Proposed Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 12. TEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS

CHAPTER 364. REQUIREMENTS FOR LICENSURE

The Texas Board of Occupational Therapy Examiners proposes amendments to 40 Texas Administrative Code §364.5, concerning Recognition of Out-of-State License of Military Spouse. The amendments add military service members to those eligible for the recognition of an out of state license and make further changes regarding the recognition pursuant to changes required by Senate Bill 422 of the 88th Regular Legislative Session. In addition, the amendments remove from the section information concerning an address of record pursuant to changes required by SB 510 of the 88th Regular Legislative Session. The amendments also include adding that individuals provide the Board phone number and mailing address information and update the Board of related changes and include further cleanups and/or clarifications.

Senate Bill 422 requires the adoption of rules to implement changes to Texas Occupations Code §55.0041. The changes, which take effect September 1, 2023, will add military service members to those eligible to practice without obtaining the applicable occupational license. The bill also requires that not later than the 30th day after the date a military service member or military spouse submits certain information, a state agency verify the military service member's or military spouse's license and that in the event of a divorce or similar event that affects a person's status as a military spouse, the spouse may continue to engage in the business or occupation under the authority of the section until the third anniversary of the date the spouse received the confirmation described by the section. Amendments to §364.5 implement these requirements.

Senate Bill 510 adds Texas Government Code §552.11765, Confidentiality of Certain Information Maintained by State Licensing Authority. The new section, which takes effect September 1, 2023, includes that applicants', licensees', and former licensees' home addresses are confidential and not available public information. Pursuant to such, the Board proposes amendments to §364.5, as well as 40 Texas Administrative Code §369.2, Changes of Name or Contact Information, and §370.1, License Renewal, to remove information concerning the election an individual may make to designate a home, mailing, or business address as the address available to the public.

An additional change to §364.5 concerns adding the requirement that individuals seeking the authorization described by the section provide the Board with their phone number and mailing address and notify the Board of changes to such. The change is proposed to enhance the Board's ability to communicate with individuals who are seeking or who have received the authorization and remain apprised of changes to such information. The change will also enhance the consistency of the Board's rules, as prior rulemaking required the same for applicants for a license and licensees.

FISCAL NOTE ON STATE AND LOCAL GOVERNMENTS

Ralph A. Harper, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal impact to state or local governments as a result of enforcing or administering these amendments as proposed under Texas Government Code §2001.024(a)(4) because the amendments do not impose a cost on state or local governments.

LOCAL EMPLOYMENT IMPACT

Mr. Harper has determined that the proposed amendments would not impact a local economy. Therefore, a local employment impact statement is not required under Texas Government Code §2001.022 and §2001.024(a)(6).

PUBLIC BENEFIT AND COST NOTE

Mr. Harper has determined under Texas Government Code §2001.024(a)(5) that for each of the first five years the proposed amendments would be in effect, the public benefit will be the enhanced ability of the Board to communicate with those seeking or who have obtained the authorization and the conformance of Board rules to related statutes in Texas Occupations Code Chapter 55 and Texas Government Code Chapter 552. There would not be an additional anticipated economic cost to persons required to comply with the proposed amendments.

ECONOMIC IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

Mr. Harper has determined there would be no costs or adverse economic effects on small businesses, micro-businesses, or rural communities. Therefore, no economic impact statement or regulatory flexibility analysis is required under Texas Government Code §2006.002.

TAKINGS IMPACT ASSESSMENT

The agency has determined that no private real property interests are affected by these proposed amendments and that these amendments do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, these amendments do not constitute a taking under Texas Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT

The agency has determined under Texas Government Code §2001.0221 that during the first five years the rule would be in effect:

(1) the rule will not create or eliminate a government program;

(2) the rule will not require the creation of new employee positions or the elimination of existing employee positions;

(3) the rule will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rule will not require an increase or decrease in fees paid to the agency;

(5) the rule will not create a new regulation;

(6) the rule will expand an existing regulation;

(7) the rule will increase the number of individuals subject to the rule's applicability; and

(8) the rule will neither positively nor adversely affect this state's economy.

COSTS TO REGULATED PERSONS

The agency has determined that the rule does not impose a cost on regulated persons. This rule is not subject to Texas Government Code §2001.0045 because the rule does not impose a cost, is necessary to protect the health, safety, and welfare of the residents of this state, and is necessary to implement legislation as Senate Bill 422 requires the adoption of rules to implement the section and amendments to the section are required to implement further changes made by Senate Bill 422 and Senate Bill 510.

ENVIRONMENTAL IMPACT STATEMENT

The agency has determined that the proposed amendments do not require an environmental impact analysis because the amendments are not major environmental rules under Texas Government Code §2001.0225.

PUBLIC COMMENT

Comments on the proposed amendments may be submitted in writing to Lea Weiss, Occupational Therapy Coordinator, Texas Board of Occupational Therapy Examiners, 1801 Congress Ave. Ste. 10.900, Austin, Texas 78701 or to lea@ptot.texas.gov within 30 days following the publication of this notice in the Texas Register. It is requested when sending a comment that individuals include the rule section to which the comment refers and that comments sent by email include "Public Comment" in the email's subject line.

STATUTORY AUTHORITY

The amendments are proposed under Texas Occupations Code §454.102, Rules, which authorizes the Board to adopt rules to carry out its duties under chapter 454; Texas Occupations Code §55.0041, Recognition of Out-of-State License of Military Service Members and Military Spouses, amended by Senate Bill 422 and effective September 1, 2023, which requires the Board to adopt rules to implement the legislation; and under Texas Government Code §552.11765, Confidentiality of Certain Information Maintained by State Licensing Authority, enacted by Senate Bill 510 and effective September 1, 2023, which includes that certain address information is confidential and not available public information.

CROSS REFERENCE TO STATUTE

The amendments implement Texas Occupations Code §55.0041, Recognition of Out-of-State License of Military Service Member and Military Spouses, amended by SB 422 and effective September 1, 2023, and Texas Government Code §552.11765, Confidentiality of Certain Information Maintained by State Licensing Authority, enacted by Senate Bill 510 and effective September 1, 2023.

§364.5.Recognition of Out-of-State License of Military Service Members and Military Spouses [~~Spouse~~].

(a) Notwithstanding any other law, a military service member or [A] military spouse may engage in the practice of occupational therapy without obtaining the applicable occupational therapy license if the service member or [~~military~~ ] spouse is currently licensed in good standing by another jurisdiction of the U.S. that has licensing requirements that are substantially equivalent to the requirements for the license in this state.

(b) Before engaging in the practice of occupational therapy, the military service member or military spouse must:

(1) notify the Board in writing of the following:

(A) the service member's or [~~military~~] spouse's intent to practice in this state;

(B) the service member's or [~~military~~] spouse's full name and any previous last names, social security number, date of birth, phone number, business phone number, residential address, business address, mailing address, and email address[~~, and a chosen address of record~~];

(C) the license type, license number, and jurisdiction in which the service member or [~~military~~] spouse is currently licensed in good standing; and

(D) a list of all jurisdictions in which the service member or [~~military~~] spouse has held or currently holds a license with the license type, license number, and license expiration date of each;

(2) submit to the Board proof of the service member's or [~~military~~] spouse's residency in this state and a copy of the service member's or [~~military~~] spouse's military identification card. Proof of residency may include a copy of the permanent change of station order for the military service member or, with respect to a military spouse, the permanent change of station order for the military service member to whom the spouse is married; and

(3) receive from the Board written confirmation that:

(A) the Board has verified the service member's or [~~military~~] spouse's license in the other jurisdiction; and

(B) the service member or [~~military~~] spouse is authorized to engage in the practice of occupational therapy in accordance with this section.

(c) The military service member or military spouse shall comply with all other [~~Board~~] laws and regulations applicable to the practice of occupational therapy in this state, including all other laws and regulations in the Occupational Therapy Practice Act and the Texas Board of Occupational Therapy Examiners Rules. The service member or [~~military~~] spouse may be subject to revocation of the authorization described by subsection (b)(3)(B) of this section for failure to comply with these [~~Board~~] laws and regulations and the Board may notify any jurisdictions in which the service member or [~~military~~ ] spouse is licensed of the revocation of such.

(d) A military service member or military spouse may engage in the practice of occupational therapy under the authority of this section only for the period during which the military service member or, with respect to a military spouse, the military service member to whom the [~~military~~] spouse is married is stationed at a military installation in this state but not to exceed three years from the date the service member or [~~military~~ ] spouse receives the confirmation described by subsection (b)(3) of this section. [~~During this authorization period, the military spouse must:~~]

~~[(1) maintain a current license in good standing in another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the license in this state;]~~

~~[(2) update the Board of any changes to information as specified in subsections (b)(1)(B)-(C) and (b)(2) of this section within 30 days of such change(s); and]~~

~~[(3) notify the Board within 30 days of any disciplinary action taken against the military spouse by another jurisdiction.]~~

(e) Notwithstanding subsection (d) of this section, in the event of a divorce or similar event that affects a person's status as a military spouse, the spouse may continue to engage in the practice of occupational therapy under the authority of this section until the third anniversary of the date the spouse received the confirmation described by subsection (b)(3) of this section.

(f) During the authorization period described by subsection (b)(3)(B) of this section, the military service member or military spouse must:

(1) maintain a current license in good standing in another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the license in this state;

(2) update the Board of any changes to information as specified in subsections (b)(1)(B)-(C) and (b)(2) of this section within 30 days of such change(s); and

(3) notify the Board within 30 days of any disciplinary action taken against the service member or spouse by another jurisdiction.

(g) [~~(e)~~] The Board will identify, with respect to each type of license issued by the Board, the jurisdictions that have licensing requirements that are substantially equivalent to the requirements for the license in this state; and not later than the 30th day after the receipt of the items described by subsections (b)(1)-(2) of this section, the Board shall verify that the military service member or military spouse is licensed in good standing in a jurisdiction of the U.S. that has licensing requirements that are substantially equivalent to the requirements for the license in this state. [~~the Board shall verify that a military spouse is licensed in good standing in the jurisdiction upon receipt of the items described by subsection (b)(1)-(2) of this section.~~]

(h) [~~(f)~~] In this section, "military service member" and "military spouse" have the meaning as defined in Chapter 55, Texas Occupations Code, §55.001.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 21, 2023.

TRD-202303069

Ralph A. Harper

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: October 1, 2023

For further information, please call: (512) 305-6900

CHAPTER 368. OPEN RECORDS

40 TAC §368.1

The Texas Board of Occupational Therapy Examiners proposes amendments to 40 Texas Administrative Code §368.1, Open Records. The proposed amendments concern updating the references in the section, including to update information regarding the setting of costs for the copying of records due to the abolishment of the General Services Commission. The amendments also clarify that state or federal statutes in addition to Texas Government Code Chapter 552 may affect the disclosure of certain information and add information regarding the use of a designee for the Executive Director, the agency's open records coordinator. The amendments include further cleanups, including those concerning aligning the section with Texas Government Code Chapter 552.

The amendments will improve the accuracy of the information in the section, clarify that statutes other than those contained in Chapter 552 may affect the agency's disclosure of information, and align the section more closely with Texas Government Code Chapter 552.

FISCAL NOTE ON STATE AND LOCAL GOVERNMENTS

LOCAL EMPLOYMENT IMPACT

PUBLIC BENEFIT AND COST NOTE

Mr. Harper has determined under Texas Government Code §2001.024(a)(5) that for each of the first five years the proposed amendments would be in effect, the public benefit will be the conformance of the Board's regulations to Texas Government Code Chapter 552 and the improved accuracy of the Board's rules. There would not be an additional anticipated economic cost to persons required to comply with the proposed amendments.

ECONOMIC IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

TAKINGS IMPACT ASSESSMENT

GOVERNMENT GROWTH IMPACT STATEMENT

The agency has determined under Texas Government Code §2001.0221 that during the first five years the rule would be in effect:

(1) the rule will not create or eliminate a government program;

(2) the rule will not require the creation of new employee positions or the elimination of existing employee positions;

(3) the rule will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rule will not require an increase or decrease in fees paid to the agency;

(5) the rule will not create a new regulation;

(6) the rule will expand an existing regulation;

(7) the rule will not increase or decrease the number of individuals subject to the rule's applicability; and

(8) the rule will neither positively nor adversely affect this state's economy.

COSTS TO REGULATED PERSONS

ENVIRONMENTAL IMPACT STATEMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The amendments are proposed under Texas Occupations Code §454.102, Rules, which authorizes the Board to adopt rules to carry out its duties under chapter 454.

CROSS REFERENCE TO STATUTE

The amendments implement Texas Government Code Chapter 552, which concerns the availability of information to the public.

§368.1.Open Records.

(a) Open Records Requests. Inspection of Public Records under the Texas Public information Act, Texas Government Code Chapter 552, provides [~~Open Records Act, Texas Civil Statutes, Article 8890, §9(c) and (d), provide~~] that public information is [~~all of the records of the board are public records and are~~] available for public inspection during normal business hours except [~~that~~] investigative files and other records of the Board made [~~board are~~] confidential by law. In addition, the exceptions to disclosure in Texas Government Code Chapter 552 or other state or federal statutes [~~Civil Statutes, Article 6252-17a,~~] may protect certain information. This rule is promulgated pursuant to Texas Government Code Chapter 552 [~~Article 6252-17a~~] to establish a records review process that is efficient, safe, and timely to the public and to the agency.

(1) Requests must be in writing and reasonably identify the records requested.

(2) Records access will be by appointment only.

(3) Records access is available only during the regular business hours of the agency.

(4) A review of public information may be by physical access or by duplication at the requestor's option. [Unless confidential information is involved, review may be by physical access or by duplication at the requestor's option. Any person, however, whose request would be unduly disruptive to the ongoing business of the office may be denied physical access and will be provided the option of receiving copies. Costs of duplication shall be the responsibility of the requesting party in accordance with the established board fee policy, payable at the time of receipt of records, if in person; or in advance, if by mail. The board may, in its discretion, waive fees if it is in the public interest to do so.]

(5) When the safety of any public record is at issue, physical access may be denied and the records will be provided by duplication as previously described.

(6) Confidential files will not be made available for inspection or for duplication except under certain circumstances, e.g., court order.

(7) All open records request appointments will be referred to the Executive Director [~~executive director~~] or the Executive Director's designee before complying with a request.

(8) The open records coordinator for the agency is the Executive Director [~~executive director~~] and the alternate is the Executive Director's [~~director's~~] designee.

(b) Charges for Copies of Public Records. The Board will calculate and collect charges in accordance with Texas Government Code Chapter 552 and rules promulgated by the Attorney General under Texas Government Code §552.262.

[(b) Charges for Copies of Public Records. The charge to any person requesting reproductions of any readily available record of the Texas Board of Occupational Therapy Examiners will be the charges established by the General Services Commission.]

(c) The Board [~~board~~] may waive these charges if there is a public benefit. The Executive Director [~~executive director of the Executive Council of Physical Therapy and Occupational Therapy Examiners~~] or the Executive Director's designee is authorized to determine whether a public benefit exists on a case-by-case basis.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 21, 2023.

TRD-202303070

Ralph A. Harper

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: October 1, 2023

For further information, please call: (512) 305-6900

CHAPTER 369. DISPLAY OF LICENSES

40 TAC §369.2

The Texas Board of Occupational Therapy Examiners proposes amendments to 40 Texas Administrative Code §369.2, Changes of Name or Contact Information. The proposed amendments concern removing from the section information concerning an address of record pursuant to changes required by Senate Bill 510 of the 88th Regular Legislative Session.

Senate Bill 510 adds Texas Government Code §552.11765, Confidentiality of Certain Information Maintained by State Licensing Authority. The bill, which takes effect September 1, 2023, includes that applicants', licensees', and former licensees' home addresses are confidential and not available public information. Pursuant to such, the Board proposes amendments to §369.2, as well as 40 Texas Administrative Code §364.5, Recognition of Out-of-State License of Military Spouse, and §370.1, License Renewal, to remove information concerning the election an individual may make to designate a home, mailing, or business address as the address available to the public.

FISCAL NOTE ON STATE AND LOCAL GOVERNMENTS

LOCAL EMPLOYMENT IMPACT

PUBLIC BENEFIT AND COST NOTE

Mr. Harper has determined under Texas Government Code §2001.024(a)(5) that for each of the first five years the proposed amendments would be in effect, the public benefit will be the conformance of the Board's regulations to Texas Government Code Chapter 552. There would not be an additional anticipated economic cost to persons required to comply with the proposed amendments.

ECONOMIC IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

TAKINGS IMPACT ASSESSMENT

GOVERNMENT GROWTH IMPACT STATEMENT

The agency has determined under Texas Government Code §2001.0221 that during the first five years the rule would be in effect:

(1) the rule will not create or eliminate a government program;

(2) the rule will not require the creation of new employee positions or the elimination of existing employee positions;

(3) the rule will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rule will not require an increase or decrease in fees paid to the agency;

(5) the rule will not create a new regulation;

(6) the rule will remove an existing regulation;

(7) the rule will not increase or decrease the number of individuals subject to the rule's applicability; and

(8) the rule will neither positively nor adversely affect this state's economy.

COSTS TO REGULATED PERSONS

ENVIRONMENTAL IMPACT STATEMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The amendments are proposed under Texas Occupations Code §454.102, Rules, which authorizes the Board to adopt rules to carry out its duties under chapter 454, and under Texas Government Code §552.11765, Confidentiality of Certain Information Maintained by State Licensing Authority, enacted by Senate Bill 510 and effective September 1, 2023, which includes that certain address information is confidential and not available public information.

CROSS REFERENCE TO STATUTE

The amendments implement §552.11765, Confidentiality of Certain Information Maintained by State Licensing Authority, enacted by Senate Bill 510 and effective September 1, 2023.

§369.2.Changes of Name or Contact Information.

(a) A licensee or applicant shall notify the Board in writing of changes in name, phone number, business phone number, residential address, business address, mailing address, and/or email address within 30 days of such change(s). Applicants and temporary licensees, in addition, shall notify the Board in writing of changes of supervisor within 30 days of such change(s). A copy of the legal document (such as a marriage license, court decree, or divorce decree) evidencing a change in name must be submitted by the licensee or applicant with any written notification of a change in name. To request a replacement copy of the license to reflect a name change, refer to §369.1 of this title (relating to Display of Licenses).

[(b) The address of record is the physical address that will be provided to the public. Until applicants and licensees select an address of record, the work address will be used as the default. If no work address is available, the mailing address will be used. If no alternate address is available, the home address will be used. Applicants and licensees may update this information at any time.]

(b) [~~(c)~~] Failure to provide the changes requested in subsection (a) of this section may cause a licensee to be subject to disciplinary action.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 21, 2023.

TRD-202303071

Ralph A. Harper

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: October 1, 2023

For further information, please call: (512) 305-6900

CHAPTER 370. LICENSE RENEWAL

40 TAC §370.1

The Texas Board of Occupational Therapy Examiners proposes amendments to 40 Texas Administrative Code §370.1. License Renewal. The proposed amendments concern removing from the section information concerning an address of record pursuant to changes required by Senate Bill 510 of the 88th Regular Legislative Session.

Senate Bill 510 adds Texas Government Code §552.11765, Confidentiality of Certain Information Maintained by State Licensing Authority. The bill, which takes effect September 1, 2023, includes that applicants', licensees', and former licensees' home addresses are confidential and not available public information. Pursuant to such, the Board proposes amendments to §370.1, as well as 40 Texas Administrative Code §364.5, Recognition of Out-of-State License of Military Spouse, and §369.2, Changes of Name or Contact Information, to remove information concerning the election an individual may make to designate a home, mailing, or business address as the address available to the public.

FISCAL NOTE ON STATE AND LOCAL GOVERNMENTS

LOCAL EMPLOYMENT IMPACT

PUBLIC BENEFIT AND COST NOTE

Mr. Harper has determined under Texas Government Code §2001.024(a)(5) that for each of the first five years the proposed amendments would be in effect, the public benefit will be the conformance of the Board's regulations to Texas Government Code Chapter 552. There would not be an additional anticipated economic cost to persons required to comply with the proposed amendments.

ECONOMIC IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

TAKINGS IMPACT ASSESSMENT

GOVERNMENT GROWTH IMPACT STATEMENT

The agency has determined under Texas Government Code §2001.0221 that during the first five years the rule would be in effect:

(1) the rule will not create or eliminate a government program;

(2) the rule will not require the creation of new employee positions or the elimination of existing employee positions;

(3) the rule will not require an increase or decrease in future legislative appropriations to the agency;

(4) the rule will not require an increase or decrease in fees paid to the agency;

(5) the rule will not create a new regulation;

(6) the rule will remove an existing regulation;

(7) the rule will not increase or decrease the number of individuals subject to the rule's applicability; and

(8) the rule will neither positively nor adversely affect this state's economy.

COSTS TO REGULATED PERSONS

ENVIRONMENTAL IMPACT STATEMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

CROSS REFERENCE TO STATUTE

The amendments implement §552.11765, Confidentiality of Certain Information Maintained by State Licensing Authority, enacted by Senate Bill 510 and effective September 1, 2023.

§370.1.License Renewal.

(a) Licensee Renewal. Licensees are required to renew their licenses every two years by the end of their birth month. A licensee may not provide occupational therapy services without a current license. Licenses and license expiration dates should be verified on the Board's license verification web page.

(1) General Requirements. The renewal application is not complete until the Board receives all required items. The components required for license renewal are:

(A) a complete renewal application form as prescribed by the Board verifying completion of the required continuing education, as per Chapter 367 of this title (relating to Continuing Education);

(B) the renewal fee and any late fees as set by the Executive Council that may be due;

(D) the licensee's physical address, any work address, other mailing address, and email address[~~, and a chosen address of record~~]; and

(E) a complete and legible set of fingerprints submitted in the manner prescribed by the Board for the purpose of obtaining criminal history record information from the Department of Public Safety and the Federal Bureau of Investigation. The licensee is not required to submit fingerprints under this section if the license holder has previously submitted fingerprints under:

(i) Chapter 364 of this title (relating to Requirements for Licensure) for the initial issuance of the license;

(ii) Chapter 370 of this title (relating to License Renewal) as part of a prior license renewal; or

(iii) Chapter 371 of this title (relating to Inactive and Retired Status) as part of a prior license renewal or change of license status.

(2) The licensee is responsible for ensuring that the license is renewed, whether receiving a renewal notice or not.

(3) The renewal process is not complete until the Board's license verification web page reflects that the license has been renewed by displaying the new renewal date.

(4) Renewal fees and late fees are non-refundable.

(5) Licensees electing to change their status or renewing a license on inactive or retired status must meet further requirements as per Chapter 371 of this title (relating to Inactive and Retired Status).

(6) Licensees renewing a license expired one year or more must meet further requirements as per §370.3 of this title (relating to Restoration of a Texas License).

(b) Restrictions to Renewal. The Board will not renew a license if it receives information from a child support agency that a licensee has failed to pay child support under a support order for six months or more as provided by Texas Family Code §232.0135. If all other renewal requirements have been met, the license will be renewed when the child support agency notifies the Board it may renew the license.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 21, 2023.

TRD-202303072

Ralph A. Harper

Executive Director

Texas Board of Occupational Therapy Examiners

Earliest possible date of adoption: October 1, 2023

For further information, please call: (512) 305-6900

PART 20. TEXAS WORKFORCE COMMISSION

CHAPTER 838. TEXAS INDUSTRY-RECOGNIZED APPRENTICESHIP GRANT PROGRAM [~~TEXAS INDUSTRY-RECOGNIZED APPRENTICESHIP PROGRAMS GRANT PROGRAM~~]

The Texas Workforce Commission (TWC) proposes amendments to the following sections of Chapter 838, relating to the Texas Industry-Recognized Apprenticeship Programs Grant Program.

Subchapter A. General Purpose and Definitions, §838.1 and §838.2

Subchapter B. Grant Program, §§838.11 - 838.14

Subchapter C. Program Administration, §§838.21, 838.22, and 838.24

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

The purpose of the proposed amendments to Chapter 838 is to remove references to the federal Industry-Recognized Apprenticeship Program (IRAP) and Standards Recognition Entities (SREs) because they no longer exist, and to state the eligibility criteria and application process for entities that apply to take part in the Texas Industry-Recognized Apprenticeship (TIRA) Grant Program.

In May 2020, the US Department of Labor (DOL) established a process to recognize third-party entities--SREs--which would evaluate and recognize IRAPs. In November 2021, DOL proposed rescinding this regulatory framework. Beginning November 25, 2022, DOL ceased recognizing SREs or IRAPs and rescinded the related rules that were under 29 Code of Federal Regulations Part 29. In response to DOL's action on IRAPs and SREs, TWC is amending Chapter 838 to remove DOL-related references.

In 2019, House Bill 2784, enacted by the 86th Texas Legislature, Regular Session, amended Chapter 302 of the Texas Labor Code by adding Subchapter I to create the Texas Industry-Recognized Apprenticeship Programs Grant Program. The grant program's purpose is to address Texas' immediate industrial workforce needs resulting from the impact of hurricanes, other natural disasters, and overall workforce shortages. Proposed amendments to Chapter 838 clarify the eligibility criteria and application process for entities wishing to take part in this state program.

Rule Review

Texas Government Code §2001.039 requires that every four years each state agency review and consider for readoption, revision, or repeal each rule adopted by that agency. TWC has assessed whether the reasons for adopting or readopting the rules continue to exist. TWC finds that the rules in Chapter 838 are needed, reflect current legal and policy considerations, and reflect current TWC procedures. The reasons for initially adopting the rules continue to exist. TWC, therefore, proposes to readopt Chapter 838 as amended.

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)

CHAPTER 838. TEXAS INDUSTRY-RECOGNIZED APPRENTICESHIP PROGRAMS GRANT PROGRAM

TWC proposes the following amendment to the title of Chapter 838:

The Chapter 838 title is amended to remove "Programs" to reflect that the rules no longer include references to the former federal Industry-Recognized Apprenticeship Program. The chapter title is amended to read "Texas Industry-Recognized Apprenticeship Grant Program."

SUBCHAPTER A. GENERAL PURPOSE AND DEFINITIONS

The section language throughout the subchapter is amended to remove DOL-related references and update the apprenticeship grant program name to Texas Industry-Recognized Apprenticeship (TIRA) program.

§838.1. Scope and Purpose

Section 838.1 is amended to remove IRAP language, replacing these references with TIRA program references.

§838.2. Definitions

Section 838.2 is amended to update the definition for "Texas Industry-Recognized Apprenticeship (TIRA) Program" removing in (3)(A) "by the US Department of Labor (DOL)" and updating the remaining portion of paragraph (3) to incorporate the provisions of former §838.13(b)(5) of this chapter. Additionally, §838.2(5) is removed.

SUBCHAPTER B. GRANT PROGRAM

The section language throughout the subchapter is amended to remove DOL-related references and update the program name to "Texas Industry-Recognized Apprenticeship (TIRA) program."

Additionally, TWC proposes the following amendments to Subchapter B:

§838.11. General Statement of Purpose

Section 838.11 is amended to remove IRAP language, replacing these references with TIRA program references.

§838.12. Notice of Grant Availability and Application

Section 838.12 is amended to remove "in the Texas Register," allowing TWC's three-member Commission to expedite funding actions resulting from the impact of hurricanes, other natural disasters, and overall workforce shortages.

New §838.12(b) - (d) are added to lay out the application process and the form and manner for an application's submission.

§838.13. Eligible Applicants

Section 838.13 is amended to rename the section "Eligible and Approved Applicants."

Section 838.13(a) is amended to set forth TIRA program requirements.

Section 838.13(b) is amended to replace references to the federal IRAP with the state's TIRA.

Section 838.13(b)(2) is removed and (b)(5) is relocated to the definition for TIRA in Section 838.2.

§838.14. Funding Qualifications for Industry-Recognized Apprenticeship Programs

Section 838.14 is amended to remove DOL-related references and update the apprenticeship grant program name to Texas Industry-Recognized Apprenticeship (TIRA) grant program. Section 838.14's title is amended to reflect this update.

SUBCHAPTER C. PROGRAM ADMINISTRATION

TWC proposes the following amendments to Subchapter C:

§838.21. Grants for Industry-Recognized Apprenticeship Programs

Section 838.21 is amended to remove IRAP language, replacing these references with TIRA program references. Section 838.21's title is amended to reflect this update.

§838.22. Program Objectives

Section 838.22 is amended to remove IRAP language, replacing these references with TIRA program references.

§838.24. Performance

Section 838.24 is amended to remove IRAP language, replacing these references with TIRA program references.

PART III. IMPACT STATEMENTS

Chris Nelson, Chief Financial Officer, has determined that for each year of the first five years the rules will be in effect, the following statements will apply:

There are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rules.

There are no estimated cost reductions to the state and to local governments as a result of enforcing or administering the rules.

There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rules.

There are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rules.

There are no anticipated economic costs to individuals required to comply with the rules.

There is no anticipated adverse economic impact on small businesses, microbusinesses, or rural communities as a result of enforcing or administering the rules.

Based on the analyses required by Texas Government Code §2001.024, TWC has determined that the requirement to repeal or amend a rule, as required by Texas Government Code §2001.0045, does not apply to this rulemaking.

Takings Impact Assessment

Under Texas Government Code §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the US Constitution or the Texas Constitution, §17 or §19, Article I, or restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action, and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. TWC completed a Takings Impact Assessment for the proposed rulemaking action under Texas Government Code §2007.043. The primary purpose of this proposed rulemaking action, as discussed elsewhere in this preamble, is to update the rule to reflect actions taken by DOL to rescind the federal Industry-Recognized Apprenticeship Program (IRAP) program. Additionally, the rule change will further clarify the application process for the TIRA program.

The proposed rulemaking action will not create any additional burden on private real property or affect private real property in a manner that would require compensation to private real property owners under the US Constitution or the Texas Constitution. The proposal also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the proposed rulemaking will not cause a taking under Texas Government Code, Chapter 2007.

Government Growth Impact Statement

TWC has determined that during the first five years the rules will be in effect, they:

--will not create or eliminate a government program;

--will not require the creation or elimination of employee positions;

--will not require an increase or decrease in future legislative appropriations to TWC;

--will not require an increase or decrease in fees paid to TWC;

--will not create a new regulation;

--will not expand, limit, or eliminate an existing regulation;

--will not change the number of individuals subject to the rules; and

--will not positively or adversely affect the state's economy.

Economic Impact Statement and Regulatory Flexibility Analysis

TWC has determined that the rules will not have an adverse economic impact on small businesses or rural communities, as the proposed rules place no requirements on small businesses or rural communities.

Mariana Vega, Director, Labor Market Information, has determined that there is not a significant negative impact upon employment conditions in the state as a result of the rules.

Courtney Arbour, Director, Workforce Development Division, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the proposed rules will be to increase the availability of quality paid work-based learning opportunities tied directly to employer needs throughout Texas.

TWC hereby certifies that the proposal has been reviewed by legal counsel and found to be within TWC's legal authority to adopt.

PART IV. COORDINATION ACTIVITIES

This rulemaking is in direct response to DOL's cancelation of the federal IRAP. The federal action made it necessary for TWC to amend the chapter to remove references to the federal program while maintaining the state's program rules. The public will have an opportunity to comment on these proposed rules when they are published in the Texas Register as set forth below.

PART V. PUBLIC COMMENTS

Comments on the proposed rules may be submitted to TWCPolicyComments@twc.texas.gov and must be received no later than October 2, 2023.

SUBCHAPTER A. GENERAL PURPOSE AND DEFINITIONS

40 TAC §838.1, §838.2

The rules are proposed under the general authority of Texas Labor Code §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

They are also proposed under the specific authority set out below:

House Bill 2784, 86th Texas Legislature, Regular Session (2019), enacted the following statutory authority under which these rule amendments are proposed to be adopted:

--Texas Labor Code §302.253 requires TWC to establish and administer the program.

--Texas Labor Code §302.257 grants TWC the authority to adopt rules to administer and enforce the program.

The rules implement Title 4, Texas Labor Code, particularly Chapter 302, Subchapter I.

§838.1.Scope and Purpose.

(a) Purpose. The purpose of this chapter is to implement the provisions of Texas Labor Code, Chapter 302, related to the Texas Industry-Recognized Apprenticeship Programs Grant Program. These rules may be cited as the Texas Industry-Recognized Apprenticeship Grant Program [~~industry-recognized apprenticeship program (IRAP)~~] fund rules.

(b) Goal. The goal of the Texas Industry-Recognized Apprenticeship (TIRA) [~~IRAP~~] fund is to address Texas' immediate industrial workforce needs resulting from the impact of hurricanes, other natural disasters, and overall workforce shortages.

§838.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Grant Recipient--An entity [~~eligible grant recipient~~] within Texas that is awarded TIRA [~~industry-recognized apprenticeship~~] funds by the Agency. Grant recipients must cooperate and comply with all contract requirements and Agency monitoring activities, as required by Chapter 802, Subchapter D of this title (relating to Agency Monitoring Activities).

(2) Eligible Grant Applicant [~~Recipient~~]--An entity, as specified in state [~~and federal~~] law, that is eligible to receive TIRA [~~IRAP~~] funding. Eligible grant applicants may [~~recipients~~] include, but are not limited to, the following:

(A) Trade and industry groups

(B) Corporations

(D) Educational institutions

(E) Unions

(F) Joint labor-management organizations

(3) Texas Industry-Recognized Apprenticeship [~~Program~~]--A training program that:

(A) provides on-the-job training, preparatory instruction, supplementary instruction, or related instruction:

(i) in an occupation that has been recognized as an apprenticeable occupation; and [~~by the US Department of Labor (DOL); or~~]

(ii) under an industry-recognized and accredited training curriculum;

(B) guarantees employment to participants during and upon successful completion of the training period; [~~is certified as an IRAP by a third-party certifier that has received a DOL favorable determination of qualification to award that certification.~~]

(C) pays each participant a progressive wage and provides eligibility for participants to receive full-time employee benefits during and upon successful completion of the training period, equal to or above the impacted local workforce development area's (workforce area) self-sufficiency wage;

(D) requires participants to advance their skills, at a minimum, to a credentialed, performance-verified mid-level status in a field related to the TIRA;

(E) has a duration of no longer than 26 weeks; and

(F) gives preference to training and hiring:

(i) unemployed Texans who have registered with the Agency;

(ii) veterans of the United States armed forces;

(iii) formerly incarcerated individuals; and

(iv) underemployed individuals who are working without industry-recognized certifications or other credentials.

(4) Participant--An individual training in a TIRA [~~an IRAP~~] under an apprenticeship agreement who:

(A) is a full-time paid worker, receiving benefits and employed in the private sector during training;

(B) maintains suitable employment for at least 12 consecutive months immediately following completion of the training program; and

(C) receives related instructional training to learn a skill in a certified apprenticeable occupation that advances his or her skills to a credentialed, performance-verified mid-level status in the occupation, as identified by the Agency.

~~[(5) Standards Recognition Entity (third-party certifier)--An entity that is qualified to recognize an apprenticeship program as an IRAP and that is recognized by DOL.]~~

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2023.

TRD-202302973

Les Trobman

General Counsel

Texas Workforce Commission

Earliest possible date of adoption: October 1, 2023

For further information, please call: (512) 850-8356

SUBCHAPTER B. GRANT PROGRAM

40 TAC §§838.11 - 838.14

They are also proposed under the specific authority set out below:

House Bill 2784, 86th Texas Legislature, Regular Session (2019), enacted the following statutory authority under which these rule amendments are proposed to be adopted:

--Texas Labor Code §302.253 requires TWC to establish and administer the program.

--Texas Labor Code §302.257 grants TWC the authority to adopt rules to administer and enforce the program.

The rules implement Title 4, Texas Labor Code, particularly Chapter 302, Subchapter I.

§838.11.General Statement of Purpose.

In accordance with Texas Labor Code, Chapter 302, the Agency establishes the TIRA [~~IRAP~~] Grant Program, which shall be administered pursuant to Texas Labor Code, Chapter 302, and the rules in this chapter, to award grants from the TIRA [~~IRAP~~] fund to encourage the private sector to develop specialized TIRA programs [~~IRAPs~~] in Texas that meet the requirements of Texas Labor Code[,] §302.255.

§838.12.Notice of Grant Availability and Application.

(a) From time to time, the Agency may publish a Notice of Availability (NOA) of grant funds under this chapter. The notice shall be published [~~in the Texas Register and~~ ] on the Agency's website. In addition to the respective purpose for each grant program under this chapter, the notice may include:

(1) the total amount of grant funds available for the award;

(2) the geographical [~~local workforce development areas (~~]workforce areas[)] that are eligible;

(3) the specific industries or occupations targeted;

(4) the maximum number of grants to be awarded;

(5) the special populations to be served;

(6) the application process and requirements; and

(7) any other grant requirements necessary and appropriate for awarding grants in addition to those set forth in this chapter.

(b) To be eligible for a grant award, an applicant meeting the eligibility criteria identified in the NOA shall submit an application to the Agency in the form and manner as prescribed in subsection (d) of this section [~~by the Agency in the NOA~~].

(1) The Agency's executive director, or designee, shall evaluate each application, considering the requirements and purpose of the NOA for which the application is submitted, the financial stability of the private sector employer, the regional economic impact, and any other factors the Agency determines appropriate.

(2) If the Agency determines that an application is appropriate for funding, the executive director or designee shall enter into a contract with the grant recipient on behalf of the Agency.

(3) Any applicants currently on corrective action pursuant to Chapter 802, Subchapter G of this title (relating to Corrective Actions), or not meeting any requirements of this chapter, shall not be eligible to receive a grant.

(c) The Agency may request additional information at any time before the grant award in order to effectively evaluate any application.

(d) Form and manner of application:

(1) Applications shall be in writing and contain the following information:

(A) The number of proposed jobs created, and retention plans to meet the requirements of §838.21(a)(1) of this chapter;

(B) A brief outline of the proposed project, including the skills acquired through training and the employer's involvement in the planning and design;

(D) The occupation and wages for participants who complete the project as set forth in §838.22(3) of this chapter;

(E) A budget summary, disclosing anticipated project costs and resource contributions, including the dollar amount the private partner is willing to commit to the project;

(F) A signed agreement between all partners that outlines each entity's roles and responsibilities if a grant is awarded;

(G) A statement explaining the basis for the determination by the TIRA that the application meets the requirements of the NOA applied for and identifying the targeted actual or projected labor shortages in the occupation in which the proposed training project will be provided;

(H) A statement identifying that the proposed cost of training included in the application is consistent with costs recorded on the Eligible Training Provider List (ETPL), as defined in Chapter 840, Subchapter A of this title (relating to General Provisions), if the applicant's program(s) are included on the ETPL;

(I) A statement describing the eligible applicant's equal employment opportunity policy;

(J) A list of the proposed employment benefits;

(K) A statement, supported by adequate documentation, establishing that the applicant's proposed training program is a TIRA as defined by §838.2(3) of this chapter; and

(L) Any additional information contained in §838.13 of this chapter and deemed necessary by the Agency to complete an evaluation of an application.

(2) Applications shall disclose other grant funds sought or awarded from the Agency or other state and federal sources for the project proposed in the application.

(3) Applicants shall submit their application to the Agency's executive director or designee as specified in the NOA for which the applicant is applying.

(4) An applicant may, with the approval of the executive director or designee, submit an application for funding that does not contain or identify all of the required elements under paragraph (1) of this subsection. The release of any funding is contingent upon the applicant's submission, and the Agency's approval, of all the required elements in this subsection.

§838.13.Eligible and Approved Applicants.

(a) Eligible applicants [~~grant recipients~~] are the TIRA entities who submit a complete application demonstrating that the TIRA meets the criteria specified in the NOA for which the TIRA is applying. [~~eligible to apply to the agency for IRAP funding.~~]

(b) Approved applicants must [~~grant recipients shall~~]:

(1) be the fiscal agents for the funds and are subject to the annual report procedures set forth in Texas Labor Code[,] §302.258;

~~[(2) apply to the Agency in the form and manner prescribed by the NOA;]~~

(2) [~~(3)~~] be in good standing under the laws of the state, as evidenced by a certificate issued by the secretary of state; and

(3) [~~(4)~~] not owe delinquent taxes to a taxing unit of Texas.[~~; and~~]

~~[(5) operate a certified IRAP that:]~~

~~[(A) provides on-the-job training under an industry-recognized, accredited training curriculum;]~~

~~[(B) guarantees employment to participants during and upon successful completion of the training period;]~~

[(C) pays each participant a progressive wage and provides eligibility for participants to receive full-time employee benefits during and upon successful completion of the training period, equal to or above the impacted workforce area's self-sufficiency wage;]

~~[(D) requires participants to advance their skills, at a minimum, to a credentialed, performance-verified mid-level status in a field related to the IRAP;]~~

~~[(E) has a duration of no longer than 26 weeks; and]~~

~~[(F) gives preference to training and hiring:]~~

~~[(i) unemployed Texans who have registered with the Agency;]~~

~~[(ii) veterans of the United States armed forces;]~~

~~[(iii) formerly incarcerated individuals; and]~~

~~[(iv) underemployed individuals who are working without industry-recognized certifications or other credentials.]~~

§838.14.Funding Qualifications for Texas Industry-Recognized Apprenticeship Grant Program [~~Programs~~].

[~~(a)~~] To qualify for funding, each TIRA must: [~~IRAP shall~~]

(1) meet the requirements listed in §838.13 of this chapter [~~(relating to Eligible Applicants).~~];

(2) [~~(b) The IRAP must~~] meet the definition prescribed in §838.2(3) of this chapter [~~(relating to Definitions).~~];

(3) [~~(c) Each IRAP shall~~] provide the Agency with a [~~validated~~] copy of its written training plan for validation [~~or recognition certificate as approved by the third-party certifier.~~]; and

(4) [~~(d) A funded IRAP must~~] comply with Agency rules and Texas Labor Code, Chapter 302.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2023.

TRD-202302974

Les Trobman

General Counsel

Texas Workforce Commission

Earliest possible date of adoption: October 1, 2023

For further information, please call: (512) 850-8356

SUBCHAPTER C. PROGRAM ADMINISTRATION

40 TAC §§838.21, 838,22, 838.24

They are also proposed under the specific authority set out below:

House Bill 2784, 86th Texas Legislature, Regular Session (2019), enacted the following statutory authority under which these rule amendments are proposed to be adopted:

--Texas Labor Code §302.253 requires TWC to establish and administer the program.

--Texas Labor Code §302.257 grants TWC the authority to adopt rules to administer and enforce the program.

The rules implement Title 4, Texas Labor Code, particularly Chapter 302, Subchapter I.

§838.21.Texas [~~Grants for~~] Industry-Recognized Apprenticeship Grants [~~Programs~~ ].

(a) Grants received under this subchapter may be used to:

(1) reimburse an eligible grant recipient for costs incurred while training a participant who:

(A) completes a program operated by the grant recipient and achieves the required skill level set forth in Texas Labor Code §302.255(4)(D); and

(B) maintains suitable employment for at least 12 consecutive months immediately following completion of the program;

(2) be awarded on a TIRA-[~~an IRAP-~~]participant basis; and

(3) not exceed the lesser of:

(A) the total cost for training the participant, excluding wages and benefits; or

(B) $10,000.

(b) In awarding a grant under this subchapter, the Agency may consider:

(1) the anticipated economic value to the state upon participants' program completion;

(2) the increased tax revenue generated by participants' wages; and

(3) the decrease in participants' use of state-funded benefits, attributable to the participants' job placements and earning projections.

§838.22.Program Objectives.

The following are the program objectives in administering the TIRA [~~IRAP~~] fund:

(1) To ensure that funds from the program are spent in workforce areas that are impacted by hurricanes and other natural disasters and to respond to immediate workforce needs and overall workforce shortages;

(2) To encourage the private sector to develop specialized apprenticeships [~~IRAPs~~] in Texas;

(3) To develop projects that, at completion of the training, will result in wages equal to or greater than the mid-level status of the apprenticeable occupation related to that TIRA [~~IRAP~~]; and

(4) To promote [~~sponsor the attraction of~~] advancing participant skills, at a minimum, to obtaining an industry credential in the related field of the TIRA [~~IRAP~~].

§838.24.Performance.

The Agency may:

(1) develop and adopt annual performance measures and targets for TIRAs [~~IRAPs~~]; and

(2) consider past performance of TIRAs [~~IRAPs~~ ] in determining eligibility for funding.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2023.

TRD-202302975

Les Trobman

General Counsel

Texas Workforce Commission

Earliest possible date of adoption: October 1, 2023

For further information, please call: (512) 850-8356