TITLE 22.EXAMINING BOARDS

Part 6. TEXAS BOARD OF PROFESSIONAL ENGINEERS

Chapter 131. PRACTICE AND PROCEDURE

Subchapter G. BOARD REVIEW OF APPLICATION

22 TAC §131.114

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Board of Professional Engineers or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Board of Professional Engineers proposes the repeal to §131.114, concerning board review and application.

The proposed repeal of §131.114 will enable the board to propose new §131.114 due to extensive modification of this section.

Victoria J.L. Hsu, P.E., Executive Director, Texas Board of Professional Engineers, has determined that for the first five-year period the repeal is in effect there will no effect for state or local government.

Ms. Hsu also has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be the ability to adopt a new revised regulation. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeal as proposed.

Comments on the proposal may be submitted to Victoria J.L. Hsu, P.E., Executive Director, Texas Board of Professional Engineers, P.O. Drawer 18329, Austin, Texas 78760-8329.

The repeal is proposed under Texas Civil Statutes, Article 3271a, §8(a), which provide the Texas Board of Professional Engineers with the authority to promulgate rules in accordance with the Texas Engineering Practice Act, §20A.

Texas Civil Statutes, Article 3271a, §12 is affected by the proposed repeal.

§131.114.Personal Interviews of Applicants.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 11, 2001.

Victoria J.L. Hsu, P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: February 25, 2001

For further information, please call: (512) 440-7723

The Texas Board of Professional Engineers proposes new §131.114, concerning board review and application.

The proposed new §131.114 will provide the authority for the Licensing Committee to conduct personal interviews with applicants and make final recommendations to the full board at the quarterly board meetings.

Victoria J.L. Hsu, P.E., Executive Director, Texas Board of Professional Engineers, has determined that for the first five-year period the section is in effect there will be no effect for state or local government.

Ms. Hsu also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be the authority for the Licensing Committee to conduct personal interviews with applicants and make final recommendations to the full board at the quarterly board meetings. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed.

Comments on the proposal may be submitted to Victoria J.L. Hsu, P.E., Executive Director, Texas Board of Professional Engineers, P.O. Drawer 18329, Austin, Texas 78760-8329.

The new section is proposed under Texas Civil Statutes, Article 3271a, §8(a), which provide the Texas Board of Professional Engineers with the authority to promulgate rules in accordance with the Texas Engineering Practice Act, §20A.

Texas Civil Statutes, Article 3271a, §12 is affected by the proposed new section.

§131.114.Personal Interviews of Applicants.

(a)

A personal interview with the Licensing Committee of the board or the board's designated representative may be scheduled by the executive director to:

(1)

obtain additional information or clarify submitted information at the board's invitation, or to;

(2)

reconsider a non-approved application or a denial of an examination waiver request resulted from §131.113 of this title (relating to Reconsideration of Non-Approved Applications or Examination Waivers) at the applicant's request, provided that:

(A)

a written request has been submitted and received at the board's office by the close of business on or before the 60th calendar day from the date of the notification of non-approval or denial;

(B)

the personal interview is not to be construed as a hearing, but is held to obtain additional information in support of an application; and

(C)

the executive director may excuse and reschedule an applicant for a personal interview for cause. The executive director may also withdraw an invitation or permission for a personal interview for any reason including a previous failure to appear.

(b)

The Licensing Committee or the board's designated representative shall make recommendations to the full board at the next available board meeting.

(c)

Another personal interview with the full board may be scheduled with a written request in accordance with subsection (a)(2)(A)-(C) of this section. This interview with the full board shall constitute the last administrative appeal available to the applicant.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 11, 2001.

TRD-200100213

Victoria J.L. Hsu, P.E.

Executive Director

Texas Board of Professional Engineers

Earliest possible date of adoption: February 25, 2001

For further information, please call: (512) 440-7723

Part 17. TEXAS STATE BOARD OF PLUMBING EXAMINERS

Chapter 361. ADMINISTRATION

Subchapter A. GENERAL PROVISIONS

22 TAC §361.11

The Texas State Board of Plumbing Examiners proposes new Rule §361.11 which sets forth the general procedures that the Board must follow in managing its state vehicle fleet. House Bill 3125, Seventy-sixth Legislature, requires the Office of Fleet Vehicle Management of the General Services Commission to implement a management plan to improve administration and operation of the state's vehicle fleet. The Office of Fleet Vehicle Management subsequently adopted the State Vehicle Fleet Management Plan, which requires state agencies adopt rules and procedures consistent with the plan.

The new rule §361.11 requires that, with the exception of a vehicle assigned to a field employee, each agency vehicle must be assigned to the agency motor pool and be available for checkout. Additionally, the new rule prohibits assignment of an agency vehicle to an individual administrative or executive employee on a regular basis, unless the agency makes a written documented finding that doing so is critical to the needs of the mission of the agency. The new rule also requires the Board to administer policies and procedures consistent with the Office of Fleet Vehicle Management of the General Services Commission's State Vehicle Fleet Management Plan.

Robert L. Maxwell, Administrator of the Texas State Board of Plumbing Examiners, has determined that for the first five-year period the rule is in effect there will be no effect on local government as a result of the new rule as proposed.

Mr. Maxwell has determined that each year of the first five years the rule is in effect the public benefit will be efficient administration and operation of the state vehicles utilized by the Board. As a result of the new rule, there will be no economic cost to the persons that will be required to comply with the rule.

Comments on the proposed new rule may be submitted within thirty (30) days of publication of this proposed rule amendment in the Texas Register , to Robert L. Maxwell, Administrator, Texas State Board of Plumbing Examiners, 929 East 41st Street, P.O. Box 4200, Austin, tEXAS, 78765-4200.

The new rule §361.11 is proposed under and affect Texas Revised Civil Statutes Annotated Article 6243-101 ("Act"), §5(a), (Vernon Supp. 2001), and §2171.045 of the Government Code. §5(a) of the Act authorizes, empowers and directs the Board to prescribe, amend and enforce all rules and regulations necessary to carry out the Act. Section 2171.045 of the Government Code requires that each state agency shall adopt rules consistent with the State Vehicle Fleet Management Plan adopted under 2171.104, relating to the assignment of vehicles.

No other statute, article, or code is affected by this proposed new rule.

§361.11.State Vehicle Management.

Each state vehicle utilized by the Board, with the exception of a vehicle assigned to a field employee, shall be assigned to the Board's agency motor pool and be available for checkout by Board employees who are authorized by the Board's Administrator to use the vehicle.

No state vehicle utilized by the Board may be assigned to an individual administrative or executive employee on a regular basis, unless the Board makes a written documented finding that the assignment is critical to the needs of the mission of the Board.

The Board's Administrator shall administer policies and procedures consistent with the Office of Fleet Vehicle Management of the General Services Commission's State Vehicle Fleet Management Plan.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 10, 2001.

Robert L. Maxwell

Texas State Board of Plumbing Examiners

Earliest possible date of adoption: February 25, 2001

For further information, please call: (512) 458-2145

Part 22. TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY

Chapter 527. QUALITY REVIEW

22 TAC §527.4

The Texas State Board of Public Accountancy (Board) proposes an amendment to §527.4 concerning Quality Review Program.

The amendment to §527.4 will delete former subsections (4)(a) and (B) which imposed requirements on potential QROB members.

William Treacy, Executive Director of the Board, has determined that for the first five-year period the proposed amendment will be in effect:

A. the additional estimated cost to the state expected as a result of enforcing or administering the amendment will be zero because removing the requirements formerly imposed on QROB members does not require anyone to do or not do anything.

B. the estimated reduction in costs to the state and to local governments as a result of enforcing or administering the amendment will be zero because removing the requirements formerly imposed on QROB members does not require anyone to do or not do anything.

C. the estimated loss or increase in revenue to the state as a result of enforcing or administering the rule will be zero because removing the requirements formerly imposed on QROB members does not require anyone to do or not do anything.

Mr. Treacy has determined that for the first five-year period the amendment is in effect the public benefits expected as a result of adoption of the proposed amendment will be that the pool of potential QROB members will be expanded.

The probable economic cost to persons required to comply with the amendment will be zero because removing the requirements formerly imposed on QROB members does not require anyone to do or not do anything.

Mr. Treacy has determined that a Local Employment Impact Statement is not required because the proposed amendment will not affect a local economy.

The Board request comments on the substance and effect of the proposed amendment from any interested person. Comments must be received at the Board no later than noon on January 12, 2001. Comments should be addressed to Amanda G. Birrell, General Counsel, Texas State Board of Public Accountancy, 333 Guadalupe, Tower III, Suite 900, Austin, Texas 78701 or faxed to her attention at (512) 305-7854.

Mr. Treacy has determined that the proposed amendment will not have an adverse economic effect on small businesses because zero because removing the requirements formerly imposed on QROB members does not require anyone to do or not do anything.

The Board specifically invites comments from the public on the issues of whether or not the proposed amendment will have an adverse economic effect on small business; if the amendment is believed to have such an effect, then how may the Board legally and feasibly reduce that effect considering the purpose of the statute under which the amendment is to be adopted; and if the amendment is believed to have such an effect, how the cost of compliance for a small business compares with the cost of compliance for the largest business affected by the amendment under any of the following standards: (a) cost per employee; (b) cost for each hour of labor; or (c) cost for each $100 of sales. See Texas Government Code, §2006.002(c).

The amendment is proposed under the Public Accountancy Act, Tex. Occupations Code, Section 901.151 (Vernon 1999) which authorizes the Board to adopt rules deemed necessary or advisable to effectuate the Act and Section 901.159 which authorizes the Board to provide a quality review program.

No other article, statute or code is affected by this proposed amendment.

§527.4.Quality Review Program.

The following operations of the program shall be conducted by the board. This section shall not require any firm to become a member of any sponsoring organization.

Applicability. Participation in the program is required of each firm licensed or registered with the board that performs accounting and/or auditing engagements, including, but not limited to, audits, reviews, compilations, forecasts, projections, or other special reports.

Each firm registered with the board shall enroll in the program of an approved sponsoring organization in accordance with paragraph (6) of this section within one year from its initial licensing date or the performance of services that require a review. The firm shall adopt the review due date assigned by the sponsoring organization, and must notify the board of the date within 30 days of its assignment. In addition, the firm shall schedule and begin an additional review within three years of the previous review's due date, or earlier as may be required by the sponsoring organization.

It is the responsibility of the firm to anticipate its needs for review services in sufficient time to enable the reviewer to complete the review by the assigned review due date.

Standards. The board adopts system reviews and engagement reviews described in "Standards for Performing and Reporting on Peer Reviews" promulgated by the American Institute of Certified Public Accountants, Inc., as its minimum standards for review of firms. The board does not recognize "report reviews" performed under the AICPA Standards.

Oversight. The board shall appoint a Quality Review Oversight Board (QROB) whose function shall be the oversight and monitoring of sponsoring organizations for compliance and implementation of the minimum standards for performing and reporting on reviews. Oversight procedures to be followed by the QROB shall be provided for by rules promulgated by the board. Information concerning a specific firm or reviewer obtained by the QROB during oversight activities shall be confidential, and the firm's or reviewer's identity shall not be reported to the board. The QROB shall consist of three members, none of whom is a current member of the board. [ ~~The QROB's membership shall consist of:~~ ]

~~one non-licensee member who shall have significant experience in the preparation and/or use of financial statements; and]~~

~~two certificate or registration holders with extensive current experience in accounting and auditing services.]~~

Compensation. Compensation of QROB members shall be set by the board.

Sponsoring organizations. Qualified sponsoring organizations shall be the SEC Practice Section (SECPS), American Institute of Certified Public Accountants (AICPA) Peer Review Program, state CPA societies fully involved in the administration of the AICPA Peer Review Program, National Conference of CPA Practitioners (NCCPAP), and such other entities which are approved by the board.

Mergers, combinations, dissolutions, or separations. In the event that a firm is merged, otherwise combined, dissolved, or separated, the sponsoring organization shall determine which firm is considered the succeeding firm. The succeeding firm shall retain its peer review status and the review due date.

The board will accept extensions granted by the sponsoring organization to complete a review, provided the board is notified by the firm within 20 days of the date that an extension is granted.

A firm that has been rejected by a sponsoring organization for whatever reason must make an application to the board and receive authorization to enroll in a program of another sponsoring organization.

A firm choosing to change to another sponsoring organization may do so provided that the firm authorizes the previous sponsoring organization to communicate to the succeeding sponsoring organization any outstanding corrective actions related to the firm's most recent review. Any outstanding actions must be cleared and outstanding fees paid prior to transfer between sponsoring organizations.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 11, 2001.

Executive Director

Texas State Board of Public Accountancy

Earliest possible date of adoption: February 25, 2001

For further information, please call: (512) 305-7848

Part 23. TEXAS REAL ESTATE COMMISSION

Chapter 539. RULES RELATING TO THE PROVISIONS OF THE RESIDENTIAL SERVICE COMPANY ACT

Subchapter H. MISCELLANEOUS FORMS

22 TAC §539.71

The Texas Real Estate Commission (TREC) proposes new §539.71, concerning miscellaneous forms used by a residential service company. TREC licenses companies which issue contracts providing for the repair or replacement of the appliances and systems typically found in a residence, such as plumbing and electrical systems. Under Texas Civil Statutes, Article 6573b, these companies must file a surety bond or other financial security with TREC for the protection of contract holders and must obtain prior approval of a change in the evidence of coverage issued to a contract holder or in the schedule of charges used by the company. The new section adopts by reference an approved surety bond and an application form relating to approval of a change in the evidence of coverage or schedule of charges used by the company. Adoption of the new section would provide guidelines for the companies in complying with Article 6573b.

Mark A. Moseley, general counsel, has determined that for the first five-year period the section is in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the section. There is no anticipated impact on small businesses, micro businesses or local or state employment as a result of implementing the section.

Mr. Moseley also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be the adoption of appropriate forms to ensure compliance with filings by licensed residential service companies. There is no anticipated economic cost to persons who are required to comply with the proposed section.

Comments on the proposal may be submitted to Mark A. Moseley, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The new section is proposed under Texas Civil Statutes, Article 6573b, §5, which authorize the Texas Real Estate Commission to adopt and enforce rules and regulations necessary to effectuate the intent and provisions of that law.

The statute which is affected by this proposal is Texas Civil Statutes, Article 6573b.

§539.71.Miscellaneous Forms.

The Texas Real Estate Commission adopts by reference the following forms approved by the commission in 2001. These forms are published and available from the Texas Real Estate Commission, P. O. Box 12188, Austin, Texas 78711-2188.

Residential Service Company Bond, Form RSC 2-2; and

Application to Approve Evidence of Coverage/Schedule of Charges, Form RSC 3-1 .

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 10, 2001.

Mark A. Moseley

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: February 25, 2001

For further information, please call: (512) 465-3900

Subchapter J. ANNUAL REPORT

22 TAC §539.91

The Texas Real Estate Commission (TREC) proposes an amendment to §539.91, concerning annual reports filed by a residential service company.

TREC licenses companies which issue contracts providing for the repair or replacement of the appliances and systems typically found in a residence, such as plumbing and electrical systems. Under Texas Civil Statutes, Article 6573b, these companies must file an annual report detailing the business activities of the companies for the preceding calendar year. The proposed amendment adopts by reference a revised annual report form. The form has been modified to move an instruction relating to financial statements from a flyer to the text of the report. Since 1994, companies having assets of $5 million or more have been required to provide either audited or reviewed financial statements, rather than compilations, with the annual report. Because companies of this size already use either reviewed or audited financial statements in their general business, the requirement has not imposed an additional expense for the companies. Nonsubstantive changes are also made in the language used in the report. Adoption of the new amendment would provide guidelines for the companies in complying with Article 6573b.

Mark A. Moseley, general counsel, has determined that for the first five-year period the section is in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the section. There is no anticipated impact on small businesses, micro businesses or local or state employment as a result of implementing the section.

Mr. Moseley also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be the adoption of appropriate forms to ensure compliance with filings by licensed residential service companies. There is no anticipated economic cost to persons who are required to comply with the proposed section.

Comments on the proposal may be submitted to Mark A. Moseley, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The amendment is proposed under Texas Civil Statutes, Article 6573b, §5, which authorize the Texas Real Estate Commission to adopt and enforce rules and regulations necessary to effectuate the intent and provisions of that law.

The statute which is affected by this proposal is Texas Civil Statutes, Article 6573b.

§539.91.Annual Report Form RSC 6-2 [ ~~6-1~~ ].

The Texas Real Estate Commission adopts by reference the Annual Report Form RSC 6-2 [ ~~6-1~~ ] approved by the commission in 2001 [ ~~October 1989~~ ]. This document is published by and available from the Texas Real Estate Commission, P. O. Box 12188, Austin, Texas 78711-2188.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 10, 2001.

Mark A. Moseley

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: February 25, 2001

For further information, please call: (512) 465-3900

Subchapter X. FEES

22 TAC §539.231

The Texas Real Estate Commission (TREC) proposes an amendment to §539.231, concerning fees paid by a residential service company.

TREC licenses companies which issue contracts providing for the repair or replacement of the appliances and systems typically found in a residence, such as plumbing and electrical systems. These companies pay an annual fee of $3,500 and must obtain prior approval of a change in the evidence of coverage issued to a contract holder or in the schedule of charges used by the company. Under Texas Civil Statutes, Article 6573b, §24, TREC is authorized to charge a fee not to exceed $500 for each filing of an evidence of coverage or schedule of charges. The current fee was set in 1980, at a time when all funding for the regulation of residential service companies came from the fees paid by the companies. Reduction of the filing fee would cause the fee to more closely reflect the amount of staff time spent on the filings.

Mark A. Moseley, general counsel, has determined that for the first five-year period the section is in effect there will be fiscal implications for the state as a result of enforcing or administering the section. TREC would collect approximately $8,750 less in filing fees in FY 2001 and for each year of the first five year period following adoption of the amendment. No fiscal implications are anticipated for units of local government. There is no anticipated impact on small businesses, micro businesses or local or state employment as a result of implementing the section.

Mr. Moseley also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be the imposition of appropriate fees for required filings by licensed residential service companies. There is no anticipated economic cost to persons who are required to comply with the proposed section.

Comments on the proposal may be submitted to Mark A. Moseley, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The amendment is proposed under Texas Civil Statutes, Article 6573b, §5, which authorize the Texas Real Estate Commission to adopt and enforce rules and regulations necessary to effectuate the intent and provisions of that law.

The statute which is affected by this proposal is Texas Civil Statutes, Article 6573b.

§539.231.Fees.

The commission shall charge and collect the following fees:

a fee of $250 [ ~~$500~~ ] for filing an evidence of coverage; and

a fee of $250 [ ~~$500~~ ] for filing a schedule of charges.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 10, 2001.

Mark A. Moseley

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: February 25, 2001

For further information, please call: (512) 465-3900

Chapter 542. RULES RELATING TO THE PROVISIONS OF HOUSE BILL 5

22 TAC §542.1

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Real Estate Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Real Estate Commission (TREC) proposes the repeal of §542.1, concerning notices to applicants, processing times and appeals.

Section 542.1 was adopted in 1988 after the passage of House Bill 5, now codified as §2005.003, Texas Government Code, which required state agencies issuing permits to adopt procedural rules. The section provides time periods for the issuance of real estate school accreditations and timeshare registrations after an application is complete and permits the applicant to appeal to the administrator of the commission any dispute arising from a violation of the time periods specified in the section.

As part of its on-going rule reviews, TREC has determined that repeal of §542.1 is appropriate, because the accreditation and registrations which are described in the section are not the kind of permits for on-going businesses which §2005.003 addresses. Rather, the regulation of the school and timeshare development businesses by TREC is more akin to occupational licensing programs than to a permitting process. The Attorney General has previously determined that occupational licenses are not subject to the section. These accreditations and registrations effectively license a person to engage in a business under state law and are of a continuing nature, although they may be revoked by TREC for cause.

Mark A. Moseley, general counsel, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the repeal. There is no anticipated impact on small businesses, micro businesses or local or state employment as a result of implementing the repeal.

Mr. Moseley also has determined that for each year of the first five years the repeal as proposed is in effect the public benefit anticipated as a result of enforcing the repeal will be the elimination of unnecessary rules. There is no anticipated economic cost to persons who are required to comply with the proposed repeal.

Comments on the proposal may be submitted to Mark A. Moseley, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The repeal is proposed under Texas Civil Statutes, Article 6573a, §5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties.

The statute which is affected by this proposal is §2005.003, Texas Government Code.

§542.1.Notices to Applicants; Processing Times; Repeals.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 10, 2001.

Mark A. Moseley

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: February 25, 2001

For further information, please call: (512) 465-3900

Chapter 543. RULES RELATING TO THE PROVISION OF THE TEXAS TIMESHARE ACT

22 TAC §§543.1-543.6

The Texas Real Estate Commission (TREC) proposes amendments to §543.1, concerning timeshare registration, §543.2, concerning registration amendments, §543.3, concerning fees, a registration, §543.4, concerning forms, §543.5, concerning violations, and §546.6, concerning hearings.

These amendments are proposed in connection with TREC's on-going review of its rules. The amendments are intended to bring the sections into conformity with the language used in other TREC rules, up-date statutory citations, and adopt by reference revised forms to be used by timeshare developers when registering a timeshare property or amending a registration.

The amendments to §543.1 and §543.2 restate the sections language that is used in other TREC rule and up-dates a citation to the Texas Administrative Procedures Act, Texas Government Code, §2001. The amendment to §543.3 clarifies that fees may also be paid in the form of a check, not only by a cashier's check or money order. The amendment to §543.4 adopts by reference revised application forms for the registration and amendment of registration of a timeshare property. The forms have been revised to eliminate unnecessary questions, determine that limited liability companies are permitted to engage in business in Texas, and rearrange the order of the information provided by the timeshare developer. The amendments to §543.5 and §543.6 make the language used consistent with the language used in other TREC rules and up-dates statutory citations to the Texas Timeshare Act and the Texas Administrative Code.

Mark A. Moseley, general counsel, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no anticipated impact on small businesses, micro businesses or local or state employment as a result of implementing the sections.

Mr. Moseley also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be the use of consistent language and current statutory citations in the rules affecting the agency's licensees and registrants. There is no anticipated economic cost to persons who are required to comply with the proposed sections.

Comments on the proposal may be submitted to Mark A. Moseley, General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The amendments are proposed under the Texas Government Code, §221.024, which authorizes the Texas Real Estate Commission to prescribe and publish forms and adopt rules necessary to carry out the provisions of The Texas Timeshare Act. The statute which is affected by this proposal is The Texas Government Code, Chapter 221.

§543.1.Registration.

A person who wishes to register a timeshare property shall submit an application for registration using forms prepared by the commission. The commission may [ ~~shall~~ ] not accept for filing an application submitted without a complete application form or the appropriate filing fee.

If the commission determines that an application for registration of a timeshare property fails to satisfy any requirement for registration, the commission shall notify the applicant of any deficiency in writing. The commission may require an applicant to revise and resubmit written documents filed with the application or to provide additional information if the commission determines that the application is incomplete or inaccurate. Upon submission by an applicant of a response sufficient in the opinion of the commission to cure any deficiency in the application, the commission shall promptly register the timeshare property and provide the applicant with the written notice required by these rules. An application will [ ~~shall~~ ] be terminated, and the commission shall take no further action 180 days after the commission mails a request to the applicant for curative action.

§543.2.Amendments.

A person who wishes to amend the registration of a timeshare property shall submit an application to amend the registration using forms prepared by the commission. The commission may [ ~~shall~~ ] not accept for filing an application submitted without a completed application form or the appropriate filing fee.

For the purposes of Section 221.023 [ ~~Subsection 6(c)~~ ] of the Texas Timeshare Act, "promptly" means [ ~~shall mean~~ ] within 30 days after the occurrence of a material and adverse change in any document contained in a registration.

An increase in the number of timeshare interests to be offered for sale is [ ~~shall be~~ ] deemed a material and adverse change if it exceeds by more than 10% of the number of interests which existed or were proposed in the original registration.

An increase in the dues, assessments, fees or charges paid or to be paid by purchasers for the use of accommodations or amenities or for any other purpose is [ ~~shall be~~ ] deemed a material and adverse change if it exceeds by more than 10% the amounts set forth in the original registration.

§543.3.Fees.

Applicants may pay fees in the form of a check, [ ~~The commission shall not accept fees which are not submitted in the form of a~~ ] cashier's check or money order made payable to the Texas Real Estate Commission.

§543.4.Forms.

The Texas Real Estate Commission adopts by reference revised Application Form TSR 1-3 [ ~~1-2~~ ] approved by the commission in 2001 [ ~~1993~~ ]. This document is published by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

The Texas Real Estate Commission adopts by reference revised Application Form TSR 2-3 [ ~~2-2~~ ] approved by the commission in 2001 [ ~~1993~~ ]. This form is published by and available from the Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.

§543.5.Violations.

It is a material violation of the Texas Timeshare Act (the Act) for a person to engage in any of the acts described in Section 221.071(a) [ ~~Subsection 11(a)~~ ] of the Act.

It is a material violation of the [ ~~Texas Timeshare~~ ] Act for a registrant to represent to a potential purchaser of a timeshare interest by advertising or any other means that a timeshare property has been approved by the State of Texas or the Texas Real Estate Commission or to represent that the State of Texas or the Texas Real Estate Commission has passed upon the merits of a timeshare offering. It is not a material violation of the Act for a registrant to represent that a timeshare property has been registered if the registrant discloses at the same time and in the same manner that the State of Texas and the Texas Real Estate Commission have not approved the timeshare property or passed upon merits of the timeshare offering.

It is a material violation of the [ ~~Texas Timeshare~~ ] Act for a registrant to fail to file an application to amend a registration within 30 days of the occurrence of a material and adverse change in any document contained in the registration or to fail to cure a deficient application to amend a registration within 180 days after the commission has mailed to the applicant a request for curative action.

It is a material violation of the [ ~~Texas Timeshare~~ ] Act for a person to procure or attempt to procure a registration or amendment to a registration by fraud, misrepresentation or deceit or by making a material misstatement of fact in an application filed with the commission.

§543.6.Hearings.

Proceedings initiated by the commission to consider the suspension or revocation of the registration of a timeshare property will [ ~~shall~~ ] be conducted in accordance with the provisions of the Administrative Procedure [ ~~and Texas Register~~ ] Act, Chapter 2001, Texas Government Code [ ~~Article 6252-13c, Texas Civil Statutes~~ ].

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 11, 2001.

General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: February 25, 2001

For further information, please call: (512) 465-3900

Part 33. TEXAS STATE BOARD OF EXAMINERS OF PERFUSIONISTS

Chapter 761. PERFUSIONISTS

The Texas State Board of Examiners of Perfusionists (board) proposes amendments to §§761.1 - 761.9, repeal of §§761.10 - 761.20 and adds new §§761.10 - 761.19 relating to the licensing and regulation of perfusionists. The amendments cover definitions, the board's organization and administration, professional and ethical conduct, educational requirements for licensure, examination procedures for perfusionists, procedures and criteria for exemptions, application procedures, determination of eligibility and provisional licensed perfusionist. The new section covers licensing after examination, procedures for changes of name or address, license renewal, minimum continuing education requirements, licensing of persons with criminal backgrounds to be a perfusionist and provisional licensed perfusionist, violations, complaints, and subsequent board actions, formal hearings, informal dispositions, default orders and suspension of license for failure to pay child support. The repeal covers the grandfather period, licensing after examination, procedures for changes of name or address, license renewal, minimum continuing education requirements, licensing of persons with criminal backgrounds to be a perfusionist and provisional licensed perfusionist, violations, complaints, subsequent board actions, formal hearings, informal dispositions, default orders and suspend of license for failure to pay child support.

Government Code §2001.039 , and the General Appropriations Act, Article IX, §9-10.13, 76th Legislature, 1999, requires each state agency to review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 761.1-761.20 have been reviewed and the board has determined that reasons for adopting the sections continue to exist; however, revisions are being made to the rules.

The board published a Notice of Intention to Review for §§761.1-761.20 in the Texas Register on September 17, 1999, (24 TexReg 7775). No comments were received as a result of the publication of the notice.

The board held rules committee meetings to conduct a preliminary review of its rules. As a result of these meetings, the board is amending its existing rules located at Title 22, Texas Administrative Code (TAC), Chapter 761 to (1) satisfy the requirements of Government Code, §2001.039; (2) delete language no longer needed; (3) update existing rules to reflect changes in the profession; (4) increase two existing fees; (5) amend rules according to changes pursuant to the codification of the Licensed Perfusionist Act in the new Texas Occupations Code, Chapter 603; (6) clarify, reorganize and simplify the rules; and (7) make typographical corrections.

Bobby D. Schmidt, M.Ed., Executive Secretary, has determined, that for each of the first five-year period the sections as proposed are in effect, fiscal implications will result from the enforcement or administration of the sections as proposed. The effect on state government will be an estimated increase in revenue to the state of approximately $5,000 per year. No fiscal implications will be incurred by local government.

Mr. Schmidt has also determined, that for each of the first five years the sections as proposed are in effect, the public benefit anticipated as a result of the amendments and repeal will be the elimination of duplicative language, the clarification of exiting rules, and the updating of rules that will apply to current practice. Furthermore, public benefit is anticipated as a result of enforcing the sections as proposed to assure the appropriate regulation of perfusionists and continue to identify competent perfusionists. There are two fee increases, one of $25 to the application and initial license fee, and one of $50 to the late renewal fee. These fees will affect new applicants and those who submit a renewal fee after the expiration date of the license. There is also a new fee of $10 for verification of licensure. This may affect small business or micro business if these businesses are involved in licensure verification. There is no anticipated impact on local employment.

Written comments on the proposed amendments or repeal may be submitted in writing to Bobby D. Schmidt, M.Ed., Executive Secretary, Texas State Board of Examiners of Perfusionists, 1100 West 49th Street, Austin, Texas 78756-3183, phone: (512) 834-6751. Comments will be accepted for 30 days after publication of this notice in the Texas Register .

22 TAC §§761.1 - 761.19

The amendments and new rules are proposed under the Texas Occupations Code, §603.152, which provides the board the authority to adopt and enforce rules reasonably required in the exercise of its general powers and jurisdiction.

The amendments and new rules affect the Texas Occupations Code, Chapter 603, and implements the Texas Government Code, §2001.039.

§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 Occupations Code, Chapter 603 [ ~~Texas Civil Statutes, Article 4529e~~ ].

Administrative Law Judge--A judge employed by the State Office of Administrative Hearings.

[ ~~(2)~~ ] APA--The Administrative Procedure Act, Government Code.

[ ~~(3)~~ ] Board--The Texas State Board of Examiners of Perfusionists.

[ ~~(4)~~ ] Board of Health--The Texas Board of Health.

[ ~~(5)~~ ] Cardiopulmonary Surgery--Surgery pertaining to the heart, great vessels, or lungs.

[ ~~(6)~~ ] Commissioner--The Commissioner of Health.

[ ~~(7)~~ ] 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.

[ ~~(8)~~ ] Delegated authority--As defined in the Texas Medical Practice Act, Texas Occupations Code, Chapter 157 [ ~~Texas Civil Statutes, Article 4495b,§3.06~~ ](d)(1), and the rules pertaining thereto adopted by the Texas State Board of Medical Examiners.

[ ~~(9)~~ ] Department--The Texas Department of Health

[ ~~(10)~~ ] Extracorporeal circulation--The diversion of a patient's blood through a heart-lung machine or a similar device that assumes the functions of the patient's heart, lungs, or both.

[ ~~(11)~~ ] Formal hearing--A formal hearing or proceeding in accordance with this chapter and includes a contested case.

[ ~~(12)~~ ] Formally trained--Completion of an organized educational activity which:

includes supervised and directed instruction specific to the perfusion procedures to be performed by the individual;

includes specific objectives, activities and an evaluation of competency; and

is specifically supervised and directed by another individual qualified to provide the training and supervision.

[ ~~(13)~~ ] Health care professional--A licensed perfusionist, provisional 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 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 Occupations Code, Chapter 155 [ ~~Texas Civil Statutes, Article 4495b~~ ], by the Texas State Board of Medical Examiners.

Licensee--A person who holds a current license as a perfusionist or provisional licensed perfusionist issued by the board.

Perfusion--The function necessary for the support, treatment, measurement, or supplementation of the cardiovascular, circulatory, or 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:

the use of extracorporeal circulation, cardiopulmonary support techniques, and other therapeutic and diagnostic technologies;

counterpulsation, ventricular assistance, or autotransfusion (including blood conservation techniques), administration of cardioplegia, and isolated limb perfusion;

the use of techniques involving blood management, advanced life support, and other related functions; and

in the performance of the acts described in this subsection:

the administration of:

pharmacological and therapeutic agents; or

blood products or anesthetic agents through the extracorporeal circuit or through an intravenous line as ordered by a physician;

the performance and use of:

anticoagulation analysis;

physiologic analysis;

blood gas and chemistry analysis;

hematocrit analysis;

hemoconcentration; and

hemodilution; and

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.

Presiding Officer--Chairman of Board.

[ ~~(22)~~ ] Provisional licensed perfusionist--A person provisionally licensed under this Act.

§761.2.The Board's [ ~~Operation.~~ ] Organization and Administration

~~Purpose. This section sets out the organization and administration and other general procedures and policies governing the operation of the board.]~~

[ ~~(b)~~ ] Officers.

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.

~~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.

The vice-chairman shall perform the duties of the chairman in case of the absence or disability of the chairman.

In case the office of chairman becomes vacant, the vice-chairman shall serve until a successor is elected.

[ ~~(c)~~ ] Meetings.

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.

Special meetings may be called by the chairman at such times, dates, and places as become necessary for the transaction of board business.

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.

The board may transact official business only when in a legally constituted meeting with a quorum present.

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.

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)~~ ] Conflict of Interest [ ~~Impartiality~~ ] Any board member who has a conflict of interest regarding any matter [ ~~is unable to be impartial in any proceeding~~ ] before the board, such as a matter [ ~~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 or matter .

[ ~~(h)~~ ] Attendance.

The policy of the board is that members shall attend regular and committee meetings as scheduled.

The board may report to the governor and the Texas Sunset Advisory Commission the attendance records of members.

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.

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 expense.

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.

A board member is entitled to compensation for travel [ ~~transportation~~ ] expenses as provided by the General Appropriations Act.

Payment to board members of per diem and travel [ ~~transportation~~ ] expenses shall be requested on official state travel vouchers which have been approved by the executive secretary.

Board-approved requests for board staff for out-of-state travel for board activities shall be pre-approved [ ~~approved by the Associate Commissioner for Health Care Quality and Standards of the department on appropriate forms~~ ].

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.

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.

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.

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.

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 and official seal of the board .

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.

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.

~~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.

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.

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.

A board member shall not serve more than two consecutive terms in the office of chairman or vice chairman.

[ ~~(o)~~ ] Committees.

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.

The chairman may appoint the members of the board to serve on committees and may designate the committee chairman.

The chairman of the board may appoint nonboard members to serve as committee members on a consultant or voluntary basis, subject to board approval.

Committee chairmen shall make regular reports to the board in interim written reports or at regular meetings, as needed.

Committees shall direct all reports or other materials to the executive secretary for distribution.

Committees shall meet when called by the chairman of the committee or when so directed by the board.

The following standing committees shall be appointed by the newly elected chairman each odd-numbered year to serve a term of two years.

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 (s) [ ~~(t)~~ ] of this section.

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 §761.15 of this title (relating to Violations, Complaints, Investigations, and Procedures) [ ~~§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.

Each year the executive secretary shall publish a registry of current licensees.

The registry shall include, but not be limited to, the name of current licensees.

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.

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.

Schedule of fees for licensure as a perfusionist and a provisional licensed perfusionist is as follows:

application and initial license fees-- $175 [ ~~$150~~ ];

license fee for upgrade of provisional licensed perfusionist--$75;

renewal fee--$175;

late renewal fee [ ~~fees~~ ]- $100 [ ~~$50~~ ];

license certificate and identification card replacement fee--$10; [ ~~and~~ ]

child support reinstatement fee--$40 ; and

verification fee--$10 per licensee.

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.

A licensee whose check for the renewal fee is not honored by the financial institution may remit to the board a money order or check for guaranteed funds within 30 days of the date of receipt of the board's notice. Otherwise, the license shall not be renewed. If a renewal card has already been issued, it shall be subject to revocation.

Fees paid to the board by applicants are not refundable.

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.

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.

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.

Submission of the petition.

Any person may petition the board to adopt a rule.

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:

a brief explanation of the proposed rule;

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;

a statement of the statutory or other authority under which the rule is to be promulgated; and

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.

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.

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.

Consideration and disposition of the petition.

The executive secretary shall submit a completed petition to the board for its consideration.

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:

deny the petition; or

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.

The board may deny parts of the petition or institute rule making procedures on parts of the petition.

If the board denies the petition, the executive secretary shall give the petitioner written notice of the board's action, including the reason(s).

Final determination of the wording of the new rules made in accordance with the Administrative Procedure Act shall be at the discretion of the board. [ If the board initiates rule-making procedures in accordance with the Administrative Procedure Act, §5, the version of the rule which the board proposes may differ from the version proposed by the petitioner. ]

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.

Professional and Ethical Conduct [ ~~The Profession of Perfusion~~ ]

~~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, §603.151(6) .[ ~~§6(b)(1).~~ ]

Professional representation and responsibilities.

A licensee shall not misrepresent his or her [ ~~any~~ ] professional qualifications or credentials.

A licensee shall not make any false or misleading claims pertaining to the indications and efficacy of the practice of perfusion.

A licensee shall not permit the use of his or her name for the purpose of certifying that perfusion services have been rendered unless that licensee has provided those services.

A licensee shall not promote or endorse products in a manner that is false or misleading.

A licensee shall disclose to the reimbursing entity any personal gain or profit from any supply, procedure or service.

A licensee shall have the responsibility of reporting alleged misrepresentations or violations of board rules to the board's executive secretary.

A licensee shall comply with any order relating to the licensee which is issued by the board.

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.

A licensee shall not make any false, misleading, or deceptive claims in any advertisement, announcement, or presentation relating to the services of the licensee.

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 associated with investigation or disciplinary proceedings .

~~A licensee shall conform to the Code of Ethics of the American Board of Cardiovascular Perfusion which is summarized as follows:]~~

[ ~~(i)~~ ] The licensee [ ~~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 licensee [ ~~perfusionist~~ ] who consciously fails to promote both the safety and protection of the public is guilty of unethical conduct.

[ ~~(iii)~~ ] The licensee [ ~~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 licensee [ ~~perfusionist~~ ] who shows willful disregard for sound patient care by acts of omission is guilty of unethical conduct.

[ ~~(v)~~ ] A licensee [ ~~The ethical perfusionist~~ ] shall subscribe to all other applicable ethical standards of the medical community.

[ ~~(vi)~~ ] The licensee [ ~~perfusionist~~ ] accepts the responsibility for subscribing to the preceding Code of Ethics and for reporting unethical professional conduct.

[ ~~(L)~~ ] A licensee [ ~~licensed perfusionist~~ ] shall supervise a provisional licensed perfusionist in accordance with §761.9 of this title (relating to Provisional Licensed Perfusionist).

Professional relationships.

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.

A licensee shall bill a reimbursing entity in the manner agreed to by the licensee and entity in accordance with 42 United States Code §1395nn, relating to [ ~~concerning~~ ] the anti-kickback statute and the Health and Safety Code, §161.091, relating to [ ~~concerning~~ ] illegal renumeration.

A licensee shall not receive or give a commission or rebate or any other form of renumeration for the referral of professional services.

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.

A licensee shall practice perfusion without discrimination based on race, creed, gender, religion, national origin, or age.

A licensee shall not violate any provision of any federal or state statute relating to confidentiality of patient communications and records.

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.

Billing information required; prohibited practices.

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.

A licensee may not [ ~~persistently or flagrantly~~ ] overcharge or overtreat a patient.

Sanctions. A licensee shall be subject to disciplinary action by the board if under the Crime Victims Compensation Act, Texas Code of Criminal Procedure, Article 56.31, [ ~~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:

on each written contract for services of a licensee; or

on a sign prominently displayed in the primary place of business of each licensee; or

in a bill for service provided by a licensee to a patient or reimbursing entity.

[ ~~(d)~~ ] Unlawful false, misleading, or deceptive advertising. A license shall not use advertising that is false, misleading, or deceptive or that is not readily subject to verification. False, misleading, or deceptive advertising or advertising that is not really subject to verification includes advertising that:

~~A licensee shall not use advertising that is false, misleading, or deceptive or that is not readily subject to verification.]~~

~~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.

§761.4.Educational Requirements for Licensure.

~~Purpose. The purpose of this section is to set out the educational requirements for examination and licensure as a perfusionist or a provisional licensed perfusionist.]~~

The board shall approve as meeting licensure requirements a perfusion education program that has educational standards that are as stringent as those established by the Accreditation Committee for Perfusion Education (AC-PE) and approved by the Commission on Accreditation of Allied Health Education Programs (CAAHEP) or their successors.

Degrees and course work received in foreign countries shall be acceptable only if the degree or coursework has educational standards that are as stringent as those established by the AC-PE and approved by CAAHEP or their successors.

A foreign training program shall be acceptable only if it has educational standards as stringent as those established by the AC-PE and approved by the CAAHEP or their successors.

In the event that an educational deficiency is present, an applicant will have one year in which to complete the additional course work acceptable to the board before the application will be voided and the applicant will be required to reapply and to pay an additional application fee.

§761.5.Examination Procedures for Perfusionist Licensure.

~~Purpose. The purpose of this section is to establish rules governing the procedures for examinations of applicants for licensure as a perfusionist.]~~

[ ~~(b)~~ ] Frequency. Examinations will be administered for the board at least once each year by a designee of the board.

[ ~~(c)~~ ] Requirements.

The executive secretary shall notify an applicant when all requirements for licensure have been met except the taking and passing of the required examination. The board shall forward or cause to be forwarded an examination registration form to each approved applicant as soon as the application has been approved.

An applicant who wishes to take a scheduled examination must complete the examination registration form which must be received by the board or designee by the deadline established by the board. The fee shall be paid to the designee of the board.

The examination for licensure shall be an examination approved by the board. A designee of the board shall administer and grade examinations and report to the board if the applicant has passed or failed the examination.

If an applicant has already successfully completed the required examination or the examination administered by the American Board of Cardiovascular Perfusion (ABCP), the applicant shall not be required to be reexamined, provided the applicant furnishes the board a copy of the test results indicating that the applicant passed the examination and proof that he or she has been certified by the ABCP for some time period within three years immediately preceding date of application.

An applicant who fails four examinations may not reapply as a provisional licensed perfusionist .

~~An applicant who has failed four examinations may choose as an alternative method for demonstrating competency to reaccomplish the educational and testing requirements.]~~

The board recognizes as an alternative method of examining competency the holding and maintaining of a certificate as a Certified Clinical Perfusionist issued by the ABCP, and further recognizes that the holding and maintaining of such certificate demonstrates competency to the satisfaction of the board such as required to meet the competency examination requirements of §11(a) of the Act.]

Procedures and Criteria for Exemptions.

Purpose. The purpose of this section is to set out the notification procedures and criteria for approval of exemption from the Act for a person who is not a resident of Texas to practice perfusion in Texas, and to define the allowable exempted time period. Other exemptions are set out in §17 of the Act.]

[ ~~(b)~~ ] Criteria for approval. A person who is not a resident of Texas is exempt from the Act to the extent provided in this section if:

the person is authorized to perform the activities and services of perfusion under the laws of the state of the person's residence; and

the person is currently certified as a Certified Clinical Perfusionist (CCP) by the American Board of Cardiovascular Perfusion (ABCP).

[ ~~(c)~~ ] Notification and approval process.

A person must submit, either by mail or facsimile transmission, a completed notification form which verifies both subsection (a) [ ~~(b)~~ ] (1) and (2) of this section at least three working days prior to the requested exemption dates.

Upon receipt of the notification form and upon certification that the person has not exceeded the maximum of ten days in the last 365 days, an approval letter which lists the dates approved for exemption will be returned to the person.

Upon receipt of the notification form and upon verification that the person has exceeded the maximum of ten days in the last 365 days, a disapproval letter will be returned to the person. The letter will state that the person shall not practice perfusion in Texas without being licensed by the board. The letter will also state when the next 365 day time period will begin, which will allow for another maximum of ten days exemption during that 365 days.

§761.7.Application Procedures.

Purpose. The purpose of this section is to set out the application procedures for examination and licensure to establish qualifications of an applicant as one of the criteria for approval for licensure as provided for in the Act, §7(b)(2), and to set forth the criteria by which the board shall determine the qualifications of applicants for licensure.]

[ ~~(b)~~ ] Fitness of applicants for perfusion licensure.

In determining the qualifications of applicants for licensure the board may request and consider any of the following:

evaluations of supervisors or instructors;

evaluations of employers or professional associations;

~~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.

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:

lack of the necessary skills and abilities to provide adequate perfusion services;

misrepresentation of professional qualifications , credentials or associations;

misrepresentation of perfusion services and the efficacy of perfusion services to clients;

use of misleading advertising or false advertising;

violation of any provision of any federal or state statute relating to confidentiality of client communication and records;

abuse of alcohol or drugs or the use of illegal drugs of any kind in any manner which detrimentally affects the provision of perfusion services; and

any misrepresentation in application or other materials submitted to the board.

[ ~~(c)~~ ] General Procedures .

An applicant must submit a sworn application and all required information and documentation of credentials on official board forms.

The board will not consider an application as officially submitted until the applicant pays the application fee and submits all required written documentation . The application and initial license fee [ ~~of $150~~ ] must accompany the application form.

The executive secretary will send a notice listing the additional materials required to an applicant who does not complete the application in a timely manner. An application not completed within 30 days after the date of the board's notice shall [ ~~may~~ ] be void.

[ ~~(d)~~ ] Required application materials.

The application form shall contain:

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;

a statement that the applicant has read the Act and board rules and agrees to abide by them;

the applicant's permission for [ to ] the board to seek any information or references it deems appropriate [ ~~fit~~ ] to determine the applicant's qualifications and fitness;

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;

a statement that the applicant has been informed [ ~~understands~~ ] that fees submitted in the licensure process are nonrefundable;

a statement that the applicant has been informed [ ~~understands~~ ] that materials submitted in the licensure process become the property of the board and are nonreturnable; and

the signature of the applicant which has been dated and notarized.

Applicants must submit official transcript(s) from a [ ~~an approved~~ ] perfusion education program approved by the board or from a program with requirements as stringent as those established by the Accreditation Committee for Perfusion Education (AC-PE) and approved by the Commission on Accreditation of Allied Health Education Programs (CAAHEP) or their successors.

If submitting an equivalent program, the burden is on an applicant to establish that program requirements are as stringent as those established by the AC-PE and approved by the CAAHEP or their successors.

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.

If an applicant is or has been licensed, certified, or registered in another state, territory, or jurisdiction, the applicant must submit information required by the board concerning that license, certificate or registration on official board forms.

Curriculum vitae, resumes, and other documentation of the applicant's credentials may be submitted.

An applicant applying for licensing by endorsement shall submit a copy of the license or certificate by which the reciprocal license is requested and the name and address of the licensing or certifying agency.

An applicant for provisional licensed perfusionist must have his or her supervising licensed perfusionist or an appropriately licensed physician sign the applicant form.

§761.8.Determination of Eligibility.

The board may deny the application if the person has:

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;

been convicted of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a licensee as set out in §761.14 of this title (relating to Licensing of Persons with Criminal Backgrounds to Be A Licensed Perfusionist and Provisional Licensed Perfusionist [ ~~§761.15 of this title (relating to Licensing of Persons with Criminal Backgrounds To Be a Perfusionist and Provisional Licensed Perfusionist)~~ ] , and in Texas Occupations Code, Chapter 53;

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 and an informal settlement conference . The notice and hearing shall be in accordance with §761.15 of this title (relating to Violations, Complaints, Investigations, and Procedures) [ ~~§761.16 of this title (relating to Violations, Complaints, and Subsequent Board Actions)~~ ].

§761.9.Provisional Licensed Perfusionist.

Supervision. [ ~~The purpose of this section is to set out the nature and the scope of the supervision provided for a provisional licensed perfusionist.~~ ]

Changes. Any change in the supervision shall be submitted in writing to the Board's Executive Secretary . The signature of the supervising licensed perfusionist shall be included in the written notice.

Time limits. A provisional license is valid for one year from the date it is issued and may be renewed annually for not more than three [ ~~five~~ ] times by the procedures set out at §761.12 [ ~~§761.13~~ ] of this title (relating to License Renewal).

Variance. An applicant or provisional licensee may request the board to approve that supervision and direction be performed by a licensed physician in lieu of a licensed perfusionist.

The request for a variance must be in writing and must include the following:

the name, address, and copies of the credentials for verification that the physician is licensed by the Texas State Board of Medical Examiners and certified and/or eligible for certification by the American Board of Thoracic Surgeons, Inc., or certified and/or eligible for certification in cardiovascular surgery by the American Osteopathic Board of Surgery.

§761.10.Licensing After Examination.

Issuance of licenses.

Upon request the board shall send each applicant who has been approved and who has passed the examinations, if applicable, a form to complete and return with the upgrade fee, if applicable.

Upon receiving an applicant's form and fee, the board shall issue a license certificate and license identification card containing a license number.

Replacement. The board shall replace a lost, damaged, or destroyed license certificate or identification card upon a written request from the licensee and payment of the license replacement fee. Requests shall include a statement detailing the loss or destruction of the licensee's original license or identification card or be accompanied by the damaged certificate or card.

License certificates.

The board shall prepare and provide to each licensee a license certificate and identification card which contains the licensee's name, license number, and expiration date.

Official license certificates shall be signed by the executive secretary. Official identification cards shall be signed by the executive secretary and the licensee.

Any certificate or identification card issued by the board shall remain the property of the board and must be surrendered to the board on demand.

The license certificate must be displayed in an appropriate and public manner as follows:

The license certificate shall be displayed in the primary office or place of employment of the license.

In the absence of a primary office or place of employment, or when the licensee is employed at multiple locations, the licensee shall carry a current identification card.

Upgrading a provisional license.

The provisional licensed perfusionist shall submit to the board a photocopy of the examination results from the American Board of Cardiovascular Perfusion and a written request to upgrade.

The provisional licensed perfusionist who successfully completes the licensing examination shall surrender to the board the provisional license certificate and provisional license identification card, and submit the license fee for upgrade of provisional licensed perfusionist to licensed perfusionist.

If the provisional licensed perfusionist is not eligible for upgrade, the executive secretary shall notify the provisional licensed perfusionist in writing of the reasons for denial and the additional documentation needed to meet the minimum requirements for licensure as a licensed perfusionist.

§761.11.Changes of Name or Address.

The licensee shall notify the board of changes in name or preferred mailing address within 30 days of such change(s).

Notification of address changes shall be made in writing including the name, mailing address, and zip codes, and be mailed to the executive secretary.

Before another license certificate and identification card will be issued by the board, notification of name changes must be mailed to the executive secretary and shall include a duly executed affidavit and a copy of a marriage certificate, court decree evidencing such change, or a Social Security card reflecting the new name. The licensee shall return any previously issued license certificate and identification card and remit the appropriate replacement fee as set out in §761.2(r) of this title (relating to The Board's Organization and Administration).

§761.12.License Renewal.

When issued, a license is valid until the licensee's next birth month.

A licensee must renew the license annually.

The renewal date of a license shall be the last day of the licensee's birth month.

Each licensee is responsible for renewing the license before the expiration date and shall not be excused from paying additional fees or penalties. Failure to receive notification from the executive secretary prior to the expiration date of the license shall not excuse failure to file for renewal or late renewal.

The board shall not renew the license of the licensee who is in violation of the Act or board rules at the time of application for renewal.

The board shall deny renewal of the license of a licensee if renewal is prohibited by the Education Code, §57.491 relating to student loan default.

The board shall deny renewal of the license of a licensee for whom a contested case is pending until resolution of the case, but such individual remains licensed pending resolution of the contested case, if timely application for renewal is made.

License renewal requirements.

At least 30 days prior to the expiration date of a person's license, the executive secretary shall send notice to the licensee at the address in the board's records of the expiration date of the license, the amount of the renewal fee due, and a license renewal form which the licensee must complete and return to the board with the required renewal fee. The return of the completed renewal form in accordance with the requirements of paragraph (3) of this subsection shall be considered confirmation of the receipt of renewal notification.

The license renewal form for all licensees shall require the provision of the preferred mailing address, primary employment address and telephone number, and misdemeanor and felony convictions. The license renewal form for the provisional licensed perfusionist shall be signed by the supervising licensed perfusionist or approved licensed physician and indicate whether the supervisor and supervisee have complied with this chapter.

A licensee has renewed the license when the licensee has mailed the renewal form and the required renewal fee to the executive secretary prior to the expiration date of the license. The postmark date shall be considered as the date of mailing.

The board shall issue to a licensee who has met all requirements for renewal a license certificate and identification card.

Late renewal requirements.

The executive secretary shall inform a person who has not renewed a license after a period of more than 90 days after the expiration of the license of the amount of the fee required for renewal and the date the license expired.

A person whose license has expired for not more than two years may renew the license by submitting the license renewal form and appropriate late renewal fees to the executive secretary. The renewal is effective if it is mailed to the executive secretary within two years after the expiration date of the license. The postmark date shall be considered as the date of mailing.

A person whose license has been expired two years or more may not renew the license. The person may obtain a new license by complying with the current requirements and procedures for obtaining an original license.

Expiration of license.

A person whose license has expired may not use the title or represent or imply that he has the title of "licensed perfusionist" or "provisional licensed perfusionist" or use the letters "LP" or "PLP", and may not use any facsimile of those titles in any manner.

A person who fails to renew a license after two years shall surrender the license certificate and license identification card to the board.

Active duty. If a licensee fails to timely renew his or her license on or after August 1, 1990, and the licensee is or was on active duty with the armed forces of the United States of America, the licensee may renew the license in accordance with this subsection.

Renewal of the license may be requested by the licensee, the licensee's spouse, or an individual having power of attorney from the licensee. The renewal form shall include a current address and telephone number for the individual requesting the renewal.

Renewal may be requested before or after expiration of the license.

A copy of the official orders or other official military documentation showing that the licensee is or was on active duty shall be filed with the board along with the renewal form.

A copy of the power of attorney from the licensee shall be filed with the board along with the renewal form if the individual having the power of attorney executes any of the documents required in this subsection.

A licensee renewing under this subsection shall pay the applicable renewal fee, but not the reinstatement fee or any penalty fee.

§761.13.Minimum Continuing Education Requirements.

Completion of continuing education (CE) requirements with current certification by the American Board of Cardiovascular Perfusion (ABCP) or its successor agency. Completion of continuing education requirements shall be documented by demonstrating current certification by the ABCP annual license renewal.

Completion of CE requirements without current certification by the ABCP. Licensed perfusionists without current certification by the ABCP at the time of license renewal must meet the following criteria.

Document a minimum of 45 continuing education credit (CEU)s in a three-year period by submitting the professional activity report on the approved form every third year. A minimum of 15 hours of CEU must be earned in Category I. The activity period covered in the professional activity report is from the date of licensure to the third licensure renewal date and every subsequent third license renewal date.

Document a minimum of 40 clinical perfusions in a one-year period by submitting the clinical activity report on the approved form upon annual license renewal. The first clinical activity report from a newly licensed perfusionist is due on the second license renewal date.

One CEU or contact hour activity is defined as 50 minutes spent in an organized, structured or unstructured learning experience. Categories of CEU activities are:

Category I - Perfusion Meetings and Other Perfusion Related Activity - Perfusion meetings are those programs and seminars in which a minimum of 75% of the contact hours consist of perfusion related material. Only those meetings approved by the ABCP will qualify for Category 1 hours. Examples.

International, national regional, and state perfusion meetings.

Publication of perfusion related book chapter or paper in a professional journal.

Presentation at an international, national regional or state perfusion journal

Category II - Non-Accredited Perfusion Meetings and Other Medical Meetings- This category includes international, national, regional, and state meetings that have not been approved by the ABCP, local perfusion meetings and all other medically related meetings. Examples.

International, National, Regional, and State, perfusion meetings that have not been accredited by the ABCP.

Local perfusion meetings (do not require ABCP accreditation). Any perfusion meeting NOT EQUALLY ACCESSIBLE to the general CCP community, this includes manufacturer-specific and company-sponsored educational activities.

International, National, Regional, or Local medically-related meetings.

Category III- Individual Education and Other Self-Study Activities- Credit in this category is acquired on an hour for hour basis of the time spent in these non-accredited or non-supervised activities. Examples.

Reading or viewing medical journals, audio-visual, or other educational material.

Participation in electronic forums.

Participation in a Journal Club.

Participation in degree-oriented, professional-related. course work

Presentation of perfusion topic at a non-perfusion meeting.

A minimum of 40 clinical perfusions per year are required of every licensed perfusionist.

40 cases are required each year as the Primary Perfusionist for Cardiopulmonary bypass, ECMO, VAD, Isolated Limb Perfusion, or VENO-VENO bypass. For each ECMO or VAD case, one case credit will be awarded for initiated and/or managing an eight-hour shift.

Documentation of activities. Licensed perfusionists are responsible for providing documentation of their professional activities. This documentation must be submitted along with the professional activity report. Credit will not be granted for activities that are not documented. The suitable documentation is outlined as follows:

Category I - Perfusion meetings - Approved perfusion meetings held before June 30, 1998, may be documented by copies of registration receipts or official meeting name tags. For approved perfusion meetings held after June 30, 1998, an official document from the meeting sponsor documenting attendance and the number of hours received must be provided.

Perfusion Publications must have complete reference of book or article (authors, title, journal and date/volume of journal.

Perfusion Presentations must have copy of program agenda.

Category II - International, national, regional, and state perfusion meetings not accredited by the ABCP, local perfusion meetings and all other medical meetings - must provide an official document stating CEUs awarded and copy of the meeting program.

Category III - All self-study activities will require an official record of completion or written summary of the activity.

Exceptions. Any deviation from the continuing education requirements will be reviewed on a case-by- case basis by the Board. A request for special consideration shall be submitted in writing a minimum of 60 days prior to expiration of the license.

§761.14.Licensing of Persons with Criminal Backgrounds To Be A Licensed Perfusionist and Provisional Licensed Perfusionist.

Criminal convictions which directly relate to the profession of perfusion.

The board may suspend or revoke an existing license, disqualify a person from receiving a license, or deny to a person the opportunity to be examined for 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.

In considering whether a criminal conviction directly relates to the occupation of a licensed perfusionist or provisional licensed perfusionist, the board shall consider:

the nature and seriousness of the crime;

the relationship of the crime to the purposes for licensure as a perfusionist or provisional perfusionist. The following felonies and misdemeanors listed in clause (i)-(iv) of this subparagraph relate to the license of a perfusionist or provisional perfusionist because these criminal offenses indicate an inability or a tendency to be unable to perform as a licensed perfusionist or a provisional licensed perfusionist:

the misdemeanor of knowingly or intentionally acting as a licensed perfusionist or provisional licensed perfusionist without a license under the Act, §15, Texas Occupations Code, §603.452.

a misdemeanor or a felony offense involving moral turpitude;

a conviction relating to health care fraud or individual excluded from the Medicare or Medicare programs due to Medicare or Medicaid fraud;

a misdemeanor or felony offense under the following titles of the Texas Penal Code:

offenses against the person (Title 5);

offenses against property (Title 7);

offenses against public order and decency (Title 9);

offenses against public health, safety, and morals (Title 10);

offenses of attempting or conspiring to commit any of the offenses in this subsection (Title 4); and

insurance claim fraud under the Penal Code, §32.55; and

the misdemeanors and felonies listed in clauses (i)-(iii) of paragraph (2)(B) of this subsection 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;

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

the relationship of the crime to the ability or capacity required to perform the duties and discharge the responsibilities of a licensed perfusionist or provisional licensed perfusionist. In making this determination, the board will apply the criteria outlined in Texas Occupations Code, Chapter 53.

Procedures for revoking, suspending, or denying a license to persons with criminal backgrounds.

The board's executive secretary will give written notice to the person that the board intends to deny, suspend, or revoke 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, §761.15 (relating to Violations, Complaints, Investigations, and Procedures) and §761.16 of this title (relating to Formal Hearings).

If the board denies, suspends, or revokes an application for a license under this section, the executive secretary will give the person written notice:

of the reasons for the decision; and

that the person, after exhausting administrative appeals, may appeal in a district court of Travis County, Texas.

§761.15.Violations, Complaints, Investigations, and Procedures.

Types of violations and prohibited actions.

A person may not knowingly or intentionally represent or imply that he or she has the title of "licensed perfusionist" or "provisional licensed perfusionist" or use the letters "LP" or "PLP" or any facsimile of those titles in any manner unless the person holds an appropriate license issued under the Act.

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.

A licensee may not issue an insufficient funds check and fail to redeem such instrument within 10 days after being given written notice by the board.

A licensee may not violate any of the provisions of the Act or any rules adopted by the board.

Filing of complaints.

A person wishing to complain about a prohibited act or alleged violation 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.

Upon receipt of a complaint, the executive secretary shall send to the complainant an acknowledgment letter and the board's complaint 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.

Anonymous written complaints shall be investigated by the executive secretary provided that the complainant provides sufficient information.

Investigation of complaints.

The executive secretary on behalf of the board is responsible for handling complaints.

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.

Actions by executive secretary.

The executive secretary alone or with the concurrence of the Complaint Committee may take one or more of the following actions:

determine that an allegation is groundless and dismiss the complaint; or

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:

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

with the concurrence of the board chairman, ask the attorney general, district attorney, or county attorney to take appropriate legal action against the violator; or

determine that a licensee has violated the Act or a board rule and propose denial of renewal, revocation, or suspension of the license, reprimand, or probation of the license suspension.

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.

Final action by the board.

If the board suspends the license, the suspension remains in effect until the board determines that the reasons for the suspension no longer exist.

During the time of suspension, the former license holder shall return the license certificate and license identification card to the board.

Upon showing of good cause by the former license holder, the board may probate the license suspension.

If a suspension overlaps a license renewal period, the former license holder must comply with the normal renewal procedures in these rules; however, the license will not be renewed until the board determines that the reasons for suspension have been removed.

If the board revokes the license, the former license holder must reapply in order to obtain a new license. The board will not issue a new license until the board determines that the reasons for revocation have been removed. The board may require an investigation and a recommendation from the executive secretary to assist the board in making its decision.

Upon revocation, the former license holder shall return the license certificate and license identification card to the board.

Surrender of license.

A licensee may offer his or her license for surrender to the board office. The executive secretary will notify the licensee that the license has been received.

When a licensee has offered the surrender of his or her license after a complaint has been filed alleging violations of the Act or this chapter, and the executive secretary has accepted such a surrender, that surrender is deemed to be the result of a formal disciplinary action.

A license which has been surrendered may not be reinstated; however, that person may apply for a new license in accordance with the Act and this chapter.

Monitoring of licensees. The executive secretary shall monitor each licensee against whom a board order is issued to ascertain that the licensee performs the required acts.

§761.16.Formal Hearings.

General. This section covers the formal hearing procedures and practices that will be used by the board in handling suspensions, revocation of license, denial of licenses, probating a license suspension, and reprimanding a licensee. Such hearing will be conducted pursuant to the contested case provisions of the Administrative Procedure Act (APA), Texas Government Code, Chapter 2001, and will be held by the State Office of Administrative Hearings.

Notice requirements.

Notice of the hearing shall be given according to the notice requirements of APA.

If a party fails to appear or be represented at a hearing after receiving notice, the administrative law judge may proceed with the hearing or take whatever action is fair and appropriate under the circumstances.

All parties shall timely notify the administrative law judge of any changes in their mailing addresses.

Parties to the hearing.

The parties to the hearing shall be the applicant or licensee and the complaints committee or executive secretary, as appropriate.

A party may appear personally or be represented by counsel or both.

Assessing the cost of a court reporter and the record of the hearing.

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.

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 transcript or assess the cost to one or more parties.

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.

Disposition of case. Unless precluded by law, informal disposition may be made of any contested case by agreed settlement order or default order.

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.

Final orders or decisions.

The final order or decision will be rendered by the board. The board is not required to adopt the recommendation of an administrative law judge and may take action as it deems appropriate and lawful.

All final orders or decisions shall be in writing and shall set forth the findings of fact and conclusions required by law.

All final orders shall be signed by the executive secretary and the chairman of the board; however, interim orders may be issued by the administrative law judge.

A copy of all final orders and decisions shall be timely provided to all parties as required by law.

Motion for rehearing. A motion for rehearing shall be governed by APA, Texas Government Code, §2001.146, and shall be addressed to the board and filed with the executive secretary.

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.

§761.17.Informal Settlement Conference.

Informal disposition of any complaint or contested case involving a licensee or an applicant for licensure may be made through an informal settlement conference held to determine whether an agreed settlement order may be approved.

If the executive secretary or a member of the complaints committee of the board determines that the public interest might be served by attempting to resolve a complaint or contested case by an agreed order in lieu of a formal hearing, the provisions of this section shall apply. A licensee or applicant may request an informal settlement conference; however, the decision to hold a conference shall be made by the executive secretary or a member of the complaints committee.

An informal conference shall be voluntary. It shall not be a prerequisite to a formal hearing.

The executive secretary shall decide upon the time, date, and place of the settlement conference and provide written notice to the licensee or applicant of the same. Notice shall be provided no less than ten days prior to the date of the conference by certified mail, return receipt requested to the last known address of the licensee or applicant or by personal delivery. The 10 days shall begin on the date of mailing or personal delivery. The licensee or applicant may waive the 10 day notice requirement.

The notice shall inform the licensee or applicant of the following:

the nature of the alleged violation;

that the licensee may be represented by legal counsel;

that the licensee or applicant may offer the testimony of witnesses and present other evidence as may be appropriate;

that the licensee's or applicant's attendance and participation is voluntary;

that the complainant may be present; and

that the settlement conference shall be canceled if the licensee or applicant notifies the executive secretary that he or she or his or her legal counsel will not attend.

A copy of the board's rules concerning informal disposition shall be enclosed with the notice of the settlement conference.

The notice of the settlement conference shall be sent by certified mail, return receipt requested, to the complainant at his or her last known address or personally delivered to the complainant. The complainant shall be informed that he or she may appear and testify or may submit a written statement for consideration at the settlement conference. The complainant shall be notified if the conference is canceled.

A member of the complaints committee may be present at a settlement conference.

The settlement conference shall be informal and shall not follow the procedures established in this chapter for contested cases and formal hearings.

The licensee, the licensee's attorney, and board staff may question witnesses, make relevant statements, present statements of persons not in attendance, and present such other evidence as may be appropriate.

The board's legal counsel will be requested to attend each settlement conference. The complaints committee member or executive secretary may call upon the board attorney at any time for assistance in the settlement conference.

The licensee shall be afforded the opportunity to make statements that are material and relevant.

Access to the board's investigative file may be prohibited or limited in accordance with the APA, Texas Government Code, Chapter 552, and the Texas Occupation Code, Chapter 603.

At the discretion of the executive secretary or the committee members, a tape recording may be made of none or all of the settlement conference.

The complainant shall not be considered a party in the settlement conference but shall be given the opportunity to be heard if the complainant attends. Any written statement submitted by the complainant shall be reviewed at the conference.

At the conclusion of the settlement conference, the executive secretary may make recommendations for informal disposition of the complaint or contested case. The recommendations may include any disciplinary action authorized by the Act. The executive secretary may also conclude that the board lacks jurisdiction, conclude that a violation of the Act or this chapter has not been established, or refer the matter for further investigation.

The licensee or applicant may either accept or reject at the conference the settlement recommendations. If the recommendations are accepted, an agreed settlement order shall be prepared by the board office or the board's legal counsel and forwarded to the licensee or applicant. The order shall contain agreed findings of fact and conclusions of law. The licensee or applicant shall execute the order and return the signed order to the board office within ten days of his or her receipt of the order. If the licensee or applicant fails to return the signed order within the stated time period, the inaction shall constitute rejection of the settlement recommendations.

If the licensee or applicant rejects the proposed settlement, the matter shall be referred to the executive secretary for appropriate action.

If the licensee or applicant signs and accepts the recommendations, the agreed order shall be submitted to the entire board for its approval. Placement of the agreed order on the board agenda shall constitute only a recommendation for approval by the board.

The identity of the licensee or applicant shall not be made available to the board until after the board has reviewed and accepted the agreed order unless the licensee or applicant chooses to attend the board meeting. The licensee or applicant shall be notified of the date, time, and place of the board meeting at which the proposed agreed order will be considered. Attendance by the licensee or applicant is voluntary.

Upon an affirmative majority vote, the board shall enter an agreed order approving the accepted settlement recommendations. The board may not change the terms of a proposed order but may only approve or disapprove an agreed order unless the licensee or applicant is present at the board meeting and agrees to other terms proposed by the board.

If the board does not approve a proposed agreed order, the licensee or applicant and the complainant shall be so informed. The matter shall be referred to the executive secretary for other appropriate action.

A licensee's opportunity for an informal conference under this section shall satisfy the requirement of the Texas Government Code, §2001.054(c).

If the executive secretary or complaints committee determines that an informal conference shall not be held, the executive secretary shall give written notice to the licensee or applicant of the facts or conduct alleged to warrant the intended disciplinary action and the licensee or applicant shall be given the opportunity to show, in writing and as described in the notice, compliance with all requirements of the Act and this chapter.

The complainant shall be sent a copy of the written notice described in paragraph (1) of this subsection. The complainant shall be informed that he or she may also submit a written statement to the board.

§761.18.Default Orders.

If a right to a hearing is waived, the board shall consider an order taking appropriate disciplinary action against the licensee as described in the written notice to the licensee or applicant.

The licensee or applicant and the complainant shall be notified of the date, time, and place of the board meeting at which the default order will be considered. Attendance is voluntary.

Upon an affirmative majority vote, the board shall enter an order taking appropriate action.

§761.19.Suspension of License for Failure to Pay Child Support.

On receipt of a final court order or attorney general's order suspending a license due to failure to pay child support, the executive secretary shall immediately determine if the board has issued a license to the obligator named on the order. If a license has been issued the executive secretary shall:

record the suspension of the license in the board's records;

report the suspension as appropriate; and

demand surrender of the suspended license.

The board shall implement the terms of a final court order or attorney general's order suspending a license without additional review or hearing. The board will provide notice as appropriate to the licensee or to others concerned with the license.

The board may not modify, remand, reverse, vacate, or stay a court or attorney general's order suspending a license issued under the Family Code, Chapter 232 as added by Acts 1995, 74th Legislature Chapter 751, §85 (HB 433) and may not review, vacate, or reconsider the terms of an order.

A licensee who is the subject of a final court order or attorney general's order suspending his or her license is not entitled to a refund for any fee paid to the board.

If a suspension overlaps a license renewal period, an individual with a license suspended under this section shall comply with the normal procedures in the Act and this chapter; however, the license will not be renewed until subsection (g) and (h) of this section are met.

An individual who continues to use the titles "licensed perfusionist", or "provisional licensed perfusionist" after the issuance of a court or attorney general's order suspending the license is liable for the same civil and criminal penalties provided for engaging in the prohibited activity without a license or while a license is suspended as any other license holder of the board.

On receipt of a court order or attorney general's order vacating or staying an order suspending a license, the executive secretary shall promptly issue the affected license to the individual if the individual is otherwise qualified for the license.

The individual must pay a reinstatement fee set out at §761.2 of this title (relating to The Board's Organization and Administration) prior to issuance of the license under subsection (g) of this section.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 12, 2001.

Debra Sue Douglas

Texas State Board of Examiners of Perfusionists

Earliest possible date of adoption: February 25, 2001

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

22 TAC §§761.10 - 761.20

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas State Board of Examiners of Perfusionists or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under the Texas Occupations Code, §603.152, which provides the board the authority to adopt and enforce rules reasonably required in the exercise of its general powers and jurisdiction.

The repeals affect the Texas Occupations Code, Chapter 603, and implements the Texas Government Code, §2001.039.

§761.10.Grandfather Period.

§761.11.Licensing After Examination.

§761.12.Change of Name and Address.

§761.13.License Renewal.

§761.14.Continuing Education.

§761.15.Licensing of Persons with Criminal Backgrounds To Be a Perfusionist and Provisional Licensed Perfusionist.

§761.16.Violations, Complaints, and Subsequent Board Actions.

§761.17.Formal Hearings.

§761.18.Informal Disposition.

§761.19.Default Orders.

§761.20.Suspension of License for Failure to Pay Child Support.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on January 12, 2001.

Debra Sue Douglas

Texas State Board of Examiners of Perfusionists

Earliest possible date of adoption: February 25, 2001

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