Question: Since there is no state exam required for a company license, when can I submit my licensing application for my company?
Answer: To apply for an assessment or remediation company license, at least one individual within the company has to get licensed first as either a mold assessment consultant or a remediation contractor, respectfully.
Question: The rules state in section 295.305 (d) that "a person licensed under this subchapter must maintain an office in Texas." Exactly whom does this requirement apply to?
Answer: The requirement regarding maintaining an office in Texas only applies to "licensees,” i.e., Mold Assessment Technicians, Mold Assessment Consultants, Mold Assessment Companies, Mold Remediation Contractors, Mold Remediation Companies, and Mold Analysis Laboratories. Section 295.305(d) also states, "An individual employed by a person licensed under this subchapter is considered to maintain an office in Texas through that employer." As an example, a mold assessment technician or consultant working for a licensed mold assessment company that has an office in Texas would not have to have his or her own office in Texas.
Please note that the office in Texas requirement does not apply to Training Providers, because they are seeking "accreditation." Neither does it apply to Mold Remediation Workers, because they are seeking "registration."
Question: Can an individual or company get both a mold assessment license and a mold remediation license?
Answer: Yes, if you meet all qualifications and requirements for each license. However, you are not allowed to conduct both mold assessment and mold remediation activities on the same project, unless you are employed by a school district – legislation (HB 74), which became effective 05-24-05, amended Section 1958.155 of the Occupations Code to allow a license holder employed by a school district to conduct both assessment and remediation on a project for that school district.
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Question: If a mold remediation worker gets registered while employed by Company X, then wants to work for Contractor/Company Y, is his registration still in effect?
Answer: Yes, a worker registration remains in effect for the one-year or two-year term, as long as the other contractor/company is licensed and a licensed contractor supervises the worker when he performs any remediation activities.
Question: How much notice must be given to the department if required insurance is cancelled or materially altered?
Answer: Each insurance policy must name the department as a certificate holder and contain language that the insurance company will give the department at least 10-days notice of cancellation or material change for any reason. §295.309(b). The certificate of insurance submitted to the department with an initial or renewal application must contain this language. In addition, the licensee is also obligated to give the department at least 20 calendar day’s advance written notice of a cancellation or material change to the policy. §295.309(d)(1). This requirement is so that if the insurance company fails to do so, the department will still get notice. The correct name and address of the department for providing insurance notice is:
Environmental and Sanitation Licensing Group MC2835
Texas Department of State Health Services,
P. O. Box 149347
Austin, Texas 78714-9347
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Question: Under the Texas mold rules, a homeowner or building owner can, in some circumstances, do his own remediation under the exemptions of 25 TAC § 295.303 (b)-(d) (minimum area, residential property and facility exemptions). If a homeowner or building owner does his own mold remediation without using a licensed mold consultant to develop a mold remediation protocol, and then asks a consultant to conduct a clearance test/inspection, can the consultant conduct clearance?
Answer: No. A consultant who has not prepared a mold remediation protocol in advance of a remediation project cannot declare that the project has achieved clearance. In order to determine if a project has achieved clearance, the consultant must conduct a post-remediation assessment. A post-remediation assessment must determine that both: 1) the area is free from all visible mold and wood rot; and 2) “that all work…meets clearance criteria specified in the protocol.” 25 TAC §295.324(a). Therefore, if no clearance criteria have been specified in a protocol, the consultant cannot verify that the work meets the pre-project clearance criteria. Also, §295.321(e) indicates that a consultant shall provide a protocol (with clearance criteria) to the client before the remediation begins. Note: A licensed consultant, who had no role in preparing a pre-remediation protocol, may, however, conduct a post-remediation inspection and sign/deliver a Certificate of Mold Remediation ( Dept. of Insurance Form MDR-1) certifying that he has inspected the property and determined that it “does not contain evidence of mold damage.” The bottom section of the form is for this purpose. [Ins. Code Art. 21.21-11 §3 (4)(B).]
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Real Estate Inspections
Question: Is a real estate inspector licensed in Texas required to have a Texas mold license to collect air or visible spore samples to determine the presence of mold? Such activity is “mold assessment” as defined in §295.302(22) for which a license is usually required. Must he send the samples to a DSHS-licensed lab?
Answer: Yes, a real estate inspector must be licensed as a mold assessment technician or consultant to collect air or visible spore samples to determine the presence of mold. This requirement is supported by both the rules of the department and Texas Real Estate Commission (TREC). The inspector must send the samples to a licensed lab for analysis. A real estate inspector does not need a mold license to visually observe and note the presence of mold.
The department’s rules require a license to conduct mold assessment, which includes the collection of a mold sample. (§295. 311(a), §295.312(b) and §295.302(22)(C). The exemption for commercial or residential real estate inspections under §295.303(a)(1)(C) does not exempt the inspector from the mold license requirement because mold sampling is not part of a real estate inspection in Texas. See TREC Standards of Practice, 22 TAC §535.227(a)(5), (b)(2)(H) and (3)(B). Section 535.227(b)(2)(H) requires a real estate inspector to comply with any other law or license necessary to perform an inspection or service other than that required by the real estate standards of practice which exclude laboratory or scientific evaluation or testing. See §535.227(a)(5). A licensed technician or consultant who collects samples must send them to a lab licensed by DSHS to analyze mold samples. §§295.311(f)(3), 295.312(f)(9).
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Homebuilder Construction and Improvement Exemption
Question: Under the Homebuilder Construction and Improvement Exemption, 295.303(e), is all mold assessment/remediation done on a one- or two-family home under the homebuilder’s warranty exempt from the mold rules even if the builder contracts out the work?
Answer: Yes, all mold assessment/remediation done by the builder either at the time of construction or later at the time of repair is exempt and may be done without a license. The exemption applies whether the mold assessment/remediation is done by the individual builder himself, by his employee or by a subcontractor.
Discussion: The statute and rule say “a person” (the homebuilder) is not required to be licensed to do mold assessment/remediation if “the person” constructed or improved the dwelling or if the person does mold assessment/remediation “at the same time the person performs repair work on the construction or improvement.” Occupations Code 1958.102(d); 295.303(e). As a practical matter, many builders are individuals operating alone or small companies without a construction staff. It is not uncommon to subcontract virtually all aspects of the construction. Therefore, it is reasonable for homebuilders to subcontract mold assessment/remediation that occurs during construction or repair. The individual homebuilder, his employees and his subcontractors do not need a mold licensee if they are doing mold work at the time they are constructing, improving, or repairing a dwelling.
Note that after initial construction is complete, mold assessment/remediation may be done by the unlicensed builder only if done “at the same time” as repair work. A builder may not perform mold assessment/remediation alone; he must do it in conjunction with a repair project.
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Question: If a builder hires a licensed mold remediator, to whom does the remediator provide a Consumer Mold Information Sheet (CMIS)? To whom does the remediator provide the certificate of mold remediation (CMR)?
Answer: Under the statute and rule, the remediator (or other licensee overseeing a project) must provide the CMIS to his client who hired him, in this case the builder. 295.306(c). The remediator is not required to provide it to the homeowner who is not his client, though the builder may give his copy of the CMIS to the homeowner. By contrast, the remediator must provide the CMR to the property owner, even if hired by the builder. 295. 315(f)(11); 295.327(b).
Question: If a builder, his employees or subcontractors conduct remediation work under the homebuilder construction and improvement exemption, 295.303(e), can the unlicensed workers give the homeowner a CMR?
Answer: No. Only a licensed remediator is authorized to give a CMR. A person who uses unlicensed workers for mold remediation cannot obtain a CMR because an unlicensed person is not authorized to give a CMR. Occupations Code 1958.154(a).
Question: If the homeowner cannot obtain a CMR because the mold work was performed under the construction and improvement exemption, can he have an inspection done by an independent assessor or adjuster to determine there is no evidence of mold damage?
Answer: Yes, under the Insurance Code, a homeowner who is not eligible for a CMR may have an inspection done by an independent licensed assessor or adjustor who may fill in the “Mold Assessor or Adjustor License Holder Certification” portion of the CMR/MDR-1 form developed by the Texas Department of Insurance. Such a certification may be presented to an insurer who may not make an adverse underwriting decision regarding a residential property insurance policy based on previous mold damage if the requirements of the statute and related rules are met. Insurance Code, Art. 21.21-11, Section 3.
Certificate of Mold Remediation
Question: Where do I find the "Certificate of Mold Remediation?" How is this form supposed to be used?
Answer: The Certificate of Mold Remediation was prepared by the Texas Department of Insurance, and can be found on that agency’s website: www.tdi.state.tx.us/forms/pcpersonal/pc326mdr1.pdf. This form can be used under two different situations, only one of which is governed by the TMARR. Section 295.327(b) of the TMARR requires that a licensed mold remediation contractor or company provide this completed form to the property owner (including residential, commercial and governmental owners), within 10 days of the remediation project stop date. The licensed contractor and the licensed mold assessment consultant who conducted clearance for the project must sign off on the form.
Another usage of this form is prescribed in the Insurance Code Title 5, Subtitle C, Ch. 544, Subchp. G, sec. 544.303(4)(B), rule, 28 TAC 21.1007(e)(1) whereby a licensed mold assessment consultant or a licensed insurance adjuster can certify that he has inspected the property and determined that it “does not contain evidence of mold damage.” The bottom section of the form is for this purpose.
Question: Can an assessment consultant who has prepared a remediation protocol for a client also review mold remediation bids and advise the client which bid to accept without being in violation of the conflict of interest provision?
Answer: Yes. Section 295.307 (a)(1) prohibits a licensee from performing both assessment and remediation on the same project. Reviewing and making recommendations on remediation bids is neither “assessment” nor “remediation” and, therefore, a consultant can do both jobs on the same project. See the definition of those terms in §295.302(22) and (26). Furthermore, since reviewing/recommending bids is not “assessment,” one does not need a mold license to do that work. In making recommendations on bids, licensees should remember their ethical duty not to participate in activities where a conflict of interest might arise and to disclose any known or potential conflict to any affected party. §295.304(b)(3).
Question: If a building owner has two mold remediation protocols done by two different consultants, which one should he use? Can he use parts of each?
Answer: A building owner may solicit protocols from more than one consultant and select the one he prefers. If his insurance company solicits a protocol that differs from that of the building owner’s consultant, then it would be a matter of negotiation between the building owner and the insurance company on which one is used to conduct remediation. A building owner cannot use parts of different protocols. One protocol must be followed in its entirety to ensure that the comprehensive requirements outlined in §295.321 are met.
Question: Does negative pressure have to be maintained at all times in a walk-in containment? Would it be a violation to place negative air machines in a “scrubber mode” at certain times?
Answer: The Texas Mold Assessment and Remediation Rules (TMARR) require that if walk-in containment is used, negative air pressure must be maintained at all times inside the containment for the duration of a mold remediation project until the project passes clearance (sections 295.321(g) and 295.322(d)). The purpose of this requirement is to prevent the spread of mold spores to areas outside of containment. However, the department recognizes there may be some situations when maintaining negative air pressure may not be advisable or possible at certain stages of the project. In some of these situations, and only when active remediation is not occurring, the use of continuous air scrubbing of the area instead of negative air pressure may be sufficient to prevent contamination of areas outside of the containment. The department has therefore implemented a policy to allow licensed Mold Assessment Consultants to use their professional judgment to determine for each project under what conditions, if any, air scrubbing may be performed in place of maintaining negative air pressure. The Consultant must clearly specify in the Mold Remediation Protocol the specific conditions, phases and/or time periods during which air scrubbing may or must be substituted for maintaining negative air pressure. The decision cannot be left to the discretion of the Mold Remediation Contractor. The use of air scrubbing in place of negative air pressure in walk-in containment at a project, when not clearly specified in a Mold Remediation Protocol, will be noted as a deficiency against the Mold Remediation Company and is subject to enforcement action under the TMARR.
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Applicability of Texas Mold Rules on Federal Property
Question: Do the mold rules apply to federal employees conducting mold-related activities on federal property, i.e., land and buildings owned or occupied by the U.S. Government?
Answer: No. The Texas mold rules do not apply to federal employees, (military and civilian), who are conducting mold-related activities on federal property. The federal exemption from the mold rules is strictly limited to federal employees working on federal property as part of their assigned duties.
Question: Do the mold rules apply to non-federal employees (individuals and companies in the private sector) hired to conduct mold-related activities on federal property, i.e., land and buildings owned or occupied by the U.S. Government?
Answer: Yes. The Texas mold laws apply to individuals and companies in the private sector who conduct mold-related activities on federal property. This requirement means that private sector entities must follow all applicable state mold rules when working on federal property, including being licensed and giving advance notification of the project. The exemption discussed above for federal employees working on federal property does not apply to non-federal employees or contractors. The State of Texas licenses individuals and companies and the responsibilities of licensure remain with those entities regardless of whether the U.S. Government owns the facility at which the work is done.
See Occupations Code §1958.002. (“This chapter applies…to…a mold related activity performed by a third party for compensation at a property owned or operated by a governmental entity.”)
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For additional information about the Texas Mold Assessment and Remediation Rules please contact:
Policy/Standards/Quality Assurance Unit
Environmental Health Group