The Texas Department of Licensing and Regulation (Department) proposes 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; and Subchapter V, §111.210 and §111.211; proposes a new rule at Subchapter V, §111.212; and proposes the repeal of existing rules at Subchapter V, §§111.212 - 111.216, and Subchapter X, §§111.230 - 111.232, regarding the Speech-Language Pathologists and Audiologists Program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

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

The proposed rules implement the telehealth emergency rules on a permanent basis; implement SB 40, 87th Legislature, Regular Session (2021); and include changes as a result of the four-year rule review related to telehealth and remote supervision (tele-supervision). The proposed rules also reorganize the current provisions and eliminate duplicative provisions.

Telehealth Emergency Rules

The Commission 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. The emergency rules also reflected the change in the statutory authority regarding telehealth. The emergency rules were necessary to protect the public health, safety, and welfare. (Emergency Rules, 46 TexReg 5313, August 27, 2021).

The telehealth emergency rules were effective September 1, 2021. Emergency rules are only effective for 120 days, with one 60-day extension, for a total of 180 days. The current proposed rules implement the emergency rules on a permanent basis.

Implementation of SB 40

Senate Bill (SB) 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Session (2021) added new telehealth provisions and rulemaking authority to Texas Occupations Code, Chapter 51, and repealed the provisions regarding joint rules for fitting and dispensing hearing instruments by telepractice in Texas Occupations Code, Chapters 401 and 402.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 proposed rules implement SB 40 as it relates to telehealth, tele-supervision, and the repeal of the statutory requirements for joint rules for fitting and dispensing hearing instruments by telepractice. Because SB 40 was effective immediately, the necessary changes related to statutory authority for telehealth were included in the emergency rules (discussed above).

Four-Year Rule Review Changes

The proposed rules include changes as a result of the four-year rule review related to telehealth and tele-supervision. The Department conducted the required four-year rule review of the rules under 16 TAC Chapter 111, and the Commission readopted the rule chapter in its entirety and in its current form. (Proposed Rule Reviews, 45 TexReg 7281, October 9, 2020. Adopted Rule Reviews, 46 TexReg 2050, March 26, 2021).

In response to the Notice of Intent to Review that was published, the Department received 106 public comments regarding 16 TAC Chapter 111. Most of the comments requested rule changes that would make permanent the expanded use of telehealth and tele-supervision for interns and assistants, as was allowed under the Governor's waivers that were issued pursuant to the COVID-19 disaster declaration. These suggested changes are part of the emergency rules and are part of the current proposed rules. The proposed rules also include changes based on the Department's review of the rules during the rule review process related to telehealth and tele-supervision.

Reorganization Changes

The proposed rules consolidate the existing rules, reorganize the existing provisions by subject matter, and eliminate duplicative provisions, as recommended by Department staff.

Advisory Board Recommendation

The proposed rules were presented to and discussed by the Speech-Language Pathologists and Audiologists Advisory Board at its meeting on August 20, 2021. The Advisory Board removed the proposed changes to §111.154, regarding supervisor residency requirements. Those changes are not included in this proposal. Changes were also recommended to §111.210(8) and (9) regarding audiology assistants and the fitting and dispensing of hearing instruments by telehealth. The Advisory Board voted and recommended that the proposed rules with changes be published in the Texas Register for public comment.

Subsequent to the Advisory Board meeting, the recommended changes regarding audiology assistants and the fitting and dispensing of hearing instruments by telehealth were reviewed. Those recommended changes were not included in this proposal, since they conflict with the statute and with other existing rules. In addition, minor clean-up changes were made to the proposal.

SECTION-BY-SECTION SUMMARY

Subchapter A

The proposed rules amend Subchapter A. General Provisions.

The proposed rules amend §111.2, Definitions. The proposed rules combine the separate definitions of "direct supervision" for interns and assistants into one definition. The proposed rules combine the separate definitions of "indirect supervision" for interns and assistants into one definition. The proposed rules allow for direct and indirect supervision to be performed through tele-supervision and not require in-person supervision. The definition of "in-person" has been updated to address services to clients and supervision of licensees. The proposed rules add a new definition of "tele-supervision." This terminology replaces language in the current rules regarding supervising through telehealth or telepractice/telehealth.

Subchapter E

The proposed rules amend Subchapter E. Requirements for Intern in Speech-Language Pathology License.

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

Subchapter F

The proposed rules amend Subchapter F. Requirements for Assistant in Speech-Language Pathology License.

The proposed rules amend §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 tele-supervision and not require in-person supervision.

The proposed rules amend §111.51, Assistant in Speech-Language Pathology License--Supervision Requirements. Subsection (e) is amended to allow supervision to be performed through tele-supervision 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 tele-supervision and to allow direct and indirect supervision to be provided through tele-supervision.

Subchapter J

The proposed rules amend Subchapter J. Requirements for Assistant in Audiology License.

The proposed rules amend §111.91, Assistant in Audiology License--Supervision Requirements. Subsection (f) is amended to eliminate restrictions on the duties that can be supervised by tele-supervision and to allow direct and indirect supervision to be provided through tele-supervision.

The proposed rules amend §111.92, Assistant in Audiology License--Practice and Duties of Assistants. Subsection (c) is amended to allow the assigned duties under paragraphs (1)-(3) to be directly supervised through tele-supervision and not require in-person supervision. Paragraph (4) is amended to remove the requirement for direct supervision of this duty.

Subchapter V

The proposed rules amend Subchapter V. Telehealth.

The proposed rules amend §111.210, Definitions Relating to Telehealth. The section has been updated to consolidate definitions from §111.210 and §111.231 into one section and to eliminate duplicative provisions. Other definitions are found in current §111.2.

The proposed rules make clean-up changes to the definition of "client site." The proposed rules remove the definition of "consultant" and the references and provisions in the rules regarding consultants. The definition of "provider" has been expanded to include speech-language pathology interns, speech-language pathology assistants, and audiology assistants. This change will allow additional licensees to provide telehealth services. The definitions of "facilitator" and "provider site" have been updated to reference "provider" and to make clean-up changes. The definition of "telecommunications technology" is updated to include a smart phone, or any audio-visual, real-time, or two-way interactive communication system.

The proposed rules update the definition of "telehealth" to include assessments, interventions, or consultations regarding a client. For audiologists and audiology interns, the definition has been updated to include the use of telecommunications technology for the fitting and dispensing of hearing instruments.

The proposed rules update the definition of "telehealth services" to include the rendering of audiology and/or speech-language pathology services through telehealth to a client who is physically located at a site other than the site where the provider is located. For audiologists and audiology interns, the definition has been updated to include the fitting and dispensing of hearing instruments through telehealth to a client who is physically located at a site other than the site where the provider is located.

The proposed rules remove the definitions of "telepractice" and "telepractice services." These terms are duplicative with the terms "telehealth" and "telehealth services," which is the terminology used in Occupations Code Chapter 51, as amended by SB 40, and Chapter 111.

The proposed rules amend §111.211, Service Delivery Models of Speech-Language Pathologists. The title of the section has been changed to "Service Delivery Models" to apply to all telehealth providers. The proposed rules remove references to "consultant" and replace references to "telepractice" with "telehealth service."

The proposed rules add a new §111.212, Requirements for Providing Telehealth Services and Using Telehealth. This new section consolidates the separate telehealth rules for speech-language pathologists and audiologists into one new rule. The new rule consolidates the provisions from existing rules §§111.212, 111.214, 111.215, and 111.232; reorganizes the provisions by subject matter; eliminates duplicative provisions; and updates the terminology to use the terms "telehealth" and "telehealth services."

New §111.212(a) addresses the applicability of the subchapter. Except where noted, the subchapter applies to speech-language pathologists, speech-language pathology interns, speech-language pathology assistants, audiologists, audiology interns, audiology assistants, and dual speech-language pathologist and audiologist license holders, as authorized under this subchapter. This subsection also addresses the applicability of other laws.

New §111.212(b) addresses licensure and scope of practice requirements related to providing telehealth services. This subsection also specifies that speech-language pathology assistants and audiology assistants may provide services through telehealth, as directed by their supervisors, according to the specified requirements.

New §111.212(c) addresses competence and standard of practice. The subsection includes provisions regarding provider competence in the services being provided and the methodology and equipment being used; the standard of practice being the same for services provided via telehealth as services provided in-person; and the responsibility of a provider to determine whether a particular service or procedure is appropriate to be provided via telehealth.

New §111.212(d) addresses the use of facilitators to assist a provider in providing telehealth services. This subsection includes provisions regarding the facilitator's qualifications, training, and competence, as appropriate; the tasks that may be performed; the responsibilities of the provider; and the required documentation.

New §111.212(e) addresses technology and equipment. This subsection includes provisions regarding using telecommunications technology and other equipment that the provider is competent to use, and only providing telehealth services if the telecommunications technology and equipment are appropriate for the services to be provided; are properly calibrated, if appropriate, and in good working order; and are of sufficient quality to deliver equivalent service and quality to the client as if those services were provided in-person.

New §111.212(f) addresses client contacts and communications. This subsection provides that the initial contact between a provider and a client may be at the same physical location or through telehealth, as determined appropriate by the provider. For a speech-language pathology assistant, the initial contact with a client must be made by the assistant's supervisor. This subsection requires consideration of certain factors in determining the appropriateness of providing services via telehealth and requires a notification of telehealth services be provided to a client.

New §111.212(g) addresses records and billing. This subsection includes provisions regarding maintenance of client records; documentation of telehealth services; and reimbursement of telehealth services.

New §111.212(h) addresses hearing instruments. This subsection includes a provision regarding digital adjustments of hearing instruments through telecommunications technology by a provider who is an audiologist or an audiology intern.

The proposed rules repeal existing §111.212, Requirements for the Use of Telehealth by Speech-Language Pathologists.

The proposed rules repeal existing §111.213, Limitations on the Use of Telecommunications Technology by Speech-Language Pathologists.

The proposed rules repeal existing §111.214, Requirements for Providing Telehealth Services in Speech-Language Pathology.

The proposed rules repeal existing §111.215, Requirements for Providing Telepractice Services in Audiology.

The proposed rules repeal existing §111.216, Limitations on the Use Telecommunications Technology by Audiologists.

Subchapter X

The proposed rules repeal Subchapter X. Joint Rules for Fitting and Dispensing of Hearing Instruments by Telepractice.

The proposed rules repeal existing §111.230, Purpose. The statutory requirements for joint rules for fitting and dispensing hearing instruments by telepractice were repealed by SB 40, effective immediately.

The proposed rules repeal existing §111.231, Definitions. The definitions under §111.231 are included in §111.2 and §111.210, as necessary.

The proposed rules repeal existing §111.232, Requirements for Providing Telehealth Services for the Fitting and Dispensing of Hearing Instruments. The provisions in §111.232 have been consolidated with the provisions in existing §§111.212, 111.214, and 111.215 to create new §111.212 under Subchapter V. Telehealth.

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 rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, enforcing or administering the proposed rules does not have foreseeable implications relating to costs or revenues of state governments or local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect the 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 benefit will be expanded access to services; an increase in the number of providers who may provide telehealth services; an increase in the number of clients who may receive services; additional flexibility for supervisors and supervisees; a reduction in travel costs; a reduction in the number of office visits; and additional technologies to expand the availability of telehealth.

For those services which may be provided at the same level of quality via telehealth as in-person, a provider could provide services to a larger number of clients living in rural areas or clients with mobility concerns, who may not currently have access to services due to the distance to the nearest provider or difficulty getting to a nearby provider's office.

The proposed rules allow speech-language pathology interns, speech-language pathology assistants, and audiology assistants to be providers of telehealth, under their supervisor's license, which will increase the number of providers and increase the number of clients who may be served through telehealth. The proposed rules lift restrictions on the amount of supervision which may be conducted through tele-supervision, which will provide flexibility to supervisors and supervisees.

For those speech-language pathology or audiology services which may be performed through telehealth, there may be a decrease or elimination of travel costs for the client associated with an in-person office visit versus receiving that same service without the need to travel to a physical office location. There may also be a reduction in travel time and costs for providers, who travel to provide services to their clients. The authorization for providers to use telecommunications technology to remotely digitally program hearing instruments will reduce the number of office visits needed by some clients for those services, as well as travel time and costs.

The inclusion of smartphones in the definition of telecommunications technology expands the availability of telehealth to those who may not have access to computers or Wi-Fi.