For further information, please call: (512) 458-7236

25 TAC §135.25 - 135.27

The repeals are adopted under Health and Safety Code, Chapter 243, the Texas Ambulatory Surgical Center Licensing Act; Health and Safety Code, §243.006, regarding inspections; Health and Safety Code, §243.007, regarding fees; Health and Safety Code, §243.0115 which grants the department authority to issue an emergency suspension order to suspend a license; Health and Safety Code, §243.015 and §243.016, which provides the department with the authority to assess administrative penalties against an ambulatory surgical center for violation of Chapter 243 and the rules adopted thereunder; and Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and commissioner of health.

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 May 24, 2000.

TRD-200003684

For further information, please call: (512) 458-7236

Chapter 137. BIRTHING CENTERS

Subchapter C. ENFORCEMENT

The Texas Department of Health (department) adopts the repeal of §137.23, and new §§137.23 - 137.25, concerning the regulation of birthing centers. Section 137.24 is adopted with changes to the proposed text as published in the January 28, 2000, issue of the Texas Register (25 TexReg 504). The repeal of §137.23 and new §§137.23 and 137.25 are adopted without changes and therefore the sections will not be republished.

The repeal of §137.23 allows the reorganization in a more appropriate order the sections within Subchapter C which contain new language to incorporate legislative mandates. The adopted language in §137.23 is moved to new §137.25. New §137.23 implements certain provisions of Senate Bill 1232, 76th Legislature, 1999, which grants the department the authority to issue an emergency order to suspend a license.

New §137.24 implements House Bill 2085, Article 4, which amends Health and Safety Code, Chapter 244 by adding §244.015 and §244.016 relating to administrative penalties for birthing centers. These sections set forth standard language developed by the Sunset Advisory Commission regarding the imposition of an administrative penalty on a person who violates Chapter 244 or a rule adopted under that chapter; the amount of the penalty; the basis for the amount of the penalty; the report and notice of a violation and penalty; the penalty to be paid or hearing requested; a hearing; decision by the commissioner; options following a decision to pay or appeal; stay enforcement of the penalty; collection of penalty; decision by the court; the remittance of penalty and interest; and release of bond. Section 137.24 incorporates the language of §244.015 and §244.016.

New §137.25 includes the adopted language of §137.23 that is repealed. In addition, a new subsection (i) is added to implement Health and Safety Code §244.0105, of SB 1232, 76th Legislature, 1999. The subsection sets forth standard language developed by the Sunset Advisory Commission authorizing that a person may file a complaint with the department against a birthing center licensed under Health and Safety Code, Chapter 244, and that a person who files a false complaint may be prosecuted under the Penal Code. Section §137.25(i) incorporates the language of §244.0105.

No comments were received on the proposal during the comment period.

The department is making the following change due to staff comments to reflect proper reference to Government Code, Chapter 2001.

Change: Concerning §137.24(a)(3), proper reference is given to the Government Code, Chapter 2001.

25 TAC §137.23

The repeal is adopted under Health and Safety Code, Chapter 244, which authorizes the department to issue an emergency suspension order to suspend a license; which provides the department with the authority to assess administrative penalties against a birthing center for violation of Health and Safety Code, Chapter 244 and the rules adopted thereunder; and Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and commissioner of health.

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 May 24, 2000.

TRD-200003679

For further information, please call: (512) 458-7236

25 TAC §§137.23 - 137.25

The new sections are adopted under Health and Safety Code, Chapter 244, which authorizes the department to issue an emergency suspension order to suspend a license; which provides the department with the authority to assess administrative penalties against a birthing center for violation of Health and Safety Code, Chapter 244 and the rules adopted thereunder; and Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and commissioner of health.

§137.24.Administrative Penalties.

Imposition of penalty.

The department may impose an administrative penalty on a person licensed under this chapter who violates the Act, this chapter, or an order adopted under this chapter.

A penalty collected under this section shall be deposited in the state treasury in the general revenue fund.

A proceeding to impose the penalty is considered to be a contested case under Government Code, Chapter 2001.

Amount of penalty.

The amount of the penalty may not exceed $1,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. The total amount of the penalty assessed for a violation continuing or occurring on separate days under this paragraph may not exceed $5,000.

In determining the amount of an administrative penalty assessed under this section, the department shall consider:

the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

the threat to health or safety caused by the violation;

the history of previous violations;

the amount necessary to deter a future violation;

whether the violator demonstrated good faith, including when applicable whether the violator made good faith efforts to correct the violation; and

any other matter that justice may require.

Report and notice of violation and penalty.

If the department initially determines that a violation occurred, the department shall give written notice of the report by certified mail to the person alleged to have committed the violation not later than 90 days following the survey exit date.

The notice must include:

a brief summary of the alleged violation;

a statement of the amount of the recommended penalty based on the factors listed in subsection (b)(2) of this section; and

a statement of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both.

Penalty to be paid or hearing requested.

Within 20 days after the date the person receives the notice under subsection (c), the person in writing may:

accept the determination and recommended penalty of the department; or

make a request for a hearing on the occurrence of the violation, the amount of the penalty, or both.

If the person accepts the determination and recommended penalty or if the person fails to respond to the notice, the commissioner of health (commissioner) or the commissioner's designee by order shall approve the determination and impose the recommended penalty.

Hearing.

If the person requests a hearing, the commissioner or the commissioner's designee shall refer the matter to the State Office of Administrative Hearings (SOAH).

As mandated by Health and Safety Code, §244.015(i), the SOAH shall promptly set a hearing date and give written notice of the time and place of the hearing to the person.

An administrative law judge of the SOAH shall conduct the hearing.

The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the commissioner a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty.

Decision by commissioner.

Based on the findings of fact, conclusions of law, and proposal for a decision made by the administrative judge under subsection (e)(2) of this section, the commissioner or the commissioner's designee by order may find that a violation occurred and impose a penalty; or find that a violation did not occur.

The commissioner or the commissioner's designee shall give notice of the commissioner's order under paragraph (1) of this subsection to the person alleged to have committed the violation in accordance with Government Code, Chapter 2001. The notice must include:

a statement of the right of the person to judicial review of the order;

separate statements of the findings of fact and conclusions of law; and

the amount of any penalty assessed.

Options following decision: pay or appeal. Within 30 days after the date the order of the commissioner or commissioner's designee under subsection (f) of this section that imposes an administrative penalty becomes final, the person shall:

pay the penalty; or

appeal the penalty by filing a petition for judicial review of the commissioner's order contesting the occurrence of the violation, the amount of the penalty, or both.

Stay of enforcement of penalty.

Within the 30-day period prescribed by subsection (g) of this section, a person who files a petition for judicial review in accordance with subsection (g) of this section may:

stay enforcement of the penalty by:

paying the penalty to the court for placement in an escrow account; or

giving the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the commissioner's order is final; or

request the court to stay enforcement of the penalty by:

filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and

sending a copy of the affidavit to the commissioner by certified mail.

If the commissioner receives a copy of an affidavit under paragraph (1)(B)(ii) of this subsection, the commissioner may file with the court, within five days after the date the copy is received, a contest to the affidavit. In accordance with Health and Safety Code §244.016(c), the court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty or to give a supersedeas bond.

Collection of penalty.

If the person does not pay the penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the penalty.

As provided by Health and Safety Code, §244.016(d), the attorney general may sue to collect the penalty.

(j)

Decision by court. A decision by the court is governed by Health and Safety Code, §244.016(e), and provides the following:

If the court sustains the finding that a violation occurred, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty.

If the court does not sustain the finding that a violation occurred, the court shall order that a penalty is not owed.

(k)

Remittance of penalty and interest and release of supersedeas bond. The remittance of penalty and interest is governed by Health and Safety Code, §244.016(g) and provides the following.

If the person paid the penalty and if the amount of the penalty is reduced or the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, that the appropriate amount plus accrued interest be remitted to the person within 30 days after the date that the judgment of the court becomes final.

The interest accrues at the rate charged on loans to depository institutions by the New York Federal Reserve Bank.

The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted.

(l)

Release of bond. The release of supersedeas bond is governed by Health and Safety Code, §244.016(h) and provides the following:

If the person gave a supersedeas bond and the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, the release of the bond.

If the person gave a supersedeas bond and the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the reduced amount.

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 May 24, 2000.

TRD-200003680

For further information, please call: (512) 458-7236

Chapter 143. MEDICAL RADIOLOGIC TECHNOLOGISTS

25 TAC §§143.2, 143.16, 143.17, 143.19, 143.20

The Texas Department of Health (department) adopts amendments to §§143.2, 143.16, 143.17, 143.19 and 143.20 concerning the regulation and certification of persons performing radiologic procedures. Sections 143.16, 143.17, 143.19 and 143.20 are adopted with changes to the proposed text as published in the January 28, 2000, issue of the Texas Register (25 TexReg 508). Section 143.2 is adopted without changes, and therefore the section will not be republished. The amendments cover definitions; dangerous or hazardous procedures; mandatory training programs for non-certified technicians; hardship exemptions and alternative training requirements.

The amendments add a definition for pediatric; add pediatric radiography to the list of dangerous or hazardous procedures; change the total number of hours needed to complete the mandatory training program for non-certified technicians; add a new hardship exemption for x-ray equipment operators in a physician's office who are participating in a new alternate training program; make changes to the existing training requirements for podiatric medical assistants; and add alternate training to be completed under a Texas Medical Association's/Texas Osteopathic Medical Association's approved program for x-ray operators in a physician's office.

The new hardship will function as an extension to the January 1, 1998, statutory deadline for completing the training for non-certified technicians (NCTs). The new hardship will be issued to physicians having x-ray equipment operators completing a Texas Medical Association's/Texas Osteopathic Medical Association's approved program. The Texas Medical Association's/Texas Osteopathic Medical Association's Physician's Training program is being added as an alternate training program for placement on the NCT registry. The amendment to the existing training requirements for podiatric medical assistants will allow for out of classroom hours. Additional minor changes were made to update and clarify existing rules.

The following comments were received concerning the proposed sections. Following each comment is the department's response and any resulting changes.

Comment: One commenter was concerned because there is not a radiologist or a radiography representative on the Board of Health to evaluate the medical radiologic technologist rules as proposed.

Response: §601.052, Texas Occupations Code provides that the Texas Board of Health may adopt rules necessary to implement this chapter.

Comment: Concerning the definition of pediatric in §143.2, a commenter recommended lowering the age range from fetus to age 18 as proposed, to fetus to age five.

Response: The department disagrees with the commenter regarding the lowering of the age range from fetus to age 18. No change was made as a result of this comment to the definition in §143.2 however, language has been added to §143.16(c)(10) which includes pediatric radiography as a dangerous or hazardous procedure to address the commenters concerns.

Comment: Concerning §143.16, several commenters were in opposition to the removal of pediatric radiography requesting that it remain in the rules.

Response: The department disagrees because pediatric radiography is being added not removed. No change was made as a result of comments.

Comment: Concerning §143.16, numerous comments were received expressing the need for and the approval of adding pediatric radiography to the rules.

Response: The department agrees. No changes were made as a result of the comments.

Comment: Concerning §143.16(c)(10), one commenter noted that in the proposal invasive cardiovascular technicians were excluded from performing pediatric cardiac catheterization procedures.

Response: The department agrees. The section was amended to include individuals who hold a limited medical radiologic technology certificate with the cardiovascular specialty.

Comment: Concerning §143.16(c)(10), one commenter recommended lowering the age range from fetus to age 18 as proposed, to fetus to age five in the definition of pediatric. The commenter felt that children above the age of five should not be categorized as pediatric for radiography purposes and should not be listed as such under dangerous and hazardous procedures.

Response: The department disagrees. Exposure to radiation at any age is considered dangerous. Language in the proposal addressed action to be taken under emergency conditions. After review of the comment, additional language has been added to address actions to be taken if other extenuating circumstances deemed by the practitioner exist. In both situations documentation would need to be placed in the patient's clinical record. No changes were made as a result of this comment.

Comment: Concerning §143.17, several commenters were against the reduction in hours from 187 to 120 for the non-certified technician training program. The commenters felt that 120 hours are not sufficient.

Response: The department disagrees. An Ad Hoc Committee on Training was established to review the non-certified technician training program for minimum training requirements and recommended a reduction in the hours from 187 to 120 along with recommended prerequisites for admission into the training programs. The Medical Radiologic Technologist Advisory Committee approved the recommendation from the Ad Hoc Committee on Training. Completion of the training program places the individual on the registry of non-certified technicians. An individual listed on the registry must work under the supervision of a licensed practitioner. No changes were made as a result of the comments.

Comment: Concerning §143.17, several commenters were in agreement for the reduction in hours from 187 to 120 for the training program for non-certified technicians.

Response: The department agrees. The Ad Hoc Committee on Training recommended the reduction in hours. No changes were made as a result of the comments.

Comment: Concerning §143.17, several comments were received in opposition to reducing the number of training program hours involving methods of patient care and radiation safety and protection.

Response: The department disagrees. The Ad Hoc Committee on Training reviewed the training program and recommended prerequisites which would account for the hours in patient care. The hours in radiation safety will be incorporated in each section of the curriculum. No changes were made as a result of the comments.

Comment: Concerning §143.17, commenters felt the reduction in hours would compromise patient care, and that the non-certified technician training program was not in the best interests of the patient.

Response: The department disagrees that patient care would be compromised. House Bill 1200 passed by the 74th Texas Legislature in 1995 amended the Medical Radiologic Technologist Certification Act. House Bill 1200 mandated that the department establish minimum training requirements which a person must complete in order to perform a radiologic procedure on or after January 1, 1998. The department believes that the minimum training requirements are in the best interests of patients. No changes were made as a result of the comments.

Comment: Concerning §143.19, several commenters were concerned about the hardship exemption for individuals becoming certified by passing the core section of the limited certification examination with the score of 55% in lieu of training.

Response: The hardship exemption for passing the core section of the limited certification examination in lieu of training expired October 1, 1999. Individuals taking the examination needed to be listed on the hardship. Upon passing the examination the individual's name was listed on the registry of non-certified technicians. No changes were made as a result of the comments.

Comment: Concerning §143.19, several comments were received noting that only 200 individuals took the core section of the limited certified certification examination out of 3000 offices that had trained individuals.

Response: The hardship exemption for passing the core section of the limited certification examination in lieu of training expired October 1, 1999. To be eligible to take this examination an individual needed to be listed under the hardship exemption. An individual was not eligible to apply for the examination on their own. They needed to be listed on the hardship. No changes were made as a result of the comments.

Comment: Concerning §143.19(c)(5)(K), commenters were concerned about physicians using their own facilities instead of sending the individuals to imaging centers to complete the positioning portion of the program.

Response: The training will be limited to a specific anatomical category and be limited to a specific piece of equipment in the physicians facility. No changes were made as a result of these comments.

Comment: Concerning §143.19(c)(5)(K), several commenters were against the department sanctioning any specific political group for a hardship exemption taking a training program for x-ray operators, but recommended that all similar groups that represent any licensed practitioner (doctors of medicine osteopathic, podiatric, dental or chiropractic) be included.

Response: The department is not sanctioning any specific group. The Texas Medical Association presented their proposal for this alternate training program for placement on the registry of non-certified technicians. Adding this hardship does not jeopardize any group from applying for existing hardship exemptions. The department has added language that requires the physician, when applying for this particular hardship, to also include justification for application under the existing hardship exemptions.

Comment: Concerning §143.19(c)(5)(K), several commenters were against changing the current hardship exemptions noting that no significant safety or medical concern had demonstrated a need for significant change.

Response: The department disagrees. Adding the hardship exemption for persons who are registered to take the Texas Medical Association's/Texas Osteopathic Medical Association's Physician's Training Program for X-ray Operators will allow the department to monitor the effectiveness of the physician's training program. No changes were made as a result of these comments.

Comment: Concerning §143.19(c)(5)(K), a commenter remarked that the hardship would be on the patient.

Response: The department disagrees. The hardship would require the individuals listed under the hardship to complete training. Completion of the training program places the individual on the registry of non-certified technicians. This training is more than is required under the existing hardship exemptions. No changes were made as a result of this comments.

Comment: Concerning §143.20(f), numerous commenters were concerned about public safety and patient care. They noted that academically and clinically untrained technicians would be performing diagnostic procedures on patients. They felt that the individuals would be improperly trained and should not be called x-ray technicians.

Response: The department disagrees. This is a subjective opinion. The department perceives the training received under this hardship will be more valuable than no training at all. The other hardship exemptions do not require training. Individuals completing this training program would be placed on the registry of non-certified technicians, would be registered under the physician's license, and could not perform dangerous or hazardous procedures. No changes were made as a result of these comments.

Comment: Concerning §143.20(f), many commenters indicated that this type of training would be beneficial only to the physician by allowing them to pay low salaries to the personnel doing radiologic procedures.

Response: The department does not have statistics on the salaries of any individuals working in physician offices. No changes were made as a result of these comments.

Comment: Concerning §143.20(f), several commenters expressed their concern for the lack of the training program being monitored and the lack of standardized or third party examination.

Response: The Medical Radiologic Technologist Certification Act, Texas Occupations Code, Chapter 601 does not provide the authority for an examination. The training program curriculum will provide a written examination after each module. No changes were made as a result of these comments.

Comment: Concerning §143.20(f), several commenters expressed their concern about physicians not being qualified or having adequate training to teach the program.

Response: The department disagrees. The physician has the option of teaching the program or to have a medical radiologic technologist who is also currently credentialed as a radiographer by the American Registry of Radiologic Technologists and who meets the instructor qualification as set out in §143.9, Standards for the Approval of Curricula and Instructors, teach the program. No changes were made as a result of these comments.

Comment: Concerning §143.20(f), many comments considered the hours for the training program to be insufficient and that the program would only train an individual to be a "button pusher" and not a technologist qualified to take x-rays.

Response: The department disagrees. After completion of the training program the individual would be placed on the registry of non-certified technicians, be registered with the physicians licensing board and could not perform dangerous or hazardous procedures. No changes were made as a result of these comments.

Comment: Concerning §143.20(f), many medical radiologic technologists commented that their jobs would be put in jeopardy or taken away to be replaced with uneducated personnel.

Response: The department disagrees. There is currently a manpower shortage. Furthermore, individual's completing this alternate training program would not be able to perform in the same capacity as a radiologic technologist. Individuals completing the alternate training program would be placed on the registry of non-certified technicians, be registered with the physicians licensing board, and could not perform dangerous or hazardous procedures. No changes were made as a result of these comments.

Comment: Concerning §143.20(f), one commenter noted that the physician's training program could help to alleviate the shortage of technologists, but that training should be obtained from currently accredited or approved programs for medical radiologic technologists, limited medical radiologic technologists, and non-certified technician training programs.

Response: The department agrees. The legislature mandated training for persons performing radiologic procedures after January 1, 1998, and this program would function as an additional alternate program along with the existing programs for registered nurses, physician assistants and podiatric medical assistants. No change was made as a result of this comment.

Comment: Concerning §143.20(f), commenters noted that all procedures are considered dangerous or hazardous and that the program seems to be poorly thought out.

Response: The department disagrees. The program was recommended by the Ad Hoc Committee on Training and approved by the Medical Radiologic Technologist Advisory Committee. The minimum amount of training provided in the program is more than is currently required under existing hardship exemptions. No changes were made as a result of the comments.

Comment: Concerning §143.20(f), several commenters felt that since medical radiologic technologists were required to report continuing education hours that there is a need for continuing education requirements for individuals placed on the registry of non-certified technicians.

Response: The department disagrees. The Medical Radiologic Technologist Certification Act, Texas Occupations Code, Chapter 601 does not authorize the department to require continuing education for individuals on the registry of non-certified technicians. Continuing education hours are required by some practitioner licensing boards. No changes were made as a result of these comments.

Comment: Concerning §143.20(f), one commenter was concerned about uneducated individuals performing barium enemas.

Response: The department agrees but procedures that utilize contrast media are dangerous or hazardous procedures as listed in §143.17 of the rules and may only be performed by a practitioner, medical radiologic technologist or a registered nurse or physician assistant who assists in the performance of the procedure under the supervision of a practitioner. No changes were made as a result of this comment.

Comment: Concerning §143.20(f), several commenters were concerned that individuals completing the training would feel that they are qualified to take x-rays in other physician offices or clinics and use unfamiliar equipment.

Response: The department disagrees. The non-certified technician would need to complete additional training if they change employment. Training would be limited to a specific anatomical category and a specific piece of equipment. No changes were made as a result of the comment.

Comment: Concerning §143.20(f), one commenter indicated that a hospital would never hire an individual with training from this alternate program.

Response: The department agrees. An individual completing this program would not be eligible to work in a hospital. The program is physician and site specific. No changes were made as a result of the comment.

Comment: Concerning §143.20(f), several commenters noted that after completion of the physician's training program the individual would be restricted from being employed by another physician unless the individual completed additional training.

Response: The department agrees. The physician's training program is site and equipment specific and would require additional training if the individual sought employment elsewhere. No changes were made as a result of the comments.

Comment: Concerning §143.20(f), a commenter remarked that the physician would have to train each time a new employee is hired.

Response: The department agrees. The physician's training program, being site and equipment specific, would require training for new personnel to perform radiologic procedures under the physician's license. No changes were made as a result of the comment.

Comment: Concerning §143.20(f), a commenter was concerned about the physicians' ability to grant a license to individuals who have no formal training.

Response: A physician cannot issue a license to an individual completing the training program. Upon completion of the physician's training program an individual will be placed on the registry of non-certified technicians, be registered under the physician's license and would not be eligible to perform dangerous or hazardous procedures. No changes were made as a result of this comment.

Concerning §§143.17, 143.19, and 143.20 additional minor changes were made to update and clarify the rules due to department staff comments.

The comments on the proposed rules received by the department during the comment period were submitted by Senator Jane Nelson, Texas Society of Radiologic Technologists, Inc., American Society of Radiologic Technologists, Northwest Texas Healthcare Systems, University Medical Center - Lubbock, Tarrant County College students, Angelina College, Center for Rural Health Initiatives, Texas MedClinic, Texas Academy of Family Physicians, Trinity Mother Frances Medical Clinic, Complete Healthcare Services, Texas Nurses Association, Texas Medical Association, Christus St. Elizabeth Family Practice Center, Texas Radiation Advisory Board, North Blanco Family Physicians, Hi-Plains Hospital, East Texas Orthopedics and Sports Medicine, Texas Hospital Association. In addition, numerous individuals commented. All commenters were not against the rules in their entirety, however they expressed concerns, and suggested recommendations for change as discussed in the summary of comments.

The amendments are adopted under the Medical Radiologic Technologist Certification Act, §601.052, Texas Occupations Code, which provides the Texas Board of Health (board) with the authority to adopt rules necessary to implement the Act; and the Texas Health and Safety Code §12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

§143.16.Dangerous or Hazardous Procedures.

Purpose. The purpose of this section is to identify the radiologic procedures which are dangerous or hazardous and may only be performed by a practitioner, medical radiologic technologist (MRT) or limited medical radiologic technologist (LMRT). There are specific procedures identified in subsections (b) and (c) of this section which may be performed by a registered nurse (RN) or a physician assistant trained under §143.17 of this title (relating to Mandatory Training Programs for Non-Certified Technicians) or §143.20 of this title (relating to Alternative Training Programs). A person trained under §143.17 or §143.20 of this title and placed on a registry under §143.18 of this title (relating to Registry of Non-Certified Technicians) is not an MRT, LMRT or otherwise certified under the Medical Radiologic Technologist Certification Act (Act) and shall not perform a dangerous or hazardous procedure identified in this section unless expressly permitted under this section.

Dangerous procedures identified. Unless otherwise noted, the list of dangerous procedures which may only be performed by a practitioner or MRT are:

nuclear medicine studies;

administration of radio-pharmaceuticals, unless performed by an RN or physician assistant who is appropriately trained as authorized by the department's Bureau of Radiation Control for licensure of radioactive materials;

radiation therapy, including simulation and brachytherapy;

computed tomography (CT) or any variation thereof;

interventional radiographic procedures, including angiography, unless performed by an LMRT with a certificate issued in the cardiovascular category;

fluoroscopy and/or fluorography, unless performed by an LMRT with a certificate issued in the cardiovascular category, or by an RN or physician assistant who assists in the performance of the procedure under the supervision of a practitioner; and

cineradiography (including digital acquisition techniques), unless performed by an LMRT with a certificate issued in the cardiovascular category.

Hazardous procedures identified. Unless otherwise noted, the list of hazardous procedures which may only be performed by a practitioner or MRT are:

conventional tomography;

skull radiography, excluding anterior-posterior/posterior-anterior (AP/PA), lateral, Townes, Caldwell, and Waters views;

mobile radiography;

spine radiography, excluding AP/PA, lateral and lateral flexion/extension views;

spine radiography, excluding lumbar oblique views performed by an RN or physician assistant who performs the procedure under the supervision of a practitioner;

shoulder girdle radiographs, excluding AP and lateral shoulder views, AP clavicle and AP scapula, unless performed by an RN or physician assistant who performs the procedure under the direction and supervision of a practitioner;

pelvic girdle radiographs, excluding AP or PA views;

(8)

sternum radiographs, unless performed by an RN or physician assistant who performs the procedure under the direction and supervision of a practitioner; and

(9)

radiographic procedures which utilize contrast media, unless performed by an RN or physician assistant who assists in the performance of the procedure under the supervision of a practitioner.

(10)

pediatric radiography, excluding extremities, unless performed by an RN or physician assistant who is appropriately trained, as set out in §143.17 or §143.20 of this title or an LMRT with the cardiovascular specialty. If an emergency condition exists which threatens serious bodily injury, protracted loss of use of a bodily function or death of a pediatric patient unless the procedure is performed without delay, or if other extenuating circumstances deemed by the practitioner exist, a pediatric radiographic procedure is also excluded. The emergency condition or extenuating circumstance must be documented by the ordering practitioner in the patient's clinical record and the record must document that a regularly scheduled MRT, LMRT, RN or physician assistant is not reasonably available to perform the procedure.

Performance of a hazardous procedure by an LMRT. An LMRT may perform a radiologic procedure listed in subsection (c) of this section only if the procedure is within the scope of the LMRT's certification, as described in §143.7(f) of this title (relating to Types of Certificates and Applicant Eligibility).

Performance of a dangerous or hazardous procedure by a practitioner. This section does not authorize a practitioner to perform a radiologic procedure which is outside the scope of the practitioner's license.

Dental radiography. This section does not apply to a radiologic procedure involving a dental x-ray machine, including panarex or other equipment designed and manufactured only for use in dental radiography.

Mammography. In accordance with the Health and Safety Code, §401.421 et seq, mammography is a radiologic procedure which may only be performed by an MRT (not an LMRT) who meets the qualifications set out in §289.230(d)(2) of this title (relating to Mammography). Mammography shall not be performed by a practitioner, an LMRT, an NCT, or any other person.

Prohibited act. A person who performs a dangerous or hazardous procedure in violation of the Act, §2.13(a)(1) commits a Class B misdemeanor, punishable by up to 180 days in jail or a fine up to $2,000, or both.

Effective date.

This section shall become effective on June 1, 1997.

On or after January 1, 1998, an RN or physician assistant must be trained under §143.17 of this title or §143.20 of this title, or have been approved to perform radiologic procedures under a hardship exemption granted under §143.19 of this title (relating to Hardship Exemptions), in addition to performing the listed procedure under the direction and supervision of a practitioner. Subsections (b)(6) and (c)(8) shall not be construed to authorize an RN or physician assistant to independently perform fluoroscopy, fluorography or procedures utilizing contrast media.

(j)

Student performance of dangerous or hazardous procedures. The procedures identified in this section are not considered dangerous and hazardous for purposes of §2.05(g) of the Act if the person performing the procedures is a student enrolled in a program which meets the minimum standards adopted under §2.05 of the Act and if the person is performing radiologic procedures in an academic or clinical setting as part of the program. Therefore, such students may perform these procedures in such settings. Students may not perform procedures in an employment setting.

§143.17.Mandatory Training Programs for Non-Certified Technicians.

Purpose. The purpose of this section is to set out the minimum standards for approval of mandatory training programs, as required by the Medical Radiologic Technologist Certification Act (Act), §2.05(f), which are intended to train individuals to perform radiologic procedures which have not been identified as dangerous or hazardous. Individuals who complete an approved training program may not use that training toward the educational requirements for a general or limited certificate as set out in §143.7 of this title (relating to Types of Certificates and Applicant Eligibility). Effective January 1, 1998, before a person performs a radiologic procedure, the person must complete all the hours in subsection (d)(1)(A)-(D) of this section, and at least one unit in subsection (d)(2)(A)-(G) of this section.

Instructor qualifications.

An instructor(s) shall have education and not less than six months classroom or clinical experience teaching the subjects assigned, shall meet the standards required by a sponsoring institution, if any, and shall meet at least one or more of the following qualifications:

be a currently certified MRT who is also currently credentialed as a radiographer by the American Registry of Radiologic Technologists (ARRT);

be a currently certified LMRT (excluding a temporary certificate) whose limited certificate category(ies) matches the category(ies) of instruction and training; or

be a practitioner who is in good standing with all appropriate regulatory agencies including, but not limited to, the department, the Texas State Board of Chiropractic Examiners (BCE), Texas State Board of Medical Examiners (BME), or Texas State Board of Podiatry Examiners (BPE), the Texas Department of Human Services, the United States Department of Health and Human Services.

A limited medical radiologic technologist (LMRT) may not teach, train, or provide clinical instruction in a portion of a training program which is different from the LMRT's level of certification. For example, an LMRT holding a limited certificate in the chest and extremities categories may not participate in the portion of a training program relating to radiologic procedures of the spine. The LMRT may participate in the portions of the training program which are of a general nature and those specific to the specific categories on the limited certificate.

Training requirements. As of July 1, 2000, in order to successfully complete a program, each student must complete the following minimum training:

prerequisites recommended for admission include high school graduation or general equivalency diploma; certified medical assistant; graduation from a medical assistant program; or six months full time patient care experience, otherwise determined by the practitioner.

courses which are fundamental to diagnostic radiologic procedures:

radiation safety and protection for the patient, self and others-22 classroom hours;

image production and evaluation-24 classroom hours; and

radiographic equipment maintenance and operation-16 classroom hours which includes at least six hours of quality control, darkroom, processing, and Texas Control of Radiation Regulations; and

one or more of the following units of applied human anatomy and radiologic procedures of the:

skull (five views: Caldwell, Townes, Waters, AP/PA, and lateral)-10 classroom hours;

chest-eight classroom hours;

spine-eight classroom hours;

abdomen, not including any procedures utilizing contrast media- four classroom hours;

upper extremities-14 classroom hours;

lower extremities-14 classroom hours; and/or

(G)

podiatric--five classroom hours.

Application procedures for training programs. An application shall be submitted to the department at least 30 days prior to the starting date of the training program. Official application forms are available from the department and must be completed and signed by an approved instructor, who shall be designated as the training program director. The training program director shall be responsible for the curriculum, the instructors, and determining whether students have successfully completed the training program.

Official application forms must be executed in the presence of a notary public and shall be accompanied by the application fee in accordance with §143.4 of this title (relating to Fees). Photocopied signatures will not be accepted.

Application forms and fees shall be mailed to the address indicated on the application materials. The department is not responsible for lost, misdirected, or undeliverable application forms. An application received without the application fee will be returned to the applicant.

Application materials. The application shall include, at a minimum:

the beginning date and the anticipated length of the training program;

the number of programs which will be conducted concurrently and whether programs will be conducted consecutively;

the number of students anticipated in each program;

the daily hours of operation;

the location, mailing address, phone and facsimile numbers of the program;

the name of the training program director;

a list of the names of the approved instructors and the topics each will teach, and a list of management and administrative personnel and any practitioners who will participate in conducting the program;

(8)

clearly defined and written policies regarding the criteria for admission, discharge, readmission and completion of the program;

(9)

evidence of a structured pre-planned learning experience with specific outcomes;

(10)

a letter or other documentation from the Texas Workforce Commission, Proprietary Schools Section indicating that the proposed training program has complied with or has been granted exempt status under the Texas Proprietary School Act, Texas Education Code, Chapter 32 and 19 Texas Administrative Code, Chapter 175. If approval has been granted by the Texas Higher Education Coordinating Board, a letter or other documentation from the Texas Workforce Commission, Proprietary Schools Section is not necessary; and

(11)

specific written agreements to:

provide the training as set out in subsection (d) of this section and provide not more than 75 students per instructor in the classroom;

advise students that they are prohibited from performing radiologic procedures which have been identified as dangerous or hazardous in accordance with §143.16 of this title (relating to Dangerous or Hazardous Procedures) unless they become an LMRT, medical radiologic technologist (MRT) or a practitioner;

use written and oral examinations to periodically measure student progress;

keep an accurate record of each student's attendance and participation in the program, accurate evaluation instruments and grades for not less than five years. Such records shall be made available upon request by the department or any governmental agency having authority;

issue to each student who successfully completes the program a certificate or written statement including the name of the student, name of the program, dates of attendance and the types of radiologic procedures covered in the program completed by the student;

retain an accurate copy for not less than five years and submit an accurate copy of the document described in subparagraph (E) of this paragraph to the department within 30 days of the issuance of the document to the student; and

(G)

permit site inspections by employees or representatives of the department to determine compliance with this section.

Application approval.

The administrator shall be responsible for reviewing all applications for training program approval. The administrator shall approve any application which is in compliance with this section. A letter of approval shall be issued for a period of one year.

A program shall be denied approval if the application is incomplete or not submitted as set out in this section. The training program director shall be notified in accordance with §113.1 of this title (relating to Processing Permits for Special Health Services Professionals).

If approval is proposed to be denied, the training program director shall be notified in writing of the proposed denial and shall be given an opportunity to request a formal hearing within ten days of the training program director's receipt of the written notice from the department. The formal hearing shall be conducted according to the department's formal hearing procedures in Chapter 1 of this title (relating to Texas Board of Health). If no hearing is requested, the right to a hearing is waived and the proposed action shall be taken.

Application processing. The department shall use the same process as described in §143.6(f) of this title (relating to Application Requirements and Procedures), except the time periods are as follows:

letter of acceptance--30 days;

letter of application deficiency--30 days;

letter of approval--42 days; and

letter of denial of approval--42 days.

Renewal.

The training program director shall be responsible for renewing the approval of the training program on or before the anniversary date of the initial application.

The department shall send a renewal notice to the training program at least 60 days prior to the anniversary date. The department is not responsible for lost, misdirected, undeliverable or misplaced mail.

The renewal is effective if the official renewal form and fee in accordance with §143.4 of this title are postmarked or delivered to the department on or before the anniversary date.

Failure to submit the renewal form and renewal fee in accordance with §143.4 of this title by the deadline will result in the expiration of the training program's approval.

A training program which does not renew the approval shall cease representing the program as an approved training program. The program director shall notify, or cause the notification of currently enrolled students that the training program is no longer approved under this section. The notification shall be in writing and must be issued within ten days of the expiration of the approval.

The training program may reapply for approval and meet the then current requirements for approval under this section.

§143.19.Hardship Exemptions.

Purpose. The purpose of this section is to set out the procedure for applying for a hardship exemption under the Medical Radiologic Technologist Certification Act (Act), §2.05(i) and (j) for a hospital, federally qualified health center (FQHC), or practitioner.

General.

A hospital, FQHC or practitioner may apply to the Texas Department of Health (department)for an exemption from employing a medical radiologic technologist (MRT), limited medical radiologic technologist (LMRT), or non-certified technician (NCT).

The applicant must demonstrate a hardship as described in subsection (c)(5) of this section in employing an MRT, LMRT, or NCT.

The applicant shall not allow a person who is not an MRT, LMRT, or NCT to perform a radiologic procedure until the department grants a hardship exemption.

A hardship exemption granted by the department does not constitute licensure, certification, registration, or authorization to perform a dangerous or hazardous radiologic procedure or mammography.

Required application materials.

The applicant must apply for a hardship on the forms prescribed by the department. The date of application shall be the date the application is postmarked. If there is no visible postmark, or if the application is hand-delivered, the application date shall be the date the administrator received the application.

The application must be accompanied by documentation clearly indicating that the applicant is a licensed hospital, FQHC or licensed practitioner. A copy of the current hospital license, certificate of qualification issued to the FQHC, or current license of the practitioner shall be acceptable documentation.

If the application is from a hospital or FQHC, the administrator or chief executive officer of the hospital or FQHC must sign the application form. If the applicant is a practitioner, the practitioner must sign the application form.

The application must include a list of the person(s) performing radiologic procedures who is not a MRT, LMRT, or NCT

The application shall be accompanied by one or more of the following:

if the applicant is unable to attract or retain an MRT or LMRT, a sworn affidavit describing in narrative form the applicant's attempts to attract and retain an MRT or LMRT at a comparable salary for the area;

if the applicant is located more than 50 highway miles from the nearest school of medical radiologic technology approved in accordance with §143.9 of this title (relating to Standards for the Approval of Curricula and Instructors), a sworn affidavit describing in narrative form the physical address of the nearest school of medical radiologic technology; the physical address of the applicant hospital, FQHC, or primary practice location of the practitioner; and the actual distance in highway miles between the school and the applicant hospital, FQHC, or practitioner's primary practice. The applicant shall include a map of the area clearly indicating the locations of each entity;

if the nearest school of medical radiologic technology approved in accordance with §143.9 of this title has a waiting list of school applicants due to a lack of faculty or space, a sworn affidavit from the applicant indicating that admissions to the school are pending because of a lack of faculty or space;

if the need for graduates in medical radiologic technology of the applicant exceeds the number of graduates from the nearest school of medical radiologic technology approved in accordance with §143.9 of this title, a sworn affidavit from the applicant indicating that the number of graduates from the nearest school does not meet the applicant's needs for radiologic technologists;

if emergency conditions have occurred during the 90 days prior to making application for the hardship exemption, a sworn affidavit from the applicant describing the emergency conditions, the hardship(s) the emergency conditions have created and how long the hardship(s) is anticipated to continue. For the purposes of this subparagraph, emergency conditions may include a disaster, epidemic, or other catastrophic event;

documentation that the United States government has declared a state of war;

(G)

if the equipment operated is a bone densitometry unit(s) which utilizes x-radiation, a sworn affidavit from the applicant indicating the name of the person operating the equipment and proof that the person is a certified densitometry technologist in good standing with the International Society for Clinical Densitometry (ISCD) or has completed at least 20 hours of training as follows:

specific bone densitometry equipment utilizing x-radiation to be used by the operator--16 hours presented by a medical radiologic technologist (MRT) or an equipment applications specialist knowledgeable of the specific equipment to be utilized; and

radiation safety and protection for the patient, self and others--four hours presented by an MRT or a licensed medical physicist within the 24-month period prior to application or reapplication for a hardship exemption;

(H)

if the applicant uses only a hand-held fluoroscope with a maximum operating capability of 65 kilovolts and 1 milliampere, or a similar type of x-ray unit for imaging upper extremities only, at the location indicated on the application form and the applicant believes that the radiation produced by the radiographic equipment represents a minimal threat to the patient and the operator of the equipment, the following is required to be submitted:

a copy of the current certificate of registration issued by the Bureau of Radiation Control; and

a sworn affidavit describing the equipment used; the types of radiographs performed; the training completed by the operator of the equipment within the 24-month period prior to application or reapplication for a hardship exemption; the date(s) the training was completed by the operator; the radiation safety measures taken for the patient, operator and others; the level or amount of supervision provided by an MRT or a practitioner(s) to the operator while performing the radiographic procedure; and the equipment manufacturer's specifications for the diagnostic radiographic equipment utilized at the location indicated on the application form, including the maximum operating capability;

(I)

if the applicant employs, for the purpose of performing radiologic procedures, a person registered in accordance with rules adopted under §2.08 of the Act on or before January 1, 1998, a sworn affidavit indicating the name(s) of the person(s) and proof that the person(s) was registered on or before January 1, 1998. Such affidavit shall be on a form attesting that the training under §143.17 of this title (relating to Mandatory Training Programs for Non- Certified Technicians) or §143.20 of this title (relating to Alternate Training Requirements) causes a fiscal hardship for the applicant. The affidavit shall include a statement that the person(s) performing radiologic procedures is adequately supervised and trained for the procedures being performed. If the applicant is a practitioner or FQHC, the person who will perform radiologic procedures must be registered in accordance with rules adopted under §2.08 of the Act at the time of application for the hardship exemption. If the person who will perform radiologic procedures is not an RN, the name of the practitioner for whom the radiologic procedures are performed, as named on the current registration permit, shall match the name or location of the applicant for whom the hardship is granted;

(J)

if the applicant is a hospital accredited by the Joint Commission on the Accreditation of Health Care Organizations or which participates in the federal Medicare cost reimbursement program, an original letter on hospital letterhead stating the name(s) of the person(s) performing radiologic procedures in compliance with § 2.07(d) of the Act on or before January 1, 1998. The letter shall be accompanied by a sworn affidavit from the applicant attesting that the training under §143.17 or §143.20 of this title causes a fiscal hardship for the applicant. The affidavit shall include a statement that the person(s) performing radiologic procedures is adequately supervised and trained for the procedures being performed;

(K)

if the applicant employs for the purpose of performing radiologic procedures, a person who is registered to take the Texas Medical Association's/Texas Osteopathic Medical Association's Physician's Training Program for X-ray Operators approved by the department under §143.20 of this title, a sworn affidavit including justification for application under one of the requirements described in paragraph (5)(A)-(J) of this subsection. The following items must be submitted:

the name(s), date of birth, and social security number of the person(s) who will perform radiologic procedures pursuant to this hardship exemption;

the name of the facility where the training program will be taken, the date the program will begin and the anticipated date of completion;

(iii)

the name(s) of the certified medical radiologic technologist instructor meeting the requirements set out in §143.17(c) of this title;

(iv)

the name(s) of the company and the name of the person(s) who will be the designated equipment applications specialist knowledgeable of the specific equipment to be utilized; and

(v)

a list of the anatomical categories to be included in the training.

All application materials and information are subject to verification by the department.

The department shall send a written notice listing the additional materials required to an applicant whose application is incomplete. An application not completed within 30 days after the date of the written notice shall be invalid unless the applicant has advised the department of a valid reason for the delay.

Application approval.

The administrator shall be responsible for reviewing all applications. The administrator shall approve any application which is in compliance with this section and which properly documents applicant eligibility.

If granted by the department, a letter of exemption shall be issued for a period of one year.

Disapproved applications.

The department shall disapprove the application if the applicant has not met the application requirements set out in this section or has failed or refused to complete or submit any form or documentation required by the department to verify the eligibility for the exemption.

If the administrator determines that the application should not be approved, the administrator shall give the applicant written notice of the reason for the disapproval. The applicant may appeal the decision to the associate commissioner over the administrator by submitting a written request within ten days after receipt of the written notice of the reason(s) for the disapproval.

Based upon the application and any additional information submitted by the applicant or the administrator, the associate commissioner shall approve or disapprove the application.

An applicant whose application has been disapproved under this subsection shall be permitted to reapply after a period of not less than one year from the date of the disapproval and shall submit a new application and supporting information. The applicant may reapply for an exemption any time the basis for the exemption application changes.

letter of acceptance--30 days;

letter of application deficiency--30 days;

letter of approval--42 days; and

letter of denial of exemption--42 days.

Reapplication for hardship exemption.

The hospital, FQHC, or a practitioner must reapply annually for the exemption and meet the then current requirements for a hardship exemption.

A hospital, FQHC, or a practitioner who does not reapply for an exemption shall not allow a person to perform a radiologic procedure unless the person is a practitioner, MRT, LMRT, or NCT.

§143.20.Alternate Training Requirements.

Purpose. The purpose of this section is to set out the minimum standards for registered nurses (RNs), physician assistants, podiatric medical assistants (PMAs) and x-ray equipment operators in a physician's office . .

Instructor direction required. All hours of the training program completed for the purposes of this section must be live and interactive and directed by an approved instructor. Distance learning activities and audiovisual teleconferencing may be utilized, provided these include two-way, interactive communications which are broadcast or transmitted at the actual time of occurrence. Appropriate on-site supervision of persons participating in the distance learning activities or teleconferencing shall be provided by the approved training program. No credit will be given for training completed by self-directed study or correspondence. The provisions of this subsection shall not apply to the out of classroom training requirements for podiatric medical assistants and x-ray equipment operators in a physician's offices.

Effective January 1, 1998, before an RN or physician assistant performs a radiologic procedure, the RN or physician assistant must complete the hours stated in subsection (d) of this section, or the hours stated in §143.17 of this title (relating to Mandatory Training Programs for Non-Certified Technicians).

Effective January 1, 1998, before a PMA performs a radiologic procedure, the PMA must complete the hours stated in subsection (e) of this section, or the hours stated in §143.17(d) of this title concerning podiatric radiologic procedures.

Individuals who complete training approved under this section may not use that training toward the educational requirements for a general or limited certificate as set out in §143.7 of this title (relating to Types of Certificates and Eligibility).

Approved instructors.

For purposes of this section, an individual is approved by the Texas Department of Health (department) to teach in a training program if the individual meets the requirements of §143.9(h)(1)-(2) of this title (relating to Standards for the Approval of Curricula and Instructors). The application for the training program must demonstrate that the instructors meet the qualifications. No application for individual instructor approval is required.

Training requirements for registered nurses and physician assistants. A training program preparing RNs and physician assistants to perform radiologic procedures shall be designed to build on the health care knowledge base and skills acquired through completion of an educational program that qualifies the person for licensure as an RN or physician assistant. The training shall consist of:

a minimum of 30 classroom hours of coursework that are fundamental to diagnostic radiologic procedures covering all of the following items:

radiation safety and protection for the patient, self, and others--ten classroom hours;

radiologic equipment--ten classroom hours;

image production and evaluation--ten classroom hours; and

one or more of the following units of classroom instruction in radiologic procedures:

chest and abdomen (non-pediatric)--eight classroom hours;

spine (non-pediatric)--ten classroom hours;

skull (non-pediatric)--eight classroom hours;

extremities (including pediatric)--eight classroom hours; and

if the RN or physician assistant will perform pediatric radiologic procedures other than extremities, a minimum of two classroom hours for each of the areas identified in paragraph (2)(A)-(C) of this subsection.

Training requirements for podiatric medical assistants PMAs.

In order to successfully complete a program, a PMA must complete the following training:

radiation safety and protection for the patient, self, and others-five classroom hours and five out of classroom hours;

radiographic equipment used in podiatric medicine, including safety standards, operation, and maintenance-one classroom hour and two out of classroom hours;

podiatric radiologic procedures, imaging production and evaluation-one classroom hour and four out of classroom hours; and

methods of patient care and management essential to radiologic procedures, excluding CPR, BCLS, ACLS and similar subjects-one classroom hour and one out of classroom hour.

Successful completion of PMA training allows the PMA to perform radiologic procedures only under the instruction or direction of a podiatrist.

The out of classroom training hours require successful completion of learning objectives approved by the department as verified by the supervising podiatrist.

Training requirements for an x-ray equipment operator in a physician's office.

In order to successfully complete a program, an x-ray equipment operator in a physician's office must complete the Texas Medical Association's/Texas Osteopathic Medical Association's Physician's Training Program for X-ray Operators.

Successful completion of the x-ray operators training program allows the x- ray operator to perform radiologic procedures only under the instruction or direction of a physician.

Application procedures for training programs. The Texas Department of Health (department) shall use the same process as described in §143.17(e) of this title.

Application materials. The department shall require the same materials as described in §143.17(f) of this title.

Application approval. The department shall use the same process as described in §143.17(g) of this title.

(j)

Application processing. The department shall use the same process as described in §143.17(h) of this title.

(k)

Renewal. The department shall use the same process as described in §143.17(i) of this title.

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 May 24, 2000.

TRD-200003685

For further information, please call: (512) 458-7236

Chapter 157. EMERGENCY MEDICAL CARE

Subchapter B. EMERGENCY MEDICAL SERVICES PROVIDER LICENSES

The Texas Department of Health (department) adopts the repeal and new §157.25, concerning the statewide protocol required for use of an Out-Of-Hospital Do Not Resuscitate (DNR) Order and DNR form. New §157.25 is adopted with changes to the text as published in the March 10, 2000,Texas Register (25 TexReg 1954). The repeal is adopted without changes.

In accordance with Senate Bill 1260, 76th Legislature, 1999, the department is required to amend rule §157.25 to coincide with the consolidation of Chapters 672 and 674 of the Health and Safety Code; and Chapter 135, Civil Practice and Remedies Code. These chapters used the same terminology and provisions but maintained inconsistencies that were confusing to individuals who wanted to develop advance directives and confusing to providers who would carry out the advance directives. Senate Bill 1260 amends the Health and Safety Code, Chapter 773 and designates Health and Safety Code, Title 2, Chapter 166 as the Advance Directives Act. The DNR form was also changed to follow those same directions.

The department is making the following minor changes due to staff comments to clarify the intent and improve the accuracy of the section.

Change: Concerning §157.25(h)(2), minor changes were made to the layout of the DNR form to facilitate use by the public.

Change: Concerning §157.25(h)(2), the size of the DNR form was changed from "8-1/2 inches by 14 inches" to "8-1/2 inches by 11 inches".

The following comment was received concerning the proposed section.

Comment: Concerning the DNR form, one commenter questioned the need for dual signatures on the DNR form, but approved the rule as proposed.

Response: The need for dual signatures was mandated by statute. No change was made as a result of the comment.

The comment was sent by the Texas State Board of Medical Examiners (board). The commenter was not against the rule in its entirety; however a representative of the board expressed concerns, asked questions and suggested recommendations for changes as discussed in the summary of comments.

25 TAC §157.25

The repeal is adopted under the Health and Safety Code, Chapter 773, which provides the Board of Health (board) with the authority to adopt rules to implement the Emergency Medical Services Act; and §12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

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 May 26, 2000.

TRD-200003758