25 TAC §§140.1 - 140.22
STATUTORY AUTHORITY
The adopted amendments and new rules are authorized by Texas Occupations
Code, Chapter 603; and Government Code, §531.0055, and Health and Safety
Code, §1001.075, which authorize the Executive Commissioner of the Health
and Human Services Commission to adopt rules and policies necessary for the
operation and provision of health and human services by the department and
for the administration of Health and Safety Code, Chapter 1001.
§140.2.Fees.
(a)
The schedule of fees for licensure as a perfusionist or
a provisional licensed perfusionist is as follows:
(1)
application and initial license fees--$175;
(2)
license fee for upgrade of provisional licensed perfusionist--$75;
(3)
a license renewal issued for a one-year term--$175;
(4)
a license renewal issued for a two-year term--$350;
(5)
late renewal fee (prior to September 1, 2007)--$100;
(6)
late renewal fee (on or after September 1, 2007):
(A)
less than 90 days late--a fee that is equal to 1/4 times
the amount of the renewal fee due; or
(B)
more than 90 days and less than one year late--a fee that
is equal to 1/2 times the amount of the renewal fee due;
(7)
license certificate and identification card replacement
fee--$10;
(8)
child support reinstatement fee--$40;
(9)
student loan default reinstatement fee--$40;
(10)
verification fee--$10 per licensee; and
(11)
retired perfusionist license renewal issued for a two-year
term (in accordance with §140.12(f) of this title relating to License
Renewal)--$175.
(b)
An applicant whose check for the application fee is not
honored by the financial institution may reinstate the application by remitting
to the department a money order or check for guaranteed funds within 30 days
of the date of receipt of the department's notice. An application will be
considered incomplete until the fee has been received and cleared through
the appropriate financial institution.
(c)
A licensee whose check for the renewal fee is not honored
by the financial institution may remit to the department a money order or
check for guaranteed funds within 30 days of the date of receipt of the department's
notice. Otherwise, the license shall not be renewed. If a renewal card has
already been issued, it shall be subject to revocation.
(d)
Fees paid to the department by applicants are not refundable.
(e)
Any remittance submitted to the department in payment of
a required fee must be in the form of a personal check, certified check, or
money order.
(f)
The department shall make periodic reviews of its fee schedule
and make any adjustments necessary to provide funds to meet its expenses without
creating an unnecessary surplus. Such adjustments shall be through rule amendments.
(g)
For all applications and renewal applications, the department
is authorized to collect subscription and convenience fees, in amounts determined
by the Texas Online Authority, to recover costs associated with application
and renewal application processing through Texas Online.
(h)
For all applications and renewal applications, the department
is authorized to collect fees to fund the Office of Patient Protection, Health
Professions Council, as mandated by law.
§140.5.Examination Procedures for Perfusionist Licensure.
(a)
Frequency. Examinations will be administered for the department
at least once each year by a designee of the department.
(b)
Requirements.
(1)
The executive secretary shall notify an applicant when
all requirements for licensure have been met except the taking and passing
of the required examination. The department shall forward or cause to be forwarded
an examination registration form to each approved applicant as soon as the
application has been approved.
(2)
An applicant who wishes to take a scheduled examination
must complete the examination registration form which must be received by
the department or designee by the deadline established by the department.
The fee shall be paid to the designee of the department.
(3)
The examination for licensure shall be an examination approved
by the department. A designee of the department shall administer and grade
examinations and report to the department if the applicant has passed or failed
the examination.
(4)
If an applicant has already successfully completed the
required examination or the examination administered by the American Board
of Cardiovascular Perfusion (ABCP), the applicant shall not be required to
be reexamined, provided the applicant furnishes the department a copy of the
test results indicating that the applicant passed the examination and proof
that he or she has been certified by the ABCP for some time period within
three years immediately preceding date of application.
(5)
An applicant who fails four examinations may not reapply
as a provisional licensed perfusionist.
§140.8.Determination of Eligibility.
(a)
The department shall notify an applicant in writing of
the receipt of the applicant's application and any other relevant evidence
relating to qualifications established by rule. The notice must state whether
the applicant has qualified for examination or licensure based on the application
and other submitted evidence. If the applicant is not qualified, the notice
must state the reasons for the applicant's failure to qualify.
(b)
The department may deny the application if the person has:
(1)
not completed the requirements in §761.4 of this title
(relating to Educational Requirements for Licensure).
(2)
failed to pass the examination prescribed by the department
as set out in §140.5 of this title (relating to Examination Procedures
for Perfusionist Licensure), if applicable;
(3)
failed to remit any applicable fees required in §140.2
of this title (relating to Fees);
(4)
failed or refused to properly complete or submit any application
form(s) or endorsement(s), or presented false information on the application
form, or any other form or document required by the department to verify the
applicant's qualifications for licensure;
(5)
been in violation of the Act, the Code of Ethics, or any
other provision of this title;
(6)
been convicted of a felony or misdemeanor if the crime
directly relates to the duties and responsibilities of a licensee as set out
in §140.14 of this title (relating to Licensing of Persons with Criminal
Backgrounds To Be a Licensed Perfusionist and Provisional Licensed Perfusionist),
and in Texas Occupations Code, Chapter 53.
(7)
had a license, registration, certificate, or certification
to practice perfusion in another state or jurisdiction which has been suspended,
revoked, or otherwise restricted by the licensing entity or American Board
of Cardiovascular Perfusion; or
(8)
demonstrated lack of necessary skills and ability to provide
adequate perfusion services.
(c)
If after review, the department determines that the application
should not be approved, the executive secretary shall give the applicant written
notice of the reason for the proposed decision and of the opportunity for
a formal hearing and an informal settlement conference. The notice and hearing
shall be in accordance with §140.15 of this title (relating to Violations,
Complaints, and Subsequent Department Actions).
(d)
An applicant whose application has been denied under subsection
(b)(4), (5), (6), (7), or (8) of this section shall be permitted to reapply
after a period to be determined by the department. The applicant shall submit
with the reapplication, proof satisfactory to the department of compliance
with all rules of the department and the provisions of the Act in effect at
the time of reapplication.
(e)
Processing procedures are as follows.
(1)
Time periods. The department shall comply with the following
procedures in processing application for licensure and renewal.
(A)
The following periods of time shall apply from the date
of receipt of an application until the date of issuance of a written notice
that the application is complete and accepted for filing or that the application
is deficient and additional specific information is required. A written notice
stating that the application has been approved may be sent in lieu of the
notice of acceptance of a complete application. The time periods are as follows:
(i)
letter of acceptance of application for licensure - 14
working days;
(ii)
letter of application deficiency - 14 working days; and
(iii)
issuance of license renewal after receipt of documentation
of all renewal requirements - 30 working days.
(B)
The following periods of time shall apply from the receipt
of the last item necessary to complete the application until the date of issuance
of written notice approving or denying the application. For the purpose of
this section, an application is not considered complete until any required
examination has been successfully completed by the applicant. The time period
for denial include notification of the proposed decision and of the opportunity,
if required, to show compliance with the law and of the opportunity for a
formal hearing. The time periods are as follows:
(i)
letter of approval examination - 20 working days;
(ii)
initial letter of approval for licensure (exam waived)
- 20 working days;
(iii)
letter of denial of licensure - 20 working days;
(iv)
issuance of license renewal after receipt of documentation
of all renewal requirements - 30 working days.
(2)
Reimbursement of fees.
(A)
In the event an application is not processed in the time
periods stated in paragraph (1) of this subsection, the applicant has the
right to request reimbursement of all fees paid in the particular application
process. Application for reimbursement shall be made to the executive secretary.
If the executive secretary does not agree that the time period has been violated
or finds that good cause existed for exceeding the time period, the request
will be denied.
(B)
Good cause for exceeding the time period is considered
to exist if:
(i)
the number of applications for licensure and licensure
renewal exceeds by 15% or more the number of applications processed in the
same calendar quarter the preceding year; or
(ii)
another public or private entity relied upon by the department
in the application process caused the delay; or
(iii)
any other condition exists giving the department good
cause for exceeding the time period.
(3)
Appeal. If a request for reimbursement under paragraph
(2) of this subsection is denied by the executive secretary, the applicant
may appeal in writing to the department. An appeal shall be decided in the
applicant's favor if the applicable time period was exceeded and good cause
was not established. If the appeal is decided in favor of the applicant, full
reimbursement of all fees paid in that particular application process shall
be made.
(4)
Contested cases. The time periods for contested cases related
to the denial of licensure or license renewals are not included within the
time periods stated in paragraph (1) of this subsection. The time period for
conducting a contested case hearing runs from the date the department receives
a written request for a hearing and ends when the decision of the commissioner
is final and appealable. A hearing may be completed within one to four months,
but may extend for a longer period of time depending on the particular circumstances
of the hearing.
§140.12.License Renewal.
(a)
General.
(1)
When issued, a license is valid until the licensee's next
birth month.
(2)
A licensee must renew the license annually or biannually,
as determined by the department.
(3)
The renewal date of a license shall be the last day of
the licensee's birth month.
(4)
Each licensee is responsible for renewing the license before
the expiration date and shall not be excused from paying additional fees or
penalties. Failure to receive notification from the executive secretary prior
to the expiration date of the license shall not excuse failure to file for
renewal or late renewal.
(5)
The department shall not renew the license of the licensee
who is in violation of the Act or rules at the time of application for renewal.
(6)
The department shall deny renewal of the license of a licensee
if renewal is prohibited by the Education Code, §57.491 relating to student
loan default.
(7)
The department shall deny renewal of the license of a licensee
for whom a contested case is pending until resolution of the case, but such
individual remains licensed pending resolution of the contested case, if timely
application for renewal is made.
(8)
The department may refuse to renew the license of a person
who fails to pay an administrative penalty imposed under the Act unless enforcement
of the penalty is stayed or a court has ordered that the administrative penalty
is not owed.
(9)
A licensee who has been notified of a student loan default
shall surrender their license until the loan payment has been resolved to
the satisfaction of the National Student Loan Center.
(10)
A licensee shall pay a late renewal fee as set out in §140.2
of this title (relating to Fees) prior to issuance of the license under this
section.
(b)
License renewal requirements.
(1)
At least 30 days prior to the expiration date of a person's
license, the executive secretary shall send notice to the licensee at the
address in the department's records of the expiration date of the license,
the amount of the renewal fee due, and a license renewal form which the licensee
must complete and return to the department with the required renewal fee.
The return of the completed renewal form in accordance with the requirements
of paragraph (3) of this subsection shall be considered confirmation of the
receipt of renewal notification.
(2)
The license renewal form for all licensees shall require
the provision of the preferred mailing address, primary employment address
and telephone number, and misdemeanor and felony convictions. The license
renewal form for the provisional licensed perfusionist shall be signed by
the supervising licensed perfusionist or approved licensed physician and indicate
whether the supervisor and supervisee have complied with this chapter.
(3)
A licensee has renewed the license when the licensee has
mailed the renewal form and the required renewal fee to the executive secretary
prior to the expiration date of the license. The postmark date shall be considered
as the date of mailing.
(4)
The department shall issue to a licensee who has met all
requirements for renewal a license certificate and identification card.
(c)
Late renewal requirements.
(1)
The executive secretary shall inform a person who has not
renewed a license after a period of more than 90 days after the expiration
of the license of the amount of the fee required for renewal and the date
the license expired.
(2)
A person whose license has expired for not more than one
year may renew the license by submitting the license renewal form and the
appropriate renewal and late renewal fees to the executive secretary. The
renewal is effective if it is mailed to the executive secretary within one
year after the expiration date of the license. The postmark date shall be
considered as the date of mailing.
(3)
A person whose license has been expired one year or more
may not renew the license. The person may obtain a new license by complying
with the current requirements and procedures for obtaining an original license.
(d)
Expiration of license.
(1)
A person whose license has expired may not use the title
or represent or imply that he has the title of "licensed perfusionist" or
"provisional licensed perfusionist" or use the letters "LP" or "PLP", and
may not use any facsimile of those titles in any manner.
(2)
A person who fails to renew a license after one year shall
surrender the license certificate and license identification card to the department.
(e)
Active duty. If a licensee fails to timely renew his or
her license on or after August 1, 1990, and the licensee is or was on active
duty with the armed forces of the United States of America, the licensee may
renew the license in accordance with this subsection.
(1)
Renewal of the license may be requested by the licensee,
the licensee's spouse, or an individual having power of attorney from the
licensee. The renewal form shall include a current address and telephone number
for the individual requesting the renewal.
(2)
Renewal may be requested before or after expiration of
the license.
(3)
A copy of the official orders or other official military
documentation showing that the licensee is or was on active duty shall be
filed with the department along with the renewal form.
(4)
A copy of the power of attorney from the licensee shall
be filed with the department along with the renewal form if the individual
having the power of attorney executes any of the documents required in this
subsection.
(5)
A licensee renewing under this subsection shall pay the
applicable renewal fee, but not the late renewal fee.
(f)
Renewal for Retired Perfusionists Performing Voluntary
Charity Care.
(1)
A "retired perfusionist" is defined as a person who is:
(A)
above the age of 55; and
(B)
is not employed for compensation in the practice of perfusion;
and
(C)
has notified the department in writing of his or her intention
to retire and provide only voluntary charity care.
(2)
"Voluntary charity care" for the purposes of this subsection
is defined as the practice of perfusion by a retired perfusionist without
compensation or expectation of compensation.
(3)
A retired perfusionist providing only voluntary charity
care may renew his or her license by submitting a renewal form; the retired
perfusionist renewal fee required by §140.2 of this title (relating to
Fees); and the continuing education hours required by §140.13 of this
title (related to Minimum Continuing Education Requirements).
§140.16.Formal Hearings.
(a)
General. This section covers the formal hearing procedures
and practices that will be used by the department in handling suspensions,
revocation of license, denial of licenses, probating a license suspension,
reprimanding a licensee, or refusal to renew a license. Such hearing will
be conducted pursuant to the contested case provisions of the Administrative
Procedure Act (APA), Texas Government Code, Chapter 2001, and will be held
by the State Office of Administrative Hearings.
(b)
Notice requirements.
(1)
Notice of the hearing shall be given according to the notice
requirements of APA.
(2)
If a party fails to appear or be represented at a hearing
after receiving notice, the administrative law judge may proceed with the
hearing or take whatever action is fair and appropriate under the circumstances.
(3)
All parties shall timely notify the administrative law
judge of any changes in their mailing addresses.
(c)
Disposition of case. Unless precluded by law, informal
disposition may be made of any contested case by agreed settlement order or
default order.
(d)
Agreements in writing. No stipulation or agreement between
the parties with regard to any matter involved in any proceeding shall be
enforced unless it shall have been reduced to writing and signed by the parties
or their authorized representatives, dictated into the record during the course
of a hearing, or incorporated in an order bearing their written approval.
This rule does not limit a party's ability to waive, modify, or stipulate
away any right or privilege afforded by these sections.
(e)
Final orders or decisions.
(1)
The final order or decision will be rendered by the department.
The department is not required to adopt the recommendation of an administrative
law judge and may take action as it deems appropriate and lawful.
(2)
All final orders or decisions shall be in writing and shall
set forth the findings of fact and conclusions required by law.
(3)
All final orders shall be signed by a representative of
the department.
(4)
A copy of all final orders and decisions shall be timely
provided to all parties as required by law.
§140.22.Texas State Perfusionist Advisory Committee.
(a)
Officers.
(1)
The Presiding Officer shall be designated by the commissioner
and serve at the pleasure of the commissioner.
(2)
The Assistant Presiding Officer shall perform the duties
of the presiding officer in case of the absence or disability of the chairman.
(3)
In case the presiding officer becomes vacant, the assistant
presiding officer shall serve until a successor is appointed by the commissioner.
(b)
Meetings.
(1)
The committee shall meet only to conduct committee business.
(2)
Special meetings may be called by the commissioner at such
times, dates, and places as become necessary for the transaction of advisory
committee business.
(3)
The committee is not a "governmental body" as defined in
the Open Meetings Act. However, in order to promote public participation,
each meeting of the committee shall be announced and conducted in accordance
with the Open Meetings Act, Texas Government Code, Chapter 551, with the exception
that the provisions allowing executive sessions shall not apply.
(c)
Quorum. A simple majority of the committee members is necessary
to conduct official business.
(d)
Transaction of official business.
(1)
The committee may transact official business only when
in a legally constituted meeting with a quorum present.
(2)
Committee action shall require a majority vote of those
members present and voting.
(e)
Policy against discrimination. The committee shall make
no decision in the discharge of its statutory authority with regard to any
person's race, color, disability, gender, religion, national origin, geographical
distribution, age, physical condition, economic status, sexual orientation,
or genetic information.
(f)
Conflict of interest. Any committee member who has a conflict
of interest regarding any matter before the committee, such as a matter pertaining
to an applicant's eligibility for licensure or a complaint against or a violation
by a licensee, shall so declare this and shall not participate in any committee
proceedings involving that individual or matter.
(g)
Membership and employee restrictions.
(1)
Texas trade association. A cooperative and voluntarily
joined statewide association of business or professional competitors in this
state designated to assist its members and its industry or profession in dealing
with mutual business or professional problems and in promoting their common
interests.
(2)
A person may not be a committee member and may not be a
department employee employed in a "bona fide executive, administrative, or
professional capacity," as that phrase is used for purposes of establishing
an exemption to the overtime provisions of the federal Fair Labor Standards
Act of 1938 (U.S.C. §201 et seq.) if:
(A)
the person is an officer, employee, or paid consultant
of a Texas trade association in the field of health care; or
(B)
the person's spouse is an officer, manager, or paid consultant
of a Texas trade association in the field of health care.
(3)
A person may not be a member of the committee or act as
the general counsel to the committee or the department if the person is required
to register as a lobbyist under Chapter 305, Government Code, because of the
person's activities for compensation on behalf of a profession related to
the operation of the department.
(h)
Attendance.
(1)
Members shall attend regular committee meetings as scheduled.
(2)
Upon request, the executive secretary shall report to the
commissioner, governor and the Texas Sunset Advisory Commission the attendance
records of members.
(3)
Except in case of emergency, committee members shall notify
the presiding officer or executive secretary at least 48 hours prior to the
scheduled meeting if unable to be present.
(4)
Except in case of emergency, the executive secretary shall
notify the presiding officer at least 48 hours prior to the scheduled meeting
if unable to be present.
(5)
It is grounds for removal from the committee if a member
is absent from more than half of the regularly scheduled committee meetings
that the member is eligible to attend during a calendar year without an excuse
approved by a majority vote of the committee.
(i)
Reimbursement for expense. A member is entitled to reimbursement
for expenses as provided by the General Appropriations Act.
(1)
No compensatory per diem shall be paid to committee members
unless required by law.
(2)
A committee member who is an employee of a state agency,
other than the department, may not receive reimbursement for expenses from
the department.
(3)
A nonmember of the committee who is appointed to serve
on a subcommittee may not receive reimbursement for expenses from the department.
(4)
Each member who is to be reimbursed for expenses shall
submit to staff the member's receipts for expenses and any required official
forms no later than 14 days after each committee meeting.
(5)
Requests for reimbursement of expenses shall be made on
official state travel vouchers prepared by department staff.
(j)
Rules of order. The latest edition of Roberts Rules of
Order shall be the basis of parliamentary decisions except where otherwise
provided by these committee rules.
(k)
Agendas.
(1)
The executive secretary shall prepare and submit to each
member of the committee, prior to each meeting, an agenda which includes items
requested by members, items required by law, unfinished business, and other
matters of committee business which have been approved for discussion by the
presiding officer.
(2)
The official agenda of a meeting shall be filed with the
Texas Secretary of State in accordance with the Texas Open Meetings Act, Texas
Government Code, Chapter 551.
(l)
Minutes.
(1)
Drafts of the minutes of each meeting shall be forwarded
to each member of the committee for review and comments prior to approval
by the committee.
(2)
After approval by the committee, the minutes of any committee
meeting are official only when affixed with the original signatures of the
presiding officer and the executive secretary and official seal of the committee.
(3)
The official minutes of committee meetings shall be kept
in the office of the executive secretary and shall be available to any person
desiring to examine them during regular office hours.
(m)
Official records.
(1)
All official records of the committee including application
materials, except files containing information considered confidential under
the provisions of the Texas Open Records Act, Texas Government Code, Chapter
552, shall be open for inspection during regular office hours.
(2)
Official records may not be taken from committee offices;
however, persons may obtain photocopies of files upon written request and
by paying the cost per page set by the department. Payment shall be made prior
to release of the records.
(n)
Official seal. The commissioner shall adopt an official
seal for use in the course of official committee business as authorized by
the Act, §603.151(5).
(o)
Registry.
(1)
The department shall prepare a registry of licensed perfusionists
and provisionally licensed perfusionists that is available to the public,
license holders, and appropriate state agencies.
(2)
The registry shall include, but not be limited to, the
names of current licensees.
(3)
An original copy of the registry will be available for
inspection by licensees and members of the public in the office of the executive
secretary.
(p)
Public interest information.
(1)
The department shall prepare information of consumer interest
describing the profession of perfusion, the regulatory functions of the department,
and the procedures by which consumer complaints are filed with and resolved
by the department.
(2)
The department shall make the information available to
the public and appropriate state agencies.
(q)
Executive secretary powers and duties. In addition to performing
other duties prescribed by this section and by the department, the executive
secretary shall:
(1)
administer licensing activity for the department;
(2)
keep full and accurate minutes of the committee's transactions
and proceedings;
(3)
serve as custodian of the committee's files and other records;
(4)
prepare and recommend to the department plans and procedures
necessary to implement the objectives of this chapter, including rules and
proposals on administrative procedure;
(5)
exercise general supervision over persons employed by the
department in the administration of this chapter;
(6)
investigate complaints and present formal complaints;
(7)
attend all committee meetings as a nonvoting participant;
(8)
handle the committee's correspondence; and
(9)
obtain, assemble, or prepare reports and other information
as directed or authorized by the committee.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on June 9, 2006.
TRD-200603106
Cathy Campbell
General Counsel
Department of State Health Services
Effective date: June 29, 2006
Proposal publication date: December 16, 2005
For further information, please call: (512) 458-7111 x6972
25 TAC §140.2, §140.6
STATUTORY AUTHORITY
The adopted repeals are authorized by Texas Occupations Code, Chapter 603;
and Government Code, §531.0055, and Health and Safety Code, §1001.075,
which authorize the Executive Commissioner of the Health and Human Services
Commission to adopt rules and policies necessary for the operation and provision
of health and human services by the department and for the administration
of Health and Safety Code, Chapter 1001.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on June 9, 2006.
TRD-200603107
Cathy Campbell
General Counsel
Department of State Health Services
Effective date: June 29, 2006
Proposal publication date: December 16, 2005
For further information, please call: (512) 458-7111 x6972