The Texas Commission of Licensing and Regulation (Commission) adopts 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; adopts a new rule at Subchapter V, §111.212; and adopts 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, without changes to the proposed text as published in the September 10, 2021, issue of the Texas Register (46 TexReg 5698). These rules will not be republished.

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 Commission and the Texas Department of Licensing and Regulation (Department); and Chapter 111, Telemedicine and Telehealth.

The adopted 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 adopted 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 adopted 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Session (2021) added new telehealth provisions and rulemaking authority to Texas Occupations Code, Chapter 51, and repealed the provisions regarding joint rules for fitting and dispensing hearing instruments by telepractice in Texas Occupations Code, Chapters 401 and 402.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 adopted 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 adopted 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 adopted rules. The adopted 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 adopted rules consolidate the existing rules, reorganize the existing provisions by subject matter, and eliminate duplicative provisions, as recommended by Department staff.

SECTION-BY-SECTION SUMMARY

Subchapter A

The adopted rules amend Subchapter A. General Provisions.

The adopted rules amend §111.2, Definitions. The adopted rules combine the separate definitions of "direct supervision" for interns and assistants into one definition. The adopted rules combine the separate definitions of "indirect supervision" for interns and assistants into one definition. The adopted 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 adopted 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 adopted rules amend Subchapter E. Requirements for Intern in Speech-Language Pathology License.

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

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

The adopted 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 adopted 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 adopted rules amend Subchapter V. Telehealth.

The adopted 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 adopted rules make clean-up changes to the definition of "client site." The adopted 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 adopted 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 adopted 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 adopted 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 adopted 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 adopted rules remove references to "consultant" and replace references to "telepractice" with "telehealth service."

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

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

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

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

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

Subchapter X

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

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

The adopted 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.

PUBLIC COMMENTS

The Department drafted and distributed the proposed rules to persons internal and external to the agency. The proposed rules were published in the September 10, 2021, issue of the Texas Register (46 TexReg 5698). The deadline for public comments was October 11, 2021. The Department received comments from three interested parties on the proposed rules during the 30-day public comment period. The public comments are summarized below.

Comment--One individual submitted a comment on §111.51, Assistant in Speech-Language Pathology License--Supervision Requirements. The commenter stated that in light of COVID-19, initial contacts have been "increasingly difficult to allow for timely initiation of care." The commenter suggested allowing the speech-language pathologist supervisor to either conduct a chart review or have an initial contact with the client, to determine if the assistant has the skill set to provide services to a client. The commenter stated that all assistants in Texas have a minimum of a bachelor's degree and have received training.

Department Response-- The comment relates to the existing provisions under §111.51(f), which require the supervising speech-language pathologist to have the initial contact with the clients on their caseload before allowing an assistant under their supervision to provide services to those clients. It appears the commenter would like to amend the existing provisions to require the speech-language pathologist supervisor to either conduct a chart review or have the initial contact with the client. This change would allow a chart review to be performed instead of the initial contact with the client.

The Department disagrees with this comment. The suggested change goes beyond the scope of the proposed changes and would be a substantive change to the existing and proposed rules. While other subsections under §111.51 were amended in this rulemaking, §111.51(f) was not amended. A similar provision also was added to new §111.212(f)(1) that reflects the current requirements under §111.51(f). The Department did not make any changes to the proposed rules as a result of this comment.

Comment--One individual submitted a comment in support of the proposed rules that allow interns and assistants to use telehealth and that remove the limits on the amount of supervision can be provided through telehealth. The commenter stated that there had been no increase in complaints over the last 18 months and expressed appreciation for keeping the rules updated.

Department Response-- The Department appreciates this comment in support of the proposed rules. The Department did not make any changes to the proposed rules as a result of this comment.

Comment--The Texas Speech-Language Hearing Association (TSHA) submitted a comment in support of the proposed rules under Chapter 111, Subchapters A, E, F, J, and V. TSHA stated it supports all the proposed rule changes, which will allow for increased access to services, increased coverage of rural areas, and increased flexibility to provide services safely during the pandemic.

Department Response-- The Department appreciates this comment in support of the proposed rules. The Department did not make any changes to the proposed rules as a result of this comment.

ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION

The Speech-Language Pathologists and Audiologists Advisory Board met on November 2, 2021, to discuss the proposed rules and the public comments received. The Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register. At its meeting on December 7, 2021, the Commission adopted the proposed rules as recommended by the Advisory Board.

STATUTORY AUTHORITY

The adopted rules are adopted under Texas Occupations Code, Chapter 51, which authorizes the Commission, the Department's governing body, to adopt rules as necessary to implement that chapter and any other law establishing a program regulated by the Department. The adopted rules are also adopted under Texas Occupations Code, Chapter 51, §51.501, Telehealth, as added by S.B. 40; Texas Occupations Code, Chapter 111, Telemedicine and Telehealth; and Texas Occupations Code, Chapter 401, Speech-Language Pathologists and Audiologists.

The statutory provisions affected by the adopted 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 adopted rules.