PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION
CHAPTER 70. INDUSTRIALIZED HOUSING AND BUILDINGS
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 70, §70.100, regarding the Industrialized Housing and Buildings program, without changes to the proposed text as published in the September 22, 2023, issue of the Texas Register (48 TexReg 5342). This rule will not be republished.
The Commission also adopts amendments to existing rules at 16 TAC Chapter 70, §70.101, regarding the Industrialized Housing and Buildings program, with non-substantive change to the proposed text as published in the September 22, 2023, issue of the Texas Register (48 TexReg 5342). This rule will be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 70, implement Texas Occupations Code, Chapter 1202, Industrialized Housing and Buildings.
The adopted rules in 16 TAC §70.100 update the mandatory building codes used for the construction of all industrialized housing and buildings, modules, and modular components to more recent versions. The adopted rules in 16 TAC §70.101 amend the mandatory building codes after a determination by the Texas Industrialized Building Code Council that the amendments are in the public interest. These amendments will become effective no earlier than 180 days from the determination date. The adopted rules are necessary to ensure the mandatory building codes used are up to date.
SECTION-BY-SECTION SUMMARY
The adopted rules amend §70.100(a) to set the effective date of the mandatory building codes for April 1, 2024.
The adopted rules amend §70.100(c) through (g) and §70.100(i) to reflect the adoption of the 2021 versions of each mandatory building code.
The adopted rules amend §70.100(h) to reflect the adoption of the 2015 version of the International Energy Conservation Code (IECC), identify the applicable edition of the IECC as the edition adopted by rule by the State Energy Conservation Office, and describe how conflict between the IECC and the individual international codes will be resolved.
The adopted rules amend §70.100(j) to reflect the adoption of the 2020 version of the National Electrical Code.
The adopted rules amend §70.100(k) to update the graphic table of past editions of mandatory building codes.
The adopted rules amend §70.101(c)(1) to reflect the correct title of Section 101 of the 2021 International Building Code.
The adopted rules amend §70.101(c)(3) to modify Section 107.1 of the 2021 International Building Code to allow the filing of submittal documents in a digital format if allowed by the building official.
The adopted rules amend §70.101(c)(4)(A) to modify Section 111.1 of the 2021 International Building Code to clarify how a certificate of occupancy should be construed.
The adopted rules amend §70.101(c)(6)(A) to reflect the renumbering of former Section 1101.2 to Section 1102.1.
The adopted rules amend §70.101(c)(6)(B) to delete Sections 1103 through 1112.
The adopted rules amend §70.101(c)(7)(A) to reflect the renumbering of former ICC A117.1-09 to ICC A117.1-17.
The adopted rules amend §70.101(c)(7)(B) to update the referenced code sections.
The adopted rules amend §70.101(c)(7)(C) to update the NFPA Standard to 70-20, National Electrical Code.
The adopted rules amend §70.101(d) to reflect the adoption of the 2021 International Residential Code.
The adopted rules amend §70.101(d)(1) to reflect the correct title of Section R101 of the 2021 International Residential Code.
The adopted rules amend §70.101(d)(2)(D) by updating the appendices considered part of the code.
The adopted rules amend §70.101(d)(4) to add language regarding the submission of submittal documents.
The adopted rules amend §70.101(d)(5)(A) to clarify how a certificate of occupancy should be construed.
The adopted rules amend §70.101(d)(7) to reflect code language that has been reorganized and is now set out in Section R302.2.2, Common Walls. The language specifies characteristics of common walls in townhouses. The exception previously stated has been removed from the rules and replaced with new language as result of a reorganization of Section R302.2, Townhouses.
The adopted rules add §70.101(d)(7)(A), which amends Section R302.2.2(1) to apply when a Section P2904-compliant fire sprinkler system is provided.
The adopted rules add §70.101(d)(7)(B), which amends Section R302.2.2(2) to apply when a Section P2904-compliant fire sprinkler system is not provided.
The adopted rules add §70.101(d)(7)(C), which amends Section R302.2.2 to apply an exception in a specific circumstance.
The adopted rules amend §70.101(d)(8) to reflect the renumbering of former Section R303.9 to R303.10.
The adopted rules amend §70.101(d)(11)(B) to delete Sections N1101.3 through N1113.
The adopted rules amend §70.101(d)(13)(B) to reflect the adoption of the 2020 National Electrical Code.
The adopted rules amend §70.101(e) to reflect the adoption of the 2021 International Fuel Gas Code.
The adopted rules amend §70.101(e)(2)(A) to add language stating that "Additions, alterations or repairs shall not cause an existing installation to become unsafe, hazardous or overloaded."
The adopted rules amend §70.101(e)(3) to reflect the adoption of the 2021 International Existing Building Code.
The adopted rules amend §70.101(f) to reflect the adoption of the 2021 International Mechanical Code.
The adopted rules amend §70.101(f)(2)(A) to add language stating that "Additions, alterations or repairs shall not cause an existing installation to become unsafe, hazardous or overloaded."
The adopted rules amend §70.101(f)(3) to reflect the adoption of the 2021 International Existing Building Code.
The adopted rules amend §70.101(g) to reflect the adoption of the 2021 International Plumbing Code.
The adopted rules amend §70.101(g)(2)(C) to identify the terms under which moved buildings would be considered compliant with current mandatory building codes.
The adopted rules amend §70.101(g)(3)(A) to reflect the renumbering of former Section 403.5 to Section 403.7.
The adopted rules amend §70.101(g)(3)(B) to reflect the renumbering of former Section 403.5.1 to Section 403.7.1.
The adopted rules amend §70.101(g)(3)(C) to reflect the renumbering of former Section 403.5.2 to Section 403.7.2.
The adopted rules amend §70.101(g)(3)(D) to reflect the renumbering of former Section 403.5.3 to Section 403.7.3.
The adopted rules amend §70.101(g)(4) to reflect the adoption of the 2021 International Existing Building Code.
The adopted rules amend §70.101(i) to reflect the adoption of the 2021 International Existing Building Code.
The adopted rules amend §70.101(i)(1) to reflect the changing of the title of the section from Section 101, General to Section 101, Scope and General Requirements.
The adopted rules amend §70.101(i)(3) to reflect the renumbering of former Section 1401.2 to Section 1301.2. The proposed rules also clarify the applicability of the code's provisions to existing occupancies.
The adopted rules amend §70.101(i)(4)(B) to add the effective month and year, March 2012, of the referenced standard.
The adopted rules amend §70.101(j) to reflect the reflect the adoption of the 2020 National Electrical Code.
The adopted rules amend §70.101(j)(1) to add language clarifying the requirements for conductors rated up to 2000 volts.
The adopted rules add §70.101(j)(3) to remove Section 210.8(F) of the 2020 National Electrical Code regarding ground-fault circuit interrupters.
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 22, 2023, issue of the Texas Register (48 TexReg 5342). The public comment period closed on October 30, 2023. The Department received comments from three interested parties on the proposed rules. The public comments are summarized below. Additionally, the Department received two comments for the advisory board meeting held November 16, 2023. One comment received was a complete restatement of a comment received during the public comment period for the published rules.
Comment: The first comment, from the International Association of Plumbing and Mechanical Officials (IAPMO), recommended the inclusion of the Uniform Plumbing Code (UPC) and the Uniform Mechanical Code (UMC) as acceptable building codes. This comment was also received in anticipation of the advisory board meeting held November 16, 2023.
Department Response: The comment is outside the scope of the proposed rules. The Department made no changes to the proposed rules in response to this comment.
Comment: The second comment, from the Texas Manufacturing Housing Association, recommended that the IHB program should match the statewide adopted minimum building code standards with its adopted code, or, at a minimum, not be very different from the statewide minimum codes.
Department Response: The comment is outside the scope of the proposed rules. The Department made no changes to the proposed rules in response to this comment.
Comment: The third comment, from the International Code Council, requested the adoption of additional reference standards, published by the ICC, to improve plan and regulation of industrialized buildings.
Department Response: The comment is outside the scope of the proposed rules. The Department made no changes to the proposed rules in response to this comment.
Comment: Sheila Blake offered her public comment during the November 16, 2023, Texas Industrialized Building Code Council meeting. Ms. Blake commented that 2021 International Building Code and the 2021 International Residential Code reference the 2016 version of the ASCE-7 engineering standards. With no data after Hurricane Harvey, which landed in Texas in 2017, Ms. Blake asked if there was any consideration offered to these standards during the rulemaking process. She stated that, should the 2016 version of the engineering standards be used, there would be a temporary, but significant, increase in cost to build under that version, as the wind provisions increased in that version before being lowered in the 2022 version.
Department Response: These referenced standards included in the proposed rules were reviewed and vetted by both the rules workgroup of the Code Council and Department staff during the rulemaking process. The Department made no changes to the proposed rules in response to this comment.
CODE COUNCIL RECOMMENDATIONS
The Texas Industrialized Building Code Council met on November 16, 2023, to discuss the proposed rules and the public comments received. The Council recommended that the Commission adopt the proposed rules as published in the Texas Register.
STATUTORY AUTHORITY
The adopted rules are proposed under Texas Occupations Code, Chapters 51 and 1202, 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51 and 1202. No other statutes, articles, or codes are affected by the adopted rules.
§70.101.Amendments to Mandatory Building Code.
(a) The council shall consider and review all amendments to these codes which are approved and recommended by ICC, and if they are determined to be in the public interest, the amendments shall be effective 180 days following the date of the council's determination or at a later date as set by the council.
(b) Any amendment proposed by a local building official, and determined by the council following a public hearing to be essential to the health and safety of the public on a statewide basis, shall become effective 180 days following the date of the council's determination or at a later date as set by the council.
(c) The 2021 International Building Code shall be amended as follows.
(1) Amend Section 101 Scope and General Requirement as follows.
(A) Amend Section 101.1 Title to read as follows: "These regulations shall be known as the Building Code of the Texas Industrialized Housing and Buildings Program, hereinafter referred to as 'this code.'"
(B) Amend Section 101.2 Scope by adding the following: "Where conflicts occur between the provisions of this code and the provisions of Texas Occupations Code, Chapter 1202, Industrialized Housing and Buildings, or the provisions of 16 Texas Administrative Code, Chapter 70, rules governing the Texas Industrialized Housing and Buildings Program, the provisions of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70 shall control."
(C) Amend Section 101.2.1 Appendices by adding the following: "Appendices C, F, and K shall be considered part of this code."
(D) Amend Section 101.4 Referenced codes to read as follows: "The other codes listed in Sections 101.4.1 through 101.4.9 and referenced elsewhere in this code shall be considered part of the requirements of this code to the prescribed extent of each such reference. Whenever amendments to the referenced codes have been adopted, each reference to said code shall be considered to reference the amendment as well."
(E) Amend Section 101.4.7 Existing buildings to add the following sentence: "Moved industrialized buildings that bear approved certification decals or insignia, and that may also bear an alteration decal, in accordance with the requirements of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70, and that have not been altered or modified since the decal, insignia, or alteration decal was attached, shall be considered to be in compliance with the current mandatory building codes adopted by the Texas Industrialized Building Code Council."
(F) Add new Section 101.4.8 Electrical to read as follows: "The provisions of Appendix K shall apply to the installation of electrical systems, including alterations, repairs, replacements, equipment, appliances, fixtures, fittings and appurtenances thereto. Any reference to NFPA 70 or the Electrical Code shall mean the Electrical Code as adopted."
(G) Add new Section 101.4.9 Accessibility to read as follows: "Buildings and facilities shall be designed and constructed to be accessible in accordance with this code and the Texas Accessibility Standards (TAS). Wherever reference elsewhere in this code is made to ICC A117.1, the TAS of Texas Government Code, Chapter 469, Elimination of Architectural Barriers shall be substituted. Buildings subject to the requirements of the Texas Accessibility Standards are described in Administrative Rules of the Texas Department of Licensing and Regulation, 16 Texas Administrative Code, Chapter 68."
(2) Amend Section 104.1 General by adding the following: "The term building official as used in this code, or as used in the codes and standards referenced in this code, shall mean the Texas Commission of Licensing and Regulation, the executive director of the Texas Department of Licensing and Regulation, the Texas Industrialized Building Code Council, or the local building official in accordance with the powers and duties assigned to each in Texas Occupations Code, Chapter 1202, Industrialized Housing and Buildings."
(3) Amend Section 107.1 General to read as follows: "Submittal documents consisting of construction documents, statement of special inspections, geotechnical report and other data shall be submitted in two or more sets, or in a digital format if allowed by the building official, with each permit application. The construction documents shall be prepared by a registered design professional where required by the statutes of the jurisdiction in which the project is to be constructed. Where special conditions exist, the building official is authorized to require additional construction documents to be prepared by a registered design professional. Construction documents depicting the structural design of buildings to be located in hurricane prone regions shall be prepared and sealed by a Texas licensed professional engineer."
(4) Amend Section 111 Certificate of Occupancy as follows.
(A) Amend Section 111.1 Change of occupancy to read as follows: "A building or structure shall not be used or occupied in whole or in part, and a change in the existing use or occupancy classification of a building or structure or portion thereof shall not be made, until the local building official has issued a certificate of occupancy in accordance with the locally adopted rules and regulations. Issuance of a certificate of occupancy shall not be construed as an approval of a violation of the provisions of this code or of other ordinances of the jurisdiction. Certificates presuming to give authority to violate or cancel the provisions of this code or other ordinances of the jurisdiction shall not be valid. Exception: Certificates of occupancy are not required for work exempt from permits under Section 105.2."
(B) Amend Section 111.2 Certificate issued to read as follows. "The local building official shall issue a certificate of occupancy in accordance with the locally adopted rules and regulations. After the local building official inspects the industrialized house or building and does not find violations of the provisions of this code or other laws that are enforced by the department of building safety, the local building official shall issue a record of final inspection authorizing the release of the house or building for occupancy."
(C) Delete Items 1 through 12 of Section 111.2.
(D) Amend Section 111.3 Temporary occupancy to read as follows: "The local building official may issue a temporary certificate of occupancy in accordance with locally adopted rules and regulations."
(E) Add new Section 111.5 Industrialized housing and buildings installed outside the jurisdiction of a municipality or within a municipality without an inspection department to read as follows: "The installation of buildings installed outside the jurisdiction of a municipality or within a municipality without an inspection department shall comply with the requirements of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70, Administrative Rules Industrialized Housing and Buildings."
(5) Amend Section 311.3 Low-hazard storage, Group S-2 by adding the following to the list of uses that are covered by this occupancy group: "Equipment shelters or equipment buildings."
(6) Amend Chapter 11 Accessibility as follows.
(A) Amend Section 1102.1 Design to read as follows: "Buildings and facilities shall be designed and constructed to be accessible in accordance with this code and the Texas Accessibility Standards (TAS)."
(B) Delete Section 1103 through Section 1112.
(7) Amend Chapter 35 Referenced Standards as follows.
(A) Delete the following standard: "ICC A117.1-17, Accessible and Usable Buildings and Facilities".
(B) Add TDLR, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711 as a promulgating agency; add 2012 TAS, Texas Accessibility Standards as adopted under 16 Texas Administrative Code, Chapter 68 as the referenced standard; and add code sections 202, 907.5.2.3.3, 1009.8.2, 1009.9, 1009.11, 1010.2.13.1, 1012.1, 1012.6.5, 1012.10, 1013.4, 1023.9, 1102.1, 1108.2, 1110.1, 1110.2, 1110.5.1, 1110.5.2, 1111.3, 1111.4, 1111.4.2, 1112.3, 1112.4, 1112.5, and 1112.5.2 as the referenced code sections.
(C) Add code section 101.4.8 as a referenced code section for NFPA Standard 70-20, National Electrical Code.
(8) Amend Section K111.1 Adoption to read as follows: "Electrical systems and equipment shall be designed, constructed and installed in accordance with NFPA 70 except as otherwise provided in this code."
(d) The 2021 International Residential Code shall be amended as follows.
(1) Amend Section R101 Scope and General Requirements as follows.
(A) Amend Section R101.1 Title to read as follows: "These regulations shall be known as the Residential Code for One- and Two-family Dwellings of the Texas Industrialized Housing and Buildings Program, hereinafter referred to as 'this code.'"
(B) Amend Section R101.2 Scope by adding the following: "Where conflicts occur between the provisions of this code and the provisions of Texas Occupations Code, Chapter 1202, Industrialized Housing and Buildings, or the provisions of 16 Texas Administrative Code, Chapter 70, rules governing the Texas Industrialized Housing and Buildings Program, the provisions of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70 shall control."
(2) Amend Section R102 Applicability as follows.
(A) Amend Section R102.4 Referenced codes and standards to read as follows: "The codes and standards referenced in this code shall be considered part of the requirements of this code to the prescribed extent of each reference and as further regulated in Sections R102.4.1 through R102.4.4. Whenever amendments to the referenced codes have been adopted, each reference to said code shall be considered to reference the amendment as well."
(B) Add new Section R102.4.3 Electrical code to read as follows: "The provisions of the National Electrical Code, NFPA 70, shall apply to the installation of electrical systems, including alterations, repairs, replacement, equipment, appliances, fixtures, fittings and appurtenances thereto. Any reference to NFPA 70 or the Electrical Code shall mean the Electrical Code as adopted. Any reference to chapters 34 through 43 of this code shall mean the Electrical Code as adopted."
(C) Add new Section R102.4.4 TDI Code-Wind design to read as follows: "The wind design of buildings to be placed in the first tier counties along the Texas coast and designated catastrophe areas as defined by the Texas Department of Insurance (TDI) shall also comply with the current effective code and amendments adopted by the TDI, hereafter referred to as the TDI Code. Where conflicts occur between the provisions of this code and the TDI Code as they relate to the requirements for wind design, the more stringent requirements shall apply. Where conflicts occur between the provisions of this code and the editions of the codes specified by the Texas Department of Insurance as they relate to requirements other than wind design, this code shall apply."
(D) Amend Section R102.5 Appendices by adding the following: "Appendices AG, AH, AK, AP, AQ, and AT shall be considered part of this code."
(E) Add new Section R102.8 Moved industrialized housing to read as follows: "Moved industrialized housing shall comply with the requirements of the local building official for moved buildings."
(3) Amend Section R104.1 General by adding the following: "The term building official as used in this code, or as used in the codes and standards referenced in this code, shall mean the Texas Commission of Licensing and Regulation, the executive director of the Texas Department of Licensing and Regulation, the Texas Industrialized Building Code Council, or the local building official in accordance with the powers and duties assigned to each in Texas Occupations Code, Chapter 1202, Industrialized Housing and Buildings."
(4) Amend Section R106.1 Submittal documents by adding the following: "Submittal documents consisting of construction documents, and other data shall be submitted in two or more sets, or in a digital format if allowed by the building official, with each application for a permit. The construction documents shall be prepared by a registered design professional where required by the statutes of the jurisdiction in which the project is to be constructed. Where special conditions exist, the building official is authorized to require additional construction documents to be prepared by a registered design professional. Construction documents depicting the structural design of buildings to be located in hurricane prone regions and in the first tier counties along the Texas coast and designated catastrophe areas as defined by the Texas Department of Insurance (TDI) shall be prepared and sealed by a Texas licensed professional engineer."
(5) Amend Section R110 Certificate of Occupancy as follows.
(A) Amend Section R110.1 Use and change of occupancy to read as follows: "A building or structure shall not be used or occupied in whole or in part, and a change in the existing use or occupancy classification of a building or structure or portion thereof shall not be made, until the local building official has issued a certificate of occupancy in accordance with locally adopted rules and regulations. Issuance of a certificate of occupancy shall not be construed as an approval of a violation of the provisions of this code or of other ordinances of the jurisdiction. Certificates presuming to give authority to violate or cancel the provisions of this code or other ordinances of the jurisdiction shall not be valid."
(B) Amend Section R110.2 Change in use to read as follows: "Changes in the character or use of new industrialized housing are not allowed. Changes in the character or use of existing industrialized housing shall not be made except as authorized by the local building official."
(C) Amend Section R110.3 Certificate issued to read as follows: "The local building official shall issue a certificate of occupancy in accordance with the locally adopted rules and regulations. After the local building official inspects the industrialized house or building and does not find violations of the provisions of this code or other laws that are enforced by the department of building safety, then the local building official shall issue a record of final inspection authorizing the release of the house or building for occupancy."
(D) Delete Items 1 through 9 of Section R110.3.
(E) Amend Section R110.4 Temporary occupancy to read as follows: "The local building official may issue a temporary certificate of occupancy in accordance with locally adopted rules and regulations."
(F) Add new Section R110.6 Industrialized housing installed outside the jurisdiction of a municipality or in a municipality without an inspection department to read as follows: "The installation of industrialized housing installed outside the jurisdiction of a municipality or within a municipality without an inspection department shall comply with the requirements of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70, Administrative Rules Industrialized Housing and Buildings."
(6) Amend Section R301.2 Climatic and geographic design criteria by adding the following sentence: "If no additional criteria have been established, or if there is no local jurisdiction to set the additional criteria, then the additional criteria shall be in accordance with the requirements in the footnotes of Table R301.2(1) and Sections R301.2.1 through R301.8 of this code."
(7) Amend Section R302.2.2 Common walls, to read as follows: "Common walls separating townhouse units shall be assigned a fire-resistance rating in accordance with item (1) or (2) and shall be rated for fire exposure from both sides. Common walls shall extend to and be tight against the exterior sheathing of the exterior walls, or the inside face of exterior walls without stud cavities, and the underside of the roof sheathing. The common wall shared by two townhouse units shall be constructed without plumbing or mechanical equipment, ducts or vents, other than water-filled fire sprinkler piping in the cavity of the common wall. The wall shall be rated for fire exposure from both sides and shall extend to and be tight against exterior walls and the underside of the roof sheathing. Electrical installations shall be in accordance with the National Electrical Code, NFPA 70 as adopted. Penetrations of the membrane of common walls for electrical outlet boxes shall be in accordance with Section R302.4.
(A) Amend Section R302.2.2(1), to read as follows: "Where a fire sprinkler system in accordance with Section P2904 is provided, the common wall shall be not less than a 1-hour fire-resistance-rated wall assembly tested in accordance with ASTM E119 or UL 263 or Section 703.2.2 of the International Building Code."
(B) Amend Section R302.2.2(2), to read as follows: "Where a fire sprinkler system in accordance with Section P2904 is not provided, the common wall shall be not less than a 2-hour fire-resistance-rated wall assembly tested in accordance with ASTM E119 or UL 263 or Section 703.2.2 of the International Building Code."
(C) Amend Section R302.2.2 Common walls - Exception to read as follows: Exception: "Common walls are permitted to extend to and be tight against the inside of the exterior walls if the cavity between the end of the common wall and the exterior sheathing is filled with a minimum of two 2-inch nominal thickness wood studs."
(8) Amend Section R303.10 Required heating to read as follows: "Every dwelling unit shall be provided with heating facilities capable of maintaining a minimum room temperature of 68°F (20°C) at a point 3 feet (914 mm) above the floor and 2 feet (610 mm) from exterior walls in habitable rooms at the design temperature. The installation of one or more portable space heaters shall not be used to achieve compliance with this section."
(9) Amend Section R313 Automatic Fire Sprinkler Systems as follows.
(A) Amend Section R313.1 Townhouse automatic fire sprinkler systems to read as follows: "The common wall between townhouses shall be constructed in accordance with Section R302.2(2) if an automatic residential fire sprinkler system is not installed. The fire-rating of the common wall may be reduced in accordance with Section R302.2(1) if an automatic residential fire sprinkler system is installed in townhouses."
(B) Amend Section R313.2 One- and two-family dwelling automatic fire systems to read as follows: "One- and two-family dwelling automatic fire sprinkler systems. The construction, projections, openings and penetrations of exterior walls of one- and two-family dwellings and accessory buildings shall comply with Table R302.1(1) if an automatic residential fire sprinkler system is not installed. The construction, projections, openings and penetrations of the exterior walls of one- and two-family dwellings and their accessory uses may be constructed in accordance with the requirements of Table R302.1(2) if an automatic residential fire sprinkler system is installed in one- and two-family dwellings."
(10) Amend the second sentence of Section R902.1 Roofing covering materials to read as follows: "Class A, B or C roofing shall be installed.
(11) Amend Chapter 11 [RE]
Energy Efficiency as follows.
(A) Replace N1101.2 Intent with N1101.2 Compliance to read as follows: "Compliance shall be demonstrated by meeting the requirements of the Residential Provisions of the International Energy Conservation Code."
(B) Delete Section N1101.3 through Section N1113.
(12) Delete Part VIII-Electrical, Chapters 34 through 43.
(13) Amend Chapter 44 Referenced Standards as follows.
(A) Delete code sections N1101.5 and N1101.13 as referenced code sections for IECC-15, International Energy Conservation Code.
(B) Add code section R102.4.3 and delete code sections E3401.1, E3401.2, E4301.1, Table E4303.2, E4304.3, and E4304.4 as referenced code sections for NFPA Standard 70-20, National Electrical Code.
(C) Add TDI, Texas Department of Insurance, Windstorm Inspections Program, 333 Guadalupe Street, Austin, Texas 78701 as a promulgating agency, add TDI Code, Building Codes adopted by TDI for the Windstorm Inspection Program, as the referenced standard, and add code sections R102.4.4 and R106.1 as the referenced code sections.
(14) Amend Section U101.1 General to read as follows: "These provisions shall be applicable for new construction where solar-ready provisions are provided."
(e) The 2021 International Fuel Gas Code shall be amended as follows.
(1) Amend Section 101 General as follows.
(A) Amend Section 101.1 Title to read as follows: "These regulations shall be known as the Fuel Gas Code of the Texas Industrialized Housing and Buildings Program, hereinafter referred to as 'this code.'"
(B) Amend Section 101.2 Scope by adding the following: "Where conflicts occur between the provisions of this code and the provisions of Texas Occupations Code, Chapter 1202, Industrialized Housing and Buildings, or the provisions of 16 Texas Administrative Code, Chapter 70, rules governing the Texas Industrialized Housing and Buildings Program, the provisions of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70 shall control."
(2) Amend Section 102 Applicability as follows.
(A) Amend Section 102.4 Additions, alterations or repairs to read as follows: "The provisions of the International Existing Building Code shall apply to all matters governing the repair, alterations, or additions of existing previously occupied industrialized buildings that are designed to be transported from one commercial site to another commercial site. Additions, alterations, or repairs shall not cause an existing installation to become unsafe, hazardous, or overloaded."
(B) Amend Section 102.5 Change in occupancy by adding the following to the beginning of the section: "The provisions of the International Existing Building Code shall apply to all matters governing a change in the occupancy of existing previously occupied industrialized buildings that are designed to be transported from one commercial site to another commercial site."
(C) Amend Section 102.7 Moved buildings by replacing the first sentence with the following: "Moved industrialized buildings that bear approved certification decals or insignia, and that may also bear an alteration decal, in accordance with the requirements of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70, and that have not been altered or modified since the decal, insignia, or alteration decal was attached, shall be considered to be in compliance with the current mandatory building codes adopted by the Texas Industrialized Building Code Council."
(D) Amend Section 102.8 Referenced codes and standards by adding the following: "Whenever amendments to the referenced codes have been adopted, each reference to said code shall be considered to reference the amendment as well."
(3) Amend Chapter 8 Referenced Standards by adding ICC Standard IEBC-21, International Existing Building Code, referenced in code sections 102.4 and 102.5.
(f) The 2021 International Mechanical Code shall be amended as follows.
(1) Amend Section 101 General as follows.
(A) Amend Section 101.1 Title to read as follows: "These regulations shall be known as the Mechanical Code of the Texas Industrialized Housing and Buildings Program, hereinafter referred to as 'this code.'"
(B) Amend Section 101.2 Scope by adding the following: "Where conflicts occur between the provisions of this code and the provisions of Texas Occupations Code, Chapter 1202, Industrialized Housing and Buildings, or the provisions of 16 Texas Administrative Code, Chapter 70, rules governing the Texas Industrialized Housing and Buildings Program, the provisions of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70 shall control."
(2) Amend Section 102 Applicability as follows.
(A) Amend Section 102.4 Additions, alterations or repairs to read as follows: "The provisions of the International Existing Building Code shall apply to all matters governing the repair, alterations, or additions of existing previously occupied industrialized buildings that are designed to be transported from one commercial site to another commercial site. Additions, alterations or repairs shall not cause an existing installation to become unsafe, hazardous or overloaded."
(B) Amend Section 102.5 Change in occupancy by replacing the first sentence with the following: "The provisions of the International Existing Building Code shall apply to all matters governing a change in the occupancy of existing previously occupied industrialized buildings that are designed to be transported from one commercial site to another commercial site."
(C) Amend Section 102.7 Moved buildings by replacing the first sentence with the following: "Moved industrialized buildings that bear approved certification decals or insignia, and that may also bear an alteration decal, in accordance with the requirements of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70, and that have not been altered or modified since the decal, insignia, or alteration decal was attached, shall be considered to be in compliance with the current mandatory building codes adopted by the Texas Industrialized Building Code Council."
(D) Amend Section 102.8 Referenced codes and standards by adding the following: "Whenever amendments to the referenced codes have been adopted, each reference to said code shall be considered to reference the amendment as well."
(3) Amend Chapter 15 Referenced Standards by adding ICC Standard IEBC-21, International Existing Building Code, referenced in code sections 102.4 and 102.5.
(g) The 2021 International Plumbing Code shall be amended as follows.
(1) Amend Section 101 General as follows.
(A) Amend Section 101.1 Title to read as follows: "These regulations shall be known as the Plumbing Code of the Texas Industrialized Housing and Buildings Program, hereinafter referred to as 'this code.'"
(B) Amend Section 101.2 Scope by adding the following: "Where conflicts occur between the provisions of this code and the provisions of Texas Occupations Code, Chapter 1202, Industrialized Housing and Buildings, or the provisions of 16 Texas Administrative Code, Chapter 70, rules governing the Texas Industrialized Housing and Buildings Program, the provisions of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70 shall control."
(2) Amend Section 102 Applicability as follows.
(A) Amend Section 102.4 Additions, alterations or repairs by replacing the first sentence with the following: "The provisions of the International Existing Building Code shall apply to all matters governing the repair, alterations, or additions of existing previously occupied industrialized buildings that are designed to be transported from one commercial site to another commercial site."
(B) Amend Section 102.5 Change in occupancy by adding the following to the beginning of the section: "The provisions of the International Existing Building Code shall apply to all matters governing a change in the occupancy of existing previously occupied industrialized buildings that are designed to be transported from one commercial site to another commercial site."
(C) Amend Section 102.7 Moved buildings to read as follows: "Moved industrialized buildings that bear approved certification decals or insignia, and that may also bear an alteration decal, in accordance with the requirements of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70, and that have not been altered or modified since the decal, insignia, or alteration decal was attached, shall be considered to be in compliance with the current mandatory building codes adopted by the Texas Industrialized Building Code Council."
(D) Amend Section 102.8 Referenced codes and standards by adding the following: "Whenever amendments to the referenced codes have been adopted, each reference to said code shall be considered to reference the amendment as well."
(3) Amend Section 403 Minimum Plumbing Facilities as follows.
(A) Add new Section 403.7 Industrialized housing and buildings exceptions to read as follows: "Plumbing fixtures for industrialized buildings shall be provided as required by Table 403.1 except as allowed in Sections 403.7.1, 403.7.2 and 403.7.3."
(B) Add new Section 403.7.1 Buildings that are not normally occupied to read as follows: "Buildings, such as equipment or communication shelters, that are not normally occupied or that are only occupied to service equipment, shall not be required to provide plumbing facilities. EXCEPTION: Buildings that are not normally occupied that are also classified as a Group H occupancy must be provided with plumbing facilities required for this type of occupancy such as requirements for emergency showers and eyewash stations."
(C) Add new Section 403.7.2 Other industrialized buildings to read as follows: "All other industrialized buildings shall contain the minimum plumbing fixtures required in accordance with Table 403.1 unless the building is a non-site specific building and the plans and the data plate contain a special condition/limitation note that the minimum number of required fixtures shall be provided in another building located on the installation site with a path of travel that does not exceed a distance of 500 feet. The plumbing facilities must be accessible to the occupants of the industrialized building. Non-site specific buildings and special condition limitation notes shall be as defined in the 16 Texas Administrative Code, Chapter 70, rules governing the Texas Industrialized Housing and Buildings Program."
(D) Add new Section 403.7.3 Requirements for service sinks for industrialized buildings to read as follows: "Commercial industrialized buildings with areas of less than or equal to 1,800 square feet shall not be required to contain a service sink provided that the building contains a lavatory and water closet that can be substituted for the service sink. EXCEPTION: A building of less than 1,800 square feet in area without any plumbing facilities shall comply with section 403.7.2.
(4) Amend Chapter 15 Referenced Standards by adding ICC Standard IEBC-21, International Existing Building Code, referenced in code sections 102.4 and 102.5.
(h) The 2015 International Energy Conservation Code shall be amended as follows.
(1) Amend Section C101 Scope and General Requirements and R101 Scope and General Requirements as follows.
(A) Amend Section C101.1 Title and Section R101.1 Title to read as follows: "These regulations shall be known as the Energy Conservation Code of the Texas Industrialized Housing and Buildings Program, hereinafter referred to as "this code."
(B) Amend Section C101.2 Scope and R101.2 Scope by adding the following: "Where conflicts occur between the provisions of this code and the provisions of Texas Occupations Code, Chapter 1202, Industrialized Housing and Buildings, or the provisions of 16 Texas Administrative Code, Chapter 70, rules governing the Texas Industrialized Housing and Buildings Program, the provisions of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70 shall control."
(2) Amend Section C102 Alternate Materials - Method of Construction, Design or Insulating Systems and R102 Alternate Materials, Design and Methods of Construction and Equipment as follows.
(A) Add new Section C102.1.2 Compliance software tools to read as follows: "The following software tools may be used to demonstrate energy code compliance for commercial buildings. The mandatory requirements of this code apply regardless of the software program that is used to demonstrate compliance. 1. The PLLN/DOE software programs COMcheck. 2. Software programs approved by the State Energy Conservation Office. 3. Other software programs if approved by the executive director or the Council."
(B) Add new Section R102.1.2 Compliance software tools to read as follows: "The following software tools may be used to demonstrate energy code compliance for commercial buildings. The mandatory requirements of this code apply regardless of the software program that is used to demonstrate compliance. 1. The PLLN/DOE software programs REScheck. 2. The Texas Energy Systems Laboratory International Code Compliance Calculator, IC3. 3. Software programs approved by the State Energy Conservation Office. 4. Other software programs if approved by the executive director or the Council."
(3) Amend Section C106.1 Referenced codes and standards and Section R106.1 Referenced Codes and Standards by adding the following: "Whenever amendments to the referenced codes have been adopted, each reference to said code shall be considered to reference the amendment as well."
(4) Add new Section C401.2.2 Buildings for state agencies and institutions of higher education to read as follows: "Buildings for state agencies and institutions of higher education shall comply with the energy standard adopted pursuant to Texas Government Code, §447.004 by the State Energy Conservation Office (SECO), and implementation through 34 Texas Administrative Code, Chapter 19, Subchapter C, Energy Conservation Design Standards."
(5) Add new item 4 to Section R401.2 Compliance to read as follows: "Alternative for single-family housing only. A manufacturer or builder may choose to use the energy code with any local amendments or alternative compliance paths that are requested by a municipality, county, or group of counties located in the climate zone where the house will be located and are determined by the Texas Energy Systems Laboratory to be equally or more stringent than the energy code adopted by the State Energy Conservation Office (SECO)."
(6) Add new Section C501.7 Moved buildings to add the following sentence: "Moved industrialized buildings that bear approved certification decals or insignia, and that may also bear an alteration decal, in accordance with the requirements of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70, and that have not been altered or modified since the decal, insignia, or alteration decal was attached, shall be considered to be in compliance with the current mandatory building codes adopted by the Texas Industrialized Building Code Council."
(7) Amend Chapter C6 Referenced Standards and Chapter R6 Referenced Standards as follows.
(A) Add to Chapter C6 PNNL/DOE, Pacific Northwest National Laboratory/Department of Energy Conservation, https://www.energycodes.gov/software-and-webtools, as a promulgating agency, COMcheck Version 4.0.5.2 or later, Commercial Energy Compliance Software as the referenced standard, and section C102.1.2 as the referenced code section.
(B) Add to Chapter R6 PNNL/DOE, Pacific Northwest National Laboratory/Department of Energy Conservation, https://www.energycodes.gov/software-and-webtools, as a promulgating agency, REScheck Version 4.6.3 or later, Residential Energy Compliance Software as the referenced standard, and section R102.1.2 as the referenced code section.
(C) Add to Chapter R6 the Texas Energy Systems Laboratory, 402 Harvey Mitchell Parkway South, College Station, Texas 77845-3581, as a promulgating agency, IC3, v 3.10 or later, International Code Compliance Calculator as the referenced standard, and section R102.1.2 as the referenced code section.
(i) The 2021 International Existing Building Code shall be amended as follows.
(1) Amend Section 101 Scope and General Requirements as follows.
(A) Amend Section 101.1 Title to read as follows: "These regulations shall be known as the Existing Building Code of the Texas Industrialized Housing and Buildings Program, hereinafter referred to as 'this code.'"
(B) Amend Section 101.2 Scope by adding the following: "Where conflicts occur between the provisions of this code and the provisions of Texas Occupations Code, Chapter 1202, Industrialized Housing and Buildings, or the provisions of 16 Texas Administrative Code, Chapter 70, rules governing the Texas Industrialized Housing and Buildings Program, the provisions of Texas Occupations Code, Chapter 1202 and 16 Texas Administrative Code, Chapter 70 shall control."
(2) Amend Section 102 Applicability as follows.
(A) Amend Section 102.4 Referenced codes and standards to read as follows: "The codes and standards referenced in this code shall be considered to be part of the requirements of this code to the prescribed extent of each such reference and as further regulated in Sections 102.4.1 through 102.4.3. Whenever amendments to the referenced codes have been adopted, each reference to said code shall be considered to reference the amendment as well."
(B) Add new Section 102.4.3 Accessibility for existing buildings to read as follows: "Wherever reference elsewhere in this code is made to sections in Chapter 11 of the International Building Code or ICC A117.1, the Texas Accessibility Standards (TAS) of Texas Government Code, Chapter 469, Elimination of Architectural Barriers shall be substituted."
(3) Amend Section 1301.2 Applicability to read as follows: "Existing buildings in which there is work involving additions, alterations or changes of occupancy shall be made to conform to the requirements of this chapter or the provisions of Chapters 6 through 12. The provisions of Sections 1301.2.1 through 1301.2.6 shall apply to existing occupancies that will continue to be, or are proposed to be, in Groups A, B, E, F, I-2, M, R and S. These provisions shall also apply to Group U occupancies where such occupancies are undergoing a change of occupancy or a partial change in occupancy with separations in accordance with Section 1301.2.2. These provisions shall not apply to buildings with occupancies in Group H, I-1, I-3, or I-4."
(4) Amend Chapter 16 Referenced Standards as follows.
(A) Delete the following standard: "ICC A117.1-09, Accessible and Usable Buildings and Facilities."
(B) Amend to read as follows: "TDLR, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711 as a promulgating agency; add 2012 TAS - effective March 2012, Texas Accessibility Standards as adopted under 16 Texas Administrative Code, Chapter 68 as the referenced standard; and add code sections 102.4, 410.8.2, 410.8.3, 410.8.10, 705.1.2, and 705.1.3 as the referenced code sections."
(j) The 2020 National Electrical Code shall be amended as follows.
(1) Amend Article 310.1 Scope to read as follows: "This article covers general requirements for conductors rated up to and including 2000 volt and their type designations, insulations, markings, mechanical strengths, ampacity ratings, and uses. These requirements do not apply to conductors that form an integral part of equipment, such as motors, motor controllers, and similar equipment, or to conductors specifically provided for elsewhere in this Code. Aluminum and copper-clad aluminum shall not be used for branch circuits in buildings classified as a residential occupancy. Aluminum and copper-clad aluminum conductors, of size number 4 AWG or larger, may be used in branch circuits in buildings classified as occupancies other than residential."
(2) Add new Article 545.14, Testing, to read as follows.
(A) "(A) Dielectric Strength Test. The wiring of each modular house, building, or component shall be subjected to a 1-minute, 900-volt, dielectric strength test (with all switches closed) between live parts (including neutral conductor) and the house, building, or component ground. Alternatively, the test shall be permitted to be performed at 1080 volts for 1 second. This test shall be performed after branch circuits are complete and after luminaires or appliances are installed. Exception: Listed luminaires or appliances shall not be required to withstand the dielectric strength test. Exception: A DC dielectric tester can be used as an alternate to the use of an AC dielectric tester. The applied test voltage for testing with a DC tester shall be 1.414 times the value of the equivalent AC test voltage."
(B) "(B) Continuity and Operational Tests and Polarity Checks. Each modular house, building, or component shall be subjected to all of the following: (1) An electrical continuity test to ensure that all exposed electrically conductive parts are properly bonded; (2) An electrical operational test to demonstrate that all equipment, except water heaters and electric furnaces, are connected and in working order; (3) Electrical polarity checks of permanently wired equipment and receptacle outlets to determine that connections have been properly made."
(3) Remove Section 210.8(F).
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2024.
TRD-202400511
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: March 1, 2024
Proposal publication date: September 22, 2023
For further information, please call: (512) 463-7750
The Texas Commission of Licensing and Regulation (Commission) adopts amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 121, Subchapter A, §121.1; Subchapter B, §§121.20 - 121.22, 121.27, and 121.30; Subchapter C, §121.65; Subchapter D, §121.71 and §121.75; and Subchapter G, §121.90 and §121.95; new rules at Subchapter B, §121.26; Subchapter D, §§121.70, 121.72-121.74; Subchapter E, §§121.76-121.81; and Subchapter F, §121.85; and the repeal of existing rules at §§121.23, 121.24, 121.26, 121.50, 121.70, and 121.80 regarding the Behavior Analyst program, and the addition of subchapter titles to the existing chapter, without changes to the proposed text as published in the September 8, 2023, issue of the Texas Register (48 TexReg 4964). These rules will not be republished. Subchapter A, §121.10 is adopted with changes to the proposed text and will be republished.
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 121, implement Texas Occupations Code, Chapters 51, 111, and 506.
The Department is adopting amendments to Chapter 121 in response to its required four-year rule review and to reorganize its guidelines for the use of telehealth by behavior analysts. The amendments also update rule provisions to reflect current Department procedures, restructure the existing rules for better organization, and replace outdated rule language.
The Department published a Notice of Intent to Review its behavior analyst rules as part of the four-year rule review required under Government Code §2001.039 in the April 29, 2022, issue of the Texas Register (47 TexReg 2575). The Department reviewed these rules and determined that the rules were still essential in implementing the statutory provisions of Texas Occupations Code, Chapter 506, Behavior Analysts. The Commission re-adopted the rules in their existing form in the November 11, 2022, issue of the Texas Register (47 TexReg 7567).
The Department received public comments from the Texas Association for Behavior Analysis, Public Policy Group (TxABA PPG) in response to its Notice of Intent to Review. The re-adoption notice stated that the Department would address those public comments along with the suggested changes resulting from the Department's own review in a future proposed rulemaking. The Department initiated that rulemaking following the readoption of the rules at the conclusion of the Rule Review process.
The proposed rules were presented to and discussed by the Behavior Analyst Advisory Board at its meeting on December 1, 2022. The Advisory Board did not make any changes to the proposed rules and voted to recommend that the proposed rules be published in the Texas Register for public comment. The proposed rules were published in the January 6, 2023, issue of the Texas Register (48 TexReg 9). The Department received public comments from the Texas Medical Association (TMA) in response to that publication of the proposed rules. After the public comment period concluded, the department withdrew the proposed rules to make further amendments and updates, including amendments related to the public comments received, and re-proposed the rules. The Department's responses to the public comments submitted are specifically addressed in this adoption.
The proposed rules were presented to and discussed by the Behavior Analyst Advisory Board at its meeting on August 15, 2023. The Advisory Board agreed to remove §121.77(b) as unnecessary and made no other changes to the proposed rules. The Advisory Board voted and recommended that the proposed rules with the deletion of §121.77(b) be published in the Texas Register for public comment.
SECTION-BY-SECTION SUMMARY
The adopted rules create new Subchapter A, General Provisions.
The adopted rules amend §121.1, Authority, to include Texas Occupations Code, Chapter 111.
The adopted rules amend §121.10, Definitions, to move definitions related to telehealth to Subchapter E, Telehealth. A definition for "applied behavior analysis" is added in response to a comment from TxABA PPG recommending this change. Other amendments clarify terms and remove definitions that are not used throughout the chapter.
The adopted rules create new Subchapter B, Licensing Requirements.
The adopted rules amend outdated language in §121.20, Applications, and relocate provisions to §121.20 from §121.23, Examinations, which was repealed.
The adopted rules amend outdated language in §121.21, Behavior Analyst Licensing Requirements, and relocate provisions to this section from §121.24, Educational Requirements, which was repealed.
The adopted rules amend outdated rule language in §121.22, Assistant Behavior Analyst Licensing Requirements, and move provisions to this section from repealed §121.24, Educational Requirements.
The TxABA PPG in its public comments during the rule review process noted that certification by the Behavior Analyst Certification Board (BACB), or its equivalent, is required to obtain and maintain licensure as a Licensed Behavior Analyst or Licensed Assistant Behavior Analyst. TxABA PPG requested that the department clarify the meaning of equivalent and spell out education and experience requirements of an equivalent certification (proposed §§121.20-121.22).
The Department's response is that the Act defines a certifying entity as "the nationally accredited Behavior Analyst Certification Board or another entity that is accredited by the National Commission for Certifying Agencies or the American National Standards Institute to issue credentials in the professional practice of applied behavior analysis and approved by the department." Further, a behavior analyst or assistant behavior analyst must be certified as a Board Certified Behavior Analyst, a Board Certified Behavior Analyst--Doctoral, or a Board Certified Assistant Behavior Analyst, or have an equivalent certification issued by the certifying entity and meet the requirements specified in §§ 506.252 and 506.253 or 506.254 of the Act, as applicable, and Subchapter B of the rules. Those requirements include a BACB certification or an equivalent certification by an accredited, approved certifying entity, which requires compliance with the certifying entity's educational, examination, professional, ethical, and disciplinary standards.
One need only examine the BACB certification requirements to determine what an equivalent standard should include. Equivalent does not mean identical, so evaluation of the certification is necessary. The department has been given the discretion to compare the accreditation and standards of a certifying entity to those of the BACB to approve or disapprove the certification it issues. Individuals who meet the requirements of the approved certifying entity and are issued a credential that has been approved as utilizing standards equivalent to those of the BACB may apply for licensure. The department does not evaluate individuals' qualifications other than to verify that they satisfy the requirements to obtain the license that are provided in the Act and the rules.
Once a certification that has been issued by an approved entity is deemed equivalent, then those who have obtained that certification may apply without having their certification re-examined. A certification issued by an approved certifying entity may be reevaluated at any time to ascertain that the standards for its issuance continue to be equivalent to those of the BACB, which may change over time. The discretion provided to the Department to evaluate certifying entities and the certifications they issue provides flexibility to evaluate the credential as a whole, given that each particular standard or requirement is unlikely to be identical to those of the BACB. The Department reserves the opportunity to elaborate more specifically regarding potential certifying entities and the standards for the certifications they issue as evaluation of additional certifying entities occurs but has not specified equivalent requirements at this time.
The adopted rules repeal §121.23, Examinations. The text is relocated to the adopted §121.20.
The adopted rules repeal §121.24, Educational Requirements. The text is relocated to the adopted §121.21 and §121.22.
The adopted rules repeal §121.26, Renewal, and replace it with new adopted §121.26, Renewal, due to extensive changes. The adopted section clarifies the requirements for renewal, including term of license, amends outdated rule language, and removes a provision preventing renewal of the license of a person who is in violation of rules or law at the time of renewal.
The adopted rules amend §121.27, Inactive Status, by updating language and adding that there is no fee to move from an active to inactive license status.
The adopted rules amend §121.30, Exemptions, to align the rule with statutory provisions.
The adopted rules repeal §121.50, Reporting Requirements. Text is updated and relocated to the adopted new §121.74, Reporting Requirements.
The adopted rules create new Subchapter C, Behavior Analyst Advisory Board.
The adopted rules amend §121.65, Membership, to update language.
The adopted rules create new Subchapter D, Responsibilities of License Holders.
The adopted rules repeal §121.70, Administrative Practice Responsibilities of License Holders, and replace it with new adopted §121.70, Administrative Practice Responsibilities of License Holders, due to extensive changes. The adopted rules remove duplicative provisions from the section that are included in §121.95; move license display requirements to new §121.72; move recordkeeping requirements to §121.73; and relocate telehealth requirements to Subchapter E, Telehealth.
The adopted rules amend §121.71, Professional Services Practice Responsibilities of License Holders, to update language and to move telehealth requirements to Subchapter E, Telehealth.
The adopted rules add new §121.72, Display of License, which relocates license display provisions and limitations from §121.70.
The adopted rules add new §121.73, Recordkeeping Requirements, which relocates requirements from §121.70 and clarifies who owns and is responsible for maintaining patient records. In its public comments the TMA recommended that the reference to "providers" in §121.73(a)(2) be replaced with "license holder." The department has made this change because the term "provider" is used only in Subchapter E, Telehealth, to refer to license holders who provide telehealth services. In the balance of the rules, as in §121.73(a)(2), the term "license holder" is appropriate.
The adopted rules add new §121.74, Reporting Requirements, which relocates the rules from repealed §121.50 with updates.
The adopted rules amend outdated language in §121.75, Code of Ethics.
The adopted rules create new Subchapter E, Telehealth.
The adopted rules add new §121.76, Definitions Relating to Telehealth, which relocates telehealth definitions from §121.10 and aligns them with other department health professions programs. The TMA in its public comments in response to the earlier proposal of these rules requested that the proposed definition of "telehealth" in §121.76 be amended to incorporate the limitations contained in the underlying definition in Chapter 111, Occupations Code. Specifically, the TMA recommended the following definition:
Telehealth--The use of telecommunications and telecommunications technologies for the exchange of information from one site to another for the provision of behavior analysis services to a client from a provider, including for assessments, interventions, or consultations, to the extent permitted by the definition of "telehealth service" in Occupations Code Chapter 111.001(3) (citation corrected).
The department agrees that behavior analysis license holders, like all health professionals providing telehealth services in Texas, are subject to Occupations Code, Chapter 111, including the definition of "telehealth service." The Act does not define the term, but Chapter 51 directly refers to the definition in Chapter 111. The definition in the rule has been amended to more closely align with the Chapter 111 definition while remaining tailored to the practice of telehealth by behavior analysis license holders. In addition, Chapter 111 has been added to the citation of statutory authority under which the behavior analyst rules are promulgated.
The adopted rules add new §121.77, Service Delivery Methods, which relocates delivery methods defined in §121.10 and §121.70 and aligns them with other department health professions programs.
The adopted rules add new §121.78, Technology and Equipment Requirements, which relocates telecommunications requirements related to equipment and competencies from §121.70 and §121.71.
The adopted rules add new §121.79, License Holder Responsibilities for Providing Telehealth Services and Using Telehealth, which relocates responsibilities for providers from §121.70 and §121.71 and aligns them with other department health professions programs.
The adopted rules add new §121.80, Use of Facilitators with Telehealth, which moves facilitator requirements for telehealth from §121.71.
The adopted rules add new §121.81, Client Contacts and Communications, and relocates requirements regarding notifications to clients and complaint information from §121.70.
The adopted rules repeal §121.80, Fees, which has been moved to new Subchapter F.
The adopted rules create new Subchapter F, Fees.
The adopted rules add new §121.85, Fees, relocating the text from §121.80 without substantive changes.
The adopted rules create new Subchapter G, Enforcement.
The adopted rules amend §121.90, Basis for Disciplinary Action, to include a reference to the Chapter 100 rules and to provide more concise language for disciplinary actions that can be taken against a person.
The adopted rules amend §121.95, Complaints, adding a requirement to include an authorized representative in the complaint process and updating rule language.
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 8, 2023, issue of the Texas Register (48 TexReg 4964). The public comment period closed on October 9, 2023. The Department did not receive any comments from interested parties on the proposed rules during the comment period that closed on October 9, 2023. The public comments received in response to the earlier proposals are discussed in the justification for this rulemaking.
ADVISORY BOARD RECOMMENDATIONS AND COMMISSION ACTION
The Behavior Analyst Advisory Board met on December 11, 2023, to discuss the proposed rules and any public comments received. The Advisory Board recommended that the Commission adopt the proposed rules as published in the Texas Register. At its meeting on January 30, 2024, the Commission adopted the proposed rules as recommended by the Advisory Board.
16 TAC §§121.23, 121.24, 121.26, 121.50, 121.70, 121.80
STATUTORY AUTHORITY
The adopted repeals are adopted under Texas Occupations Code, Chapters 51, 111, and 506, 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 adopted repeals are those set forth in Texas Occupations Code, Chapters 51, 111, and 506. No other statutes, articles, or codes are affected by the adopted repeals.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2024.
TRD-202400521
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: February 29, 2024
Proposal publication date: September 8, 2023
For further information, please call: (512) 475-4879
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapters 51, 111, and 506, 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, and 506. No other statutes, articles, or codes are affected by the adopted rules.
§121.10.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Act--Texas Occupations Code, Chapter 506.
(2) Advertising--The offer to perform behavior analysis services by an individual or business, including utilizing the titles "licensed behavior analyst" or "licensed assistant behavior analyst."
(3) Advisory Board--The Behavior Analyst Advisory Board.
(4) Applicant--A person who applies for a license to use the title "licensed behavior analyst" or "licensed assistant behavior analyst" or to practice behavior analysis.
(5) Applied behavior analysis--The practice of applied behavior analysis is defined and described in the Act, §506.003.
(6) Authorized representative--A person or entity that is legally authorized to represent the interests of a client and perform functions including making decisions about behavior analysis services.
(7) Behavior Analyst Certification Board (BACB)--A certifying entity for persons practicing behavior analysis.
(8) Client--A person who is:
(A) an individual receiving behavior analysis services from a license holder;
(B) an authorized representative of the individual receiving behavior analysis services; or
(C) an individual, institution, school, school district, educational institution, agency, firm, corporation, organization, government or governmental subdivision, business trust, estate, trust, partnership, association, or any other legal entity not receiving behavior analysis services for its own treatment purposes.
(9) Commission--The Texas Commission of Licensing and Regulation.
(10) Department--The Texas Department of Licensing and Regulation.
(11) Direct observation--A method of data collection that consists of observing the object of study in a particular situation or environment.
(12) Executive director--The executive director of the department.
(13) Indirect supervision--Supervision of a person who performs behavior analysis services but which does not occur when services are being provided to a client. This may include behavioral skills training and delivery of performance feedback; modeling technical, professional, and ethical behavior; guiding behavioral case conceptualization, problem-solving, and decision-making repertoires; review of written materials such as behavior programs, data sheets, or reports; oversight and evaluation of the effects of behavioral service delivery; and ongoing evaluation of the effects of supervision.
(14) License--A license issued under the Act authorizing a person to use the title "licensed behavior analyst" or "licensed assistant behavior analyst" or to practice behavior analysis.
(15) License holder--A person who has been issued a license in accordance with the Act to use the title "licensed behavior analyst" or "licensed assistant behavior analyst" or to practice behavior analysis.
(16) Multiple relationship--A personal, professional, business, or other type of interaction by a license holder with a client or with a person or entity involved with the provision of behavior analysis services to a client that is not related to, or part of, the behavior analysis services.
(17) Service agreement--A signed written contract for behavior analysis services. A service agreement includes responsibilities and obligations of all parties and the scope of behavior analysis services to be provided. A service agreement may be identified by other terms including treatment agreement, Memorandum of Understanding (MOU), or Individualized Education Program (IEP).
(18) Supervision--Supervision of a person who performs behavior analysis services, and may include both direct and indirect supervision. A license holder may engage in direct supervision or indirect supervision in-person and on-site, through telehealth, or in another manner approved by the license holder's certifying entity.
(19) Telehealth--See definitions in Subchapter E. Telehealth.
(20) Treatment plan--A written behavior change program for an individual client. A treatment plan includes consent, objectives, procedures, documentation, regular review, and exit criteria. A treatment plan may be identified by other terms including Behavior Intervention Plan, Behavior Support Plan, Positive Behavior Support Plan, or Protocol.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2024.
TRD-202400514
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: February 29, 2024
Proposal publication date: September 8, 2023
For further information, please call: (512) 475-4879
16 TAC §§121.20 - 121.22, 121.26, 121.27, 121.30
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapters 51, 111, and 506, 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, and 506. No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2024.
TRD-202400515
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: February 29, 2024
Proposal publication date: September 8, 2023
For further information, please call: (512) 475-4879
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapters 51, 111, and 506, 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, and 506. No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2024.
TRD-202400516
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: February 29, 2024
Proposal publication date: September 8, 2023
For further information, please call: (512) 475-4879
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapters 51, 111, and 506, 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, and 506. No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2024.
TRD-202400517
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: February 29, 2024
Proposal publication date: September 8, 2023
For further information, please call: (512) 475-4879
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapters 51, 111, and 506, 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, and 506. No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2024.
TRD-202400518
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: February 29, 2024
Proposal publication date: September 8, 2023
For further information, please call: (512) 475-4879
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapters 51, 111, and 506, 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, and 506. No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2024.
TRD-202400519
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: February 29, 2024
Proposal publication date: September 8, 2023
For further information, please call: (512) 475-4879
STATUTORY AUTHORITY
The adopted rules are adopted under Texas Occupations Code, Chapters 51, 111, and 506, 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 adopted rules are those set forth in Texas Occupations Code, Chapters 51, 111, and 506. No other statutes, articles, or codes are affected by the adopted rules.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 9, 2024.
TRD-202400520
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Effective date: February 29, 2024
Proposal publication date: September 8, 2023
For further information, please call: (512) 475-4879