EMERGENCY RULES An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing and remaining in effect no more than 120 days. The emergency action is renewable once for no more than 60 additional days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 22. EXAMINING BOARDS Part XXX. Texas State Board of Examiners of Perfusionists Chapter 761. Perfusionists 22 TAC sec.sec.761.1-761.3, 761.6-761.8, 761.10, 761.15 The Texas State Board of Examiners of Perfusionists adopts on an emergency basis new sec.sec.761.1-761.3, 761.6-761.8, 761.10, and 761.15, concerning the licensure of perfusionsists. Specifically the sections cover definitions, board operation, the profession of perfusion, application procedures for grandfather licensure, determination of eligibility, grandfather period, licensing of persons with criminal backgrounds to be a perfusionist, violations, complaints, and subsequent board actions, and formal hearings. The adoption is necessary to implement the provisions in Acts 1993, 73rd Legislature, Regular Session, Chapter 761 (House Bill 1835), which requires persons applying under the grandfather provision of the statute to have filed completed applications prior to September 1, 1995. Therefore, it is necessary to have rules governing the grandfather provision in place no later than January 1, 1995. The rules are adopted on an emergency basis under Acts 1993, 73rd Legislature, Regular Session, Chapter 761, relating to perfusion. sec.761.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-The Licensed Perfusionists Act, Texas Civil Statutes, Article 4529e. APA-The Administrative Procedure Act, Government Code. Board-The Texas State Board of Examiners of Perfusionists. Board of Health -The Texas Board of Health. Cardiopulmonary surgery -Surgery pertaining to the heart, great vessels, or lungs. Commissioner-The Commissioner of Health. Contested case -A proceeding in accordance with APA and this chapter, including, but not restricted to, rule enforcement and licensing, in which the legal rights, duties, or privileges of a party are to be determined by the board after an opportunity for an adjudicative hearing. Delegated authority -As defined in the Texas Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.3.06 (d)(1) and the rules pertaining thereto adopted by the Board of Medical Examiners. Department-The Texas Department of Health. Extracorporeal circulation -The diversion of a patient's blood through a heart-lung machine or a similar device that assumes the functions of the patients' heart, lungs, or both. Formal hearing -A formal hearing or proceeding in accordance with this chapter and includes a contested case. Formally trained -Completion of an organized educational activity which: (A) includes supervised and directed instruction specific to the perfusion procedures to be performed by the individual; (B) includes objectives, activities and an evaluation of competency; and (C) is specifically supervised and directed by another individual qualified to provide the training and supervision. Health care professional-A licensed perfusionist, or any person licensed, certified, or registered by the state in a health-related profession. Hearing examiner -A person duly designated and appointed by the chairman of the board who conducts formal hearings under this chapter on behalf of the board. Licensed perfusionist -A person licensed under the Act who practices perfusion. Licensed physician -A physician licensed under Texas Civil Statutes, Article 4495b, by the Texas State Board of Medical Examiners. Licensee-A person who holds a current license as a perfusionist issued by the board. Perfusion-The function necessary for the support, treatment, measurement, or supplementation of the cardiovascular, circulatory respiratory system, or a combination of those activities, and to ensure the safe management of physiologic functions by monitoring the parameters of the system under an order and under the supervision of a licensed physician, including: (A) the use of extracorporeal circulation, cardiopulmonary support techniques, and other therapeutic and diagnostic technologies; (B) counterpulsation, ventricular assistance, or autotransfusion (including blood conservation techniques), administration of cardioplegia, and isolated limb perfusion; (C) the use of techniques involving blood management, advanced life support, and other related functions; and (D) in the performance of the acts described in this subsection: (i) the administration of: (I) pharmacological and therapeutic agents; or (II) blood products or anesthetic agents through the extracorporeal circuit or through an intravenous line as ordered by a physician; (ii) the performance and use of: (I) anticoagulation analysis; (II) physiologic analysis; (III) blood gas and chemistry analysis; (IV) hematocrit analysis; (V) hypothermia; (VI) hyperthermia; (VII) hemoconcentration; and (VIII) hemodilution; and (iii) the observation of signs and symptoms related to perfusion services, the determination of whether the signs and symptoms exhibit abnormal characteristics, and the implementation of appropriate reporting, perfusion protocols, or changes in or the initiation of emergency procedures. Perfusionist-An individual who practices perfusion. Perfusion protocols -Perfusion-related policies and protocols developed or approved by a licensed health facility or a physician through collaboration with administrators, licensed perfusionists, and other health professionals. Pleading-Any written allegation filed by a party concerning its claim or position. sec.761.2. The Board's Operation. (a) Purpose. This section sets out the organization and administration and other general procedures and policies governing the operation of the board. (b) Officers. (1) Chairman. (A) The chairman shall preside at all board meetings at which he or she is in attendance and perform all duties prescribed by law or board rules. (B) The chairman is authorized by the board to make day-to-day minor decisions regarding board activities in order to facilitate the responsiveness and effectiveness of the board. (C) The chairman shall serve as an ex-officio member of all committees except the complaint committee. (2) Vice-chairman. (A) The vice-chairman shall perform the duties of the chairman in case of the absence or disability of the chairman. (B) In case the office of chairman becomes vacant, the vice-chairman shall serve until a successor is elected. (c) Meetings. (1) The board shall hold at least two regular meetings and additional meetings as necessary during each year, at such designated date, place, and time as may be determined by the chairman. (2) Special meetings may be called by the chairman at such times, dates, and places as become necessary for the transaction of board business. (3) Meetings shall be announced and conducted under the provisions of the Texas Open Meetings Act, Texas Government Code, Chapter 551. (d) Quorum. A quorum of the board necessary to conduct official business is five members. (e) Transaction of official business. (1) The board may transact official business only when in a legally constituted meeting with a quorum present. (2) The board shall not be bound in any way by any statement or action on the part of any board or staff member except when a statement or action is in pursuance of specific instructions of the board. (3) Board action shall require a majority vote of those members present and voting. (f) Policy against discrimination. The board shall make decisions in the discharge of its statutory authority without discrimination based on any person's race, creed, gender, religion, national origin, geographical distribution, age, physical condition, or economic status. (g) Impartiality. Any board member who is unable to be impartial in any proceeding before the board, such as that pertaining to an applicant's eligibility for licensure or a complaint against or a violation by a licensee, shall so declare this to the board and shall not participate in any board proceedings involving that individual. (h) Attendance. (1) The policy of the board is that members shall attend regular and committee meetings as scheduled. (2) The board may report to the governor and the Texas Sunset Advisory Commission the attendance records of members. (3) Except in case of emergency, board members shall notify the 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 chairman at least 48 hours prior to the scheduled meeting if unable to be present. (i) Reimbursement for expenses. (1) A board member is entitled to a per diem payment at the rate set by the General Appropriations Act for each day that the member engages in the business of the board. (2) A board member is entitled to compensation for transportation expenses as provided by the General Appropriations Act. (3) Payment to board members of per diem and transportation expenses shall be requested on official state travel vouchers which have been approved by the executive secretary. (4) Board-approved requests for board staff for out-of-state travel for board activities shall be approved by the Associate Commissioner for Health Care Quality and Standards of the department on appropriate forms. (5) Attendance at conventions, meetings, and seminars must be clearly related to the performance of board duties and show a benefit to the state. (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 board rules. (k) Agendas. (1) The executive secretary shall prepare and submit to each member of the board, prior to each meeting, an agenda which includes items requested by members, items required by law, unfinished business, and other matters of board business which have been approved for discussion by the chairman. (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 board for review and comments prior to approval by the board. (2) After approval by the board, the minutes of any board meeting are official only when affixed with the original signatures of the chairman and the executive secretary. (3) The official minutes of board 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 board 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) A person desiring to examine official records shall be required to identify himself and sign statements listing the records requested and examined. (3) Official records may not be taken from board 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) Elections. (1) At the meeting held nearest to February 1 of each odd-numbered year, the board shall elect by a majority vote of those members present and voting, a chairman and a vice-chairman. (2) A vacancy which occurs in the offices of chairman or vice-chairman shall be filled, for the duration of the unexpired term, by a majority vote of those members present and voting at the next board meeting. (3) A board member shall not serve more than two consecutive terms in the office of chairman or vice chairman. (o) Committees. (1) The board or the chairman with the approval of the board may establish committees deemed necessary to assist the board in carrying out its duties and responsibilities. (2) The chairman may appoint the members of the board to serve on committees and may designate the committee chairman. (3) The chairman of the board may appoint nonboard members to serve as committee members on a consultant or voluntary basis, subject to board approval. (4) Committee chairman shall make regular reports to the board in interim written reports or at regular meetings, as needed. (5) Committees shall direct all reports or other materials to the executive secretary for distribution. (6) Committees shall meet when called by the chairman of the committee or when so directed by the board. (7) The following standing committees shall be appointed by the newly elected chairman each odd-numbered year to serve a term of two years. (A) The Rules Committee shall be composed of at least two board members who are licensed perfusionists and one public member of the board. The committee shall review all board rules at least once annually to ensure that the rules are current in relation to perfusionist practice, and may recommend and propose adoption of rules to the board. The committee shall consider all petitions for adoption of rules and shall recommend disposition of these petitions to the board in accordance with subsection (t) of this section. (B) The Complaint Committee shall be composed of one board member who is a licensed perfusionist and one public member of the board. The committee may review complaints received by the board and shall recommend action to be taken on complaints in accordance with sec.761.16 of this title (relating to Violations, Complaints, and Subsequent Board Actions). (p) Official seal. The official seal of the board shall consist of two concentric circles with the words "Texas State Board of Examiners of Perfusionists" circularly arranged about the inner edge of the outermost circle, and in the center of the innermost circle there shall be a five-pointed star, surrounded by the live oak and olive branches common to official state seals. (q) Registry. (1) Each year the executive secretary shall publish a registry of current licensees. (2) The registry shall include, but not be limited to, the name 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. Upon receipt of a written request and payment of a fee, the executive secretary shall furnish at cost a copy to a licensee or member of the public. The cost of a copy of the registry or any portion thereof shall be in accordance with the cost guidelines of the department. (r) Consumer information. The executive secretary with the approval of the board shall publish information of consumer interest which describes the regulatory functions of the board, board procedures to handle and resolve consumer complaints, and the profession of perfusion. (s) Fees. (1) The board has established reasonable and necessary fees to provide the funds to support the activities listed in paragraph (2) of this subsection and other activities required by the Act. (2) Schedule of fees for licensure as a perfusionist is as follows: (A) application and initial license fee-$150; and (B) license certificate and identification card replacement fee-$10. (3) An applicant whose check for the application fee is not honored by the financial institution may reinstate the application by remitting to the board a money order or check for guaranteed funds within 30 days of the date of receipt of the board's notice. An application will be considered incomplete until the fee has been received and cleared through the appropriate financial institution. (4) Fees paid to the board by applicants are not refundable. (5) Any remittance submitted to the board in payment of a required fee must be in the form of a personal check, certified check, or money order. (6) The board 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. (t) Petition for adoption of a rule. (1) Purpose. The rule's purpose is to delineate the board's procedures for the submission, consideration, and disposition of a petition to the board to adopt a rule. (2) Submission of the petition. (A) Any person may petition the board to adopt a rule. (B) The petition shall be in writing, shall contain the petitioner's name and address, and shall describe the rule and the reason for it; however, if the executive secretary determines that further information is necessary to assist the board in reaching a decision, the executive secretary may require that the petitioner resubmit the petition and that it contain: (i) a brief explanation of the proposed rule; (ii) the text of the proposed rule prepared in a manner to indicate the words to be added or deleted from the current text, if any; (iii) a statement of the statutory or other authority under which the rule is to be promulgated; and (iv) the public benefits anticipated as a result of adopting the rule or the anticipated injury or inequity which would result from the failure to adopt the proposed rule. (C) The board may deny a petition which does not contain the information in subparagraph (B) of this paragraph if the executive secretary determines that it is necessary. (D) The petition shall be mailed or delivered to the executive secretary, Texas State Board of Examiners of Perfusionists, 1100 West 49th Street, Austin, Texas 78756-3183. (3) Consideration and disposition of the petition. (A) The executive secretary shall submit a completed petition to the board for its consideration. (B) Within 60 days after receipt of the petition by the executive secretary, or within 60 days after receipt of a resubmitted petition in accordance with paragraph (2)(B)(i)-(iv) of this subsection, the board shall either: (i) deny the petition; or (ii) initiate rule-making procedures by referring the petition to the rules committee for its recommendation. The committee shall report its recommendations to the board at its next regular meeting. (C) The board may deny parts of the petition or institute rule making procedures on parts of the petition. (D) If the board denies the petition, the executive secretary shall give the petitioner written notice of the board's action, including the reason(s). (E) If the board initiates rule-making procedures in accordance with the Administrative Procedure Act, sec.5, the version of the rule which the board proposes may differ from the version proposed by the petitioner. (4) Subsequent petitions to adopt the same or similar rules. All initial petitions for the adoption of a rule shall be presented to and decided by the board in accordance with the provisions of paragraphs (2) and (3) of this subsection. The board may refuse to consider any subsequent petition for the adoption of the same or similar rule submitted within six months after the date of the initial petition. sec.761.3. The Profession of Perfusion. (a) Purpose. The rules on the profession of perfusion shall establish the standards of professional and ethical conduct required of a licensee. (b) Code of ethics. These rules shall constitute a code of ethics as authorized by the Act, sec.6(b)(1). (1) Professional representation and responsibilities. (A) A licensee shall not misrepresent any professional qualifications or credentials. (B) A licensee shall not make any false or misleading claims pertaining to the indications and efficacy of the practice of perfusion. (C) A licensee shall not permit the use of his/her name for the purpose of certifying that perfusion services have been rendered unless that licensee has provided those services. (D) A licensee shall not promote or endorse products in a manner that is false or misleading. (E) A licensee shall disclose to the reimbursing entity any personal gain or profit from any supply, procedure or service. (F) A licensee shall have the responsibility of reporting alleged misrepresentations or violations of board rules to the board's executive secretary. (G) A licensee shall comply with any order relating to the licensee which is issued by the board. (H) A licensee shall not aid or abet the practice or misrepresentation of an unlicensed person when that person is required to have a license under the Act. (I) A licensee shall not make any false, misleading, or deceptive claims in any advertisement, announcement, or presentation relating to the services of the licensee. (J) A licensee shall not interfere with an investigation or disciplinary proceeding by willful misrepresentation of facts to the board or its authorized representative or by the use of threats or harassment against any person. (K) A licensee shall conform to the Code of Ethics of the American Board of Cardiovascular Perfusion which is summarized as follows: (i) The perfusionist who willfully misstates fact during the application, examination, or recertification processes is guilty of unethical conduct. Likewise the willful misstatement of fact regarding the title or membership in a professional community is considered unethical conduct. (ii) The perfusionist who consciously fails to promote both the safety and protection of the public is guilty of unethical conduct. (iii) The perfusionist who willfully disregards the patient for monetary gain is guilty of unethical conduct. Examples of such conduct are unjustified reimbursement for services performed or prejudicial compensation. (iv) The perfusionist who shows willful disregard for sound patient care by acts of omission is guilty of unethical conduct. (v) The ethical perfusionist shall subscribe to all other applicable ethical standards of the medical community. (vi) The perfusionist accepts the responsibility for subscribing to the preceding Code of Ethics and for reporting unethical professional conduct. (2) Professional relationships. (A) A licensee shall make known to a prospective reimbursing entity the important aspects of the professional relationship including fees and arrangements for payment which might affect the reimbursing entity's decision to enter into the relationship. (B) A licensee shall bill a reimbursing entity in the manner agreed to by the licensee and entity in accordance with 42 United States Code, sec.1395nn, relating to the anti-kickback statute and Health and Safety Code, sec.161.091, relating to illegal renumeration. (C) A licensee shall not receive or give a commission or rebate or any other form of renumeration for the referral of professional services. (D) A licensee shall disclose to the reimbursing entity any interest in commercial enterprises relating to the practice of perfusion which the licensee promotes for the purpose of personal gain or profit. (E) A licensee shall practice perfusion without discrimination based on race, creed, gender, religion, national origin, or age. (F) A licensee shall not violate any provision of any federal or state statute relating to confidentiality of patient communications and records. (G) A licensee shall not engage in sexual contact with a patient. The term "sexual contact" means any type of sexual behavior described in the Texas Penal Code, Chapters 21, 22 or 43 and includes sexual intercourse. (3) Billing information required; prohibited practices. (A) On the written request of a patient, a patient's guardian, a patient's parent if the patient is a minor, or the billing entity, a licensee shall provide, in plain language, a written explanation of the charges for acts of perfusion previously made on a bill or statement for the patient. This requirement applies even if the charges are to be paid by a third party. (B) A licensee may not persistently or flagrantly overcharge or overtreat a patient. (4) Sanctions. A licensee shall be subject to disciplinary action by the board, if under the Crime Victims Compensation Act, Texas Civil Statutes, Article 8309-1 the licensee is issued a public letter of reprimand, is assessed a civil penalty by a court, or has an administrative penalty imposed by the attorney general's office. (c) Disclosure. A licensee shall make a reasonable attempt to notify each patient of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board by providing notification: (1) on each written contract for services of a licensee; or (2) on a sign prominently displayed in the primary place of business of each licensee; or (3) in a bill for service provided by a licensee to a patient or reimbursing entity. (d) Unlawful false, misleading, or deceptive advertising. (1) A licensee shall not use advertising that is false, misleading, or deceptive or that is not readily subject to verification. (2) False, misleading, or deceptive advertising or advertising that is not readily subject to verification includes advertising that: (A) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading; (B) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure; (C) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated; (D) contains a testimonial; (E) causes confusion or misunderstanding as to the credentials, education, or licensure of a perfusionist; (F) advertises or represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required; (G) advertises or represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required; (H) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or (I) advertises or represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional. sec.761.6. Exemptions. Exemptions are set out in Section 17 of the Act. sec.761.7. Application Procedures for Grandfather Licensure. (a) Purpose. The purpose of this section is to set out the application procedures for grandfather licensure and to establish the qualifications of an applicant for licensure. (b) Qualifications of applicants for perfusion licensure. (1) In determining the qualifications of applicants for licensure the board may request and consider any of the following: (A) evaluations of supervisors or instructors; (B) evaluations of employers or professional associations; (C) allegations of clients; (D) transcripts or findings from official court, hearing or investigative proceedings; and (E) any other information which the board considers pertinent to determining the qualifications of an applicant. (2) The substantiation of any of the following items related to an applicant may be, as the board determines, the basis for the denial of licensure of the applicant: (A) misrepresentation of professional qualifications or associations; and (B) any misrepresentation in application or other materials submitted to the board. (c) General. (1) An applicant must submit a sworn application form and all required information and documentation of credentials on official board forms. (2) The board will not consider an application as officially submitted until the applicant pays the application fee. The application and initial license fees of $150 must accompany the application form. (3) The executive secretary will send a notice listing the additional materials required to an applicant who submits an incomplete application. (4) All application materials and fees required under this section must be received by the board office or bear a postmark on correspondence to the board prior to September 1, 1995. (d) Required application materials. (1) The application form shall contain: (A) specific information regarding personal data, social security number, date of birth, place of employment, other state licenses and certifications held, misdemeanor and felony convictions, educational and training background, and work experience; (B) a statement that the applicant has read the Act and board rules and agrees to abide by them; (C) the applicant's permission to the board to seek any information or references it deems fit to determine the applicant's qualifications; (D) a statement that the applicant, if issued a license, shall return the license certificate and license identification card to the board upon the revocation or suspension of the license; (E) a statement that the applicant understands that fees submitted in the licensure process are nonrefundable; (F) a statement that the applicant understands that materials submitted in the licensure process become the property of the board and are nonreturnable; and (G) the signature of the applicant which has been dated and notarized. (2) Applicants applying under sec.761.10(b)(3) of this title (relating to Grandfather Period) must submit official transcript(s) from a perfusion education program accredited by the Accreditation Committee for Perfusion Education (AC-PE) and approved by the Commission on Accreditation of Allied Health Education Programs (CAAHEP) or their predecessors. (3) Applicants must submit a full-face photo, a minimum in size of 1 1/2 inches by 1 1/2 inches, signed on the reverse side with the applicant's signature as it appears on the application. The photograph must have been taken within the two-year period prior to application. (4) Vitae, resumes, and other documentation of the applicant's credentials may be submitted. sec.761.8. Determination of Eligibility. (a) The board may delegate approval of applications for licensing to a committee of the board. (b) The board may disapprove the application if the person has: (1) not completed the requirements in sec.761.10 of this title (relating to Grandfather Period); (2) failed to remit any applicable fees required in s761.2(s) of this title (relating to the Board's Operations); or (3) failed or refused to properly complete or submit any application form(s) or endorsement(s), or deliberately presented false information on the application form, or any other form or document required by the board to verify the applicant's qualifications for licensure. (c) If after review, the committee under guidance provided by the board 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. The notice and hearing shall be in accordance with sec.761.16 of this title (relating to Violations, Complaints, and Subsequent Board Actions). sec.761.10. Grandfather Period. (a) The grandfather period begins on January 1, 1995 and expires September 1, 1995. (b) The board may issue an annual license without an examination to a person actively engaged in the practice of perfusion, on or prior to January 1, 1993, so long as the person submits proof satisfactory to the board that the person meets one of the following requirements: (1) the person, as of January 1, 1994, was operating cardiopulmonary bypass systems during cardiopulmonary surgery in a health care facility(ies) licensed in the United States as the person's primary function and had been operating the systems since January 1, 1989; or (2) the person, as of January 1, 1995, has had at least five years experience operating cardiopulmonary bypass systems during cardiopulmonary surgery in a health care facility(ies) licensed in the United States since January 1, 1986; or (3) the person has successfully completed a perfusion education program accredited by the Accreditation Committee for Perfusion Education (AC-PE) and approved by the Commission on Accreditation of Allied Health Education Programs (CAAHEP), or its predecessors, after January 1, 1989, and holds as of the application date a certificate as a certified clinical perfusionist issued by the American Board of Cardiovascular Perfusion (ABCP). (c) The applicant must provide proof of such practice by submitting to the board the following: (1) properly completed official forms as required in sec.761.7 of this title(relating to Application Procedures for Grandfather Licensure); and (2) applicants applying under subsection (b)(1) of this section must submit a clinical activity documentation report form(s) documenting his or her operation of cardiopulmonary bypass systems during cardiopulmonary surgery in a licensed health care facility on January 1, 1994 and the operation of said system as a primary function for each year since January 1, 1989. The applicant shall submit board forms which includes: (A) documentation of the dates, medical record numbers, procedure, surgeon and facility recording 25 cases per calendar year; and (B) a signed statement of verification of status as a perfusionist at a licensed health care facility on January 1, 1994; (3) applicants applying under subsection (b)(2) of this section must submit a clinical activity(ies) documentation report form(s) documenting clinical activity(ies) in the field of perfusion for five years beginning January 1, 1986, through December 31, 1993. The applicant shall submit board forms showing the dates, medical record numbers, procedures, surgeon, and facility recording 25 cases per calendar year; (4) applicants applying under subsection (b)(3) of this section, an official board form documenting completion of a perfusion education program and current certification as a certified clinical perfusionist; and (5) applicants applying under subsection (b)(1) or (b)(2) of this section, verification of annual recertification by the ABCP may be submitted in lieu of documentation of 25 cases per year. (d) Primary function and experience shall be defined as the person performing as the primary perfusionist for at least 25 perfusion cases utilizing cardiopulmonary bypass procedures during cardiopulmonary surgery during each calendar year. (e) All application materials and fees required under this section must be received by the board office or bear a postmark on correspondence to the board prior to September 1, 1995. (f) Time deadlines are established by statutory authority and are the responsibility of the applicant. sec.761.15. Licensing of Persons with Criminal Backgrounds to Be A Perfusionist. (a) Purpose. This section is designed to establish guidelines and criteria on the eligibility of person(s) with criminal backgrounds to obtain licenses as perfusionists. (b) Criminal convictions which directly relate to the profession of perfusion. (1) The board may disqualify a person from receiving a license, because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a licensee. (2) In considering whether a criminal conviction directly relates to the occupation of a licensed perfusionist, the board shall consider: (A) the nature and seriousness of the crime; (B) the relationship of the crime to the purposes for licensure as a perfusionist. The following felonies and misdemeanors listed in clauses (i) - (iv) of this paragraph relate to the license of a perfusionist because these criminal offenses indicate an inability or a tendency to be unable to perform as a licensed perfusionist. The misdemeanors and felonies listed in clauses (i)- (iii) of this subparagraph are not inclusive in that the board may consider other particular crimes in special cases in order to promote the intent of the Act and these sections; (i) the misdemeanor of knowingly or intentionally acting as a licensed perfusionist without a license under the Act, sec.15; (ii) a misdemeanor or a felony offense involving moral turpitude; (iii) a conviction relating to Medicare or Medicaid fraud; and (iv) a misdemeanor or felony offense under the following titles of the Texas Penal Code: (I) offenses against the person (Title 5); (II) offenses against property (Title 7); (III) offenses against public order and decency (Title 9); (IV) offenses against public health, safety, and morals (Title 10); (V) offenses of attempting or conspiring to commit any of the offenses in this subsection (Title 4); and (VI) insurance claim fraud under the Penal Code, sec.32.55; (C) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and (D) the relationship of the crime to the ability or capacity required to perform the duties and discharge the responsibilities of a licensed perfusionist. In making this determination, the board will apply the criteria outlined in Texas Civil Statutes, Article 6252-13c, sec.4(c)(1)-(7). (c) Procedures for denying a license to persons with criminal backgrounds. (1) The board's executive secretary will give written notice to the person that the board intends to deny the license in accordance with the provisions of the Administrative Procedure Act and Texas Government Code, Chapter 2001, and the board's formal hearing procedures, sec.761.16 of this title (relating to Violations, Complaints, and Subsequent Board Actions) and sec.761.17 of this title (relating to Formal Hearings). (2) If the board denies an application for a license under this section the executive secretary will give the person written notice: (A) of the reasons for the decision; and (B) that the person, after exhausting administrative appeals, may appeal in a district court of Travis County, Texas. sec.761.16. Violations, Complaints, and Subsequent Board Actions. (a) Purpose. The purpose of this section is to set out: (1) violations and prohibited actions under the Act and the board rules; (2) procedures for filing complaints alleging violations and prohibited actions under the Act or rules; (3) the board's investigation of complaints; and (4) board actions against a person when violations and prohibited actions have occurred. (b) Types of violations and prohibited actions. (1) A person may not knowingly or intentionally represent or imply that he or she has the title of "licensed perfusionist" or use the letters "LP" or any facsimile of that title in any manner unless the person holds an appropriate license issued under the Act. (2) A person may not intentionally or knowingly represent or imply that he or she has the title of " certified clinical perfusionist" or use the letters "CCP" or any facsimile of that title in any manner unless the person is certified as a certified clinical perfusionist by the American Board of Cardiovascular Perfusion. (3) A licensee may not violate any of the provisions of the Act or any rules adopted by the board. (c) Filing of complaints. (1) Anyone may complain to the board alleging that a person has committed an action prohibited under the Act or that a licensee has violated the Act or a board rule. (2) A person wishing to complain about a prohibited act or alleged violation against a licensee or other person acting as a perfusionist shall notify the executive secretary. The initial notification of a complaint may be in writing, by telephone, or by personal visit to the executive secretary's office. The mailing address is Texas State Board of Examiners of Perfusionists, 1100 West 49th Street, Austin, Texas 78756-3183, (512) 834-6751. (3) Upon receipt of a complaint, the executive secretary shall send to the complainant an acknowledgment letter and the board's complainant form, which the complainant will be requested to complete and return to the executive secretary before further action can be taken. If the complaint is made by a visit to the executive secretary's office, the form may be given to the complainant at that time; however, it must be completed and returned to the executive secretary before further action can be taken. Copies of the complaint form may be obtained from the Texas State Board of Examiners of Perfusionists, 1100 West 49th Street, Austin, Texas 78756-3183. (4) Anonymous written complaints shall be investigated by the executive secretary provided that the complainant provides sufficient information. (d) Investigation of complaints. (1) The executive secretary on behalf of the board is responsible for handling complaints. (2) If the executive secretary determines that the complaint does not come within the board's jurisdiction, the executive secretary shall advise the complainant and, if possible, refer the complainant to the appropriate governmental agency for handling such complaints. (3) The executive secretary, on behalf of the board, shall, at least as frequently as quarterly, notify the parties to the complaint of the status of the complaint until its final disposition. (4) If an investigation is initiated, the investigator shall always attempt to contact the complainant to discuss the complaint. (5) The board shall use a private investigator only if the department's investigators available to the board have a conflict of interest or are not available to respond to a complaint in a timely manner. (e) Actions by executive secretary. (1) The executive secretary alone or with the concurrence of the Complaint Committee may take one or more of the following actions: (A) determine that an allegation is groundless and dismiss the complaint; (B) determine that a nonlicensed person has committed a prohibited action under subsection (b) of this section. The complaint committee shall consider the seriousness and the effects of the violation and shall initiate one of the following actions: (i) attempt to resolve the complaint by requesting the violator to stop the action immediately. If the violator complies, the executive secretary may close the complaint file; or (ii) with the concurrence of the board chairman, ask the attorney general, district attorney, or county attorney to take appropriate legal action against the violator; (2) Whenever the executive secretary dismisses a complaint or closes a complaint file, the executive secretary will give a summary report of the final action to the board, the complainant, and the accused party. (f) Formal hearings. (1) The formal hearing shall be conducted according to the hearing procedures in sec.761.17 of this title (relating to Formal Hearings) and sec.761. 15 of this title (relating to Licensing of Persons with Criminal Backgrounds to Be A Perfusionist), if the latter is applicable. (2) To initiate formal hearing procedures, the executive secretary shall give the applicant written notice of the opportunity for hearing. The notice shall state the basis for the proposed action. Within ten days after receipt of the notice, the applicant may give written notice to the executive secretary that the applicant wants a hearing. (A) If the person fails to respond within ten days after receipt of the notice of opportunity, the person is deemed to have waived the hearing. If the hearing has been waived, the executive secretary may recommend to the board that the application be denied. The board may take the final action which the board deems appropriate. (B) If the person requests a hearing within ten days after receiving the notice of opportunity for hearing, the executive secretary shall request the department's office of general counsel to initiate formal hearing procedures. (3) After a formal hearing is conducted, the board, meeting in quorum and by a majority of those present and voting, will determine the necessary final action after receiving the hearing officer's recommendation. The complaint committee members shall not participate in the final action. sec.761.17. Formal Hearings. (a) Purpose. This section covers the formal hearing procedures and practices that will be used by the board in handling denial of licenses. Such hearing will be conducted pursuant to the contested case provisions of the Administrative Procedure Act (APA), Chapter 2001, Texas Government Code, 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 hearing examiner may proceed with the hearing or take whatever action is fair and appropriate under the circumstances. (3) All parties shall timely notify the hearing examiner of any changes in their mailing addresses. (c) Parties to the hearing. (1) The parties to the hearing shall be the applicant or licensee and the complaints committee or executive secretary, as appropriate. (2) A party may appear personally or be represented by counsel or both. (d) Prehearing conferences. (1) In a contested case, the hearing examiner, on his own motion or the motion of a party, may direct the parties to appear at a specified time and place for a conference prior to the hearing for the purpose of: (A) the formulation and simplification of issues; (B) the necessity or desirability of amending the pleading; (C) the possibility of making admissions or stipulations; (D) the procedure at the hearing; (E) specifying the number of witnesses; (F) the mutual exchange of prepared testimony and exhibits; (G) the designation of parties; and (H) other matters which may expedite the hearing. (2) The hearing examiner shall have the minutes of the conference recorded in an appropriate manner and shall issue whatever orders are necessary covering the said matters or issues. (3) Any action taken at the prehearing conference may be reduced to writing, signed by the parties, and made a part of the record. (e) Assessing the cost of a court reporter and the record of the hearing. (1) In the event a court reporter is utilized in the making of the record of the proceedings, the board shall bear the cost of the per diem or other appearance fee for such reporter. (2) The board may prepare, or order the preparation of a transcript (statement of facts) of the hearing upon the written request of any party. The board may pay the cost of the transcriptor assess the cost to one or more parties. (3) In the event a final decision of the board is appealed to the district court wherein the board is required to transmit to the reviewing court a copy of the record of the hearing proceeding, or any part thereof, the board may require the appealing party to pay all or part of the cost of preparation of the original or a certified copy of the record of the board proceedings that is required to be transmitted to the reviewing court. (f) Disposition of case. Unless precluded by law, informal disposition may be made of any contested case by agreed settlement order or default order. (g) 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. (h) Final orders or decisions. (1) The final order or decision will be rendered by the board. The board is not required to adopt the recommendation of a hearing examiner 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 the executive secretary and the chairman of the board; however, interim orders may be issued by the hearing examiner in accordance with the order of appointment. (4) A copy of all final orders and decisions shall be timely provided to all parties as required by law. (i) Motion for rehearing. A motion for rehearing shall be governed by APA, sec.2001.146, Texas Government Code and shall be addressed to the board and filed with the executive secretary. (j) Appeals. All appeals from final board orders or decisions shall be governed by APA, Subchapter G, Texas Government Code and communications regarding any appeal shall be to the executive secretary. Issued in Austin, Texas, on December 14, 1994. TRD-9452444 Shannon E. Ballard Chairman Texas State Board of Examiners of Perfusionists Effective date: January 1, 1995 Expiration date: May 1, 1995 For further information, please call: (512) 834-6751