Proposed Rules Title 16

TITLE 16. ECONOMIC REGULATION

PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

16 TAC §§67.21, 67.40, 67.65, 67.66, 67.70, 67.71, 67.90

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 67, §§67.21, 67.40, 67.65, 67.70, and 67.71, and proposes new rules at §67.66 and §67.90, regarding the Auctioneers program. These proposed changes are referred to as the "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 67, implement Texas Occupations Code, Chapter 1802, Auctioneers.

The proposed rules implement House Bill (HB) 4416, 88th Legislature, Regular Session (2023). This bill addresses concerns identified in the department’s study of the Auctioneers program mandated by HB 1560, 87th Legislature, Regular Session (2021). Notably, HB 4416 removes the requirement that an associate auctioneer be employed by a licensed auctioneer. Additionally, the bill enhances consumer safety by requiring the auctioneer and client to sign a written contract and agree in writing to an inventory of property before an auction. HB 4416 also changes provisions in Chapter 1802 regarding the Auctioneer Education and Recovery Fund to raise the cap on claims against an auctioneer arising from a single auction, and to allow an aggrieved party to receive greater compensation for claims against an auctioneer.

The proposed rules also incorporate changes and updates recommended by the department to accurately reflect the current operation of auctioneer regulation.

Advisory Board Recommendations

The proposed rules were presented to and discussed by the Auctioneer Advisory Board at its meeting on March 5, 2024. The Advisory Board did not make any changes to the proposed rules. The Advisory Board voted and recommended that the proposed rules be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §67.21(2) to remove the requirement that an associate auctioneer be employed by a licensed auctioneer.

The proposed rules amend §67.40(b) to change the date on which the department will determine the amount necessary to replenish the Auctioneer Education and Recovery Fund.

The proposed rules amend §67.40(d) to state that if an auctioneer owes an aggrieved party more than $15,000 for claims related to a single auction, the auctioneer must pay any amount over $15,000.

The proposed rules amend §67.40(e) to increase the total maximum payment from the recovery fund for claims arising from a single auction to $100,000.

The proposed rules add §67.40(f) to state that any damages arising from a single auction in excess of $100,000 must be prorated among all aggrieved parties, with damages in excess of $100,000 to be paid directly by the auctioneer.

The proposed rules reletter the previous §67.40(f) to §67.40(g).

The proposed rules reletter the previous §67.40(g) to §67.40(h).

The proposed rules add §67.40(i) to state that the department may revoke a person's auctioneer or associate auctioneer license if a payment from the recovery fund has been made and the licensee has not repaid the department.

The proposed rules reletter the previous §67.40(h) to §67.40(j).

The proposed rules add §67.65(d) to state that the presiding offer must consider where potential advisory board members reside when making appointments to the advisory board.

The proposed rules add §67.66(a) to state that advisory board members serve six-year terms that expire on September 1 of odd-numbered years.

The proposed rules add §67.66(b) to state that advisory board members may not serve more than two consecutive terms.

The proposed rules add §67.66(c) to state that, in the event of a vacancy on the advisory board, the presiding officer of the commission, after receiving the commission's approval, must appoint a replacement to serve the remainder of the vacated term.

The proposed rules add §67.70(b)(4) to state that an auctioneer must have a written contract in place, with all terms and signed by both the auctioneer and client, before an auction.

The proposed rules add §67.70(b)(5) to state that before an auction, the auctioneer and client must agree in writing to an itemized inventory of property on a form prescribed by the department.

The proposed rules renumber the previous §67.70(b)(4) to §67.40(b)(6).

The proposed rules renumber the previous §67.70(b)(5) to §67.40(b)(7) and add "inventories of property" to the list of documents auctioneers must retain.

The proposed rules renumber the previous §67.70(b)(6) to §67.40(b)(8).

The proposed rules renumber the previous §67.70(b)(7) to §67.40(b)(9).

The proposed rules renumber the previous §67.70(b)(8) to §67.40(b)(10).

The proposed rules renumber the previous §67.70(b)(9) to §67.40(b)(11).

The proposed rules amend §67.71(a) to remove the requirement that an associate auctioneer be employed by a licensed auctioneer.

The proposed rules add §67.90 to state that a violation of the laws, rules, or an order of the department's executive director or commission are grounds for administrative penalties or license sanctions.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rule is in effect, enforcing or administering the proposed rule does not have foreseeable implications relating to costs or revenues of state or local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Because Mr. Couvillon has determined that the proposed rules will not affect a local economy, the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, the public will benefit from increased protection of consumers who do business with an auctioneer, more thorough documentation of auction-related transactions, and eliminating a license barrier for associate auctioneers. Increased cap amounts on claims against an auctioneer arising from a single auction will offer a greater opportunity for consumers to be fully compensated for any losses suffered. New rules requiring a written, signed contact in addition to a written, itemized inventory of property before an auction will equip consumers with clear evidence of the parameters of their auction. The removal of the requirement that an associate auctioneer have an employee-employer relationship with a sponsoring auctioneer should allow those attempting to enter the industry more and easier access to licensees.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there could be additional costs to persons who are required to comply with the proposed rules. As the proposed rules raise the total amount that can be paid from the Auctioneer Education and Recovery Fund for all claims arising from a single auction from $30,000 to $100,000, this could result in an increase in renewal fees required to be paid by license holders in order to replenish the Fund. While we cannot presently provide an estimate of the potential fee increase, Chapter 1802 of the Occupations Code caps this number at $50.

Additionally, the proposed rules require an auctioneer to provide a written contract and an itemized inventory of property when agreeing to provide services to a client. This requirement should not result in more than a negligible cost to license holders.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Because the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules have a fiscal note that imposes a cost on regulated persons. However, because the proposed rules are necessary to implement legislation, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules require an increase or decrease in fees paid to the agency. In years when the Auctioneer Education and Recovery Fund is below the statutory minimum of $350,000, the department will be required to increase license renewal fees based on the amount required to be replenished.

5. The proposed rules create new regulations. The proposed rules add provisions required by HB 4416 regarding the need for a written contract and inventory of property.

6. The proposed rules expand, limit, or repeal an existing regulation. The regulation regarding license requirements for associate auctioneers has been expanded to allow for applicants to have a greater opportunity to become licensed. Regulations regarding the Auctioneer Education and Recovery Fund have been expanded to increase the potential amount of recovery by aggrieved parties. Regulations regarding recordkeeping have been expanded to now include written contracts and inventories of property to be sold.

7. The proposed rules do not increase or decrease the number of individuals subject to the rules' applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted electronically on the department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Monica Nuñez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 1802, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 1802. No other statutes, articles, or codes are affected by the proposed rules.

The legislation that enacted the statutory authority under which the proposed rules are proposed to be adopted is House Bill 4416, 88th Legislature, Regular Session (2023).

§67.21.License Requirements--Associate Auctioneers.

An applicant for licensure as an associate must:

(1) submit a completed application along with required fees;

(2) work [~~be employed~~] under the direct supervision of an auctioneer licensed under this chapter; and

(3) either be a citizen of the United States or a legal alien.

§67.40.Auctioneer Education and Recovery Fund.

(a) (No change.)

(b) The necessity for assessing the fee will be determined by the department based on the Fund balance on each August [~~December~~] 31st. The fee shall be paid in addition to the renewal fee. The renewal notice sent by the department will reflect the fee due to the Fund.

(d) If the department determines, either through an [~~with the~~] agreement with [of] the auctioneer [~~and claimant~~] or after [at] a hearing held on a disputed amount, that the auctioneer owes to a single [~~the~~] aggrieved party [~~person~~] damages greater than the maximum of $15,000 for all claims arising from a single auction [~~allowed under the Act~~], the auctioneer must pay the amount not paid by the department to the aggrieved party. [If the department determines that the auctioneer owes damages to more than one aggrieved person arising out of one auction at one location, and the sum of all damages owed exceeds $30,000, the department shall prorate $30,000 from the Fund among the aggrieved persons, and the auctioneer must pay the amount not paid to each of the aggrieved persons.]

(e) The total payment from the Fund of claims against an auctioneer arising from a single auction may not exceed $100,000 [~~$30,000~~]. If additional claims are filed before the auctioneer has reimbursed the Fund and repaid any amounts due an aggrieved party, the department shall hold a hearing to determine if the additional claims must be satisfied by the auctioneer before the department issues or renews a license, whether probated or not.

(f) If there is a determination, either by the department or after a hearing, that the auctioneer owes damages to more than one aggrieved party arising out of one auction at one location, and the sum of all damages owed exceeds $100,000, the department shall prorate $100,000 from the Fund among the aggrieved parties, and the auctioneer must pay the amount not paid to each of the aggrieved parties.

(g) [~~(f)~~] If a claim is paid against an auctioneer, and the auctioneer cannot immediately reimburse the Fund, the executive director may allow the auctioneer to sign an agreement with the department to reimburse the Fund at the applicable rate described below plus the interest accrued on the unpaid principal during the prior month at the rate of 8 percent per year.

(h) [~~(g)~~] If an amount is due an aggrieved party, and the auctioneer cannot immediately pay the aggrieved party, the executive director may allow the auctioneer to sign an agreement with the party to reimburse the aggrieved party at the applicable rate described below plus the interest accrued on the unpaid principal during the prior month at the rate of 8 percent per year.

(i) The department may revoke, or deny the renewal of, the license of an auctioneer or associate auctioneer if:

(1) the department makes a payment from the Fund arising out of the actions of the license holder; or

(2) the license holder has not repaid the department the entire amount paid from the Fund, including interest.

(j) [~~(h)~~] Reimbursement of the principal owed is to be paid in monthly installments determined by agreement between the department and the auctioneer with consideration given to input from any aggrieved party. If an agreement is not reached, monthly installments shall be determined as a percentage of the initial principal amount according to the following schedule:

(1) $0.01 - $500.00--20%

(2) $500.01 - $1,000--10%

(3) $1,000.01 - $3,000.00--5%

(4) $3,000.01 and over--3%

§67.65.Auctioneer Advisory Board.

(a) - (c) (No change.)

(d) In appointing advisory board members, the presiding officer of the commission shall consider the geographical diversity of the members.

§67.66.Terms; Vacancies.

(a) Members of the advisory board serve six-year terms. The terms expire on September 1st of each odd-numbered year.

(b) Members may not serve more than two consecutive terms.

(c) If a vacancy occurs during a member's term, the presiding officer of the commission, with the commission's approval, shall appoint a replacement who meets the qualifications for the vacant position to serve for the remainder of the term.

§67.70.Auctioneer Standards of Practice.

(a) (No change.)

(b) Recordkeeping

(1) - (3) (No change.)

(4) An auctioneer who agrees to provide services to a party shall provide a written contract with the terms of the agreement. The contract and all terms must be agreed and signed before any auction occurs.

(5) Each contract for the services of an auctioneer must include information required by the commission by rule.

(6) Before any auction, the auctioneer and party must agree in writing to an itemized inventory of property to be sold or offered for sale by the auctioneer at auction. An amendment to the inventory must be in writing and signed by both parties.

(7) [~~(4)~~] The records for each auction must state the name(s) and address of the owners of the property auctioned, the date of the sale, the name of the auctioneer and clerk of the sale, the gross proceeds, the location and account number of the auctioneer's trust or escrow account, an itemized list of all expenses charged to the consignor or seller, a list of all purchasers at the auction and a description and selling price for each item sold.

(8) [~~(5)~~] The auctioneer shall keep, as part of the records for each auction, all documents relating to the auction.[,] These documents shall include, but are not limited to, settlement sheets, written contracts, inventories of property, copies of advertising and clerk sheets.

(9) [~~(6)~~] These documents include records and documents online.

(10) [~~(7)~~] Each licensed auctioneer must:

(A) (No change.)

(B) Deposit all proceeds from an auction into the trust or escrow account within seventy-two (72) hours of the auction unless the owner or consignor of the property auctioned is paid immediately after the sale or the written contract stipulates other terms, such as sight drafts.

(11) [~~(8)~~] A licensed auctioneer shall cooperate with the department in the performance of an investigation. This includes, but is not limited to, responding to requests from the department, including producing requested documents or other information, within thirty (30) days of request.

(12) [~~(9)~~] The failure of a licensed auctioneer to timely pay a consignor may subject the licensed auctioneer to a claim under the Auctioneer Education and Recovery Fund.

§67.71.Requirements--Sponsoring Auctioneer.

(a) An Associate Auctioneer must work under the direct supervision of a licensed Auctioneer to maintain licensure [There must be a legitimate employee-employer relationship between an associate auctioneer and the sponsoring auctioneer or between the associate and an auction company operated by a licensed auctioneer that employs the sponsoring auctioneer].

(b) - (d) (No change.)

§67.90.Administrative Penalties and Sanctions.

If a person or entity violates any provision of Texas Occupations Code, Chapter 1802, this chapter, or any rule or order of the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of Texas Occupations Code, Chapter 1802; Texas Occupations Code, Chapter 51; and any associated rules.

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 15, 2024.

TRD-202401173

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: April 28, 2024

For further information, please call: (512) 475-4879

CHAPTER 114. ORTHOTISTS AND PROSTHETISTS

16 TAC §§114.1, 114.70, 114.90

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 114, §§114.1, 114.70, and 114.90 regarding the Orthotists and Prosthetists program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC, Chapter 114, implement Texas Occupations Code, Chapter 605, Orthotists and Prosthetists.

The proposed rules are necessary to implement Senate Bill (SB) 490, 88th Legislature, Regular Session, which requires certain health care providers to provide itemized bills. SB 490 added new Chapter 185 to the Health and Safety Code to address this issue. The term "health care provider" is generally defined under Health and Safety Code §185.001(2) to include a facility licensed, certified, or otherwise authorized to provide health care services or supplies in this state in the ordinary course of business. Section 185.003 requires appropriate licensing authorities to take disciplinary action against providers who violate the requirements of Chapter 185 as if the provider violated an applicable licensing law.

The Department regulates numerous health care professions. Because the definition of term "health care provider" is restricted in the bill to regulated facilities, however, SB 490 appears to directly impact only those health care professions for which facilities are regulated. The Department regulates the professions of orthotics and prosthetics under Occupations Code Chapter 605, the Orthotics and Prosthetics Act (the Act). Under §605.260 of the Act, orthotic and prosthetic facilities are required to be accredited by the Department. Because these accredited facilities constitute health care providers under Health and Safety Code §185.001(2), the Department is required to treat a violation by an accredited facility of the itemized billing requirements as a violation of the Department's licensing statutes. The proposed rules therefore provide that accredited facilities must comply with Health and Safety Code, Chapter 185, and that failure to do so is a basis for disciplinary action under both the Act and the enforcement provisions of Occupations Code, Chapter 51.

In addition to implementing SB 490, the proposed rules make non-substantive changes for purposes of clarity and consistency with the format of other rule chapters administered by the Department. These changes include the addition of clarifying language concerning the authority for and applicability of the rules, the addition and revision of headings, and the deletion of unnecessary language.

Advisory Board Recommendations

The proposed rules were presented to and discussed by the Orthotists and Prosthetists Advisory Board at its meeting on February 27, 2024. The Advisory Board made the following changes to the proposed rules: language was added to the new subsection (e) of the rule at 16 TAC §114.70 to highlight key statutory requirements for itemized billing. The Advisory Board voted and recommended that the proposed rules with changes be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §114.1, Authority. The heading is modified to "Authority and Applicability" and the rule is divided into two subsections to separately address each topic. The existing rule text is incorporated into new subsection (a) and language is inserted to clarify the statutory authority for the rule chapter and to include a reference to the new Health and Safety Code Chapter 185. New subsection (b) is added to clarify that the rules in 16 TAC, Chapter 60, Procedural Rules of the Commission and the Department, and the rules in 16 TAC, Chapter 100, General Provisions for Health-Related Programs, apply to the Orthotists and Prosthetists program in addition to the rules in Chapter 114.

The proposed rules amend §114.70, Responsibilities of Licensees. The heading is modified to "Responsibilities of Licensees and Accredited Facilities" to more accurately reflect the scope of the rule. New subsection (e) is inserted to set forth the requirement of accredited facilities to comply with Health and Safety Code Chapter 185 and that failure to do so is a basis for enforcement action. Paragraphs (e)(1) through (e)(3) outline the required components of the bills.

The proposed rules amend §114.90, Professional Standards and Basis for Disciplinary Action. A new subheading, "Enforcement Actions," is added to subsection (a) to improve readability. Redundant verbiage concerning the authority for the rule is removed. Clarifying changes are made to the syntax of subsections (a)(1) and (a)(2). Subsection (a)(2) is revised to reflect that the sources of the Department's enforcement authority under Chapter 114 may include a variety of statutes not specifically listed, as reflected in the revised §114.1. Lastly, a new subheading, "Fraud, misrepresentation, or concealment" is added to subsection (b) to improve readability.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect a local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefits will be the provision of additional transparency for consumers concerning services billed and the clarification of the existing rules.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do not create a new regulation.

6. The proposed rules expand, limit, or repeal an existing regulation. The proposed rules expand a regulation by adding compliance with the itemized billing requirements of new Health and Safety Code, Chapter 185, as a stated responsibility of accredited facilities, and non-compliance with these requirements as a basis for disciplinary action.

7. The proposed rules do not increase or decrease the number of individuals subject to the rules' applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENTS

Comments on the proposed rules may be submitted electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules ; by facsimile to (512) 475-3032; or by mail to Shamica Mason, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 605, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 605. No other statutes, articles, or codes are affected by the proposed rules.

The legislation that enacted the statutory authority under which the proposed rules are proposed to be adopted is Senate Bill 490, 88th Legislature, Regular Session (2023).

§114.1.Authority and Applicability.

(a) This chapter is promulgated under the authority of Texas Occupations Code, Chapters 51 and 605. Specific provisions within this chapter also implement the statutory requirements under Texas Occupations Code, Chapters 53, 112, and 116; Texas Health and Safety Code, Chapter 185; and other applicable statutes.

(b) In addition to this chapter, the rules under 16 TAC Chapter 60, Procedural Rules of the Commission and the Department, and 16 TAC Chapter 100, General Provisions for Health-Related Programs, are applicable to the Orthotists and Prosthetists program.

§114.70.Responsibilities of Licensees and Accredited Facilities.

(a) Persons to whom a license has been issued shall return the license to the department upon the surrender, revocation or suspension of the license.

(b) All applicants, licensees, registrants and accredited facilities shall notify the department of any change(s) of name or mailing address. Accredited facilities shall notify the department of any change(s) in the facility name, the name of the safety manager and the practitioner in charge, the mailing address and physical address. Written notification to the department and the appropriate fee shall be submitted to the department within thirty (30) days after a change is effective. Changes in a facility's physical location or ownership require a new application for accreditation.

(c) Name changes. Before the department will issue a new license certificate and identification card, notification of name changes must be received by the department. Notification shall include a copy of a marriage certificate, court decree evidencing the change, or a Social Security card reflecting the licensee's or registrant's new name.

(d) Consumer complaint information notices. All licensees, registrants and accredited facilities, excluding facilities that a licensee visits to treat patients, such as hospitals, nursing homes or patients' homes, shall prominently display a consumer complaint notice or sign in a waiting room or other area where it shall be visible to all patients. Lettering shall be at least one-fourth inch, or font size 30, in height, with contrasting background, containing the department's name, website, mailing address, and telephone number for the purpose of directing complaints to the department regarding a person or facility regulated or requiring regulation under the Act. Script or calligraphy prints are not allowed. The notice shall be worded as specified by the department.

(e) Itemized billing. A facility must provide itemized billing in accordance with Health and Safety Code, Chapter 185. Failure of a facility to do so is a ground for enforcement action under Occupations Code, Chapters 51 and 605, and these rules. The itemized bill must, in addition to any other requirement of Health and Safety Code, Chapter 185, include:

(1) a plain language description of each distinct health care service or supply provided to the patient;

(2) if the facility sought or is seeking reimbursement from a third party, any billing code submitted to the third party and the amounts billed to and paid by that third party; and

(3) the amount due from the patient for each service and supply provided to the patient.

§114.90.Professional Standards and Basis for Disciplinary Action.

(a) Enforcement Actions. [~~General. This section is authorized under the Act and Chapter 51 of the Texas Occupations Code.~~]

(1) If a person or entity violates any provision of Texas Occupations Code, Chapters 51 or [,] 605, [or] any other applicable statute [~~provision~~], this chapter, or a rule or order issued by the executive director or commission, proceedings may be instituted to impose administrative penalties, administrative sanctions, or both in accordance with the provisions of the Texas Occupations Code and the associated rules.

(2) The enforcement authority granted under Texas Occupations Code, Chapters 51 or [~~and~~] 605, any other applicable statutes, and any associated rules may be used to enforce the Texas Occupations Code and this chapter.

(b) Fraud, misrepresentation, or concealment. A license, registration, or facility accreditation may be denied, revoked, suspended, probated, reprimanded, or an administrative penalty may be imposed when a license is obtained by fraud, misrepresentation, or concealment of a material fact, which includes, but is not limited to, the following:

(1) committing fraud, misrepresentation, or concealment of a material fact submitted with an application or renewal for licensure, registration, or facility accreditation;

(2) committing fraud, misrepresentation, or concealment of a material fact submitted with continuing education requirements;

(3) impersonating or acting as a proxy for an examination candidate;

(4) impersonating or acting as a proxy for a licensee or registrant at a continuing education activity;

(5) using a proxy to take an examination or to participate in a continuing education activity;

(6) providing false or misleading information to the department regarding an inquiry by the department; or

(7) committing other fraud, misrepresentation, or concealment of a material fact submitted to the board or department.

(c) Fraud or deceit concerning services provided. A license, registration, or facility accreditation may be denied, revoked, suspended, probated, reprimanded, or an administrative penalty may be imposed for fraud or deceit concerning services provided, which includes, but is not limited to, the following:

(1) placing or causing to be placed, false, misleading, or deceptive advertising;

(2) making or allowing false, misleading, or deceptive representations concerning the services or products provided or which have been provided;

(3) making or allowing false, misleading, or deceptive representations on an application for employment;

(4) using or allowing a person to use a license or registration for any fraudulent, misleading, or deceptive purpose;

(5) knowingly employing or professionally associating with a person or entity who is providing prosthetic or orthotic services and is not licensed or accredited as required by the Act or this chapter;

(6) forging, altering, or falsifying a physician's or health care professional's order;

(7) delivering prosthetic or orthotic services or products through means of misrepresentation, deception, or subterfuge;

(8) accepting or paying, or agreeing to pay or accept illegal remuneration for the securing or soliciting of patients as prohibited by Texas Occupations Code, §102.001;

(9) making or filing, or causing another person to make or file, a report or record that the licensee knows to be inaccurate, incomplete, false, or illegal;

(10) practicing with an expired, suspended, or revoked license or registration, or in a facility that is required to be accredited and has an expired, suspended, or revoked accreditation;

(11) persistently or flagrantly overcharging a client, patient, or third party;

(12) persistently or flagrantly over treating a client or patient;

(13) violation of the Act, this chapter, or an order issued by the executive director or the commission;

(14) taking without authorization medication, supplies, equipment, or property belonging to a patient; and

(15) other fraud or deceit concerning services provided.

(d) Unprofessional or unethical conduct. A license, registration, or facility accreditation may be denied, revoked, suspended, probated, reprimanded, or an administrative penalty may be imposed for unprofessional or unethical conduct, as defined in subsections (b) and (c). Other action that may cause a license, registration, or facility accreditation to be denied, not renewed, revoked, suspended, or that may cause an administrative penalty to be imposed include, but are not limited to:

(1) discriminating based on race, color, national origin, religion, gender, age, or disability in the practice of prosthetics or orthotics;

(2) having surrendered a license to the department or the licensing authority of another state, territory, or country to avoid disciplinary action or prosecution;

(3) having a license revoked or suspended, having had other disciplinary action taken against the applicant, or having had the application for a license refused, revoked, or suspended by the department or the licensing authority of another state, territory, or country;

(4) engaging in conduct that state, federal, or local law prohibits;

(5) failing to maintain acceptable standards of prosthetics or orthotics practices as set forth by the department rules;

(6) being unable to practice prosthetics or orthotics with reasonable skill, and safety to patients, due to illness or use of alcohol, drugs, narcotics, chemicals or other types of material or from mental or physical conditions;

(7) having treated or agreed to treat human ailments by means other than prosthetic and orthotic treatments appropriate to or within the scope of the person's license;

(8) failing to supervise and maintain supervision of clinical or technical personnel, licensed or unlicensed, in compliance with the Act and this chapter, or failing to provide on-site supervision for an accredited facility, if designated as the practitioner in charge of the facility;

(9) providing prosthetic or orthotic services or products in a way that the person knows, or with the exercise of reasonable diligence should know violates the Act or this chapter;

(10) failing to assess and evaluate a patient's status;

(11) providing or attempting to provide services for which the licensee is unprepared through education or experience;

(12) delegating functions or responsibilities to an individual lacking the ability, knowledge, or license/registration to perform the function or responsibility;

(13) revealing confidential information concerning a patient or client except where required or allowed by law;

(14) failing to obtain accreditation for a facility that must be accredited or failing to renew the accreditation of a facility that must be accredited;

(15) assaulting or causing, permitting or allowing physical or emotional injury or impairment of dignity or safety to the patient or client;

(16) making abusive, harassing, or seductive remarks to a patient, client, or co-worker in the workplace;

(17) engaging in sexual contact as defined by the Penal Code, §21.01, with a patient or client as the result of the patient or client relationship;

(18) failing to follow universal precautions or infection control standards as required by the Health and Safety Code, Chapter 85, Subchapter I;

(19) submitting false documentation or information to the department relating to continuing education;

(20) failing or refusing to provide acceptable documentation of continuing education reported to the department for renewal if selected for an audit, or if specifically requested by the department;

(21) failing to cooperate with the department during an investigation of a complaint by not furnishing required documentation or responding to a request for information or a subpoena issued by the department or its authorized representative;

(22) interfering with an investigation or disciplinary proceeding by misrepresentation of facts or by use of threats, retaliation or harassment against anyone;

(23) fitting a prosthesis or orthosis without an order;

(24) fitting a prosthesis or orthosis inaccurately or modifying the order without authorization from the prescribing physician or health care professional;

(25) providing orthotic care in a facility that is not accredited in orthotics that is required to be accredited;

(26) providing prosthetic care in a facility that is not accredited in prosthetics that is required to be accredited;

(27) failing to truthfully respond in a manner that fully discloses all information in an honest, materially responsive and timely manner to a complaint filed with or by the department;

(28) failing to report a known violation of the Act or this chapter to the department;

(29) failing to comply with an order issued by the executive director or the commission; and

(30) other unprofessional or unethical conduct.

(e) Gross negligence or malpractice. A license, registration, or facility accreditation may be denied, revoked, suspended, probated, reprimanded, or an administrative penalty may be imposed for gross negligence or malpractice, which includes, but is not limited to, the following.

(1) Performing an act or omission constituting gross neglect, such as conduct involving malice, willfulness or wanton and reckless disregard of the rights of others;

(2) Performing an act or omission constituting malpractice, such as:

(A) failing to perform services or provide products for which compensation has been received or failing to perform services or provide products with reasonable care, skill, expedience, and faithfulness;

(B) failing to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

(f) Interference with an investigation. A license, registration, or facility accreditation may be denied, revoked, suspended, probated, reprimanded, or an administrative penalty may be imposed for interference with a department investigation by the misrepresentation of facts to the department or its authorized representative or by the use of threats or harassment against any person.

(g) Surrender of license and formal disciplinary action.

(1) When a licensee or accredited facility has offered the surrender of the license or accreditation after a complaint has been filed, the department shall consider whether to accept the surrender of the license.

(2) Surrender of a license or accreditation without acceptance by the department does not deprive the department of jurisdiction to prosecute an alleged violation of the Act or this chapter.

(3) When the department accepts a surrender while a complaint is pending, that surrender is deemed to be the result of a formal disciplinary action and an order shall be prepared accepting the surrender and reflecting this fact.

(4) A license surrendered and accepted may not be reinstated; however, a person may apply for a new license in accordance with the Act and this chapter.

(h) Frivolous complaints. A license, registration, or facility accreditation may be denied, revoked, suspended, probated, reprimanded, or an administrative penalty may be imposed for filing a complaint with the department that is frivolous or made in bad faith.

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 18, 2024.

TRD-202401174

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: April 28, 2024

For further information, please call: (512) 463-7750