Proposed Rules Title 22

TITLE 22. EXAMINING BOARDS

PART 5. STATE BOARD OF DENTAL EXAMINERS

The State Board of Dental Examiners (Board) proposes this amendment to 22 TAC §104.2, concerning continuing education providers. The Board conducted a review of the continuing education providers in accordance with this rule, and voted to review the provider Dental Risk Solutions, LLC. The Board sent a notice to the mailing address of record for Dental Risk Solutions, LLC, informing it that the Board will consider whether to remove or reclassify it as a provider during its next scheduled meetings on February 20-21, 2025. The notice was returned to the Board as "Unable to Forward." The Board voted to remove Dental Risk Solutions, LLC as a continuing education provider at the February 2025 meeting.

FISCAL NOTE: Casey Nichols, Executive Director, has determined that for the first five-year period the proposed rule is in effect, the proposed rule does not have foreseeable implications relating to cost or revenues of the state or local governments.

PUBLIC BENEFIT-COST NOTE: Casey Nichols has also determined that for the first five-year period the proposed rule is in effect, the public benefit anticipated as a result of this proposed rule will be the protection of public safety and welfare.

LOCAL EMPLOYMENT IMPACT STATEMENT: Casey Nichols has also determined that the proposed rule does not affect local economies and employment.

SMALL AND MICRO-BUSINESS, RURAL COMMUNITY IMPACT STATEMENT: Casey Nichols has determined that no economic impact statement and regulatory flexibility analysis for small businesses, micro-businesses, and rural communities is necessary for this proposed rule.

(2) implementation of the proposed rule does not require the creation or elimination of employee positions; (3) the implementation of the proposed rule does not require an increase or decrease in future appropriations; (4) the proposed rule does not require an increase in fees paid to the agency; (5) the proposed rule does not create a new regulation; (6) the proposed rule does not expand an existing regulation; (7) the proposed rule does not increase the number of individuals subject to the rule's applicability; and (8) the proposed rule does not positively or adversely affect the state's economy.

COST TO REGULATED PERSONS: This proposed rule does not impose a cost on a regulated person and, therefore, is not subject to Tex. Gov't. Code §2001.0045.

Comments on the proposed rule may be submitted to Casey Nichols, Executive Director, 1801 Congress Avenue, Suite 8.600, Austin, Texas 78701, by fax to (512) 649-2482, or by email to official_rules_comments@tsbde.texas.gov for 30 days following the date that the proposed rule is published in the Texas Register . To be considered for purposes of this rulemaking, comments must be: (1) postmarked or shipped by the last day of the comment period; or (2) faxed or e-mailed by midnight on the last day of the comment period.

This rule is proposed under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety.

No statutes are affected by this proposed rule.

§ 104.2. Providers.

(a) - (d) (No change.)

(e) Continuing Education courses endorsed by the following providers will meet the criteria for acceptable continuing education hours if such hours are certified by the following providers:

(1) American Dental Association--Continuing Education Recognition Program (CERP);

(2) American Dental Association, its component, and its constituent organizations;

(3) Academy of General Dentistry and its constituents and approved sponsors;

(4) Dental/dental hygiene schools and programs accredited by the Commission on Dental Accreditation of the American Dental Association;

(5) American Dental Association approved specialty organizations;

(6) American Dental Hygienists' Association, its component, and its constituent organizations;

(7) American Medical Association approved specialty organizations;

(8) American Medical Association approved hospital courses;

(9) National Dental Association, its constituent, and its component societies;

(10) National Dental Hygienists' Association, its constituent, and its component societies;

(11) Medical schools and programs accredited by the Standards of the Medical Specialties, the American Medical Association, the Advisory Board for Osteopathic Specialists and Boards of Certification, or the American Osteopathic Association;

(12) The Commission on Dental Competency Assessments-The Western Regional Examining Board-The Council of Interstate Testing Agencies (CDCA-WREB-CITA), States Resources for Testing and Assessments (SRTA), and Central Regional Dental Testing Services Inc. (CRDTS);

(13) American Academy of Dental Hygiene;

(14) American Dental Education Association;

(15) American Heart Association;

(16) Texas Dental Hygiene Educators' Association;

(17) Dental Laboratory Association of Texas;

(18) Dental Assisting National Board;

(19) American Dental Assistants Association and its constituent organizations;

(20) The Compliance Division, LLC;

(21) Dental Compliance Specialists, LLC; and

(22) Other entities approved by the Board as shown in the attached graphic for this section.

Figure: 22 TAC §104.2(e)(22) (.pdf)

~~Figure: 22 TAC §104.2(e)(22)~~

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 14, 2025.

TRD-202500938

Lauren Studdard

General Counsel

State Board of Dental Examiners

Earliest possible date of adoption: April 27, 2025

For further information, please call: (737) 363-2333

CHAPTER 107. DENTAL BOARD PROCEDURES

SUBCHAPTER E. DATA REPORTING

22 TAC §107.400

The State Board of Dental Examiners (Board) proposes this amendment to 22 TAC §107.400, concerning collection and reporting of enforcement and licensing data. The proposed amendment requires a yearly report to the Board instead of a quarterly report because a yearly report will provide a better snapshot of the data. The proposed amendment updates the rule to reflect that the Board no longer issues administrative citations, but rather administrative penalties. The proposed amendment also corrects a punctuation error.

PUBLIC BENEFIT-COST NOTE: Casey Nichols has also determined that for the first five-year period the proposed rule is in effect, the public benefit anticipated as a result of this rule will be the protection of public safety and welfare.

LOCAL EMPLOYMENT IMPACT STATEMENT: Casey Nichols has also determined that the proposed rule does not affect local economies and employment.

GOVERNMENT GROWTH IMPACT STATEMENT: The Board has determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: (1) the proposed rule does not create or eliminate a government program; (2) implementation of the proposed rule does not require the creation or elimination of employee positions; (3) the implementation of the proposed rule does not require an increase or decrease in future appropriations; (4) the proposed rule does not require an increase in fees paid to the agency; (5) the proposed rule does not create a new regulation; (6) the proposed rule does not expand an existing regulation; (7) the proposed rule does not increase or decrease the number of individuals subject to it; and (8) the proposed rule does not positively or adversely affect the state's economy.

No statutes are affected by this proposed rule.

§ 107.400. Collection and Reporting of Enforcement and Licensing Data.

(a) All information related to an investigation is confidential, except that the agency shall provide information on a yearly [ ~~quarterly~~ ] basis to the Board and the Anesthesia Committee of the Board, and to legislative offices upon request. This information shall consist of de-identified, case specific data reflecting information about jurisdictional, filed complaints involving sedation/anesthesia that were resolved during the reporting period, including, at a minimum, the following data points:

(1) Source of initial complaint -- public, other agency, self-report of death, self-report of hospitalization, or initiated by the Board.

(2) Information about licensee:

(A) Whether respondent is Medicaid provider;

(B) Respondent's highest sedation/anesthesia permit level;

(D) Respondent's self-reported practice area.

(3) Information about patient:

(A) Patient ASA, as identified in respondent's dental records and/or determined by Dental Review Panel;

(B) Patient age -- 13 and under, between 13 and 18, between 19 and 75, and over 75;

(D) Level of sedation/anesthesia administered -- Local, Nitrous, I, II, III, IV (determined by Dental Review Panel);

(E) Sedation/anesthesia administrator -- respondent, other dentist, MD, CRNA (determined by Dental Review Panel); and

(F) Whether treatment investigated by the agency was paid by Medicaid.

(4) Information about investigation:

(A) Allegation categories identified in preliminary investigation;

(B) Disposition of official investigation -- Dismissed by Enforcement, Dismissed by Legal -- No Violation, Dismissed by Board Vote, Closed by Administrative Penalty [ ~~Citation~~ ]/Remedial Plan/Disciplinary Action; and

(C) If disposition is public action (Administrative Penalty [ ~~Citation~~ ], Remedial Plan, or Disciplinary Action), the violations identified in the public action resolving the official investigation.

(b) In addition, the agency shall publish on its website aggregate data related to the preceding fiscal year for each type of license it issues. This aggregate data shall include, at a minimum, the following data points related to the preceding fiscal year:

(1) Number of licensees at the end of the fiscal year;

(2) Average number of days to issue a license;

(3) Total number of complaints against licensees received by the agency;

(4) Total number of jurisdictional complaints against licensees filed by the agency;

(5) The resolution of all cases resolved in the fiscal year:

(A) Nonjurisdictional;

(B) Jurisdictional, Not Filed;

(D) Dismissed by Board Vote;

(E) Closed by Administrative Penalty [ ~~Citation~~ ];

(F) Closed by Remedial Plan;

(G) Warning;

(H) Reprimand;

(I) Probation;

(J) Suspension; and

(K) Revocation.

(6) For all jurisdictional, filed complaints resolved in the fiscal year, the allegation category of the complaints, as defined in §107.104;

(7) Number of cases that at the end of the fiscal year, have been filed with the agency for longer than one year;

(8) Average administrative penalty [ ~~assessed through administrative citations~~ ] issued in the fiscal year;

(9) Average administrative fine assessed through disciplinary actions taken in the fiscal year;

(10) Number of cases heard at Informal Settlement Conferences in the fiscal year;

(11) Number of cases resolved following Informal Settlement Conference, without referral to SOAH, in the fiscal year;

(12) Number of cases referred to SOAH in the fiscal year;

(13) Number of cases referred to SOAH and resolved following mediation, in the fiscal year;

(14) Number of cases returned to the Board for disposition on a default basis following referral to SOAH;

(15) Number of cases returned to the Board for consideration of a Proposal for Decision following a contested case hearing at SOAH;

(16) Number of cases resolved in the fiscal year that were appealed to District Court;

(17) Average number of days to investigate a complaint from complaint received to investigation completed, for all complaints received; and

(18) Average number of days to resolve a complaint from complaint received to final order issued, for all complaints received.

(c) In addition, the agency shall publish on its website aggregate data related to the preceding fiscal year that addresses adverse outcomes and complaints involving anesthesia. This aggregate data shall include, at a minimum, the following data points related to the preceding fiscal year:

(1) Number of jurisdictional, filed complaints involving mortality and morbidity. Morbidity is defined as life-threatening complications following a dental procedure or treatment;

(2) Total number of jurisdictional complaints against dentists related to the standard of care in anesthesia, by level of sedation/anesthesia permit held by the dentist, that were filed by the Board in the preceding fiscal year; and

(3) For all anesthesia-related jurisdictional, filed complaints identified in (2) above, the level of sedation/anesthesia permit held by the dentist, the anesthesia-related complication identified in the Board's investigation (if any), and the resolution of each complaint:

(A) Nonjurisdictional ;

(B) Jurisdictional, Not Filed;

(D) Dismissed by Board Vote;

(E) Closed by Administrative Penalty [ ~~Citation~~ ];

(F) Closed by Remedial Plan;

(G) Warning;

(H) Reprimand;

(I) Probation;

(J) Suspension; or

(K) Revocation.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 14, 2025.

TRD-202500939

Lauren Studdard

General Counsel

State Board of Dental Examiners

Earliest possible date of adoption: April 27, 2025

For further information, please call: (737) 363-2333

CHAPTER 108. PROFESSIONAL CONDUCT

SUBCHAPTER A. PROFESSIONAL RESPONSIBILITY

22 TAC §108.8

The State Board of Dental Examiners (Board) proposes this amendment to 22 TAC §108.8, concerning the records of a dentist. The proposed amendment removes the language that the use of radiographs should be in accordance with ADA guidelines, and instead requires dentists to use radiographs in accordance with the minimum standard of care.

LOCAL EMPLOYMENT IMPACT STATEMENT: Casey Nichols has also determined that the proposed rule does not affect local economies and employment.

GOVERNMENT GROWTH IMPACT STATEMENT: The Board has determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: (1) the proposed rule does not create or eliminate a government program; (2) implementation of the proposed rule does not require the creation or elimination of employee positions; (3) the implementation of the proposed rule does not require an increase or decrease in future appropriations; (4) the proposed rule does not require an increase in fees paid to the agency; (5) the proposed rule creates a new regulation; (6) the proposed rule does not expand an existing regulation; (7) the proposed rule does not increase the number of individuals subject to the rule's applicability; and (8) the proposed rule does not positively or adversely affect the state's economy.

COST TO REGULATED PERSONS: This proposed rule does not impose a cost on a regulated person and, therefore, is not subject to Tex. Gov't. Code §2001.0045.

No statutes are affected by this proposed rule.

§ 108.8. Records of the Dentist.

(a) The term dental records includes, but is not limited to: identification of the practitioner providing treatment; medical and dental history; limited physical examination; oral pathology examination; radiographs; dental and periodontal charting; diagnoses made; treatment plans; informed consent statements or confirmations; study models, casts, molds, and impressions, if applicable; cephalometric diagrams; narcotic drugs, dangerous drugs, controlled substances dispensed, administered or prescribed; anesthesia records; pathology and medical laboratory reports; progress and completion notes; materials used; dental laboratory prescriptions; billing and payment records; appointment records; consultations and recommended referrals; and post treatment recommendations.

(b) A Texas dental licensee practicing dentistry in Texas shall make, maintain, and keep adequate dental records for and upon each dental patient for reference, identification, and protection of the patient and the dentist. Records shall be kept for a period of not less than five years from the last date of treatment by the dentist. If a patient was younger than 18 years of age when last treated by the dentist, the records shall be maintained by the dentist until the patient reaches age 21 or for five years from the date of last treatment, whichever is longer. Dentists shall retain records for a longer period of time when mandated by other federal or state statute or regulation. Records must include documentation of the following:

(1) Patients name;

(2) Date of visit;

(3) Reason for visit;

(4) Vital signs, including, but not limited to, blood pressure and heart rate when applicable in accordance with §108.7 of this title (relating to Minimum Standard of Care, General); and

(5) If not recorded, an explanation why vital signs were not obtained.

(1) Written review of medical history and limited physical evaluation;

(2) Findings and charting of clinical and radiographic oral examination:

(A) Documentation of radiographs taken and findings deduced from them, including radiograph films or digital reproductions.

(B) Use of radiographs must [ ~~, at a minimum, should~~ ] be in accordance with the minimum standard of care [ ~~ADA guidelines~~ ].

(3) Diagnosis(es);

(4) Treatment plan, recommendation, and options;

(5) Treatment provided;

(6) Medication and dosages given to patient;

(7) Complications;

(8) Written informed consent that meets the provisions of §108.7(7) of this title;

(9) The dispensing, administering, or prescribing of all medications to or for a dental patient shall be made a part of such patient's dental record. The entry in the patient's dental record shall be in addition to any record keeping requirements of the DPS or DEA prescription programs;

(10) All records pertaining to Controlled Substances and Dangerous Drugs shall be maintained in accordance with the Texas Controlled Substances Act;

(11) Confirmable identification of provider dentist, and confirmable identification of person making record entries if different from provider dentist;

(12) When any of the items in paragraphs (1) - (11) of this subsection are not indicated, the record must include an explanation why the item is not recorded.

(d) Dental records are the sole property of the dentist who performs the dental service. However, ownership of original dental records may be transferred as provided in this section. Copies of dental records shall be made available to a dental patient in accordance with this section.

(e) A dentist who leaves a location or practice, whether by retirement, sale, transfer, termination of employment or otherwise, shall maintain all dental records belonging to him or her, make a written transfer of records to the succeeding dentist, or make a written agreement for the maintenance of records.

(1) A dentist who continues to maintain the dental records belonging to him or her shall maintain the dental records in accordance with the laws of the State of Texas and this chapter.

(2) A dentist who enters into a written transfer of records agreement shall notify the State Board of Dental Examiners in writing within fifteen (15) days of a records transfer agreement. The notification shall include, at a minimum, the full names of the dentists involved in the agreement, include the locations involved in the agreement, and specifically identify what records are involved in the agreement. The agreement shall transfer ownership of the records. A transfer of records agreement may be made by agreement at any time in an employment or other working relationship between a dentist and another entity. Such transfer of records may apply to all or any part of the dental records generated in the course of the relationship, including future dental records. A dentist who assumes ownership of the records pursuant to this paragraph shall maintain the records in a manner consistent with this section and is responsible for complying with subsections (f) and (g) of this section.

(3) A dentist who enters into a records maintenance agreement shall notify the State Board of Dental Examiners within fifteen (15) days of such event. The notification shall include the full names of the dentists involved in the agreement, the locations involved in the agreement, and shall identify what records are involved in the agreement. A maintenance agreement shall not transfer ownership of the dental records, but shall require that the dental records be maintained in accordance with the laws of the State of Texas and the Rules of the State Board of Dental Examiners. The agreement shall require that the dentist(s) performing the dental service(s) recorded in the records have access to and control of the records for purposes of copying and recording. The dentist transferring the records in a records maintenance agreement shall maintain a copy of the records involved in the records maintenance agreement. Such an agreement may be made by written agreement by the parties at any time in an employment or other working relationship between a dentist and another entity. A records maintenance agreement may apply to all or any part of the dental records generated in the course of the relationship, including future dental records.

(f) Dental records shall be made available for inspection and reproduction on demand by the officers, agents, or employees of the State Board of Dental Examiners. The patient's privilege against disclosure does not apply to the Board in a disciplinary investigation or proceeding under the Dental Practice Act. Copies of dental records submitted to the Board on demand of the officers, agents, or employees of the Board shall be legible and all copies of dental x-rays shall be of diagnostic quality. Non-diagnostic quality copies of dental x-rays and illegible copies of patient records submitted to the Board shall not fulfill the requirements of this section.

(g) A dentist shall furnish copies of dental records to a patient who requests his or her dental records. At the patient's option, the copies may be submitted to the patient directly or to another Texas dental licensee who will provide treatment to the patient. Requested copies, including radiographs, shall be furnished within 30 days of the date of the request. The copies may be withheld until copying costs have been paid. Records shall not be withheld based on a past due account for dental care or treatment previously rendered to the patient. Copies of dental records submitted in accordance with a request under this section shall be legible and all copies of dental x-rays shall be of diagnostic quality. Non-diagnostic quality copies of dental x-rays shall not fulfill the requirements of this section.

(1) A dentist providing copies of patient dental records is entitled to a reasonable fee for copying which shall be no more than $25 for the first 20 pages and $0.15 per page for every copy thereafter.

(2) Fees for radiographs, which if copied by an radiograph duplicating service, may be equal to actual cost verified by invoice.

(3) Reasonable costs for radiographs duplicated by means other than by a radiograph duplicating service shall not exceed the following charges:

(A) a full mouth radiograph series: $15.00;

(B) a panoramic radiograph: $15.00;

(D) a single extra-oral radiograph: $5.00;

(E) a single intra-oral radiograph: $5.00; and

(F) a CBCT scan: $30.00.

(4) State agencies and institutions will provide copies of dental health records to patients who request them following applicable agency rules and directives.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 14, 2025.

TRD-202500940

Lauren Studdard

General Counsel

State Board of Dental Examiners

Earliest possible date of adoption: April 27, 2025

For further information, please call: (737) 363-2333

SUBCHAPTER E. BUSINESS PROMOTION

22 TAC §108.52

The State Board of Dental Examiners (Board) proposes this amendment to 22 TAC §108.52, concerning names and responsibilities. The proposed amendment specifies that dental specialties are approved by the National Commission on Recognition of Dental Specialties and Certifying Boards. The proposed amendment also includes grammar changes.

LOCAL EMPLOYMENT IMPACT STATEMENT: Casey Nichols has also determined that the proposed rule does not affect local economies and employment.

GOVERNMENT GROWTH IMPACT STATEMENT: The Board has determined that for the first five-year period the proposed rule is in effect, the following government growth effects apply: (1) the proposed rule does not create or eliminate a government program; (2) implementation of the proposed rule does not require the creation or elimination of employee positions; (3) the implementation of the proposed rule does not require an increase or decrease in future appropriations; (4) the proposed rule does not require an increase in fees paid to the agency; (5) the proposed rule does not create a new regulation; (6) the proposed rule does not expand an existing regulation; (7) the proposed rule does not increase the number of individuals subject to the rule's applicability; and (8) the proposed rule does not positively or adversely affect the state's economy.

COST TO REGULATED PERSONS: This proposed rule does not impose a cost on a regulated person and, therefore, is not subject to Tex. Gov't. Code §2001.0045.

No statutes are affected by this proposed rule.

§ 108.52. Names and Responsibilities.

(a) Disclosure of Full Name.

(1) Any person who practices dentistry under any name or trade name must provide full and outward disclosure of his or her full name as it appears on his or her license or renewal certificate issued by the board, or his or her commonly used name.

(2) Any person who owns, maintains, or operates an office or place of business in which the person employs or engages under any type of contract another person to practice dentistry, either directly or indirectly, under any name or trade name must provide full and outward disclosure of his or her full name as it appears on his or her license or renewal certificate issued by the board, or his or her commonly used name.

(3) Any person who holds himself or herself out to the public, directly or indirectly, as soliciting patronage or as being qualified to practice dentistry in the state of Texas under any name or trade name must provide full and outward disclosure of his or her full name as it appears on his or her license or renewal certificate issued by the board, or his or her commonly used name.

(4) Any person who operates, manages, or is employed in any facility where dental service is rendered or conducted under any name or trade name must provide full and outward disclosure of his or her full name as it appears on the license or renewal certificate issued by the board, or his or her commonly used name.

(5) Any person who practices dentistry must display his or her full name as it appears on his or her license or renewal certificate issued by the board, or his or her commonly used name, outside the primary entry of each location at which he or she practices dentistry.

(6) If the names of auxiliary personnel, such as dental hygienists or dental assistants, are displayed in any manner or in any advertising, the auxiliary personnel must be clearly identified by title, along with the name of a supervising dentist.

(b) Name of Practice.

(1) Each dental office shall post at or near the entrance of the office in an area visible to the public, the name of, each professional degree received by and each school attended by each dentist practicing in the office.

(2) The name of the owner shall be prominently displayed and only the names of the dentists who are engaged in the practice of the profession at a particular location shall be used.

(3) The name of a deceased or retired dentist leaving a practice shall not be used at such location more than one (1) year following departure from the practice. The name of a dentist leaving a location for any other reason or transferring his or her practice shall not be used at such location or practice for more than forty (40) days following departure from the location. However, if the transferring dentist remains actively engaged in the practice of dentistry in the transferred practice, the acquiring dentist may continue using the name of the transferring dentist.

(4) A licensed Texas dentist, in any professional communication concerning dental services, shall include the dentist's dental degree; the words "general dentist" or "general dentistry;" or a specialization approved by the National Commission on Recognition of Dental Specialties and Certifying Boards [ ~~an ADA approved dental specialty~~ ] if the dentist is a specialist in the field designated.

(5) A licensed Texas dentist who is also authorized to practice medicine in Texas may use the initials "M.D." or "D.O." along with the dentist's dental degree.

(1) A dentist may practice under his or her own name, or use a corporation, company, association or trade name as provided by §259.003 of the Texas Occupations Code.

(2) A dentist practicing under a corporation, company, association or trade name shall give each patient the name and license number of the treating dentist, in writing, either before or after each office visit, upon request of a patient.

(3) An advertisement under a corporation, company, association or trade name must include prominently the name of the owner(s) and at least one dentist actually engaged in the practice of dentistry under that trade name at each location advertised. This provision does not apply to location signage.

(4) Each dentist practicing under a corporation, company, association or trade name shall file notice with the board of every corporation, company, association or trade name under which that dentist practices upon initial application for licensure and annual license renewal.

(5) Since the name under which a dentist conducts his or her practice may be a factor in the selection process of the patient, the use of a trade name or an assumed name that is false or misleading in any material respect is unethical.

(d) Responsibility. The responsibility for the form and content of an advertisement offering services or goods by a dentist shall be jointly and severally that of each licensed professional who is an owner, principal, partner, or officer of the firm or entity identified in the advertisement.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 14, 2025.

TRD-202500941

Lauren Studdard

General Counsel

State Board of Dental Examiners

Earliest possible date of adoption: April 27, 2025

For further information, please call: (737) 363-2333

PART 22. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY

CHAPTER 519. PRACTICE AND PROCEDURE

SUBCHAPTER A. GENERAL PROVISIONS

22 TAC §519.2

The Texas State Board of Public Accountancy (Board) proposes an amendment to §519.2, concerning Definitions.

Background, Justification and Summary

The current cite to the rule does not identify the specific relevant paragraph. The paragraph is added. The definition of contested case eliminates language that doesn't apply because "ratemaking" is not a responsibility of this agency.

Fiscal Note

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment is in effect, there will be no additional estimated cost to the state, no estimated reduction in costs to the state and to local governments, and no estimated loss or increase in revenue to the state, as a result of enforcing or administering the amendment.

Public Benefit

The adoption of the two proposed rule amendments will be provide greater clarity.

Probable Economic Cost and Local Employment Impact

Mr. Treacy, Executive Director, has determined that there will be no probable economic cost to persons required to comply with the amendment and a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

Small Business, Rural Community and Micro-Business Impact Analysis

William Treacy, Executive Director, has determined that the proposed amendment will not have an adverse economic effect on small businesses, rural communities or micro-businesses because the amendment does not impose any duties or obligations upon small businesses, rural communities or micro-businesses; therefore, an Economic Impact Statement and a Regulatory Flexibility Analysis are not required.

Government Growth Impact Statement

William Treacy, Executive Director, has determined that for the first five-year period the amendment is in effect, the proposed rule: does not create or eliminate a government program; does not create or eliminate employee positions; does not increase or decrease future legislative appropriations to the Board; does not increase or decrease fees paid to the Board; does not create a new regulation; limits the existing regulation; does not increase or decrease the number of individuals subject to the proposed rule's applicability; and does not positively or adversely affect the state's economy.

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

The requirement related to a rule increasing costs to regulated persons does not apply to the Texas State Board of Public Accountancy because the rule is being proposed by a self-directed semi-independent agency. (§2001.0045(c)(8))

Public Comment

Written comments may be submitted to J. Randel (Jerry) Hill, General Counsel, Texas State Board of Public Accountancy, 505 E. Huntland Dr., Suite 380, Austin, Texas 78752 or faxed to his attention at (512) 305-7854, no later than noon on April 28, 2025.

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

Statutory Authority

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

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

§ 519.2. Definitions.

In this chapter:

(1) "Address of record" means the last address provided to the board by a certificate or registration holder pursuant to §501.93(d) [ ~~§501.93~~ ] of this title (relating to Responses);

(2) "ALJ" means SOAH administrative law judge;

(3) "APA" means the Texas Administrative Procedure Act, Chapter 2001 of the Texas Government Code;

(4) "Board staff" means the agency's employees;

(5) "Committee" means an enforcement committee of the board;

(6) "Complainant" means the person or entity who initiates a complaint with the board against a certificate or registration holder;

(7) "Complaint" means information available to or provided to the board indicating that a certificate or registration holder may have violated the Act, board rules, or order of the board;

(8) "Contested case" means a proceeding, including a [ ~~ratemaking or~~ ] licensing or disciplinary proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearing;

(9) "Deferred Adjudication" means the judge deferred further proceedings without entering an adjudication of guilt and placed the person under the supervision of the court or an officer under the supervision of the court and at the end of the period of supervision, the judge dismissed the proceedings and discharged the person;

(10) "Direct Administrative Costs" means those costs actually incurred by the board through payment to outside vendors and the resources expended by the board in the investigation and prosecution of a matter within the board's jurisdiction, including but not limited to, staff salary, payroll taxes and benefits and other non-salary related expenses, expert fees and expenses, witness fees and expenses, filing fees and expenses of the support staff of the Office of the Attorney General, filing fees, SOAH utilization fees, court reporting fees, copying fees, delivery fees, case management fees, costs of exhibit creation, technical fees, travel costs and any other cost or fee that can reasonably be attributed to the matter;

(11) "Petitioner" means the Texas State Board of Public Accountancy;

(12) "PFD" means the proposal for decision prepared by an ALJ;

(13) "Respondent" means a licensee or certificate holder, individual or entity against whom a complaint has been filed; and

(14) "SOAH" means the State Office of Administrative Hearings.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 13, 2025.

TRD-202500905

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: April 27, 2025

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

22 TAC §519.7

The Texas State Board of Public Accountancy (Board) proposes an amendment to §519.7 concerning Criminal Offenses that May Subject a Licensee or Certificate Holder to Discipline or Disqualify a Person from Receiving a License.

Background, Justification and Summary

The word Sight Order is misspelled and this revision corrects the spelling.

Fiscal Note

Public Benefit

The adoption of the proposed rule amendment will provide greater clarity.

Probable Economic Cost and Local Employment Impact

Small Business, Rural Community and Micro-Business Impact Analysis

Government Growth Impact Statement

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

Public Comment

Statutory Authority

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

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

§ 519.7. Criminal Offenses that May Subject a Licensee or Certificate Holder to Discipline or Disqualify a Person from Receiving a License.

(a) Final conviction or placement on deferred adjudication for a felony, or final conviction or placement on deferred adjudication for the following misdemeanors, may subject a licensee or certificate holder to disciplinary action pursuant to §501.90 of this title (relating to Discreditable Acts) or disqualify a person from receiving a license or certificate, or deny a person the opportunity to take the UCPAE pursuant to §511.70 of this title (relating to Grounds for Disciplinary Action of Applicants). Licensees and certificate holders are often placed in a position of trust with respect to client funds and assets. The public including the business community relies on the integrity of licensees and certificate holders in providing professional accounting services or professional accounting work. The board considers a conviction or placement on deferred adjudication for a felony or conviction or placement on deferred adjudication for the following misdemeanor offenses to be evidence of an individual lacking the integrity necessary to be trusted with client funds and assets. The repeated failure to follow state and federal criminal laws directly relates to the integrity required to practice public accountancy. The board has determined that the following list of misdemeanor offenses evidence violations of law that involve integrity and directly relate to the duties and responsibilities involved in providing professional accounting services or professional accounting work, pursuant to the provisions of Chapter 53 of the Occupations Code:

(1) dishonesty or fraud:

(A) Unlawful Use of Criminal Instrument;

(B) Unlawful Access to Stored Communications;

(D) Burglary of Coin-Operated or Coin Collection Machines;

(E) Burglary of Vehicles;

(F) Theft;

(G) Theft of Service;

(H) Tampering with Identification Numbers;

(I) Theft of or Tampering with Multichannel Video or Information Services;

(J) Manufacture, Distribution, or Advertisement of Multichannel Video or Information Services Device;

(K) Sale or Lease of Multichannel Video or Information Services Device;

(L) Possession, Manufacture, or Distribution of Certain Instruments Used to Commit Retail Theft;

(M) Forgery;

(N) Criminal Simulation;

(O) Trademark Counterfeiting;

(P) Stealing or Receiving Stolen Check or Similar Sight Order [ ~~SightOrder~~ ];

(Q) False Statement to Obtain Property or Credit or in the Provision of Certain Services;

(R) Hindering Secured Creditors;

(S) Fraudulent Transfer of a Motor Vehicle;

(T) Credit Card Transaction Record Laundering;

(U) Issuance of a Bad Check;

(V) Deceptive Business Practices;

(W) Rigging Publicly Exhibited Contest;

(X) Misapplication of Fiduciary Property or Property of Financial Institution;

(Y) Securing Execution of Document by Deception;

(Z) Fraudulent Destruction, Removal, or Concealment of Writing;

(AA) Simulating Legal Process;

(BB) Refusal to Execute Release of Fraudulent Lien or Claim;

(CC) Fraudulent, Substandard, or Fictitious Degree;

(DD) Breach of Computer Security;

(EE) Unauthorized Use of Telecommunications Service;

(FF) Theft of Telecommunications Service;

(GG) Publication of Telecommunications Access Device;

(HH) Insurance Fraud;

(II) Medicaid Fraud;

(JJ) Coercion of Public Servant or Voter;

(KK) Improper Influence;

(LL) Acceptance of Honorarium (by restricted government employees);

(MM) Gift to Public Servant by Person Subject to his Jurisdiction;

(NN) Offering Gift to Public Servant;

(OO) Perjury;

(PP) False Report to Police Officer or Law Enforcement Employee;

(QQ) Tampering with or Fabricating Physical Evidence;

(RR) Tampering with Governmental Record;

(SS) Fraudulent Filing of Financial Statement;

(TT) False Identification as Peace Officer;

(UU) Misrepresentation of Property;

(VV) Record of a Fraudulent Court;

(WW) Bail Jumping and Failure to Appear;

(XX) False Alarm or Report;

(YY) Engaging in Organized Criminal Activity;

(ZZ) Violation of Court Order Enjoining Organized Criminal Activity;

(AAA) Failing to file license holder's own tax return; and

(BBB) Evading arrest;

(2) moral turpitude:

(A) Public Lewdness;

(B) Indecent Exposure;

(D) Improper Contact with Victim;

(E) Abuse of Corpse;

(F) Prostitution;

(G) Promotion of Prostitution;

(H) Obscene Display or Distribution;

(I) Obscenity;

(J) Sale, Distribution, or Display of Harmful Material to Minor; and

(K) Employment Harmful to Children;

(3) alcohol abuse or controlled substances:

(A) Possession of Substance in Penalty Group 3 (less than 28 grams), under the Texas Health and Safety Code;

(B) Possession of Substance in Penalty Group 4 (less than 28 grams), under the Texas Health and Safety Code;

(C) Manufacture, Delivery, or Possession with Intent to Deliver Miscellaneous Substances, under the Texas Health and Safety Code;

(D) Manufacture, Delivery, or Possession of Miscellaneous Substances, under the Texas Health and Safety Code;

(E) Delivery of Marijuana, under the Texas Health and Safety Code;

(F) Possession of Marijuana, under the Texas Health and Safety Code;

(G) Possession or Transport of Certain Chemicals with Intent to Manufacture Controlled Substance (for substance listed in a Schedule but not in a Penalty Group), under the Texas Health and Safety Code;

(H) Possession or Delivery of Drug Paraphernalia, under the Texas Health and Safety Code;

(I) Obstructing Highway or Other Passageway; and

(J) Any misdemeanor involving intoxication under the influence of alcohol or a controlled substance.

(4) physical injury or threats of physical injury to a person:

(A) Assault;

(B) Deadly Conduct;

(D) Leaving a Child in a Vehicle.

(b) A licensee or certificate holder is often placed in a position of trust with respect to client funds; and the public, including the business community, relies on the integrity of licensees and certificate holders in preparing reports and providing professional accounting services or professional accounting work. The board considers repeated violations of criminal laws to relate directly to a licensee or certificate holder providing professional accounting services or professional accounting work.

(c) A conviction or placement on deferred adjudication for a violation of any state or federal law that is equivalent to an offense listed in subsection (a)(1) - (4) of this section is considered to directly relate to a licensee or certificate holder providing professional accounting services or professional accounting work and may subject a certificate or registration holder to discipline by the board.

(d) Misdemeanor convictions in another state will be analyzed by the general counsel to determine if such out of state misdemeanor has an equivalency to Texas law prior to opening a complaint investigation.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 13, 2025.

TRD-202500906

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: April 27, 2025

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

22 TAC §519.9

The Texas State Board of Public Accountancy (Board) proposes an amendment to §519.9 concerning Administrative Penalty Guidelines.

Background, Justification and Summary

The purpose of the graphic in the board's rules is to publish the criteria for the basis of sanctions for specific rule violations. The specific sanctions for violating board Rule §527.6 has been added to the graphic which concerns failing to report peer review and PROB inspection reports.

Fiscal Note

Public Benefit

The adoption of the proposed rule amendment will notice the sanction for violating required reporting requirements.

Probable Economic Cost and Local Employment Impact

Small Business, Rural Community and Micro-Business Impact Analysis

Government Growth Impact Statement

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

Public Comment

Statutory Authority

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

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

§ 519.9. Administrative Penalty Guidelines.

(a) The following table contains guidelines for the assessment of administrative penalties in disciplinary matters. In determining whether a violation is minor, moderate or major, the board will apply the factors to be considered set forth in §901.552(b) of the Act (relating to Amount of Penalty). In all cases where the board has determined a violation has occurred, administrative costs may be assessed, regardless of any other sanction imposed by the board.

Figure: 22 TAC §519.9(a) (.pdf)

[ ~~Figure: 22 TAC §519.9(a)~~ ]

(b) The amounts specified in subsection (a) of this section are guidelines only. The board retains the right to increase or decrease the amount of an administrative penalty based on the circumstances of each case it considers.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 13, 2025.

TRD-202500907

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: April 27, 2025

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

SUBCHAPTER B. COMPLAINTS AND INVESTIGATIONS

22 TAC §519.20

The Texas State Board of Public Accountancy (Board) proposes an amendment to §519.20 concerning Complaints.

Background, Justification and Summary

Enhances the board's ability to contain the complainant and respondent by requesting from the complainant the respondent's address. It also identifies that the firm referred to in subsection (f) of the rule is an out-of-state firm.

Fiscal Note

Public Benefit

The adoption of the proposed revision will make it easier for the Board to communicate with the parties in a complaint. The revision to paragraph (f) makes it clearer that its only out of state firms that may not be subject to disciplinary actions when the out of state firm is disciplined by another state.

Probable Economic Cost and Local Employment Impact

Small Business, Rural Community and Micro-Business Impact Analysis

Government Growth Impact Statement

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

Public Comment

Statutory Authority

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

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

§ 519.20. Complaints.

(a) Written complaints should contain information necessary for the proper processing of the complaint by the board, including:

(1) complainant's name, address , email when available, and phone number;

(2) name, address , email and phone number of the licensee or certificate holder against whom the complaint is filed;

(3) description of the alleged violation;

(4) supporting information and factual evidence;

(5) names and addresses of witnesses; and

(6) sources of other pertinent information.

(b) The board has discretion whether or not to open an investigative file. A complaint that does not contain all of the information requested in subsection (a) of this section may be pursued if the missing information can be obtained from another source. For the board to proceed it must have jurisdiction over the person and the subject matter. Once the board has received a complaint, board staff shall conduct an initial screening of the complaint within 30 days. The board staff shall notify the complainant whether or not the board will proceed with an investigation.

(c) The board may accept anonymous complaints. Anonymous complaints may not be investigated if insufficient information is provided, the allegations are vague, appear to lack factual foundation, or cannot be proved for lack of a witness or other evidence.

(d) The board will periodically provide an update on the status of the complaint investigation to the complainant when there has been a substantive change of status. A substantive change would include the scheduling of the complaint investigation before an enforcement committee, the execution of an agreed consent order, a decision to refer the matter to litigation for prosecution at SOAH, any subsequent settlement agreement and the issuance of a proposal for decision.

(e) The board may open a complaint investigation on:

(1) an individual licensee and the individual's firm when it has evidence that the individual licensee participated in a possible violation of the Act or board rule; and

(2) a firm when there is evidence that the firm, in the practice of public accountancy, may have caused harm to a Texas resident or entity.

(f) Interpretive comment: The CPA firm may contact the board to determine if there is a nexus to Texas regarding the issue in subsections (e)(1) and (e)(2) of this section. The board will not open a complaint investigation on an out-of-state office [ ~~a firm~~ ] unless the firm, in the practice of public accountancy, has caused harm to a person or entity located in Texas.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 13, 2025.

TRD-202500909

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: April 27, 2025

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

22 TAC §519.21

The Texas State Board of Public Accountancy (Board) proposes an amendment to §519.21 concerning Investigations.

Background, Justification and Summary

Recognizes that the board may communicate with all available persons with information helpful to the board in a complaint investigation and not just the complainant and respondent.

Fiscal Note

Public Benefit

The adoption of the proposed rule amendment will make it clear of the scope of the board's investigations.

Probable Economic Cost and Local Employment Impact

Small Business, Rural Community and Micro-Business Impact Analysis

Government Growth Impact Statement

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

Public Comment

Statutory Authority

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

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

§ 519.21. Investigations.

(a) A board investigative file may be opened when the board determines that there may be a potential violation of the Act, board rules, or board order and the subject matter of the complaint is within the board's jurisdiction.

(b) The board may open an investigative file on its own initiative.

(c) A licensee or certificate holder shall cooperate with the board in its investigation of a complaint. The respondent will receive notice of the investigation by certified mail return receipt requested at the respondent's mailing address on file with the board. Upon notice of an investigation from the board, the respondent shall respond to the investigation and any request by the board for information or records concerning the investigation in accordance with §501.93 of this title (relating to Responses).

(d) The respondent must provide the board with a detailed response to each allegation and the request for background information contained in the notice of investigation. The response must be in writing and delivered to the board within 30 days of the date of the notice of the investigation. The respondent's response may include any additional information the respondent wants the board to consider. Failure to provide the detail sought by the board to each allegation or to the records or documents requested will be considered a non-substantive response as also required in §501.93 of this title.

(e) The board may request information from an individual, business entity, association, governmental subdivision or agency, or public or private organization [ ~~a person~~ ] who is not the subject of an investigation.

(f) Withdrawal of a complaint by a complainant does not automatically cease an ongoing investigation.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 13, 2025.

TRD-202500910

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: April 27, 2025

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

22 TAC §519.23

The Texas State Board of Public Accountancy (Board) proposes an amendment to §519.23 concerning Informal Conferences.

Background, Justification and Summary

The change is grammatical to arrange the wording in a logical sequence.

Fiscal Note

Public Benefit

The adoption of the proposed rule amendment will help the reader better understand the purpose of the chronological order of the investigation process.

Probable Economic Cost and Local Employment Impact

Small Business, Rural Community and Micro-Business Impact Analysis

Government Growth Impact Statement

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

Public Comment

Statutory Authority

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

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

§ 519.23. Informal Conferences.

(a) The committee, at its sole discretion, may invite the respondent and/or the complainant to an informal conference. The purpose of the conference is to assist the committee in the investigation. An informal conference is voluntary and is not a prerequisite to a hearing in a disciplinary action.

(b) If the committee determines that the complainant's presence will aid in the investigation, then the committee will invite the complainant to appear at the informal conference. The committee will request the respondent to appear at a specified time and place for an informal conference. [ ~~If the committee determines that the complainant's presence will aide in the investigation, then the committee will invite the complainant to appear at the informal conference.~~ ]

(c) The notice of an informal conference will state the date, time and place. The notice will be mailed and emailed to a correct address on file with the board to the respondent and complainant at least 10 days prior to the informal conference.

(d) At an informal conference, the respondent may appear with legal representation but the respondent must agree to be the person responding to the committee's questions.

(e) During an informal conference, each party is given the opportunity to make a brief presentation to the committee. The committee may ask questions regarding the matter being investigated and any matter of interest to the committee related to the investigation. The committee chair may call upon board staff at any time for assistance during the informal conference.

(f) The committee may invite a non-party who has relevant information to the investigation to participate in the informal conference but the committee will determine who may attend and the process of the informal conference.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 13, 2025.

TRD-202500911

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: April 27, 2025

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

22 TAC §519.24

The Texas State Board of Public Accountancy (Board) proposes an amendment to §519.24 concerning Committee Recommendations.

Background, Justification and Summary

Recognizes that communications between the board and respondent licensee may be electronic as well as postal mail. It also recognizes that a hearing before the Executive Director will follow the normal rules of hearing as provided for in the rules of the State Office of Administrative Hearings and the board's rules.

Fiscal Note

Public Benefit

The adoption of the proposed rule amendment will educate the public and participants in the board's hearings on the hearing process before the Executive Director.

Probable Economic Cost and Local Employment Impact

Small Business, Rural Community and Micro-Business Impact Analysis

Government Growth Impact Statement

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

Public Comment

Statutory Authority

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

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

§ 519.24. Committee Recommendations.

(a) At the conclusion of its investigation the committee may make a recommendation to the board regarding the disposition of the investigation.

(b) The committee may recommend dismissal of the complaint if the committee determines:

(1) the board lacks jurisdiction; or

(2) there is insufficient evidence of a violation of the Act, board rules or board order; or

(3) the respondent came into compliance with the Act, board rules or board order.

(c) The committee will inform the respondent of its recommendation but may, in its discretion, issue a confidential letter of comment stating the committee's concerns about respondent's practice and make suggestions that may improve respondent's practice. The committee's recommendation of dismissal is not final until it is ratified by the board in an open meeting.

(d) If the committee determines that there is a violation of the Act, board rules or board order, the committee may recommend disciplinary action. The committee may recommend any disciplinary sanction provided in §901.501 of the Act (relating to Disciplinary Powers of Board), singularly or in any combination. The respondent shall be notified of the committee's action.

(e) Upon a determination by the committee that there is a violation of the Act, board rule, or board order, the committee may offer respondent an agreed consent order containing the committee's findings of fact and conclusions of law, and proposed sanctions, administrative penalties and costs. The respondent shall be notified of the committee's determination by certified mail and by email at the respondent's physical address and correct email address on file with the board. The respondent shall have 20 calendar days to provide in writing Respondent's acceptance of the agreed consent order or request a hearing to contest the committee's determination in accordance with §519.3 of this chapter (relating to Computation of Time). Upon a showing of good cause, the 20 days may be extended. Failure to accept the proposed agreed consent order within the required time to respond shall be deemed a rejection.

(f) If the respondent does not accept the proposed agreed consent order and fails to request a hearing in writing within the required time, the executive director, after providing notice of hearing before the executive director and respondent failing to appear, may offer a proposed order containing the committee's findings of fact and conclusions of law and imposing disciplinary sanctions, and administrative penalties and costs for the board's consideration and ratification. The hearing shall be conducted in the manner of a contested case pursuant to the Act, the APA, the board's rules and SOAH's rules. A proposed order offered by the executive director is not final until it has been approved by the board.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 13, 2025.

TRD-202500912

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: April 27, 2025

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

22 TAC §519.25

The Texas State Board of Public Accountancy (Board) proposes an amendment to §519.25 concerning Mediation and Alternative Dispute Resolution.

Background, Justification and Summary

Provides additional information regarding the responsibilities of the board staff during mediation.

Fiscal Note

Public Benefit

The adoption of the proposed rule amendment will provide persons participating or attending mediation with the board a better understanding of the responsibilities of the board in the mediation.

Probable Economic Cost and Local Employment Impact

Small Business, Rural Community and Micro-Business Impact Analysis

Government Growth Impact Statement

Takings Impact Assessment

No takings impact assessment is necessary because there is no proposed use of private real property as a result of the proposed rule revision.

Public Comment

Statutory Authority

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

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

§ 519.25. Mediation and Alternative Dispute Resolution.

(a) It is the board's policy to encourage the resolution and early settlement of all disputed matters, internal and external, through voluntary settlement procedures.

(b) The executive director shall designate a board employee as the board's Alternative Dispute Resolution Director to perform the following functions:

(1) maintain necessary agency records of alternative dispute resolution procedures while maintaining the confidentiality of participants;

(2) establish a method for the appointment of impartial third party mediators, moderators or arbitrators for alternative dispute resolution proceedings;

(3) provide information about available alternative dispute resolution processes to agency employees, potential users, and users of the alternative dispute resolution program;

(4) arrange training or education necessary to implement alternative dispute resolution processes; and

(5) establish a system to evaluate the alternative dispute resolution program and mediators.

(c) The board, a committee of the board, a respondent in a disciplinary matter pending before the board, the executive director of the board or a board employee engaged in a dispute with the executive director may request that a contested matter be submitted for alternative dispute resolution through mediation as described in §154.023 of the Texas Civil Practice and Remedies Code, moderated settlement conference as described in §154.025 of the Texas Civil Practice and Remedies Code, and non-binding arbitration as described in §154.027 of the Texas Civil Practice and Remedies Code by making a written request for alternative dispute resolution that states the type of alternative dispute resolution requested and sets forth the issues to be submitted for alternative dispute resolution. A respondent in a disciplinary proceeding may not request mediation until a recommendation regarding that disciplinary matter has been made to a committee of the board. The request must be delivered to the Alternative Dispute Resolution Director at the board's office.

(d) The party who requests alternative dispute resolution shall pay the cost of the impartial third-party [ ~~third party~~ ] mediator, moderators or arbitrators and shall otherwise bear their own costs of alternative dispute resolution.

(e) The board's alternative dispute resolution director is responsible for locating an impartial third-party mediator, moderator or arbitrator and arranging for a location and time for mediation. The mediator, moderator or arbitrator must be agreed to by all the parties.

(f) The mediation date shall be established by agreement with the parties but shall be no later than 45 days of the board's receipt of the request. The 45-day time limitation may be extended by the executive director following a demonstration of good cause.

(g) [ ~~(e)~~ ] Any resolution reached as a result of an alternative dispute resolution procedure is intended to be through the voluntary agreement of all of the parties. The resolution of a contested matter reached as a result of an alternative dispute resolution procedure must be in writing, signed by all of the parties, and is enforceable in the same manner as any other written contract; provided however, that any signed resolution that purports to bind the board must be ratified by the board and may be made public depending upon the terms of the agreed resolution.

(h) [ ~~(f)~~ ] A communication relating to the subject matter made by a party in an alternative dispute resolution procedure is confidential, is not subject to disclosure, and may not be used as evidence in any further proceeding. Any notes or record made of an alternative dispute resolution procedure are confidential, and parties, including impartial third party mediators, moderators, or arbitrators may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute or under consideration. An oral communication or written material used in or made a part of an alternative dispute resolution procedure is admissible or discoverable only if it is admissible or discoverable independent of the procedure. If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to a judge or administrative law judge in Travis County, Texas to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order or whether the communications or materials are subject to disclosure.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 13, 2025.

TRD-202500913

J. Randel (Jerry) Hill

General Counsel

Texas State Board of Public Accountancy

Earliest possible date of adoption: April 27, 2025

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