May 31 Update: Rule Adoption
On May 12, 2023, the Texas Department of Licensing and Regulation adopted, without changes, the proposed rules as published in the March 3, 2023, issue of the Texas Register. The rules below are effective June 1, 2023.
In early March, the Texas Department of Licensing and Regulation (TDLR) published proposed rules in the Texas Register that affect several professions, including massage therapy, barbering, and cosmetology.
The proposed rules are necessary to align the dishonored payment processing fee with statutory requirements, add additional rules regarding complaints, and revise the processes and procedures for contested cases.
If you would like to submit comments in support of, or in opposition to, the proposed rules, visit TDLR’s website at https://ga.tdlr.texas.gov:1443/form/gcerules before April 3, 2023. ABMP has summarized the proposed rules for you below.
FEES
Dishonored Payment Fee (§60.82)
While this section is not new, the proposed rules offer a definition for dishonored payment: “A payment that is declined or not approved for payment upon presentment to a financial institution.” Dishonored payment methods include checks, credit cards, paper or electronic payments, electronic money transfers, or other payment exchanges. If a payment issued to TDLR is dishonored, current law requires the licensee to pay a $50 processing fee. The proposed rules would decrease the processing fee to $30.
COMPLAINT HANDLING
Notice to the Public Regarding Complaints (§60.200)
The proposed rules would require license holders to notify clients of TDLR’s name, mailing address, telephone number, and website so clients know where to file a complaint with an explanation of the complaint investigation and resolution process. This notification should be issued on:
- A written contract (paper or electronic),
- A sign displayed in the business location, and
- A bill (paper or electronic)
Filing a Complaint (§60.201)
The proposed rules would require complaints to be submitted on a form created by TDLR. The person filing a complaint is encouraged to file on TDLR’s website. The complaint would have to be filed within two years of the event; complaints filed after the two-year period may be investigated at the discretion of TDLR. In the event TDLR receives an anonymous complaint, the proposed rules allow TDLR to investigate anonymous complaints at its discretion. TDLR is not required to investigate anonymous complaints.
Investigation and Priority of Complaints (§60.202)
The proposed rules would require TDLR to investigate complaints based on potential risk to the public. TDLR would be allowed to dismiss a complaint if it determines that an allegation is without merit.
Cooperation with Investigation of Complaints (§60.203)
The proposed rules would require licensees to cooperate during a complaint investigation. This includes presenting TDLR employees or designated representatives any requested records, notices, and documents. Licensees could not avoid, refuse, or interfere with an investigation, nor threaten or intimidate a TDLR employee or designated representative.
Status and Confidentiality of Complaints (§60.204)
The proposed rules would require TDLR to periodically notify the licensee and complainant on the status of a complaint until a final decision is made. TDLR would maintain confidentiality of complaint and disciplinary information.
CONTESTED CASES
Notice of Alleged Violation; Notice of Continued License Restrictions (§60.301)
The proposed rules would require TDLR to send a written notice to licensees detailing an alleged violation if TDLR is:
- Implementing enforcement action against a licensee for an alleged violation, or
- Proposing to revoke a license or deny a license renewal application based on criminal history.
If a licensee has restrictions on their license, TDLR would be required to send out written notice to the licensee if TDLR wishes to extend the license restrictions. The written notice would have to be sent by certified mail with an electronic return receipt.
Within 20 days of receiving a notice of an alleged violation or notice of continued license restrictions, a licensee may accept TDLR’s determination and recommended administrative penalty, sanction, or both; or make a written request for a hearing.
Notice of Proposed Denial (§60.302)
The proposed rules would require TDLR to send a written notice of proposed denial if TDLR proposes:
- To deny an initial license application, or
- To deny a person an opportunity to take an examination.
The proposed denial notice would have to be sent by certified mail with an electronic return receipt. Within 20 days of receiving a proposed denial notice, a licensee may request a hearing in writing or forfeit the right to a hearing.
Motion for Rehearing (§60.309)
The proposed rules would allow a licensee to submit a motion for rehearing for TDLR to reconsider a decision in a contested case or reconsider a default order. A motion for rehearing must identify facts or conclusions that pertain to the complaint and any evidence claimed to be inaccurate. The motion must also state the legal and factual basis for the claimed error.