The Texas State Board of Plumbing Examiners (Board) adopts amendments to 22 Texas Administrative Code §365.15, relating to Curriculum Minimum Standards. Amendments to 22 Texas Administrative Code §365.15 are adopted without changes to the proposed text published in the August 6, 2021, issue of the Texas Register (46 TexReg 4822). The rule will not be republished.

Reasoned Justification:

Pursuant to amendments to Chapter 1301 of the Texas Occupations Code passed by the 87th Legislature, Regular Session (2021) specifically sections 19 and 20 of House Bill (HB) 363, which require the Board to establish the minimum curriculum standards for continuing education courses and training programs. Additionally, the legislation requires the Executive Director to approve continuing education courses and training programs that meet the standards set by the Board. Additional changes have been made to implement The Sunset Commission's recommendations regarding continuing education.

How the Rule will function:

The rule will function to implement sections 1301.404 and 1301.405 of the Texas Occupations Code by establishing minimum curriculum standards.

Summary of Comments:

The thirty day comment period ended September 5, 2021. During this period, the Board received comments regarding the proposed rule from Matthew Winn and William Heuberger. The summarized comments and the Board's response to the comments follows:

Mr. Winn stated that "it is unclear to me what 'tailored to' actually means" and that "there is no way to know who will be attending."

Response: Staff disagrees that "there is no way of knowing who will be attending." Pursuant to section 1301.405(a) of the Texas Occupations Code, annual training is mandatory for drain cleaners, drain cleaner-restricted registrants and residential utilities installers. Furthermore, section 1301.405(a) of the Texas Occupations Code also lists specific subject matter that training must cover including health and safety requirements, board-approved plumbing codes, and water conservation. Similarly, pursuant to section 1301.404(b) of the Texas Occupations Code annual continuing professional education is mandatory for license or endorsement holders. Moreover, section 1301.404(b) of the Texas Occupations Code lists specific subject matter that continuing professional education must cover which although similar, varies from the subject matter that training must cover. Additionally, pursuant to section 311.011 of the Texas Government Code, "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage. Accordingly, the clause "curriculum must be tailored to registrants" should be read in the context of the phrase that follows "if for use in a training program." Merriam Webster's dictionary defines tailored to mean "fashioned or fitted to resemble a tailor's work," and "custom made." https://www.merriam webster.com/dictionary/tailored. Accordingly, curriculum for registrants should be tailored to or customized to fit the statutory requirements specific to registrants; similarly, curriculum for licensees or endorsement holders should be customized to fit the statutory requirements specific to licensees and endorsement holders.

Mr. Winn's next comment states that "[t]his seems to indicate a different course is required for annual renewal of the apprenticeship registrations than what is required for licensed plumbers."

Response: A different course is required pursuant to sections 1301.404 and 1301.405 of the Texas Occupations Code.

Mr. Winn states that §365.15(e)(9) "only recognizes the online training" and that this "discourages live/in person training."

Response: Staff disagrees, as nothing in this rule prohibits medical gas continuing education courses and training programs from being taken in person. Persons who desire to teach medical gas systems in person, via correspondence course or virtually by means of telecommunications equipment may do so provided they are approved by the Board. Courses that were selected for this list, like the online course on medical gas systems offered by the global non-profit that literally wrote the code book on health care facilities, were selected first and foremost because they focused on safety. Additionally, they have already been reviewed to meet curriculum and instructor standards. Moreover, the authenticity of a course completion certificate from these courses can be easily verified online by Board staff. What is more, in the interest of increasing the number of qualified plumbers, the Board is attempting to minimize the burden that continuing education can present to individuals licensed in multiple jurisdictions by allowing for more broad-based courses. The Board declines to make changes to the current list of courses.

Mr. Heuberger states that "I would like to see the following added to 365.15(e): 1. A course approved by TCEQ for water operators, wastewater operators, backflow prevention assembly testers and customer service inspectors. 2. Courses in construction safety approved by the University of Texas at Arlington and taught by a University of Texas at Arlington Authorized Construction Trainer."

The Board declines to add any curriculum to the list of courses in subsection (e). The Board may review the courses offered by TCEQ or other agencies and invite those instructor's whose curriculum meets the Board's minimum standards to also apply to offer their courses to the Board's licensees. However, because the Board wants to "keep licensees, registrants and endorsement holders informed of innovations, best practices and significant developments affecting the plumbing profession" as stated in subsection (a)(2) of the proposed rule it is unlikely that this list will expand significantly beyond current safety courses, which will be reviewed and potentially revised every few years. Should the Board decide to extend the pre-approved curriculum to include courses offered by institutions of higher education, it would do so for all institutions of higher education in the state whose curriculum "directly relates to the technical, legal or ethical aspects of plumbing, including grounds for discipline and professional responsibility" as stated in subsection (a)(1), instead of a particular institution's course offerings. While staff believes it is quite likely the courses listed by Mr. Huberger may meet the minimum curriculum standards, they would need to go through the standard review process nevertheless.

Statutory Authority:

This amendment is adopted under the authority of §1301.251(2) of the Occupations Code, which requires the Board to adopt and enforce rules necessary to administer and enforce chapter 1301 of the Occupations Code. This amendment is also adopted under the authority of Texas Occupations. Code §1301.404(a)(1) and §1301.405(a-1)(1), which provide that the Board shall establish by rule minimum curriculum standards for continuing education courses and training programs. Additionally, this amendment is proposed under the authority of Texas Occupations Code §1301.404(c)(1) and §1301.405(a-2)(1), which provide for the Executive Director to approve continuing education courses and training programs that meet the minimum curriculum standards established by the Board. Finally, this amendment is adopted under §1301.253, which authorizes the Board to assess fees.

This adoption affects Chapter 1301 of the Texas Occupations Code. No other statute is affected by this adoption.