TITLE 25. HEALTH SERVICES

PART 1. DEPARTMENT OF STATE HEALTH SERVICES

CHAPTER 140. HEALTH PROFESSIONS REGULATION

The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (DSHS), proposes the repeal of §§140.1 - 140.24, concerning Perfusionists; §§140.201, 140.202, and 140.204 - 140.218, concerning Respiratory Care; and §§140.501, 140.502, and 140.504 - 140.524, concerning Medical Radiologic Technologists.

BACKGROUND AND PURPOSE

The Texas Legislature enacted Senate Bill (SB) 202, 84th Legislature, Regular Session (2015), which included amendments, effective September 1, 2015, to Occupations Code, Chapters 601 (relating to Medical Radiologic Technologists), 603 (relating to Perfusionists), and 604 (relating to Respiratory Care Practitioners). These amendments transferred regulatory responsibility under those occupational licensing statutes from DSHS to the Texas Medical Board (TMB) and, in the case of Chapters 601 and 604, to the TMB, together with the Texas Board of Medical Radiologic Technology and the Texas Board of Respiratory Care, respectively. The latter Boards are advisory Boards to the TMB under their respective chapters (hereafter referred to collectively as TMB's "Advisory Boards").

Pursuant to SB 202's transition provisions for the 2015-2017 biennium, DSHS rules for the programs were to remain in effect until changed by TMB, the Texas Board of Medical Radiologic Technology, or the Texas Board of Respiratory Care, as appropriate, pursuant to the amended rulemaking authority under SB 202 for rules governing the transferring programs. The transition of the programs has now been completed and TMB, or its Advisory Boards, with the approval of TMB, as applicable, have adopted new rules for each of the transferred programs to supersede existing DSHS rules for those programs. Those rules are now in effect and located with other TMB rules in Title 22, TAC, Part 9, as follows:

-Perfusionists - Chapter 188.

-Respiratory Care Practitioners - Chapter 186.

-Medical Radiologic Technology - Chapter 194.

DSHS rules relating to these programs are now obsolete, having been superseded pursuant to SB 202, Section 2.199, and the new rules of TMB and its Advisory Boards. To remove these obsolete rules from Title 25, TAC, the rule title dedicated to rules governing programs which the DSHS administers, these rules now require repeal, pursuant to the Executive Commissioner's general rulemaking authority for DSHS.

SECTION-BY-SECTION SUMMARY

Sections 140.1 - 140.24; 140.201, 140.202, and 140.204 - 140.218; and 140.501, 140.502, and 140.504 - 140.524 are being repealed in order to remove obsolete rules in Title 25, TAC.

FISCAL NOTE

John Huss, Interim Associate Commissioner for Regulatory Services, has determined that for each year of the first five years that the repeals will be in effect, there will be no fiscal implications to state or local governments as a result of the repeals. The programs will continue to be governed under their respective new rules in Title 22, TAC, which were subject to fiscal analysis as part of their promulgation under the Administrative Procedure Act. DSHS's jurisdiction and the DSHS rules have been superseded, pursuant to SB 202 and the new rules under Title 22, TAC. The rules under Title 25, TAC, therefore, no longer: impact, or will impact, any state or local government; impose requirements or costs on any person or business; nor impact local employment.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

Mr. Huss has determined that there will be no adverse impact on small businesses or micro-businesses based upon the repeals. Since the repeals impose no requirements on such businesses, the repeals will not subject such businesses to any requirements that require them to alter their business practices.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

The repeals remove obsolete rules and do not impose compliance requirements, so there is no anticipated economic compliance cost associated with the repeals. There is no anticipated negative impact on local employment.

PUBLIC BENEFIT

In addition, Mr. Huss has determined that for each year of the first five years the repeals are in effect, the public will benefit from adoption of the sections. The public benefit anticipated as a result of the repeals will be the elimination of potential confusion within the regulated professions and the public at large that could otherwise occur if the obsolete DSHS rules were not repealed, notwithstanding the adoption of new rules, now effective, for perfusionists, respiratory care practitioners, and medical radiologic technology under Title 22, TAC, Part 9.

REGULATORY ANALYSIS

DSHS has determined that this proposal is not a "major environmental rule" as defined by, or subject to, Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure and does not otherwise meet the conditions for Government Code, §2001.0225 to apply.

TAKINGS IMPACT ASSESSMENT

DSHS has determined that the proposed repeals do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a potential taking subject to the requirements of Government Code, §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to the Rules Coordination Office, 1100 West 49th Street, Mail Code 1911, Austin, TX 78756; Fax: (512) 776-7671; or emailed to HHSRulesCoordinationOffice@hhsc.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

LEGAL CERTIFICATION

DSHS General Counsel, Lisa Hernandez, certifies that the proposed rule repeals have been reviewed by legal counsel and found to be within the Executive Commissioner's authority to adopt.

SUBCHAPTER A. PERFUSIONISTS

25 TAC §§140.1 - 140.24

The repeals are authorized under Government Code, §531.0055, and Health and Safety Code, §1001.075, which give the Executive Commissioner of the Health and Human Services Commission adoption authority with respect to rules necessary for the operation and provision of health and human services within the health and human services system, including by the DSHS. This includes repealing rules that are no longer included within, or necessary for, those purposes, or for DSHS's administration of Health and Safety Code, Chapter 1001.

The repeals affect Government Code, Chapter 531 and Health and Safety Code, 1001, and complete implementation of SB 202 with respect to Perfusionists, Respiratory Care Practitioners, and Medical Radiologic Technologists.

§140.1.Definitions.

§140.2.Fees.

§140.3.Professional and Ethical Conduct.

§140.4.Educational Requirements for Licensure.

§140.5.Examination Procedures for Perfusionist Licensure.

§140.6.Jurisprudence Examination.

§140.7.Application Procedures.

§140.8.Determination of Eligibility.

§140.9.Provisional Licensed Perfusionists.

§140.10.Licensing After Examination.

§140.11.Changes of Name or Address.

§140.12.License Renewal.

§140.13.Minimum Continuing Education Requirements.

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

§140.15.Violations, Complaints, and Subsequent Department Actions.

§140.16.Formal Hearings.

§140.17.Informal Conference.

§140.18.Default Orders.

§140.19.Suspension of License for Failure to Pay Child Support or Compliance with Child Custody Order.

§140.20.Relevant Factors.

§140.21.Severity Levels and Sanctions Guide.

§140.22.Texas State Perfusionist Advisory Committee.

§140.23.Request for Criminal History Evaluation Letter.

§140.24.Licensing of Military Service Members, Military Veterans, and Military Spouses.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 6, 2017.

TRD-201702541

Lisa Hernandez

General Counsel

Department of State Health Services

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 776-6972


SUBCHAPTER E. RESPIRATORY CARE

25 TAC §§140.201, 140.202, 140.204 - 140.218

The repeals are authorized under Government Code, §531.0055, and Health and Safety Code, §1001.075, which give the Executive Commissioner of the Health and Human Services Commission adoption authority with respect to rules necessary for the operation and provision of health and human services within the health and human services system, including by the DSHS. This includes repealing rules that are no longer included within, or necessary for, those purposes, or for DSHS's administration of Health and Safety Code, Chapter 1001.

The repeals affect Government Code, Chapter 531 and Health and Safety Code, 1001, and complete implementation of SB 202 with respect to Perfusionists, Respiratory Care Practitioners, and Medical Radiologic Technologists.

§140.201.Context.

§140.202.Definitions.

§140.204.Fees.

§140.205.Exemptions.

§140.206.Application Requirements and Procedures.

§140.207.Types of Certificates, Temporary Permits, and Applicant Eligibility.

§140.208.Examination.

§140.209.Certificate Renewal.

§140.210.Continuing Education Requirements.

§140.211.Changes of Name or Address.

§140.212.Professional and Ethical Standards.

§140.213.Certifying or Permitting Persons with Criminal Backgrounds to be Respiratory Care Practitioners.

§140.214.Violations, Complaints, and Subsequent Actions.

§140.215.Informal Disposition.

§140.216.Suspension of License Relating to Child Support and Child Custody.

§140.217.Request for Criminal History Evaluation Letter.

§140.218.Certifying or Permitting of Military Service Members, Military Veterans, and Military Spouses.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 6, 2017.

TRD-201702542

Lisa Hernandez

General Counsel

Department of State Health Services

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 776-6972


SUBCHAPTER J. MEDICAL RADIOLOGIC TECHNOLOGISTS

25 TAC §§140.501, 140.502, 140.504 - 140.524

The repeals are authorized under Government Code, §531.0055, and Health and Safety Code, §1001.075, which give the Executive Commissioner of the Health and Human Services Commission adoption authority with respect to rules necessary for the operation and provision of health and human services within the health and human services system, including by the DSHS. This includes repealing rules that are no longer included within, or necessary for, those purposes, or for DSHS's administration of Health and Safety Code, Chapter 1001.

The repeals affect Government Code, Chapter 531 and Health and Safety Code, 1001, and complete implementation of SB 202 with respect to Perfusionists, Respiratory Care Practitioners, and Medical Radiologic Technologists.

§140.501.Purpose and Scope.

§140.502.Definitions.

§140.504.Fees.

§140.505.Applicability of Subchapter; Exemptions.

§140.506.Application Requirements and Procedures For Examination and Certification.

§140.507.Types of Certificates and Applicant Eligibility.

§140.508.Examinations.

§140.509.Standards for the Approval of Curricula and Instructors.

§140.510.Certificate Issuance, Renewals, and Late Renewals.

§140.511.Continuing Education Requirements.

§140.512.Changes of Name and Address.

§140.513.Certifying Persons with Criminal Backgrounds.

§140.514.Disciplinary Actions.

§140.515.Advertising or Competitive Bidding.

§140.516.Dangerous or Hazardous Procedures.

§140.517.Registered Nurses and Physician Assistants Performing Radiologic Procedures.

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

§140.519.Registry of Non-Certified Technicians.

§140.520.Hardship Exemptions.

§140.521.Bone Densitometry Training.

§140.522.Alternate Training Requirements.

§140.523.Request for Criminal History Evaluation Letter.

§140.524.Certifying of Military Service Members, Military Veterans, and Military Spouses.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 6, 2017.

TRD-201702543

Lisa Hernandez

General Counsel

Department of State Health Services

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 776-6972