TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 186. RESPIRATORY CARE PRACTITIONERS

22 TAC §§186.1 - 186.14, 186.16 - 186.29

The Texas Medical Board on behalf of the Texas Board of Respiratory Care (Board) adopts new §§186.1 - 186.14, and 186.16 - 186.29, concerning Respiratory Care Practitioners. Sections 186.1 - 186.3, 186.5 - 186.7, 186.9 - 186.14, and 186.16 - 186.29 are adopted without changes to the proposed text as published in the November 11, 2016, issue of the Texas Register (41 TexReg 8888) and will not be republished. Section 186.4 and §186.8 are adopted with non-substantive changes and will be republished. The non-substantive changes made to the adopted rules respond to public comments. The Board's General Counsel has advised that the changes affect no new persons, entities, or subjects, other than those given notice through publication and do not materially alter the issues raised in the notice. Accordingly, republication of the adopted sections as proposed amendments for a new notice and comment period is not required. The text of the rules with adopted non-substantive changes to originally published text will be republished. The Medical Board approved the Board's adoption of the new rules at its meeting held on March 3, 2017.

The new rules are adopted in accordance with the changes to Chapter 604 of the Texas Occupations Code enacted by Senate Bill 202, 84th Legislature Regular Session (2015), and are necessary to enable the Board to perform the necessary regulatory program functions, including licensure, enforcement, and disciplinary action or remedial plan compliance.

The adoption of §§186.1 - 186.14, 186.16 - 186.29 is intended to achieve consistency with the amended provisions of the Occupations Code transferring the primary responsibility for licensing and regulation of Respiratory Care Practitioners to the Texas Medical Board. The rules also align the policies and procedures related to licensing and regulation of Respiratory Care Practitioners with the Medical Board's current policies and procedures. The new rules further enable the Medical Board to perform the various administrative support functions related to licensing, compliance, and enforcement. The new rules benefit the public by setting forth practice and licensing requirements as they pertain to Respiratory Care Practitioners. The new rules will also serve to ensure the safe practice of properly trained and qualified Respiratory Care Practitioners. Additionally, the new rules will provide an avenue for individuals regulated under the Act to obtain treatment through the Texas Physician Health Program for health conditions that have the potential of impairing that individual's practice. The new rules are organized to assist the public and the regulated community in easily locating rules and regulations specific to licensing, compliance, and enforcement related to the practice of respiratory care in Texas.

Summary of Comments

The Board received two written comments from the Texas Society for Respiratory Care. No one appeared to testify at the public hearing held on February 24, 2017, regarding the new rules, or at the Medical Board's meeting held on March 3, 2017.

Comment No. 1 - Texas Society for Respiratory Care

Section 186.4(a)(4): The commenter recommended removing "or other accrediting body approved by the advisory board" from the qualifications for applicants. The Board disagrees and declines to make this change, as the language allows the Board to process applications if CoArC is succeeded by another accrediting body in the future without requiring immediate rule changes.

Section 186.4(a)(4): The commenter recommended removing the language "and current certificate issued by such accrediting body" and replacing with "CRT Credential by the National Board for Respiratory Care." The Board agrees and adopts the new rules with non-substantive changes reflecting this suggestion.

Section 186.6(i): The commenter recommended changing the timeframe in which the Board must provide written notice to a practitioner of their upcoming certificate renewal date. The rules as published require the Board to provide written notice at least 30 days prior to the expiration date of the certificate. The commenter recommended changing this to "60 or 90 days before the expiration date of the certificate." The Board does not believe it prudent to adopt the new rules with this amendment at this time, as such language potentially affects new persons, entities, or subjects other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay the adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

Section 186.7: The commenter recommended adding language requiring an individual holding a temporary certificate to hold himself out as such in documentation. The Board does not believe it prudent to adopt the new rules with this amendment at this time, as such language potentially affects new persons, entities, or subjects other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay the adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

Section 186.8(e)(1): The commenter recommended removing the AARC from the list of certifying bodies, as the AARC does not provide any credentials. The Board agrees and adopts the new rules with non-substantive changes reflecting this suggestion. The commenter also recommended removing "or such other certifying body acceptable to the board." The Board disagrees and declines to make this change, as the language allows the Board to process applications if NBRC is succeeded by another certifying body in the future without requiring immediate rule changes.

Section 186.10: The commenter requested addition of the National Asthma Educator Certification Board (NAECB) Certified Asthma Educator (AE-C) examination for continuing education credit. The Board does not believe it prudent to adopt the new rules with this amendment at this time, as such language potentially affects new persons, entities, or subjects other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay the adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

Comment No. 2 - Texas Society for Respiratory Care

Section 186.2(30)(C): The commenter recommended making clear that individuals who "achieved requirements by the Canadian Medical Association and passed the Canadian Board of Respiratory Care examination must still take and pass the National Board for Respiratory Care examination in the U.S." While the Board agrees that this is the requirement for certification in Texas, the definition in §186.2(30)(C) only deals with educational programs. Certification requirements are defined separately from educational requirements in §186.4(a)(4) and in §186.4(b)(3). Therefore, the Board disagrees with the recommendation and declines to make any change in response to this comment.

Section 186.6(i): The commenter repeated the recommendation made regarding this section in Comment No. 1. The Board does not believe it prudent to adopt the new rules with this amendment at this time, as such language potentially affects new persons, entities, or subjects other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay the adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

Section 186.6(j)(3): The commenter recommended adding a requirement that the Board obtain confirmation from an expired certificate holder's HR department that he or she is not working without a valid certificate. The Board does not believe it prudent to adopt the new rules with this amendment at this time, as such language potentially affects new persons, entities, or subjects other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay the adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

Section 186.7: The commenter repeated the recommendation made regarding this section in Comment No. 1. The Board does not believe it prudent to adopt the new rules with this amendment at this time, as such language potentially affects new persons, entities, or subjects other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay the adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

Section 186.8(e)(1): The commenter repeated the recommendation made regarding this section in Comment No. 1. The Board agrees in part and adopts the new rules with non-substantive changes reflecting the suggestion to remove the AARC from the list of certifying bodies. The Board disagrees with the remainder of the recommendation and declines to make further changes, as the language allows the Board to process applications if NBRC is succeeded by another certifying body in the future without requiring immediate rule changes.

Section 186.10: The commenter repeated the recommendation made regarding this section in Comment No. 1. The Board does not believe it prudent to adopt the new rules with this amendment at this time, as such language potentially affects new persons, entities, or subjects other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay the adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

The new rules are adopted under the authority of Texas Occupations Code Annotated §604.052, which authorizes the Board to adopt rules reasonably necessary to properly perform its duties under the Respiratory Care Practitioners Act.

§186.4.Procedural Rules and Qualifications for Certificate Applicants.

(a) Except as otherwise provided in this section, an individual applying for a respiratory care practitioner certificate issued by the advisory board must:

(1) submit an application on forms approved by the advisory board;

(2) pay the appropriate application fee as prescribed by the advisory board;

(3) successfully complete an approved four-year high school course of study or the equivalent as determined by the appropriate educational agency;

(4) successfully complete an educational program for respiratory care practitioners accredited by the Commission on Accreditation for Respiratory Care (CoARC) or other accrediting body approved by the advisory board, and hold a valid and current certification issued by the NBRC;

(5) certify that the applicant is mentally and physically able to function safely as a respiratory care practitioner;

(6) not have a license, certification, or registration as a respiratory care practitioner in this state or from any other licensing or certifying authority that is currently revoked or on suspension or the applicant is not subject to probation or other disciplinary action for cause;

(7) not have any proceeding that has been instituted against the applicant for the restriction, cancellation, suspension, or revocation of a certificate, permit, license, or other authority to practice respiratory care in any state, territory, Canadian province, country, or uniformed service of the United States in which it was issued;

(8) not have pending any prosecution against applicant in any state, federal, or international court for any offense that under the laws of this state is a felony, a misdemeanor that involves the practice of respiratory care, or a misdemeanor that involves a crime of moral turpitude;

(9) be of good professional character as defined under §186.2(15) of this chapter (relating to Definitions);

(10) submit a complete and legible set of fingerprints, on a form prescribed by the Medical Board, for the purpose of obtaining criminal history record information, as required by §604.1031 of the Act;

(11) submit to the board any other information the board considers necessary to evaluate the applicant's qualifications;

(12) meet any other requirement established by rules adopted by the advisory board;

(13) pass an independently evaluated respiratory care practitioner examination prepared by the NBRC; and

(14) pass the jurisprudence examination ("JP exam"), which shall be conducted on the certification requirements and other laws, rules, or regulations applicable to the respiratory care practitioner profession in this state. The jurisprudence examination shall be developed and administered as follows:

(A) The staff of the Medical Board shall prepare questions for the JP exam and provide a facility by which applicants can take the examination;

(B) Applicants must pass the JP exam with a score of 75 or better within three attempts;

(C) An examinee shall not be permitted to bring books, compends, notes, journals, calculators, "smart phones," cellular phones, or other devices or materials designed to assist examinee pass the exam into the examination room, nor be allowed to communicate by word or sign with another examinee while the examination is in progress without permission of the presiding examiner, nor be allowed to leave the examination room except when so permitted by the presiding examiner;

(D) Irregularities during an examination such as giving or obtaining unauthorized information or aid as evidenced by observation or subsequent statistical analysis of answer sheets, shall be sufficient cause to terminate an applicant's participation in an examination, invalidate the applicant's examination results, or take other appropriate action;

(E) An applicant who is unable to pass the JP exam within three attempts must appear before a committee of the advisory board to address the applicant's inability to pass the examination and to re-evaluate the applicant's eligibility for certification. It is at the discretion of the committee to allow an applicant additional attempts to take the JP exam; and

(F) A person who has passed the JP Exam shall not be required to retake the Exam for recertification, except as a specific requirement of the advisory board as part of an agreed order.

(b) The following documentation shall be submitted as a part of the certificate application process:

(1) Birth Certificate/Proof of Age. Each applicant for a certificate must provide a copy of a birth certificate and translation if necessary to prove that the applicant is at least 18 years of age. In instances where a birth certificate is not available the applicant must provide copies of a passport or other suitable alternate documentation.

(2) Name Change. Any applicant who submits documentation showing a name other than the name under which the applicant has applied must present certified copies of marriage licenses, divorce decrees, or court orders stating the name change. In cases where the applicant's name has been changed by naturalization, the applicant should send the original naturalization certificate by certified mail to the advisory board for inspection.

(3) Certification. Each applicant for a respiratory care practitioner certificate issued by the advisory board must submit:

(A) a letter of verification of current certification acceptable to the advisory board, sent directly from the certifying body, and

(B) a certificate of successful completion of an educational program submitted directly from the program on a form provided by the advisory board.

(4) Examination Scores. Each applicant for a respiratory care practitioner certificate issued by the advisory board must have a certified transcript of grades submitted directly from the appropriate testing service to the advisory board for all examinations accepted by the advisory board for issuance of a certificate. The advisory board must notify the applicant of the results of the examination in accordance with §604.1042 of the Act.

(5) Evaluations.

(A) All applicants must provide evaluations, on forms provided by the board, of their professional affiliations for the past three years or since graduation from an educational program described by subsection (a)(4) of this section, whichever is the shorter period.

(B) The evaluations must come from at least three supervisors or instructors who are either Texas state-certified respiratory care practitioners or licensed physicians and have each supervised the applicant's work experience.

(C) An exception to subparagraph (B) of this paragraph may be made for those applicants who provide adequate documentation that they have not been supervised by at least three licensed physicians or Texas state-certified respiratory care practitioners for the three years preceding the board's receipt of application or since graduation, whichever is the shorter period.

(6) Verification from other states. On request of Medical Board staff, an applicant must have any state, in which he or she has ever been certified or otherwise licensed as a respiratory care practitioner regardless of the current status of the certification or license, submit to the advisory board a letter verifying the status of the certificate or license and a description of any sanctions or pending disciplinary matters. The information must be sent directly from the state certifying or licensing entities. Such information may be considered in accordance with §604.106 of the Act.

(7) Arrest Records. If an applicant has ever been arrested, a copy of the arrest and arrest disposition must be requested from the arresting authority and that authority must submit copies of such records directly to the advisory board.

(8) Malpractice. If an applicant has ever been named in a malpractice claim filed with any liability carrier or if an applicant has ever been named in a malpractice suit, the applicant must:

(A) have each liability carrier complete a form furnished by this advisory board regarding each claim filed against the applicant's insurance;

(B) for each claim that becomes a malpractice suit, have the attorney representing the applicant in each suit submit a letter directly to the advisory board explaining the allegation, dates of the allegation, and current status of the suit. If the suit has been closed, the attorney must state the disposition of the suit, and if any money was paid, the amount of the settlement. The letter shall be accompanied by supporting documentation including court records if applicable. If such letter is not available, the applicant will be required to furnish a notarized affidavit explaining why this letter cannot be provided; and

(C) provide a statement, composed by the applicant, explaining the circumstances pertaining to patient care in defense of the allegations.

(c) Review and Recommendations by the Executive Director.

(1) The executive director or designee shall review each application for a respiratory care practitioner certificate and may determine whether an applicant is eligible for a certificate or refer an application to a committee of the advisory board for review.

(2) If the executive director or designee determines that the applicant clearly meets all requirements for a certificate, the executive director or designee may issue a certificate to the applicant, to be effective on the date issued without formal board approval, as authorized by §604.110 of the Act.

(3) If the executive director determines that the applicant does not clearly meet all requirements for a certificate as prescribed by the Act and this chapter, a certificate may be issued only upon action by the advisory board following a recommendation by the Practice Authorization Committee, in accordance with §604.110 and §604.209 of the Act and §187.13 of this title (relating to Informal Board Proceedings Relating to Licensure Eligibility). Not later than the 20th day after the date the applicant receives notice of the executive director's determination the applicant shall:

(A) request a review of the executive director's recommendation by a committee of the board conducted in accordance with §187.13 of this title; or

(B) withdraw his or her application.

(C) If an applicant fails to take timely action, as provided under this subsection, such inaction shall be deemed a withdrawal of his or her application.

(4) To promote the expeditious resolution of any certificate issuance matter, the executive director, with the approval of the board, may recommend that an applicant be eligible for a certificate, but only under certain terms and conditions, and may present a proposed agreed order or remedial plan to the applicant. Not later than the 20th day after the date the applicant receives notice of the executive director's recommendation, the applicant shall do one of the following:

(A) sign the order/remedial plan and the order/remedial plan shall be presented to the board for consideration and acceptance without initiating a disciplinary licensure investigation (as defined in §187.13 of this title) or appearing before a committee of the board concerning issues relating to certificate eligibility; or

(B) request a review of the executive director's recommendation by a committee of the board conducted in accordance with §187.13 of this title; or

(C) withdraw his or her application.

(D) If the applicant fails to take timely action, as provided under this subsection, such inaction shall be deemed a withdrawal of his or her application.

(d) Committee Referrals. An applicant who has either requested to appear before the Practice Authorization Committee of the advisory board or has elected to be referred to the Practice Authorization Committee of the board due to a determination of ineligibility by the executive director in accordance with this section, in lieu of withdrawing the application for a certificate, may be subject to a Disciplinary Licensure Investigation as defined by §187.13 of this chapter. Review of the executive director's determination by a committee of the board shall be conducted in accordance with §187.13 of this chapter.

(e) All respiratory care practitioner applicants shall provide sufficient documentation to the advisory board that the applicant has, on a full-time basis, actively practiced as a respiratory care practitioner, has been a student at an acceptable approved respiratory care practitioner program, or has been on the active teaching faculty of an acceptable approved respiratory care practitioner program, within either of the last two years preceding receipt of an application for a respiratory care practitioner certificate. The term "full-time basis," for purposes of this section, shall mean at least 20 hours per week for 40 weeks duration during a given year. Applicants who are unable to demonstrate active practice on a full time basis may, in the discretion of the advisory board, be eligible for an unrestricted certificate or a restricted certificate subject to one or more of the following conditions or restrictions as set forth in paragraphs (1) - (4) of this subsection:

(1) completion of approved continuing education in those topics specified by the advisory board;

(2) limitation and/or exclusion of the practice of the applicant to specified activities of the practice as a respiratory care practitioner;

(3) remedial education; and

(4) such other remedial or restrictive conditions or requirements which, in the discretion of the advisory board, are necessary to ensure protection of the public and minimal competency of the applicant to safely practice as a respiratory care practitioner.

(f) Applicants for a respiratory care practitioner certificate:

(1) whose applications have been filed with the advisory board in excess of one year will be considered expired. Any fee previously submitted with that application shall be forfeited unless otherwise provided by §175.5 of this title (relating to Payment of Fees or Penalties). Any further request for issuance of a certificate will require submission of a new application and inclusion of the current fee. An extension to an application may be granted under certain circumstances, including:

(A) delay by advisory board staff in processing an application;

(B) application requires Practice Authorization Committee review after completion of all other processing and will expire prior to the next scheduled meeting;

(C) Practice Authorization Committee requires an applicant to meet specific additional requirements for certification and the application will expire prior to deadline established by the Committee;

(D) applicant requires a reasonable, limited additional period of time to obtain documentation after completing all other requirements and demonstrating diligence in attempting to provide the required documentation;

(E) applicant is delayed due to unanticipated military assignments, medical reasons, or catastrophic events;

(2) who in any way falsify the application may be required to appear before the advisory board;

(3) on whom adverse information is received by the advisory board may be required to appear before the advisory board;

(4) shall be required to comply with the advisory board's rules and regulations which are in effect at the time the completed application form and fee are filed with the advisory board;

(5) may be required to sit for additional oral or written examinations that, in the opinion of the advisory board, are necessary to determine competency of the applicant;

(6) must have the application for a certificate complete in every detail 20 days prior to the advisory board meeting in which they are considered for approval. Applicants may qualify for a Temporary Permit prior to being considered by the advisory board for issuance of a certificate, as required by §186.7 of this chapter (relating to Temporary Permit);

(7) who previously held a Texas health care provider license, certificate, permit, or registration may be required to complete additional forms as required.

(g) Alternative Certification Procedure for Military Spouse:

(1) An applicant who is the spouse of a member of the armed forces of the United States assigned to a military unit headquartered in Texas may be eligible for alternative demonstrations of competency for certain Texas state-certification requirements. Unless specifically allowed in this subsection, an applicant must meet the requirements for certification as specified in this chapter.

(2) To be eligible, an applicant must be the spouse of a person serving on active duty as a member of the armed forces of the United States and meet one of the following requirements:

(A) holds an active unrestricted respiratory care practitioner certificate or license issued by another state that has certification or licensure requirements that are substantially equivalent to the requirements for a Texas respiratory care practitioner certificate; or

(B) within the five years preceding the application date, applicant must have held a respiratory care practitioner certificate in this state that expired and was cancelled for nonpayment while the applicant lived in another state for at least six months.

(3) Applications for a respiratory care practitioner certificate from applicants qualifying under paragraphs (1) and (2) of this subsection shall be expedited by the Medical Board's licensure division.

(4) Alternative Demonstrations of Competency Allowed. Applicants qualifying under paragraphs (1) and (2) of this subsection:

(A) in demonstrating compliance with subsection (e) of this section must only provide sufficient documentation to the advisory board that the applicant has, on a full-time basis, actively practiced as a respiratory care practitioner, has been a student at an acceptable approved respiratory care practitioner program, or has been on the active teaching faculty of an acceptable approved respiratory care practitioner program, within one of the last three years preceding receipt of an application for a respiratory care practitioner certificate;

(B) notwithstanding the one year expiration in subsection (f)(1) of this section, are allowed an additional 6 months to complete the application prior to it becoming inactive; and

(C) notwithstanding the 20 day deadline in subsection (f)(6) of this section, may be considered for a certificate up to 5 days prior to the advisory board meeting.

(h) Applicants with Military Experience.

(1) For applications filed on or after March 1, 2014, the advisory board shall, with respect to an applicant who is a military service member or military veteran as defined in §186.2 of this chapter (relating to Definitions), credit verified military service, training, or education toward the certification requirements, other than an examination requirement, for a respiratory care practitioner certificate issued by the advisory board.

(2) This section does not apply to an applicant who:

(A) has had a respiratory care practitioner certificate or license suspended or revoked by another state or a Canadian province;

(B) holds a respiratory care practitioner certificate or license issued by another state or a Canadian province that is subject to a restriction, disciplinary order, or probationary order; or

(C) has an unacceptable criminal history.

(i) Re-Application for Certificate Prohibited. A person who has been determined ineligible for a respiratory care practitioner certificate by the Practice Authorization Committee may not reapply for a certificate prior to the expiration of one year from the date of the advisory board's ratification of the Practice Authorization Committee's determination of ineligibility and denial of a certificate.

§186.8.Inactive Certificate.

(a) A respiratory care practitioner may have a certificate placed on inactive status by applying to the advisory board. A respiratory care practitioner with an inactive certificate is excused from paying renewal fees on the certificate and may not practice as a respiratory care practitioner in Texas.

(b) In order for a respiratory care practitioner certificate holder to be placed on inactive status, the certificate must be in good standing.

(c) A certificate holder who practices as a respiratory care practitioner in Texas while on inactive status is considered to be practicing without a certificate.

(d) A respiratory care practitioner may return to active status by applying to the advisory board, paying an application fee equal to an application fee for a respiratory care practitioner certificate, complying with the requirements for certificate renewal under the Act, providing current verifications from each state in which the respiratory care practitioner holds a certificate or license, demonstrating current certification by NBRC, submitting professional evaluations from each employment held after the certificate was placed on inactive status, and complying with subsection (e) of this section.

(e) A respiratory care practitioner applicant applying to return to active status shall provide sufficient documentation to the advisory board that the applicant has, on a full-time basis as defined in §186.4(e) of this chapter (relating to Procedural Rules and Qualifications for Certificate Applicants), actively practiced as a respiratory care practitioner or has been on the active teaching faculty of an acceptable approved respiratory care practitioner program, within either of the two years preceding receipt of an application for reactivation. Applicants who do not meet this requirement may, in the discretion of the advisory board, be eligible for the reactivation of a certificate subject to one or more of the following conditions or restrictions as set forth in paragraphs (1) - (5) of this subsection:

(1) current certification by the NBRC or such other certifying body acceptable to the board;

(2) completion of approved continuing education in topics specified by the advisory board;

(3) limitation and/or exclusion of the practice of the applicant to specified activities of the practice as a respiratory care practitioner;

(4) remedial education; and/or

(5) such other remedial or restrictive conditions or requirements which, in the discretion of the advisory board, are necessary to ensure protection of the public and minimal competency of the applicant to safely practice as a respiratory care practitioner.

(f) After five years on inactive status, the certificate shall be canceled as if by request. The respiratory care practitioner may obtain a new certificate by complying with the requirements and procedures for obtaining an original certificate.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 14, 2017.

TRD-201701061

Mari Robinson, J.D.

Executive Director

Texas Medical Board

Effective date: April 3, 2017

Proposal publication date: November 11, 2016

For further information, please call: (512) 305-7016


CHAPTER 194. NON-CERTIFIED RADIOLOGIC TECHNICIANS

The Texas Medical Board on behalf of the Texas Board of Medical Radiologic Technology (Board) adopts the repeal of §§194.1 - 194.9 and 194.11, concerning Non-Certified Radiologic Technicians, and adopts new Subchapter A, §§194.1 - 194.33, concerning Certificate Holders, Non-Certified Technicians, and Other Authorized Individuals or Entities, and new Subchapter B, §§194.34 - 194.43, concerning Non-Certified Technicians Supervised by Physicians. The repeal of §§194.1 - 194.9 and 194.11 and new §§194.1, 194.3 - 194.5, 194.7 - 194.9, 194.11 - 194.15, 194.17, 194.19 - 194.22, 194.24 - 194.34 and 194.40 - 194.43 are adopted without changes to the proposed text as published in the November 4, 2016, issue of the Texas Register (41 TexReg 8709) and will not be republished. New §§194.2, 194.6, 194.10, 194.16, 194.18, 194.23 and 194.35 - 194.39 are adopted with non-substantive changes and will be republished. The non-substantive changes made to the adopted rules respond to public comments or otherwise reflect non-substantive variations from the proposed amendments. The Board's General Counsel has advised that the non-substantive changes affect no new persons, entities, or subjects, other than those given notice through publication and do not materially alter the issues raised in the notice. Accordingly, republication of the adopted sections as proposed amendments for a new notice and comment period is not required. The text of the rules with adopted non-substantive changes to originally published text will be republished. The Medical Board approved the Board's repeal and adoption of the new rules at its meeting held on March 3, 2017.

The new rules under Chapter 194 are adopted in accordance with the changes to Chapter 601 of the Texas Occupations Code enacted by Senate Bill 202, 84th Legislature Regular Session (2015), and are necessary to enable the MRT Board to perform the necessary regulatory program functions, including licensure, enforcement, and disciplinary action or remedial plan compliance.

The adopted new rules under Chapter 194 amend the chapter's title and add new §§194.1 - 194.43, delineating regulations related to the medical radiologic technology regulatory program functions. The language in existing §§194.1 - 194.9 and 194.11 has been relocated to new §§194.34 - 194.43. The adoption adds rules that establish qualifications, procedures, requirements and processes that enable the MRT Board to regulate the practice of medical radiologic technology. Remaining existing rules related to registration and physician supervision of non-certified technicians are renumbered under new Subchapter B to reflect the addition of the new rules.

The adopted new rules align processes and procedures related to regulating the practice of medical radiologic technology with the Medical Board's current processes and procedures. The new rules further enable the Medical Board to perform the various administrative support functions related to licensing, compliance, and enforcement. The new rules benefit the public by setting forth practice and licensing requirements as they pertain to medical radiologic technologists, non-certified technicians, training programs, instructors, and other individuals regulated by the Act. The rules clarify the MRT Board's authority and help insure the safe practice of medical radiologic technology in Texas. Moreover, the new rules provide a mechanism for individuals regulated under the Act to obtain treatment through the Texas Physician Health Program for health conditions that impair that individual's practice. The new rules are organized to assist the public and the regulated community in easily locating rules and regulations specific to licensing, compliance, and enforcement related to the practice of medical radiologic technology in Texas.

Summary of Comments

The Board of Medical Radiologic Technology received written comments from an individual and the Coalition for Nurses of Advanced Practice (CNAP). No one appeared to testify at the public hearing held on February 10, 2017 regarding the proposed new rules, or at the Medical Board's meeting held on March 3, 2017.

Commenter No. 1 - Individual

Section 194.2: The individual recommended adding two definitions under §194.2, relating to Definitions, that define "chiropractor", and "Joint Review Committee on Education in Cardiovascular Technology", both terms that were published in other sections of the proposed new rules, but not included in §194.2. The Board agrees and adopts the new rules with non-substantive changes adding those definitions.

Section 194.3: The individual recommended adding language that would create an education committee and allow the assistant presiding officer to be removed by majority vote. The Board disagrees that it would be prudent to adopt the new rules with this amendment at this time, as such language potentially affects new persons, entities, or subjects, other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

Section 194.5: The individual recommended deleting language providing for an exemption from certification for properly trained individuals performing medical radiologic procedures in a hospital if the hospital participates in the federal Medicare program or is accredited by the Joint Commission on Accreditation of Hospitals. The individual stated that the Joint Commission and Medicare do not set standards for such procedures and that other standards set forth by the Environmental Protection Agency recommend state licensure for individuals completing such procedures. The Board disagrees that the language should be deleted, as it is based upon Texas Occupations Code §601.154, which sets forth the exemption and tracks the statute's language.

Section 194.6: The individual recommends deleting language providing for a provisional certificate, stating that such certification is not used. The Board declines to delete this language, as the same language providing for such certification is found at §601.109 of the Texas Occupations Code. Including the language will ensure that individuals will not be required to review more than one source to understand the provisions of the regulatory program.

Section 194.7: The individual recommended deleting language providing for continuing education carry-overs, stating that such carry-overs may risk knowledge about current trends and practice stagnating. The Board disagrees that it would be prudent to adopt the new rules with this amendment at this time, as such language potentially affects new persons, entities, or subjects, other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

Section 194.13: The individual recommended adding language requiring an examination for individuals applying for placement on the Board's general registry for non-certified technicians. The Board disagrees that it would be prudent to adopt the new rules with this amendment at this time, as such language potentially affects new persons, entities, or subjects, other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

Section 194.21: The individual recommends adding language providing for the scope of an individual who holds a general certificate and a podiatric medical assistant registered with the Board to perform radiologic procedures. The Board disagrees that it would be prudent to adopt the new rules with this amendment at this time, as such language potentially affects new persons, entities, or subjects, other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

Commenter No. 2 - CNAP

Section 194.2: CNAP recommended amending the definition for "practitioner", so that the definition would state that a holder of the named license types "prescribes and directs, supervises, or performs" radiologic procedures. The Board disagrees that it would be prudent to adopt the new rules with this amendment at this time, as the language proposed tracks the statutory definition. Further, such language potentially affects new persons, entities, or subjects, other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

Section 194.22: CNAP recommended adding language clarifying the list of behaviors that constitutes unprofessional conduct. The Board disagrees that it would be prudent to adopt the new rules with this amendment at this time. Such language potentially affects new persons, entities, or subjects, other than those given notice through publication, and may materially alter the issues raised in the notice, requiring publication as a proposed amendment for a new notice and comment period. The Board declines to publish the language as proposed amendments for an additional period of notice and comment, as it would unduly delay adoption of the new rules. The Board may bring this language for consideration at future stakeholder meetings.

Subchapter B: CNAP recommends amending the proposed language so that it will reflect changes made by Senate Bill 202, 84th Legislative Regular Session (2015) to Chapter 601 of the Texas Occupations Code. Based upon the approval of the Texas Medical Board, which promulgated language relocated to Subchapter B, the proposed rules are adopted with non-substantive "clean-up" changes to reflect amendments to Chapter 601 made by Senate Bill 202.

22 TAC §§194.1 - 194.9, 194.11

The repeals are adopted under the authority of Texas Occupations Code Annotated, §601.052, which authorizes the Board to adopt rules reasonably necessary to properly perform its duties, regulate the practice of medical radiologic technology in this state; and establish rules related to certification.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 14, 2017.

TRD-201701062

Mari Robinson, J.D.

Executive Director

Texas Medical Board

Effective date: April 3, 2017

Proposal publication date: November 4, 2016

For further information, please call: (512) 305-7016


SUBCHAPTER A. CERTIFICATE HOLDERS, NON-CERTIFIED TECHNICIANS, AND OTHER AUTHORIZED INDIVIDUALS OR ENTITIES

22 TAC §§194.1 - 194.33

The new rules are adopted under the authority of Texas Occupations Code Annotated, §601.052, which authorizes the Board to adopt rules reasonably necessary to properly perform its duties, regulate the practice of medical radiologic technology in this state; and establish rules related to certification.

§194.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) ABHES--Accrediting Bureau of Health Education Schools.

(2) Act--The Medical Radiologic Technologist Certification Act, Texas Occupations Code, Chapter 601.

(3) Active duty--A person who is currently serving as full-time military service member in the armed forces of the United States or active duty military service as a member of the Texas military forces, as defined by §437.001, Government Code, or similar military service of another state.

(4) Agency--The divisions, departments, and employees of the board, Texas Medical Board, Texas Physician Assistant Board, Texas State Board of Acupuncture Examiners, Medical Physicist Licensure Advisory Committee; Perfusionist Licensure Advisory Committee; and Texas Board of Respiratory Care.

(5) APA--The Administrative Procedure Act, Texas Government Code, Chapter 2001 as amended.

(6) Applicant--A person who files an application with the board for a certificate, including a temporary certificate, general, limited, or a provisional certificate; or a person or program who files an application with the board for approval to act as an instructor or educational program.

(7) Armed forces of the United States--Army, Navy, Air Force, Coast Guard, or Marine Corps of the United States or a reserve unit of one of those branches of the armed forces.

(8) ARRT--The American Registry of Radiologic Technologists and its predecessor or successor organizations.

(9) ASRT--The American Society of Radiologic Technologists and its predecessor or successor organizations.

(10) Board--The Texas Board of Medical Radiologic Technology.

(11) Cardiovascular (CV)--Limited to radiologic procedures involving the use of contrast media and or ionizing radiation for the purposes of diagnosing or treating a disease or condition of the cardiovascular system.

(12) Certificate--A medical radiologic technologist certificate, general, limited or provisional, issued by the board.

(13) Chiropractor--A person who is licensed by the Texas Board of Chiropractic Examiners as a doctor of chiropractic.

(14) Dentist--A person who is licensed by the Texas State Board of Dental Examiners as a doctor of dentistry.

(15) Direct supervision--Supervision and control by a medical radiologic technologist or a practitioner who:

(A) assumes legal liability for a student employed to perform a radiologic procedure and enrolled in a program that meets the requirements adopted under Texas Occupations Code Section 601.052; and

(B) is physically present during the performance of the radiologic procedure to provide consultation or direct the action of the student.

(16) Education program--Clinical training or any other program offered by an organization approved by the advisory board that:

(A) has a specified objective;

(B) includes planned activities for participants; and

(C) uses an approved method for measuring the progress of participants.

(17) Executive director--The executive director of the Agency or the authorized designee of the executive director.

(18) Federally qualified health center (FQHC)--A health center as defined by 42 United States Code, §1396d(L)(2)(B).

(19) Fluorography--Hard copy of a fluoroscopic image; also known as spot films.

(20) Fluoroscopy--The practice of examining tissues using a fluorescent screen, including digital and conventional methods.

(21) General certification--An authorization to perform radiologic procedures.

(22) Good professional character--An applicant for licensure must not be in violation of or have committed any act described in the Medical Radiologic Technologist Certification Act, §§601.302-.303, Texas Occupations Code Annotated.

(23) Hospital--A facility that:

(A) is:

(i) a general hospital or a special hospital, as those terms are defined by §241.003, Health and Safety Code, including a hospital maintained or operated by the state; or

(ii) a mental hospital licensed under Chapter 577, Health and Safety Code; and

(B) has an organized medical staff.

(24) Instructor--An individual approved by the board to provide instruction and training in the discipline of medical radiologic technology in an educational setting.

(25) JRCCVT--The Joint Review Committee on Education in Cardiovascular Technology.

(26) JRCERT--The Joint Review Committee on Education in Radiologic Technology.

(27) JRCNMT--The Joint Review Committee on Educational Programs in Nuclear Medicine Technology.

(28) Limited certification--An authorization to perform radiologic procedures that are limited to specific parts of the human body.

(29) Limited medical radiologic technologist (LMRT)--A person who holds a limited certificate issued under the Act, and who under the direction of a practitioner, intentionally administers radiation to specific parts of the bodies of other persons for a medical purpose. The limited categories are the skull, chest, spine, extremities, podiatric, chiropractic and cardiovascular. The term does not include a practitioner.

(30) Medical Board--The Texas Medical Board.

(31) Medical radiologic technologist (MRT)--A person who holds a general certificate issued under the Act, and who under the direction of a practitioner, intentionally administers radiation to other persons for medical purpose. The term does not include a practitioner.

(32) Military service member--A person who is on active duty.

(33) Military spouse--A person who is married to a military service member.

(34) Military veteran--A person who served on active duty and who was discharged or released from active duty.

(35) Mobile service operation--The provision of radiation machines and personnel at temporary sites for limited time periods. The radiation machines may be fixed inside a motorized vehicle or may be a portable radiation machine that may be removed from the vehicle and taken into a facility for use.

(36) NMTCB--Nuclear Medicine Technology Certification Board and its successor organizations.

(37) Non-certified technician (NCT)--A person who has completed a training program approved by the board and who is registered with the board under this chapter. An NCT may not perform a radiologic procedure which has been identified as dangerous or hazardous.

(38) Open Meetings Act--Texas Government Code Annotated, Chapter 551 as amended.

(39) Party--The board and each person named or admitted as a party in a hearing before the State Office of Administrative Hearings.

(40) Pediatric--Pertaining to radiologic procedures performed on a person who is between the age range of fetus to age 18 or as otherwise defined by Texas law, when the growth and developmental processes are generally complete. These rules do not prohibit a practitioner from taking into account the individual circumstances of each patient and determining if the upper age limit requires variation by not more than two years.

(41) Physician--A person licensed by the Texas Medical Board as a doctor of medicine or osteopathy.

(42) Physician assistant--A person licensed by the Texas Physician Assistant Board to practice as a physician assistant.

(43) Podiatrist--A person licensed by the Texas State Board of Podiatric Medical Examiners as a doctor of podiatry.

(44) Practitioner--A chiropractor, dentist, physician, or podiatrist who prescribes radiologic procedures for other persons.

(45) Presiding Officer--The person designated by the Governor to serve as the presiding officer of the board.

(46) Provisional medical radiologic technologist (PMRT)--A person who holds a provisional certificate issued under the Act, and who, under the direction of a practitioner, intentionally administers radiation to other persons for a medical purpose. The authorization to perform radiologic procedures under the provisional certificate shall not exceed 180 days from date of the certificate's issuance. The term does not include a practitioner.

(47) Radiation--Ionizing radiation:

(A) in amounts beyond normal background levels; and

(B) from a source such as a medical or dental radiologic procedure.

(48) Radiologic procedure--A procedure or article, including a diagnostic X-ray or a nuclear medicine procedure, that:

(A) is intended for use in:

(i) the diagnosis of disease or other medical or dental conditions in humans; or

(ii) the cure, mitigation, treatment, or prevention of disease in humans; and

(B) achieves its intended purpose through the emission of ionizing radiation.

(49) Radiologic technology--The administration of radiation to a person for a medical purpose.

(50) Registered nurse--A person licensed by the Texas Board of Nursing to practice professional nursing.

(51) Registry--A list of names and other identifying information of non-certified technicians registered with the board.

(52) SACS--The Southern Association of Colleges and Schools, Commission on Colleges.

(53) Sponsoring institution--A hospital, educational, other facility, or a division thereof, that offers or intends to offer a course of study in medical radiologic technology.

(54) State--Any state, territory, or insular possession of the United States and the District of Columbia.

(55) Submit--The term used to indicate that a completed item has been actually received and date-stamped by the board along with all required documentation and fees, if any.

(56) Supervision--Responsibility for and control of quality, radiation safety and protection, and technical aspects of the application of ionizing radiation to human beings for diagnostic and/or therapeutic purposes.

(57) Temporary certification, general or limited--An authorization to perform radiologic procedures for a limited period, not to exceed one year.

(58) X-ray equipment--An x-ray system, subsystem, or component thereof. For the purposes of this rule, the types of X-ray equipment are as follows:

(A) portable X-ray equipment--X-ray equipment mounted on a permanent base with wheels and/or casters for moving while completely assembled. Portable X-ray equipment may also include equipment designed to be hand-carried;

(B) stationary X-ray equipment--X-ray equipment that is installed in a fixed location; or

(C) mobile stationary X-ray equipment--X-ray equipment that is permanently affixed to a motor vehicle or trailer with appropriate shielding.

§194.6.Procedural Rules and Minimum Eligibility Requirements for Applicants for a Certificate or Placement on the Board's Non-Certified Technician General Registry.

(a) Except as otherwise provided in this chapter, an individual must be certified or hold a temporary certificate as a medical radiologic technologist or limited radiologic technologist, or be placed by the board on the general registry for non-certified technicians before the individual may perform a radiologic procedure.

(b) Types of Certificates. The board shall issue general certificates, limited certificates, temporary certificates (general or limited), or provisional certificates.

(c) General Requirements. Except as otherwise required in this section, an applicant for temporary or regular certification as a MRT or LMRT, or registration as a NCT must:

(1) graduate from high school or its equivalent as determined by the Texas Education Agency;

(2) attain at least 18 years of age;

(3) submit an application on a form prescribed by the board;

(4) pay the required application fee, as set forth under Chapter 175 of this title (relating to Fees and Penalties);

(5) provide a complete and legible set of fingerprints, on a form prescribed by the board, to the board or to the Department of Public Safety for the purpose of obtaining criminal history record information from the Department of Public Safety and the Federal Bureau of Investigation;

(6) certify that the applicant is mentally and physically able to perform radiologic procedures;

(7) not have a license, certification, or registration in this state or from any other licensing authority or certifying professional organization that is currently revoked, suspended, or subject to probation or other disciplinary action;

(8) not have proceedings that have been instituted against the applicant for the restriction, cancellation, suspension, or revocation of certificate, license, or authority to perform radiologic procedures in the state, a Canadian province, or the uniformed service of the United States in which it was issued; unless the board takes that fact into consideration in determining whether to issue the certificate;

(9) not have pending any prosecution against applicant in any state, federal, or international court for any offense that under the laws of this state is a felony or a misdemeanor that involves a crime of moral turpitude;

(10) be of good professional character as defined under §194.2 of this chapter (relating to Definitions);

(11) submit to the board any other information the board considers necessary to evaluate the applicant's qualifications; and

(12) meet any other requirement established by rules adopted by the board.

(d) Additional Requirements for Specific Certificate Types or Placement on the Board's Non-Certified Technician General Registry.

(1) General medical radiologic technologist certificate. In addition to meeting requirements under subsection (c) of this section, to qualify for a general certificate, an applicant must meet at least one of the following requirements:

(A) possession of current national certification as a registered technologist, radiographer, radiation therapist, or nuclear medicine technologist by ARRT;

(B) successful completion of the ARRT's examination in radiography, radiation therapy, or nuclear medicine technology;

(C) possession of current national certification as a nuclear medicine technologist by the NMTCB;

(D) successful completion of the NMTCB's examination in nuclear medicine technology; or

(E) current licensure, certification, or registration as a medical radiologic technologist in another state, the District of Columbia, or a territory of the United States whose requirements are more stringent than or are substantially equivalent to the requirements for Texas general certification.

(2) Limited medical radiologic technologist certificate. In addition to meeting requirements under subsection (c) of this section, to qualify for a limited certificate, an applicant must meet at least one of the following requirements:

(A) the successful completion of a limited course of study as set out in §194.12 of this chapter (relating to Standards for the Approval of Certificate Program Curricula and Instructors) and the successful completion of the appropriate limited examination in accordance with subsection (e) of this section;

(B) current licensure, certification, or registration as an LMRT in another state, the District of Columbia, or a territory of the United States of America whose requirements are more stringent than or substantially equivalent to the requirements for Texas limited certification; or

(C) current general certification as an MRT issued by the board. The MRT must surrender the general certificate and submit a written request for a limited certificate indicating the limited categories requested.

(3) Temporary general medical radiologic technologist. In addition to meeting requirements under subsection (c) of this section, to qualify for a temporary general certificate, an applicant must meet at least one of the following requirements:

(A) successful completion of a course of study in radiography, radiation therapy, or nuclear medicine technology which is accredited by an agency which is recognized by:

(i) the Council for Higher Education Accreditation, including but not limited to: the Joint Committee on Education in Nuclear Medicine Technology (JRCNMT); or

(ii) the United States Secretary of Education, including, but not limited to: the Joint Review Committee on Education in Radiologic Technology (JRCERT), Accrediting Bureau of Health Education Schools, or the Southern Association of Colleges and Schools, Commission on Colleges;

(B) be approved by the ARRT as examination eligible;

(C) be approved by the NMTCB as examination eligible;

(D) be currently licensed or otherwise registered as an MRT in another state, the District of Columbia, or a territory of the United States whose requirements are more stringent than or substantially equivalent to the Texas requirements for certification at the time of application to the board; or

(E) have completed education, training and clinical experience which is substantially equivalent to that of an accredited educational program in radiography as listed in subparagraph (A) of this paragraph.

(4) Temporary limited medical radiologic technologist. In addition to meeting requirements under subsection (c) of this section, to qualify for a temporary limited certificate, an applicant must meet at least one of the following requirements:

(A) successful completion of a limited certificate program in the categories of skull, chest, spine, abdomen or extremities, which is approved in accordance with §194.12 of this chapter;

(B) current enrollment in a general certificate program approved in accordance with §194.12 of this chapter and the issuance of a certificate of completion by the program signifying completion of classroom instruction, clinical instruction, evaluations and competency testing in all areas included in the limited curriculum; or

(C) be currently licensed or otherwise registered as an LMRT in another state, the District of Columbia, or a territory of the United States whose requirements are more stringent than or substantially equivalent to the Texas requirements for certification at the time of application to the board.

(5) Provisional medical radiologic technologist.

(A) To qualify for a provisional general certificate, an applicant must:

(i) be currently licensed or certified in another jurisdiction;

(ii) have been licensed or certified in good standing as a MRT for at least two years in another jurisdiction, including a foreign country, that has licensing or certification requirements substantially equivalent to the requirements of the Act;

(iii) pass a national or other examination recognized by the board relating to the practice of radiologic technology;

(iv) provide a complete and legible set of fingerprints, on a form prescribed by the board, to the board or to the Department of Public Safety for the purpose of obtaining criminal history record information from the Department of Public Safety and the Federal Bureau of Investigation; and

(v) be sponsored by a medical radiologic technologist certified by the board under the Act with whom the provisional certificate holder will practice during the time the person holds a provisional certificate.

(B) A provisional certificate is valid until the date the board approves or denies the provisional certificate holder's application for a certificate.

(C) The board must approve or deny a provisional certificate holder's application for a certificate not later than the 180th day after the date the provisional certificate is issued. The board may extend the 180-day period if the results of an examination have not been received by the board before the end of that period.

(6) Placement on the Non-Certified Technician General Registry.

(A) Registration Required. In accordance with §601.202 of the Act, a person who intentionally uses radiologic technology, other than a certificate holder, person performing procedures under the supervision of a dentist, physician assistant, or registered nurse, must register with the board prior to performing any procedures.

(B) In addition to meeting the requirements under subsection (c) of this section, to qualify for placement on the board's NCT General Registry, an applicant must successfully complete a training program approved by the board in accordance with §194.13 of this chapter (relating to Mandatory Training Programs for Non-Certified Technicians) or §194.15 of this chapter (relating to Bone Densitometry Training).

(e) Examinations Required for Certification.

(1) Jurisprudence examination. An applicant for a certificate must pass the jurisprudence examination ("JP exam"), which shall be conducted on the certification requirements and other laws, rules, or regulations applicable to the medical radiologic technologist profession in this state. The JP exam shall be developed and administered as follows:

(A) The staff of the Medical Board shall prepare questions for the JP exam and provide a facility by which applicants can take the examination.

(B) An examinee shall not be permitted to bring books, compends, notes, journals, calculators or other documents or devices into the examination room, nor be allowed to communicate by word or sign with another examinee while the examination is in progress without permission of the presiding examiner, nor be allowed to leave the examination room except when so permitted by the presiding examiner.

(C) Irregularities during an examination such as giving or obtaining unauthorized information or aid as evidenced by observation or subsequent statistical analysis of answer sheets, shall be sufficient cause to terminate an applicant's participation in an examination, invalidate the applicant's examination results, or take other appropriate action.

(D) Applicants must pass the JP exam with a score of 75 or better within three attempts.

(E) An applicant who is unable to pass the JP exam within three attempts must appear before a committee of the board to address the applicant's inability to pass the examination and to re-evaluate the applicant's eligibility for certification. It is at the discretion of the committee to allow an applicant additional attempts to take the JP exam.

(F) A person who has passed the JP exam shall not be required to retake the exam for re-licensure, except as a specific requirement of the board as part of an agreed order.

(2) Examinations accepted for certification.

(A) Examination eligibility.

(i) Persons who qualify under subsection (d)(1) of this section are not required to be reexamined for state certification.

(ii) Holders of a temporary general certificate or temporary limited certificate may take the appropriate examination provided the person complies with the requirements of the Act and this chapter.

(B) General certificate. The following examinations are accepted for a general certificate application:

(i) NMTCB examination in nuclear medicine technology; or

(ii) The appropriate ARRT examination in radiography, nuclear medicine technology, or radiation therapy. Determination of the appropriate examination shall be made on the basis of the type of educational program completed by the applicant for a general certificate.

(C) Limited certificate.

(i) The following examinations are accepted for a limited certificate application: Successful completion of the appropriate examination, including the core knowledge component, as follows:

(I) skull--the ARRT examination for the limited scope of practice in radiography (skull);

(II) chest--the ARRT examination for the limited scope of practice in radiography (chest);

(III) spine--the ARRT examination for the limited scope of practice in radiography (spine);

(IV) extremities--the ARRT examination for the limited scope of practice in radiography (extremities);

(V) chiropractic--the ARRT examinations for the limited scope of practice in radiography (spine and extremities);

(VI) podiatric--the ARRT examination for the limited scope of practice in radiography (podiatry); or

(VII) cardiovascular--the Cardiovascular Credentialing International invasive registry examination.

(ii) Applicants approved for the limited certification examination will be allowed three attempts to pass the examination, within one year from the issuance of the applicants' temporary limited certificate. Individuals who fail to pass within the required number of attempts or one-year-period will no longer be eligible for additional attempts, except as provided in clause (iii) of this subparagraph.

(iii) Notwithstanding clause (ii) of this subparagraph, an applicant who fails to pass the examination within the required number of attempts or within the one-year-period may obtain approval for one additional attempt, if the individual successfully completes a review course of no less than 60 hours of continuing education in length, offered by an approved program under §194.12 of this chapter. The additional attempt must be made no later than one year from the date of the board's approval granted. Those failing to attempt or pass the examination within the additional one-year period allowed shall no longer be eligible for additional attempts at passage, and shall only be eligible for state examination attempts for the purpose of state limited certification by again successfully completing an approved program under §194.12 of this chapter.

(3) Examination schedules. A schedule of examinations indicating the date(s), location(s), fee(s) and application procedures shall be provided by the board or organization administering the examination(s).

(4) Standards of acceptable performance. The scaled score to determine pass or fail performance shall be 75. For the cardiovascular limited certificate, the Cardiovascular Credentialing International examinations (Cardiovascular Science Examination and/or the Invasive Registry Examination as required to obtain the Registered Cardiovascular Invasive Specialist RCIS credential) the scaled score to determine pass or fail performance shall be 70.

(5) Completion of examination application forms. Each applicant shall be responsible for completing and transmitting appropriate examination application forms and paying appropriate examination fees by the deadlines set by the board or organization administering the examinations prescribed by the board.

(6) Examination Results.

(A) Notification to examinees. Results of an examination prescribed by the board but administered under the auspices of another organization will be communicated to the applicant by the board, unless the contract between the board and that organization provides otherwise.

(B) Score release. The applicant is responsible for submitting a signed score release to the examining agency or organization or otherwise arranging to have examination scores forwarded to the board.

(C) Deadlines. The board shall notify each examinee of the examination results within 14 days of the date the board receives the results. If notice of the examination results will be delayed for longer than 90 days after the examination date, the board shall notify the person of the reason for the delay before the 90th day. The board may require a testing service to notify a person of the results of the person's examination.

(7) Refunds. Examination fee refunds will be in accordance with policies and procedures of the board or the organization prescribed by the board to administer an examination. No refunds will be made to examination candidates who fail to appear for an examination.

(f) Documentation. The following documentation shall be submitted as a part of the certification application process:

(1) Name Change. Any applicant who submits documentation showing a name other than the name under which the applicant has applied must present certified copies of marriage licenses, divorce decrees, or court orders stating the name change. In cases where the applicant's name has been changed by naturalization the applicant should send the original naturalization certificate by certified mail to the board for inspection.

(2) ARRT or NMTCB-Certified or Considered Exam Eligible. For applicants certified by ARRT or NMTCB or considered examination eligible by such organizations, the applicant must provide a letter of verification of current certification or examination eligibility sent directly from ARRT or NMTCB, as applicable.

(3) Training Program Certification. For applicants who are graduates of a program accepted by the board for certification under §194.12 of this chapter, §194.13 of this chapter, or §194.14 of this chapter, each applicant must have a certificate of successful completion of an educational program submitted directly from a program accepted by the board for certification, on a form provided by the board.

(4) Examination Scores. Each applicant for certification must have a certified transcript of grades submitted directly from the appropriate testing service to the board for all examinations accepted by the board for certification.

(5) Verification from other states. On request of board staff, an applicant must have any state, in which he or she has ever been registered, certified, or licensed as any type of healthcare provider regardless of the current status of the registration, certification, or license, submit to the board a letter verifying the status of the registration, certification, or license and a description of any sanctions or pending disciplinary matters. The information must be sent directly to the board from the state licensing entities.

(6) Arrest Records. If an applicant has ever been arrested, a copy of the arrest and arrest disposition must be requested by the applicant to arresting authority, and that authority must submit copies directly to the board.

(7) Malpractice. If an applicant has ever been named in a malpractice claim filed with any liability carrier or if an applicant has ever been named in a malpractice suit, the applicant must:

(A) have each liability carrier complete a form furnished by this board regarding each claim filed against the applicant's insurance, as applicable;

(B) for each claim that becomes a malpractice suit, have the attorney representing the applicant in each suit submit a letter directly to the board explaining the allegation, dates of the allegation, and current status of the suit. If the suit has been closed, the attorney must state the disposition of the suit, and if any money was paid, the amount of the settlement. The letter shall be accompanied by supporting documentation including court records if applicable. If such letter is not available, the applicant will be required to furnish a notarized affidavit explaining why this letter cannot be provided; and

(C) compose and provide a statement explaining the circumstances pertaining to patient care in defense of the allegations.

(8) Additional Documentation. An applicant must submit additional documentation as is deemed necessary to facilitate the investigation of any application for certification.

(g) Review and Recommendations by the Executive Director.

(1) The executive director or designee shall review applications for certification or other authorization and may determine whether an applicant is eligible for certification or other authorization, or refer an application to a committee of the board for review.

(2) If the executive director or designee determines that the applicant clearly meets all requirements, the executive director or designee, may issue a certificate or other authorization to the applicant, to be effective on the date issued without formal board approval, as authorized by §601.052 of the Act.

(3) If the executive director determines that the applicant does not clearly meet all certification or other authorization requirements as prescribed by the Act and this chapter, a certificate or other authorization may be issued only upon action by the board following a recommendation by the Licensure Committee, in accordance with §§601.052 of the Act and §187.13 of this title (relating to Informal Board Proceedings Relating to Licensure Eligibility). Not later than the 20th day after the date the applicant receives notice of the executive director's determination the applicant shall:

(A) request a review of the executive director's recommendation by a committee of the board conducted in accordance with §187.13 of this title; or

(B) withdraw his or her application.

(C) If an applicant fails to take timely action, as provided under this subsection, such inaction shall be deemed a withdrawal of his or her application.

(4) To promote the expeditious resolution of any matter concerning an application for certification or other authorization, the executive director, with the approval of the board, may recommend that an applicant be eligible for a certificate or other authorization under certain terms and conditions and present a proposed agreed order or remedial plan to the applicant. Not later than the 20th day after the date the applicant receives notice of the executive director's recommendation for an agreed order or remedial plan, the applicant shall do one of the following:

(A) sign the order or remedial plan and the order/remedial plan shall be presented to the board for consideration and acceptance without initiating a Disciplinary Licensure Investigation (as defined in §187.13 of this title) or appearing before a committee of the board concerning issues relating to licensure eligibility; or

(B) request a review of the executive director's recommendation by a committee of the board conducted in accordance with §187.13 of this title; or

(C) withdraw his or her application.

(D) If an applicant fails to take timely action, as provided under this subsection, such inaction shall be deemed a withdrawal of his or her application.

(h) Committee Referrals. An applicant who has either requested to appear before the licensure committee of the board or has elected to be referred to the licensure committee of the board due to a determination of ineligibility by the executive director in accordance with section, in lieu of withdrawing the application for certification, may be subject to a Disciplinary Licensure Investigation as defined in §187.13 of this title. Review of the executive director's determination by a committee of the board shall be conducted in accordance with §187.13 of this title. All reports received or gathered by the board on each applicant are confidential and are not subject to disclosure under the Public Information Act. The board may disclose such reports to appropriate licensing authorities in other states.

(i) All applicants must provide sufficient documentation to the board that the applicant has, on a full-time basis, actively practiced, been a student at an acceptable approved program under §194.12 of this chapter, §194.13 of this chapter or §194.14 of this chapter or been on the active teaching faculty of an acceptable approved program under §194.12 of this chapter, within one of the last two years preceding receipt of an application for certification. The term "full-time basis," for purposes of this section, shall mean at least 20 hours per week for 40 weeks duration during a given year.

(j) Applicants who are unable to demonstrate active practice on a full time basis may, in the discretion of the board, be eligible for an unrestricted certificate or a restricted certificate subject to one or more of the following conditions or restrictions as set forth in paragraphs (1) - (5) of this subsection:

(1) completion of specified continuing education hours directly or indirectly related to the disciplines of radiologic technology and offered by an institution accredited by a regional accrediting organization such as the Southern Association of Colleges and Schools (SACS), or by agencies or organizations such as JRCERT, JRCNMT, Joint Review Committee on Education in Cardiovascular Technology (JTCCVT), the Council on Chiropractic Education (CCE), ABHES, or the American Society of Radiologic Technologists (ASRT);

(2) current certification by ARRT or NMTCB;

(3) limitation and/or exclusion of the practice of the applicant to specified activities of the practice;

(4) remedial education; and

(5) such other remedial or restrictive conditions or requirements which, in the discretion of the board are necessary to ensure protection of the public and minimal competency of the applicant to safely practice.

(k) Applicants for certification, registration, or other authorization:

(1) whose applications have been filed with the board in excess of one year will be considered expired. Any fee previously submitted with that application shall be forfeited unless otherwise provided by §175.5 of this title (relating to Payment of Fees or Penalties). Any further request for certification will require submission of a new application and inclusion of the current certification fee. An extension to an application may be granted under certain circumstances, including:

(A) Delay by board staff in processing an application;

(B) Application requires Licensure Committee review after completion of all other processing and will expire prior to the next scheduled meeting;

(C) Licensure Committee requires an applicant to meet specific additional requirements for certification and the application will expire prior to deadline established by the Committee;

(D) Applicant requires a reasonable, limited additional period of time to obtain documentation after completing all other requirements and demonstrating diligence in attempting to provide the required documentation;

(E) Applicant is delayed due to unanticipated military assignments, medical reasons, or catastrophic events;

(2) who in any way falsify the application may be required to appear before the board;

(3) on whom adverse information is received by the board may be required to appear before the board;

(4) shall be required to comply with the board's rules and regulations which are in effect at the time the completed application form and fee are filed with the board;

(5) may be required to sit for additional oral or written examinations that, in the opinion of the board, are necessary to determine competency of the applicant;

(6) must have the application complete in every detail at least 20 days prior to the board meeting in which they are considered for certification. Applicants may qualify for a temporary certificate prior to being considered by the board for certification, contingent upon meeting the minimum requirements for a temporary certificate under this section;

(7) who previously held a Texas health care provider license, certificate, permit, or registration may be required to complete additional forms as required.

(l) Alternative Procedures for Military Service Members, Military Veterans, and Military Spouses.

(1) An applicant who is a military service member, military veteran, or military spouse may be eligible for alternative demonstrations of competency for certain requirements related to an application for certification or placement on the board's NCT General Registry. Unless specifically allowed in this subsection, an applicant must meet the requirements for certification as a medical radiologic technologist, limited medical radiologic technologist, or placement on the board's Non-Certified Technician General Registry as specified in this chapter.

(2) To be eligible, an applicant must be a military service member, military veteran, or military spouse and meet one of the following requirements:

(A) hold an active unrestricted certificate, license, or registration as a medical radiologic technologist, limited medical radiologic technologist, or non-certified technician in another state, the District of Columbia, or a territory of the United States that has requirements that are substantially equivalent to the requirements for a Texas certificate; or

(B) within the five years preceding the application date held a certificate to practice radiologic technology in this state.

(3) The executive director may waive any prerequisite to obtaining a certificate or other authorization for an applicant described in paragraph (1) of this subsection after reviewing the applicant's credentials.

(4) Applications for certification or other authorization from applicants qualifying under paragraphs (1) and (2) of this subsection shall be expedited by the board's licensure division. Such applicants shall be notified, in writing or by electronic means, as soon as practicable, of the requirements and process for renewal of the certificate.

(5) Alternative Demonstrations of Competency Allowed. Applicants qualifying under this subsection:

(A) in demonstrating compliance with subsection (h) of this section must only provide sufficient documentation to the board that the applicant has, on a full-time basis, actively practiced, been a student at an approved program, or has been on the active teaching faculty of an approved program, within one of the last two years preceding receipt of an application for certification;

(B) notwithstanding the one year expiration in subsection (k)(1) of this section, are allowed an additional six months to complete the application prior to it becoming inactive; and

(C) notwithstanding the 20 day deadline in subsection (k)(6) of this section, may be considered for certification up to five days prior to the board meeting.

(m) Applicants with Military Experience.

(1) The board shall, with respect to an applicant who is a military service member or military veteran as defined in §194.2 of this chapter, credit verified military service, training, or education toward the requirements, other than an examination requirement, for a certificate or other authorization issued by the board.

(2) This section does not apply to an applicant who:

(A) has had a license, certificate, or registration to practice radiologic technology suspended or revoked by this state, another state, a Canadian province, or another country;

(B) holds a license, certificate, or registration to practice radiologic technology issued by another state, Canadian province, or another country that is subject to a restriction, disciplinary order, or probationary order; or

(C) has an unacceptable criminal history.

(n) Re-Application for Certification or other Authorization Prohibited. A person who has been determined ineligible for a certificate by the Licensure Committee may not reapply for a certificate prior to the expiration of one year from the date of the board's ratification of the Licensure Committee's determination of ineligibility and denial of certification.

(o) Request for Criminal History Evaluation Letter.

(1) In accordance with Texas Occupations Code, §53.102, prior to applying for certification or other authorization, an individual may request that board staff review the person's criminal history to determine if the person is potentially ineligible for certification or other authorization based solely on the person's criminal background.

(2) Requestors must submit their requests in writing along with appropriate fees as provided in §175.1 of this title (relating to Application and Administrative Fees).

(3) The board may require additional documentation including fingerprint cards before issuing a criminal history evaluation letter.

(4) The board shall provide criminal history evaluation letters that include the basis for potential ineligibility, if grounds for ineligibility exist to all requestors no later than the 90th day after the board receives all required documentation to allow the board to respond to a request.

(5) If a requestor does not provide all requested documentation within one year of submitting the original request, the request will be considered as withdrawn.

(6) All evaluations letters shall be based on existing law at the time of the request. All requestors remain subject to the requirements for licensure at the time of application and may be determined ineligible under existing law at the time of application. If a requestor fails to provide complete and accurate information to the board, the board may invalidate the criminal history evaluation letter.

(7) An individual shall be permitted to apply for licensure, regardless of the board's determination in a criminal history evaluation letter.

§194.10.Retired Certificate or NCT General Registration Permit.

(a) The registration fee shall not apply to retired certificate or NCT general registration permit holders.

(b) To become exempt from the registration fee due to retirement:

(1) the certificate or permit holder's current certificate or permit must not be under an investigation or order with the board or otherwise be restricted; and

(2) the certificate or permit holder must request in writing on a form prescribed by the board for his or her certificate or permit to be placed on official retired status.

(3) The following restrictions shall apply to certificate or permit holders whose certificates or permits are on official retired status:

(A) the certificate or permit holder must not engage in clinical activities requiring a certificate or permit in Texas or any state;

(B) the certificate or permit holder's certificate or permit may not be endorsed to any other state.

(c) A certificate or permit holder may return to active status by:

(1) applying to the board;

(2) paying an application fee equal to an application fee for a certificate or permit holder;

(3) complying with the requirements for certificate or permit renewal under the Act;

(4) providing current verifications from each state in which the certificate or permit holder holds a license, certificate, permit, or registration, as applicable;

(5) providing current verifications of certification by ARRT or NMTCB, as applicable;

(6) submitting professional evaluations from each employment held after the license was placed on inactive status; and

(7) complying with subsection (d) of this section.

(d) Licensure Committee or Executive Director Recommendations.

(1) The request of a certificate or permit holder seeking a return to active status whose certificate or permit has been placed on official retired status for two years or longer shall be submitted to the Licensure Committee of the board for consideration and a recommendation to the full board for approval or denial of the request. After consideration of the request and the recommendation of the Licensure Committee, the Licensure Committee shall make a recommendation to the full board for approval or denial. After consideration of the request and the recommendation of the Licensure Committee, the board shall grant or deny the request. After consideration of the request and the recommendation of the Licensure Committee, the board shall grant or deny the request subject to such conditions which the board determines are necessary to adequately protect the public including, but not limited to the following terms:

(A) completion of specified continuing education hours directly or indirectly related to the disciplines of radiologic technology and offered by an institution accredited by a regional accrediting organization such as SACS, or by JRCERT, JRCNMT, JTCCVT, CCE, ABHES, or ASRT;

(B) current certification by ARRT or NMTCB, as applicable;

(C) limitation and/or exclusion of the practice of the applicant to specified activities of the practice;

(D) remedial education; and

(E) such other remedial or restrictive conditions or requirements which, in the discretion of the board are necessary to ensure protection of the public and minimal competency of the applicant to safely practice.

(2) The request of a certificate or permit holder seeking a return to active status whose certificate has been placed on official retired status for less than two years may be approved by the executive director of the Medical board or submitted by the executive director to the Licensure Committee of the board, for consideration and a recommendation to the full board for approval or denial of the request. In those instances in which the executive director submits the request to the Licensure Committee of the board, the Licensure Committee shall make a recommendation to the full board for approval or denial. After consideration of the request and the recommendation of the Licensure Committee, the board shall grant or deny the request subject to such conditions which the board determines are necessary to adequately protect the public including, but not limited to those options provided in paragraph (1)(A) - (E) of this subsection.

(e) In evaluating a request to return to active status, the Licensure Committee or the full board may require a personal appearance by the certificate or permit holder at the offices of the board, and may also require a physical or mental examination by one or more physicians or other health care providers approved in advance and in writing by the executive director or the Licensure Committee, or other designee(s) determined by majority vote of the board.

(f) A retired certificate or permit holder who has obtained an exemption from the registration fee as provided for under this section, may be subject to disciplinary action under the Act, §601.302, based on unprofessional or dishonorable conduct likely to deceive, defraud, or injure the public if the certificate holder engages in activities requiring a certificate or permit.

(g) A retired certificate or permit holder who attempts to obtain an exemption from the registration fee under this section by submitting false or misleading statements to the board shall be subject to disciplinary action pursuant to the Act, §601.302, in addition to any civil or criminal actions provided for by state or federal law.

§194.16.Hardship Exemptions.

(a) General.

(1) A hospital, federally qualified health center (FQHC) as defined by 42 U.S.C. Section 1396d, or practitioner may apply to the board for a hardship exemption from employing an MRT, LMRT, or NCT.

(2) The applicant must demonstrate a hardship in employing an MRT, LMRT, or NCT, and must provide information indicating that the individuals who will perform radiologic procedures meet the minimum requirements as described in subsection (b)(5) of this section.

(3) The applicant shall not allow the individual(s) named in the application to perform a radiologic procedure until the board grants a hardship exemption.

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

(5) No more than seven individuals will be allowed to perform radiologic procedures under the hardship exemption, if granted.

(b) Required application materials.

(1) The applicant must apply for a hardship on the forms prescribed by the board and must be accompanied by the appropriate fee, as provided under chapter 175 of this title (relating to Fees and Penalties). The date of application shall be the date the application and application fee is postmarked. If there is no visible postmark, or if the application is hand-delivered, the application date shall be the date the board receives the application.

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

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

(4) The applicant must meet the following requirements:

(A) Each individuals named in the application as hired or employed to perform radiologic procedures under the hardship exemption must:

(i) graduate from high school or its equivalent as determined by the Texas Education Agency;

(ii) attain at least 18 years of age;

(iii) provide a complete and legible set of fingerprints, on a form prescribed by the board, to the board or to the Department of Public Safety for the purpose of obtaining criminal history record information from the Department of Public Safety and the Federal Bureau of Investigation;

(iv) be mentally and physically able to perform radiologic procedures; and

(v) be of good professional character as defined under §194.2 of this chapter (relating to Definitions).

(B) The applicant must meet one or more of the following requirements:

(i) if the applicant is unable to attract or retain an MRT or LMRT, a sworn affidavit describing the reasons the applicant is unable attract and retain an MRT or LMRT at a comparable salary for the area, the applicant's attempts to attract and retain an MRT or LMRT, evidence of recruiting efforts during the 30-day period prior to application for the hardship exemption, and copies of advertisements to hire an MRT or LMRT;

(ii) if the applicant is located more than 200 highway miles from the nearest school of medical radiologic technology approved in accordance with §194.12 of this chapter (relating to Standards for the Approval of Certificate Program Curricula and Instructors) or §194.13 of this chapter (relating to Mandatory Training Programs for Non-Certified Technicians), a sworn affidavit describing in narrative form the physical address of the nearest school of medical radiologic technology; the physical address of the applicant hospital, FQHC, or primary practice location of the practitioner; and the actual distance in highway miles between the school and the applicant hospital, FQHC, or practitioner's primary practice. The applicant shall include a map of the area clearly indicating the locations of each entity;

(iii) if the nearest school of medical radiologic technology approved in accordance with §194.12 and §194.13 of this chapter has a waiting list of school applicants due to a lack of faculty or space, a sworn affidavit from the applicant indicating that admissions to the school are pending because of a lack of faculty or space;

(iv) if the applicant's need for graduates in medical radiologic technology exceeds the number of graduates from the nearest school of medical radiologic technology approved in accordance with §194.12 of this chapter, a sworn affidavit from the applicant indicating that the number of graduates from the nearest school does not meet the applicant's needs for radiologic technologists;

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

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

(I) a copy of the current certificate of registration for radiation machine issued by DSHS; and

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

(5) All application materials and information are subject to verification by the board.

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

(c) Application approval. If granted by the board, a letter of exemption shall be issued for a period of one year.

(d) The process for approval or denial of applications for program approval are subject to the procedures outlined in §194.6(g) of this chapter (relating to Procedural Rules and Minimum Eligibility Requirements for Applicants for a Certificate or Placement on the Board's Non-Certified Technician General Registry). An applicant whose application has been disapproved §194.6(g) of this chapter shall be permitted to reapply after a period of not less than one year from the date of the disapproval and shall submit a new application and supporting information. The applicant may reapply for an exemption any time the basis for the exemption application changes.

(e) Reapplication for hardship exemption.

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

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

§194.18.Advertising or Competitive Bidding.

(a) A person, including a medical radiologic technologist, who is not certified under the Act shall not use the word "medical radiologic technologist", on any sign, display, or other form of advertising unless the person is expressly exempt from the certification requirement.

(b) A certificate or permit holder shall not use advertising that is false, misleading, or deceptive, as defined under §164.3 of this title (relating to Misleading or Deceptive Advertising).

(c) When an assumed name is used in a person's practice as a medical radiologic technologist, limited medical radiologic technologist, or non-certified technician, the individual's legal name or certificate or permit number must be listed in conjunction with the assumed name. An assumed name used by a medical radiologic technologist, limited medical radiologic technologist, or non-certified technician must not be false, misleading, or deceptive.

(d) A limited medical radiologic technology educational program or a training program for non-certified technicians shall not make false, misleading, or deceptive statements concerning the activities or programs of another limited medical radiologic technology education program or a training program for non-certified technicians.

(e) A limited medical radiologic technology educational program or a training program for non-certified technicians shall not maintain, advertise, solicit for or conduct any course of instruction intended to qualify a person for certification or placement on the registry without first obtaining approval from the board.

(f) Advertisement by an educational or training program seeking prospective students must clearly indicate that training is being offered, and shall not, either by actual statement, omission, or intimation, imply that prospective employees are being sought.

(g) Advertisements seeking prospective students must include the full and correct name of the educational or training program.

(h) No statement or representation shall be made to prospective or enrolled students that employment will be guaranteed upon completion of any program or that falsely represents opportunities for employment.

(i) No statement shall be made by an educational or training program that it has been accredited unless the accreditation is that of an appropriate nationally recognized accrediting agency published by the United States Office of Education.

(j) No educational or training program shall advertise an employment agency under the same name or a confusingly similar name or at the same location as the educational or training program. No representative shall solicit students for a program through an employment agency.

§194.23.Criminal Backgrounds.

This section sets out the guidelines and criteria related to the board's authority to deny certification, registration, other approval, or to take disciplinary action based upon a person's criminal background.

(1) The board may suspend or revoke any certificate, disqualify a person from receiving any certificate, or deny to a person the opportunity to be examined for a certificate if the person is convicted of or subject to a deferred adjudication, enters a plea of nolo contendere or guilty to a felony or misdemeanor, and if the crime directly relates to the duties and responsibilities of a certificate or permit holder.

(2) In considering whether a pleading of nolo contendere or a criminal conviction directly relates to the occupation of a certificate holder, the board shall consider:

(A) the nature and seriousness of the crime;

(B) the relationship of the crime to the purposes for certification; and

(C) the extent to which a certification might offer an opportunity to engage in further criminal activity of the same type as that which the person previously has been involved.

(3) The following felonies and misdemeanors apply to any certificate because these criminal offenses indicate an inability or a tendency to be unable to perform as a certificate holder:

(A) the misdemeanor of knowingly or intentionally acting as a certificate holder without a certificate under the Act;

(B) any misdemeanor and/or felony offense defined as a crime of moral turpitude by statute or common law;

(C) a misdemeanor or felony offense involving:

(i) forgery;

(ii) tampering with a governmental record;

(iii) delivery, possession, manufacturing, or use of controlled substances and dangerous drugs;

(D) a misdemeanor or felony offense under various titles of the Texas Penal Code:

(i) Title 5 concerning offenses against the person;

(ii) Title 7 concerning offenses against property;

(iii) Title 9 concerning offenses against public order and decency;

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

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

(4) The misdemeanors and felonies listed in paragraph (3) of this section are not exclusive. The Board may consider other particular crimes in special cases in order to promote the intent of the Act and these sections.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 14, 2017.

TRD-201701063

Mari Robinson, J.D.

Executive Director

Texas Medical Board

Effective date: April 3, 2017

Proposal publication date: November 4, 2016

For further information, please call: (512) 305-7016


SUBCHAPTER B. NON-CERTIFIED TECHNICIANS SUPERVISED BY PHYSICIANS

22 TAC §§194.34 - 194.43

The new rules are adopted under the authority of Texas Occupations Code Annotated, §601.052, which authorizes the Board to adopt rules reasonably necessary to properly perform its duties, regulate the practice of medical radiologic technology in this state; and establish rules related to certification.

§194.35.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Board--The Texas Medical Board.

(2) Non-certified technician (NCT) or registrant--A person who is registered with the board and either:

(A) is listed on the current general registry with the Texas Board of Medical Radiologic Technology under §194.6 of this chapter (relating to Procedural Rules and Minimum Eligibility Requirements for Applicants for a Certificate or Placement on the Board's Non-Certified Technician General Registry); or

(B) performs radiologic procedures for a physician to whom a hardship exemption was granted by the Texas Board of Medical Radiologic Technology within the previous year under §194.16 of this chapter (relating to Hardship Exemptions).

(3) Supervision--Responsibility for and control of quality, radiation safety and protection, and technical aspects of the application of ionizing radiation to human beings for diagnostic purposes.

§194.36.Registration.

(a) Any person in the State of Texas performing radiologic procedures, as defined in §194.38 of this chapter (relating to Non-Certified Technician's Scope of Practice), under the supervision of a current and active licensed Texas physician, must be registered with the Texas Medical Board. The physician must also be registered with the board to supervise the non-certified technician.

(b) This section does not apply to registered nurses or to persons certified by the Texas Board of Medical Radiologic Technology under the Medical Radiologic Technologist Certification Act.

(c) An applicant shall apply for registration with the board on a form provided by the board and shall pay the appropriate fee established by the board. Each physician, who supervises a non-certified technician, shall apply on a separate application form.

(d) Applicants shall be 18 years of age or older and either:

(1) provide proof of the applicant's registry as an NCT with the Texas Board of Medical Radiologic Technology under §194.6 of this chapter (relating to Procedural Rules and Minimum Eligibility Requirements for Applicants for a Certificate or Placement on the Board's Non-Certified Technician General Registry); or

(2) perform radiologic procedures for a physician to whom a hardship exemption was granted by the Texas Board of Medical Radiologic Technology within the previous year under §194.16 of this chapter(relating to Hardship Exemptions). A person who operates a bone densitometry unit(s) which utilizes x-radiation who is in compliance with §194.15 of this chapter (relating to Bone Densitometry Training), however, is not required to obtain a hardship exemption as long as the person is not performing radiologic procedures other than bone densitometry.

§194.37.Annual Renewal.

(a) Registrants shall renew the registration annually by:

(1) submitting a completed registration application;

(2) paying a fee, as specified by the board under Chapter 175 of this title (relating to Fees and Penalties); and

(3) providing proof of the registrant's renewal of status on the Texas Board of Medical Radiologic Technology registry or that the registrant is working under a physician hardship exemption, if applicable.

(b) If the registrant fails to comply with subsection (a) of this section on or before the expiration date of the registration, the following penalties as shown in paragraphs (1) and (2) of this subsection will be imposed:

(1) one to 90 days late--penalty fee set under §175.3(4) of this title (relating to Penalties);

(2) over 90 days late the registrant may not renew his or her registration, and the registration will be considered expired, unless an investigation is pending. The registrant must submit a new application and comply with the requirements and procedures for obtaining a permit.

(c) The board by rule may adopt a system under which registrations expire on various dates during the year. For the year in which the expiration date is changed, registration fees payable on or before January 1 shall be prorated on a monthly basis so that each registrant shall pay only that portion of the registration fee which is allocable to the number of months during which the registration is valid. On renewal of the registration on the new expiration date, the total registration is payable.

(d) Registrants shall inform the board in writing of address changes within two weeks.

§194.38.Non-Certified Technician's Scope of Practice.

(a) A registrant may only perform the following radiologic procedures, as listed in paragraphs (1) and (2) of this subsection unless otherwise expressly permitted by statute or rule:

(1) bone densitometry utilizing a dual energy x-ray densitometer; or

(2) chest, spine, extremities, abdomen, skull studies or other radiologic procedures utilizing standard film or film screen combinations and an x-ray tube that is stationary at the time of exposure; however, a registrant may not perform a procedure which has been identified as dangerous or hazardous by the Texas Board of Medical Radiologic Technology in §194.17 of this chapter (relating to Dangerous or Hazardous Procedures).

(b) A registrant, other than a physician assistant, shall perform all radiologic procedures under the direct supervision or instruction of a physician in the State of Texas.

(c) A supervising physician may not order, instruct, or direct a registrant to perform a radiologic procedure other than in compliance with applicable statutes and rules.

(d) All registrants must comply with the safety rules of the Texas Department of State Health Services relating to the control of radiation as set forth in 25 TAC Chapter 289 (relating to Radiation Control).

§194.39.Suspension, Revocation or Nonrenewal of Registration.

(a) The board may refuse to issue a registration to an applicant and may, following notice of hearing and a hearing as provided for in the Administrative Procedure Act, take disciplinary action against any non-certified technician who:

(1) violates the Medical Practice Act, the rules of the Texas Medical Board, an order of the board previously entered in a disciplinary proceeding, or an order to comply with a subpoena issued by the board;

(2) violates the Medical Radiologic Technologist Certification Act or the rules promulgated by the Texas Board of Medical Radiologic Technology;

(3) violates the rules of the Texas Department of State Health Services for control of radiation;

(4) obtains, attempts to obtain, or uses a registration by bribery or fraud;

(5) engages in unprofessional conduct, including, but not limited to, conviction of a crime, commission of any act that is in violation of the laws of the State of Texas if the act is connected with provision of health care, and commission of an act of moral turpitude;

(6) develops or has an incapacity that prevents the practice of radiologic technology with reasonable skill, competence, and safety to the public as a result of:

(A) an illness;

(B) drug or alcohol dependency; or habitual use of drugs or intoxicating liquors; or

(C) another physical or mental condition;

(7) fails to practice as a non-certified technician in an acceptable manner consistent with public health and welfare;

(8) has disciplinary action taken against a certification, permit, or registration in another state, territory, or country or by another regulatory agency;

(9) engages in acts requiring registration under these rules without a current registration from the board; or

(10) is removed, suspended, or has had disciplinary action taken against the registrant.

(b) The board may suspend, revoke, or refuse to renew the registration of a non-certified technician, upon a finding that a non-certified technician has committed any offense listed in this section.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 14, 2017.

TRD-201701064

Mari Robinson, J.D.

Executive Director

Texas Medical Board

Effective date: April 3, 2017

Proposal publication date: November 4, 2016

For further information, please call: (512) 305-7016