACTICES TRD-202102197 James Person 28 TAC §§21.1004 - 21.1007 General Counsel STATUTORY AUTHORITY. TDI proposes amendments to Texas Department of Insurance §§21.1004 - 21.1007 under Insurance Code §§541.401, Earliest possible date of adoption: July 18, 2021 544.304, 544.354, and 36.001. For further information, please call: (512) 676-6584 Insurance Code §541.401 provides that the Commissioner may ♦ ♦ ♦ adopt rules necessary to accomplish the purpose of Chapter 541, which is to regulate trade practices in the business of insur- SUBCHAPTER I. PROHIBITED AGENT ance by defining or determining trade practices that are unfair methods of competition or deceptive acts or practices and pro- PRACTICES hibiting them. 28 TAC §21.901 Insurance Codes §§544.304 provides that the Commissioner STATUTORY AUTHORITY. TDI proposes amendments to adopt rules necessary to implement Insurance Code Chapter §21.901 under Insurance Code §541.401 and §36.001. 544, Subchapter G. Insurance Code §541.401 provides that the Commissioner may Insurance Code §544.354 provides that the Commissioner adopt adopt rules necessary to accomplish the purpose of Chapter rules necessary to accomplish the purpose of Insurance Code 541, which is to regulate trade practices in the business of insur- Chapter 544, Subchapter G. ance by defining or determining trade practices that are unfair Insurance Code §36.001 provides that the Commissioner may methods of competition or deceptive acts or practices and pro- adopt any rules necessary and appropriate to implement the hibiting them. powers and duties of TDI under the Insurance Code and other Insurance Code §36.001 provides that the Commissioner may laws of this state. adopt any rules necessary and appropriate to implement the CROSS-REFERENCE TO STATUTE. Section 21.1004 imple- powers and duties of TDI under the Insurance Code and other ments Insurance Code §551.107. Section 21.1005 implements laws of this state. Insurance Code Chapter 541. Section 21.1006 and §21.1007 CROSS-REFERENCE TO STATUTE. Section 21.901 imple- implement Insurance Code §§541.001, 541.003, and 541.401. ments Insurance Code §543.001. §21.1004. Restrictions on Certain Claims in Residential Property In- §21.901. Prohibition Against Solicitation or Acceptance of Power of surance and Transition Plan Requirement. Attorney. (a) - (b) (No change.) (a) - (c) (No change.) (c) Premium consequence prohibited. An insurer may not (d) Premium finance company provisions. The provisions of assign any premium consequence through a premium surcharge or this section will [shall] not prohibit any person subject to the provisions claims-free program based on filed claims occurring on or after of this section from accepting applications for premium financing on September 1, 2005, in whole or in part, due to: premium financing agreement forms that include a power of attorney in (1) - (2) (No change.) favor of the premium financing company for purposes of canceling a fi- nanced insurance contract, so long as the power-of-attorney provisions (3) a claim that an insurer is prohibited from using under comply with statutory provisions of [the] Insurance Code[,] Chapter Insurance Code [Article 5.35-4 §3 (recodified as] §544.353[, HB 2018 651 [24], concerning the financing of insurance premiums. 79th Legislature, Regular Session)].

PROPOSED RULES June 18, 2021 46 TexReg 3709 (d) Claims-free programs. Claims-free programs must be (7) Water damage repair certificate form (PC327 WDR-1). based on sound actuarial principles. Actuarial support as specified in An inspector must use the water damage repair certificate form (PC327 §5.9332 of this title (relating to Categories of Supporting Information WDR-1) found on TDI's website at www.tdi.texas.gov [, or by re- [Filing Requirements]) must be filed with the department in the event questing the form from the Property and Casualty Lines Office, MC such program is introduced or changed. 104-PC, Texas Department of Insurance, P.O. Box 149104, Austin, Texas, 78714-9104]. TDI adopts by reference the water damage repair (e) (No change.) certificate form (PC327 WDR1) that an inspector must use, subject to [(f) Transition plan required. If an insurer introduces a new the provisions of this subchapter and Insurance Code Chapter 544. Per- method or changes an existing method of considering, utilizing, re- sons using the form should confirm that they are using the most recent viewing, or otherwise evaluating a policyholder's claim experience, in- online version before giving a copy to the property owner. cluding a tier classification, which results in an increase of 10% or more (8) TDI has information about inspectors who may have in premium for any policyholder, a transition plan is required and must the knowledge and experience in water damage remediation to inspect be filed with the department. The transition plan shall:] and certify the proper remediation of an appliance-related claim. A list [(1) be reasonable and promote market and rate stability;] of inspectors can be obtained from TDI's website or by requesting it from the TDI Property and Casualty Lines Office. [(2) take into consideration any changes other than claims history that may impact overall rates and premiums; and] (e) - (f) (No change.) [(3) moderate or otherwise mitigate overall rate and pre- The agency certifies that legal counsel has reviewed the pro- mium increases for individual policyholders over one or several re- posal and found it to be within the state agency's legal authority newal periods.] to adopt. [(g) Expiration clause. Subsection (f) of this section expires Filed with the Office of the Secretary of State on June 7, 2021. January 1, 2008.] TRD-202102199 §21.1005. Prohibition of Underwriting Guidelines Based on the Pur- James Person chase of Types or Amounts of Coverage in Excess of Minimum Limits Liability Coverage. General Counsel Texas Department of Insurance (a) Prohibition. Effective September 1, 1995, an insurer or Earliest possible date of adoption: July 18, 2021 agent may [shall] not use an underwriting guideline for private pas- For further information, please call: (512) 676-6584 senger automobile insurance based, in whole or in part, on whether an insured or applicant purchases types or amounts of coverage in excess ♦ ♦ ♦ of the minimum automobile liability coverage required to show proof of financial responsibility under the Motor Vehicle Safety Responsibil- SUBCHAPTER K. CERTIFICATION OF ity Act, Transportation Code, Chapter 601 [Texas Safety Responsibility Law, Texas Civil Statutes, Article 6701h]. The failure to comply with CREDITABLE COVERAGE this section constitutes an unfair trade practice in the business of insur- 28 TAC §21.1101, §21.1110 ance in violation of [the] Insurance Code Chapter 541[, Article 21.21], and is [shall be] subject to the provisions thereof. STATUTORY AUTHORITY. TDI proposes amendments to §21.1101 and §21.1110 under Insurance Code §§845.004, (b) - (c) (No change.) 846.005, and 36.001. §21.1006. Prohibition Against Declining to [To] Write Residential Insurance Code §845.004 provides that the Commissioner Property Insurance Based on the Age or Value of the Property. adopt rules necessary to implement Insurance Code Chapter (a) (No change.) 845, Subchapter A - D. (b) An insurer may not decline to write residential property Insurance Code §846.005 provides that the Commissioner may insurance based on the age of the property sought to be insured. This adopt rules necessary to augment and implement Insurance provision does not prohibit an insurer from declining to write coverage Code Chapter 846. based on physical conditions of the property, including wiring, heating, Insurance Code §36.001 provides that the Commissioner may air conditioning, plumbing, and roofing. This provision does [shall] not adopt any rules necessary and appropriate to implement the prohibit the Texas Windstorm Insurance Association from requiring, powers and duties of TDI under the Insurance Code and other in accordance with the provisions of Chapter 2210 [Article 21.49] of laws of this state. the Insurance Code, different building code standards to qualify for coverage based on the date that the structure was constructed, repaired, CROSS-REFERENCE TO STATUTE. Section 21.1101 imple- or additions were made. ments Insurance Code §1205.002 and §1205.004. Section 21.1110 implements Insurance Code §1205.002 and §1357.056. (c) (No change.) §21.1101. Definitions. [(d) This rule takes effect September 1, 1997.] The following words and terms, when used in this subchapter, [shall] §21.1007. Restrictions on Using Guidelines Based on a Water Dam- have the following meanings, unless the context clearly indicates oth- age Claim, Previous Mold Damage, or a Mold Damage Claim. erwise. (a) - (c) (No change.) (1) - (3) (No change.) (d) This subsection contains provisions related to underwriting (4) Commissioner--The Commissioner [commissioner] of and rating based on a previous appliance-related claim. Insurance [insurance of the State of Texas]. (1) - (6) (No change.) (5) Creditable coverage--

46 TexReg 3710 June 18, 2021 Texas Register (A) An individual's coverage is creditable if the cover- (iv) a stipulated premium insurance company oper- age is provided under: ating under Insurance Code[,] Chapter 884 [22]; or (i) a self-funded or self-insured employee welfare (v) (No change.) benefit plan that provides health benefits and that is established in ac- (B) to the extent permitted by the Employee Retirement cordance with the Employee Retirement Income Security Act of 1974 Income Security Act of 1974 (29 U.S.C. [USC] Section 1001 et seq.), (29 U.S.C. [USC] Section 1001 et seq.); a plan that is offered by: (ii) - (iii) (No change.) (i) a multiple employer welfare arrangement as de- (iv) Part A or Part B of Title XVIII of the Social Se- fined by Section 3, Employee Retirement Income Security Act of 1974 curity Act (42 U.S.C. [USC] Section 1395c et seq.); (29 U.S.C. [USC] Section 1002), and operating under Insurance Code Chapter 846 [, Article 3.95-1 et seq.]; or (v) Title XIX of the Social Security Act (42 U.S.C. [USC] Section 1396 et seq.), other than coverage consisting solely (ii) (No change.) of benefits under Section 1928 of that Act (42 U.S.C. [USC] Section (C) a plan issued by any other entity not licensed under 1396s); the Insurance Code or another insurance law of this state that contracts (vi) Chapter 55 of Title 10, United States Code (10 directly for health care services on a risk-sharing basis, including an U.S.C. [USC] Section 1071 et seq.); entity that contracts for health care services on a capitation basis. (vii) - (viii) (No change.) (7) (No change.) (ix) a health plan offered under Chapter 89 of Title (8) HMO--Any person governed by the Texas Health 5, United States Code (5 U.S.C. [USC] Section 8901 et seq.); Maintenance Organization Act, Insurance Code[,] Chapter 843 [20A], including: (x) (No change.) (A) a person defined as a health maintenance organiza- (xi) a health benefit plan under Section 5(e) of the tion under Insurance Code §843.002 [Section 2 of the Texas Health Peace Corps Act (22 U.S.C. [USC] Section 2504(e)); and Maintenance Organization Act]; (xii) (No change.) (B) an approved nonprofit health corporation that is cer- (B) Creditable coverage does not include: tified under Occupations Code Chapter 162 [Section 5.01(a), Medical Practice Act, Article 4495b, Texas Civil Statutes], and that holds a cer- (i) - (v) (No change.) tificate of authority issued by the Commissioner [commissioner] under (vi) credit-only insurance; Insurance Code Chapter 844 [, Article 21.52F]; (vii) - (viii) (No change.) (C) a statewide rural health care system under Insurance Code §845.052 and §845.054 [, Article 20C.05]; or (ix) if offered separately, coverage that provides lim- ited-scope dental or vision benefits; (D) a nonprofit corporation created and operated by a community center under Chapter 534, Subchapter C, Health and Safety (x) if offered separately, long-term care coverage or Code. benefits, nursing home care coverage or benefits, home health care cov- erage or benefits, community-based care coverage or benefits, or any (9) Issuer of a health benefit plan--An insurance com- combination of those coverages or benefits; pany,[;] a group hospital service corporation operating under Insurance Code[,] Chapter 842, [20;] a fraternal benefit society operating under (xi) - (xiii) (No change.) Insurance Code[,] Chapter 885, [10;] a stipulated premium insurance (xiv) Medicare supplemental health insurance as de- company operating under Insurance Code[,] Chapter 884, [22;] a fined under Section 1882(g)(1), Social Security Act (42 U.S.C. [USC] Lloyd's plan operating under Insurance Code[,] Chapter 941, [18;] Section 1395ss), coverage supplemental to the coverage provided un- a reciprocal or interinsurance exchange operating under Insurance der Chapter 55 of Title 10, United States Code (10 U.S.C. [USC] Sec- Code[,] Chapter 942, [19;] or an HMO that issues a health benefit plan. tion 1071 et seq.), and similar supplemental coverage provided under a (10) - (12) (No change.) group plan, but only if such insurance or coverages are provided under a separate policy, certificate, or contract of insurance. (13) Qualified beneficiary--As defined in Section 4980B(g)(1) of the Internal Revenue Code (26 U.S.C. [USC] Section (6) Health benefit plan--A plan that provides benefits for 4980B(g)(1)). medical or surgical expenses incurred as a result of a health condition, accident, or sickness, including: [(14) Risk pool--The Texas Health Insurance Risk Pool es- tablished under Insurance Code, Article 3.77, or other similar arrange- (A) an individual, group, blanket, or franchise insur- ments in other states.] ance policy or insurance agreement, a group hospital service contract, or an individual or group evidence of coverage that is offered by: (14) [(15)] Short-term limited duration insurance--Health insurance coverage provided under a contract with an issuer that has (i) (No change.) an expiration date specified in the contract (taking into account any ex- (ii) a group hospital service corporation operating tensions that may be elected by the policyholder without the issuer's under Insurance Code[,] Chapter 842 [20]; consent) that is within 12 months of the date the contract becomes ef- fective. (iii) a fraternal benefit society operating under Insur- ance Code[,] Chapter 885 [10]; (15) [(16)] Waiting period--A period of time established by an employer that must pass before an individual who is a potential en- rollee in a health benefit plan is eligible to be covered for benefits. If

PROPOSED RULES June 18, 2021 46 TexReg 3711 an employee or dependent enrolls as a late enrollee, any period before Insurance Code §36.001 provides that the Commissioner may such late enrollment is not a waiting period. If an individual seeks and adopt any rules necessary and appropriate to implement the obtains coverage in the individual market, any period after the date the powers and duties of TDI under the Insurance Code and other individual files a substantially complete application for coverage and laws of this state. before the first day of coverage is a waiting period. CROSS-REFERENCE TO STATUTE. Section 21.2001 imple- §21.1110. Form CCC. ments Insurance Code §1504.002. Section 21.2006 implements (a) Form CCC relating to Insurance Code §1205.002 and Insurance Code §1504.002 and §1504.054. Section 21.2010 im- §1357.056 [, Article 21.52G] for certification and disclosure of cov- plements Insurance Code §1504.052. Section 21.2011 imple- erage under a health benefit plan is included in subsection (b) of this ments Insurance Code §1504.002 and §1504.003. section in its entirety and has been filed with the Office of the Secretary §21.2001. Definitions. of State. [The figure can be obtained from the Texas Department of Insurance Life /Health Group, MC 106-1As, P.O. Box 149104, Austin, The following words and terms, when used in this subchapter, [shall] Texas 78711-2030]. have the following meanings, unless the context clearly indicates oth- erwise. (b) (No change.) (1) Actuarial assumptions-- [-] The value of a parameter, or The agency certifies that legal counsel has reviewed the pro- other choice, having an impact on an estimate of a future cost or other posal and found it to be within the state agency's legal authority actuarial item under evaluation. to adopt. (2) Actuarially equivalent-- [-] Producing equal actuarial Filed with the Office of the Secretary of State on June 7, 2021. present value, determined as of a given date with each value based on the same set of actuarial assumptions. TRD-202102200 James Person (3) Actuarial present value-- [-]The value of an amount or General Counsel series of amounts payable or receivable at various times, determined Texas Department of Insurance as of a given date by the application of a particular set of actuarial Earliest possible date of adoption: July 18, 2021 assumptions. For further information, please call: (512) 676-6584 (4) Child-- [-] ♦ ♦ ♦ (A) - (B) (No change.) SUBCHAPTER L. MEDICAL CHILD (5) Child support agency-- [-] As defined in [the] Family Code[,] §101.004. SUPPORT, UNFAIR PRACTICES (6) Custodial parent-- [-] 28 TAC §§21.2001, 21.2006, 21.2010, 21.2011 (A) - (B) (No change.) STATUTORY AUTHORITY. TDI proposes amendments to (7) Health insurer-- [-] Any insurance company, stipulated §§21.2001, 21.2006, 21.2010, and 21.2011 under Insurance premium company, fraternal benefit society, group hospital service cor- Code §§541.401, 846.005, 1301.007, 1355.258, 1504.002, poration, or HMO that delivers or issues for delivery an individual, 1701.060, and 36.001. group, blanket, or franchise insurance policy or insurance agreement, Insurance Code §541.401 provides that the Commissioner may a group hospital service contract, or an evidence of coverage that pro- adopt rules necessary to accomplish the purpose of Chapter vides benefits for medical or surgical expenses incurred as a result of 541, which is to regulate trade practices in the business of insur- an accident or sickness. ance by defining or determining trade practices that are unfair (8) Insurer-- [-] methods of competition or deceptive acts or practices and pro- hibiting them. (A) (No change.) Insurance Code §846.005 provides that the Commissioner may (B) a governmental entity subject to: adopt rules necessary to augment and implement Insurance (i) Insurance Code, Articles 3.51-1, [3.51-2,] Code Chapter 846. 3.51-4, or 3.51-5 [or 3.51-5A]; or Insurance Code §1301.007 provides that the Commissioner (ii) [Section 1, Chapter 123, Acts of the 60th Leg- adopt rules necessary to implement Insurance Code Chapter islature, 1967 (the] Insurance Code Chapter 1578 [, Article 3.51-3]); 1301. Local Government Code, Chapter 177; or Insurance Code §1355.151 Insurance Code §1355.258 provides that the Commissioner or §1364.101; adopt rules necessary to implement Insurance Code Chapter (C) a multiple employer welfare arrangement, as that 1355, Subchapter F. term is defined by [the] Insurance Code §§846.001, 846.002, 846.202, Insurance Code §1504.002 provides that the Commissioner and 846.251 [, Article 3.95-1]; or adopt rules necessary to implement Insurance Code Chapter (D) a health insurer that issues coverage for a group 1504, including rules that define acts that constitute unfair health plan, as defined by the Employee Retirement Income Security or deceptive practices under Insurance Code Chapter 541, Act of 1974, §607(1) (29 U.S.C. [USC]§1167). Subchapter I. (9) Medical assistance-- [-] Medical assistance under the Insurance Code §1701.060 provides that the Commissioner may state Medicaid program. adopt rules necessary to implement the purposes of Insurance Code Chapter 1701.

46 TexReg 3712 June 18, 2021 Texas Register (10) Medical support order-- [-] A court or administrative (4) (No change.) judgment, decree, or order whether temporary, final, or subject to mod- (5) if the coverage is not identical, the certification must ification for the benefit of a child that provides for health coverage of [shall] also be signed by a qualified actuary or an officer of the insurer the child. who attests that the coverage provided is at least actuarially equivalent (11) Policy-- [-] Includes an individual, blanket, or fran- to or greater than the coverage provided to other dependent children chise insurance agreement or contract, a certificate issued under a group under the policy under which coverage is required by a medical sup- policy, a group hospital service contract, or evidence of coverage issued port order. The determination of actuarial equivalence of the coverages by a health maintenance organization. must [shall] take into account plan design (e.g., copayments, coinsur- ance, deductibles, etc.) and scope of benefits. The certification must (12) Qualified actuary-- [-] An actuary who is either: [shall] identify any other variables considered in the analysis relating (A) - (B) (No change.) to the actuarial equivalence of the coverages. §21.2006. Notice of Availability of Continuation or Conversion Cov- §21.2011. Unfair or Deceptive Practices. erage. (a) A violation of §21.2002 of this title (relating to Prohibi- (a) For the purpose of providing notification to the custodial tion Against Denial of Enrollment), §21.2003 of this title (relating to parent under Insurance Codes §1504.054 [Article 3.96-5] and §21.2008 Requirements Concerning Adopted Children or Children Placed for of this title (relating to Information Provided by an Insurer), the cus- Adoption), §21.2004 of this title (relating to Enrollment of Child Who todial parent must [shall] notify the insurer of any change of address. Is the Subject of a Medical Support Order), §21.2005 of this title (re- If no such change of address is submitted by the custodial parent to lating to Prohibition on Cancellation or Nonrenewal), §21.2009 of this the insurer, then the insurer must [shall] comply with the provisions of title (relating to Submission and Payment of Claims), and §21.2010 of Insurance Code §1504.054 [Article 3.96-5] and §21.2008 of this title this title (relating to Prohibition on Service Area Restrictions) is [shall (relating to Information Provided by an Insurer) regarding notification be] considered an unfair or deceptive practice and will [shall] subject to the custodial parent if such notice is sent to the last known address the insurer to the penalties provided in [the] Insurance Code Chapter of the custodial parent. 541 [, Article 21.21] and other applicable [application] provisions of (b) The insurer must [shall] enroll or continue enrollment of the Insurance Code. the child on application of a parent of the child, a child support agency, (b) A violation of §21.2006 of this title (relating to Notice of or the child over 18 years of age. Availability of Continuation of Conversion Coverage), §21.2007 of §21.2010. Prohibition on Service Area Restrictions. this title (relating to Assignment of Medical Support Rights to State Agency), and §21.2008 of this title (relating to Information Provided (a) With respect to a child who lives outside the insurer's ser- by an Insurer) subjects [shall subject] the insurer to the penalties pro- vice area but inside the United States whose coverage under the policy vided in [the] Insurance Code Chapter 82 [, Article 1.10, §7] and other is required by a medical support order, an insurer must [shall] either: applicable provisions of the Insurance Code. (1) - (2) (No change.) The agency certifies that legal counsel has reviewed the pro- (b) If the policy contains preferred provider provisions for the posal and found it to be within the state agency's legal authority purposes of offering a network of preferred providers as defined in [the] to adopt. Insurance Code Chapter 1301 [Article 3.70-3C], and the insurer does not provide coverage under subsection (a)(2) of this section, reimburse- Filed with the Office of the Secretary of State on June 7, 2021. ment for services for a child who is the subject of a medical support or- TRD-202102201 der and lives outside the insurer's service area must [shall] be provided James Person at the preferred provider level of benefits. General Counsel (c) If the insurer provides coverage under subsection (a)(2) Texas Department of Insurance of this section, the coverage must [shall] include benefits identical to, Earliest possible date of adoption: July 18, 2021 greater than, or comparable to those provided to other dependent chil- For further information, please call: (512) 676-6584 dren covered by the policy under which coverage is required by a med- ical support order. ♦ ♦ ♦ (d) If the coverage is provided under subsection (a)(2) of this SUBCHAPTER M. MANDATORY BENEFIT section, the insurer must [shall] submit a certification to the Texas De- partment of Insurance. The certification must [shall] be filed with the NOTICE REQUIREMENTS Texas Department of Insurance, Life and Health Division by email to 28 TAC §21.2106 [email protected] [Life/Health/HMO Intake Unit, Mail Code 106- 1E, Texas Department of Insurance, P.O. Box 149104 Austin, Texas STATUTORY AUTHORITY. TDI proposes §21.2106 under Insur- 78714-9104 or 333 Guadalupe, Austin, Texas 78701], signed by an of- ance Code §§1370.004, 1251.008, 843.151, and 36.001. ficer of the insurer and include: Insurance Code §1370.004 provides that health benefit plan is- (1) - (2) (No change.) suers must provide written notice of coverage required under In- surance Code Chapter 1370 to each woman 18 year of age or (3) the name of the HMO or indemnity carrier with which older enrolled in the plan in accordance with rules adopted by the insurer has contracted to provide coverage to children who are the the Commissioner. subject of a medical support order and a statement, if applicable, that the HMO or indemnity carrier has filed the applicable forms provid- Insurance Code §1251.008 provides that the Commissioner may ing the coverage as required by Insurance Code Chapter 1701, and In- adopt rules necessary to administer Insurance Code Chapter surance Code §1504.002 and §1504.052 [Articles 3.42 and 3.96-8] or 1251. §11.301 of this title (relating to Filing Requirements [for HMOs]);

PROPOSED RULES June 18, 2021 46 TexReg 3713 Insurance Code §843.151 provides that the Commissioner may §21.2202. Authority. adopt rules as necessary and proper to implement Insurance This subchapter [Subchapter] is issued based upon the authority Code Chapter 1271. granted the Commissioner [commissioner] under [the] Insurance Code Insurance Code §36.001 provides that the Commissioner may §543.001; Chapter 541, Subchapter J; and §36.001 [, Article 21.21 adopt any rules necessary and appropriate to implement the §13 and Article 1.03A]. powers and duties of TDI under the Insurance Code and other §21.2204. Definitions. laws of this state. For the purposes of this subchapter [Subchapter], the following terms CROSS-REFERENCE TO STATUTE. Section 21.2106 imple- [in this section shall] have the following meanings [placed opposite ments Insurance Code §1370.004. Section 21.2106 implements them] unless the explicit wording of a section or portion of a section Insurance Code §§1357.056, 1362.004, 1363.004, 1366.058, directs [shall] otherwise [direct]. and 1357.006. (1) - (8) (No change.) §21.2106. Forms. (9) Illustration--a presentation or depiction used in the so- (a) The forms identified in §21.2103 of this title (relating to licitation or sale of a life insurance policy that includes non-guaranteed Mandatory Benefit Notices) are included in subsection (b) of this sec- elements of a policy of life insurance over a period of years and in- tion in their entirety. The forms can be obtained from the [Texas De- cludes but is not limited to the three types defined in subparagraphs partment of Insurance, P.O. Box 149104, Austin, Texas 78714-9104, (A) - (C) of this paragraph. or from the] TDI website, www.tdi.texas.gov. (A) (No change.) (b) (No change.) (B) Supplemental illustration--an illustration furnished The agency certifies that legal counsel has reviewed the pro- in addition to a basic illustration that meets the applicable requirements posal and found it to be within the state agency's legal authority of this subchapter [Subchapter], and that may be presented in a format to adopt. differing from the basic illustration, but may only depict a scale of non-guaranteed elements that is permitted in a basic illustration. Filed with the Office of the Secretary of State on June 7, 2021. (C) (No change.) TRD-202102202 James Person (10) - (11) (No change.) General Counsel (12) Insurer--a life insurance company as defined by [the] Texas Department of Insurance Insurance Code §841.001 and §982.001 [, Article 3.01 §(1)]; a fra- Earliest possible date of adoption: July 18, 2021 ternal benefit society as defined by [the] Insurance Code §885.051 and For further information, please call: (512) 676-6584 §885.052 [, Article 10.01 §§(a) and (b)]; a Mutual Life Insurance Com- pany as defined by [the] Insurance Code Chapter 882 [, Article 11.01]; ♦ ♦ ♦ or a Stipulated Premium Insurance Company as defined by [the] Insur- ance Code Chapter 884 [, Article 22.01]. SUBCHAPTER N. LIFE INSURANCE (13) Lapse-supported illustration--an illustration of a pol- ILLUSTRATIONS icy form failing the test of self-supporting as defined in this subchapter 28 TAC §§21.2202, 21.2204, 21.2212 [Subchapter], under a modified persistency rate assumption using per- sistency rates underlying the disciplined current scale for the first five STATUTORY AUTHORITY. TDI proposes amendments to years and 100% policy persistency thereafter. §§21.2202, 21.2204, and 21.2212 under Insurance Code §§541.401, 543.001, and 36.001. (14) Minimum assumed expenses--the minimum expenses that may be used in the calculation of the disciplined current scale for a Insurance Code §541.401 provides that the Commissioner may policy form. The insurer may choose to designate each year the method adopt rules necessary to accomplish the purpose of Chapter of determining assumed expenses for all policy forms from: 541, which is to regulate trade practices in the business of insur- ance by defining or determining trade practices that are unfair (A) - (B) (No change.) methods of competition or deceptive acts or practices and pro- (C) a generally recognized expense table based on hibiting them. fully allocated expenses representing a significant portion of insurance Insurance Code §543.001 provides that the Commissioner may companies and approved by the National Association of Insurance adopt rules as provided by Chapter 541, Subchapter I, to en- Commissioners or by the Commissioner [commissioner]. Marginal sure life insurance companies do not circulate statements that expenses may be used only if greater than a generally recognized misrepresent the terms, benefits, or dividends received on a life expense table. If no generally recognized expense table is approved, insurance policy or certificate. fully allocated expenses must be used. Insurance Code §36.001 provides that the Commissioner may (15) - (21) (No change.) adopt any rules necessary and appropriate to implement the §21.2212. Penalties. powers and duties of TDI under the Insurance Code and other Any violation of this subchapter constitutes [subsection shall consti- laws of this state. tute] a misrepresentation of the terms of an issued and unissued pol- CROSS-REFERENCE TO STATUTE. Section 21.2202 imple- icy in violation of [the] Insurance Code[,] Chapter 541, Subchapter B, ments Insurance Code §543.001. Section 21.2204 implements [Article 21.21 §4(1) and (2)] and to be a misrepresentation of the terms, Insurance Code §541.401. Section 21.2212 implements Insur- benefits, and advantages of a policy within the meaning of [the] Insur- ance Code §§543.001, 541.051, 541.052, and 541.057. ance Code §543.001 [, Article 21.20]. Violations of this subchapter

46 TexReg 3714 June 18, 2021 Texas Register [subsection shall] subject the insurer and agent to the penalties pro- The agency certifies that legal counsel has reviewed the pro- vided in [the] Insurance Code Chapter 541 [, Article 21.21] and other posal and found it to be within the state agency's legal authority applicable provisions of the Insurance Code. to adopt. The agency certifies that legal counsel has reviewed the pro- Filed with the Office of the Secretary of State on June 7, 2021. posal and found it to be within the state agency's legal authority to adopt. TRD-202102205 James Person Filed with the Office of the Secretary of State on June 7, 2021. General Counsel TRD-202102203 Texas Department of Insurance James Person Earliest possible date of adoption: July 18, 2021 General Counsel For further information, please call: (512) 676-6584 Texas Department of Insurance ♦ ♦ ♦ Earliest possible date of adoption: July 18, 2021 For further information, please call: (512) 676-6584 SUBCHAPTER R. DIABETES ♦ ♦ ♦ 28 TAC §§21.2601, 21.2604, 21.2606 SUBCHAPTER Q. COMPLAINT RECORDS TO STATUTORY AUTHORITY. TDI proposes amendments to §§21.2601, 21.2604, and 21.2606 under Insurance Code BE MAINTAINED §1358.057 and §36.001. 28 TAC §21.2501 Insurance Code §1358.057 provides that the Commissioner adopt rules necessary to implement Insurance Code Chapter STATUTORY AUTHORITY. TDI proposes §21.2501 under Insur- 1358, Subchapter B. ance Code §541.401 and §36.001. Insurance Code §36.001 provides that the Commissioner may Insurance Code §541.401 provides that the Commissioner may adopt any rules necessary and appropriate to implement the adopt and enforce rules necessary to accomplish the purpose of powers and duties of TDI under the Insurance Code and other Chapter 541, which is to regulate trade practices in the business laws of this state. of insurance by defining or determining trade practices that are unfair methods of competition or deceptive acts or practices and CROSS-REFERENCE TO STATUTE. Sections 21.2601 and prohibiting them. 21.2604 implement Insurance Code §1358.004. Section 21.2606 implements Insurance Code §1358.055. Insurance Code §36.001 provides that the Commissioner may adopt any rules necessary and appropriate to implement the §21.2601. Definitions. powers and duties of TDI under the Insurance Code and other The following words and terms, when used in this subchapter, [shall] laws of this state. have the following meanings, unless the context clearly indicates oth- CROSS-REFERENCE TO STATUTE. Section 21.2501 imple- erwise.[:] ments Insurance Code §542.005. (1) - (2) (No change.) §21.2501. Applicability and Purpose. (3) Diabetes--Diabetes mellitus. A chronic disorder of glu- cose metabolism that can be characterized by an elevated blood glucose This subchapter applies to all insurers as defined in §21.2502 of this level. The terms "diabetes" and "diabetes mellitus" are synonymous. title (relating to Definitions). The purpose of this subchapter is to pre- scribe the minimum information required to be maintained in the com- (4) Diabetes equipment--The term "diabetes equipment" plaint record of an insurer, to provide a recommended format for the includes items defined in Insurance Code §1358.051 and §1358.056 maintenance of such a record by insurers, and to require presentation of [Article 21.53 G §§1(1) and 5], and §21.2605 of this title (relating to such information at the time of examination of insurers or upon other Diabetes Equipment and Supplies). request for complaint record information by the department. Com- (5) Diabetes supplies--The term "diabetes supplies" in- plaint record maintenance provisions of this subchapter apply to all cludes items defined in Insurance Code §1358.051 and §1358.056 complaints of an insurer not specifically excepted by this subchapter, [Article 21.53 G §§1(2) and 5], and §21.2605 of this title. including complaints relating to the claims settlement practices of an insurer. (6) (No change.) (1) This subchapter does not apply to complaints received (7) Health benefit plan--A health benefit plan, for purposes and maintained by Health Maintenance Organizations. [The] Insurance of this subchapter, means: Code Chapter 843, Subchapter G [, Article 20A.12], as amended, as (A) a plan that provides benefits for medical or surgical well as §11.205 of this title (relating to Additional Documents to be expenses incurred as a result of a health condition, accident, or sick- [To Be] Available for Review [During Examinations]), expressly and ness, including: specifically provide for complaint record maintenance by HMOs. (i) an individual, group, blanket, or franchise insur- (2) This subchapter does not apply to the complaints re- ance policy or insurance agreement;[,] a group hospital service con- ceived by an insurer in its capacity as a utilization review agent. Com- tract;[,] or an individual or group evidence of coverage that is offered plaint record maintenance and reporting for such complaints are ad- by: dressed in §19.1705 [§19.1716] of this title (relating to Complaints and Information). (I) (No change.)

PROPOSED RULES June 18, 2021 46 TexReg 3715 (II) a group hospital service corporation operat- (2) immunizations required by Insurance Code Chapter ing under [Chapter 20 of the Texas] Insurance Code Chapter 842; 1367, Subchapter B [Article 21.53F], Coverage for Childhood Immu- nizations; (III) a fraternal benefit society operating under [Chapter 10 of the Texas] Insurance Code Chapter 885; (3) - (7) (No change.) (IV) a stipulated premium insurance company (b) HMOs must [shall] contract with providers who, at a min- operating under [Chapter 22 of the] Insurance Code Chapter 884; imum, provide care that complies with subsection (a) of this section that includes: (V) a reciprocal exchange operating under [Chapter 19 of the] Texas Insurance Code Chapter 942; or (1) for all insureds: (VI) a health maintenance organization (HMO) (A) - (C) (No change.) operating under Insurance Code Chapter 843 [the Texas Health Main- (D) annually the following: tenance Organization Act (Chapter 20A, Texas Insurance Code)]; (i) - (iv) (No change.) (ii) to the extent permitted by the Employee Retire- ment Income Security Act of 1974 (29 U.S.C. [USC] §1002), a health (v) for insureds under 18 [eighteen] years of age, a benefit plan that is offered by a multiple employer welfare arrangement referral for a retinal camera examination to be performed by an oph- as defined by §3, Employee Retirement Income Security Act of 1974 thalmologist or therapeutic optometrist. (29 U.S.C. [USC] §1002) that holds a certificate of authority under In- (2) For treatment of an insured 65 [sixty-five] years of age surance Code Chapter 846 [Article 3.95-2]; or and over or an insured with complications affecting two or more body (iii) notwithstanding [§172.014,] Local Govern- systems: ment Code §172.014, or any other law, health and accident coverage (A) - (B) (No change.) provided by a risk pool created under [Chapter 172,] Local Govern- ment Code Chapter 172. (3) (No change.) (B) A plan offered by an approved nonprofit health cor- (4) For insureds with Type 1 Diabetes: poration that is certified under Texas Occupation Code §162.001(b) (A) - (B) (No change.) [§5.01(a), Medical Practice Act], and that holds a certificate of author- ity issued by the Commissioner [commissioner] under Insurance Code (C) ongoing [on-going] management, which includes Chapter 844 [Article 21.52F]. quarterly office visits, at which evaluation includes: (C) A health benefit plan is not: (i) - (x) (No change.) (i) (No change.) (xi) results of home glucose self-monitoring; (ii) a small employer plan written under [Chapter 26 (xii) - (xvi) (No change.) of the] Insurance Code Chapter 1501; (xvii) reevaluation of short- and long-term self-man- (iii) a Medicare supplemental policy as defined by agement goals; §1882(g)(1), Social Security Act (42 U.S.C. [USC] §1395 ss); (xviii) - (xix) (No change.) (iv) a plan that is designed to supplement benefits (xx) counseling for high-risk behaviors; and provided under a program established by the Department of Defense pursuant to Chapter 55 of Title 10, United States Code (10 U.S.C. (xxi) for insureds under 18 [eighteen] years of age, §1071 [USC Section 1071] et seq.); growth assessment. (v) - (vi) (No change.) (c) Health plans provided by HMOs must [shall] periodically assess physician and organizational compliance with the minimum (vii) a long-term care policy, including a nursing practice standards contained in subsection (b) of this section. home fixed indemnity policy, unless the Commissioner [commissioner] determines that the policy provides benefit coverage so comprehensive (d) Health benefit plans provided by entities other than HMOs that the policy is a health benefit plan as described by subparagraph must [shall] provide coverage at a minimum for: (A) of this paragraph. (1) (No change.) (8) (No change.) (2) immunizations required by Insurance Code Chapter (9) Nutrition counseling--As defined in [§701.002 of the 1367, Subchapter B [Article 21.53F], Coverage for Childhood Immu- Texas] Occupations Code §701.002. nizations; (10) - (11) (No change.) (3) - (7) (No change.) §21.2604. Minimum Standards for Benefits for Persons with Dia- §21.2606. Diabetes Self-Management Training. betes, Requirement for Periodic Assessment of Physician and Orga- nizational Compliance. (a) A health benefit plan must [shall] provide diabetes self- management training or coverage for diabetes self-management train- (a) Health benefit plans provided by HMOs must [shall] pro- ing for which a physician or practitioner has written an order, includ- vide coverage for the services in paragraphs (1) through (7) of this sub- ing a written order of a practitioner practicing under protocols jointly section and must [shall] contract with providers that agree to comply developed with a physician, to each insured or the caretaker of the in- with the minimum practice standards outlined in subsection (b) of this sured in accordance with the standards contained in Insurance Code section. Services to be covered include: §1358.054 [Article 21.53G, Sec. 4(b) and (c)]. (1) (No change.)

46 TexReg 3716 June 18, 2021 Texas Register (b) A person may not provide a component of diabetes self- Insurance Code §36.001 provides that the Commissioner may management training under subsection (a) of this section unless the adopt any rules necessary and appropriate to implement the subject matter of the component is within the scope of the person's powers and duties of TDI under the Insurance Code and other practice and the person meets the education requirements as determined laws of this state. by the person's licensing agency in consultation with the Commissioner CROSS-REFERENCE TO STATUTE. Section 21.2702 imple- [commissioner] of Public Health [health]. ments Insurance Code §§1108.002, 1115.001, 1131.060(a) and (c) Self-management training should [shall] include the devel- (b), 1251.004, 1251.052(a) and (b), 1251.054 and 1251.108. opment of an individualized management plan that is created for and in §21.2702. Definitions. collaboration with the insured and that meets the requirements of the minimum standards for benefits in accordance with §21.2604 of this The following words and terms when used in this subchapter [shall] title (relating to Minimum Standards for Benefits for Persons with Di- have the following meanings, unless the context clearly indicates oth- abetes). erwise.[:] (d) Nutrition counseling and instructions on the proper use of (1) (No change.) diabetes equipment and supplies must [shall] be provided or covered as part of the training. (2) Bona Fide Association--An association that, in addition to meeting the requirements of an association in paragraphs (1)(A) and (e) Diabetes self-management training must [shall] be pro- (C) of this subsection: vided, or coverage for diabetes self-management training must [shall] be provided to an insured or a caretaker, upon the following occur- (A) (No change.) rences relating to an insured, provided that any training involving (B) does not condition membership in the association the administration of medications must comply with the applicable on any health-status-related factor relating to an individual (including delegation rules from the appropriate licensing agency: the individual eligible for membership or a dependent of the individual (1) - (3) (No change.) eligible for membership, if dependent coverage is offered); (f) An HMO must [shall] provide oversight of its diabetes self- (C) makes coverage under a health benefit plan offered management training program on an ongoing basis to ensure compli- through the association available to all members, regardless of any ance with this section. health-status-related factor relating to the members (or dependents eli- gible for coverage through a member, if dependent coverage is offered); (g) Health benefit plans provided by entities other than HMOs and must [shall] disclose in the plan how to access providers or benefits described in subsection (a) of this section. (D) (No change.) The agency certifies that legal counsel has reviewed the pro- (3) - (5) (No change.) posal and found it to be within the state agency's legal authority (6) HMO--A health maintenance organization as defined in to adopt. [the] Insurance Code §843.002 [Article 20A.02(n)].

Filed with the Office of the Secretary of State on June 7, 2021. (7) Health benefit plan--A group insurance policy, a certifi- cate issued under a group policy, a group hospital service contract, or TRD-202102206 a group subscriber contract or evidence of coverage issued by a health James Person carrier that provides benefits for health care benefits or services. The General Counsel term does not include the following plans of coverage: Texas Department of Insurance (A) (No change.) Earliest possible date of adoption: July 18, 2021 For further information, please call: (512) 676-6584 (B) Only if the benefits are provided under a separate policy or contract of insurance or evidence of coverage: ♦ ♦ ♦ (i) - (vi) (No change.) SUBCHAPTER S. ASSOCIATION PLANS (vii) coverage supplemental to the coverage pro- 22 TAC §21.2702 vided under Chapter 55, Title 10 of the United States Code (also known [know] as CHAMPUS supplemental programs); STATUTORY AUTHORITY. TDI proposes amendments to §21.2702 under Insurance Code §§843.151, 1115.005, (viii) - (ix) (No change.) 1251.0008, and 36.001. (8) Health carrier--Any entity authorized under the Texas Insurance Code §843.151 provides that the Commissioner may Insurance Code or another insurance law of this state that provides adopt rules necessary to implement Insurance Code Chapter health benefit plans in this state, including an insurance company; a 843. group hospital service corporation operating under Insurance Code[,] Chapter 842 [20]; a stipulated premium insurance company operat- Insurance Code §1115.005 provides that the Commissioner may ing under Insurance Code[,] Chapter 884 [22]; an approved nonprofit adopt reasonable rules to accomplish and enforce the purpose health corporation that is certified under Occupations Code Chapter of Chapter 1115. 162 [Section 5.01(a), Medical Practice Act (Article 4495b, Vernon's Insurance Code §1251.008 provides that the Commissioner may Texas Civil Statutes)] and that holds a certificate of authority issued by adopt rules necessary to administer Insurance Code Chapter the Commissioner [commissioner] under Insurance Code Chapter 844 1251. [, Article 21.52F], or an HMO. (9) Health-status-related factor--Any of the following in relation to an individual:

PROPOSED RULES June 18, 2021 46 TexReg 3717 (A) - (F) (No change.) James Person (G) evidence of insurability, including conditions General Counsel arising out of acts of domestic violence, including family violence as Texas Department of Insurance defined by [the] Insurance Code Chapter 544, Subchapter D [Article Earliest possible date of adoption: July 18, 2021 21.21-5]; or For further information, please call: (512) 676-6584 (H) (No change.) ♦ ♦ ♦ (10) (No change.) SUBCHAPTER U. ARRANGEMENTS The agency certifies that legal counsel has reviewed the pro- BETWEEN INDEMNITY CARRIERS AND posal and found it to be within the state agency's legal authority to adopt. HMOS FOR POINT-OF-SERVICE COVERAGE 28 TAC §21.2901, §21.2902 Filed with the Office of the Secretary of State on June 7, 2021. TRD-202102207 STATUTORY AUTHORITY. TDI proposes amendments to §21.2901 and §21.2902 under Insurance Code §§843.151, James Person 1201.006, 1251.008, 1273.005, 1301.007, 1701.060, 4201.003, General Counsel and 36.001. Texas Department of Insurance Earliest possible date of adoption: July 18, 2021 Insurance Code §843.151 provides that the Commissioner may For further information, please call: (512) 676-6584 adopt rules necessary to implement Insurance Code Chapters 843; 1452, Subchapter A; 1507, Subchapter B; 222; 251; and ♦ ♦ ♦ 258 as applicable to health maintenance organizations; and In- surance Code Chapters 1271 and 1272. SUBCHAPTER T. SUBMISSION OF CLEAN Insurance Code §1201.006 provides that the Commissioner may CLAIMS adopt rules necessary to implement the purposes and provisions 28 TAC §21.2819 of Insurance Code Chapter 1201. Insurance Code §1251.008 provides that the Commissioner may STATUTORY AUTHORITY. TDI proposes amendments to adopt rules necessary to administer Insurance Code Chapter §21.2819 under Insurance Code §§843.336, 1301.007 and 1251. 36.001. Insurance Code §1273.005 provides that the Commissioner may Insurance Code §843.336 provides that the Commissioner may adopt rules to implement Chapter 1273, Subchapter A. adopt rules that specify the information that must be entered on the claim form for a claim to be a clean claim. Insurance Code §1301.007 provides that the Commissioner adopt rules necessary to implement Insurance Code Chapter Insurance Code §1301.007 provides that the Commissioner may 1301 and to ensure reasonable accessibility and availability of adopt rules necessary to implement Chapter 1301 relating to pre- preferred provider services to residents of this state. ferred provider benefit plans, including the prompt payment of claims. Insurance Code §1701.060 provides that the Commissioner may adopt rules necessary to implement the purpose of Insurance Insurance Code §36.001 provides that the Commissioner may Code Chapter 1701. adopt any rules necessary and appropriate to implement the powers and duties of TDI under the Insurance Code and other Insurance Code §4201.003 provides that the Commissioner may laws of this state. adopt rules to implement Chapter 4201. CROSS-REFERENCE TO STATUTE. Section 21.2819 imple- Insurance Code §36.001 provides that the Commissioner may ments Insurance Code §843.337 and §1301.102. adopt any rules necessary and appropriate to implement the powers and duties of TDI under the Insurance Code and other §21.2819. Catastrophic Event. laws of this state. (a) (No change.) CROSS-REFERENCE TO STATUTE. Section 21.2901 imple- (b) Within 10 days after the entity returns to normal business ments Insurance Code §843.337. Section 21.2902 implements operations, the entity must send a certification of the catastrophic event Insurance Code §§843.106, 843.107, and 843.108. to the [Life /Health and HMO Intake Team,] Texas Department of In- §21.2901. Definitions. surance by email to [email protected]. [P.O. Box 149104, Mail Code 106-1E, Austin, Texas 78714-9104.] The certification must: The following words and terms, when used in this subchapter [shall] have the following meanings, unless the context clearly indicates oth- (1) - (3) (No change.) erwise. (c) (No change.) (1) Corresponding benefits--Benefits provided under The agency certifies that legal counsel has reviewed the pro- the indemnity portion of a point-of-service (POS) plan, as defined posal and found it to be within the state agency's legal authority in Insurance Code §1273.001 and §843.108 [Articles 3.64(a)(4) to adopt. and 20A.02(bb)of the Code], that conform to the nature and kind of coverage provided to an enrollee under the HMO portion of a Filed with the Office of the Secretary of State on June 8, 2021. point-of-service plan. TRD-202102227 (2) - (11) (No change.)

46 TexReg 3718 June 18, 2021 Texas Register §21.2902. Arrangements between Indemnity Carriers and HMOs to (4) corresponding coverage for a POS plan must include Provide Coverage. the following: (a) Written agreement between the HMO and the indemnity (A) all mandatory benefit offers required by the carrier. A POS plan offered under this subchapter must be evidenced Insurance Code that are accepted or rejected by the purchaser must by a written agreement between the HMO and indemnity carrier that also be accepted or rejected in the same manner with respect to both must be filed with the department as a plan document and must [shall] the POS HMO and the POS indemnity coverage; provide the following: (B) - (C) (No change.) (1) the identity of each entity, including the HMO, the in- (5) if medically necessary covered services, benefits, and demnity carrier, or any third-party administrator (TPA) that will admin- supplies are not available through the HMO's participating physicians ister the coverages offered under the POS plan; or providers, the HMO is not relieved of its obligation to provide (2) - (3) (No change.) out-of-network services under Insurance Code Chapter 1271 [Article 20A.09 of the Code] on the basis that the same services are available (4) the HMO's network of providers and, if the POS in- to an enrollee through POS indemnity coverage; and demnity coverage includes preferred provider benefits, as allowed by Insurance Code Chapter 1301 [Article 3.70-3C of the Code] and ap- (6) (No change.) plicable rules, the indemnity carrier's list of preferred providers, which (c) POS blended contracts. Contracts for POS blended con- may [shall] not be identical; and[;] tract plans must: (5) the respective premium rates for the POS HMO cover- (1) - (5) (No change.) age and for the POS indemnity coverage must [shall] be derived sepa- rately by the HMO and the indemnity carrier and must [shall] be sep- (6) disclose all coinsurance required for POS indemnity arately identified in each POS plan contract; however, the agreement coverage, which must [shall] never exceed 50% of the total amount may provide that for a POS plan offered by the entities under this sub- to be covered; chapter: (7) (No change.) (A) - (B) (No change.) (8) disclose all precertification requirements for POS in- (C) the entity delegated to collect the premium will demnity coverage under the plan including any penalties for failing to [shall] then disburse the appropriate premium to the other party or comply with any precertification or cost containment provisions, pro- parties; vided that any such penalties do [shall] not reduce benefits by more than 50% in the aggregate; (6) - (7) (No change.) (9) disclose how the enrollee may complain about a denial (8) neither entity may [shall] use the other to perform func- of coverage and appeal an adverse determination rendered concerning tions or duties that are its own responsibility by law or rule, including the coverage under the POS plan and disclose any rights the enrollee but not limited to[,] making all reports and filings required by law or may have to an independent review of an adverse determination under rule; Insurance Code Chapter 4201 [Article 21.58A of the Code]; (9) the entities may delegate those functions or duties per- (10) POS indemnity coverage issued to a group must mitted by law or rule to be delegated to another party to perform, in- [shall] contain provisions that comply with Insurance Code §§1251.111 cluding but not limited to contracting with providers, administering - 1251.116 [Article 3.51-6 Sec. (1)(d)(2)(vii) - (xiii) of the Code]; and claims, and conducting grievance procedures, provided that the del- egating entity remains [shall remain] responsible for ensuring that all (11) POS indemnity coverage issued to an individual must delegated functions are [shall be] conducted in compliance with all ap- [shall] contain provisions that comply with Insurance Code §§1201.111 plicable laws and rules; - 1201.217 [Article 3.70-3(A)(5) - (11) of the Code]. (10) the agreement between the indemnity carrier and the (d) POS dual contracts. Contracts comprising a POS dual con- HMO may not be canceled or terminated until the coverage for each tract plan must comply with the following: enrollee in a POS plan issued by both the indemnity carrier and HMO (1) The contract issued by the indemnity carrier must is terminated or canceled according [pursuant] to the provisions of this [shall] comply with all applicable requirements for indemnity carriers subchapter; and and must [shall]: (11) (No change.) (A) - (B) (No change.) (b) Basic requirements. In addition to complying with all of (C) disclose all applicable copayments and coinsur- the requirements listed in subsection (a) of this section, a contract cre- ance, which must [shall] never exceed 50% of the total amount to be ating a POS blended contract plan and contracts that together create a covered; POS dual contracts plan must provide the following: (D) (No change.) (1) enrollees may [shall] not be required to first use either the POS indemnity coverage or POS HMO coverage; (E) disclose all precertification requirements for POS indemnity coverage under the plan, including any penalties for fail- (2) if the premiums necessary to maintain both the POS ing to comply with any precertification or cost containment provisions, HMO coverage and the POS indemnity coverage are not paid, both provided that any such penalties must [shall] not reduce benefits more coverages will [shall] be cancelled simultaneously, and any premium than 50% in the aggregate; the enrollee has remitted to maintain coverage will [shall] be returned to the enrollee; (F) disclose how the enrollee may complain about a de- nial of coverage and appeal an adverse determination rendered con- (3) (No change.) cerning the coverage under the POS indemnity coverage and disclose

PROPOSED RULES June 18, 2021 46 TexReg 3719 any rights the enrollee may have to an independent review of an adverse (a) Purpose and applicability [Applicability]. The purpose of determination under Insurance Code Chapter 4201 [Article 21.58A of this section is to identify the standardized credentialing application the Code], if applicable; form required by [the] Insurance Code §1452.052 [Article 21.58D]. Hospitals, health maintenance organizations, preferred provider benefit (G) POS indemnity coverage issued to a group must [, plans, and preferred provider organizations are required to use this form shall] contain provisions that comply with Insurance Code §§1251.111 for credentialing and recredentialing of physicians, advanced practice - 1251.116 [Article 3.51-6 Sec (1)(d)(2)(vii) - (xiii) of the Code]; nurses, and physician assistants. (H) POS indemnity coverage issued to an individual (b) Definitions. The following words and terms when used in must [shall] contain provisions that comply with Insurance Code this section [shall] have the following meanings.[:] §§1201.111 - 1201.217 [Article 3.70-3(A)(5) - (11) of the Code]. (1) - (3) (No change.) (2) The contract issued by the HMO must [shall] comply with all requirements for an HMO evidence of coverage and must (4) Health maintenance organization--A health mainte- [shall]: nance organization as that term is defined by [the] Insurance Code §843.002(14). (A) - (C) (No change.) (5) Hospital--A licensed public or private institution as (e) Filings. All plan documents for a POS plan offered under defined by Health and Safety Code Chapter 241[, Health and Safety this subchapter must [shall] be submitted to the department [Filings Code,] and any hospital owned or operated by state government. Intake Division] in accordance with: (6) (No change.) (1) Insurance Code Chapter 1271 [Article 20A.09 of the Code] and Chapter 11 of this title (relating to Health Maintenance Or- (7) Physician assistant--A person who holds a license is- ganizations), including the filing fee requirements; and sued under Occupations Code Chapter 204[, Occupations Code]. (2) Insurance Code Chapter 1701 [Article 3.4 of the Code] (8) Preferred provider benefit plan--A plan issued by an in- and Chapter 3, Subchapter A, of this title (relating to Submission Re- surer under [the] Insurance Code Chapter 1301 [Article 3.70-3C]. quirements for Filings and Departmental Actions Related to Such Fil- (9) Preferred provider organization--An organization con- ings [Filing of Policy Forms, Riders, Amendments, Endorsements for tracting with an insurer issuing a preferred provider benefit plan under Life, Accident, and Health Insurance and Annuities]), including the fil- [the] Insurance Code Chapter 1301 [Article 3.70-3C,] for the purpose ing fee requirements. of providing a network of preferred providers. The agency certifies that legal counsel has reviewed the pro- (10) (No change.) posal and found it to be within the state agency's legal authority to adopt. (c) Texas Standardized Credentialing Application. The Texas Standardized Credentialing Application must [shall] be used by all Filed with the Office of the Secretary of State on June 7, 2021. hospitals, health maintenance organizations, preferred provider benefit TRD-202102208 plan insurers, and preferred provider organizations for credentialing and recredentialing of physicians, advanced practice nurses, and James Person physician assistants. General Counsel Texas Department of Insurance (d) (No change.) Earliest possible date of adoption: July 18, 2021 (e) Availability. This form may be obtained on the For further information, please call: (512) 676-6584 department's website [Department's Web site] at www.tdi.texas.gov [www.tdi.state.tx.us or from the Texas Department of Insurance, Qual- ♦ ♦ ♦ ity Assurance Section, HMO Division, Mail Code 103-6A, P.O. Box SUBCHAPTER X. EVALUATION OF 149104, Austin, Texas 78714-9104; or by calling 1-800-599-SHOP (1476); in Austin, 305-7211]. Reproduction of this form without any NETWORK PHYSICIANS AND PROVIDERS changes is allowed. 28 TAC §21.3201 (f) (No change.) STATUTORY AUTHORITY. TDI proposes amendments to The agency certifies that legal counsel has reviewed the pro- §21.3201 under Insurance Code §1452.052 and §36.001. posal and found it to be within the state agency's legal authority to adopt. Insurance Code §1452.052 provides that the Commissioner adopt a standardized verification of credentials form for physi- Filed with the Office of the Secretary of State on June 7, 2021. cians, advanced practice nurses, and physician assistants. TRD-202102209 Insurance Code §36.001 provides that the Commissioner may James Person adopt any rules necessary and appropriate to implement the powers and duties of TDI under the Insurance Code and other General Counsel laws of this state. Texas Department of Insurance Earliest possible date of adoption: July 18, 2021 CROSS-REFERENCE TO STATUTE. Section 21.3201 imple- For further information, please call: (512) 676-6584 ments Insurance Code §1452.051 and §1452.052. §21.3201. Texas Standardized Credentialing Application for Physi- ♦ ♦ ♦ cians, Advanced Practice Nurses, and Physician Assistants.

46 TexReg 3720 June 18, 2021 Texas Register SUBCHAPTER Y. UNFAIR DISCRIMINATION the alleged unfair discrimination in compensation as contemplated in Insurance Code Chapter 1454 [Article 21.53N of the Insurance Code] IN COMPENSATION FOR WOMEN'S HEALTH and this subchapter, action will be taken in accordance with Insurance CARE Code Chapter 1454, Subchapter C [Article 21.53N §4 of the Insurance Code]. 28 TAC §§21.3302, 21.3303, 21.3305 The agency certifies that legal counsel has reviewed the pro- STATUTORY AUTHORITY. TDI proposes amendments to posal and found it to be within the state agency's legal authority §§21.3302, 21.3303, and 21.3305 under Senate Bill 8, 77th to adopt. Legislature (2001) (SB 8) and §36.001. The enacting language of SB 8, which enacted the article that Filed with the Office of the Secretary of State on June 7, 2021. was codified as Insurance Code Chapter 1454 effective April 1, TRD-202102210 2005, provides that the department may adopt rules necessary James Person to implement the act. General Counsel Insurance Code §36.001 provides that the Commissioner may Texas Department of Insurance adopt any rules necessary and appropriate to implement the Earliest possible date of adoption: July 18, 2021 powers and duties of TDI under the Insurance Code and other For further information, please call: (512) 676-6584 laws of this state. ♦ ♦ ♦ CROSS-REFERENCE TO STATUTE. Section 21.3302 imple- ments Insurance Code Chapter 1454. Section 21.3303 imple- SUBCHAPTER CC. ELECTRONIC HEALTH ments Insurance Code §1454.002. Section 21.3305 implements Insurance Code §§1454.106, 1454.107, and 1454.108. CARE TRANSACTIONS §21.3302. Definitions. 28 TAC §21.3701 The following words and terms, when used in this subchapter, [shall] STATUTORY AUTHORITY. TDI proposes amendments to have the following meanings, unless the context clearly indicates oth- §21.3701 under Insurance Code §1213.006 and §36.001. erwise.[:] Insurance Code §1213.006 provides that the Commissioner may (1) Issuer--Those entities that offer a health benefit plan as adopt rules necessary to implement the requirements for elec- identified in Insurance Code §1454.002 [Article 21.53N §2(1-8)]. tronic health care transactions found in Chapter 1213. (2) - (3) (No change.) Insurance Code §36.001 provides that the Commissioner may §21.3303. Applicability. adopt any rules necessary and appropriate to implement the This subchapter applies to issuers that provide coverage for reproduc- powers and duties of TDI under the Insurance Code and other tive health or reproductive oncology services for women and applies to laws of this state. health benefit plans as described in Insurance Code §1454.002 [Article CROSS-REFERENCE TO STATUTE. Section 21.3701 imple- 21.53N §2] that are delivered, issued for delivery, or renewed on or af- ments Insurance Code Chapter 1213. ter January 1, 2002. §21.3701. Electronic Claims Filing Requirements. §21.3305. Complaints. (a) A complaint against an issuer filed with the Texas Depart- (a) The purpose of this section is to implement Insurance Code ment of Insurance for alleged violations of Insurance Code §1454.051 Chapter 1213 [Article 21.52Z of the Insurance Code]. This section [Article 21.53N §3] must [shall] include: applies to a contract between an issuer of a health benefit plan and a health care professional or health care facility (hereinafter referred to (1) a description of the alleged violation under Insurance as "physicians or providers"). Code §1454.051 [Article 21.53N]; (b) Consistent with Insurance Code Chapter 1213 [Article (2) (No change.) 21.52Z] and this section, the issuer of a health benefit plan may, by (3) the physician's or provider's name, if different from contract, require physicians and providers to electronically submit the [than] the complainant; following: (4) - (6) (No change.) (1) - (3) (No change.) (b) Within 10 days of receipt of a complaint, the department (c) (No change.) will determine whether [if] all the information in subsection (a) of this (d) A contract between the issuer of a health benefit plan and a section has been received. physician or provider that requires electronic submission of any infor- (c) If all the information identified in subsection (a) of this sec- mation described in subsection (b) of this section must [shall] include tion is included in the complaint: a provision stating that in the event of a systems failure[,] or a cata- strophic event as defined in §21.2802 [§21.2803] of this title (relating (1) - (2) (No change.) to Definitions)[,] that substantially interferes with the business opera- (3) the 120-day time period in Insurance Code §1454.107 tions of the physician or provider, the physician or provider may submit [Article 21.53N §4(c)] will commence. non-electronic claims in accordance with the requirements in this sub- chapter and for the number of calendar days during which substantial (d) (No change.) interference with business operations occurs as of the date of the cata- (e) If the department believes that the information received strophic event or systems failure. A physician or provider must [shall] by the department under subsection (a) of this section substantiates provide written notice of the physician's or provider's intent to submit

PROPOSED RULES June 18, 2021 46 TexReg 3721 non-electronic claims to the issuer of the health benefit plan within five ipate in a hearing via telephone. A request for reconsideration must calendar days of the catastrophic event or systems failure. be received by the Chief Clerk [Senior Associate Commissioner] at MC-GC-CCO, P.O. Box 12030 [149104], Austin, Texas 78711-2030 (e) A contract between the issuer of a health benefit plan and a [78714-9104] within 14 calendar days of receiving notice of the appeal physician or provider that requires electronic submission of the infor- determination. mation described in subsection (b) of this section must [shall] include a provision allowing for a waiver of the electronic submission require- (n) - (p) (No change.) ments in any of the following circumstances: The agency certifies that legal counsel has reviewed the pro- (1) (No change.) posal and found it to be within the state agency's legal authority to adopt. (2) The operation of small physician and provider prac- tices. This exception applies to those physicians and providers with Filed with the Office of the Secretary of State on June 7, 2021. fewer than 10 [ten] full-time-equivalent employees, consistent with 42 C.F.R. §424.32(d)(1)(viii). TRD-202102211 James Person (3) - (4) (No change.) General Counsel (f) (No change.) Texas Department of Insurance (g) Upon receipt of a request for a waiver from a physician Earliest possible date of adoption: July 18, 2021 or provider, the issuer of a health benefit plan must [shall], within 14 For further information, please call: (512) 676-6584 calendar days, issue or deny a waiver. ♦ ♦ ♦ (h) A waiver or denial of a waiver must be issued in writing to the requesting physician or provider. A written waiver must [shall] SUBCHAPTER DD. ELIGIBILITY contain any restrictions, conditions, or limitations related to the waiver. STATEMENTS A written denial of a request for a waiver or the issuance of a qualified or conditional waiver must [shall] include the reason for the denial or 28 TAC §21.3802 any restrictions, conditions, or limitations, and notice of the physician's STATUTORY AUTHORITY. TDI proposes amendments to or provider's right to appeal the determination to the department [Texas §21.3802 under Insurance Code §1274.004 and §36.001. Department of Insurance]. Insurance Code §1274.004 provides that the Commissioner (i) A physician or provider that is denied a waiver of the elec- adopt rules necessary to implement Chapter 1274. tronic submission requirements[,] or granted a waiver with restrictions, conditions, or limitations, may, within 14 calendar days of receipt, ap- Insurance Code §36.001 provides that the Commissioner may peal the waiver determination. The request for appeal and accompa- adopt any rules necessary and appropriate to implement the nying documentation must [shall] be sent to the Director of MCQA powers and duties of TDI under the Insurance Code and other [Deputy Commissioner, HMO Division], MC-LH-MCQA, P.O. Box laws of this state. 12030 [149104], Austin, Texas 78711-2030 [78714-9104] and to the CROSS-REFERENCE TO STATUTE. Section 21.3802 imple- issuer of the health benefit plan. The information must [shall] include: ments Insurance Code §1274.001. (1) - (4) (No change.) §21.3802. Definitions. (j) Upon receipt of notice of a request for appeal under this The following words and terms, when used in this subchapter, [shall] section, an issuer of a health benefit plan must [shall], within 14 calen- have the following meanings unless the context clearly indicates oth- dar days, submit to the department [Deputy Commissioner of the HMO erwise. Division] and to the physician or provider: (1) - (5) (No change.) (1) (No change.) (6) Physician-- (2) any additional information necessary for the determi- (A) (No change.) nation of the appeal. (B) a professional association organized under the (k) The department [Deputy Commissioner of the HMO Di- Texas Professional Association Law [Act] (Business Organizations vision] may request additional information from either party and may Code Chapters 301 and 302 [Article 1528f, Vernon's Texas Civil request the parties to appear at a hearing. Either party may choose to Statutes]); attend a hearing conducted at the department or participate in a hearing via telephone. (C) (No change.) (l) Upon receipt of all information required by subsections (i) (D) a medical school or medical and dental unit, as de- and (j) of this section, the Director of Managed Care Quality Assur- fined or described by Education Code §§61.003, 61.501, or 74.601[, ance will [Deputy Commissioner of the HMO Division shall] issue a Education Code], that employs or contracts with physicians to teach determination within 14 calendar days of the later of the receipt of all or provide medical services or employs physicians and contracts with necessary information or the conclusion of the hearing. physicians in a practice plan; or (m) Either party may request a hearing before the Deputy (E) (No change.) Commissioner of Life and Health [Senior Associate Commissioner (7) (No change.) of the Life, Health and Licensing Program] for reconsideration of the Director of the Managed Care Quality Assurance Office's [Deputy The agency certifies that legal counsel has reviewed the pro- Commissioner of the HMO Division's] determination. Either party posal and found it to be within the state agency's legal authority may choose to attend a hearing conducted at the department or partic- to adopt.

46 TexReg 3722 June 18, 2021 Texas Register Filed with the Office of the Secretary of State on June 7, 2021. (d) Updates to standards. The department will update the table TRD-202102212 of standards posted on its [internet] website on at least an annual basis, as necessary, to reflect changes made to national accreditation organi- James Person zation standards. General Counsel Texas Department of Insurance The agency certifies that legal counsel has reviewed the pro- Earliest possible date of adoption: July 18, 2021 posal and found it to be within the state agency's legal authority For further information, please call: (512) 676-6584 to adopt. ♦ ♦ ♦ Filed with the Office of the Secretary of State on June 7, 2021. SUBCHAPTER GG. HEALTH CARE QUALITY TRD-202102213 James Person ASSURANCE PRESUMED COMPLIANCE General Counsel 28 TAC §21.4105 Texas Department of Insurance Earliest possible date of adoption: July 18, 2021 STATUTORY AUTHORITY. TDI proposes amendments to For further information, please call: (512) 676-6584 §21.4105 under Insurance Code §847.007 and §36.001. Insurance Code §847.007 provides that the Commissioner may ♦ ♦ ♦ by rule determine the application of compliance with national ac- TITLE 40. SOCIAL SERVICES AND ASSIS- creditation requirements by a delegated entity, delegated third party, or utilization review agent to compliance by the health ben- TANCE efit plan issuer that contracts with the delegated entity, delegated third party, or agent. PART 19. DEPARTMENT OF FAMILY Insurance Code §36.001 provides that the Commissioner may AND PROTECTIVE SERVICES adopt any rules necessary and appropriate to implement the powers and duties of TDI under the Insurance Code and other CHAPTER 700. CHILD PROTECTIVE laws of this state. SERVICES CROSS-REFERENCE TO STATUTE. Section 21.4105 imple- SUBCHAPTER A. ADMINISTRATION ments Insurance Code §847.005. 40 TAC §700.104, §700.106 §21.4105. Department Monitoring and Analysis of National Accred- itation Organization Standards. The Department of Family and Protective Services (DFPS), pro- poses the repeal of §700.104 and §700.106 in Title 40, Texas (a) Analysis of standards. The department will compare statu- Administrative Code (TAC), Chapter 700, Subchapter A, relating tory and regulatory requirements of the department for health benefit to Administration. plan issuers with the standards of national accreditation organizations. BACKGROUND AND PURPOSE The standards of national accreditation organizations that are the same as, substantially similar to, or more stringent than the department's The purpose of the repeals are to update the rules concerning [department] statutory and regulatory requirements will be identified DFPS records to reflect DFPS's current policy and practice of and used to determine the presumption of compliance of health benefit creating and maintaining records, including the central registry, plan issuers. as many of the rules are outdated. These amendments include updates to rule sections concerning what DFPS considers confi- (b) Monitoring schedule. The department will [shall], at least dential case records, how long DFPS retains records and the annually, monitor and analyze updates and amendments made to ac- process for retaining records, and how an individual can ac- creditation standards by national accreditation organizations to ensure cess confidential case records and public records. The changes that those standards remain the same as, substantially similar to, or also include consolidating the rules regarding DFPS records and more stringent than the statutory and regulatory requirements of the the central registry into one chapter as currently both, Chap- department. ters 700 and 702 address records and the central registry. Fi- (c) Posting of standards. The department will post a table on nally, the rule changes also include clarifying for the public and its [internet] website that contains a summary of its comparison of na- DFPS staff when DFPS will maintain records past the reten- tional accreditation organization standards with the statutory and regu- tion schedule pursuant to the mandates in Government Code latory requirements of the department and indicates which portions of §441.186, including for litigation holds, and how DFPS uses and the examination process the department will presume compliance for handles such records. While the changes appear far reaching, accredited entities. The presumed compliance table listing the sum- they do not result in any changes to the DFPS records retention mary of the comparison of national accreditation standards and depart- schedules, do not increase the amount of time DFPS maintains ment statutory and regulatory requirements may be obtained from: records, do not change the persons and entities DFPS currently releases records to pursuant to state and federal law, and do not (1) the department's [Department's internet] website at[:] change the process for requesting or releasing records. www.tdi.texas.gov [www.tdi.state.tx.us]; or SECTION-BY-SECTION SUMMARY (2) the Financial Regulation [Health and WC Network Cer- tification and QA] Division, MC-FRD [Mail Code 103-6A], Texas De- The proposed repeal of §700.104 is being deleted and its con- partment of Insurance, P.O. Box 12030 [149104], Austin, Texas 78711- tents are being incorporated into current rule §702.251 of this title 2030 [78714-9104]. (relating to What is the Central Registry?). The purpose of this consolidation is to ensure that the rules concerning the Central

PROPOSED RULES June 18, 2021 46 TexReg 3723 Registry are contained within the same chapter and subchapter The department has determined that this proposal is not a of DFPS rules. "major environmental rule" as defined by Government Code §2001.0225. The proposed repeal of §700.106 is being deleted and its con- tents are being incorporated into current rule §702.201 of this TAKINGS IMPACT ASSESSMENT title (relating to What types of records are maintained by the De- DFPS has determined that the proposal does not restrict or limit partment of Family and Protective Services?). The purpose of an owner's right to his or her property that would otherwise exist this consolidation is to ensure that the rules concerning DFPS in the absence of government action and, therefore, does not records creation, retention, and destruction are contained within constitute a taking under Government Code, §2007.043. the same chapter and subchapter of DFPS rules. PUBLIC COMMENT FISCAL NOTE Comments and questions on this proposal must be submitted David Kinsey, Chief Financial Officer of DFPS, has determined within 30 days of publication of the proposal in the Texas Regis- that for each year of the first five years that the repeals will be in ter. Electronic comments and questions may be submitted to effect, there will not be fiscal implications to state or local gov- Policy Attorney, Katharine McLaughlin at Katharine.McLaugh- ernments. [email protected]. Hard copy comments may be submitted GOVERNMENT GROWTH IMPACT STATEMENT to the DFPS Rules Coordinator, Legal Services 20R05, Depart- ment of Family and Protective Services E-611, P.O. Box 149030, DFPS has determined that during the first five years that the Austin, Texas 78714-9030. proposed rules will be in effect: STATUTORY AUTHORITY (1) the proposed repeals will not create a government program; The repeals are proposed under Human Resources Code (HRC) (2) implementation of the proposed repeals will not affect the §40.027, which provides that the Department of Family and Pro- number of employee positions); tective Services commissioner shall oversee the development of (3) implementation of the proposed repeals will not require an rules relating to the matters within the department's jurisdiction increase or decrease in future legislative appropriations to the and adopt rules for the operation and provision of services by agency; the department. (4) the proposed repeals will not affect fees paid to the agency; The repeals implement Texas Family Code § 261.002 and Texas Government Code §§ 441.183-441.189. (5) the proposed repeals will not create a new regulation; No other statutes, articles, or codes are affected by the proposed (6) the proposed repeals will not expand, limit, or repeal an ex- rules. isting regulation; §700.104. Child Abuse and Neglect Central Registry. (7) the proposed repeals will not change the number of individu- als subject to the rule; and §700.106. Retention and Destruction of Case Information. The agency certifies that legal counsel has reviewed the pro- (8) the proposed repeals will not affect the state's economy. posal and found it to be within the state agency's legal authority SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COM- to adopt. MUNITY IMPACT ANALYSIS Filed with the Office of the Secretary of State on June 7, 2021. Mr. Kinsey has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural TRD-202102214 communities. Tiffany Roper General Counsel The proposed repeals do not apply to small or micro-businesses, Department of Family and Protective Services or rural communities. Earliest possible date of adoption: July 18, 2021 ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL For further information, please call: (512) 438-3397 EMPLOYMENT ♦ ♦ ♦ The proposed repeals will not affect a local economy. COSTS TO REGULATED PERSONS CHAPTER 702. GENERAL ADMINISTRATION Pursuant to subsection (c)(7) of Texas Government Code The Department of Family and Protective Services (DFPS), pro- §2001.0045, the statute does not apply to a rule that is adopted poses amendments to §§702.201, 702.213, 702.221, 702.251, by the Department of Family and Protective Services. 702.255 702.257; new §§702.203, 702.205, 702.207, 702.209, 702.211; and repeals of §§702.205, 702,209, 702.217, 702.223 PUBLIC BENEFIT and 702.253 in Title 40, Texas Administrative Code (TAC), Chap- Tiffany Roper, General Counsel of DFPS, has determined that ter 702, relating to General Administration. for each year of the first five years the repeals are in effect, the BACKGROUND AND PURPOSE public will benefit from having greater clarity because the DFPS records and the central registry will be within the same chapter The purpose of the proposed changes is to update the rules con- and subchapter. cerning DFPS records to reflect DFPS's current policy and prac- tice of creating and maintaining records, including the central REGULATORY ANALYSIS registry, as many of the rules are outdated. These amendments include updates to rule sections concerning what DFPS consid- ers confidential case records, how long DFPS retains records

46 TexReg 3724 June 18, 2021 Texas Register and the process for retaining records, and how an individual Proposed amendments to §702.213 consist of clarifying the can access confidential case records and public records. The process to request DFPS public information as specified in changes also include consolidating the rules regarding DFPS Government Code §552.234. records and the central registry into one chapter as currently Section 702.217 is being deleted as the information concerning Chapters 700 and 702 address records and the central registry. storage of and request for client records is outdated and inaccu- Finally, the rule changes also include clarifying for the public rate. Relevant content regarding requesting confidential client and DFPS staff when DFPS will maintain records past the re- records is being incorporated into new §702.207 (relating to How tention schedule pursuant to the mandates in Government Code can a person request confidential case records?). §441.186, including for litigation holds, and how DFPS uses and handles such records. While the changes appear far reaching, Proposed amendments to §702.221 consist of minor edits, they do not result in any changes to the DFPS records retention including updating agency names and TAC references and schedules, do not increase the amount of time DFPS maintains deleting outdated information about the cost for obtaining DFPS records, do not change the persons and entities DFPS currently brochures and publications. releases records to pursuant to state and federal law, and do not Section 702.223 is being deleted and its contents are being in- change the process for requesting or releasing records. corporated into new §702.209 (relating to How does the De- SECTION-BY-SECTION SUMMARY partment of Family and Protective Services prioritize fulfilling re- quests for copies of confidential client records that require redac- Proposed amendments to §702.201 primarily consist of incor- tion prior to their release?) with minor, non-substantive edits so porating content concerning the purpose of confidential case that all rules concerning confidential case records are sequen- records from subsection (a) of §700.106 (relating to Retention tially located in Chapter 702. and Destruction of Case Information), which is being proposed for repeal. Proposed amendments to §702.251 include: (1) incorporating the content from §700.104 (relating to Child Abuse and Neglect Proposed new §702.203: (1) explains that DFPS maintains both Central Registry) and §702.253 (relating to What information paper and electronic case records and further explains how does the Central Registry include?), which are being proposed the records are stored; and (2) incorporates content regarding for repeal; (2) updating the rule to explain that the Central Reg- recordings made at child advocacy centers from subsection istry includes the names of persons alleged to be the perpetra- (c) of §700.106 (relating to Retention and Destruction of Case tor of child abuse or neglect in an ongoing investigation being Information), which is being proposed for repeal. conducted by DFPS; and (3) updating the rule to reflect the cur- Section 702.205 (relating to Does PRS make information avail- rent agency structure, including removing reference to the Child able on the public Internet) is being deleted, because when this Care Licensing division which was transferred from DFPS to the rule was first written the internet was not as widely used or easy Health and Human Services Commission in September 2017. to navigate as it is now. Therefore, a rule explaining to the pub- Section 702.253 is being deleted and the content in the rule con- lic information that can be found on the DFPS public website cerning the types of abuse and neglect investigations that result is now unnecessary. A new §702.205 is being proposed. New in a person's name being placed on the Central Registry is being §702.205 incorporates content from subsections (b), (d), (e), and combined with current §702.251 (relating to What is the Central (f) of §700.106 (relating to Retention and Destruction of Case In- Registry?). formation), which is being proposed for deletion. The new rule includes the following: (1) information on maintaining and de- Proposed amendments to §702.255 include: (1) deleting infor- stroying electronic and physical case records in accordance with mation regarding the records retention schedule as that informa- the Records Retention Schedule available on the DFPS website; tion is already addressed in current §702.201 (relating to What (2) how a retention period for case records can be extended pur- types of records are maintained by the Department of Family and suant to Texas Government Code §441.187 and if DFPS opens Protective Services); and (2) clarifying that when an investiga- a new case involving a party from a former closed case that has tion results in a "Confirmed" or "Reason To Believe," the finding not been destroyed; and (3) use of case information by DFPS remains in the Central Registry in accordance with the records that is part of a case for which the retention period has been ex- retention schedule. tended. Proposed amendments to §702.257 consist of minor, non-sub- Proposed new §702.207 incorporates content from the following stantive edits. rules which are being proposed for repeal: §702.213 (relating to FISCAL NOTE How can a member of the public obtain information or copies of records that are not on the PRS web site?) and §702.217 (relat- David Kinsey, Chief Financial Officer of DFPS, has determined ing to Where should the Information Request Form be submitted) that for each year of the first five years that the sections will be with minor updates to reflect the current process for requesting in effect, there will not be fiscal implications to state or local gov- confidential case records. ernments. Section 702.209 is being deleted and its contents are being in- GOVERNMENT GROWTH IMPACT STATEMENT corporated into new §702.211 (relating to Does the Department DFPS has determined that during the first five years that the of Family and Protective Services make information available on proposed rules will be in effect: the public Internet). A new §702.209 is being proposed. New §702.209 incorporates the content of §702.223 (relating to How (1) the proposed rules will not create a government program; does the department prioritize fulfilling requests for copies of (2) implementation of the proposed rules will not affect the num- confidential client records that require redaction prior to their re- ber of employee positions; lease?), which is being proposed for repeal, with minor, non-sub- stantive edits.

PROPOSED RULES June 18, 2021 46 TexReg 3725 (3) implementation of the proposed rules will not require an [email protected]. Hard copy comments may be submitted increase or decrease in future legislative appropriations to the to the DFPS Rules Coordinator, Legal Services 20R05, Depart- agency; ment of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030. (4) the proposed rules will not affect fees paid to the agency; (5) the proposed rules will create a new regulation; new rules are SUBCHAPTER B. AGENCY RECORDS AND being added to Chapter 702, Subchapter B and C, that further INFORMATION clarify DFPS's record creation and maintenance process. 40 TAC §§702.201, 702.203, 702.205, 702.207, 702.209, (6) the proposed rules will repeal existing regulations to the ex- 702.211, 702.213, 702.221 tent that the rules concerning records and the central registry in Chapter 700, Subchapter A, are being repealed and the con- STATUTORY AUTHORITY tent from those rules is being incorporated into existing rules in The new and amended sections are proposed under Human Re- Chapter 702, Subchapters B and C. In addition, the updates to sources Code (HRC) §40.027, which provides that the Depart- Chapter 702, Subchapters B and C, includes combining content ment of Family and Protective Services commissioner shall over- from similar rules, and deleting duplicative rules. see the development of rules relating to the matters within the (7) the proposed rules will not change the number of individuals department's jurisdiction and adopt rules for the operation and subject to the rule; and provision of services by the department. (8) the proposed rules will not affect the state's economy. The proposed new and amended sections implement Texas Family Code §261.002 and Texas Government Code SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COM- §§441.183-441.189. MUNITY IMPACT ANALYSIS No other statutes, articles, or codes are affected by the proposed Mr. Kinsey has also determined that there will be no adverse rules. economic effect on small businesses, micro-businesses, or rural communities. §702.201. What types of records are maintained by the Department of Family and Protective Services [PRS]? The proposed repeals do not apply to small or micro-businesses, or rural communities. (a) The Department of Family and Protective Services (DFPS) [PRS] maintains records relating to our general administrative func- ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL tions, including personnel records, financial records, policy and proce- EMPLOYMENT dure manuals, and agency performance measurements. These records, The proposed rules will not affect a local economy. referred to as "Administrative Records," are generally available to the public and may be requested under the Texas Public Information Act in COSTS TO REGULATED PERSONS Chapter 552, Texas Government Code[, Chapter 552, the Texas Public Pursuant to subsection (c)(7) of Texas Government Code Information Act]. §2001.0045, the statute does not apply to a rule that is adopted (b) DFPS [PRS] also maintains confidential records on clients by the Department of Family and Protective Services. DFPS is or was involved with, including records developed in an abuse PUBLIC BENEFIT and neglect investigation and/or in providing services as the result of an investigation, in order to meet state and federal accountability re- Tiffany Roper, General Counsel of DFPS, has determined that quirements, as applicable [relating to the clients served by our pro- for each year of the first five years the rules are in effect, the grams]. These records, referred to as "Case Records," are generally not public will be better informed regarding the current policy and available to the public, although they may be available to individuals practices of DFPS records management, including how DFPS [individual clients], government agencies, and others, as provided by maintains different types of records and how the public can re- state and federal laws and DFPS [PRS] rules. Rules [Additional rules] quest copies of those records. The public will also have a better concerning confidential case [client] records specific to each DFPS pro- understanding of the purpose of the DFPS Central Registry and gram can [may] be found in Chapters 700, 705, and 707 [the chapters] the information contained in the Central Registry. of this part [specifically relating to the Child Protective Services, Adult REGULATORY ANALYSIS Protective Services, and the Child-Care Licensing programs]. The department has determined that this proposal is not a (c) A complete listing of the types of records maintained by "major environmental rule" as defined by Government Code DFPS [PRS] may be found in the DFPS [PRS] Records Retention §2001.0225. Schedule[, available on the PRS public web site]. The Schedule can be found on DFPS's public website. TAKINGS IMPACT ASSESSMENT §702.203. How does the Department of Family and Protective Ser- DFPS has determined that the proposal does not restrict or limit vices maintain confidential case records? an owner's right to his or her property that would otherwise exist (a) The Department of Family and Protective Services (DFPS) in the absence of government action and, therefore, does not maintains paper and electronic case records. Electronic case records constitute a taking under Government Code, §2007.043. are primarily maintained in DFPS's electronic case management sys- PUBLIC COMMENT tem of records, called Information Management Protecting Adults and Children in Texas (IMPACT). Electronic records are also maintained Comments and questions on this proposal must be submitted in other systems as needed. within 30 days of publication of the proposal in the Texas Regis- ter. Electronic comments and questions may be submitted to (b) As part of our case records, we may also maintain record- Policy Attorney, Katharine McLaughlin at Katharine.McLaugh- ings made at child advocacy centers during the course of investigations

46 TexReg 3726 June 18, 2021 Texas Register if we are the owner of the recordings pursuant to Texas Family Code, §702.209. How does the Department of Family and Protective §264.408(d) or when the child advocacy center provides us a copy of Services prioritize fulfilling requests for copies of confidential client the recordings for our case records. records that require redaction prior to their release? (c) Physical files may be stored in the DFPS regional office (a) The Department of Family and Protective Services (DFPS) handling the case while the case is active or open. When physical fulfills requests for client records in the following priority order, from records are inactive or closed, they are transferred to DFPS's Records highest to lowest priority ranking: Management Group (RMG). DFPS's Records Management Officer de- (1) Records provided in response to a subpoena or court termines the most appropriate way to retain them until their retention order that has been properly served on DFPS; period is met. Physical records may be retained in their original format and stored at state facilities or with a third-party vendor or they may be (2) Records provided in response to discovery in a lawsuit converted to digital images for electronic filing. to which DFPS is a party; §702.205. How long does the Department of Family and Protective (3) Records provided to a prospective adoptive family be- Services retain confidential case records? fore an adoption may be consummated; (a) Physical case records and case records and information (4) Records provided to a party or the administrative law in DFPS's electronic case management system entitled Information judge in an Employee Misconduct Registry administrative hearing; Management Protecting Adults and Children in Texas (IMPACT) (5) Records provided to a party or the administrative law and other electronic systems are generally retained and destroyed in judge in a hearing conducted by the State Office of Administrative accordance with the Department of Family and Protective Services' Hearings; (DFPS) Records Retention Schedule. The Schedule can be found on DFPS's public website. The retention period of a record is calculated (6) Records provided to a duly authorized person docu- from the time the case is closed. When the retention period has menting the results of a school investigation as required by §261.406, expired, DFPS permanently removes the case information from any Texas Family Code; electronic storage, including IMPACT, and destroys any paper case (7) Records provided to a party in an administrative review record in a manner that protects confidentiality. of investigative findings that is conducted by DFPS; (b) Notwithstanding subsection (a) of this section, the reten- (8) Records provided to an adult who was previously in the tion period for a DFPS record may be extended for the following rea- conservatorship of DFPS if the request is for a copy of such adult's own sons: "case record" as defined by §264.0145, Texas Family Code; and (1) Pursuant to Texas Government Code §441.187, if a lit- (9) Records provided to all other requestors entitled to re- igation, claim, negotiation, audit, open records request, administrative ceive the requested records, which are fulfilled in the order they are review, or other action involving the record is initiated before the re- received. tention period for the record expires, DFPS may not destroy the record until the completion of the action and resolution of all issues that arise (b) Notwithstanding subsection (a) of this section, DFPS re- from the action, even if the retention period for the record expires dur- serves the right to expedite any request for records when we determine ing that period. If an action or activity involving the record is initiated, that a delay in fulfilling the request may: the retention period for that record is extended for the amount of time (1) jeopardize the health or safety of any person; that the action or activity is in process. (2) cause any person to suffer undue hardship; or (2) If DFPS opens a new case on a party to an older closed case that has not been destroyed pursuant to DFPS's retention schedule, (3) result in DFPS's failure to meet a mandatory deadline DFPS may merge or relate the cases. Merged cases may be reclassified for production of the requested records as imposed by a court or ad- and extended to coincide with the retention period of the case with ministrative tribunal. the latest retention period. For purposes of this section, merge means (c) Additional information on who is entitled to receive confi- combining two or more separate cases into one case. dential client records is provided in the following chapters in Title 40, (c) If the retention period for a case record is extended as pro- Texas Administrative Code: vided in subsections (b) of this section, DFPS may use the information (1) Chapter 700 of this title (relating to Child Protective in the case record as necessary to make case related decisions, assess Services); risk of abuse or neglect, or for any other purpose for as long as DFPS retains the case record. (2) Chapter 705 of this title (relating to Adult Protective Services); and §702.207. How can you request confidential case records? (3) Chapter 707 of this title (relating to Child Protective If you are entitled to confidential case records, you can request the Investigations). records in the following ways: §702.213. How can a member of the public obtain information or (1) For the quickest response, submit your request for copies of administrative records that are not on the Department of Fam- client records electronically through the Department of Family and ily and Protective Services [PRS] web site? Protective Services' (DFPS) website. Requests for copies of administrative records as defined in §702.201(a) (2) You also may submit a written request by mail. Writ- in this subchapter (relating to What types of records are maintained by ten requests must be made on a DFPS Information Request Form and the Department of Family and Protective Services?" must [generally] mailed to the DFPS Records Management Group at Y-937, P.O. Box be submitted following the instructions on the DFPS public website, 149030, Austin, TX, 78714-9030 with a copy of your photo identifica- Open Records Policy. A written request may also be hand delivered to tion. The forms can be found on the DFPS website. the DFPS headquarters office or mailed to the mailing address found

PROPOSED RULES June 18, 2021 46 TexReg 3727 on the DFPS public website. [in writing, along with proof of identifica- Tiffany Roper tion, unless the request is for a copy of a PRS brochure or publication General Counsel specifically designed for public distribution. To ensure that all neces- Department of Family and Protective Services sary information is included with your request, you may be asked to Earliest possible date of adoption: July 18, 2021 complete a PRS Information Request Form. A copy of this form may For further information, please call: (512) 438-3397 be downloaded from the PRS public web site or requested from any PRS office.] ♦ ♦ ♦ §702.221. Is there a charge for copies of the Department of Family SUBCHAPTER C. CHILD ABUSE AND and Protective Services [PRS] records? NEGLECT CENTRAL REGISTRY Yes. The Department of Family and Protective Services (DFPS) [PRS] charges a fee to cover the costs of providing copies of its records[, 40 TAC §§702.251, 702.255, 702.257 other than PRS brochures and publications specifically designed for The amended sections are proposed under Human Resources public distribution at no cost]. Fees are calculated according to rules Code (HRC) §40.027, which provides that the Department of adopted by the Office of the Attorney General [Services Commission, Family and Protective Services commissioner shall oversee the located in 1 TAC Chapter 11, Subchapter C (relating to Cost of Copies development of rules relating to the matters within the depart- of Public Information)]. We may, at our discretion, waive charges if we ment's jurisdiction and adopt rules for the operation and provi- determine that waiver is in the public interest or if we determine that sion of services by the department. the cost of collecting a fee exceeds the cost of providing the records. The proposed amended sections implement Texas Family Code The agency certifies that legal counsel has reviewed the pro- §261.002 and Texas Government Code §§441.183-441.189. posal and found it to be within the state agency's legal authority to adopt. No other statutes, articles, or codes are affected by the proposed rules. Filed with the Office of the Secretary of State on June 7, 2021. §702.251. What is the Central Registry? TRD-202102215 (a) The Child Abuse and Neglect Central Registry is a reg- Tiffany Roper istry maintained by the Department of Family and Protective Services General Counsel (DFPS), as required by Texas Family Code, §261.002, of substantiated Department of Family and Protective Services [validated] cases of child abuse or neglect [that is maintained by the De- Earliest possible date of adoption: July 18, 2021 partment, as required by Texas Family Code, §261.002]. The Central For further information, please call: (512) 438-3397 Registry [registry] is maintained as a subset of information in the DFPS electronic case management [automated database] system entitled In- ♦ ♦ ♦ formation Management Protecting Adults and Children in Texas (IM- 40 TAC §§702.205, 702.209, 702.217, 702.223 PACT). The repealed sections are proposed under Human Resources (b) The Central Registry contains only the names of persons Code (HRC) §40.027, which provides that the Department of designated or sustained as perpetrators of child abuse or neglect by: Family and Protective Services commissioner shall oversee the (1) the Child Protective Investigations division of DFPS, development of rules relating to the matters within the depart- including Investigations, Special Investigations, and Child Care Inves- ment's jurisdiction and adopt rules for the operation and provi- tigations; and sion of services by the department. (2) the Provider Investigation Program of the Health and The repealed sections implement Texas Family Code §261.002 Human Services Commission's Regulatory Services Department. and Texas Government Code §§441.183-441.189. (c) The Central Registry also contains the names of persons No other statutes, articles, or codes are affected by the proposed who are alleged to be the perpetrator of child abuse or neglect in an repeals. ongoing investigation being conducted by DFPS. If at the conclusion §702.205. Does PRS make information available on the public Inter- of the investigation DFPS does not designate the person as a perpetrator net? of the abuse or neglect, DFPS will remove the person's name from the Central Registry. §702.209. What is the PRS public web site address? §702.255. How long is investigation information relating to a §702.217. Where should the Information Request Form be submit- substantiated [validated] child abuse or neglect case retained in the ted? Central Registry? §702.223. How does the department prioritize fulfilling requests for Investigations that result in a "reason to believe" or "confirmed" copies of confidential client records that require redaction prior to their finding are maintained in the Central Registry in accordance with the release? [for as long as the investigation case file is retained by the Department under the Department's] official Records Retention Schedule of the The agency certifies that legal counsel has reviewed the pro- agency that conducted the investigation. When the case containing posal and found it to be within the state agency's legal authority the investigation record is no longer retained, the central registry to adopt. information is also deleted. [The Department's Record Retention Schedule for CPS, APS, and CCL case records can be found at: Filed with the Office of the Secretary of State on June 7, 2021. http://www.dfps.state.tx.us/documents/about/pdf/RecordRetention- TRD-202102216 Schedule.pdf.]

46 TexReg 3728 June 18, 2021 Texas Register §702.257. Is the information in the Central Registry available to the Family and Protective Services commissioner shall oversee general public? the development of rules relating to the matters within the department's jurisdiction and adopt rules for the operation and No. The information stored in the Central Registry is confidential and provision of services by the department. may be released by the Department of Family and Protective Services (DFPS) only as provided by federal and state law, including DFPS The proposed repealed section implements Texas Family Code [Department] rules. §261.002 and Texas Government Code §§441.183-441.189. The agency certifies that legal counsel has reviewed the pro- No other statutes, articles, or codes are affected by the proposed posal and found it to be within the state agency's legal authority rules. to adopt. §702.253. What information does the Central Registry include? Filed with the Office of the Secretary of State on June 7, 2021. The agency certifies that legal counsel has reviewed the pro- TRD-202102217 posal and found it to be within the state agency's legal authority Tiffany Roper to adopt. General Counsel Filed with the Office of the Secretary of State on June 7, 2021. Department of Family and Protective Services Earliest possible date of adoption: July 18, 2021 TRD-202102218 For further information, please call: (512) 438-3397 Tiffany Roper General Counsel ♦ ♦ ♦ Department of Family and Protective Services 40 TAC §702.253 Earliest possible date of adoption: July 18, 2021 For further information, please call: (512) 438-3397 The repealed section is proposed under Human Resources Code (HRC) §40.027, which provides that the Department of ♦ ♦ ♦

PROPOSED RULES June 18, 2021 46 TexReg 3729

TITLE 7. BANKING AND SECURITIES ♦ ♦ ♦ PART 6. CREDIT UNION TITLE 19. EDUCATION DEPARTMENT PART 2. TEXAS EDUCATION AGENCY CHAPTER 91. CHARTERING, OPERATIONS, CHAPTER 109. BUDGETING, ACCOUNTING, MERGERS, LIQUIDATIONS AND AUDITING SUBCHAPTER H. INVESTMENTS SUBCHAPTER C. ADOPTIONS BY 7 TAC §91.809 REFERENCE The Credit Union Commission (the Commission) adopts new 19 TAC §109.41 §91.809, concerning Purchase of Assets and Assumption of Lia- bilities, without changes to the proposed text as published in the The State Board of Education (SBOE) adopts an amendment to March 19, 2021, issue of the Texas Register (46 TexReg 1718). §109.41, concerning budgeting, accounting, and auditing. The The new rule will not be republished. amendment is adopted without changes to the proposed text as published in the March 5, 2021 issue of the Texas Regis- The new rule formally recognizes authority available to state- ter (46 TexReg 1449) and will not be republished. The amend- chartered credit unions due to the availability of those powers ment adopts by reference the updated Financial Accountability to federal credit unions, as granted through parity found under System Resource Guide (FASRG). Although changes were not Texas Finance Code, Title 2, §123.003(a). made to the text of §109.41, the FASRG adopted by reference The new rule outlines the authority of credit unions to initiate pro- in the rule includes changes to Modules 1-6 at adoption. grams of purchasing loans or assuming an assignment of de- REASONED JUSTIFICATION: The FASRG describes the rules posits, shares, or liabilities from any credit union, another finan- of financial accounting for school districts, charter schools, and cial-type institution, or any successor in interest to such an entity. education service centers and is adopted by reference under The rule further outlines the requirement to seek Commissioner §109.41. Revisions to the FASRG would align the content approval on certain transactions of this type and clarifies the ap- with current governmental accounting and auditing standards, proval application process. remove obsolete requirements, and remove descriptions and The Commissioner did not receive any comments on the pro- discussions of best practices and other non-mandatory ele- posed new rule. ments. The new rule is adopted under the authority granted by the Texas Requirements for financial accounting and reporting are derived Legislature to the Commission pursuant Texas Finance Code, from generally accepted accounting principles (GAAP). School Section 15.402, which authorizes the Commission to adopt rea- districts and charter schools are required to adhere to GAAP. sonable rules for administering Title 2, Chapter 15 and Title 3, Legal and contractual considerations typical of the government Subtitle D of the Texas Finance Code. environment are reflected in the fund structure basis of account- ing. The statutory provisions affected by this adoption are Texas Fi- nance Code, Sections 124.351 and 124.352. An important function of governmental accounting systems is to enable administrators to assure and report on compliance The agency certifies that legal counsel has reviewed the adop- with finance-related legal provisions. This assurance and re- tion and found it to be a valid exercise of the agency's legal au- porting means that the accounting system and its terminology, thority. fund structure, and procedures must be adapted to satisfy fi- nance-related legal requirements. However, the basic financial Filed with the Office of the Secretary of State on June 4, 2021. statements of school districts and charter schools should be pre- TRD-202102179 pared in conformity with GAAP. John J. Kolhoff School district and charter school accounting systems shall use Commissioner the accounting code structure presented in the Account Code Credit Union Department section of the FASRG (Module 1). Funds shall be classified Effective date: June 24, 2021 and identified on required financial statements by the same code Proposal publication date: March 19, 2021 number and terminology provided in the Account Code section For further information, please call: (512) 837-9236 of the FASRG (Module 1).

ADOPTED RULES June 18, 2021 46 TexReg 3731 The following changes were made to Modules 1-6 of the FASRG. ments from Texas Education Code (TEC), §44.008, as well as Code of Federal Regulations, Title 2, Part 200, Subpart F, Au- Module 1, Financial Accounting and Reporting (FAR) and FAR dit Requirements, that implement the federal Single Audit Act. Appendices The module also includes current auditing guidance that comple- Module 1 aligns with current governmental accounting stan- ments the AICPA Audit and Accounting Guide, State and Local dards. Module 1 as adopted includes the following significant Governments and supplements the Government Auditing Stan- changes. School districts and charter schools are required dards of the United States GAO. These requirements facilitate to maintain proper budgeting and financial accounting and preparation of financial statements that conform to GAAP estab- reporting systems. In addition, school districts are required lished by the GASB. to establish principles and policies to ensure uniformity in Since published as proposed, changes were made to Module 4 accounting in conformity with GAAP established by the Govern- to implement recent changes to federal statutes and rules, ac- mental Accounting Standards Board (GASB) and the Financial counting and auditing standards, and authoritative guidance; re- Accounting Standards Board (FASB). move outdated references; and add clarity through grammatical Since published as proposed, changes were made to Module 1 edits. to implement recent changes to federal statutes and rules, ac- Module 5, Purchasing counting and auditing standards, fund codes, and authoritative guidance and add clarity through grammatical edits. Module 5 aligns with current purchasing laws and standards. Module 5 as adopted includes the following significant changes. Module 2, Special Supplement - Charter Schools School districts and charter schools are required to establish Module 2 aligns with current financial and accounting reporting procurement policies and procedures that align with their unique standards. Module 2 as adopted includes the following signifi- operating environment and ensure compliance with relevant cant changes. The module establishes financial and accounting statutes and policies. requirements for Texas public charter schools to ensure unifor- Since published as proposed, changes were made to Module 5 mity in accounting in conformity with GAAP. The module also to implement recent legislative changes and changes to author- includes current guidance that complements the American Insti- itative guidance, remove outdated references, provide clearer tute of Certified Public Accountants (AICPA) Audit and Account- guidance, and add clarity through grammatical edits. ing Guide, State and Local Governments and supplements the Government Auditing Standards of the United States Govern- Module 6, Compensatory Education, Guidelines, Financial ment Accountability Office (GAO). These requirements facilitate Treatment, and an Auditing and Reporting System preparation of financial statements that conform to GAAP estab- Module 6 aligns with current governmental accounting stan- lished by the FASB. dards. Module 6 as adopted includes the following significant Since published as proposed, changes were made to Module 2 changes. School districts and charter schools are required to implement recent changes to federal statutes and rules, ac- to maintain proper budgeting and financial accounting and counting and auditing standards, and authoritative guidance and reporting systems. The module provides current information add clarity through grammatical edits. to assist local school officials' understanding of the numerous options for use of the state compensatory education allotment Module 3, Special Supplement - Non-profit Charter Schools and provides current guidance for compliance. Chart of Accounts Since published as proposed, changes were made to Module 6 Module 3 aligns with current governmental accounting stan- to implement recent changes to state statutes and rules, remove dards. Module 3 as adopted includes the following significant outdated references, provide guidance for compliance, and add changes. Charter schools are required to maintain proper clarity through grammatical edits. budgeting and financial accounting and reporting systems that are in conformity with Texas Education Data Standards The SBOE approved the proposed amendment for first reading (TEDS) in the Texas Student Data System Public Education and filing authorization at its January 29, 2021 meeting and for Information Management System (TSDS PEIMS). In addition, second reading and final adoption at its April 16, 2021 meeting. charter schools are required to establish principles and policies In accordance with TEC, §7.102(f), the SBOE approved the to ensure uniformity in accounting in conformity with GAAP amendment for adoption by a vote of two-thirds of its members established by the FASB. The module also includes current to specify an effective date earlier than the beginning of the auditing guidance that complements the AICPA Audit and 2021-2022 school year. The earlier effective date will ensure Accounting Guide, State and Local Governments and supple- the provisions of the FASRG align with current governmental ments the Government Auditing Standards of the United States accounting and auditing standards for school districts and GAO. These requirements facilitate preparation of financial charter schools as soon as possible. The effective date is 20 statements that conform to GAAP established by the FASB. days after filing as adopted with the Texas Register. Since published as proposed, changes were made to Module 3 SUMMARY OF COMMENTS AND RESPONSES: The public to implement recent changes to federal statutes and rules, ac- comment period on the proposal began March 5, 2021, and counting and auditing standards, fund codes, and authoritative ended at 5:00 p.m. on April 9, 2021. The SBOE also provided guidance and add clarity through grammatical edits. an opportunity for registered oral and written comments at its Module 4, Auditing April 2021 meeting in accordance with the SBOE board oper- ating policies and procedures. Following is a summary of the Module 4 aligns with current governmental auditing standards. public comments received and corresponding responses. Module 4 as adopted includes the following significant changes. The module establishes auditing requirements for Texas public Comment. An external independent auditor for Texas school dis- school districts and charter schools and includes current require- tricts commented that neither the FASRG Module 1 nor FASRG

46 TexReg 3732 June 18, 2021 Texas Register FAR Appendices contain the updated wording to replace the has determined that the salaries of additional elementary grade term "agency funds" with "custodial funds" pursuant to guidance teachers needed to create class sizes below the required ratio of that was issued by the GASB in GASB Statement 84. The com- 22 students to 1 teacher do not need to be coded to PIC 25. In menter also stated the modules do not include any additional addition, the SBOE has determined that the salaries of additional guidance on how to implement the changes required by GASB secondary education teachers needed to create class sizes be- Statement 84, which is effective beginning with fiscal year 2021. low the size of similar non-bilingual classes do not need to be coded to PIC 25. Response. The SBOE agrees. The term "agency funds" has been updated at adoption with the term "custodial funds" in ac- Comment. The Texas Association of School Boards (TASB) re- cordance with GASB Statement 84 in all modules of the FASRG. quested technical revisions to proposed FASRG FAR Appendix Specific guidance for governmental entities, including school dis- A and Modules 4 and 5. TASB recommended updating refer- tricts, is disclosed in GASB Statement 84. School districts are re- ences to the Code of Federal Regulations, Title 2, Part 200, quired to adhere to GASB Statement 84 guidance and the guid- due to the August 2020 amendments made to the code; remov- ance disclosed in all applicable GASB statements. If a school ing cross-references to sections that no longer exist in FASRG district or other local educational agency (LEA) has questions modules; updating cross-references to sections that have been about GASB statements and/or the guidance contained in the renumbered or moved to other sections of the FASRG; and in- statements, it may contact the Texas Education Agency Finan- corporating recent changes to statutes, laws, and rules that are cial Compliance Division. applicable to purchasing and recycled products. Comment. Concerning proposed FAR Appendix H, Activity Response. The SBOE agrees. The technical revisions re- Funds, a school district employee and an employee from an quested by TASB were incorporated into the applicable FASRG education service center commented that the reference to fund modules at adoption. code 491, the required fund code for Campus Activity Funds, STATUTORY AUTHORITY. The amendment is adopted under should be fund code 461. Texas Education Code (TEC), §7.055(b)(32), which requires the Response. The SBOE agrees. The fund code for Campus Ac- commissioner to perform duties in connection with the public tivity Funds was modified in FAR Appendix H, Section H.2.2, at school accountability system as prescribed by TEC, Chapters adoption to reflect the correct fund code and description. 39 and 39A; TEC, §7.102(c)(32), which requires the State Board of Education (SBOE) to adopt rules concerning school district Comment. Concerning proposed FAR Appendix A.4.6, Expendi- budgets and audits of school district fiscal accounts as required ture and Expense Object Codes, a school district employee com- under TEC, Chapter 44, Subchapter A; TEC, §44.001(a), which mented that object code 6239 should be used instead of object requires the commissioner to establish advisory guidelines code 6411 to code conference registration fees. The commenter relating to the fiscal management of a school district; TEC, stated that object code 6411 can only be used if obligated the day §44.001(b), which requires the commissioner to report annually of a conference and is seldom allowed because vendors expect to the SBOE the status of school district fiscal management as conference registration payments in advance. The commenter reflected by the advisory guidelines and by statutory require- also stated that allowing LEAs to code conference registration ments; TEC, §44.007(a), which requires the board of trustees fees to object code 6239 would allow for greater flexibility and of each school district to adopt and install a standard school accuracy when coding funds. fiscal accounting system that conforms with generally accepted Response. The SBOE disagrees that object code 6239 should accounting principles; TEC, §44.007(b), which requires the be used to code conference registration payments made in ad- accounting system to meet at least the minimum requirements vance. However, to allow LEAs greater flexibility and accuracy prescribed by the commissioner, subject to review and comment when coding funds, the language of object code 6411 was up- by the state auditor; TEC, §44.007(c), which requires a record dated at adoption to include conference registration fees paid in to be kept of all revenues realized and of all expenditures advance. made during the fiscal year for which a budget is adopted. A report of the revenues and expenditures for the preceding Comment. Concerning proposed FAR Appendix A.8, Program fiscal year is required to be filed with the agency on or before Intent Codes, the Texas Association of School Business Officials the date set by the SBOE; TEC, §44.007(d), which requires (TASBO) requested the addition of two new fund codes for the each district, as part of the report required by TEC, §44.007, to federal Rural Education Achievement Program to allow for accu- include management, cost accounting, and financial information racy when accounting for the funds. TASBO also requested that in a format prescribed by the SBOE in a manner sufficient to the definition of program intent code (PIC) 25 be modified to al- enable the board to monitor the funding process and determine low the coding of teacher salaries as an allowable expense when educational system costs by district, campus, and program; smaller class sizes are created for bilingual education. TASBO and TEC, §44.008(b), which requires the independent audit to recommended that, at a minimum, school districts be allowed meet at least the minimum requirements and be in the format to code the salaries of the additional elementary grade teachers prescribed by the SBOE, subject to review and comment by the needed to create class sizes below the requirement of 22 stu- state auditor. The audit must include an audit of the accuracy of dents to 1 teacher to PIC 25. TASBO made a similar request the fiscal information provided by the district through the Public for secondary schools, for which there is not a legal standard for Education Information Management System. class size, by requesting that school districts be allowed to code salaries of additional secondary education teachers needed to CROSS REFERENCE TO STATUTE. The amendment imple- create class sizes below the size of similar non-bilingual classes ments Texas Education Code, §§7.055(b)(32), 7.102(c)(32), to PIC 25. 44.001(a) and (b), 44.007(a)-(d), and 44.008(b). Response. The SBOE agrees that two additional fund codes are The agency certifies that legal counsel has reviewed the adop- needed for the Rural Education Achievement Program. These tion and found it to be a valid exercise of the agency's legal au- codes are included in FAR Appendix A at adoption. The SBOE thority.

ADOPTED RULES June 18, 2021 46 TexReg 3733 Filed with the Office of the Secretary of State on June 1, 2021. that a licensee carry a pocket license to say that the licensee TRD-202102146 must be able to show proof of licensure while engaged in busi- ness activities. The adopted amendments include a change to Cristina De La Fuente-Valadez the text as proposed to eliminate the superfluous phrase "single- Director, Rulemaking or two-family residences" from proposed text of §34.611(a)(3). Texas Education Agency Effective date: June 21, 2020 Section 34.711. Responsible Managing Employee (RME) Li- Proposal publication date: March 5, 2021 cense. Amendments to §34.711(b) update catchline and change the requirement that a licensee carry a pocket license to say that For further information, please call: (512) 475-1497 the licensee must be able to show proof of licensure while en- ♦ ♦ ♦ gaged in activities of a responsible managing employee. TITLE 28. INSURANCE Section 34.811. Requirements, Pyrotechnic Operator License, Pyrotechnic Special Effects Operator License, and Flame Effects PART 1. TEXAS DEPARTMENT OF Operator License. The amendments to §34.711(i) change the requirement that a licensee carry a pocket license to say that a INSURANCE licensee must be able to show proof of licensure while engaged in activities of the business. CHAPTER 34. STATE FIRE MARSHAL SUMMARY OF COMMENTS AND AGENCY RESPONSE. INTRODUCTION. The Commissioner of Insurance adopts amendments to 28 TAC Subchapter E, §§34.511, 34.512, and Commenters: The Texas Department of Insurance (TDI) re- 34.516; Subchapter F, §34.611; Subchapter G, §34.711; and ceived one written comment from an individual against the Subchapter H, §34.811, concerning fire protection pocket li- proposal. censes and firework retail permit distribution channels. Sections Comment: The commenter states that, given the amount of fraud 34.511, 34.512, 34.516, 34.711, and 34.811 are adopted without and deception, requiring proof of licensure is important and that changes to the proposed text as published in the February 12, retaining the pocket license requirement achieves this goal. 2021, issue of the Texas Register (46 TexReg 1022); these rules will not be republished. The proposed text of §34.611(a)(3) Agency Response: TDI agrees that requiring proof of licensure is is adopted with a change to correct a non-substantive error; an important goal, but clarifies that the amendments do not elim- §34.611 will be republished. inate this requirement. Rather, the amendments allow licensees to provide licensure proof by other methods in addition to paper REASONED JUSTIFICATION. The amendments are necessary licensure, such as on a mobile device. TDI is not aware of any to provide fire protection licensees additional flexibility by allow- evidence that such alternate means of licensure proof are more ing them to show proof of licensure on a mobile device, in addi- susceptible to fraud or deception than paper licensure. However, tion to continuing to allow them to show proof with a paper docu- TDI will monitor the implementation of the rule amendments, and ment. The amendments also remove references to an obsolete if TDI receives evidence of increased fraud or deception relating license type. to the alternate means of providing licensure proof, may consider The amendments to Subchapters E, F, G, and H (1) implement further changes to the requirements. Insurance Code Chapters 6001, 6002, and 6003, and Occupa- SUBCHAPTER E. FIRE EXTINGUISHER tions Code Chapter 2154; (2) clarify the intent of the regulations and efficiently administer the respective statutes; (3) protect, RULES safeguard, and preserve lives and property; and (4) provide for 28 TAC §§34.511, 34.512, 34.516 the safety of the public, regulated persons, and regulated per- sons' customers. STATUTORY AUTHORITY. The Commissioner adopts the amendments to 28 TAC §§34.511, 34.512, and 34.516 under Descriptions of the adopted amendments follow. Insurance Code §§6001.051(b), 6001.052, and 36.001. Section 34.511. Fire Extinguisher Licenses. Amendments to Insurance Code §6001.051(b) specifies that the Commissioner §34.511(b) update the catchline and change the requirement that may issue rules the Commissioner considers necessary to ad- a licensee carry a pocket license to say that a licensee must minister Chapter 6001 through the state fire marshal. be able to show proof of licensure while engaged in business activities. Insurance Code §6001.052(b) specifies that the Commissioner adopt and administer rules determined essentially necessary for Section 34.512. Apprentice Permit. Amendments to §34.512(a) the protection and preservation of life and property regarding update the catchline and change the requirement that a permit (1) registration of firms engaged in the business of installing or holder carry a pocket license to say that the permit holder must servicing portable fire extinguishers or planning, certifying, in- be able to show proof of licensure while engaging in the busi- stalling, or servicing fixed fire extinguisher systems or hydro- ness. static testing of fire extinguisher cylinders; (2) the examination Section 34.516. Tests. The amendments delete §34.516(a)(5), and licensing of individuals to install or service portable fire extin- which relates to Type R licenses, because this license is no guishers and plan, certify, install, or service fixed fire extinguisher longer issued. Type R licenses were eliminated by amendments systems; and (3) requirements for installing or servicing portable published in the August 23, 2019, edition of the Texas Register fire extinguishers and planning, certifying, installing, or servicing (44 TexReg 4481). fixed fire extinguisher systems. Insurance Code §6001.052(c) specifies that the Commissioner by rule prescribe requirements Section 34.611. Licenses and Approvals. Amendments to for applications and qualifications for licenses, permits, and cer- §34.611(b) update the catchline and change the requirement tificates issued under Insurance Code Chapter 6001.

46 TexReg 3734 June 18, 2021 Texas Register Insurance Code §36.001 provides that the Commissioner may (4) Residential fire alarm superintendent single station li- adopt any rules necessary and appropriate to implement the cense--For planning, installing, certifying, inspecting, testing, servic- powers and duties of TDI under the Insurance Code and other ing, and maintaining single station smoke or heat detectors which are laws of this state. not a part of or connected to any other detection device or system in single-family or two-family residences. The agency certifies that legal counsel has reviewed the adop- tion and found it to be a valid exercise of the agency's legal au- (5) Residential fire alarm superintendent license--For plan- thority. ning, installing, certifying, inspecting, testing, servicing, monitoring, and maintaining fire alarm or fire detection devices and systems in sin- Filed with the Office of the Secretary of State on June 2, 2021. gle-family or two-family residences. A residential fire alarm superin- TRD-202102158 tendent may act as a fire alarm technician. James Person (6) Fire alarm planning superintendent license--For plan- General Counsel ning, installing, certifying, inspecting, testing, servicing, monitoring, Texas Department of Insurance and maintaining fire alarm or fire detection devices. Effective date: June 22, 2021 (7) Residential fire alarm technician license--For installing, Proposal publication date: February 12, 2021 certifying, inspecting, and servicing, but not planning, fire alarm or For further information, please call: (512) 676-6584 fire detection devices and systems in single-family or two-family resi- ♦ ♦ ♦ dences. (8) Training school approval--For conducting required SUBCHAPTER F. FIRE ALARM RULES training necessary for obtaining a residential fire alarm technician license. 28 TAC §34.611 (b) Proof of license and approval. STATUTORY AUTHORITY. The Commissioner adopts the amendments to 28 TAC §34.611 under Insurance Code (1) A licensee must be able to show proof of licensure §§6002.051(b), 6002.052(b), and 36.001. while engaged in the activities of the business. Insurance Code §6002.051(b) specifies that the Commissioner (2) An instructor must carry the instructor's approval while may adopt rules as necessary to administer Chapter 6002, in- providing training in an approved training school on the installing, cer- cluding rules the Commissioner considers necessary to admin- tifying, inspecting, and servicing of fire alarm or detection systems in ister Chapter 6002 through the state fire marshal. single-family or two-family residences. Insurance Code §6002.052(b) specifies that rules adopted un- (c) Duplicate license. A duplicate license must be obtained der §6002.051 may create specialized licenses or registration from the state fire marshal to replace a lost or destroyed license. The certificates for an organization or individual engaged in the busi- license holder or registered firm must submit written notification of the ness of planning, certifying, leasing, selling, servicing, installing, loss or destruction without delay, accompanied by the required fee. monitoring, or maintaining fire alarm or fire detection devices or (d) Licensee responsibilities relating to revised licenses. A systems, and that the rules must establish appropriate training change in the licensee's name, the licensee's mailing address, or a new and qualification standards for each kind of license and certifi- or additional registered firm employing the licensee requires a revised cate. license. Within 14 days after the change requiring the revision, the li- Insurance Code §36.001 provides that the Commissioner may cense holder must submit written notification of the necessary change adopt any rules necessary and appropriate to implement the accompanied by the required fee. powers and duties of the department under the Insurance Code (e) Registered firms' responsibilities relating to licensees. A and other laws of this state. registered firm must submit notification of any licensee employment, §34.611. Licenses and Approvals. termination, or resignation within 14 days of its occurrence. (a) Types of licenses and approvals. The following licenses (f) Restrictions on licensees and registered firms. and approvals are issued by the State Fire Marshal's Office according (1) A licensee must not engage in any act of the business to Insurance Code Chapter 6002 and this subchapter. As required by unless employed by or as an agent of a registered firm and holding an Insurance Code Chapter 6002, an individual or entity must be licensed unexpired license. or approved to lawfully perform the functions for which the license or approval is issued. (2) Each person who engages in the activities of the busi- ness must have the appropriate license issued by the state fire mar- (1) Fire alarm technician license--For installing, inspect- shal unless excepted from the licensing provisions by Insurance Code ing, servicing, testing, maintaining, monitoring, and certifying fire §6002.155. alarm or fire detection devices and systems. (g) Restrictions on approval holders. Approvals are not trans- (2) Fire alarm monitoring technician license--For the mon- ferable. itoring of fire alarm or fire detection devices and systems. (h) Responsibilities relating to revised approvals. A change (3) Instructor approval--For providing training at an ap- in an instructor's name or mailing address requires a revised approval. proved training school in installing, certifying, inspecting, and servic- The change in the mailing address of a fire alarm training school re- ing fire alarm or detection systems in single-family or two-family res- quires a revised approval. Within 14 days after the change requiring idences. the revision, the approval holder must submit written notification of the necessary change, accompanied by the required fee.

ADOPTED RULES June 18, 2021 46 TexReg 3735 The agency certifies that legal counsel has reviewed the adop- 28 TAC §34.811 tion and found it to be a valid exercise of the agency's legal au- STATUTORY AUTHORITY. The Commissioner adopts the thority. amendments to 28 TAC §34.811 under Occupations Code §2154.051 and §2154.052 and Insurance Code §36.001. Filed with the Office of the Secretary of State on June 2, 2021. TRD-202102159 Occupations Code §2154.051 authorizes the Commissioner to determine reasonable criteria and qualifications for licenses. James Person General Counsel Occupations Code §2154.052 provides that the Commissioner Texas Department of Insurance adopt, and the state fire marshal must administer, rules the Com- Effective date: June 22, 2021 missioner considers necessary for the protection, safety, and Proposal publication date: February 12, 2021 preservation of life and property. For further information, please call: (512) 676-6584 Insurance Code §36.001 provides that the Commissioner may adopt any rules necessary and appropriate to implement the ♦ ♦ ♦ powers and duties of the department under the Insurance Code SUBCHAPTER G. FIRE SPRINKLER RULES and other laws of this state. The agency certifies that legal counsel has reviewed the adop- 28 TAC §34.711 tion and found it to be a valid exercise of the agency's legal au- STATUTORY AUTHORITY. The Commissioner adopts the thority. amendments to 28 TAC §34.711 under Insurance Code §§6003.051(b), 6003.054(a), and 36.001. Filed with the Office of the Secretary of State on June 2, 2021. Insurance Code §6003.051(b) specifies that the Commissioner TRD-202102161 may issue rules necessary to administer Chapter 6003 through James Person the state fire marshal. General Counsel Insurance Code §6003.054(a) specifies that the state fire mar- Texas Department of Insurance shal must implement the rules adopted by the Commissioner for Effective date: June 22, 2021 the protection and preservation of life and property in controlling Proposal publication date: February 12, 2021 (1) the registration of an individual or an organization engaged in For further information, please call: (512) 676-6584 the business of planning, selling, installing, maintaining, or ser- vicing fire protection sprinkler systems; and (2) the requirements ♦ ♦ ♦ for the plan, sale, installation, maintenance, or servicing of fire TITLE 34. PUBLIC FINANCE protection sprinkler systems by determining the criteria and qual- ifications for registration certificate and license holders; evaluat- PART 1. COMPTROLLER OF PUBLIC ing the qualifications of an applicant for a registration certificate to engage in the business of planning, selling, installing, main- ACCOUNTS taining, or servicing fire protection sprinkler systems; conducting examinations and evaluating the qualifications of a license appli- CHAPTER 9. PROPERTY TAX ADMINISTRA- cant; and issuing registration certificates and licenses to quali- TION fied applicants. SUBCHAPTER C. APPRAISAL DISTRICT Insurance Code §36.001 provides that the Commissioner may adopt any rules necessary and appropriate to implement the ADMINISTRATION powers and duties of the department under the Insurance Code 34 TAC §9.419 and other laws of this state. The Comptroller of Public Accounts adopts amendments to The agency certifies that legal counsel has reviewed the adop- §9.419, concerning procedures for determining property tax tion and found it to be a valid exercise of the agency's legal au- exemptions for motor vehicles leased for personal use, without thority. changes to the proposed text as published in the April 23, 2021, issue of the Texas Register (46 TexReg 2701). The rule will Filed with the Office of the Secretary of State on June 2, 2021. not be republished. The comptroller adopts amendments to TRD-202102160 implement statutory requirements and new legislation. James Person The amendments change the heading of §9.419 from "Proce- General Counsel dures for Determining Property Tax Exemption for Motor Vehi- Texas Department of Insurance cles Leased for Personal Use" to "Property Tax Exemption for Effective date: June 22, 2021 Certain Leased Motor Vehicles". Proposal publication date: February 12, 2021 The amendments delete subsection (a) prescribing the effective For further information, please call: (512) 676-6584 date of the rule as redundant with the legislation enacting Tax ♦ ♦ ♦ Code, §11.252 and unnecessary as the subsection states the section is effective for motor vehicles leased on or after January SUBCHAPTER H. STORAGE AND SALE OF 2, 2001, approximately nineteen years ago. FIREWORKS The amendments re-letter subsequent subsections.

46 TexReg 3736 June 18, 2021 Texas Register The amendments to re-lettered subsection (a)(1), prescribing the cle subject to a lease for the production of income, and that the definition of a lease, comply with Tax Code, §11.252(h) and con- motor vehicle must be used primarily for activities that do not in- form to the definition of a lease in Tax Code, §152.001(6). clude the production of income. The amendments to re-lettered subsection (a)(2), prescribing the The amendments add new paragraph (2), subparagraphs definition of a lessee, conform with the definition of a lease under (A), (B) and (C), and clauses (i) and (ii) to comply with newly re-lettered subsection (a)(1). amended language in Tax Code, §11.252 concerning the pre- sumption of use primarily for motor vehicles that are not involved The amendments to re-lettered subsection (a)(3), prescribing the in the production of income definition of a lessor, conform with the definition of a lease under re-lettered subsection (a)(1). The amendments delete subsection (d). The amendments to re-lettered subsection (a)(4), prescribing the The amendments add new subsection (d) to prescribe the use of definition of a Lessee's Affidavit, conform the language to newly the Lessor's Rendition or Property Report Leased Automobiles amended Tax Code, §11.252. (Form 50-288) to be used by the lessor to report each leased ve- hicle owned and whether the lessee has designated the vehicle The amendments to re-lettered subsection (a)(6), prescribing the as not held for the production and not used for the production of definition of reasonable time, provide more concise language. income in accordance with Tax Code, §11.252(i). The amendment to re-lettered subsection (b)(1) delete the word The amendments add new paragraphs (1)(A), (1)(B), (1)(C) and "model" from the description of forms in the section. (1)(D) to require on the lessor report: the year, make, model and The amendments to re-lettered subsection (b)(1)(A) conform the vehicle identification number of each leased vehicle; the name title of the Lessee's Affidavit to the language of newly amended of the lessee and address at which the leased vehicle is kept; Tax Code, §11.252. whether the lessee has designated the vehicle as not held for the production and not used for the production of income; and The amendment to newly re-lettered subparagraph (b)(1)(B) whether the lessor maintains a lessee's affidavit, electronic im- changes the title of Form 50-288 from "Lessor's Rendition or age of the lessee's affidavit, or a certified copy of the lessee's Property Report for Leased Automobiles" to "Lessor's Rendition affidavit for the leased vehicle. or Property Report Leased Automobiles". The amendments add new paragraph (2) to require that the Re-lettered subsection (b)(2) adds lessees to the parties lessor provide the Lessor's Rendition or Property Report Leased required to use the comptroller's forms adopted by refer- Automobiles (Form 50-288) to the chief appraiser in the manner ence in the section, and states that the forms are available provided by subchapter B, Chapter 22, Tax Code in accordance from the Comptroller of Public Accounts Property Tax As- with Tax Code, §11.252(j). sistance Division. The amended forms may be viewed at comptroller.texas.gov/taxes/property-tax/rules/index.php. The The amendments add new paragraph (3) to prescribe that the comptroller amends subsection (b)(2) to amend subparagraph lessor must use the Lessor's Rendition or Property Report (A) to replace the word "model" with the word "comptroller" in Leased Automobiles (Form 50-288) to render each leased reference to the forms. The comptroller further amends sub- vehicle reported on the Lessor's Exemption Application Motor section (b)(2) to amend subparagraph (B) to replace the word Vehicles Leased for Use Other than Production of Income "comptroller's model" with the word "comptroller" in reference to (Form 50-286) for which the lessor does not maintain a lessee's the forms. affidavit, an electronic image of a lessee's affidavit, or a certified copy of a lessee's affidavit. The amendments to re-lettered subsection (b)(3) eliminate un- necessary language in order to make the subsection more con- The amendments add new subsection (e) to require that the cise, and add language to conform to newly amended language lessor to submit the Lessor's Exemption Application Motor Ve- in Tax Code, §11.252 hicles Leased for Use Other than Production of Income (Form 50-286) to the chief appraiser in order to apply for the exemption The amendment to re-lettered subsection (b) removes para- available under Tax Code, §11.252. graph (4) as a redundant provision. The amendments delete subsection (f). Tax Code, §11.252 does The amendments re-numbers subsequent paragraphs. not provide authority for the lessee's affidavit to be prima facie The amendments re-letter and re-number paragraph (4) to evidence of qualification for a motor vehicle to be exempt and add the statutory authority for chief appraisers to enter into Tax Code, §11.252 does not authorize a limit or expansion on the agreements for the electronic exchange of information under chief appraiser's discretion under Tax Code, §11.43 and §11.45 Tax Code, §1.085 and confirm that nothing in the section should in considering evidence of an exemption. be construed to limit that authority. The amendments delete subsections (g) and (h). Tax Code, The amendments add new paragraph (5) to clarify that nothing §11.252 does not authorize a limit or expansion on a chief ap- in the section is to be construed to limit the electronic execution praiser's authority for review and action on an exemption appli- of documents according to the laws of the State of Texas. cation. The review and action on the exemption application is au- thorized for chief appraisers under Tax Code, §11.43 and §11.45. New subsection (c) adopts appropriate procedures and require- ments for a lessee's affidavit in connection with the appropriate The amendments re-letter subsequent subsections. procedures and exemption application requirements of this sec- The amendments to re-lettered subsection (f) adds the language tion to determine if a motor vehicle subject to a lease qualifies "...electronic images of the affidavits, or certified copies of the for exemption under Tax Code, §11.252. affidavits... " to subparagraph (A), (B) & (C) to conform to newly New paragraph (1) complies with the language of Tax Code, amended language in Tax Code, §11.252 and to combine with §11.252, to require that a lessee must not hold a motor vehi- existing paragraph (1).

ADOPTED RULES June 18, 2021 46 TexReg 3737 The amendments re-number existing subparagraphs A, B, C, ate procedures to determine whether a motor vehicle subject to and E to new paragraphs numbered 1 - 4. a lease qualifies for an exemption under the section, adoption of a form to be completed by lessees for use by lessors in The amendments delete subparagraph (D) as unnecessary and application for the exemption, and the prescription of a property redundant language with subsection (b) of the section. report form to be used by owners of vehicles subject to a lease. The amendment to re-lettered subparagraph (D) adds the lan- The comptroller further adopts the amendments under Tax guage "...electronic images of the affidavits, or certified copies Code, §22.24 (Rendition and Report Forms) which authorizes of the affidavits...". the comptroller to prescribe and approve forms for the rendition The amendments delete re-numbered paragraph (2) as the ex- and reporting of property. emption is for the lessor of a qualifying motor vehicle under lease These amendments implement Tax Code, §11.252 (Motor Vehi- and the chief appraiser has discretionary authority under Tax cles Leased for Use Other than Production of Income). Code, §11.45 to act on an application for exemption and Tax Code, §11.252 does not provide separate or additional authority The agency certifies that legal counsel has reviewed the adop- for a chief appraiser to request information from the lessees. tion and found it to be a valid exercise of the agency's legal au- thority. The amendment to re-lettered subsection (g) changes the title of Form 50-286 from "Lessor's Application for Personal Use Lease Filed with the Office of the Secretary of State on June 1, 2021. Automobile Exemptions" to "Lessor's Exemption Application Mo- tor Vehicles Leased for Use Other than Production of Income TRD-202102140 (Form 50-286)". Victoria North The comptroller did not receive any comments regarding adop- General Counsel for Fiscal and Agency Affairs tion of the amendment. Comptroller of Public Accounts Effective date: June 21, 2021 The comptroller adopts the amendments under Tax Code, Proposal publication date: April 23, 2021 §11.252 (Motor Vehicles Leased for use Other than Production For further information, please call: (512) 475-2220 of Income) which requires the comptroller to adopt procedural rules to establish exemption application requirements, appropri- ♦ ♦ ♦

46 TexReg 3738 June 18, 2021 Texas Register Adopted Rule Reviews in their entirety in accordance with the requirements of Texas Govern- ment Code, §2001.039. Credit Union Department The Department hereby certifies that the adoption has been reviewed Title 7, Part 6 by legal counsel and found to be a valid exercise of the agency's legal The Credit Union Commission (Commission) has completed its review authority. of Chapter 91, Subchapter A (relating to General Rules), of the Texas TRD-202102172 Administrative Code, Title 7, Part 6, consisting of §§91.101, 91.103, John J. Kolhoff 91.104, 91.105, 91.110, 91.115, 91.120, 91.121 and 91.125. Commissioner The rules were reviewed as a result of the Department's quadrennial Credit Union Department rule review under Texas Government Code §2001.039. Filed: June 4, 2021 Notice of the review of 7 TAC, Part 6, Chapter 91, Subchapter A, ♦ ♦ ♦ was published in the March 26, 2021, issue of the Texas Register (46 TexReg 2049). The Department received no comments on the notice The Credit Union Commission (Commission) has completed its review of intention to review. of Chapter 91, Subchapter J (relating to Changes in Corporate Sta- tus), of the Texas Administrative Code, Title 7, Part 6, consisting of After reviewing these rules, the Commission finds that the reasons for §§91.1003, 91.1005, 91.1006, 91.1007, 91.1008 and 91.1010. initially adopting these rules continue to exist, and readopts Chapter 91, Subchapter A, §§91.101, 91.103, 91.104, 91.105, 91.110, 91.115, The rules were reviewed as a result of the Department's quadrennial 91.120, 91.121 and 91.125 in their entirety in accordance with the re- rule review under Texas Government Code §2001.039. quirements of Texas Government Code, §2001.039. Notice of the review of 7 TAC, Part 6, Chapter 91, Subchapter J, The Department hereby certifies that the adoption has been reviewed was published in the March 26, 2021, issue of the Texas Register (46 by legal counsel and found to be a valid exercise of the agency's legal TexReg 2049). The Department received no comments on the notice authority. of intention to review. TRD-202102171 After reviewing these rules, the Commission finds that the reasons for John J. Kolhoff initially adopting these rules continue to exist, and readopts Chapter Commissioner 91, Subchapter J, §§91.1003, 91.1005, 91.1006, 91.1007, 91.1008 and Credit Union Department 91.1010 in their entirety in accordance with the requirements of Texas Government Code, §2001.039. Filed: June 4, 2021 The Department hereby certifies that the adoption has been reviewed ♦ ♦ ♦ by legal counsel and found to be a valid exercise of the agency's legal The Credit Union Commission (Commission) has completed its review authority. of Chapter 91, Subchapter B (relating to Organization Procedures), of TRD-202102173 the Texas Administrative Code, Title 7, Part 6, consisting of §§91.203, John J. Kolhoff 91.205, 91.206, 91.208, 91.209 and 91.210. Commissioner The rules were reviewed as a result of the Department's quadrennial Credit Union Department rule review under Texas Government Code §2001.039. Filed: June 4, 2021 Notice of the review of 7 TAC, Part 6, Chapter 91, Subchapter B, ♦ ♦ ♦ was published in the March 26, 2021, issue of the Texas Register (46 TexReg 2049). The Department received no comments on the notice The Credit Union Commission (Commission) has completed its review of intention to review. of Chapter 91, Subchapter L (relating to Submission of Comments by Interested Parties), of the Texas Administrative Code, Title 7, Part 6, After reviewing these rules, the Commission finds that the reasons for consisting of §91.3001 and §91.3002. initially adopting these rules continue to exist, and readopts Chapter 91, Subchapter B, §§91.203, 91.205, 91.206, 91.208, 91.209 and 91.210 The rules were reviewed as a result of the Department's quadrennial rule review under Texas Government Code §2001.039.

RULE REVIEW June 18, 2021 46 TexReg 3739 Notice of the review of 7 TAC, Part 6, Chapter 91, Subchapter L, Comments on Chapter 5 was published in the March 26, 2021, issue of the Texas Register (46 Comment. Two commenters suggest updating outdated statutory cita- TexReg 2049). The Department received no comments on the notice tions and references to the term "State Board of Insurance" in Chapter of intention to review. 5. After reviewing these rules, the Commission finds that the reasons for Agency Response. TDI agrees that outdated statutory citations and initially adopting these rules continue to exist, and readopts Chapter 91, references to the "State Board of Insurance" should be amended. TDI Subchapter J, §91.3001 and §91.3002 in their entirety in accordance intends to make the necessary changes in future rulemaking projects. with the requirements of Texas Government Code, §2001.039. Comment. Two commenters suggest repealing the following sections: The Department hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal - §§5.101 - 5.103, 5.202, and 5.1101 - 5.1103, because automobile in- authority. surance rates and procedures are no longer promulgated; TRD-202102177 - §5.201, because it was adopted before the implementation of the Ad- John J. Kolhoff ministrative Procedures Act and the references in it are outdated; Commissioner - §5.206, because it was adopted under the benchmark system, but rate Credit Union Department and form freedom have allowed competition that did not exist under Filed: June 4, 2021 that system; ♦ ♦ ♦ - §5.1201, because of the adoption of Filings Made Easy rules; Texas State Library and Archives Commission - §§5.1501 - 5.1503, because the rules are unnecessary, and the statu- tory references are outdated; Title 13, Part 1 - §5.3104, because it is no longer necessary, and the relevant statutes The Texas State Library and Archives Commission (commission) has have been repealed or replaced; completed its review of Title 13 Texas Administrative Code, Part 1, Chapter 6, State Records. The commission published its Notice of In- - §5.3501, because other provisions in law allow for reporting of sta- tent to Review these rules in the March 12, 2021, issue of the Texas tistical plan data; Register (46 TexReg 1663). - §5.3700, because some of the provisions may no longer be applicable As a result of the review, the commission finds that the reasons for due to the existence of the Texas FAIR Plan and the Texas Windstorm adopting the rules in Chapter 6 continue to exist and readopts this chap- Insurance Association; ter without changes in accordance with the requirements of Govern- - §5.6501, because it implements part of the TDI Workers' Compen- ment Code, §2001.039. Rules considered during this review may be sation Manual that has generally been repealed by statute and other subsequently revised in accordance with the Texas Administrative Pro- changes adopting the NCCI Manual; and cedure Act. - Chapter 5, Subchapter N, because the Market Assistance Program, TSLAC: 02-19-21 which is addressed by this subchapter, was eliminated. TRD-202102242 Three commenters also suggest repealing §5.401. Two suggest this be- Sarah Swanson cause automobile insurance rates and procedures are no longer promul- General Counsel gated, and one suggests it because insurers should be allowed to price Texas State Library and Archives Commission insurance based on risk, including lack of prior insurance or lapse in Filed: June 9, 2021 insurance. ♦ ♦ ♦ In addition, one commenter suggests repealing §5.7005 because it Texas Department of Insurance places Texas out of line with many states and an insurer should not be forced to retain a policyholder for longer than the terms of the policy Title 28, Part 1 without regard to claims or payment history, which are indicative of higher future losses. The Texas Department of Insurance (TDI) has completed its review of Texas Administrative Code, Title 28, Part 1, Chapters 5, 6, 7, 9, Agency Response. TDI agrees that the repeal of §§5.101 - 5.103; 13, 19, 21, 22, 25, 26, 28, 33, and 34 under Texas Government Code 5.206; 5.3501; 5.6501; and Chapter 5, Subchapter N may be appro- §2001.039, which directs state agencies to review and consider for priate. TDI will further review these rules to determine whether to readoption each of their rules. The proposed rule review was published propose their repeal in future rulemakings. in the November 27, 2020, issue of the Texas Register (45 TexReg The reasons for adopting §§5.201. 5.202, 5.401, 5.1101 - 5.1103, 8529). 5.1501 - 5.1503, 5.3104, 5.3700, or 5.7005 continue to exist. TDI will, SUMMARY OF COMMENTS ON CHAPTERS UNDER REVIEW however, take the comments into consideration when determining AND AGENCY RESPONSE. whether any amendments to the rules are warranted in future rulemak- ing projects. Commenters: TDI received written comments from the American Property and Casualty Insurance Association, the Insurance Council of Section 5.1201 has been proposed for repeal. The proposed repeal Texas, the Association of Fire and Casualty Companies of Texas, the was published in the April 16, 2021, edition of the Texas Register (46 Texas Association of Life and Health Insurers, and the Texas Captive TexReg 2554). Insurance Companies Association. The commenters commented in Comment. Two commenters suggest amending §5.203 to make the support of readopting the chapters under review, with amendment to required disclosure consistent with current law. or repeal of specific sections within the chapters.

46 TexReg 3740 June 18, 2021 Texas Register Agency Response. The reasons for adopting §5.203 continue to exist "investment advice" from the definition, because those terms are not and the rule is consistent with Insurance Code §1811.051. required by statute and cause confusion. Also in §6.1, the commenter advises revising the definitions of "captive management company" and Comment. One commenter suggests repealing or amending §5.204 to "service providers" by moving the words "and individuals or entities provide for simpler compliance with the Texas Liability Insurance Card providing legal, actuarial, or auditing services" from the former to the requirements. Two commenters suggested amending the rule to com- latter because the words are more appropriate in this location. ply with changes in law that eliminated named driver policies. The commenter suggests revising §6.102 to allow a captive manage- Agency Response. The reasons for adopting §5.204 continue to exist. ment company 360 days before its registration expires, rather than the The rule was amended in 2020 to make it consistent with current law, 180 days currently provided for in subsection (c) of the section. including Texas Liability Insurance Card requirements. In addition, the 2020 amendment removed the named driver requirements. The The commenter asks that §6.202(a)(11)(G) be revised to provide that amendments to §5.204 became effective September 15, 2020. an applicant seeking to domesticate an existing captive insurance com- pany or form a new captive insurance company include in its plan of op- Comment. Two commenters suggest updating §5.205 to comply with eration a copy of the applicant's investment "policy," rather than "strat- changes in law made by Senate Bill 604, 86th Legislature, 2019, and egy." House Bill 2048, 86th Legislature, 2019. The commenter suggests striking the requirement in §6.301 that a cap- Agency Response. The reasons for adopting §5.205 continue to exist, tive insurance company write an annual premium amount of at least and the rule was updated for consistency with SB 604 and HB 2048, $100,000 because a company should be allowed to exist for some pe- effective March 16, 2021. riod without current premium, as in a run-off or repurposing of the Comment. A commenter suggests amending §5.207 to place emphasis company. on the TDI website and electronic distribution of the materials, with Finally, the commenter notes that many companies maintain records print materials being made available only on request. in the cloud only until the information needs to be accessed or down- Agency Response. The reasons for adopting §5.207 continue to ex- loaded. Because of this, the commenter suggests revising §6.306(a) to ist. The rule states the requirements for the Financial Responsibility include the provision, "Books and records that are electronically ac- Consumer Outreach Program (Program), as required by Transportation cessible at the Company's designated office in Texas are considered Code §601.072, and those requirements already state that Program ma- located in the state for purposes of this rule." terials must be available on TDI's website. The Program materials are Agency Response. The reasons for adopting §§6.1, 6.102, 6.202, on TDI's website, and include electronic media, such as webpages that 6.301, and 6.306 continue to exist. TDI will, however, take the com- address specific topics, downloadable PDF files, and videos. ments into consideration when determining whether any amendments Comment. Two commenters suggest repealing or amending the re- to the rules are warranted in future rulemaking projects. quirement in §5.303 for a loss control audit every two years because Comments on Chapter 7 this is not required in any other state or required by statute. The com- menters say that if inspections are needed, they can be done as part of Comment. Three commenters request that TDI update outdated statu- market conduct exams. The commenters also request that TDI repeal or tory citations and forms, and references to the "State Board of Insur- amend the requirements for audits every two years under §5.1703 (the ance" in Chapter 7. commenter may have meant to cite §5.1713, as there is not an audit re- The three commenters suggest that TDI review §§7.402 - 7.404 to de- quirement in §5.1703) and §5.1723 because these are not necessary and termine whether the most recent National Association of Insurance unique to only Texas insurers. The commenters also suggest amend- Commissioners (NAIC) formula has been properly adopted, to avoid ing §5.9923 to update procedures on recoupment and surcharges to be problems with incorporation by reference. consistent with statutory accounting. Finally, one of the commenters says that §§7.501 - 7.507, which Three commenters suggest repealing or amending §5.6302 because the concerns the admission procedures for foreign insurance companies, disclosures it requires have been applied broadly rather than specifi- should be updated to be consistent with forms, procedures, and cally to policies for which the rule was intended. checklists on TDI's website. Agency Response. The reasons for adopting §§5.303, 5.1713, 5.1723, Agency Response. TDI agrees that outdated statutory citations and 5.6302, and 5.9923 continue to exist. TDI will, however, take the com- forms, and references to the "State Board of Insurance" should be ments into consideration when determining whether any amendments amended in a future rulemaking project. to the rules are warranted in future rulemaking projects. The reasons for adopting §§7.402 - 7.404 and 7.501 - 7.507 continue to Comment. Two commenters note that proposed updates to §5.4162 exist. TDI will, however, take the comments into consideration when were published on June 19, 2020. The commenters request repeal or determining whether any amendments to the rules are warranted in fu- amendment of the section if the proposal was not adopted within the ture rulemaking projects. time required by law. Comment. Three commenters say that §7.83 should be amended to Agency Response. The amendments to §5.4162 were adopted with an update titles and confidentiality provisions and to establish clear pro- effective date of January 6, 2021. The adoption order was published in cedures for examination appeals. the January 1, 2021, edition of the Texas Register (46 TexReg 162). Agency Response. The reasons for adopting §7.83 continue to exist. Comment on Chapter 6 The rule was amended on February 7, 2019 (44 TexReg 480), and it Comment. A commenter recommends multiple amendments for Chap- remains consistent with statute. ter 6. Comment. Two commenters recommend that TDI update §§7.201 - In §6.1, the commenter suggests changing the definition of "admin- 7.205 and 7.209 - 7.214, which contain regulations applicable to the istrative services" by striking "claims adjustment," "accounting," and Insurance Holding Company System, to clarify recent interpretations

RULE REVIEW June 18, 2021 46 TexReg 3741 that suggest broader applications for filings by persons that own more Comment. Two commenters suggest updating outdated statutory cita- than 10% but less than 50%. tions and references to the term "State Board of Insurance" in Chapter 21. The commenters also request that TDI revise §§21.101 - 21.122 Agency Response. The reasons for adopting §§7.201 - 7.205 and 7.209 using NAIC model regulations. - 7.214 continue to exist. TDI is not aware of the interpretations refer- enced by the commenters. In addition, one of the commenters says that §§21.2201 - 21.2214 should be amended and updated for consistency with other model Comment. Three commenters suggest that TDI repeal §7.5, which ad- regulations relating to illustrations. The commenter says Texas is the dresses discrimination in certain health policies. The commenters say only state to require both a numeric summary and an extended numeric that the section is no longer necessary and that retaining it can cause summary in an in-force illustration and that the current regulations cre- confusion for insurers and consumers. The commenters further state ate confusion. According to the commenter, §21.2210 and legislation that the section is out of date and the anti-discrimination language in it from 2019 that requires an in-force illustration to be provided at the no longer applies only to health insurance. policy owner's request in certain situations do not specifically require The commenters also suggest that TDI repeal §§7.65 - 7.70, which a numeric summary, except for the reference to §21.2206 that requires relate to the annual statement blanks. The commenters say that these the extended numeric summary. The commenter states that §21.2207 sections are not necessary because TDI no longer adopts them by rule. requires an extended numeric summary when used in conjunction with a numeric summary. The commenter requests the sections be amended In addition, the commenters suggest that TDI repeal §7.901, which to require only one type of summary with an in-force illustration. addresses insider trading and proxy solicitation. The commenters say that it should be repealed because it was a State Board of Insurance Agency Response. TDI agrees that outdated statutory citations and rule, and one of the commenters adds that federal and state securities references to the "State Board of Insurance" should be amended. TDI laws should govern and says that TDI should adopt a new rule if one has addressed these updates in a rule proposal published elsewhere in is necessary. this issue of the Texas Register. Agency Response. TDI agrees that repeal of §§7.65 - 7.67, 7.69, 7.70, The reasons for adopting §§21.101 - 21.122 and 21.2201 - 21.2214 con- and 7.901 may be appropriate, and will further review the rules to deter- tinue to exist. TDI will, however, take the comments into consideration mine whether their repeal is warranted in a future rulemaking project. when determining whether any amendments to the rules are warranted in future rulemaking projects. The reasons for adopting §§7.5 and 7.68 continue to exist. TDI will, however, take the comments into consideration when determining Comment on Chapter 28 whether any amendments to the rules are warranted in future rulemak- Comment. A commenter suggests updating outdated statutory citations ing projects. in Chapter 28 and review §§28.1, 28.2, and 28.3 to determine whether Comment. Three commenters say that TDI should clarify that §7.1001 updates are needed to current procedures. does not apply to market conduct examinations under Insurance Code Agency Response. TDI agrees that outdated statutory citations should Chapter 751 because the section has been applied to some foreign in- be amended in a future rulemaking project. surers that have undergone only market conduct examinations. The reasons for adopting §§28.1, 28.2, and 28.3 continue to exist. TDI Agency Response. The reasons for adopting §7.1001 continue to ex- will, however, take the comments into consideration when determining ist. The rule was recently amended, effective December 29, 2020 (45 whether any amendments to the rules are warranted in future rulemak- TexReg 9570). ing projects. Comments. Three commenters suggest that TDI update §7.1301 to READOPTION OF CHAPTERS address procedures and filings under SERFF. The commenters say life and health insurers often have situations where a filing is closed on TDI finds that the reasons for adopting these chapters continue to exist. SERFF without opportunity for hearing or ability to cure legitimate TDI readopts the following chapters: objections. Once closed, an insurer must make a new filing and submit - Chapter 5, Property and Casualty Insurance; an additional filing fee, which is inefficient and not in compliance with other TDI rules of procedure. - Chapter 6, Captive Insurance; Agency Response. The reasons for adopting §7.1301 continue to exist. - Chapter 7, Corporate and Financial Regulation; The rule was recently amended, effective February 2, 2021 (46 TexReg - Chapter 9, Title Insurance; 823). - Chapter 13, Miscellaneous Insurers and Other Regulated Entities; Comment. Three commenters suggest that TDI repeal §19.1 and §19.2, which relate to disciplinary hearings of licensed insurance agents. The - Chapter 19, Licensing and Regulation of Insurance Professionals; commenters say these sections are confusing and are not necessary. - Chapter 21, Trade Practices; The commenters also suggest that TDI amend the definition of "as- - Chapter 22, Privacy; sumed name" in §19.901 because it is inconsistent with definitions within the Business and Commerce Code and has caused confusion - Chapter 25, Insurance Premium Finance; in market conduct exams. - Chapter 26, Employer-Related Health Benefit Plan Regulations; Agency Response. The reasons for adopting §§19.1, 19.2, and 19.901 - Chapter 28, Supervision and Conservation; continue to exist. TDI will, however, take the comments into consid- eration when determining whether any amendments to the rules are - Chapter 33, Continuing Care Providers; and warranted in future rulemaking projects. - Chapter 34, State Fire Marshal. Comment on Chapter 21 As part of the review, TDI determined that it will further review for re- peal or amendment certain rule sections in the chapters subject to this

46 TexReg 3742 June 18, 2021 Texas Register rule review. TDI will formally propose all repeals and amendments un- ♦ ♦ ♦ der the Texas Administrative Procedures Act, Texas Government Code Chapter 2001. TRD-202102232 James Person General Counsel Texas Department of Insurance Filed: June 8, 2021

RULE REVIEW June 18, 2021 46 TexReg 3743

TABLES AND GRAPHICS June 18, 2021 46 TexReg 3745 46 TexReg 3746 June 18, 2021 Texas Register TABLES AND GRAPHICS June 18, 2021 46 TexReg 3747 46 TexReg 3748 June 18, 2021 Texas Register TABLES AND GRAPHICS June 18, 2021 46 TexReg 3749 46 TexReg 3750 June 18, 2021 Texas Register TABLES AND GRAPHICS June 18, 2021 46 TexReg 3751 46 TexReg 3752 June 18, 2021 Texas Register TABLES AND GRAPHICS June 18, 2021 46 TexReg 3753 46 TexReg 3754 June 18, 2021 Texas Register TABLES AND GRAPHICS June 18, 2021 46 TexReg 3755

Office of the Attorney General the excessive emissions events subject to the lawsuit, to evaluate sec- ondary containment areas and aboveground storage tank roof drains at Texas Health and Safety Code and Texas Water Code the Refinery, and to conduct American Petroleum Institute ("API") 653 Settlement Notice External Tank Inspections of Tank A-330 at the Refinery. Defendant The State of Texas gives notice of the following proposed resolution of will implement the corrective actions identified in the audit. More- an environmental enforcement action under the Texas Water Code and over, Defendant will conduct an evaluation of its shutdown procedures the Texas Health and Safety Code. Before the State may enter into a and its internal policies and procedures designed to address deficiencies voluntary settlement agreement, pursuant to Section 7.110 of the Texas noted during API 653 External Tank Inspections to ensure prevention Water Code, the State shall permit the public to comment in writing. of recurrence of similar emissions events at the Refinery. The Attorney General will consider any written comments and may For a complete description of the proposed settlement, the Agreed withdraw or withhold consent to the proposed agreement if the com- Judgment should be reviewed in its entirety. Requests for copies of ments disclose facts or considerations indicating that consent is inap- the proposed judgment and settlement, and written comments on the propriate, improper, inadequate, or inconsistent with the requirements same, should be directed to Ekaterina DeAngelo, Assistant Attorney of the law. General, Office of the Attorney General of Texas, P.O. Box 12548, Case Title and Court: State of Texas v. Shell Oil Company; Cause MC 066, Austin, Texas 78711-2548, (512) 463-2012, facsimile (512) No. D-1-GN-20-006663; in the 250th Judicial District, Travis County, 320-0911; or email [email protected]. Written Texas. comments must be received within 30 days of publication of this notice to be considered. Background: Defendant operates an oil refinery at 5900 Highway 225 in Deer Park, Harris County, Texas (the "Refinery"). The State initiated TRD-202102233 the suit on behalf of the Texas Commission on Environmental Quality Austin Kinghorn ("TCEQ") to address three unauthorized emissions events on August General Counsel 28-September 7, 2017; August 28-31, 2017; and August 27-29, 2017 Office of the Attorney General from the Refinery and to enforce TCEQ air permits issued to Defendant Filed: June 8, 2021 under the Texas Clean Air Act. ♦ ♦ ♦ Proposed Settlement: The parties propose an Agreed Final Judgment and Permanent Injunction ("Agreed Judgment"), which provides for Comptroller of Public Accounts an award of civil penalties of $115,000 plus $10,000 attorney's fees to Local Sales Tax Rate Changes Effective July 1, 2021 the State. The Agreed Judgment also orders Defendant to retain an in- dependent auditor to perform a comprehensive environmental audit of

IN ADDITION June 18, 2021 46 TexReg 3757 46 TexReg 3758 June 18, 2021 Texas Register TRD-202102243 Texas Commission on Environmental Quality William Hamner Agreed Orders Special Counsel for Tax Administration Comptroller of Public Accounts The Texas Commission on Environmental Quality (TCEQ or commis- Filed: June 9, 2021 sion) staff is providing an opportunity for written public comment on the listed Agreed Orders (AOs) in accordance with Texas Water Code, ♦ ♦ ♦ (TWC), §7.075. TWC, §7.075, requires that before the commission Notice of Public Hearing on Proposed §3.340 - Qualified may approve the AOs, the commission shall allow the public an op- portunity to submit written comments on the proposed AOs. TWC, Research and §3.599 - Margin: Research and Development §7.075, requires that notice of the proposed orders and the opportunity Activities Credits to comment must be published in the Texas Register no later than the The Office of the Comptroller of Public Accounts received requests 30th day before the date on which the public comment period closes, by interested parties to hold a public hearing pursuant to Government which in this case is July 20, 2021. TWC, §7.075, also requires that Code, §2001.029(b)(2) on proposed §3.340, found in the Texas Admin- the commission promptly consider any written comments received and istrative Code, Title 34, Part 1, Chapter 3, Subchapter O and §3.599, that the commission may withdraw or withhold approval of an AO if a found in the Texas Administrative Code, Title 34, Part 1, Chapter 3, comment discloses facts or considerations that indicate that consent is Subchapter V. inappropriate, improper, inadequate, or inconsistent with the require- ments of the statutes and rules within the commission's jurisdiction The comptroller will hold a hearing to take public comments, on Mon- or the commission's orders and permits issued in accordance with the day, June 28, 2021, at 9:00 a.m. in Room 170 of the Stephen F. Austin commission's regulatory authority. Additional notice of changes to a Building, Austin, Texas 78701. Interested persons may sign up to tes- proposed AO is not required to be published if those changes are made tify beginning at 8:30 a.m. and testimony will be heard on a first come in response to written comments. first serve basis. All persons will have 10 minutes to present their tes- timony and shall also provide their testimony in writing prior to their A copy of each proposed AO is available for public inspection at both oral testimony. The proposed sections were published in the April 16, the commission's central office, located at 12100 Park 35 Circle, Build- 2021, issue of the Texas Register. ing C, 1st Floor, Austin, Texas 78753, (512) 239-2545 and at the ap- plicable regional office listed as follows. Written comments about an The purpose of this hearing is to receive comments from interested AO should be sent to the enforcement coordinator designated for each persons, pursuant to Government Code, §2001.029. AO at the commission's central office at P.O. Box 13087, Austin, Texas Questions concerning the hearing or this notice should be referred to 78711-3087 and must be received by 5:00 p.m. on July 20, 2021. Writ- Teresa G. Bostick, Director, Tax Policy Division. Phone Number: ten comments may also be sent by facsimile machine to the enforce- (512) 305-9952. E-mail address: [email protected]. ment coordinator at (512) 239-2550. The commission's enforcement coordinators are available to discuss the AOs and/or the comment pro- Issued in Austin, Texas, on June 7, 2021. cedure at the listed phone numbers; however, TWC, §7.075, provides TRD-202102219 that comments on the AOs shall be submitted to the commission in William Hamner writing. Special Counsel for Tax Administration (1) COMPANY: 410 WATER SUPPLY CORPORATION; DOCKET Comptroller of Public Accounts NUMBER: 2021-0020-PWS-E; IDENTIFIER: RN101439347; LO- Filed: June 7, 2021 CATION: Detroit, Red River County; TYPE OF FACILITY: public water supply; RULES VIOLATED: 30 TAC §290.46(d)(2)(B) and ♦ ♦ ♦ §290.110(b)(4) and Texas Health and Safety Code, §341.0315(c), by Office of Consumer Credit Commissioner failing to maintain a disinfectant residual of at least 0.5 milligrams per liter of chloramine throughout the distribution system at all Notice of Rate Ceilings times; PENALTY: $510; ENFORCEMENT COORDINATOR: Carlos The Consumer Credit Commissioner of Texas has ascertained the fol- Molina, (512) 239-2557; REGIONAL OFFICE: 2916 Teague Drive, lowing rate ceilings by use of the formulas and methods described in Tyler, Texas 75701-3734, (903) 535-5100. §303.003 and §303.009, Texas Finance Code. (2) COMPANY: Accella Polyurethane Systems LLC; DOCKET NUM- The weekly ceiling as prescribed by §303.003 and §303.009 BER: 2021-0042-AIR-E; IDENTIFIER: RN100603919; LOCATION: for the period of 06/14/21 - 06/20/21 is 18% for Con- Spring, Harris County; TYPE OF FACILITY: chemical manufactur- sumer1/Agricultural/Commercial2 credit through $250,000. ing; RULES VIOLATED: 30 TAC §101.201(a)(1) and (g) and Texas Health and Safety Code (THSC), §382.085(b), by failing to submit The weekly ceiling as prescribed by §303.003 and §303.009 for the an initial notification for a reportable emissions event no later than 24 period of 06/14/21 - 06/20/21 is 18% for Commercial over $250,000. hours after the discovery of an emissions event, and failing to submit 1 Credit for personal, family or household use. the initial notification for a reportable emissions event via the TCEQ's secure web server; and 30 TAC §106.6(b), Permit by Rule Registration 2 Credit for business, commercial, investment or other similar purpose. Number 119177, and THSC, §382.085(b), by failing to prevent unau- TRD-202102231 thorized emissions; PENALTY: $3,001; ENFORCEMENT COORDI- Leslie L. Pettijohn NATOR: Amanda Diaz, (713) 422-8912; REGIONAL OFFICE: 5425 Commissioner Polk Street, Suite H, Houston, Texas 77023-1452, (713) 767-3500. Office of Consumer Credit Commissioner (3) COMPANY: Apache Corporation; DOCKET NUMBER: Filed: June 8, 2021 2020-1240-AIR-E; IDENTIFIER: RN101947216; LOCATION: Big Lake, Reagan County; TYPE OF FACILITY: oil and gas produc- ♦ ♦ ♦ tion tank battery; RULES VIOLATED: 30 TAC §§106.4(a)(1)(B),

IN ADDITION June 18, 2021 46 TexReg 3759 106.6(b), and 106.13, Permit by Rule Registration Number 35922, LATED: 30 TAC §290.46(q)(2), by failing to institute special precau- and Texas Health and Safety Code (THSC), §382.085(b), by fail- tions as described in the flowchart found in 30 TAC §290.47(e) in the ing to comply with all representations with regard to construction event of low distribution pressure and water outages; PENALTY: $563; plans, operating procedures, and maximum emissions rates in any ENFORCEMENT COORDINATOR: Miles Wehner, (512) 239-2813; certified registration; and 30 TAC §122.121 and THSC, §382.054 REGIONAL OFFICE: 5012 50th Street, Suite 100, Lubbock, Texas and §382.085(b), by failing to obtain a federal operating permit 79414-3426, (806) 796-7092. prior to operating the emission units at a major source; PENALTY: (8) COMPANY: City of Port Arthur; DOCKET NUMBER: $101,250; SUPPLEMENTAL ENVIRONMENTAL PROJECT OFF- 2019-1637-MWD-E; IDENTIFIER: RN101608024; LOCATION: SET AMOUNT: $40,500; ENFORCEMENT COORDINATOR: Port Arthur, Jefferson County; TYPE OF FACILITY: wastewa- Yuliya Dunaway, (210) 403-4077; REGIONAL OFFICE: 622 South ter treatment facility; RULES VIOLATED: 30 TAC §305.125(1), Oakes, Suite K, San Angelo, Texas 76903-7035, (325) 655-9479. TWC, §26.121(a)(1), and Texas Pollutant Discharge Elimination (4) COMPANY: Apache Corporation; DOCKET NUMBER: System Permit Number WQ0010364010, Effluent Limitations and 2020-1242-AIR-E; IDENTIFIER: RN101946143; LOCATION: Monitoring Requirements Number 1, by failing to comply with Texon, Reagan County; TYPE OF FACILITY: oil and gas produc- permitted effluent limitations; PENALTY: $56,250; SUPPLEMEN- tion tank battery; RULES VIOLATED: 30 TAC §§106.4(a)(1)(B), TAL ENVIRONMENTAL PROJECT OFFSET AMOUNT: $56,250; 106.6(b), and 106.13, Permit by Rule Registration Number 35921, ENFORCEMENT COORDINATOR: Caleb Olson, (817) 588-5856; and Texas Health and Safety Code (THSC), §382.085(b), by fail- REGIONAL OFFICE: 3870 Eastex Freeway, Beaumont, Texas ing to comply with all representations with regard to construction 77703-1830, (409) 898-3838. plans, operating procedures, and maximum emissions rates in any (9) COMPANY: Douglas Utility Company; DOCKET NUMBER: certified registration; and 30 TAC §122.121 and THSC, §382.054 2019-1544-MWD-E; IDENTIFIER: RN101608586; LOCATION: and §382.085(b), by failing to obtain a federal operating permit Houston, Harris County; TYPE OF FACILITY: wastewater treat- prior to operating the emission units at a major source; PENALTY: ment facility; RULES VIOLATED: 30 TAC §305.125(1), TWC, $101,250; SUPPLEMENTAL ENVIRONMENTAL PROJECT OFF- §26.121(a)(1), and Texas Pollutant Discharge Elimination System SET AMOUNT: $40,500; ENFORCEMENT COORDINATOR: Permit Number WQ0011200001, Interim Effluent Limitations and Yuliya Dunaway, (210) 403-4077; REGIONAL OFFICE: 622 South Monitoring Requirements Number 1, by failing to comply with per- Oakes, Suite K, San Angelo, Texas 76903-7035, (325) 655-9479. mitted effluent limitations; PENALTY: $16,875; ENFORCEMENT (5) COMPANY: Apache Corporation; DOCKET NUMBER: COORDINATOR: Katelyn Tubbs, (512) 239-2512; REGIONAL 2020-1222-AIR-E; IDENTIFIER: RN101943942; LOCATION: OFFICE: 5425 Polk Street, Suite H, Houston, Texas 77023-1452, Texon, Reagan County; TYPE OF FACILITY: oil and gas produc- (713) 767-3500. tion tank battery; RULES VIOLATED: 30 TAC §§106.4(a)(1)(B), (10) COMPANY: Hamshire-Fannett Dis- 106.6(b), and 106.13, Permit by Rule Registration Number 35919, trict; DOCKET NUMBER: 2020-1364-MWD-E; IDENTIFIER: and Texas Health and Safety Code (THSC), §382.085(b), by fail- RN102334877; LOCATION: Fannett, Jefferson County; TYPE OF ing to comply with all representations with regard to construction FACILITY: wastewater treatment facility; RULES VIOLATED: plans, operating procedures, and maximum emissions rates in any 30 TAC §305.125(1), TWC, §26.121(a)(1), and Texas Pollutant certified registration; and 30 TAC §122.121 and THSC, §382.054 Discharge Elimination System Permit Number WQ0012098001, and §382.085(b), by failing to obtain a federal operating permit Effluent Limitations and Monitoring Requirements Number 1, by prior to operating the emission units at a major source; PENALTY: failing to comply with permitted effluent limitations; PENALTY: $101,250; SUPPLEMENTAL ENVIRONMENTAL PROJECT OFF- $3,250; ENFORCEMENT COORDINATOR: Alyssa Loveday, (512) SET AMOUNT: $40,500; ENFORCEMENT COORDINATOR: 239-5504; REGIONAL OFFICE: 3870 Eastex Freeway, Beaumont, Yuliya Dunaway, (210) 403-4077; REGIONAL OFFICE: 622 South Texas 77703-1830, (409) 898-3838. Oakes, Suite K, San Angelo, Texas 76903-7035, (325) 655-9479. (11) COMPANY: M. A. MORTENSON COMPANY; DOCKET NUM- (6) COMPANY: Blue Cube Operations LLC; DOCKET NUMBER: BER: 2021-0045-IHW-E; IDENTIFIER: RN110525458; LOCATION: 2021-0011-AIR-E; IDENTIFIER: RN108772245; LOCATION: Childress, Childress County; TYPE OF FACILITY: solar farm project; Freeport, Brazoria County; TYPE OF FACILITY: chemical manufac- RULE VIOLATED: 30 TAC §335.2(b), by failing to not cause, suf- turing plant; RULES VIOLATED: 30 TAC §101.201(b)(1)(H) and fer, allow, or permit the disposal of industrial solid waste; PENALTY: §122.143(4), Federal Operating Permit (FOP) Numbers O1388 and $2,250; ENFORCEMENT COORDINATOR: Hailey Johnson, (512) O2208, General Terms and Conditions (GTC) and Special Terms and 239-1756; REGIONAL OFFICE: 3918 Canyon Drive, Amarillo, Texas Conditions (STC) Number 2.F, and Texas Health and Safety Code 79109-4933, (806) 353-9251. (THSC), §382.085(b), by failing to identify all required information on the final record for a reportable emissions event; and 30 TAC (12) COMPANY: MarkWest Javelina Company, L.L.C.; DOCKET §116.115(c) and §122.143(4), New Source Review Permit Numbers NUMBER: 2020-1484-AIR-E; IDENTIFIER: RN102190139; LO- 2606, 19041, and 104098, Special Conditions Numbers 1 and 6, FOP CATION: Corpus Christi, Nueces County; TYPE OF FACILITY: Numbers O1388, O2204, and O2208, GTC and STC Numbers 16, 21, natural gas liquids production plant; RULES VIOLATED: 30 TAC and 26, and THSC, §382.085(b), by failing to prevent unauthorized §116.115(c), New Source Review Permit Number 19296, Special Con- emissions; PENALTY: $22,613; SUPPLEMENTAL ENVIRONMEN- ditions Number 1, and Texas Health and Safety Code, §382.085(b), by TAL PROJECT OFFSET AMOUNT: $9,045; ENFORCEMENT failing to prevent unauthorized emissions; PENALTY: $18,750; SUP- COORDINATOR: Danielle Porras, (713) 767-3682; REGIONAL PLEMENTAL ENVIRONMENTAL PROJECT OFFSET AMOUNT: OFFICE: 5425 Polk Street, Suite H, Houston, Texas 77023-1452, $9,375; ENFORCEMENT COORDINATOR: Richard Garza, (512) (713) 767-3500. 534-5859; REGIONAL OFFICE: 6300 Ocean Drive, Suite 1200, Corpus Christi, Texas 78412-5839, (361) 825-3100. (7) COMPANY: City of New Deal; DOCKET NUMBER: 2020-1550- PWS-E; IDENTIFIER: RN101389294; LOCATION: New Deal, Lub- (13) COMPANY: PM Country Store LLC dba Circle M Country bock County; TYPE OF FACILITY: public water supply; RULE VIO- Store; DOCKET NUMBER: 2020-1458-PST-E; IDENTIFIER:

46 TexReg 3760 June 18, 2021 Texas Register RN103027017; LOCATION: Marshall, Harrison County; TYPE OF data for calendar year 2019; PENALTY: $5,537; ENFORCEMENT FACILITY: convenience store with retail sales of gasoline; RULES COORDINATOR: Amanda Conner, (512) 676-7487; REGIONAL VIOLATED: 30 TAC §334.10(b)(2), by failing to assure that all OFFICE: 3870 Eastex Freeway, Beaumont, Texas 77703-1830, (409) underground storage tank (UST) recordkeeping requirements are met; 898-3838. and 30 TAC §334.50(b)(1)(A) and TWC, §26.3475(c)(1), by failing to (17) COMPANY: Undine Texas, LLC; DOCKET NUMBER: 2021- monitor the USTs for releases in a manner which will detect a release 0019-PWS-E; IDENTIFIER: RN102679842; LOCATION: Crowley, at a frequency of at least once every 30 days; PENALTY: $4,800; Johnson County; TYPE OF FACILITY: public water supply; RULES ENFORCEMENT COORDINATOR: Karolyn Kent, (512) 239-2536; VIOLATED: 30 TAC §290.45(b)(1)(C)(i) and Texas Health and Safety REGIONAL OFFICE: 2916 Teague Drive, Tyler, Texas 75701-3734, Code, §341.0315(c), by failing to provide a well capacity of 0.6 gal- (903) 535-5100. lons per minute per connection; PENALTY: $937; ENFORCEMENT (14) COMPANY: R & T ELLIS EXCAVATING, INCORPO- COORDINATOR: Julianne Matthews, (817) 588-5861; REGIONAL RATED; DOCKET NUMBER: 2020-0318-WQ-E; IDENTIFIER: OFFICE: 2309 Gravel Drive, Fort Worth, Texas 76118-6951, (817) RN109689497; LOCATION: Dayton, Liberty County; TYPE 588-5800. OF FACILITY: construction site; RULES VIOLATED: 30 TAC (18) COMPANY: Undine Texas, LLC; DOCKET NUMBER: 2020- §281.25(a)(4), TWC, §26.121, and 40 Code of Federal Regulations 1604-PWS-E; IDENTIFIER: RN101259596; LOCATION: Cleburne, §122.26(c), by failing to maintain authorization to discharge stormwa- Johnson County; TYPE OF FACILITY: public water supply; RULES ter associated with construction activities; PENALTY: $15,938; VIOLATED: 30 TAC §290.45(b)(1)(C)(i) and Texas Health and Safety ENFORCEMENT COORDINATOR: Caleb Olson, (817) 588-5856; Code, §341.0315(c), by failing to provide a well capacity of 0.6 gallons REGIONAL OFFICE: 5425 Polk Street, Suite H, Houston, Texas per minute per connection; PENALTY: $262; ENFORCEMENT CO- 77023-1452, (713) 767-3500. ORDINATOR: Miles Wehner, (512) 239-2813; REGIONAL OFFICE: (15) COMPANY: Robert L. Sutton; DOCKET NUMBER: 2309 Gravel Drive, Fort Worth, Texas 76118-6951, (817) 588-5800. 2021-0131-WOC-E; IDENTIFIER: RN109294058; LOCATION: (19) COMPANY: VITAL LINK, INCORPORATED dba Brazos Junction, Kimble County; TYPE OF FACILITY: wastewater treat- Crossing; DOCKET NUMBER: 2020-1577-PWS-E; IDENTIFIER: ment facility; RULES VIOLATED: 30 TAC §30.5(a) and §30.331(b) RN101222503; LOCATION: Sealy, Austin County; TYPE OF and TWC, §26.0301(c) and §37.003, by failing to have a valid and FACILITY: public water supply; RULES VIOLATED: 30 TAC current wastewater operator license prior to performing process con- §290.110(e)(4)(A) and (f)(3), by failing to submit a Disinfection Level trol activities at a wastewater treatment facility; PENALTY: $2,668; Quarterly Operating Report to the executive director by the tenth day ENFORCEMENT COORDINATOR: Stephanie Frederick, (512) of the month following the end of each quarter for the third quarters 239-1001; REGIONAL OFFICE: 622 South Oakes, Suite K, San of 2018 and 2019 through the second quarters of 2019 and 2020; Angelo, Texas 76903-7035, (325) 655-9479. PENALTY: $1,532; ENFORCEMENT COORDINATOR: Julianne (16) COMPANY: Shannon Lynn Goins; DOCKET NUMBER: Matthews, (817) 588-5861; REGIONAL OFFICE: 5425 Polk Street, 2020-1492-PWS-E; IDENTIFIER: RN101261667; LOCATION: Suite H, Houston, Texas 77023-1452, (713) 767-3500. Livingston, Polk County; TYPE OF FACILITY: public water supply; (20) COMPANY: WINKLER ENTERPRISES TX LLC dba Winkler RULES VIOLATED: 30 TAC §290.107(e), by failing to provide the Kountry Store; DOCKET NUMBER: 2020-1293-PST-E; IDEN- results of synthetic organic chemical contaminants and volatile organic TIFIER: RN101561140; LOCATION: Streetman, Navarro County; chemical contaminants sampling to the executive director (ED) for the TYPE OF FACILITY: convenience store with retail sales of gasoline; second and third quarters of 2019; 30 TAC §290.115(e), by failing to RULES VIOLATED: 30 TAC §334.8(c)(5)(A)(iii), by failing to have provide the results of Stage 2 Disinfection Byproducts sampling to the a valid, current TCEQ delivery certificate posted at the facility in a ED for the January 1, 2019 - December 31, 2019, monitoring period; location where the document is clearly visible at all times; 30 TAC 30 TAC §290.117(e)(2), (h), and (i)(3), by failing to conduct water §334.49(a)(1) and TWC, §26.3475(d), by failing to provide corrosion quality parameter sampling at each of the facility's entry points and protection for the underground storage tank (UST) system; and 30 the required distribution sample sites, have the samples analyzed, and TAC §334.50(b)(1)(A) and TWC, §26.3475(c)(1), by failing to mon- report the results to the ED for the January 1, 2019 - December 31, itor the USTs in a manner which will detect a release at a frequency 2019, monitoring period; 30 TAC §290.117(i)(6) and (j), by failing to of at least once every 30 days; PENALTY: $7,875; ENFORCEMENT provide a consumer notification of lead tap water monitoring results to COORDINATOR: Terrany Binford, (512) 567-3302; REGIONAL persons served at the sites that were tested, and failing to mail a copy OFFICE: 2309 Gravel Drive, Fort Worth, Texas 76118-6951, (817) of the consumer notification of tap results to the ED along with certifi- 588-5800. cation that the consumer notification has been distributed in a manner consistent with TCEQ requirements for the July 1, 2019 - December TRD-202102228 31, 2019 and January 1, 2020 - June 30, 2020, monitoring periods; 30 Charmaine Backens TAC §290.122(c)(2)(A) and (f), by failing to provide public notifica- Deputy Director, Litigation tion and submit a copy of the public notification, accompanied with a Texas Commission on Environmental Quality signed Certificate of Delivery, to the ED regarding the failure to report Filed: June 8, 2021 the results of asbestos sampling to the ED for the January 1, 2018 - December 31, 2018, monitoring period and regarding the failure to ♦ ♦ ♦ collect lead and copper tap samples for the January 1, 2019 - June 30, Chisholm Trail Redi-Mix, LLC: Proposed Registration No. 2019, monitoring period; and 30 TAC §290.271(b) and §290.274(a) and (c), by failing to mail or directly deliver one copy of the Consumer 164790 Confidence Report (CCR) to each bill paying customer by July 1st Thank you for your recent interest regarding the above-referenced ap- for each year, and failing to submit to the TCEQ by July 1st for each plication. This letter is your notice that the public hearing previously year a copy of the annual CCR and certification that the CCR has been scheduled for June 30, 2021, has been cancelled. distributed to the customers of the facility and that the information in the CCR is correct and consistent with the compliance monitoring This application has been withdrawn by the applicant.

IN ADDITION June 18, 2021 46 TexReg 3761 If you have any questions, please contact Mr. Brad Patterson, Section An agreed order was adopted regarding SASSOON PROPERTIES IN- Manager, Office of the Chief Clerk, at (512) 239-1201. VESTMENT GROUP, INC., Docket No. 2020‑0278‑PWS‑E on June 8, 2021, assessing $550 in administrative penalties. Information con- The Texas Commission on Environmental Quality appreciates your in- cerning any aspect of this order may be obtained by contacting Casey terest in matters pending before the agency. Kurnath, Staff Attorney at (512) 239‑3400, Texas Commission on En- TRD-202102204 vironmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. Laurie Gharis An agreed order was adopted regarding BNSF Railway Company, Chief Clerk Docket No. 2020‑0322‑IWD‑E on June 8, 2021, assessing $6,563 in Texas Commission on Environmental Quality administrative penalties with $1,312 deferred. Information concerning Filed: June 7, 2021 any aspect of this order may be obtained by contacting Caleb Olson, ♦ ♦ ♦ Enforcement Coordinator at (512) 239‑2545, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. Enforcement Orders An agreed order was adopted regarding Apache Stone Quarry, LLC, An agreed order was adopted regarding Lucious Josey, Docket No. Docket No. 2020‑0677‑WQ‑E on June 8, 2021, assessing $5,000 in 2019‑0355‑MLM‑E on June 1, 2021 assessing $2,553 in administra- administrative penalties with $1,000 deferred. Information concerning tive penalties. Information concerning any aspect of this order may be any aspect of this order may be obtained by contacting Harley Hobson, obtained by contacting Judith Bohr, Staff Attorney at (512) 239‑3400, Enforcement Coordinator at (512) 239‑2545, Texas Commission on Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. Texas 78711‑3087. An agreed order was adopted regarding SHAWN DANIEL An agreed order was adopted regarding William Templeton, Docket HOLDINGS LLC dba America Concrete Service, Docket No. No. 2019‑0617‑MSW‑E on June 1, 2021 assessing $4,312 in admin- 2020‑0708‑PST‑E on June 8, 2021, assessing $2,887 in adminis- istrative penalties. Information concerning any aspect of this order trative penalties with $577 deferred. Information concerning any may be obtained by contacting Clayton Smith, Staff Attorney at (512) aspect of this order may be obtained by contacting Tyler Richardson, 239‑3400, Texas Commission on Environmental Quality, P.O. Box Enforcement Coordinator at (512) 239‑2545, Texas Commission on 13087, Austin, Texas 78711‑3087. Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. TRD-202102236 An agreed order was adopted regarding Undine Texas, LLC, Docket Laurie Gharis No. 2020‑0727‑PWS‑E on June 8, 2021, assessing $7,130 in admin- Chief Clerk istrative penalties with $1,426 deferred. Information concerning any Texas Commission on Environmental Quality aspect of this order may be obtained by contacting Samantha Duncan, Filed: June 9, 2021 Enforcement Coordinator at (512) 239‑2545, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. ♦ ♦ ♦ An agreed order was adopted regarding CIRCLE K STORES INC. dba Enforcement Orders Circle K 2706110, Docket No. 2020‑0900‑PST‑E on June 8, 2021, as- sessing $6,911 in administrative penalties with $1,382 deferred. Infor- An agreed order was adopted regarding MORENO'S QUICK STOP mation concerning any aspect of this order may be obtained by con- INC dba Moreno's Grocery, Docket No. 2019‑0032‑PST‑E on June 8, tacting Courtney Atkins, Enforcement Coordinator at (512) 239‑2545, 2021, assessing $3,375 in administrative penalties. Information con- Texas Commission on Environmental Quality, P.O. Box 13087, Austin, cerning any aspect of this order may be obtained by contacting Ben Texas 78711‑3087. Warms, Staff Attorney at (512) 239‑3400, Texas Commission on En- vironmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. An agreed order was adopted regarding City of Morton, Docket No. 2020‑0914‑PWS‑E on June 8, 2021, assessing $6,550 in administrative An agreed order was adopted regarding City of Kendleton, Docket No. penalties with $1,310 deferred. Information concerning any aspect of 2019‑1383‑PWS‑E on June 8, 2021, assessing $100 in administrative this order may be obtained by contacting Steven Hall, Enforcement penalties with $20 deferred. Information concerning any aspect of this Coordinator at (512) 239‑2545, Texas Commission on Environmental order may be obtained by contacting Ronica Rodriguez, Enforcement Quality, P.O. Box 13087, Austin, Texas 78711‑3087. Coordinator at (512) 239‑2545, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. An agreed order was adopted regarding Maverick Tube Corporation dba TenarisConroe, Docket No. 2020‑0979‑AIR‑E on June 8, 2021, An agreed order was adopted regarding LA FAMA FOODS, INC., assessing $7,275 in administrative penalties with $1,455 deferred. In- Docket No. 2019‑1761‑WQ‑E on June 8, 2021, assessing $2,550 in formation concerning any aspect of this order may be obtained by con- administrative penalties with $510 deferred. Information concerning tacting Michaelle Garza, Enforcement Coordinator at (512) 239‑2545, any aspect of this order may be obtained by contacting Caleb Olson, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Enforcement Coordinator at (512) 239‑2545, Texas Commission on Texas 78711‑3087. Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. An agreed order was adopted regarding SUNNI'S MARKETING An agreed order was adopted regarding SJWTX, Inc. dba Canyon Lake CORP. dba Kwik Stop, Docket No. 2020‑1028‑PST‑E on June 8, Water Service Company, Docket No. 2020‑0124‑MWD‑E on June 8, 2021, assessing $3,339 in administrative penalties with $667 deferred. 2021, assessing $2,125 in administrative penalties with $425 deferred. Information concerning any aspect of this order may be obtained by Information concerning any aspect of this order may be obtained by contacting John Fennell, Enforcement Coordinator at (512) 239‑2545, contacting Caleb Olson, Enforcement Coordinator at (512) 239‑2545, Texas Commission on Environmental Quality, P.O. Box 13087, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Austin, Texas 78711‑3087. Texas 78711‑3087. An agreed order was adopted regarding KTC Interests, LLC, Docket No. 2020‑1045‑MWD‑E on June 8, 2021, assessing $4,387 in admin-

46 TexReg 3762 June 18, 2021 Texas Register istrative penalties with $877 deferred. Information concerning any as- aspect of this order may be obtained by contacting Clayton Smith, pect of this order may be obtained by contacting Alyssa Loveday, En- Staff Attorney at (512) 239‑3400, Texas Commission on Environmen- forcement Coordinator at (512) 239‑2545, Texas Commission on En- tal Quality, P.O. Box 13087, Austin, Texas 78711‑3087. vironmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. An agreed order was adopted regarding Lancaster Street CStore LLC An agreed order was adopted regarding Corix Utilities (Texas) Inc., dba EZ 1, Docket No. 2019‑0662‑PST‑E on June 9, 2021, assessing Docket No. 2020‑1047‑PWS‑E on June 8, 2021, assessing $4,387 in $15,381 in administrative penalties with $3,076 deferred. Informa- administrative penalties with $877 deferred. Information concerning tion concerning any aspect of this order may be obtained by contact- any aspect of this order may be obtained by contacting Epifanio Villar- ing Stephanie McCurley, Enforcement Coordinator at (512) 239‑2545, real, Enforcement Coordinator at (512) 239‑2545, Texas Commission Texas Commission on Environmental Quality, P.O. Box 13087, Austin, on Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. Texas 78711‑3087. An agreed order was adopted regarding Pelican Island Storage Ter- A default order was adopted regarding IBJ International, Inc. dba minal, LLC, Docket No. 2020‑1082‑AIR‑E on June 8, 2021, assess- Quick Stop Chevron, Docket No. 2019‑0821‑PST‑E on June 9, 2021, ing $4,313 in administrative penalties with $862 deferred. Informa- assessing $3,750 in administrative penalties. Information concerning tion concerning any aspect of this order may be obtained by contacting any aspect of this order may be obtained by contacting Taylor Pearson, Michaelle Garza, Enforcement Coordinator at (512) 239‑2545, Texas Staff Attorney at (512) 239‑3400, Texas Commission on Environmen- Commission on Environmental Quality, P.O. Box 13087, Austin, Texas tal Quality, P.O. Box 13087, Austin, Texas 78711‑3087. 78711‑3087. A default order was adopted regarding Christian Wilson, Docket No. An agreed order was adopted regarding John Baig dba Lucky Food 2019‑0999‑MLM‑E on June 9, 2021, assessing $7,515 in administra- Center, Docket No. 2020‑1093‑PST‑E on June 8, 2021, assessing tive penalties with $1,503 deferred. Information concerning any as- $6,375 in administrative penalties with $1,275 deferred. Information pect of this order may be obtained by contacting John S. Merculief II, concerning any aspect of this order may be obtained by contacting Staff Attorney at (512) 239‑3400, Texas Commission on Environmen- Ken Moller, Enforcement Coordinator at (512) 239‑2545, Texas tal Quality, P.O. Box 13087, Austin, Texas 78711‑3087. Commission on Environmental Quality, P.O. Box 13087, Austin, A default order was adopted regarding RALSTON ACRES WATER Texas 78711‑3087. SUPPLY CORPORATION, Docket No. 2019‑1028‑PWS‑E on June 9, An agreed order was adopted regarding M H Jiwani, Inc. dba J Bunny's, 2021, assessing $1,622 in administrative penalties. Information con- Docket No. 2020‑1165‑PST‑E on June 8, 2021, assessing $6,750 in cerning any aspect of this order may be obtained by contacting Jim administrative penalties with $1,350 deferred. Information concerning Sallans, Staff Attorney at (512) 239‑3400, Texas Commission on En- any aspect of this order may be obtained by contacting Tyler Richard- vironmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. son, Enforcement Coordinator at (512) 239‑2545, Texas Commission An agreed order was adopted regarding Mehroz Enterprises Inc dba on Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. Nasa Food Mart, Docket No. 2019‑1061‑PST‑E on June 9, 2021, as- An agreed order was adopted regarding Simmons Custom Rigging, sessing $7,647 in administrative penalties. Information concerning any LLC, Docket No. 2020‑1259‑AIR‑E on June 8, 2021, assessing $1,250 aspect of this order may be obtained by contacting Christopher Mullins, in administrative penalties with $250 deferred. Information concern- Staff Attorney at (512) 239‑3400, Texas Commission on Environmen- ing any aspect of this order may be obtained by contacting Amanda tal Quality, P.O. Box 13087, Austin, Texas 78711‑3087. Diaz, Enforcement Coordinator at (512) 239‑2545, Texas Commission A default order was adopted regarding Irwin Zane Miller, Docket No. on Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. 2019‑1064‑PST‑E on June 9, 2021, assessing $3,938 in administrative TRD-202102237 penalties. Information concerning any aspect of this order may be Laurie Gharis obtained by contacting Christopher Mullins, Staff Attorney at (512) Chief Clerk 239‑3400, Texas Commission on Environmental Quality, P.O. Box Texas Commission on Environmental Quality 13087, Austin, Texas 78711‑3087. Filed: June 9, 2021 An agreed order was adopted regarding VEREIT Real Estate L.P., ♦ ♦ ♦ Docket No. 2019‑1134‑PWS‑E on June 9, 2021, assessing $2,620 in administrative penalties. Information concerning any aspect of this Enforcement Orders order may be obtained by contacting Miles Wehner, Enforcement Coordinator at (512) 239‑2545, Texas Commission on Environmental An agreed order was adopted regarding Corpus Christi Alumina LLC, Quality, P.O. Box 13087, Austin, Texas 78711‑3087. Docket No. 2019‑0215‑IWD‑E on June 9, 2021, assessing $32,400 in administrative penalties. Information concerning any aspect of this or- A default order was adopted regarding HEDO CAR SHOP SERVICES der may be obtained by contacting Steven Van Landingham, Enforce- INC, Docket No. 2019‑1225‑AIR‑E on June 9, 2021, assessing $2,625 ment Coordinator at (512) 239‑2545, Texas Commission on Environ- in administrative penalties. Information concerning any aspect of this mental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. order may be obtained by contacting Christopher Mullins, Staff Attor- ney at (512) 239‑3400, Texas Commission on Environmental Quality, An agreed order was adopted regarding the City of Odem, Docket P.O. Box 13087, Austin, Texas 78711‑3087. No. 2019‑0255‑MWD‑E on June 9, 2021, assessing $59,532 in ad- ministrative penalties. Information concerning any aspect of this or- An agreed order was adopted regarding BAR Recycling Enterprises, der may be obtained by contacting Taylor Pearson, Staff Attorney at LLC, Docket No. 2019‑1327‑MSW‑E on June 9, 2021, assessing (512) 239‑3400, Texas Commission on Environmental Quality, P.O. $16,101 in administrative penalties with $3,219 deferred. Information Box 13087, Austin, Texas 78711‑3087. concerning any aspect of this order may be obtained by contacting Tyler Richardson, Enforcement Coordinator at (512) 239‑2545, Texas A default order was adopted regarding Felipe Zavala, Sr. dba Legacy Commission on Environmental Quality, P.O. Box 13087, Austin, Customs SS, Docket No. 2019‑0594‑MLM‑E on June 9, 2021, assess- Texas 78711‑3087. ing $3,675 in administrative penalties. Information concerning any

IN ADDITION June 18, 2021 46 TexReg 3763 An agreed order was adopted regarding the City of Snook, Docket No. tive penalties. Information concerning any aspect of this order may be 2019‑1333‑PWS‑E on June 9, 2021, assessing $121 in administrative obtained by contacting Ronica Rodriguez, Enforcement Coordinator penalties. Information concerning any aspect of this order may be ob- at (512) 239‑2545, Texas Commission on Environmental Quality, P.O. tained by contacting Julianne Matthews, Enforcement Coordinator at Box 13087, Austin, Texas 78711‑3087. (512) 239‑2545, Texas Commission on Environmental Quality, P.O. An agreed order was adopted regarding LAMESA ENTERPRISES, Box 13087, Austin, Texas 78711‑3087. INC., Docket No. 2020‑0701‑PWS‑E on June 9, 2021, assessing $362 An agreed order was adopted regarding Riviera Water Control and Im- in administrative penalties. Information concerning any aspect of this provement District, Docket No. 2019‑1352‑MLM‑E on June 9, 2021, order may be obtained by contacting Carlos Molina, Enforcement assessing $10,082 in administrative penalties with $2,015 deferred. In- Coordinator at (512) 239‑2545, Texas Commission on Environmental formation concerning any aspect of this order may be obtained by con- Quality, P.O. Box 13087, Austin, Texas 78711‑3087. tacting Aaron Vincent, Enforcement Coordinator at (512) 239‑2545, An agreed order was adopted regarding the City of Teague, Docket No. Texas Commission on Environmental Quality, P.O. Box 13087, Austin, 2020‑1099‑MWD‑E on June 9, 2021, assessing $12,250 in administra- Texas 78711‑3087. tive penalties with $2,450 deferred. Information concerning any aspect An agreed order was adopted regarding I.M.C. WASTE DISPOSAL, of this order may be obtained by contacting Alyssa Loveday, Enforce- INC., Docket No. 2019‑1421‑MSW‑E on June 9, 2021, assessing ment Coordinator at (512) 239‑2545, Texas Commission on Environ- $16,728 in administrative penalties with $3,345 deferred. Information mental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. concerning any aspect of this order may be obtained by contacting TRD-202102244 John Fennell, Enforcement Coordinator at (512) 239‑2545, Texas Laurie Gharis Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. Chief Clerk Texas Commission on Environmental Quality An agreed order was adopted regarding RGI MATERIALS, INC., Filed: June 9, 2021 Docket No. 2019‑1585‑WQ‑E on June 9, 2021, assessing $23,813 in administrative penalties. Information concerning any aspect of ♦ ♦ ♦ this order may be obtained by contacting Caleb Olson, Enforcement Notice and Comment Hearing: Draft Permit No. O2771 Coordinator at (512) 239‑2545, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. This is a notice for a notice and comment hearing on Federal Operat- ing Permit Number O2771. During the notice and comment hearing An agreed order was adopted regarding the City of Hamilton, Docket informal questions on the Federal Operating Permit will be answered No. 2019‑1589‑MWD‑E on June 9, 2021, assessing $5,625 in adminis- and formal comments will be received. The Texas Commission on En- trative penalties. Information concerning any aspect of this order may vironmental Quality (TCEQ) has scheduled the notice and comment be obtained by contacting Caleb Olson, Enforcement Coordinator at hearing regarding this application and draft permit as follows: (512) 239‑2545, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. Date: July 29, 2021 An agreed order was adopted regarding B2 United, LLC dba Grab N Time: 7:00 p.m. Go, Docket No. 2019‑1767‑PST‑E on June 9, 2021, assessing $13,448 Application and Draft Permit. Building Materials Investment Cor- in administrative penalties with $6,227 deferred. Information concern- poration, 2600 Singleton Boulevard, , Texas 75212-3738, an As- ing any aspect of this order may be obtained by contacting Hailey John- phalt Shingle and Coating Materials Manufacturing facility, has ap- son, Enforcement Coordinator at (512) 239‑2545, Texas Commission plied to the TCEQ for a Renewal of Federal Operating Permit (herein on Environmental Quality, P.O. Box 13087, Austin, Texas 78711‑3087. referred to as permit) No. O2771, Application No. 30975 to authorize An agreed order was adopted regarding Lilbert-Looneyville Water operation of the Dallas Plant. The area addressed by the application is Supply Corporation, Docket No. 2020‑0122‑PWS‑E on June 9, 2021, located at 2600 Singleton Boulevard in Dallas, Dallas County, Texas assessing $441 in administrative penalties. Information concern- 75212-3738. This application was received by the TCEQ on July 29, ing any aspect of this order may be obtained by contacting Yuliya 2020. Dunaway, Enforcement Coordinator at (512) 239‑2545, Texas Com- The TCEQ Executive Director has completed the technical review of mission on Environmental Quality, P.O. Box 13087, Austin, Texas the application and prepared a draft permit. The draft permit, if ap- 78711‑3087. proved, will codify the conditions under which the site must operate. A default order was adopted regarding Elizabeth K. Flores dba A & J The TCEQ Executive Director recommends issuance of the draft per- Drive Thru, Docket No. 2020‑0430‑PST‑E on June 9, 2021, assess- mit. The purpose of a federal operating permit is to improve overall ing $5,148 in administrative penalties. Information concerning any as- compliance with the rules governing air pollution control by clearly pect of this order may be obtained by contacting John S. Merculief II, listing all applicable requirements, as defined in Title 30 Texas Ad- Staff Attorney at (512) 239‑3400, Texas Commission on Environmen- ministrative Code (TAC) §122.10. The permit will not authorize new tal Quality, P.O. Box 13087, Austin, Texas 78711‑3087. construction or new emissions. An agreed order was adopted regarding Texas Health and Human Ser- Notice and Comment Hearing. The hearing will be structured for the vices Commission, Docket No. 2020‑0468‑MWD‑E on June 9, 2021, receipt of oral or written comments by interested persons. Registra- assessing $9,062 in administrative penalties with $1,812 deferred. In- tion and an informal discussion period with commission staff members formation concerning any aspect of this order may be obtained by con- will begin during the first 30 minutes. During the informal discussion tacting Harley Hobson, Enforcement Coordinator at (512) 239‑2545, period, the public is encouraged to ask questions and engage in open Texas Commission on Environmental Quality, P.O. Box 13087, Austin, discussion with the applicant and the TCEQ staff concerning this ap- Texas 78711‑3087. plication and draft permit. Issues raised during this discussion period will only be addressed in the formal response to comments if the issue An agreed order was adopted regarding the City of Toyah, Docket No. is also presented during the hearing. After the conclusion of the infor- 2020‑0556‑PWS‑E on June 9, 2021, assessing $4,500 in administra-

46 TexReg 3764 June 18, 2021 Texas Register mal discussion period, the TCEQ will conduct a notice and comment eral information about the TCEQ can be found at www.tceq.texas.gov. hearing regarding the application and draft permit. Individuals may Si desea información en español, puede llamar al (800) 687‑4040. present oral statements when called upon in order of registration. A Further information may also be obtained for Building Materials In- five-minute time limit may be established at the hearing to assure that vestment Corporation by calling Kevin Bush, Environmental Engineer enough time is allowed for every interested person to speak. The pur- at (972) 872-2325. pose of this hearing will be to receive formal public comment which the TCEQ will consider in determining whether to revise and/or issue Notice Issuance Date: June 4, 2021 the permit and in determining the accuracy and completeness of the TRD-202102234 permit. Any person may attend this hearing and submit written or oral Laurie Gharis comments. The hearing will be conducted in accordance with the Texas Clean Air Act § 382.0561, as codified in the Texas Health and Safety Chief Clerk Code, and 30 TAC § 122.340. Texas Commission on Environmental Quality Filed: June 8, 2021 Members of the public who would like to ask questions or provide com- ments during the hearing may access the hearing via webcast by fol- ♦ ♦ ♦ lowing this link: https://www.gotomeeting.com/webinar/join-webi- Notice of Hearing on Lubrandon English: SOAH Docket No. nar and entering Webinar ID 192-616-739. It is recommended that you join the webinar and register for the hearing at least 15 minutes before 582-21-2294; TCEQ Docket No. 2021-0507-LIC the hearing begins. You will be given the option to use your computer APPLICATION. audio or to use your phone for participating in the webinar. Lubrandon English, 9702 West Ferris Branch Boulevard, Apartment Those without internet access may call (512) 239-1201 at least one 428, Dallas, Texas 75243, has applied to the Texas Commission on En- day prior to the hearing for assistance in accessing the hearing and vironmental Quality (TCEQ) for a new Water Operator License. The participating telephonically. Members of the public who wish to only Executive Director denied Mr. English's application for cause. Mr. listen to the hearing may call, toll free, (415) 655-0060 and enter access English has requested a formal hearing on the Executive Director's de- code 569-744-316. cision. During the review of Mr. English's application, the Executive Las personas que deseen escuchar o participar en la reunión en es- Director discovered that Mr. English received deferred adjudication pañol pueden llamar al (844) 368-7161 e ingresar el código de acceso for a First-Degree Felony and a conviction for a Class B Misdemeanor. 904535#. Para obtener más información o asistencia, comuníquese con The Executive Director denied Mr. English's application because he Jaime Fernández al (512) 239-2566. considers these citations to be for offenses that directly relate to the duties and responsibilities of the licensed occupation. Additional information will be available on the agency calendar of events at the following link: https://www.tceq.texas.gov/agency/de- CONTESTED CASE HEARING. cisions/hearings/calendar.html. The State Office of Administrative Hearings (SOAH) will conduct a Persons with disabilities who need special accommodations at the hear- preliminary hearing via Zoom videoconference. A Zoom meeting is a ing should call the Office of the Chief Clerk at (512) 239-3300 or (800) secure, free meeting held over the internet that allows video, audio, or RELAY-TX (TDD) at least five business days prior to the hearing. audio/video conferencing. Any person may also submit written comments before the hearing 10:00 a.m. - July 6, 2021 to the Texas Commission on Environmental Quality, Office of Chief To join the Zoom meeting via computer: Clerk, MC-105, P.O. Box 13087, Austin, Texas 78711-3087, or elec- tronically at www14.tceq.texas.gov/epic/eComment/. Written com- https://soah-texas.zoomgov.com/ ments should include (1) your name, address, and daytime telephone Meeting ID: 160 470 3724 number, and (2) the draft permit number found at the top of this notice. Password: j3y9Wu A notice of proposed final action that includes a response to com- ments and identification of any changes to the draft permit will or be mailed to everyone who submitted: written comments, and/or To join the Zoom meeting via telephone: hearing requests, attended the hearing, or requested to be on the mailing list for this application. This mailing will also provide in- (669) 254-5252 or (646) 828-7666 structions for public petitions to the U.S. Environmental Protection Meeting ID: 160 470 3724 Agency (EPA) to request that the EPA object to the issuance of the proposed permit. After receiving a petition, the EPA may only object Password: 144381 to the issuance of a permit which is not in compliance with applicable The purpose of a preliminary hearing is to establish jurisdiction, name requirements or the requirements of 30 TAC Chapter 122. the parties, establish a procedural schedule for the remainder of the Mailing List. In addition to submitting public comments, a person proceeding, provide an opportunity for settlement discussions, and ad- may ask to be placed on a mailing list for this application by sending dress other matters as determined by the administrative law judge. The a request to the TCEQ Office of the Chief Clerk at the address above. preliminary hearing will be held unless all timely hearing requests are Those on the mailing list will receive copies of future public notices (if withdrawn or the parties agree to waive the preliminary hearing. any) mailed by the Chief Clerk for this application. The evidentiary phase of the contested case hearing, to be held at a Information. For additional information about this permit applica- later date, will be a legal proceeding similar to a civil trial in state dis- tion or the permitting process, please contact the Texas Commission on trict court to determine whether Mr. English should be issued a Water Environmental Quality, Public Education Program, MC‑108, P.O. Box Operator License. Unless agreed to by all parties in attendance at the 13087, Austin, Texas 78711-3087 or toll free at (800) 687-4040. Gen- preliminary hearing, an evidentiary hearing will not be held on the date of this preliminary hearing. If Lubrandon English fails to appear at

IN ADDITION June 18, 2021 46 TexReg 3765 the preliminary hearing or evidentiary hearing, the Executive Di- 20, 2021. TWC, §7.075, also requires that the commission promptly rector will request that the hearing be canceled, and that appeal of consider any written comments received and that the commission may the Executive Director's decision be dismissed. withdraw or withhold approval of an AO if a comment discloses facts or considerations that indicate that consent is inappropriate, improper, SOAH's rules allow for participation by telephone or videoconfer- inadequate, or inconsistent with the requirements of the statutes and ence. Permission must be obtained from SOAH at least ten days rules within the commission's jurisdiction or the commission's orders before the hearing. and permits issued in accordance with the commission's regulatory au- Legal Authority: Texas Water Code Chapters 5 and 37; Texas Occu- thority. Additional notice of changes to a proposed AO is not required pations Code Chapter 53; Texas Government Code, Chapter 2001; 30 to be published if those changes are made in response to written com- Texas Administrative Code (TAC) Chapter 30, and the procedural rules ments. of the TCEQ and SOAH, including 30 TAC Chapters 70 and 80 and 1 A copy of each proposed AO is available for public inspection at both TAC Chapter 155. the commission's central office, located at 12100 Park 35 Circle, Build- INFORMATION. ing A, 3rd Floor, Austin, Texas 78753, (512) 239‑3400 and at the ap- plicable regional office listed as follows. Written comments about an For information concerning the hearing process, please contact the AO should be sent to the attorney designated for the AO at the com- TCEQ Office of Public Interest Counsel, MC 103, P. O. Box 13087, mission's central office at P.O. Box 13087, MC 175, Austin, Texas Austin, Texas 78711-3087, (512) 239-6363. Further information 78711‑3087 and must be received by 5:00 p.m. on July 20, 2021. regarding this hearing may be obtained by contacting Alicia Ramirez, Comments may also be sent by facsimile machine to the attorney at Staff Attorney, TCEQ, Environmental Law Division, MC 173, P. (512) 239‑3434. The designated attorneys are available to discuss the O. Box 13087, Austin, Texas 78711-3087, (512) 239-0133. Gen- AOs and/or the comment procedure at the listed phone numbers; how- eral information about the TCEQ can be found at our web site at ever, TWC, §7.075, provides that comments on an AO shall be submit- www.tceq.texas.gov. General information about SOAH can be found ted to the commission in writing. on its website at www.soah.texas.gov/index.asp, or by calling (512) 475-4993. (1) COMPANY: James Lewis Allen dba Holiday Springs Mobile Home Park; DOCKET NUMBER: 2020-0672-PWS-E; TCEQ ID Any document filed prior to the hearing must be filed with NUMBER: RN101194041; LOCATION: 8285 United States Highway TCEQ's Office of the Chief Clerk and SOAH. Documents filed 59 South, Marshall, Harris County; TYPE OF FACILITY: public water with the Office of the Chief Clerk may be filed electronically at supply; RULES VIOLATED: Texas Health and Safety Code (THSC), www.tceq.texas.gov/goto/efilings or sent to the following address: §341.0351, and 30 TAC §290.39(j), by failing to notify the executive TCEQ Office of the Chief Clerk, Mail Code 105, P.O. Box 13087, director (ED) prior to making any significant change or addition to Austin, Texas 78711-3087. Documents filed with SOAH may be the system's production, treatment, storage, pressure maintenance, or filed via fax at (512) 322-2061 or sent to the following address: distribution facilities; 30 TAC §290.46(f)(2) and (3)(A)(ii)(V), (iii), SOAH, 300 West 15th Street, Suite 504, Austin, Texas 78701. and (vi) and (B)(v), by failing to maintain water works operation and When contacting the Commission or SOAH regarding this matter, maintenance records and make them readily available for review by reference the SOAH docket number given at the top of this notice. the ED upon request; 30 TAC §290.110(c)(5), by failing to conduct In accordance with 1 Texas Administrative Code §155.401(a), No- chloramine effectiveness sampling to ensure that monochloramine is tice of Hearing, "Parties that are not represented by an attorney the prevailing chloramine species and that nitrification is controlled; may obtain information regarding contested case hearings on the 30 TAC §290.121(a) and (b), by failing to maintain an up-to-date public website of the State Office of Administrative Hearings at chemical and microbiological monitoring plan at each water treatment www.soah.texas.gov, or in printed format upon request to SOAH." plant that identifies all sampling locations, describes the sampling frequency, and specifies the analytical procedures and laboratories Persons with disabilities who need special accommodations at the hear- that the public water system will use to comply with the monitoring ing should call the SOAH Docketing Department at (512) 475-4993, at requirements; THSC, §341.0315(c) and 30 TAC §290.45(b)(1)(C)(i), least one week prior to the hearing. by failing to provide a well capacity of 0.6 gallon per minute (gpm) per Issued: June 2, 2021 connection; THSC, §341.0315(c) and 30 TAC §290.45(b)(1)(C)(ii), TRD-202102162 by failing to provide a total storage capacity of 200 gallons per connection; THSC, §341.0315(c) and 30 TAC §290.45(b)(1)(C)(iii), Laurie Gharis by failing to provide two or more pumps having a total capacity of Chief Clerk 2.0 gpm per connection at each pump station or pressure plane; and Texas Commission on Environmental Quality THSC, §341.0315(c) and 30 TAC §290.45(b)(1)(C)(iv), by failing Filed: June 3, 2021 to provide a pressure tank capacity of 20 gallons per connection; ♦ ♦ ♦ PENALTY: $2,524; STAFF ATTORNEY: Judy Bohr, Litigation, MC 175, (512) 239-5807; REGIONAL OFFICE: Tyler Regional Office, Notice of Opportunity to Comment on Agreed Orders of 2916 Teague Drive, Tyler, Texas 75701-3734, (903) 535-5100. Administrative Enforcement Actions (2) COMPANY: Randy Earl Wyly and Hillside Dairy, LLC; DOCKET The Texas Commission on Environmental Quality (TCEQ or commis- NUMBER: 2020-0907-AGR-E; TCEQ ID NUMBER: RN102065166; sion) staff is providing an opportunity for written public comment on LOCATION: 3502 County Road 209, Hico, Erath County; TYPE the listed Agreed Orders (AOs) in accordance with Texas Water Code OF FACILITY: a concentrated animal feeding operation; RULES (TWC), §7.075. TWC, §7.075, requires that before the commission VIOLATED: 30 TAC §305.62 and §321.33(g) and Texas Pollutant Dis- may approve the AOs, the commission shall allow the public an op- charge Elimination System General Permit number WQ0003160000, portunity to submit written comments on the proposed AOs. TWC, Part V.B., by failing to obtain TCEQ authorization prior to beginning §7.075, requires that notice of the opportunity to comment must be pub- physical construction or operation of a new control facility - specifi- lished in the Texas Register no later than the 30th day before the date cally, respondents controlled and operated three additional properties on which the public comment period closes, which in this case is July considered to be Land Management Units without authorization;

46 TexReg 3766 June 18, 2021 Texas Register PENALTY: $4,875; STAFF ATTORNEY: Jim Sallans, Litigation, (2) COMPANY: Louis Michael Alvarez dba MBD Body and Paint; MC 175, (512) 239-2053; REGIONAL OFFICE: Dallas-Fort Worth DOCKET NUMBER: 2019-1256-AIR-E; TCEQ ID NUMBER: Regional Office, 2309 Gravel Drive, Fort Worth, Texas 76118-6951, RN100546829; LOCATION: 1421 North Lee Trevino Drive, Suite (817) 588-5800. C6, El Paso, El Paso County; TYPE OF FACILITY: auto body repair TRD-202102224 and refinishing shop; RULES VIOLATED: Texas Health and Safety Code, §382.0518(a) and §382.085(b) and 30 TAC §116.110(a), by Charmaine Backens failing to obtain authorization prior to constructing or modifying a Deputy Director, Litigation source of air contaminants; PENALTY: $1,312; STAFF ATTORNEY: Texas Commission on Environmental Quality Taylor Pearson, Litigation, MC 175, (512) 239-5937; REGIONAL Filed: June 8, 2021 OFFICE: El Paso Regional Office, 401 East Franklin Avenue, Suite ♦ ♦ ♦ 560, El Paso, Texas 79901-1212, (915) 834-4949. Notice of Opportunity to Comment on Default Orders of (3) COMPANY: Project Storm, LLC; DOCKET NUMBER: 2020-0840-AIR-E; TCEQ ID NUMBER: RN110445749; LOCA- Administrative Enforcement Actions TION: 2600 Hobbs Road, League City, Galveston County; TYPE The Texas Commission on Environmental Quality (TCEQ or commis- OF FACILITY: portable air curtain incinerator (ACI); RULES VI- sion) staff is providing an opportunity for written public comment on OLATED: Texas Health and Safety Code (THSC), §382.054 and the listed Default Orders (DOs). The commission staff proposes a DO §382.085(b) and 30 TAC §122.121, by failing to obtain a federal oper- when the staff has sent the Executive Director's Preliminary Report and ating permit prior to operating an ACI; and THSC, §382.0518(a) and Petition (EDPRP) to an entity outlining the alleged violations; the pro- §382.085(b) and 30 TAC §116.110(a), by failing to obtain authoriza- posed penalty; the proposed technical requirements necessary to bring tion prior to constructing or modifying a source of air contaminants; the entity back into compliance; and the entity fails to request a hear- PENALTY: $5,000; STAFF ATTORNEY: Casey Kurnath, Litigation, ing on the matter within 20 days of its receipt of the EDPRP or requests MC 175, (512) 239-5932; REGIONAL OFFICE: Houston Regional a hearing and fails to participate at the hearing. Similar to the proce- Office, 5425 Polk Street, Suite H, Houston, Texas 77023-1452, (713) dure followed with respect to Agreed Orders entered into by the execu- 767-3500. tive director of the commission, in accordance with Texas Water Code TRD-202102225 (TWC), §7.075, this notice of the proposed order and the opportunity Charmaine Backens to comment is published in the Texas Register no later than the 30th Deputy Director, Litigation day before the date on which the public comment period closes, which in this case is July 20, 2021. The commission will consider any writ- Texas Commission on Environmental Quality ten comments received, and the commission may withdraw or withhold Filed: June 8, 2021 approval of a DO if a comment discloses facts or considerations that ♦ ♦ ♦ indicate that consent to the proposed DO is inappropriate, improper, inadequate, or inconsistent with the requirements of the statutes and Notice of Opportunity to Comment on Shutdown/Default rules within the commission's jurisdiction, or the commission's orders Orders of an Administrative Enforcement Action and permits issued in accordance with the commission's regulatory au- The Texas Commission on Environmental Quality (TCEQ or com- thority. Additional notice of changes to a proposed DO is not required mission) staff is providing an opportunity for written public comment to be published if those changes are made in response to written com- on the listed Shutdown/Default Orders (S/DOs). Texas Water Code ments. (TWC), §26.3475, authorizes the commission to order the shutdown of A copy of each proposed DO is available for public inspection at both any underground storage tank (UST) system found to be noncompliant the commission's central office, located at 12100 Park 35 Circle, Build- with release detection, spill and overfill prevention, and/or, after De- ing A, 3rd Floor, Austin, Texas 78753, (512) 239‑3400 and at the appli- cember 22, 1998, cathodic protection regulations of the commission, cable regional office listed as follows. Written comments about the DO until such time as the owner/operator brings the UST system into com- should be sent to the attorney designated for the DO at the commission's pliance with those regulations. The commission proposes a Shutdown central office at P.O. Box 13087, MC 175, Austin, Texas 78711‑3087 Order after the owner or operator of a UST facility fails to perform re- and must be received by 5:00 p.m. on July 20, 2021. Comments may quired corrective actions within 30 days after receiving notice of the also be sent by facsimile machine to the attorney at (512) 239‑3434. release detection, spill and overfill prevention, and/or after December The commission's attorneys are available to discuss the DOs and/or 22, 1998, cathodic protection violations documented at the facility. The the comment procedure at the listed phone numbers; however, TWC, commission proposes a Default Order when the staff has sent an Ex- §7.075, provides that comments on the DOs shall be submitted to the ecutive Director's Preliminary Report and Petition (EDPRP) to an en- commission in writing. tity outlining the alleged violations, the proposed penalty, the proposed technical requirements necessary to bring the entity back into compli- (1) COMPANY: Ali Hassan; DOCKET NUMBER: 2020-0296- ance, and the entity fails to request a hearing on the matter within 20 MSW-E; TCEQ ID NUMBER: RN110848280; LOCATION: near days of its receipt of the EDPRP or requests a hearing and fails to par- Spur 557 and Farm-to-Market Road 148, Terrell, Kaufman County; ticipate at the hearing. In accordance with TWC, §7.075, this notice TYPE OF FACILITY: trucking company; RULE VIOLATED: 30 of the proposed order and the opportunity to comment is published in TAC §327.5(c), by failing to submit written information, describing the Texas Register no later than the 30th day before the date on which the details of the discharge or spill and supporting the adequacy of the public comment period closes, which in this case is July 20, 2021. the response action within 30 working days of the discovery of the re- The commission will consider any written comments received and the portable discharge or spill; PENALTY: $1,312; STAFF ATTORNEY: commission may withdraw or withhold approval of an S/DO if a com- Taylor Pearson, Litigation, MC 175, (512) 239-5937; REGIONAL ment discloses facts or considerations that indicate that consent to the OFFICE: Dallas-Fort Worth Regional Office, 2309 Gravel Drive, Fort proposed S/DO is inappropriate, improper, inadequate, or inconsistent Worth, Texas 76118-6951, (817) 588-5800. with the requirements of the statutes and rules within the commission's jurisdiction, or the commission's orders and permits issued in accor-

IN ADDITION June 18, 2021 46 TexReg 3767 dance with the commission's regulatory authority. Additional notice of ♦ ♦ ♦ changes to a proposed S/DO is not required to be published if those changes are made in response to written comments. Notice of Public Hearing on Assessment of Administrative Penalties and Requiring Certain Actions of Harmen A copy of each proposed S/DO is available for public inspection at Waterlander: SOAH Docket No. 582-21-2304; TCEQ Docket both the commission's central office, located at 12100 Park 35 Circle, No. 2019-0633-AGR-E Building A, 3rd Floor, Austin, Texas 78753, (512) 239‑3400 and at the applicable regional office listed as follows. Written comments about The Texas Commission on Environmental Quality (TCEQ or the Com- the S/DO shall be sent to the attorney designated for the S/DO at the mission) has referred this matter to the State Office of Administrative commission's central office at P.O. Box 13087, MC 175, Austin, Texas Hearings (SOAH). An Administrative Law Judge with the State Office 78711‑3087 and must be received by 5:00 p.m. on July 20, 2021. of Administrative Hearings will conduct a public hearing via Zoom Written comments may also be sent by facsimile machine to the attor- videoconference at: ney at (512) 239‑3434. The commission's attorneys are available to 10:00 a.m. - July 8, 2021 discuss the S/DOs and/or the comment procedure at the listed phone number; however, comments on the S/DOs shall be submitted to the To join the Zoom meeting via computer: commission in writing. https://soah-texas.zoomgov.com/ (1) COMPANY: FOREVER BUSINESS INC dba Fast Lane Food Meeting ID: 161 785 0188 Mart aka Babba Fuel Store; DOCKET NUMBER: 2019-0949-PST-E; TCEQ ID NUMBER: RN101739977; LOCATION: 12660 Highway Password: 4Xib66 59 South, Shepherd, San Jacinto County; TYPE OF FACILITY: UST or system and a convenience store with retail sales of gasoline; RULES VIOLATED: TWC, §26.3475(a) and (c)(1) and 30 TAC §334.50 To join the Zoom meeting via telephone dial: and §334.54(c)(2), by failing to perform a proper return to service (669) 254-5252 or (646) 828-7666 for USTs which have been temporarily out of service; and 30 TAC §330.10(b)(1)(B), by failing to assure that all UST recordkeeping Meeting ID: 161 785 0188 requirements are met; PENALTY: $5,353; STAFF ATTORNEY: Jake Password: 471639 Marx, Litigation, MC 175, (512) 239-5111; REGIONAL OFFICE: Beaumont Regional Office, 3870 Eastex Freeway, Beaumont, Texas The purpose of the hearing will be to consider the Executive Director's 77703-1830, (409) 898-3838. Preliminary Report and Petition mailed December 2, 2020 concern- ing assessing administrative penalties against and requiring certain ac- (2) COMPANY: GLOBAL GOLDEN, INC. dba Waco Travel Stop; tions of Harmen Waterlander, for violations in Erath County, Texas, DOCKET NUMBER: 2019-0940-PST-E; TCEQ ID NUMBER: of: Texas Water Code §26.121(a)(1), 30 Texas Administrative Code RN103194361; LOCATION: 1001 Enterprise Boulevard, Hewitt, §§305.125(1), 321.31(a), 321.36(b), and 321.39(c)(1) and (g)(2), and McLennan County; TYPE OF FACILITY: UST system and a conve- Texas Pollutant Discharge Elimination System ("TPDES") Permit No. nience store with retail sales of gasoline; RULES VIOLATED: TWC, TXG920560, Part III.A.10(e), III.A.12(c)(1), and III.B.5. §26.3475(c)(1) and 30 TAC §334.50(b)(1)(A), by failing to monitor the USTs for releases in a manner in which will detect a release at The hearing will allow Harmen Waterlander, the Executive Director, a frequency of at least once every 30 days; TWC, §26.3475(a) and and the Commission's Public Interest Counsel to present evidence on 30 TAC §334.50(b)(2), by failing to provide release detection for whether a violation has occurred, whether an administrative penalty the pressurized piping associated with the UST system; 30 TAC should be assessed, and the amount of such penalty, if any. The first §334.8(c)(5)(C), by failing to ensure that a legible tag, label, or convened session of the hearing will be to establish jurisdiction, afford marking with the tank number is permanently applied upon or affixed Harmen Waterlander, the Executive Director of the Commission, and to either the top of the fill tube or to a non-removable point in the the Commission's Public Interest Counsel an opportunity to negotiate immediate area of the fill tube for each regulated UST according to the and to establish a discovery and procedural schedule for an evidentiary UST registration and self-certification form; TWC, §26.3475(c)(2) and hearing. Unless agreed to by all parties in attendance at the prelimi- 30 TAC §334.42(i), by failing to inspect all sumps, manways, overspill nary hearing, an evidentiary hearing will not be held on the date of this containers, or catchment basins associated with a UST system at preliminary hearing. Upon failure of Harmen Waterlander to ap- least once every 60 days to assure that their sides, bottoms, and any pear at the preliminary hearing or evidentiary hearing, the factual penetration points are maintained liquid tight; TWC, §26.3475(c)(2) allegations in the notice will be deemed admitted as true, and the and 30 TAC §334.51(a)(6), by failing to ensure that all installed spill relief sought in the notice of hearing may be granted by default. containment devices are maintained in good operating condition; The specific allegations included in the notice are those set forth in 30 TAC §334.605(a), by failing to ensure that certified Class A and the Executive Director's Preliminary Report and Petition, attached B operators were retrained within three years of their last training hereto and incorporated herein for all purposes. Harmen Waterlan- date; and 30 TAC §334.10(b)(2), by failing to assure that all UST der, the Executive Director of the Commission, and the Commission's recordkeeping requirements are met; PENALTY: $46,458; STAFF Public Interest Counsel are the only designated parties to this proceed- ATTORNEY: Taylor Pearson, Litigation, MC 175, (512) 239-5937; ing. REGIONAL OFFICE: Waco Regional Office, 6801 Sanger Avenue, Legal Authority: Tex. Water Code §7.054 and chs. 7 and 26 and 30 Suite 2500, Waco, Texas 76710-7826, (254) 751-0335. TAC chs. 70, 305, and 321; Tex. Water Code §7.058, and the Rules TRD-202102223 of Procedure of the Texas Commission on Environmental Quality and Charmaine Backens the State Office of Administrative Hearings, including 30 TAC §70.108 Deputy Director, Litigation and §70.109 and ch. 80, and 1 TAC ch. 155. Texas Commission on Environmental Quality Further information regarding this hearing may be obtained by con- Filed: June 8, 2021 tacting Clayton Smith, Staff Attorney, Texas Commission on Environ- mental Quality, Litigation Division, Mail Code 175, P.O. Box 13087,

46 TexReg 3768 June 18, 2021 Texas Register Austin, Texas 78711-3087, telephone (512) 239-3400. Information Public Testimony. Public testimony and comment will be taken virtu- concerning your participation in this hearing may be obtained by con- ally. tacting Vic McWherter, Public Interest Counsel, Mail Code 103, at the During the hearing, attendees who wish to provide public comment same P.O. Box address given above, or by telephone at (512) 239-6363. may indicate their intention through the GoToWebinar chat feature. Any document filed prior to the hearing must be filed with The moderator will enable these attendees to provide oral comments TCEQ's Office of the Chief Clerk and SOAH. Documents filed virtually during the public comment portion of the hearing. with the Office of the Chief Clerk may be filed electronically at Written Comments: Written comments may be submitted by U.S. www.tceq.texas.gov/goto/efilings or sent to the following address: mail to the Texas Health and Human Services Commission, Atten- TCEQ Office of the Chief Clerk, Mail Code 105, P.O. Box 13087, tion: Basundhara Raychaudhuri, Waiver Coordinator, Policy Devel- Austin, Texas 78711-3087. Documents filed with SOAH may be opment Support, Mail Code H-600, P.O. Box 13247, Austin, Texas filed via fax at (512) 322-2061 or sent to the following address: 78711-3247; by fax to Basundhara Raychaudhuri at (512) 206-3975; SOAH, 300 West 15th Street, Suite 504, Austin, Texas 78701. or by e-mail to [email protected]. When contacting the Commission or SOAH regarding this matter, reference the SOAH docket number given at the top of this notice. Written Comments on the progress of the THTQIP Waiver. Written comments on the progress of the THTQIP Waiver may be submitted In accordance with 1 TAC §155.401(a), Notice of Hearing, "Par- instead of, or in addition to, oral testimony until 5 p.m. on Monday ties that are not represented by an attorney may obtain informa- June 21, 2021. tion regarding contested case hearings on the public website of the State Office of Administrative Hearings at www.soah.texas.gov, or Written Comments on the THTQIP Waiver Extension. Written in printed format upon request to SOAH." comments regarding the extension application for the THTQIP Waiver may be submitted instead of, or in addition to, oral testimony until 5 Persons who need special accommodations at the hearing should call p.m. on Monday, June 28, 2021. the SOAH Docketing Department at (512) 475-3445, at least one week before the hearing. Written Comments on the progress of the HTW Waiver. Written comments on the progress of the HTW Waiver may be submitted in- Issued: June 7, 2021 stead of, or in addition to, oral testimony until 5 p.m. on Monday June TRD-202102221 21, 2021. Laurie Gharis Contact: To ask questions, obtain a free hard copy of the waiver ex- Chief Clerk tension application, or obtain additional information, please contact the Texas Commission on Environmental Quality HHSC Waiver Coordination Office at (512) 487-3318 or TX_Medic- Filed: June 7, 2021 [email protected]. ♦ ♦ ♦ A copy of the proposed waiver extension application is also available Texas Health and Human Services Commission at the following link on the HHSC website: https://hhs.texas.gov/laws- regulations/policies-rules/waivers/waiver-renewal. Notice of Post Award Forum for the 1115 Texas Healthcare TRD-202102190 Transformation Quality Improvement Program Waiver Karen Ray (THTQIP Waiver); Notice of Post Award Forum for the Texas Chief Counsel Healthy Women 1115 Waiver (HTW); and Notice of Public Texas Health and Human Services Commission Hearing on the THTQIP Waiver Extension Request Filed: June 4, 2021 Hearing. The Health and Human Services Commission (HHSC) will conduct a virtual post award forum and public hearing on June 21, 2021 ♦ ♦ ♦ beginning at 1:00 p.m. (CDT) to provide updates and to solicit feed- Texas Department of Housing and Community back and receive comment on the progress of the 1115 Texas Healthcare Affairs Transformation Quality Improvement Program (THTQIP) Waiver; to provide updates and solicit comment on the THTQIP Waiver extension Request for Qualifications application; and to provide updates and to solicit feedback and receive The Texas Department of Housing and Community Affairs ("Depart- comment on the progress of the Healthy Texas Women (HTW) Waiver. ment") has posted Request for Qualifications ("RFQ") #332-RFQ21- Due to the COVID-19 pandemic, this hearing will be conducted vir- 1001, for a law firm to serve as outside bond counsel for its single tually using GoToWebinar only. To join the hearing, go to https://at- and multifamily bond programs. If you are interested in providing a tendee.gotowebinar.com/register/3923607658676568333. response to this RFQ please view the Request for Qualifications post- ing on the Electronic State Business Daily ("ESBD"). The website is There is not a physical location for this hearing. http://esbd.cpa.state.tx.us/. You can search by the RFQ number listed The agenda for the hearing is: above. The RFQ is also posted on the Department's website http://td- hca.state.tx.us. 1. Welcome and introductions; TRD-202102245 2. Post-Award Forum on the THTQIP Waiver; Bobby Wilkinson 3. Extension of the THTQIP Waiver; Executive Director Texas Department of Housing and Community Affairs 4. Post-Award Forum on the HTW Waiver; Filed: June 9, 2021 5. Public comment; and ♦ ♦ ♦ 6. Adjournment. Request for Qualifications

IN ADDITION June 18, 2021 46 TexReg 3769 The Texas Department of Housing and Community Affairs ("Depart- ♦ ♦ ♦ ment") has posted Request for Qualifications ("RFQ") #332-RFQ21- Texas Department of Insurance 1002, for a law firm to serve as outside bond securities disclosure coun- sel for its single and multifamily bond programs. If you are interested Company Licensing in providing a response to this RFQ please view the Request for Quali- Application to do business in the state of Texas for Incline National fications posting on the Electronic State Business Daily ("ESBD"). The Insurance Company, a domestic fire and/or casualty company. The website is http://esbd.cpa.state.tx.us/. You can search by the RFQ num- home office is in Austin, Texas. ber listed above. The RFQ is also posted on the Department's website http://tdhca.state.tx.us. Any objections must be filed with the Texas Department of Insur- ance, within twenty (20) calendar days from the date of the Texas This filing serves as a correction to RFQ #332-RFQ21-1002 as posted Register publication, addressed to the attention of Robert Rudnai, 333 in the June 4, 2021 edition of the Texas Register, which contained er- Guadalupe Street, MC 103-CL, Austin, Texas 78701. roneous information. TRD-202102235 TRD-202102246 James Person Bobby Wilkinson General Counsel Executive Director Texas Department of Insurance Texas Department of Housing and Community Affairs Filed: June 9, 2021 Filed: June 9, 2021 ♦ ♦ ♦ ♦ ♦ ♦ Public Utility Commission of Texas Request for Qualifications Notice of Petition for Rulemaking The Texas Department of Housing and Community Affairs ("Depart- ment") has posted Request for Qualifications ("RFQ") #332-RFQ21- Notice is given to the public of a petition filed with the Public Util- 1003, for a law firm to serve as outside document preparation counsel ity Commission of Texas (commission) on June 1, 2021, to initiate to prepare real estate loan and related documents. If you are interested a rulemaking to amend 16 Texas Administrative Code §25.29(i) and in providing a response to this RFQ please view the Request for Quali- §25.483(j). fications posting on the Electronic State Business Daily ("ESBD"). The Project Title and Number: Petition of The Coalition of Competitive website is http://esbd.cpa.state.tx.us/. You can search by the RFQ num- Retail Electric Providers for Rulemaking and Request for Emergency ber listed above. The RFQ is also posted on the Department's website Relief. Project Number 52200. http://tdhca.state.tx.us. Summary of Petition: The Coalition of Competitive Retail Electric This filing serves as a correction to RFQ #332-RFQ21-1003 as posted Providers filed a petition for rulemaking to amend 16 Texas Admin- in the June 4, 2021 edition of the Texas Register, which contained er- istrative Code §25.29(i), and §25.483(j) regarding Disconnection of roneous information. Service. The petitioners state that the proposed amendments would TRD-202102247 apply a disconnection moratorium to counties where states of disaster Bobby Wilkinson are declared by the Governor. The amendments would further provide Executive Director that future prohibitions against disconnections would last for five (5) Texas Department of Housing and Community Affairs calendar days unless renewed by the Commission for successive five Filed: June 9, 2021 (5) day periods after notice and opportunity for comment. The deadline to file comments in this project is July 9, 2021. Comments ♦ ♦ ♦ must be filed at the Public Utility Commission of Texas, 1701 N. Con- Request for Qualifications gress, Austin, Texas 78701. Interested persons may contact the com- mission at (512) 936-7120 or (toll-free) (888) 782-8477. Hearing and The Texas Department of Housing and Community Affairs ("Depart- speech-impaired individuals with text telephone (TTY) may contact ment") has posted Request for Qualifications ("RFQ") #332-RFQ21- the commission at (512) 936-7136 or use Relay Texas (toll-free) (800) 1004, for a law firm to serve as low-income housing tax credit outside 735-2989. All comments should reference Project Number 52200. counsel for its tax credit programs. If you are interested in providing a response to this RFQ please view the Request for Qualifications post- TRD-202102163 ing on the Electronic State Business Daily ("ESBD"). The website is Andrea Gonzalez http://esbd.cpa.state.tx.us/. You can search by the RFQ number listed Rules Coordinator above. The RFQ is also posted on the Department's website http://td- Public Utility Commission of Texas hca.state.tx.us. Filed: June 3, 2021 This filing serves as a correction to RFQ #332-RFQ21-1004 as posted ♦ ♦ ♦ in the June 4, 2021, edition of the Texas Register, which contained er- roneous information. TRD-202102248 Bobby Wilkinson Executive Director Texas Department of Housing and Community Affairs Filed: June 9, 2021

46 TexReg 3770 June 18, 2021 Texas Register

How to Use the Texas Register Texas Administrative Code Information Available: The sections of the Texas Register The Texas Administrative Code (TAC) is the compilation of represent various facets of state government. Documents contained all final state agency rules published in the Texas Register. within them include: Following its effective date, a rule is entered into the Texas Governor - Appointments, executive orders, and Administrative Code. Emergency rules, which may be adopted by proclamations. an agency on an interim basis, are not codified within the TAC. Attorney General - summaries of requests for opinions, opinions, and open records decisions. The TAC volumes are arranged into Titles and Parts (using Texas Ethics Commission - summaries of requests for Arabic numerals). The Titles are broad subject categories into opinions and opinions. which the agencies are grouped as a matter of convenience. Each Emergency Rules - sections adopted by state agencies on an Part represents an individual state agency. emergency basis. Proposed Rules - sections proposed for adoption. The complete TAC is available through the Secretary of Withdrawn Rules - sections withdrawn by state agencies State’s website at http://www.sos.state.tx.us/tac. from consideration for adoption, or automatically withdrawn by the Texas Register six months after the proposal publication date. The Titles of the TAC, and their respective Title numbers are: Adopted Rules - sections adopted following public comment period. 1. Administration Texas Department of Insurance Exempt Filings - notices of 4. Agriculture actions taken by the Texas Department of Insurance pursuant to 7. Banking and Securities Chapter 5, Subchapter L of the Insurance Code. 10. Community Development Review of Agency Rules - notices of state agency rules 13. Cultural Resources review. 16. Economic Regulation Tables and Graphics - graphic material from the proposed, 19. Education emergency and adopted sections. 22. Examining Boards Transferred Rules - notice that the Legislature has 25. Health Services transferred rules within the Texas Administrative Code from one 26. Health and Human Services state agency to another, or directed the Secretary of State to 28. Insurance remove the rules of an abolished agency. 30. Environmental Quality In Addition - miscellaneous information required to be 31. Natural Resources and Conservation published by statute or provided as a public service. 34. Public Finance Specific explanation on the contents of each section can be 37. Public Safety and Corrections found on the beginning page of the section. The division also 40. Social Services and Assistance publishes cumulative quarterly and annual indexes to aid in 43. Transportation researching material published. How to Cite: Under the TAC scheme, each section is designated How to Cite: Material published in the Texas Register is by a TAC number. For example in the citation 1 TAC §27.15: 1 referenced by citing the volume in which the document appears, indicates the title under which the agency appears in the Texas the words “TexReg” and the beginning page number on which that Administrative Code; TAC stands for the Texas Administrative document was published. For example, a document published on Code; §27.15 is the section number of the rule (27 indicates that page 2402 of Volume 46 (2021) is cited as follows: 46 TexReg the section is under Chapter 27 of Title 1; 15 represents the 2402. individual section within the chapter).

In order that readers may cite material more easily, page numbers How to Update: To find out if a rule has changed since the are now written as citations. Example: on page 2 in the lower- publication of the current supplement to the Texas Administrative left hand corner of the page, would be written “46 TexReg 2 Code, please look at the Index of Rules. issue date,” while on the opposite page, page 3, in the lower right-hand corner, would be written “issue date 46 TexReg 3.” The Index of Rules is published cumulatively in the blue-cover quarterly indexes to the Texas Register. How to Research: The public is invited to research rules and information of interest between 8 a.m. and 5 p.m. weekdays at the If a rule has changed during the time period covered by the table, Texas Register office, James Earl Rudder Building, 1019 Brazos, the rule’s TAC number will be printed with the Texas Register Austin. Material can be found using Texas Register indexes, the page number and a notation indicating the type of filing Texas Administrative Code section numbers, or TRD number. (emergency, proposed, withdrawn, or adopted) as shown in the following example. Both the Texas Register and the Texas Administrative Code are available online at: http://www.sos.state.tx.us. The Texas Register TITLE 1. ADMINISTRATION is available in an .html version as well as a .pdf version through Part 4. Office of the Secretary of State the internet. For website information, call the Texas Register at Chapter 91. Texas Register (512) 463-5561. 1 TAC §91.1……...... 950 (P)

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