The Texas Commission of Licensing and Regulation (Commission) adopts the emergency amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 111, Subchapter A, §111.2; Subchapter E, §111.41; Subchapter F, §111.50 and §111.51; Subchapter J, §111.91 and §111.92; Subchapter V, §§111.210-111.212 and §111.215; and Subchapter X, §§111.230-111.232; and the emergency repeal of existing rules at Subchapter V, §111.213 and §111.216, regarding the Speech-Language Pathologists and Audiologists program. The effective date for these emergency amendments and repeals (emergency rules) is September 1, 2021.

EXPLANATION, JUSTIFICATION, AND FINDINGS FOR THE EMERGENCY RULE

The rules under 16 TAC Chapter 111 implement Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists, and Chapter 51, the enabling statute of the Commission and the Texas Department of Licensing and Regulation (Department).

Background and Findings

On March 13, 2020, the Governor of Texas issued a disaster proclamation under Texas Government Code §418.014 certifying that COVID-19 poses an imminent threat of disaster for all counties in the State of Texas, and this proclamation has been renewed continuously since that date.

On March 22, 2020, the Texas Department of Licensing and Regulation (Department) submitted a request to waive certain rules under 16 TAC Chapter 111 in order to remove restrictions and to expand the provision of services to clients and supervision of certain licensees through telehealth. These waivers allowed additional licensees to provide telehealth services to clients; allowed for the use of additional technologies to provide telehealth services; allowed for the expanded use of facilitators; allowed for direct and indirect supervision of certain licensees to be performed through telehealth; removed in-person supervision requirements; removed caps and restrictions on the amount of supervision that could be conducted through telehealth; and removed the in-person initial client contact requirement.

On April 8, 2020, the Governor granted the telehealth waiver request, and the Department implemented these waivers on April 9, 2020. The providers under 16 TAC Chapter 111 have been providing services to clients and supervising certain licensees in accordance with those waivers since April 2020.

On June 3, 2021, the Governor signed S.B. 40, 87th Legislature, Regular Session, 2021, which became effective immediately. This bill amended Texas Occupations Code, Chapter 51, to add new telehealth provisions and rulemaking authority, and amended Texas Occupations Code, Chapters 401 and 402, to repeal existing provisions regarding joint rules for fitting and dispensing hearing instruments by telepractice.

On July 20, 2021, the Department requested that the telehealth waivers granted for 16 TAC Chapter 111, in part, be rescinded effective September 1, 2021. The Governor granted the waiver rescission request on July 26, 2021, with termination effective at 12:01 a.m. on September 1, 2021.

The Department will propose telehealth rules for adoption by the Texas Commission of Licensing and Regulation on a permanent basis, pursuant to Texas Occupations Code, Chapters 51 and 401, as amended by S.B. 40, 87th Legislature, Regular Session, 2021. The new permanent rules are anticipated to be adopted by early 2022. To prevent a gap in services before that date, the Commission has adopted emergency rules to ensure that services to clients and supervision of certain licensees may continue to be provided through telehealth as was allowed under the waivers that were granted by the Governor during the COVID-19 pandemic.

It is found that without emergency rules to fill the gap, there will be a disruption in the services that have been provided to clients since the waivers were granted, resulting in imminent peril to the public health, safety, and welfare. There will be a reduction in the number of providers who may provide telehealth services; a reduction in the number of clients a provider may serve in a given time period; and a negative impact on clients' timely access to services. It also would require a return to in-person services and supervision at a time when COVID-19 is still active and when at least one population of clients served by the licensees are not eligible for a COVID-19 vaccination (children under the age of 12).

It is found that this emergency rulemaking is necessary to ensure that services to clients and supervision of certain licensees may continue to be provided through telehealth as was allowed under the waivers that were granted by the Governor during the COVID-19 pandemic. This emergency rulemaking also reflects the change in the statutory authority regarding telehealth. This emergency rulemaking is necessary to protect the public health, safety, and welfare.

Continuing Telehealth Services and Supervision through Emergency Rules

The emergency rules reflect the waivers that were granted by the Governor during the COVID-19 pandemic until permanent rules are adopted. The emergency rules make the following changes:

1) allow additional licensees to provide telehealth services to clients;

2) allow for direct and indirect supervision of certain licensees to be performed through telehealth;

3) remove in-person supervision requirements;

4) remove caps and restrictions on the amount of supervision that can be conducted through telehealth;

5) update the definition of "telecommunications technology" to allow a smart phone, or any audio-visual, real-time, or two-way interactive communication system, to qualify as telecommunications technology;

6) amend the provisions regarding facilitators to allow for expanded use of facilitators; and

7) remove the requirement that the initial contact with a client must be in person, and replace that requirement with provisions stating that the initial contact may be in person or through telehealth as determined appropriate by the provider and that the provider shall consider certain factors in determining the appropriateness of providing services via telehealth.

Change in the Statutory Authority Regarding Telehealth

S.B. 40, 87th Legislature, Regular Session, 2021, added new telehealth provisions and rulemaking authority to Texas Occupations Code, Chapter 51, and repealed the provisions regarding joint rules for fitting and dispensing hearing instruments by telepractice in Texas Occupations Code, Chapters 401 and 402. The joint rules were with the Hearing Instrument Fitters and Dispensers program. These changes became effective immediately.

The emergency rules retain the existing rules until permanent rules are adopted, but they make the following changes:

1) Remove references to Texas Occupations Code §401.2022 and §402.1023, regarding joint rules for fitting and dispensing hearing instruments by telepractice, which were repealed.

2) Update the statutory authority for rulemaking with references to Texas Occupations Code, Chapter 51, as amended by S.B. 40, and Texas Occupations Code, Chapter 111, Telemedicine and Telehealth.

3) Replace references to "telepractice" with the term "telehealth." This change provides consistency in terminology across provisions and reflects the terminology used in Texas Occupation Code, Chapter 51, as amended by S.B. 40, and Texas Occupations Code, Chapter 111, Telemedicine and Telehealth. The reference to "telepractice" was found in Texas Occupations Code §401.2022 and §402.1023, which were repealed.

SECTION BY SECTION SUMMARY

Subchapter A

The emergency rules amend Subchapter A, §111.2, Definitions. The emergency rules amend the definitions under paragraphs (14), (15), (23), (24), and (25) to allow supervision--both direct and indirect--to be performed through telehealth and not require in-person supervision. References to "telepractice/telehealth" have been replaced with the term "telehealth."

Subchapter E

The emergency rules amend Subchapter E, §111.41, Intern in Speech-Language Pathology License--Internship and Supervision Requirements. Subsection (d) is amended to allow interns to receive direct supervision through telehealth and not require in-person supervision.

Subchapter F

The emergency rules amend Subchapter F, §111.50, Assistant in Speech-Language Pathology License--Licensing Requirements--Education and Clinical Observation and Experience. Subsection (e) is amended to allow supervision to be performed through telehealth and not require in-person supervision.

The emergency rules amend Subchapter F, §111.51, Assistant in Speech-Language Pathology License--Supervision Requirements. Subsection (e) is amended to allow supervision to be performed through telehealth and not require in-person supervision. Subsection (g) is amended to eliminate any caps or limits on the number of hours that can be supervised through telehealth and to allow direct and indirect supervision to be provided through telehealth.

Subchapter J

The emergency rules amend Subchapter J, §111.91, Assistant in Audiology License--Supervision Requirements. Subsection (f) is amended to eliminate any caps or limits on the number of hours that can be supervised through telehealth, to eliminate restrictions on the duties that can be supervised by telehealth, and to allow direct and indirect supervision to be provided through telehealth.

The emergency rules amend Subchapter J, §111.92, Assistant in Audiology License--Practice and Duties of Assistants. Subsection (c) is amended to allow all assigned duties to be supervised through telehealth and not require in-person supervision.

Subchapter V

The emergency rules amend Subchapter V, §111.210, Definitions Relating to Telehealth. The definition of "provider" under paragraph (5) has been expanded to include speech-language pathology interns and speech-language pathology assistants, which will allow these licensees to provide telehealth services under this subchapter. The definitions of "facilitator" under paragraph (4) and "provider site" under paragraph (6) have been updated to reference "provider" since the term has been expanded. The definition of "telecommunications technology" under paragraph (8) has been updated to include a smart phone, or any audio-visual, real-time, or two-way interactive communication system. The definitions of "telepractice" and "telepractice services" under paragraphs (11) and (12) are repealed. They are unnecessary and duplicative with the terms "telehealth" and "telehealth services."

The emergency rules amend Subchapter V, §111.211, Service Delivery Models for Speech-Language Pathology. The title of the section has been changed to reflect the expanded scope of providers and references to "telepractice" have been replaced with "telehealth service."

The emergency rules amend Subchapter V, §111.212, Requirements for the Use of Telehealth in Speech-Language Pathology. The title of the section has been changed to reflect the expanded scope of speech-language pathology providers. Subsection (a) is amended to state that the section applies to a speech-language pathologist, speech-language pathology intern, or a speech-language pathology assistant. Subsection (a) also clarifies the telehealth services that may be provided by speech-language pathology assistants. Subsection (b) is amended to apply to a speech-language pathologist or speech-language pathology intern, but not to a speech-language pathology assistant. References within the section to "telepractice" and "telehealth/telepractice" have been replaced with "telehealth."

The emergency rules repeal Subchapter V, §111.213, Limitations on the Use of Telecommunications Technology by Speech-Language Pathologists.

The emergency rules amend Subchapter V §111.215, Requirements for Providing Telehealth Services in Audiology. The title of the section has been changed to remove references to "telepractice." Subsection (b) has been amended to clarify the modes of communication that do not utilize telecommunications technology. Subsections (e) and (f)(1) have been amended to allow for expanded use of facilitators by removing training requirements. Subsection (i) has been amended to replace the reference to "the provider's telepractice" with "telehealth." References within the section to "telepractice" have been replaced with "telehealth."

The emergency rules repeal Subchapter V, §111.216, Limitations on the Use Telecommunications Technology by Audiologists.

Subchapter X

The emergency rules amend the title of Subchapter X to reflect the change in the statutory authority and the change in terminology.

The emergency rules amend Subchapter X, §111.230, Purpose. This section is amended to remove the references to the repealed statutory provisions and to replace the references to "telepractice" with the term "telehealth."

The emergency rules amend Subchapter X, §111.231, Definitions. The definition of "telecommunications technology" under paragraph (10) has been updated to include a smart phone, or any audio-visual, real-time, or two-way interactive communication system, and to clarify the current reference to telephone in the definition. The definition of "telehealth services" under paragraph (11) has been amended to replace the reference to "telepractice" with the term "telehealth." The term "telepractice" under paragraph (12) has been changed to "telehealth," but there is no change in the definition.

The emergency rules amend Subchapter X, §111.232, Requirements for Providing Telehealth Services for the Fitting and Dispensing of Hearing Instruments. Subsection (b) is amended to clarify the reference to telephone. Subsections (e) and (f)(1) have been amended to allow for expanded use of facilitators by removing training requirements. Subsection (g) is amended to replace the reference to "telepractice" with the term "telehealth." Subsection (i) is amended to replace the reference to "the provider's telepractice" with "telehealth."

The emergency rules repeal subsection (j) to remove the requirement that a client's initial contact with a provider must be in person at the same physical location. The emergency rules replace that requirement with new subsections (j) and (k). New subsection (j) provides that the initial contact between a provider and client may be at the same physical location or through telehealth, as determined appropriate by the provider. New subsection (k) states that a provider shall consider certain factors in determining the appropriateness of providing services via telehealth.

The emergency rules re-letter current subsection (k) as subsection (l) and replace the reference to "telepractice" with the term "telehealth." The emergency rules re-letter current subsection (l) as subsection (m).

RECOMMENDATIONS AND COMMISSION ACTION

The Speech-Language Pathologists and Audiologists Advisory Board met August 6, 2021, and recommended that the Commission adopt the emergency rules. At its meeting on August 10, 2021, the Commission adopted the emergency rules as recommended by the Advisory Board and the Department.

FUTURE RULEMAKING

Under Texas Government Code §2001.034, the emergency rule may be effective for 120 days, and may be renewed once for an additional 60 days. The Department may propose this or a similar rule under the standard rulemaking process and will consider any additional action necessary in the event unforeseen issues arise with the adopted emergency rule.

STATUTORY AUTHORITY

The emergency rules are adopted with abbreviated or no notice and with an expedited effective date under Texas Government Code §2001.034(a) and §2001.036(a)(2).

The emergency rules are adopted under Texas Occupations Code, Chapters 51 and 401, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement those chapters. The emergency rules are also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40, and Texas Occupations Code, Chapter 111, Telemedicine and Telehealth.

The statutory provisions affected by the emergency rules are those set forth in Texas Occupations Code, Chapters 51, 111, 401, and 402. No other statutes, articles, or codes are affected by the emergency rules.