Part 1.
TEXAS DEPARTMENT OF HEALTH
Chapter 123.
RESPIRATORY CARE PRACTITIONER CERTIFICATION
25 TAC §§123.1-123.15
The Respiratory Care Practitioner Certification Program (advisory
committee) with the approval of the Texas Board of Health proposes (board)
amendments to §§123.1-123.14 and new §123.15 concerning the
certification of respiratory care practitioners. Specifically the amendments
cover the purpose and scope; definitions, advisory committee, fees, exemptions,
application requirements and procedures, types of certificates and temporary
permits and applicant eligibility, examination, certificate renewal, continuing
education requirements, changes of name or address, and violations, complaints
and subsequent actions. The proposed new section covers informal disposition.
The Government Code, §2001.39 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). Title 25 Texas
Administrative Code (TAC), Chapter 123 which includes §§123.1-123.14
has been revised in its entirety and the advisory committee and staff has
determined that reasons for adopting the sections continue to exist.
The Notice of Intention to Review the sections as required by Government
Code, §2001.039 was published in the
Texas Register
on December 17, 1999 (24 TexReg 11542). No comments were received
in response to the notice.
The advisory committee held a meeting to conduct a preliminary review of
its rules. As a result of this meeting, the advisory committee is amending
its existing rules located in Chapter 123 to satisfy the requirements of Government
Code, §2001.39; delete language that is no longer necessary; add fees
for returned check and continuing education extension fee; amend the rules
pursuant to the codification of the Respiratory Care Practitioner Certification
Act into the new Texas Occupations Code, Chapter 604; and update and clarify
existing language. Additional, proposed new §123.15 concerning informal
disposition is being added.
L. Jann Melton-Kissel, Associateship for Health Care Quality and Standards,
has determined that for each year of the first five years the sections are
in effect, there will be a fiscal impact on state government sections as proposed
are in effect. There will be no fiscal implication for local government.
Ms. Melton-Kissel has also determined that for each of the first five years
the sections are in effect, the public benefit anticipated as a result of
enforcing the sections as proposed will continue to assure the appropriate
regulations of respiratory therapists. There will be no adverse affect on
small businesses and micro-businesses that require respiratory therapists
services who utilize proper business management practices. The fiscal impact
to the respiratory care practitioners requesting a continuing education extension
which would require a $30 fee and returned checks would require a $50 collection
fee. There will be no impact on local employment.
Comments on the proposal may be submitted Pam K. Kaderka, Program Administrator,
Respiratory Care Practitioners Certification Program, 1100 West 49th Street,
Austin, Texas 78756-3183, (512) 834 6632. Comments will be accepted for 30
days following publication of the proposal in the
Texas Register
.
The amendments and new section are proposed under Texas Occupations
Code, §604.052, which requires the Respiratory Care Practitioners Certification
Program to adopt rules, with the approval of the Texas Board of Health; and
the Health and Safety Code §12.001 that are reasonable necessary to properly
perform its duties under this Act.
The amendments and new section affect the Occupations Code, Title 3. Health
Professions, Subtitle K, Chapter 604; Texas Civil Statutes, Article 4512l;
and Government Code §2001.039.
Context
[
[(a)
Purpose. These sections are intended
to implement the provisions of Texas Civil Statutes, Article 4512l, as amended
concerning the regulation and certification of respiratory care practitioners.]
[
§123.2.Definitions.
The following words and terms when used in these sections, shall have
the following meanings, unless the context clearly indicates otherwise:
(1)
(No change.)
(2)
Act--
Texas Occupations Code, Chapter 604; and Texas
Revised Civil Statutes portions of 4512l, as amended)
[
(3)-(7)
(No change.)
(8)
Appropriate educational agency--The Texas Education Agency
or other governmental agency authorized by law or statute to approve educational
institutions and curriculum, or an educational accrediting body of a professional
organization, such as the Committee on [
(9)-(12)
(No change.)
(13)
Delegated authority--As defined in the Texas Medical Practice
Act,
Texas Occupations Code Chapter 157
[
(14)
(No change.)
(15)
Diagnostic--Of or relating to or used in the art or act
of identifying a disease or
disorder
[
(16)-(20)
(No change.)
[(21)
Practitioner--A person who holds a certificate
or temporary permit issued under the Act to practice respiratory care.]
(21)
[
(22)
[
(23)
[
(A)
a program in respiratory care approved by the educational
accrediting body;
(B)
a program approved by an appropriate education agency and
working toward becoming an approved program in respiratory care. A program
will qualify as a respiratory care education program under this subparagraph
only for a period of one year from the date of the first class offered by
the program; after that one year, the program must be an approved program
in respiratory care; or
(C)
a program accredited by the Canadian Medical Association
and whose graduates are eligible to take the national registry exam given
by the Canadian Board of Respiratory Care.
(24)
[
(25)
[
(A)
administration of medical gases--such as nitric oxide,
helium and carbon dioxide;
(B)
providing ventilatory assistance and ventilatory control--including
high frequency oscillatory ventilation and high frequency jet ventilation;
(C)
providing artificial airways--including insertion, maintenance
and removal;
(D)
performing pulmonary function testing--including neonatal
and pediatric studies;
(E)
hyperbaric oxygen therapy;
(F)
monitoring--including pulse oximeter, end-tidal carbon
dioxide and apnea monitoring;
(G)
extracorporeal membrane oxygenation (ECMO);
(H)
patient assessment, respiratory patient care planning;
and
(I)
implementation of respiratory care protocols.
(26)
[
[(28)
Temporary certificate--A certificate
which expires August 31, 1987, issued to a person who at the time of application
to the department, is not registered or certified by the NBRC, and who is
practicing respiratory care under the direction of a qualified medical director
or other physician licensed by and in good standing with the BME.]
(27)
[
(28)
[
(29)
[
§123.3.Respiratory Care Practitioners Advisory Committee
(a)-(f)
(No change).
(g)
Terms of office. The term of office of each member shall
be six years
, and members
[
(1)-(2)
(No change).
(h)-(p)
(No change).
§123.4.Fees.
The following fees are prescribed by the board and are required to
be paid to the department before any certificate or permit is issued. All
fees shall be submitted in the form of a check or money order and are nonrefundable.
The department may direct examination applicants to submit examination fees
to the National Board for Respiratory Care, Inc. (NBRC).
(1)
Schedule of fees for certification as a respiratory care
practitioner:
(A)-(D)
(No change.)
(E)
certificate fee for upgrade of temporary permit--$30; [
(F)
written verification of certication status--$10
;
[
(G)
returned check fee--$50; and
(H)
continuing education extension fee--$30.
(2)
Schedule of fees for a temporary permit as a respiratory
care practitioner:
(A)-(B)
(No change.)
(C)
temporary permit and/or identification card replacement
fee--$20; [
(D)
written verification of certification status--$10
;
[
(E)
returned check fee--$50.
(3)
An applicant whose check for the application fee is returned
due to insufficient funds, account closed, or payment stopped shall be allowed
to reinstate the application by remitting to the department a money order
or check for guaranteed funds
in the amount of the application fee plus
the returned check fee
within 30 days of the date of receipt of the
department's notice. An application will be considered incomplete until the
fee has been received and cleared through the appropriate financial institution.
(4)
An approved applicant whose check for the temporary permit
or certificate fee is returned
marked
[
(5)
A temporary permit holder whose check for the temporary
permit extension fee is returned due to insufficient funds, account closed
or payment stopped shall remit to the department a money order or check for
guaranteed funds
in the amount of the temporary permit extension fee
plus the returned check fee
within 30 days of the date of the department's
notice. Otherwise, the temporary permit shall not be extended, or if already
extended shall be invalid.
(6)
A certificate holder whose check for the renewal fee is
returned due to insufficient funds
, account closed or payment stopped
shall remit to the department a money order or check for guaranteed
funds
in the amount of the renewal fee plus the returned check fee
within 30 days of the date of receipt of the department's notice. Otherwise,
the certificate shall not be renewed. If a renewal certificate has already
been issued, it shall be invalid.
(7)
If the department's notice, as set out in paragraphs (3)-(6)
of this section, is returned unclaimed, the department shall mail the notice
to the applicant or certificate holder by first class mail. If a money order
or check for guaranteed funds is not received by the department's cashier
within 30 days of the
postmarked
[
(8)
(No change.)
Exemptions
. [
[(a)
The purpose of this section is to set
out who is exempt from certification under the Act and who must be certified
under the Act.]
(a)
[
(b)
[
(1)
the practice of respiratory care that is an integral part
of the program of study by a student enrolled in a respiratory care education
program approved by the department;
(2)
the employment by a health care facility of a person to
deliver limited respiratory care support services under the supervision of
an individual who holds a certificate issued under this Act, if such a person
does not perform an invasive procedure related to critical respiratory care,
including therapeutic, diagnostic, or palliative procedures as part of the
person's employment and if the person:
(A)
is enrolled for credit in the clinical portion of an approved
respiratory care education program; or
(B)
has completed all of the clinical portion of an approved
respiratory care education program within the preceding 12 months and is actively
pursuing a course of study leading to graduation from the program;
(3)
the gratuitous care of the ill by a friend or member of
the family or care provided in an emergency situation by a person who does
not claim to be a respiratory care practitioner who holds a temporary permit
or certificate issued under the provisions of the Act;
(4)
a respiratory care practitioner from performing advances
in the art and techniques of respiratory care, as defined in the Act and in §123.2
of this title (relating to Definitions), learned through formal or specialized
training;
(5)
the practice of respiratory care by health care personnel
who have been formally trained in the care used and who are:
(A)
licensed under the practice acts regulating their professions;
or
(B)
acting under the delegated authority of a physician licensed
by the Board of Medical Examiners;
(6)
the practice of any legally qualified respiratory care
practitioner employed by the United States government while in the discharge
of official duties; or
(7)
any person who is licensed, registered, or certified under
another law of this state from engaging in the profession or occupation for
which the person is licensed, registered, or certified.
(c)
[
(1)
Students who are not enrolled in the clinical portion or
have not completed the clinical portion of their respiratory care education
program within the preceding 12 months may not be employed by a health care
facility to provide limited respiratory care services unless they hold a temporary
permit.
(2)
Students in a nontraditional accredited respiratory care
education program may be considered as being engaged in the clinical portion
of their education program during its entire duration. For the purposes of
this section nontraditional shall mean those respiratory care education programs
recognized as nontraditional education systems by the
Committee on Accreditation
for Respiratory Care
[
(3)
A clinical student who is employed by any health care facility,
agency or organization to provide limited respiratory care services should
provide his or her employer, on a semi-annual basis, verification that he
or she is a bona fide student in an approved respiratory care education program.
Acceptable verification shall be a letter on program letterhead with the original
signature of the program director attesting to the student's bona fide status
as an active student in the clinical portion of that program or that the student
has completed the clinical portion of the course within the preceding 12 months
and is actively pursing a course of study leading to graduation from the program.
(4)
Limited respiratory care services provided by an employed
clinical student must be supervised by a practitioner certified under this
Act. Students may not perform invasive procedures related to critical respiratory
care.
(5)
Students who are within 45 days of graduation may apply
to the department for a temporary permit in accordance with §123.6 of
this title (relating to Application Requirements and Procedures). A person
who holds a temporary permit may perform any and all respiratory care procedures
which he or she has been trained to perform.
(d)
[
(1)
penalty provisions under the
Texas Occupations Code §604.351
[
(2)
prohibited acts provisions under the
Texas Occupations
Code §604.102
[
§123.6.Application Requirements and Procedures.
[(a)
Purpose. The purpose of this section
is to set out the application procedures for examination and certification.]
(a)
[
(1)
Unless otherwise indicated, an applicant must submit all
required information and documentation of credentials on official department
forms.
(2)
The department shall not consider an application as officially
submitted until the applicant pays the application fee and the fee clears
the appropriate financial institution. The fee must accompany the application
form.
(3)
The administrator shall 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 notice shall be invalid.
(b)
[
(1)
Application form. The application form shall contain:
(A)
specific information regarding personal data, social security
number, birth month and day, place of employment, other state licenses and
certifications held, misdemeanor and felony convictions, educational and training
background, and work experience;
(B)
a statement that the applicant has read the Act and these
sections and agrees to abide by them;
(C)
the applicant's permission to the department to seek any
information or references it deems fit to determine the applicant's qualifications;
(D)
a statement that the applicant, if issued a certificate
or temporary permit, shall return the certificate or temporary permit and
identification card(s) to the department upon the revocation or suspension
of the certificate or temporary permit;
(E)
a statement that the applicant understands that fees submitted
are nonrefundable;
(F)
a statement that the applicant understands that materials
submitted become the property of the department and are nonreturnable (unless
prior arrangements have been made);
(G)
a statement that the information in the application is
truthful and that the applicant understands that providing false information
of any kind may result in the voiding of the application and failure to be
granted
a
[
(H)
a statement that if issued
a
[
(I)
the signature of the applicant which has been dated and
notarized; [
(J)
a full-face color photograph 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 to the
department and the minimum size is one and one-half inches by one and one-half
inches.
(2)
Educational records. Applicants for a certificate, who
were not certified or registered in respiratory care by the NBRC on or before
September 1, 1985, or a temporary permit must submit:
(A)
a photocopy which has been notarized as a true and exact
copy of an unaltered:
(i)
an official diploma or official transcript indicating graduation
from high school;
(ii)
certificate of high school equivalency issued by the appropriate
educational agency; or
(iii)
official transcript from an accredited college or university
indicating that the applicant received a high school diploma or equivalency
or was awarded an associate, baccalaureate, or post-baccalaureate degree;
and
(B)
a photocopy which has been notarized as a true and exact
copy of an unaltered certificate of completion from a respiratory care education
program. The certificate must contain:
(i)
name and number of the program (exactly as listed with
the educational accrediting body);
(ii)
name of the graduate;
(iii)
exact day and month individual is recognized as a program
graduate;
(iv)
accreditation statement; and
(v)
signatures of the medical director, program director and
administrative official; or
(C)
an expected graduation statement signed by the program
director. Within 30 days of the completion date noted in the statement, the
department must receive either:
(i)
a notarized copy of the certificate of completion, as set
out in subparagraph (B) of this paragraph; or
(ii)
a notarized statement signed by the program director indicating
that the applicant officially completed the program but the certificate is
not available within 30 days of the completion date.
(3)
Examination results.
(A)
If the applicant is making application for a temporary
permit, an examination score release form shall be signed allowing the department
to obtain the applicant's examination results from the NBRC
,
or
other agency administering the examination prescribed by the board.
(B)
If an applicant for a regular certificate is:
(i)
recognized as certified respiratory
therapist
[
(ii)
unable to show proof of successful completion or otherwise
provide documentation acceptable to the department of the applicant's examination
results, the application shall be disapproved.
(4)
Employment/experience documentation report form. Persons
applying for any certificate or permit who are not recognized as a certified
respiratory
therapist
[
(5)
Medical direction requirement. If the applicant is practicing
respiratory care in Texas at the time of application to the department, the
applicant shall obtain on the application form the signature and the license
number of the qualified medical director as defined in §123.2 of this
title (relating to Definitions) or other Texas licensed physician directing
the provision of respiratory care services.
(c)
[
(d)
[
(1)
Time periods. The department shall comply with the following
procedures in processing applications for a permit or certificate.
(A)
The following periods of time shall apply from the date
of receipt of an application until the date of issuance of a written notice
that the application is complete and accepted for filing or that the application
is deficient and additional specific information is required. A written notice
stating that the application has been approved may be sent in lieu of the
notice of acceptance of a complete application. The time periods are as follows:
(i)
letter of acceptance of application for permit or certification--14
working days. The notice of acceptance may include a statement that an application
for temporary permit received more than 45 days from the date of the applicant's
graduation will be held pending until the applicant is within 45 days of graduation;
and
(ii)
letter of application deficiency--14 working days.
(B)
The following periods of time shall apply from the receipt
of the last item necessary to complete the application until the date of issuance
of written notice approving or denying the application. The time periods for
denial include notification of the proposed decision and of the opportunity,
if required, to show compliance with the law, and of the opportunity for a
formal hearing. The time periods are as follows:
(i)
letter of approval--14 working days; and
(ii)
letter of denial of permit or certificate--180 working
days.
(2)
Reimbursement of fees.
(A)
In the event an application is not processed in the time
periods stated in paragraph (1) of this subsection, the applicant has the
right to request reimbursement of all fees paid in that particular application
process.
Requests
[
(B)
Good cause for exceeding the time period is considered
to exist if the number of applications for licensure and licensure renewal
exceeds by 15% or more the number of applications processed in the same calendar
quarter the preceding year, another public or private entity relied upon by
the department in the application process caused the delay, or any other condition
exists giving the department good cause for exceeding the time period.
(3)
Appeal. If a request for reimbursement under paragraph
(2) of this subsection is denied by the program administrator, the applicant
may appeal to the commissioner of health for a timely resolution of any dispute
arising from a violation of the time periods. The applicant shall give written
notice to the commissioner of health at the address of the department that
he or she requests full reimbursement of all fees paid because his or her
application was not processed within the applicable time period. The program
administrator shall submit a written report of the facts related to the processing
of the application and of any good cause for exceeding the applicable time
period. The commissioner of health shall provide written notice of the decision
to the applicant and the program administrator. An appeal shall be decided
in favor of the applicant if the applicable time period was exceeded and good
cause was not established. If the appeal is decided in favor of the applicant,
full reimbursement of all fees paid in that particular application process
shall be made.
(4)
Contested cases. The time periods for contested cases related
to the denial of licensure or license renewals are not included with the time
periods stated in paragraph (1) of this subsection. The time period for conducting
a contested case hearing runs from the date the department receives a written
request for a hearing and ends when the decision of the department is final
and appealable. A hearing may be completed within one to four months, but
may extend for a longer period of time depending on the particular circumstances
of the hearing
(e)
[
(1)
The administrator shall be responsible for reviewing all
applications.
(2)
The administrator shall approve all applications which
are in compliance with subsections
(a)-(c)
[
(f)
[
(1)
The department shall disapprove the application if the
person:
(A)
has not completed the requirements in subsection
(b)
[
(B)
has failed to pass the examination prescribed by the board
as set out in §123.8 of this title (relating to Examination) during the
period for which the temporary certificate, or temporary permit or temporary
permit extension, was valid, if applicable;
(C)
has failed to remit any applicable fees required in §123.4
of this title (relating to Fees);
(D)
has failed or refused to properly complete or submit any
application form(s) or endorsement(s), or presented false information on the
application form, or any other form or document required by the department
to verify the applicant's qualifications;
(E)
has been in violation of the Act, §123.14 of this
title (relating to Violations, Complaints, and Subsequent Actions), the code
of ethics as set out in §123.12 of this title (relating to Professional
and Ethical Standards), or any other applicable provision of this chapter;
(F)
has been convicted of a felony or misdemeanor, if the crime
directly relates to the duties and responsibilities of a respiratory care
practitioner as set out in §123.13 of this title (relating to Certifying
or Permitting Persons with Criminal Backgrounds To Be Respiratory Care Practitioners);
(G)
holds a license, certification, or registration to practice
respiratory care in another state or jurisdiction and that license, certification,
or registration has been suspended, revoked, or otherwise restricted by the
licensing entity in that state or jurisdiction for reasons relating to the
person's professional competence or conduct which could adversely affect the
health and welfare of a patient;
(H)
is not currently practicing, or has not practiced within
the 12-month period preceding the date of application, respiratory care, as
set out in §123.7(d)(1)(B) of this title (relating to Types of Certificates
and Temporary Permits and Applicant Eligibility); or
(I)
has submitted a copy of a National Board for Respiratory
Care, Inc. (NBRC) certificate in lieu of examination results in accordance
with subsection
(b)
[
(2)
If after review the administrator determines that the application
should not be approved, the administrator shall give the applicant written
notice of the reason for the proposed decision and of the opportunity for
a formal hearing. The formal hearing shall be conducted according to the
Administrative Procedure Act, Texas Government Code §2001, et seq.
[
(3)
An applicant whose application has been disapproved under
paragraph (1)(E) and (F) of this subsection shall be permitted to reapply
after a period of not less than one year from the date of the disapproval
and shall submit with the reapplication proof satisfactory to the department
of compliance with all rules of the board and the provisions of the Act in
effect at the time of reapplication. The date of disapproval is the effective
date of a disapproval order signed by the commissioner of health.
§123.7.Types of Certificates and Temporary Permits and Applicant Eligibility.
(a)
General.
This section sets
[
(1)-(6)
(No change.)
(b)-(c)
(No change.)
(d)
Applicant eligibility.
(1)
Temporary permit. The department shall issue a temporary
permit to practice respiratory care to:
(A)
(No change.)
(B)
an applicant who has applied on the forms prescribed by
the department; who has paid the prescribed application fee; who is currently
practicing respiratory care or has within the 12-month period immediately
preceding the date of the application to the department practiced respiratory
care in another state, territory, or country; who holds a valid license or
other form of registration to practice respiratory care in that state, territory,
or country; who is in good standing in that state, territory, or country and
who is not recognized, at the time of application to the department, as a
certified respiratory
therapist
[
(C)
an applicant who holds a valid temporary permit pending
reexamination who has applied for an extension of the temporary permit on
the form prescribed by the department and who has paid the additional prescribed
fee. This temporary permit shall expire not more than 12 months from the date
of issuance of the original permit. A temporary permit holder is not entitled
to an extension if the person has not submitted a certificate of completion
from a respiratory care education program in accordance with §123.6
(b)
[
(2)
Regular certificate. The department shall issue a regular
certificate to practice respiratory care to an applicant who has applied on
a form prescribed by the department, who has paid the prescribed application
fee and who:
(A)
has, prior to making application to the department, passed
the entry level certified respiratory
therapist
[
(B)
has, prior to making application to the department, passed
the registered respiratory therapist
(RRT)
examination administered
by or under the auspices of the NBRC; [
(C)-(D)
(No change.)
(3)
Out-of-State License/Certification/Registration. The department
shall issue a regular certificate to practice respiratory care to an applicant
who is in good standing and holds a valid license or other form of registration
to practice respiratory care in another state, territory, or country, whose
requirements for licensure or certification were at the time of approval substantially
equal to the requirements set forth in the Act and this chapter, and who:
(A)-(D)
(No change.)
(E)
has submitted satisfactory evidence on a form prescribed
by the department that the applicant is currently practicing or has within
the 12-month period immediately preceding the date of application to the department
practiced respiratory care in the state, territory, or country in which the
applicant is licensed or otherwise regulated if the applicant is not recognized,
at the time of application to the department, as a certified respiratory
therapist
[
(F)
(No change.)
§123.8.Examination.
[(a)
Purpose. This section sets out the rules
governing the administration, content, grading, and other procedures for examination
for certification.]
(a)
[
(b)
[
(c)
[
(d)
[
(e)
[
(1)
Results of an examination prescribed by the board but administered
under the auspices of another agency will be communicated to the applicant
by the department, unless the contract between the department and that agency
provides otherwise.
(2)
The applicant or temporary permit holder is responsible
for arranging to have examination scores forwarded to the department. If the
score report does not come directly from the NBRC in writing or on data tape,
the results shall be in the form of a copy which has been notarized as a true
and exact copy of the original of either:
(A)
a letter
,
or other official notification
,
from the examining agency to the examinee; or
(B)
the
CRT
[
(3)
If the examination is graded by a national or state testing
service, or by the NBRC or its designee, the department shall notify each
examinee of the examination results within 14 days of the date the department
receives the results.
(4)
If the examination is graded by the department or its designee,
the department shall notify each examinee of the results of the examination
within 60 days of the date of the exam. If the results will be delayed for
more than 60 days after the examination, the department shall notify each
applicant of the reason for the delay.
(5)
If the department is required to provide official notice
of examination results to the applicant, no matter what numerical or other
scoring system is used in arriving at examination results, the results shall
be stated in terms of pass or fail.
(f)
[
§123.9.Certificate Renewal.
[(a)
Purpose. The purpose of this section
is to set out the rules governing certificate renewal.]
(a)
[
[(1)
When issued, a certificate is valid until
the practitioner's next birth month except as provided by subsection (c) of
this section.]
[
A practitioner shall renew the certificate
annually.
(1)
[
(2)
[
(3)
[
(4)
[
(b)
[
(c)
[
(1)
At least 30 days prior to the expiration date of a person's
certificate, the department shall send notice to the practitioner of the expiration
date of the certificate, the amount of the renewal fee due, and a renewal
form which the practitioner must complete and return to the department with
the required renewal fee.
(2)
The renewal form for all practitioners shall require the
provision of the preferred mailing address, primary employment address and
telephone number, and category of employment, misdemeanor and felony convictions,
statement concerning status with The National Board for Respiratory Care,
Inc., and continuing education completed. If the applicant is practicing as
a respiratory care practitioner at the time of renewal the name, signature
and license number of the physician directing the provision of respiratory
care and the physician's institutional affiliation(s), if any, shall be provided
on the renewal form[
(3)
A practitioner has renewed the certificate when the department
has received the completed renewal form, continuing education as set out in §123.10
of this title (relating to Continuing Education Requirements), and the required
renewal fee on or prior to the expiration date of the certificate. The postmark
date shall be considered as the date of mailing.
(4)
The department shall issue identification cards for the
current renewal period to a practitioner who has met all requirements for
renewal.
(d)
[
(1)
A person whose certificate has expired may renew the certificate
by submitting to the department the renewal form, continuing education as
set out in §123.10 of this title (relating to Continuing Education Requirements)
completed since the last renewal, and if respiratory care procedures were
performed after the certificate expired, a notarized statement indicating
how the person complied with
the Act, §604.003
[
(A)
If renewal is requested from one day up to 90 days after
expiration, the applicant shall submit a fee that is equal to one and one
half times the renewal fee, as set out in §123.4 of this title (relating
to Fees).
(B)
If renewal is requested more than 90 days after expiration
but less than one year after expiration, the applicant shall submit a fee
that is equal to two times the renewal fee, as set out in §123.4 of this
title.
(C)
If the person received a 90-day extension of the person's
certificate pursuant to §123.10
(f)
[
(D)
After the certificate is renewed, the next continuing education
reporting period starts on the date the certificate is renewed and continues
until the next
expiration
[
(2)
The department shall inform a person who has not renewed
a certificate by the expiration date of the amount of the fee required for
renewal, the continuing education required for renewal, and the date the certificate
expired.
(3)
A person whose certificate has been expired for one year
or more may apply for a new certificate by complying with the then-current
requirements for obtaining a certificate.
(4)
After a certificate is expired and until a person has renewed
the certificate, a person may not practice [
(5)
A person who fails to renew a certificate within one year
may obtain a new certificate without examination if the person:
(A)
pays a fee that is equal to two times the renewal fee;
(B)
is currently certified as a respiratory care practitioner
in another state;
(C)
has been practicing respiratory care in the state where
the certification is held for the two years preceding the date of application
for renewal; and
(D)
submits proof of completion of the continuing education
requirements as set out in §123.10 of this title within the 12 month
period preceding the date of application for a new certificate.
(e)
[
(1)
The department shall issue a certificate renewal within
14 working days after receipt of documentation of all renewal requirements.
(2)
The reimbursement of fees, appeals, and contested cases
relating to renewals shall be governed by the provisions of §123.6
(d)
[
(f)
[
(1)
Renewal of the permit or certificate may be requested by
the practitioner, the practitioner's spouse, or an individual having power
of attorney from the practitioner. The renewal form shall include a current
address and telephone number for the individual requesting the renewal.
(2)
Renewal may be requested before or after expiration of
the permit or certificate.
(3)
A copy of the official orders or other official military
documentation showing that the practitioner is or was on active duty, serving
outside the State of Texas, shall be filed with the department along with
the renewal form.
(4)
A copy of the power of attorney from the practitioner shall
be filed with the department along with the renewal form if the individual
having the power of attorney executes any of the documents required in this
subsection.
(5)
A practitioner renewing under this subsection shall pay
the renewal fee.
(6)
A practitioner renewing under this subsection shall submit
proof of having earned any clock hours of continuing education prior to being
called to active duty serving outside the State of Texas and no further continuing
education hours shall be required for renewal.
(g)
[
(1)
A person on inactive status is not required to pay the
annual renewal fee.
(2)
A person on inactive status may not perform any activities
regulated under
this
[
(3)
A person on inactive status is not required to complete
the requirements in accordance with §123.10 of this title (relating to
Continuing Education Requirements), except as provided in paragraph (4)(D)
of this subsection.
(4)
If a person on inactive status desires to reenter active
practice, the person shall
:
(A)
notify the department in writing;
(B)
complete appropriate forms;
(C)
pay a renewal fee for the current renewal period plus a
reinstatement fee equal to one-half the renewal fee; and
(D)
submit to the department proof of successful completion,
within the 12-month period prior to reentering active status, of the continuing
education hours as set out in §123.10 of this title.
(5)
A person in compliance with this subsection is not subject
to subsection
(d)
[
(h)
[
§123.10.Continuing Education Requirements.
[(a)
Purpose. The purpose of this section
is to establish the continuing education requirements which a respiratory
care practitioner must complete annually to maintain certification. These
requirements are intended to maintain and improve the quality of professional
services in respiratory care provided to the public and keep the practitioner
knowledgeable of current research, techniques, and practice and provide other
resources which will improve skill and competence in respiratory care.]
(a)
[
(1)
The initial period shall begin with the date the department
issues the certificate and end on the last day of the birth month at the time
of the second renewal.
(2)
At the time the certificate is mailed, each practitioner
shall be notified of the beginning and ending dates of the continuing education
period.
(3)
A practitioner must complete 12 clock hours of continuing
education acceptable to the department during each renewal year.
(4)
A clock hour shall be 50 minutes of attendance and participation
in an acceptable continuing education experience.
(b)
[
(1)
respiratory care course work seminars, workshops, review
sessions, or other organized educational programs completed at or through
any respiratory care education program;
(2)
participation in any program (e.g., in-service educational
training programs, institutes, seminars, workshops and conferences) which
is:
(A)
directly related to the profession of respiratory care;
(B)
instructor directed; and
(C)
approved, recognized, accepted, or assigned continuing
education credits by professional organizations or associations or offered
by a federal, state, or local governmental entity. A list approved by the
advisory committee is available from the department upon request;
(3)
instruction or teaching in programs set out in paragraphs
(1) and (2) of this subsection, provided that such instruction or teaching
is not a part of, or required as a part of, one's employment, or;
(4)
up to four credit hours during each renewal period of self-directed
Internet-based or computer-based studies, including a post-test, which meets
the requirements described in paragraphs (2)(A) and (2)(C) of this subsection.
(c)
[
(1)
Completion of course work at or through a respiratory care
educational program as set out in subsection
(b)
[
(2)
Parts of programs, activities, workshops, seminars, sessions,
etc., which meet the criteria of subsections
(b)
[
(3)
Teaching in programs which meet the department's criteria
as set out in subsection
(b)
[
(4)
Passing the certified respiratory therapist recredentialing
examination shall be credited on the basis of ten clock hours.
(5)
Passing the written registry examination for advanced respiratory
therapy practitioners for credentialing or recredentialing shall be credited
on the basis of nine clock hours.
(6)
Passing the registered respiratory therapist clinical simulation
examination for credentialing or recredentialing shall be credited on the
basis of nine clock hours.
(7)
Passing the National Board for Respiratory Care, Inc. (NBRC)
pediatric specialty examination shall be credited on the basis of ten clock
hours.
(8)
Successful completion of the initial course in advanced
cardiac life-support, pediatric advanced life-support, the neonatal advanced
life-support course, basic trauma life-support or pre-hospital trauma life-support
shall be credited on the basis of 12 clock hours. Recertification courses
shall be credited for the number of hours actually completed during the recertification
course, but shall not count for more than 12 hours.
(9)
Passing the certification examination for entry level pulmonary
function technologists or the registry examination for advanced pulmonary
function technologists for credentialing shall be credited on the basis of
ten clock hours.
(10)
Passing the registration examination offered by the Board
of Registered Polysomnographic Technologists shall be credited on the basis
of ten clock hours.
(d)
[
(1)
A practitioner shall report the number of hours of continuing
education completed during the renewal period. If requested by the department,
each practitioner shall submit proof of completion of the required continuing
education activity to the department at the time of certificate renewal, or
at other times as directed by the department. However, if an extension has
been granted in accordance with subsection
(f)
[
(2)
Each continuing education activity filed by a practitioner
must be accompanied by appropriate documentation of the continuing education
claimed as follows:
(A)
for a program attended, signed certification by a program
leader or instructor of the practitioner's participation in the program by
certificate, or letter on letterhead of the sponsoring agency, or official
continuing education validation form or official transcript of the sponsoring
agency accompanied by a brochure, agenda, program, or other applicable information,
indicating content of the program;
(B)
for teaching or instruction in approved programs, a letter
on sponsoring agency's letterhead giving name of program, location, dates,
and subjects taught, and giving total clock hours of teaching or instruction;
(C)
for completion of course work at or through respiratory
care education programs, a certificate of successful completion or an official
transcript.
(e)
[
(1)
education incidental to the regular professional activities
of a practitioner such as learning occurring from experience or research;
(2)
organization activity such as serving on committees or
councils or as an officer in a professional organization;
(3)
any program or activity which is not approved in accordance
with subsection
(b)
[
(4)
any experience which does not fit the types of acceptable
continuing education in subsection
(b)
[
(5)
any continuing education activity completed before or after
the renewal year for which the continuing education credit is submitted except
as allowed under subsection
(f)
[
(6)
self-study continuing education programs or activities
except those set out in subsection
(b)
[
(7)
activities which have been completed more than once during
the continuing education period.
(f)
[
(1)
A practitioner who has failed to complete the requirements
for continuing education as specified in subsection
(a)
[
(A)
Following the receipt of the current renewal form
, renewal fee
and
continuing education extension
fee, the
department shall issue identification cards [
(B)
If the deficiency is made up prior to the end of the extension,
the department will notify the practitioner that the next reporting period
commences on the day following the completion of the credits to correct the
deficiency. The new reporting period shall end on the next renewal date. In
other words, whenever an extension is granted, the time is borrowed from the
next reporting period.
(C)
If an excess number of credits were earned during an extension,
the excess will be credited toward the new reporting period.
(D)
A practitioner may not receive another extension at the
end of the 90-day extension.
(2)
A practitioner who has failed to complete the requirements
for continuing education as specified in subsection
(a)
[
(g)
[
(1)
Audiovisual programs may be accepted by the department
if such a program represents one of the instructional methods or strategies
rather than constituting the entire program and provided the program meets
the criteria as set out in subsection
(b)
[
(2)
A practitioner who also holds a current license, registration,
or certification in another health care profession or a current license, registration,
or certification as a respiratory care practitioner in another state, territory,
or country may satisfy the continuing education requirements for renewal in
Texas with hours counted toward renewal of another license, registration,
or certification as long as all of the hours meet all of the requirements
of this section.
(3)
Hardships will be considered and granted by the department
on a case by case basis.
(4)
The department may conduct random audits of continuing
education completed by practitioners to determine compliance with this section.
(5)
No continuing education hours may be carried over from
one renewal period to another renewal period unless the hours were earned
during a continuing education extension as set out in subsection
(f)
[
§123.11.Changes of Name or Address.
[(a)
The purpose of this section is to set
out the responsibilities and procedures for name and address changes.]
(a)
[
(b)
[
(c)
[
(d)
[
§123.12.Professional and Ethical Standards.
The purpose of this section shall be to establish the standards of
professional and ethical conduct required of a practitioner pursuant to the
Act, §604.201(b)(4).
(1)
Professional representation and responsibilities.
(A)-(L)
(No change.)
(M)
A practitioner shall conform to medically accepted principles
and standards of respiratory care which are those generally recognized by
the profession as appropriate for the situation presented, including those
promulgated or interpreted by or under the
American Association for Respiratory
Care
[
(N)
A practitioner shall not delegate respiratory care functions
or responsibilities to a person who lacks the ability or knowledge to perform
the function or responsibility. A practitioner providing respiratory care
services may be assisted by an aide or orderly.
Aides, orderlies and
other unlicensed assistive personnel
[
(O)-(P)
(No change.)
(2)-(6)
(No change.)
§123.13.Certifying or Permitting Persons with Criminal Backgrounds To Be Respiratory Care Practitioners.
[(a)
Purpose. This section is designed to
establish guidelines and criteria on the eligibility of persons with criminal
backgrounds to obtain certificates or temporary permits as respiratory care
practitioners.]
(a)
[
(1)
The department may suspend or revoke any existing certificate
or permit, disqualify a person from receiving any certificate or permit, or
deny to a person the opportunity to be examined for a certificate because
of a person's conviction of a felony or misdemeanor if the crime directly
relates to the duties and responsibilities of a respiratory care practitioner.
(2)
In considering whether a criminal conviction directly relates
to the occupation of a respiratory care practitioner, the department shall
consider:
(A)
the nature and seriousness of the crime;
(B)
the relationship of the crime to the purposes for certification
as a respiratory care practitioner. The following felonies and misdemeanors
relate to any certificate or permit of a respiratory care practitioner because
these criminal offenses indicate an inability or a tendency to be unable to
perform as a respiratory care practitioner:
(i)
the misdemeanor of knowingly or intentionally acting as
a respiratory care practitioner without any certificate or permit under the
Texas Occupations Code, §604.352
[
(ii)
any misdemeanor and/or felony offense defined as a crime
of moral turpitude by statute or common law;
(iii)
a misdemeanor or felony offense under various titles
of the Texas Penal Code:
(I)
offenses against the person (Title 5);
(II)
offenses against property (Title 7);
(III)
offenses against public order and decency (Title 9);
(IV)
offenses against public health, safety, and morals (Title
10); and
(V)
offenses of attempting or conspiring to commit any of the
offenses in this subsection (Title 4);
(C)
the extent to which any certificate or permit might offer
an opportunity to engage in further criminal activity of the same type as
that in which the person previously had been involved; and
(D)
the relationship of the crime to the ability, capacity,
or fitness required to perform the duties and discharge the responsibility
of a respiratory care practitioner. In making this determination, the department
will apply the criteria outlined in
Texas Occupations Code, Chapter 53
[
(3)
The misdemeanors and felonies listed in paragraph (2)(B)(i)-(iii)
of this subsection are not inclusive in that the department may consider other
particular crimes in special cases in order to promote the intent of the Act
and these sections.
(b)
[
(1)
The administrator shall give written notice to the person
that the department intends to deny, suspend, or revoke the certificate or
temporary permit after hearing in accordance with the provisions of the Administrative
Procedure [
(2)
If the department denies, suspends, suspends on an emergency
basis, or revokes a certificate or temporary permit under these sections after
hearing, the administrator shall give the person written notice:
(A)
of the reasons for the decision;
(B)
that the person, after exhausting administrative appeals,
may file an action in a district court of Travis County
, Texas
for review of the evidence presented to the department and its decision;
(C)
that the person must begin the judicial review by filing
a petition with the court within 30 days after the department's action is
final and appealable; and
(D)
of the earliest date the person may appeal.
§123.14.Violations, Complaints, and Subsequent Actions.
(a)
General.
[
(1)
offenses and prohibited actions under
Texas Occupations
Code, §604.102
[
(2)-(4)
(No change.)
(b)
Types of offenses and prohibited actions. A person is guilty
of a Class B misdemeanor if:
(1)-(8)
(No change.)
(9)
a person who holds a certificate or permit to practice
respiratory care practices medicine, as defined by the Medical Practice Act,
Texas Occupations Code, Chapter 157
[
(10)
a person otherwise violates
Texas Occupations Code, §§604.002,
604.102, 604.351, or 604.352
[
(c)
Filing of complaints.
(1)
Anyone may complain to the department alleging that a person
has committed an offense or action prohibited under the Act or that a certificate
or permit holder has violated the Act or a
this chapter
[
(2)
A person wishing to complain about an offense, prohibited
action, or alleged violation against a practitioner or other person shall
notify the administrator. The initial notification of a complaint may be in
writing, by telephone, or by personal visit to the administrator's office.
(Mailing address: 1100 West 49th Street, Austin, Texas 78756-3183, Phone:
512-834-6632
[
(3)-(4)
(No change.)
(d)
Investigation of complaints.
(1)
The administrator and the department are responsible for
handling complaints.
(2)
The administrator, or his or her designee, shall make the
initial investigation and report the findings to the director of Professional
Licensing and Certification Division
or his or her designee,
or
the director
or designee
of its successor.
(e)
The department's action.
(1)-(3)
(No change.)
(4)
Whenever the department dismisses a complaint or closes
a complaint file, the department shall give a summary report of the final
action to the advisory
committee
, [
(f)
(No change.)
(g)
Formal hearing.
(1)
The formal hearing shall be conducted according to the
Administrative Procedure Act (APA), Texas Government Code Chapter 2001,
[
(2)
(No change.)
(3)
To initiate formal hearing procedures, the administrator
shall give the practitioner written notice of the opportunity for hearing.
The notice shall state the basis for the proposed action. Within 10 days after
receipt of the notice, the practitioner must give written notice to the administrator
that he or she either waives the hearing or wants the hearing. Receipt of
the notice is deemed to occur on the 10th day after the notice is mailed unless
another date of receipt is reflected on a United States Postal Service return
receipt.
(A)
(No change.)
(B)
If the practitioner requests a hearing within 10 days after
receiving the notice of opportunity for hearing,
APA, Texas Government
Code §2001,
[
(h)
Final action.
(1)
If the
department
[
(2)-(3)
(No change.)
(4)
If the
department
[
(5)
A person whose application is denied or whose temporary
permit or certificate is revoked
or surrendered
is ineligible for
a temporary permit or certificate under this Act for one year from the date
of the denial or revocation
or surrender
.
(6)
(No change.)
§123.15.Informal Disposition.
(a)
Informal disposition of any complaint or contested case
involving a temporary permit or certificate holder or an applicant for licensure
may be made through an informal settlement conference held to determine whether
an agreed settlement order may be approved.
(b)
If the program administrator determines that the public
interest would 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 temporary permit or applicant may request an informal
settlement conference; however, the decision to hold a conference shall be
made by the program administrator.
(c)
An informal conference shall be voluntary. It shall not
be a prerequisite to a formal hearing.
(d)
The program administrator shall decide upon the time, date,
and place of the settlement conference and provide written notice to the temporary
permit or certificate holder 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 temporary permit
or certificate holder or applicant or by personal delivery. The ten days shall
begin on the date of mailing or personal delivery. The temporary permit or
certificate or applicant may waive the ten-day notice requirement.
(1)
The notice shall inform the temporary permit or certificate
holder or applicant of the following:
(A)
the nature of the alleged violation;
(B)
that the temporary permit or certificate holder or applicant
may be represented by legal counsel;
(C)
that the temporary permit or certificate holder or applicant
may offer the testimony of witnesses and present other evidence as may be
appropriate;
(D)
that the temporary permit or certificate holder or applicant's
attendance and participation is voluntary;
(E)
that the complainant may be present; and
(F)
that the settlement conference shall be canceled if the
temporary permit or certificate holder or applicant notifies the program administrator
that he or she or his or her legal counsel will not attend.
(2)
A copy of this section concerning informal disposition
shall be enclosed with the notice of the settlement conference.
(e)
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.
(f)
The settlement conference shall be informal and shall not
follow the procedures established in this chapter for contested cases and
formal hearings.
(g)
The temporary permit or certificate holder or applicant's
attorney, and department staff may question witnesses, make relevant statements,
present statements of persons not in attendance, and present such other evidence
as may be appropriate.
(h)
The program's legal counsel will be requested to attend
each settlement conference. The program administrator may call upon the program's
attorney at any time for assistance in the settlement conference.
(i)
The respondent shall be afforded the opportunity to make
statements that are material and relevant.
(j)
Access to the investigative file may be prohibited or limited
in accordance with the APA, Texas Government Code, Chapter 552.
(k)
At the discretion of the program administrator, a tape
recording may be made of none or all of the settlement conference.
(l)
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.
(m)
At the conclusion of the settlement conference, the program
administrator may make recommendations for informal disposition of the complaint
or contested case. The recommendations may include any disciplinary action
authorized by the Act. They may also conclude that the department lacks jurisdiction,
conclude that a violation of the Act or this chapter has not been established,
or refer the matter for further investigation.
(n)
The temporary permit or certificate holder 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 program staff and approved by the program's legal counsel and forwarded
to the temporary permit or certificate holder or applicant. The order shall
contain agreed findings of fact and conclusions of law. The temporary permit
or certificate holder or applicant shall execute the order and return the
signed order to the department office within ten days of his or her receipt
of the order. If the temporary permit or certificate holder or applicant fails
to return the signed order within the stated time period, the inaction shall
constitute rejection of the settlement recommendations.
(o)
If the temporary permit or certificate holder or applicant
rejects the proposed settlement, the matter shall be referred to the program
administrator for appropriate action.
(p)
If the temporary permit or certificate holder or applicant
signs and accepts the recommendations, the agreed order shall be submitted
to the program administrator for its approval.
(q)
The program administrator shall enter an agreed order approving
the accepted settlement recommendations. The program administrator may not
change the terms of a proposed order but may only approve or disapprove an
agreed order unless the temporary permit or certificate holder or applicant
agrees to other terms proposed by the program administrator.
(r)
If the program administrator does not approve a proposed
agreed order, the temporary permit or certificate holder or applicant and
the complainant shall be so informed.
(s)
A temporary permit or certificate holder or applicant's
opportunity for an informal conference under this section shall satisfy the
requirement of the APA, §2001.054(c).
(1)
If the program administrator determines that an informal
conference shall not be held, the program administrator shall give written
notice to the temporary permit or certificate holder or applicant of the facts
or conduct alleged to warrant the intended disciplinary action and the temporary
permit or certificate holder 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.
(2)
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 program administrator.
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 March 1, 2001.
TRD-200101220
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: April 15, 2001
For further information, please call: (512) 458-7236
Chapter 403.
OTHER AGENCIES AND THE PUBLIC
Subchapter B. CHARGES FOR COMMUNITY-BASED SERVICES
25 TAC §§403.41 - 403.53
(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 Department of Mental Health and Mental Retardation or in the
Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The Texas Department of Mental Health and Mental
Retardation (TDMHMR) proposes the repeals of §§403.41 - 403.53 of
Chapter 403, Subchapter B, concerning charges for community-based services.
New §§412.101 - 412.114 of Chapter 412, Subchapter C, concerning
charges for community services, which would replace the repealed sections,
are contemporaneously proposed in this issue of the
Texas Register
.
The repeals would allow for the adoption of new and more current rules
governing the same matters. The proposal would also fulfill the requirements
of the Texas Government Code, §2001.039, concerning the periodic review
of agency rules.
Gerry McKimmey, deputy commissioner for community programs, has determined
that for each year of the first five years the proposed repeals are in effect,
the proposed repeals do not have foreseeable implications relating to costs
or revenues of the state or local governments.
Sam Shore, director, Behavioral Health Services, has determined that, for
each year of the first five years the proposed repeals are in effect, the
public benefit expected is the adoption of new and more current rules governing
the same matters. It is anticipated that there would be no economic cost to
persons required to comply with the proposed repeals.
It is not anticipated that the proposed repeals will affect a local economy.
It is not anticipated that the proposed repeals will have an adverse economic
effect on small businesses or micro-businesses because the proposed repeals
do not place requirements on small businesses or micro-businesses.
Written comments on the proposed repeals may be sent to Linda Logan, director,
Policy Development, Texas Department of Mental Health and Mental Retardation,
P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication.
These sections are proposed for repeal under the Texas Health
and Safety Code, §532.015, which provides the Texas Board of Mental Health
and Mental Retardation (board) with broad rulemaking authority, and §534.067,
which requires TDMHMR to establish a uniform fee collection policy for all
local authorities that is equitable, provides for collections, and maximizes
contributions to local revenue.
The proposed sections would affect the Texas Health and Safety Code, §534.067.
§403.41.Purpose.
§403.42.Application.
§403.43.Definitions.
§403.44.Principles.
§403.45.Financial Assessment.
§403.46.Determination of Ability to Pay.
§403.47.Rates.
§403.48.Billing Procedures.
§403.49.Monthly Ability-to-Pay Fee Schedule.
§403.50.Training.
§403.51.Information for Persons.
§403.52.References.
§403.53.Distribution.
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 March 5, 2001.
TRD-200101270
Andrew Hardin
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: April 15, 2001
For further information, please call: (512) 206-5216
Subchapter C. CHARGES FOR COMMUNITY SERVICES
25 TAC §§412.101 - 412.114
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) proposes new §§412.101 - 412.114 of new Chapter 412, Subchapter
C, concerning charges for community services. The repeals of §§403.41
- 403.53 of Chapter 403, Subchapter B, concerning charges for community-based
services, which the new sections would replace, are contemporaneously proposed
in this issue of the
Texas Register
.
The proposed new sections describe TDMHMR's uniform fee collection policy
for all local authorities that is equitable, provides for collections, and
maximizes contributions to local revenue as required by the Texas Health and
Safety Code, §534.067.
Although the subchapter proposed for repeal states that the Monthly Ability-To-Pay
Fee Schedule is based on 150% of the current Federal Poverty Guidelines, the
current fee schedule actually
begins charging for
services
at 150% of the current Federal Poverty Guidelines
for a family of one person
. This current calculation results in families
of two or more being charged a higher percentage of their income than families
of one. The proposed new rules would continue to state that the Monthly Ability-To-Pay
Fee Schedule is based on 150% of the current Federal Poverty Guidelines; however,
the fee schedule calculation would be revised to begin charging for services
at 150% of the current Federal Poverty Guidelines for a family of two persons,
three persons, four persons, and so on. For example, 150% of the 2000 Federal
Poverty Guidelines for a family of two is $16, 875. A family of two whose
annual income is less than $16, 875 would have a maximum monthly fee of zero.
A family of two whose annual income is more than $16, 875 would have a maximum
monthly fee of greater than zero. The revised fee schedule would also be calculated
using smaller increments between each annual/monthly gross income level.
The proposed sections would fulfill the requirements of the Texas Government
Code, §2001.039, concerning the periodic review of agency rules.
Cindy Brown, chief financial officer, has determined that for each year
of the first five years the proposed new sections are in effect, enforcing
or administering the sections does not have foreseeable implications relating
to costs or revenues of the state government. There will be some impact to
revenues of local governments (i.e., local mental health and mental retardation
authorities) due to revisions in the fee schedule's calculation; however,
the extent of the impact cannot be determined because TDMHMR does not require
local authorities to report consumer fee collection data based on income levels.
The revised fee schedule calculation applies the same formula to all family
sizes, which has a negative fiscal impact because families of two or more
persons will not be charged a fee until their income is 150% of Federal Poverty
Guidelines. To offset this impact, the fee schedule will have slightly smaller
increments between each income level, which will result in the next higher
fee being reached more frequently.
Sam Shore, director, Behavioral Health Services, has determined that, for
each year of the first five years the proposed sections are in effect, the
public benefit expected is the implementation of a uniform fee collection
policy for all local authorities that is equitable, provides for collections,
and maximizes contributions to local revenue. It is anticipated that there
would be no additional economic cost to persons required to comply with the
proposed sections because the sections do not place additional requirements
related to costs on such persons than those in the sections proposed for repeal.
It is not anticipated that the proposed sections will affect a local economy.
It is not anticipated that the proposed sections will have an adverse economic
effect on small businesses or micro-businesses because the sections do not
place additional requirements on small or micro-businesses than those in the
sections proposed for repeal.
Written comments on the proposed sections may be sent to Linda Logan, director,
Policy Development, Texas Department of Mental Health and Mental Retardation,
P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication.
These new sections are proposed under the Texas Health and Safety
Code, §532.015, which provides the Texas Board of Mental Health and Mental
Retardation (board) with broad rulemaking authority, and §534.067, which
requires TDMHMR to establish a uniform fee collection policy for all local
authorities that is equitable, provides for collections, and maximizes contributions
to local revenue.
The proposed sections would affect the Texas Health and Safety Code, §534.067.
§412.101.Purpose.
(a)
The purpose of this subchapter is to comply with the Texas
Health and Safety Code, §534.067, and the Health Care Financing Administration's
interpretation of the Social Security Act, Section 1902(a)(17)(B) (which prohibits
Medicaid payments for a free service), by establishing a uniform fee collection
policy for local authorities for community services contracted for through
the performance contract that are funded by TDMHMR and required local match
and provided to members of the priority population that:
(1)
is equitable;
(2)
provides for collections; and
(3)
maximizes contributions to local revenue.
(b)
The provisions of this subchapter are not intended to preempt
payment for community services by other funding sources (e.g., Texas Commission
on Alcohol and Drug Abuse, Texas Department of Criminal Justice, third-party
coverage).
§412.102.Application.
(a)
This subchapter applies to all local authorities for community
services contracted for through the performance contract that are funded by
TDMHMR and required local match and provided to members of the priority population.
(b)
This subchapter does not apply to:
(1)
programs and services that are prohibited by statute or
regulation from charging fees to persons served (e.g., Early Childhood Intervention
Program);
(2)
the TDMHMR In-Home and Family Support Program;
(3)
community-based residential services and inpatient services;
and
(4)
specialized services mandated by the Omnibus Budget Reconciliation
Act (OBRA) of 1987, as amended by OBRA 90, for preadmission screening and
annual resident reviews (PASARR) provided to non-Medicaid eligible persons.
§412.103.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise.
(1)
Ability to pay - A person has third-party coverage that
will pay for needed services, the person's maximum monthly fee is greater
than zero, or the person has identified payment for a needed service or services
in an approved plan utilizing Social Security work incentive provisions (i.e.,
(2)
Community services or services - Mental health and mental
retardation services required to be available in each local service area pursuant
to the Texas Health and Safety Code, §534.053(a), for which TDMHMR contracts
through the performance contract, and which are:
(A)
24-hour emergency screening and rapid crisis stabilization
services, (e.g., crisis hotline, mobile crisis intervention, crisis walk-in,
and crisis support);
(B)
community-based crisis residential services;
(C)
community-based assessments, including the development
of interdisciplinary treatment plans (e.g., assessment treatment planning,
eligibility determination, and initial enrollment assessment), and diagnosis
and evaluation services;
(D)
family support services, including respite care;
(E)
case management services (or service coordination);
(F)
medication-related services, including medication clinics,
laboratory monitoring, medication education, mental health maintenance education,
and the provision of medication; and
(G)
psychosocial rehabilitation programs, including social
support activities, independent living skills, and vocational training.
(3)
Family members -
(A)
Unmarried person under the age of 18 - The person, the
person's parents, and the dependents of the parents, if residing in the same
household.
(B)
Unmarried person age 18 or older - The person and his/her
dependents.
(C)
Married person of any age - The person, his/her spouse,
and their dependents.
(4)
Gross income - Revenue from all sources before taxes and
other payroll deductions.
(5)
Inability to pay - A person's maximum monthly fee is zero
and:
(A)
the person does not have third-party coverage;
(B)
the person has third-party coverage, but the person has
exceeded the maximum benefit of the covered service(s) or the third-party
coverage will not pay because the services needed by the person are not covered
services; or
(C)
the person has not identified payment for a needed service
or services in an approved plan utilizing Social Security work incentive provisions
(i.e.,
Plan to Achieve Self-Sufficiency; Impairment
Related Work Expense
).
(6)
Income-based public insurance - Government funded third-party
coverage that bases eligibility and/or co-payments and deductibles on a person's
(or parents') income (i.e., Medicaid and CHIP).
(7)
Local authority - An entity designated by the TDMHMR commissioner
in accordance with the Texas Health and Safety Code, §533.035(a).
(8)
Local match - Funds or in-kind support from a local authority
as required by the Texas Health and Safety Code, §534.066.
(9)
Performance contract - The contract between TDMHMR and
a local authority in which TDMHMR agrees to pay the local authority a specified
sum and in which the local authority agrees to provide local match, for, at
a minimum, ensuring and/or monitoring the provision of specified mental health
and mental retardation services in a local service area.
(10)
Person - A person in the priority population who is seeking
or receiving services through a local authority.
(11)
Priority population - Those groups of persons with mental
illness or mental retardation identified in TDMHMR's current strategic plan
as being most in need of mental health and/or mental retardation services.
(12)
Rate - A fixed price for a service that represents the
service's monetary value.
(13)
Third-party coverage - A public or private payor of community
services that is not the person (e.g., Medicaid, Medicare, private insurance,
CHIP, CHAMPUS).
§412.104.Principles.
TDMHMR supports the following principles:
(1)
Persons are charged for services based on their ability
to pay.
(2)
Procedures for determining ability to pay are fair, equitable,
and consistently implemented.
(3)
Paying for services in accordance with his/her ability
to pay acknowledges the dignity of the person.
(4)
Paying for services in accordance with his/her ability
to pay reinforces the role of the person as a customer, having the right and
responsibility to influence the provision of those services.
(5)
Earned revenues are optimized.
§412.105.Accountability.
(a)
Prohibition from denying services. Local authorities are
prohibited from denying services:
(1)
to a person because of the person's inability to pay for
the services;
(2)
to a person in a crisis or emergency because a financial
assessment has not been completed, financial responsibility has not been determined,
or the person has a past-due account; or
(3)
pending resolution of an issue relating solely to payment
for services, including failure of the person (or parent) to comply with any
requirement in subsections (b)-(e) of this section.
(b)
Requirement to apply for Medicaid benefits. Parents whose
children may be eligible for Medicaid and persons who may be eligible for
Medicaid must apply for Medicaid or provide documentation that they have been
denied Medicaid or that their Medicaid application is pending.
(c)
Requirement to enroll in CHIP. Parents of children who
may be eligible for the Childrens Health Insurance Program (CHIP) must enroll
in CHIP or provide documentation that they have been denied CHIP benefits
or that their CHIP enrollment is pending.
(d)
Financial documentation. If requested by the local authority,
persons (or parents) must provide the following financial documentation:
(1)
annual or monthly gross income/earnings, if any;
(2)
extraordinary expenses (i.e. major medical or health related
expenses; major casualty losses; child care expenses for the previous year
or projections for the next year);
(3)
number of family members; and
(4)
proof of any third-party coverage.
(e)
Permission to bill third-party coverage. Persons with third-party
coverage must execute an assignment of benefits (i.e., give the local authority
permission to bill the third-party coverage).
(f)
Failure to comply. A person's (or parent's) failure to
comply with any requirement in subsections (b)-(e) of this section will result
in the person (or parent) being charged the standard rate(s) for services,
established in accordance with §412.107(a) of this title (relating to
Rates), unless the person's interdisciplinary or multidisciplinary team makes
a clinical determination that failure to comply is related to the person's
mental illness or mental retardation or enforcement of the requirement would
result in a reduction in functioning of the person or the person's refusal
or rejection of the needed services. This determination requires clinical
documentation and must be reassessed by the team at least every three months.
§412.106 Determination of Ability to Pay.
(a)
Financial assessment. A financial assessment must be completed
and documented for each person within the first 30 days of services and updated
at least annually, or whenever significant financial changes occur, as long
as the person continues to receive services. The financial assessment is accomplished
using the financial documentation listed in §412.105(d) of this title
(relating to Accountability), which represents the finances of the:
(1)
person who is age 18 or older and the person's spouse;
or
(2)
parents of the person who is under 18 years of age.
(b)
Maximum monthly fee. A person's maximum monthly fee is
based on the financial assessment and calculated using the Monthly Ability-To-Pay
Fee Schedule, referenced as Exhibit A in §412.112 of this title (relating
to Exhibit). The calculation is based on the number of family members, annual
gross income reduced by extraordinary expenses paid during the past 12 months
or projected for the next 12 months. No other sliding scale is used.
(1)
A maximum monthly fee that is greater than zero is established
for persons who are determined as having an ability to pay. If two or more
members of the same family are receiving services, then the maximum monthly
fee is for the family.
(2)
A maximum monthly fee of zero is established for persons
who are determined as having an inability to pay.
(c)
Third-party coverage.
(1)
A person with third-party coverage that will pay for needed
services is determined as having an ability to pay for those services.
(2)
If the person's third-party coverage will not pay for needed
services because the local authority provider is not an approved provider,
then the local authority will refer the person to his/her third-party coverage
to identify a provider for which the third-party coverage will pay.
(3)
An exception to the provision described in paragraph (2)
of this subsection is if the local authority is identified as being responsible
for providing court-ordered outpatient services to the person.
(d)
Social Security work incentive provisions. A person has
an ability to pay if the person identified payment for a needed service or
services in his/her approved plan utilizing Social Security work incentive
provisions (i.e.,
Plan to Achieve Self-Sufficiency;
Impairment Related Work Expense
). Persons are not required to identify
payment for any service for which they may be eligible as part of their approved
plan for utilizing the Social Security work incentive provisions.
(e)
Notification. Written notification is provided to the person
(or parents) that includes:
(1)
the determination of whether the person (or parent) has
an ability or an inability to pay;
(2)
a copy of the financial assessment form that is signed
by the person (or parent) and a copy of the Monthly Ability-to-Pay Fee Schedule,
with the applicable areas indicated (i.e., annual gross income, number of
household members, etc.);
(3)
the amount of the maximum monthly fee;
(4)
a statement that the person (or parent) may discuss with
the interdisciplinary or multidisciplinary team any concerns the person (or
parent) may have regarding the information contained in the written notification;
and
(5)
a statement that the person (or parent) may voluntarily
pay more than the maximum monthly fee.
§412.107.Standard Rates.
(a)
Each local authority must establish, at least annually,
a reasonable standard rate for each community service.
(b)
The rate for a service provided to a Medicaid recipient
that is reimbursed by Medicaid is the current approved Medicaid rate for the
service. The rate for the same service provided to a person who is not a Medicaid
recipient may not be less than the current approved Medicaid rate, but may
be more if the current approved Medicaid rate does not cover the actual cost
of the service.
§412.108.Billing Procedures.
(a)
Monthly services charge. All services provided during a
month, and the standard rates for those services, are listed as the person's
monthly services charge. Each service listed is identified as being covered
by third-party coverage or as not being covered by third-party coverage. If
a person has exceeded the maximum benefit of a particular covered service,
then that service is identified as not being covered by third-party coverage.
(b)
Billing third-party coverage. The third-party coverage
is billed the monthly services charge for covered services.
(1)
Third-party coverage that is not income-based public insurance.
(A)
If the local authority has a contract with the person's
third-party coverage, then payment made by the third-party coverage for a
covered service plus any applicable co-payment made by the person is full
payment for that service.
(B)
If the local authority does not have a contract with the
person's third-party coverage and if a balance remains after payment from
the third-party coverage or if the third-party coverage will not pay for a
covered service because the deductible hasn't been met, then the balance or
deductible is applied toward the person's maximum monthly fee.
(2)
Income-based public insurance. Payment made by income-based
public insurance for a covered service plus payment made by the person for
any applicable co-payment and/or deductible is full payment for that service,
(i.e.,:
(A)
for Medicaid recipients, Medicaid reimbursement is full
payment; and
(B)
for CHIP recipients, CHIP reimbursement plus the recipient's
co-payment and/or deductible payment is full payment).
(c)
Billing the person (or parents).
(1)
No third-party coverage. If the monthly services charge
amount:
(A)
exceeds the person's maximum monthly fee, then the amount
is reduced to equal the maximum monthly fee and the person (or parent) is
billed the maximum monthly fee; or
(B)
is less than the person's maximum monthly fee, then the
person (or parent) is billed the amount.
(2)
Third-party coverage that is not income-based public insurance.
(A)
If the local authority has a contract with the person's
third-party coverage and:
(i)
the amount of all co-payments described in subsection (b)(1)(A)
of this section exceeds the person's maximum monthly fee, then the amount
is reduced to equal the maximum monthly fee and the person (or parent) is
billed the maximum monthly fee. The person (or parent) is not billed for services
not covered by third-party coverage, if any; or
(ii)
the amount of all co-payments described in subsection
(b)(1)(A) of this section does not exceed the person's maximum monthly fee,
then the monthly services charge amount for services not covered by third-party
coverage is added to equal the total amount. If the total amount:
(I)
exceeds the person's maximum monthly fee, then the total
amount is reduced to equal the maximum monthly fee and the person (or parent)
is billed the maximum monthly fee; or
(II)
is less than the person's maximum monthly fee, then the
person (or parent) is billed the total amount.
(B)
If the local authority does not have a contract with the
person's third-party coverage, then the balance or deductible applied toward
the person's maximum monthly fee as described in subsection (b)(1)(B) of this
section is added to the monthly services charge amount for services not covered
by third-party coverage to equal the total amount. If the total amount:
(i)
exceeds the person's maximum monthly fee, then the total
amount is reduced to equal the maximum monthly fee and the person (or parent)
is billed the maximum monthly fee; or
(ii)
is less than the person's maximum monthly fee, then the
person (or parent) is billed the total amount.
(3)
Income-based public insurance.
(A)
If the amount of all co-payments and deductibles described
in subsection (b)(2) of this section exceeds the person's maximum monthly
fee, then the person (or parent) is billed the amount. The person (or parent)
is not billed for services not covered by third-party coverage, if any.
(B)
If the amount of co-payments and deductibles described
in subsection (b)(2) of this section does not exceed the person's maximum
monthly fee, then the monthly services charge amount for services not covered
by third-party coverage is added to equal the total amount. If the total amount:
(i)
exceeds the person's maximum monthly fee, then the total
amount is reduced to equal the maximum monthly fee and the person (or parent)
is billed the maximum monthly fee; or
(ii)
is less than the person's maximum monthly fee, then the
person (or parent) is billed the total amount.
(4)
Social Security work incentive provisions. A person may
be charged for specific services listed on the monthly services charge if
the person identified payment for such services in his/her approved plan utilizing
Social Security work incentive provisions (i.e.,
Plan to Achieve Self-Sufficiency; Impairment Related Work Expense
).
(d)
Statements.
(1)
Persons (and parents) who have been determined as having
the ability to pay are sent monthly or quarterly statements that include:
(A)
an itemized list, at least by date and by type, of all
services received;
(B)
the standard rate for each service;
(C)
the total charge for the period;
(D)
the amount paid (or to be paid) by third-party coverage,
if any;
(E)
the amount that is being reduced, if any; and
(F)
the amount to be paid.
(2)
Unless requested, statements are not sent to persons with
an ability to pay if they maintain a zero balance (i.e., the person does not
currently owe any money).
(3)
Unless requested, statements are not be sent to persons
who have been determined as having an inability to pay.
§412.109.Payment and Exemptions.
(a)
Payment.
(1)
Persons (and parents) are expected to promptly pay all
charges owed.
(2)
If a person (or parent) claims, and provides documentation,
that financial hardship prevents prompt payment of all charges owed, then
the local authority may arrange for the person (or parent) to pay a lesser
amount each month. Although the person (or parent) will pay a lesser amount
each month because a portion of the charges will be deferred, the person (or
parent) is still responsible for paying all charges owed.
(b)
Receipts. Receipts must be provided for all cash payments.
(c)
Waiver of charges. If a person's interdisciplinary or multidisciplinary
team makes a clinical determination that being charged for services and receiving
statements will result in a reduction in the functioning level of the person
or the person's refusal or rejection of the needed services, then charges
will cease and statements will no longer be sent. This determination requires
clinical documentation and must be reassessed by the team at least every three
months.
(d)
Termination of services for cause. A person's services
may be terminated in accordance with this subsection.
(1)
Irresponsible actions by a person that result in resources
being wasted (e.g., missing multiple appointments without canceling, consistently
losing medications) shall be referred to the person's interdisciplinary or
multidisciplinary team. The team is responsible for making reasonable efforts
to assist the person in stopping or reducing the irresponsible actions. (For
example, if the team determines that the actions are related to the person's
mental illness or mental retardation, then the team may modify the person's
treatment. If the team determines that the actions are related to external
circumstances, such as unreliable transportation, then the team may assist
the person (or parent) in accessing reliable transportation.) If the team
makes a clinical determination that the actions are not related to the person's
mental illness or mental retardation and the team has been unsuccessful in
assisting the person in stopping or reducing the actions, then the team may
decide to terminate the person's services. The team may not terminate the
person's services if termination is clinically contraindicated or if the local
authority is identified as being responsible for providing court-ordered outpatient
services to the person.
(2)
Past-due accounts of persons (or parents) who are not making
payments are referred to the persons' interdisciplinary or multidisciplinary
teams. The team is responsible for addressing the issue of non-payment with
the person (or parent) and making reasonable efforts that will result in the
person (or parent) making payments. (For example, if the team determines that
non-payment is related to the person's mental illness or mental retardation,
then the team may modify the person's treatment to address the non-payment.
If the team determines that non-payment is related to financial hardship,
then the team may assist the person (or parent) in making arrangements to
pay a lesser amount each month in accordance with subsection (a) of this section.)
If the team makes a clinical determination that non-payment is not related
to the person's mental illness or mental retardation and, despite the team's
efforts, the person (or parent) does not pay, then the team may decide to
terminate the person's services. The team may not terminate the person's services
if termination is clinically contraindicated or if the local authority is
identified as being responsible for providing court-ordered outpatient services
to the person.
(3)
If the team decides to terminate the person's services,
then:
(A)
the team must provide clinical documentation that justifies
its decision, including the basis for determining that termination is not
clinically contraindicated; and
(B)
the person (or parent) shall be notified in writing of
the decision and provided an opportunity to appeal the decision in accordance
with §401.464 of this title (relating to Notification and Appeals Process).
The notification shall prescribe the time frames and process for requesting
an appeal and include a copy of this subchapter. If the person (or parent)
requests an appeal within the prescribed time frame, then the person's services
may not be terminated while the appeal is pending.
(4)
If a person (or parent) is dissatisfied with the decision
of the appeal as described in paragraph (3)(B) of this subsection, then the
person (or parent) may request a review by the Office of Consumer Services
and Rights Protection - Ombudsman at TDMHMR Central Office.
(A)
The person (or parent) must request a review within 10
working days of receipt of notification of the appeal decision.
(B)
The person (or parent) may choose to have the staff conducting
the review:
(i)
conduct the review by telephone conference with the person
(or parent) and a representative from the local authority and make a decision
based upon verbal testimony made during the telephone conference and any documents
provided by the person (or parent) and the local authority; or
(ii)
conduct the review by making a decision based solely upon
documents provided by the person (or parent) and the local authority without
the presence of any of the parties involved.
(C)
The review:
(i)
will be conducted no sooner than 10 working days and no
later than 30 working days of receipt of the request for a review unless an
extension is granted by the director of the Office of Consumer Services and
Rights Protection - Ombudsman;
(ii)
will include a review of the pertinent information concerning
termination of the person's services and may include consultation with TDMHMR
clinical staff and staff who oversee implementation of this subchapter;
(iii)
will result in a final decision which will either uphold,
reverse, or modify the original decision to terminate the person's services;
and
(iv)
is the final step of the appeal process for termination
of services for cause.
(D)
Within five working days after the review, the staff who
conducted the review will send written notification of the final decision
to the person (or parent) and the local authority.
(e)
Prohibition of financial penalties. Financial penalties
may not be imposed on a person (or parent).
(f)
Debt collection. Local authorities must make reasonable
efforts to collect debts before an account is referred to a debt collection
agency. Local authorities must document their efforts at debt collection.
(1)
Local authorities must incorporate into a written agreement
or contract for debt collection provisions that state that both parties shall:
(A)
maintain the confidentiality of the information and not
disclose the identity of the person or any other identifying information;
and
(B)
not harass, threaten, or intimidate persons and their families.
(2)
Local authorities will enforce the provisions contained
in paragraph (1) of this subsection.
§412.110.Training.
All local authority staff who are involved in implementing or explaining
the content of this subchapter must annually demonstrate competency in accordance
with a prescribed training program developed by TDMHMR, in consultation with
local authorities and consumer representatives.
§412.111.Information for Persons.
Persons and families must be provided TDMHMR-approved information on
TDMHMR's policy of charges for community services contained in this subchapter
prior to entry into services except in a crisis or emergency.
§412.112.Exhibit.
Exhibit A - The Monthly Ability-To-Pay Fee Schedule, is referenced
in this subchapter. Copies of Exhibit A are available by contacting TDMHMR,
Policy Development, P.O. Box 12668, Austin, TX 78711-2668. The Monthly Ability-To-Pay
Fee Schedule is based on 150% of the current Federal Poverty Guidelines. TDMHMR
may revise the Monthly Ability-To-Pay Fee Schedule, based on any changes in
the Federal Poverty Income Guidelines, to be effective on September 1 of the
next state fiscal year. TDMHMR will distribute the revised fee schedule to
all local authorities, who are responsible for ensuring that their affected
contractors are provided a copy.
§412.113.References.
Reference is made to the following statutes:
(1)
Texas Health and Safety Code, §534.067;
(2)
Social Security Act, Section 1902(a)(17)(B); and
(3)
Omnibus Budget Reconciliation Act (OBRA) of 1987, as amended
by OBRA 90.
§412.114.Distribution.
This subchapter is distributed to:
(1)
all members of the Texas Board of Mental Health and Mental
Retardation;
(2)
executive, management, and program staff of TDMHMR Central
Office;
(3)
executive directors of all local authorities; and
(4)
advocacy 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 March 5, 2001.
TRD-200101271
Andrew Hardin
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: April 15, 2001
For further information, please call: (512) 206-5216
Chapter 1301.
HEALTH CARE INFORMATION
Subchapter A. HOSPITAL DISCHARGE DATA RULES
Purpose and Scope
]
(b)
Scope.
] These sections cover definitions;
the advisory committee's operation; fees; exceptions to certification; application
requirements and procedures; types of certificates, temporary permits, and
applicant eligibility; examination; certificate renewal; continuing education
requirements; changes of name or address; professional and ethical standards;
certifying or permitting persons with criminal background to be respiratory
care practitioners; violations, complaints and subsequent actions.
Texas Civil
Statutes, Article 4512l
], as amended.
Allied Health Education and
]
Accreditation
for Respiratory Care (COARC) and its predecessor or
[
of the American Medical Association (CAHEA) or its
] successor
organization.
Texas Civil Statutes,
Article 4495b, §3.06(d)(1)
] and the rules pertaining thereto adopted
by the BME.
disorders.
]
(22)
] Qualified medical director--A
physician licensed and in good standing with the BME, and who has special
interest and knowledge in the diagnosis and treatment of respiratory care
problems who is actively engaged in the practice of medicine. This physician
must be a member of the active medical staff of a health care facility, agency
or organization who supervises the provision of respiratory care.
(23)
] Respiratory care--The treatment,
management, control, diagnostic evaluation, and care of inpatients or outpatients
who have deficiencies and abnormalities associated with the cardiorespiratory
system. Respiratory care does not include the delivery, assembly, set up,
testing, and demonstration of respiratory care equipment upon the order of
a licensed physician. Demonstration is not to be interpreted here as the actual
patient assessment and education, administration, or performance of the respiratory
care procedure(s).
(24)
] Respiratory care education
program--
(25)
] Respiratory care practitioner
(RCP)--A person permitted or certified under the Act to practice respiratory
care.
(26)
] Respiratory care procedure--Respiratory
care provided by the therapeutic and diagnostic use of medical gases, humidifiers,
and aerosols, the administration of drugs and medications to the cardiorespiratory
system, ventilatory assistance and ventilatory control, postural drainage,
chest drainage, chest percussion or vibration, breathing exercises, respiratory
rehabilitation, cardiopulmonary resuscitation, maintenance of natural airways,
and the insertion and maintenance of artificial airways. The term includes
a technique employed to assist in diagnosis, monitoring, treatment, and research,
including the measurement of ventilatory volumes, pressures and flows, the
specimen collection of blood and other materials, pulmonary function testing,
and hemodynamic and other related physiological forms of monitoring or treating,
as ordered by the patient's physician, the cardiorespiratory system. These
procedures include:
(27)
] Respiratory therapist--A
person permitted or certified under the Act to practice respiratory care.
(29)
] Temporary permit--A permit
issued in accordance with §123.7(d) of this title (relating to Types
of Certificates, Temporary Permits, and Applicant Eligibility) for a period
of six months.
(30)
] Therapeutic--Of or relating
to the treatment of disorders by remedial agents or methods.
(31)
] Under the direction--Assuring
that established policies are carried out; monitoring and evaluating the quality,
safety, and appropriateness of respiratory care services and taking action
based on findings; and providing consultation whenever required, particularly
on patients receiving continuous ventilatory or oxygenation support.
. Members
] shall serve after
expiration of their term until a replacement is appointed.
and
]
.
]
and
]
.
]
due to
] insufficient
funds, account closed, or payment stopped shall remit to the department a
money order or check for guaranteed funds
in the amount of the temporary
permit or certificate fee plus the returned check fee
within 30 days
of the date of receipt of the department's notice. Otherwise, the application
and the approval shall be invalid.
(postmark)
] date on
the second mailing, the approval or certificate issued shall be invalid. The
department shall notify the applicant's or certificate holder's employer that
the person has failed to comply with this section.
Exceptions
to Certification.
]
(b)
] Except as specifically exempted
by subsection
(b)
[
(c)
] of this section, the provisions
of the Act and this chapter apply to any person representing that he or she
practices or provides respiratory care services.
(c)
] These sections do not prohibit:
(d)
] Student status
.
[
is further clarified as follows.
]
Joint Review Committee for Respiratory Care
Education of the AMA
] or its successor organization.
(e)
] All persons who apply to become
certified or permitted as a practitioner, all persons who believe they are
exempt under the Act and this chapter, and all other persons who are interested
in practicing respiratory care need to be aware of the:
Act, §13
], violations. Any person who knowingly or
intentionally violates a provision of the Act commits a Class B misdemeanor;
and
Act, §4
]. Persons who are not certified
or permitted under the Act may not use in connection with their practice or
employment the words "respiratory care," "respiratory therapist," "respiratory
care practitioner," "certified respiratory care practitioner," or the letters
"RCP," or any other words, letters, abbreviations, or insignia indicating
or implying that the person is a respiratory care practitioner.
(b)
] General.
(c)
] Required application materials.
any
] certificate or permit, or the revocation
of
a
[
any
] certificate or permit issued;
any
]
certificate or permit the practitioner shall keep the department advised of
his or her current mailing address; and
and
]
therapy technician
] or registered respiratory therapist by the
NBRC at the time of application, a photocopy of the certificate issued by
NBRC shall be submitted in lieu of examination results; or
therapy technician
] or registered
respiratory therapist by the NBRC and who are licensed, registered, or otherwise
regulated in another state, territory, or country at the time of application
must submit with their applications a properly completed employment/experience
documentation report form signed by their medical director as defined in §123.2
of this title (relating to Definitions), attesting that the applicant is currently
practicing, or has practiced respiratory care within the 12-month period immediately
preceding application to the department.
(d)
] Information/Documentation form.
Persons applying for any certificate or permit who are licensed, registered,
or otherwise regulated in any profession at the time of application to the
department must submit with their applications a properly completed information/documentation
form signed by an agency official. The signature must be notarized if the
agency does not have or does not affix its official seal on the form.
(e)
] Application processing.
Application
] for reimbursement shall
be made to the program administrator. If the program administrator does not
agree that the time period has been violated or finds that good cause existed
for exceeding the time period, the request will be denied.
(f)
] Application approval.
(b)-(d)
]
of this section and which properly document applicant eligibility, unless
the application is disapproved under the provisions of subsection
(f)
[
(g)
] of this section.
(g)
] Disapproved applications.
(c)
] of this section;
(c)
](3)(B)(i) of this section, but
is not recognized by the NBRC as a certified respiratory
therapist
[
therapy technician
] or registered respiratory therapist.
department's formal hearing procedures in Chapter 1 of this title (relating
to Texas Board of Health)
] Within 10 days after receipt of the written
notice, the applicant shall give written notice to the administrator that
the applicant either waives the hearing, or wants the hearing. Receipt of
the written notice is deemed to occur on the
tenth
[
(10th)
] day after the notice is mailed unless another date of receipt is reflected
on a United States Postal Service return receipt. If the applicant fails to
respond within 10 days after receipt of the notice of opportunity, or if the
applicant notifies the administrator that the hearing be waived, the applicant
is deemed to have waived the hearing. If the hearing has been waived, the
department shall disapprove the application.
The purpose
of this section is to set
] out the types of certificates and permits
issued, and the qualifications of applicants for certification as respiratory
care practitioners.
therapy technician
]
or registered respiratory therapist by the National Board for Respiratory
Care, Inc. (NBRC). A regular certificate may be issued by the department upon
approval of the application and payment of prescribed fees to an applicant
who submits evidence, satisfactory to the department, that he or she has passed
the examination, as set out in §123.8 of this title (relating to Examination),
and is in good standing with the agency or organization with which they are
licensed or registered to practice respiratory care. Applicants for a temporary
permit under this paragraph who have not passed the examination, as set out
in §123.8 of this title (relating to Examination), shall not be issued
a regular certificate; or
(c)
](2)(C) of this title (relating to Application Requirements
and Procedures). After the applicant passes the examination as set out in §123.8
of this title (relating to Examination) and has paid the prescribed fee, a
regular certificate shall be issued and the temporary permit shall become
null and void.
therapy technician
] examination administered by or under the auspices of the NBRC with
a score equal to or exceeding the pass rate determined by the NBRC at the
time of examination or reexamination; [
or
]
or
]
therapy technician
] or registered respiratory therapist;
and
(b)
] Examination eligibility. Holders
of temporary permits are allowed to take the examination provided the holder
complies with the requirements of the Act and these sections. Persons who
are certified or registered in respiratory care by the NBRC at the time of
application to the department are not required to be reexamined for state
certification.
(c)
] Approved examination. The approved
examination for all applicants consists of an entry level certified respiratory
therapist (CRT)
[
therapy technician (CRTT)
] examination administered
for
[
under the auspices of
] the National Board for Respiratory
Care, Inc. (NBRC) or its designee, or the advisory committee may recommend
an equivalent examination.
(d)
] Standards of acceptable performance.
The cut-score determined by the NBRC at the time of examination or reexamination
shall be the cut-score utilized by the department to determine pass or fail
performance.
(e)
] Completion of application forms.
Each applicant shall be responsible for completing and transmitting appropriate
application forms and paying appropriate fees by the deadlines set by the
NBRC, if an NBRC examination is prescribed.
(f)
] Results.
certified respiratory therapy technician
] certificate issued by the NBRC.
(g)
] Refunds. Examination fee refunds
to persons who fail to appear for the examination will be in accordance with
policies and procedures of the NBRC, or other agency approved by the board
to administer an examination prescribed in this section.
(b)
] General.
Except as provided
by subsection (b) of this section, a practitioner shall renew the certificate
annually.
(2)
]
(3)
] The renewal date of a certificate
shall be the last day of the practitioner's birth month.
(4)
] Each practitioner shall be
responsible for renewing the certificate on or before the expiration date
and shall not be excused from paying reinstatement fees. Failure to receive
notification from the department prior to the expiration date will not excuse
failure to file for renewal or reinstatement.
(5)
] The department may not renew
the certificate or permit of the practitioner who is in violation of the Act
or board rules at the time of application for renewal.
(6)
] The department shall deny renewal
of a certificate or permit if renewal is prohibited by the Education Code, §57.491,
concerning guaranteed student loan defaults.
(c)
] Staggered renewals. The department
shall use a staggered system for certificate renewals. [
Certificates
issued within six months of a practitioner's birth month shall be issued for
that period of time plus the next full year.
]
(d)
] Certificate renewal.
,
] if requested by the department.
(e)
] Late renewal or reapplication.
§9
of the Act
].
(i)
] of this
title (relating to Continuing Education Requirements), the expiration date
under subparagraphs (A)-(B) of this paragraph is the expiration date of the
person's last annual certificate.
renewal
] date.
as a
] respiratory care
[
practitioner
] in violation of the Act.
(f)
] Renewal Processing.
(e)
](2)-(4) of this title (relating to Application Requirements
and Procedures).
(g)
] Military duty. If a practitioner
fails to timely renew his or her permit or certificate [
on or after August
1, 1990,
] because the practitioner is or was on active duty with the
armed forces of the United States of America, serving outside the State of
Texas, the practitioner may renew the permit or certificate pursuant to this
subsection.
(h)
] Inactive status. A respiratory
care practitioner who holds a certificate under the Act and who is not actively
engaged in the practice of respiratory care may make application to the department
in writing on a form prescribed by the department to be placed on an inactive
status list maintained by the department. The application for inactive status
must be postmarked prior to the expiration of the practitioner's annual certificate.
No refund will be made of any fees paid prior to application for inactive
status
the
] Act. Practice as a respiratory
care practitioner in any capacity for compensation or as a volunteer is prohibited,
and the person may not use the title respiratory care practitioner while on
inactive status.
(e)
] of this section.
(i)
] Expiration of certificate.
A person whose certificate has expired may not use the title or represent
or imply that he has the title of certified respiratory care practitioner,
respiratory care practitioner, or respiratory therapist, or use the letters
RCP, and may not use any facsimile of those titles in any manner.
Until
a person has renewed the certificate, a person may not practice respiratory
care in violation of the Act.
[
Any person who practices respiratory
care with an expired certificate is in violation of the Act.
]
(b)
] General. Continuing education
requirements for renewal shall be fulfilled each renewal year.
(c)
] Types of acceptable continuing
education. Continuing education must be in skills relevant to the practice
of respiratory care and must have a direct benefit to patients and clients
and shall be acceptable if the experience falls in one or more of the following
categories:
(d)
] Determination of clock hours.
The department shall credit continuing education experiences as follows.
(c)
](1)
of this section shall be credited on the basis of 15 clock hours for each
semester hour successfully completed for credit or audit, evidenced by a certificate
of successful completion or official transcript.
(c)
](1)
or (2) of this section shall be credited on a one-for-one basis with one clock
hour for each clock hour spent in the continuing education activity.
(c)
](3) of this section
shall be credited on the basis of two clock hours for each hour actually taught.
(e)
] Reporting of continuing education.
Each practitioner shall be responsible for reporting to the department the
continuing education activities completed.
(g)
]
of this section, the practitioner shall file the continuing education hours
immediately following completion of the activity.
(f)
] Activities unacceptable as
continuing education. The department may not grant continuing education credit
to any practitioner for:
(c)
](2) of this section;
(c)
] of this
section;
(g)
](1) of this section;
(c)
](4) of this
section; or
(g)
] Failure to complete required
continuing education.
(b)
] of this section may be granted up to a 90-day extension to a reporting
period if the renewal fee
and continuing education extension fee
is paid on or prior to the expiration date. The 90-day extension is the maximum
that may be granted and there will be no exceptions.
which are certificates
]
valid for a 90-day period beginning with the day following the expiration
date of the practitioner's annual certificate and a written notice that the
continuing education period has been extended.
(b)
] of this section and who has not completed the continuing education
requirement during the 90-day extension shall return the certificate and identification
cards to the department and shall not advertise or represent himself or herself
as a respiratory care practitioner in any manner. The person may renew the
certificate or reapply for a new certificate in accordance with §123.9
(d)
[
(e)
] of this title (relating to Certificate Renewal).
(h)
] Other miscellaneous provisions.
(c)
] of this
section.
(g)
] of this section.
(b)
] The practitioner shall notify
the department of changes in name, preferred mailing address, or place(s)
of business or employment within 30 days of such change(s).
(c)
] Notification of address changes
shall be made in writing, including the name, mailing address, and zip
code
[
codes
] and be mailed to the administrator.
(d)
] All notices required by this
chapter shall be addressed to the last known preferred mailing address of
the practitioner or applicant.
(e)
] Before any certificate or permit
and identification cards will be issued by the department, notification of
name changes must be mailed to the administrator and shall include a notarized
copy of a marriage certificate, court decree evidencing such change, or a
social security card reflecting the new name. The practitioner shall [
return any previously issued certificate or permit and identification cards
and
] remit the appropriate replacement fee as set out in §123.4
of this title (relating to Fees).
AART
], the
National Board for Respiratory Care
[
NBRC
], the Texas Society for Respiratory Therapy, the board,
the department, and other professional or governmental bodies.
Aides/orderlies
] may
not perform respiratory care procedures.
(b)
] Criminal convictions which
directly relate to the profession of respiratory care.
Act, §13
];
Texas Civil Statutes, Article 6252-13c, §4(c)(1)-(7)
],
the legal authority for the provisions of this section.
(c)
] Procedures for revoking, suspending,
suspending on an emergency basis, or denying a certificate or temporary permit
to persons with criminal backgrounds.
and Texas Register
] Act,
§2001, Texas Government
Code, Texas Occupations Code, Chapter 53
[
Texas Civil Statutes,
Article 6252-13a, and the department's formal hearing procedures in Chapter
1 of this title (relating to Texas Board of Health)
].
Purpose. The purpose of this
]
This
section [
is to
]
establishes
[
establish
] standards relating to:
§4 of the Act
] which result in
the penalty of a Class B misdemeanor;
(Texas Civil Statutes, Article
4495b)
] without holding an appropriate license issued by the BME; or
§§4, 10, or 13
].
board rule
].
(512) 458-7111
].
board
] the complainant,
and the accused party.
department's formal hearing procedures in Chapter 1 of this title (relating
to Texas Board of Health) or §123.13 of this title (relating to Certifying
or Permitting Persons with Criminal Backgrounds to be Respiratory Care Practitioners).
]
the department shall initiate formal hearing
procedures in accordance with §§1.21-1.34 of this title (relating
to Formal Hearing Procedures)
].
commissioner
]
suspends a certificate or permit, the suspension remains in effect until the
administrator or the department determines that the reasons for suspension
no longer exist. The practitioner whose certificate or permit has been suspended
is responsible for securing and providing to the department such evidence,
as may be required by the department that the reasons for the suspension no
longer exist. The administrator or the department shall investigate prior
to making a determination.
commissioner
]
suspends a temporary permit and the suspension is in effect at the time of
the expiration of the temporary permit, the former temporary permit holder
must reapply in order to obtain a new temporary permit. The department may
not issue a new temporary permit until the administrator or the department
determines that the reasons for suspension have been removed.
Part 2.
TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION
Chapter 412.
LOCAL AUTHORITY RESPONSIBILITIES
Part 16.
TEXAS HEALTH CARE INFORMATION COUNCIL