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S.B. No. 403
AN ACT
relating to the continuation and functions of the Texas State Board
of Examiners of Perfusionists; providing an administrative
penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 603.002, Occupations Code, is amended to
read as follows:
Sec. 603.002. DEFINITIONS. In this chapter:
(1) ["Board" means the Texas State Board of Examiners
of Perfusionists.
[(2)] "Commissioner" means the commissioner of state
health services [public health].
(2) "Committee" means the Texas State Perfusionist
Advisory Committee.
(3) "Department" means the [Texas] Department of State
Health Services.
(4) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
SECTION 2. Section 603.004, Occupations Code, is amended to
read as follows:
Sec. 603.004. APPLICATION OF CHAPTER. This chapter does
not apply to:
(1) a qualified perfusionist employed by the United
States government while discharging official duties;
(2) [a person who is not a resident of this state if
the person:
[(A) is authorized to perform perfusion services
under the laws of the state of the person's residence;
[(B) possesses educational and training
qualifications the board determines are substantially similar to
those required for practice in this state;
[(C) notifies the board of the person's intent to
perform perfusion services in this state for not more than 10 days
in a year; and
[(D) is approved by the board or the board's
designated agent to perform perfusion services in this state for
not more than 10 days in that year;
[(3)] a person licensed by another health professional
licensing board if the person:
(A) does not directly or indirectly represent to
the public that the person is licensed under this chapter and does
not use a name, title, or other designation indicating that the
person is licensed under this chapter; and
(B) confines the scope of the person's practice
to that authorized by the law under which the person is licensed as
a health professional;
(3) [(4)] a student enrolled in an accredited
perfusion education program if the perfusion services performed by
the student:
(A) are an integral part of the student's course
of study; and
(B) are directly supervised by a licensed
perfusionist who:
(i) is assigned to supervise the student;
and
(ii) is on duty and immediately available
in the assigned patient care area;
(4) [(5)] a person who successfully completes an
approved perfusion education program but has not been issued a
provisional license under Section 603.259 if the person:
(A) complies with Section 603.259(c); and
(B) receives a provisional license not later than
the 180th day after the date the person successfully completes the
program; or
(5) [(6)] a person performing autotransfusion or
blood conservation techniques under the supervision of a licensed
physician.
SECTION 3. Section 603.005, Occupations Code, is amended to
read as follows:
Sec. 603.005. APPLICATION OF SUNSET ACT. The Texas State
Perfusionist Advisory Committee [Board of Examiners of
Perfusionists] is subject to Chapter 325, Government Code (Texas
Sunset Act). Unless continued in existence as provided by that
chapter, the committee [board] is abolished September 1, 2017
[2005].
SECTION 4. Subchapter A, Chapter 603, Occupations Code, is
amended by adding Section 603.006 to read as follows:
Sec. 603.006. APPLICABILITY OF OTHER LAW. Chapter 2110,
Government Code, does not apply to the committee.
SECTION 5. The heading to Subchapter B, Chapter 603,
Occupations Code, is amended to read as follows:
SUBCHAPTER B. TEXAS STATE PERFUSIONIST ADVISORY
COMMITTEE [BOARD OF EXAMINERS OF PERFUSIONISTS]
SECTION 6. Section 603.051, Occupations Code, is amended to
read as follows:
Sec. 603.051. COMMITTEE [BOARD] MEMBERSHIP. (a) The Texas
State Perfusionist Advisory Committee [Board of Examiners of
Perfusionists] consists of five [nine] members appointed by the
commissioner [governor with the advice and consent of the senate]
as follows:
(1) two [five] licensed perfusionist members who have
been licensed under this chapter for at least three years before the
date of appointment;
(2) one physician member licensed by the Texas State
Board of Medical Examiners who is certified by that board in
cardiovascular surgery; and
(3) two [three] members who represent the public.
(b) Appointments to the committee [board] shall reflect the
historical and cultural diversity of the inhabitants of this state.
(c) Appointments to the committee [board] shall be made
without regard to the race, color, disability [creed], sex,
religion, age, or national origin[, or geographical distribution]
of the appointee [appointees].
SECTION 7. Subchapter B, Chapter 603, Occupations Code, is
amended by adding Section 603.0511 to read as follows:
Sec. 603.0511. ELIGIBILITY OF PUBLIC MEMBERS. A person may
not be a public member of the committee if the person or the
person's spouse:
(1) is registered, certified, or licensed by a
regulatory agency in the field of health care;
(2) is employed by or participates in the management
of a business entity or other organization regulated by or
receiving money from the department;
(3) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by or receiving money from the department;
or
(4) uses or receives a substantial amount of tangible
goods, services, or money from the department other than
compensation or reimbursement authorized by law for committee
membership, attendance, or expenses.
SECTION 8. Section 603.052, Occupations Code, is amended to
read as follows:
Sec. 603.052. MEMBERSHIP AND EMPLOYEE RESTRICTIONS.
(a) In this section, "Texas trade association" means a
[nonprofit,] cooperative[,] and voluntarily joined statewide
association of business or professional competitors in this state
designed to assist its members and its industry or profession in
dealing with mutual business or professional problems and in
promoting their common interests.
(b) A person [An officer, employee, or paid consultant of a
Texas trade association in the field of health care] may not be a
committee [board] member and may not be a department [an] employee
employed in a "bona fide executive, administrative, or professional
capacity," as that phrase is used for purposes of establishing an
exemption to the overtime provisions of the federal Fair Labor
Standards Act of 1938 (29 U.S.C. Section 201 et seq.) if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of health care;
or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in the field of health care
[of the board who is exempt from the state's position
classification plan or is compensated at or above the amount
prescribed by the General Appropriations Act for step 1, salary
group A17, of the position classification salary schedule].
(c) [A person who is the spouse of an officer, manager, or
paid consultant of a Texas trade association in the field of health
care may not be a board member and may not be an employee of the
board who is exempt from the state's position classification plan
or is compensated at or above the amount prescribed by the General
Appropriations Act for step 1, salary group A17, of the position
classification salary schedule.
[(d)] A person may not be [serve as] a member of the
committee [board] or act as the general counsel to the committee or
the department [board] if the person is required to register as a
lobbyist under Chapter 305, Government Code, because of the
person's activities for compensation on behalf of a profession
related to the operation of the department [board].
SECTION 9. Section 603.053, Occupations Code, is amended to
read as follows:
Sec. 603.053. TERMS. Members of the committee [board]
serve staggered six-year terms. The terms of one or two [three]
members, as appropriate, expire on February 1 of each odd-numbered
year.
SECTION 10. Section 603.054, Occupations Code, is amended
to read as follows:
Sec. 603.054. GROUNDS FOR REMOVAL. (a) It is a ground for
removal from the committee [board] that a member:
(1) does not have at the time of taking office
[appointment] the qualifications required by Section 603.051 [for
appointment to the board];
(2) does not maintain during service on the committee
[board] the qualifications required by Section 603.051 [for
appointment to the board];
(3) is ineligible for membership under Section
603.0511 or 603.052 [violates a prohibition established by this
chapter];
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) is absent from more than half of the regularly
scheduled committee [board] meetings that the member is eligible to
attend during a calendar year without an excuse approved by a
[unless the absence is excused by] majority vote of the committee
[board].
(b) The validity of an action of the committee [board] is
not affected by the fact that it is taken when a ground for removal
of a member of the committee [board] exists.
(c) If the executive secretary has knowledge that a
potential ground for removal exists, the executive secretary shall
notify the presiding officer of the committee [board] of the
potential ground. The presiding officer shall then notify the
commissioner and the attorney general [governor] that a potential
ground for removal exists. If the potential ground for removal
involves the presiding officer, the executive secretary shall
notify the next highest ranking officer of the committee, who shall
then notify the commissioner and the attorney general that a
potential ground for removal exists.
SECTION 11. Section 603.055, Occupations Code, is amended
to read as follows:
Sec. 603.055. [PER DIEM;] REIMBURSEMENT. [(a) Each board
member is entitled to receive a per diem set by the General
Appropriations Act for each day the member engages in the business
of the board.
[(b)] A member is entitled to reimbursement for [travel]
expenses as provided by the General Appropriations Act.
SECTION 12. Section 603.056, Occupations Code, is amended
to read as follows:
Sec. 603.056. OFFICERS. (a) Not later than the 30th day
after the date the commissioner [governor] appoints new committee
[board] members, the commissioner [board] shall designate [meet to
elect] a presiding officer [and an assistant presiding officer, who
hold office according to board rule]. The presiding officer serves
at the pleasure of the commissioner.
(b) The committee may appoint additional officers as
necessary.
SECTION 13. Section 603.057, Occupations Code, is amended
to read as follows:
Sec. 603.057. MEETINGS. The committee [board] shall meet
subject to the call of the commissioner [hold at least two regular
meetings each year as provided by board rule].
SECTION 14. Section 603.058, Occupations Code, is amended
to read as follows:
Sec. 603.058. TRAINING. (a) A person who is appointed to
and qualifies for office as a member of the committee may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the committee until the person completes a training program that
complies with this section.
(b) The training program must provide the person with
information regarding:
(1) this chapter and the committee's programs,
functions, rules, and budget;
(2) the results of the most recent formal audit of the
department;
(3) the requirements of laws relating to open
meetings, public information, administrative procedure, and
conflicts of interest; and
(4) any applicable ethics policies adopted by the
executive commissioner or the Texas Ethics Commission.
(c) A person appointed to the committee is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office [Each board member shall
comply with the training requirements established by any state
agency with authority to establish training requirements for the
board].
SECTION 15. Section 603.101, Occupations Code, is amended
to read as follows:
Sec. 603.101. EXECUTIVE SECRETARY. The commissioner shall
designate a department employee to serve as executive secretary of
the committee [board].
SECTION 16. Section 603.102, Occupations Code, is amended
to read as follows:
Sec. 603.102. EXECUTIVE SECRETARY POWERS AND DUTIES. In
addition to performing other duties prescribed by this chapter and
by the department, the executive secretary shall:
(1) administer licensing activity for the department
[board];
(2) keep full and accurate minutes of the committee's
[board's] transactions and proceedings;
(3) serve as custodian of the committee's [board's]
files and other records;
(4) prepare and recommend to the department [board]
plans and procedures necessary to implement the objectives of this
chapter, including rules and proposals on administrative
procedure;
(5) exercise general supervision over persons
employed by the department in the administration of this chapter;
(6) investigate complaints and present formal
complaints;
(7) attend all committee [board] meetings as a
nonvoting participant;
(8) handle the committee's [board's] correspondence;
and
(9) obtain, assemble, or prepare reports and other
information as directed or authorized by the committee [board].
SECTION 17. Section 603.105, Occupations Code, is amended
to read as follows:
Sec. 603.105. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION. The department [board] shall provide, as often as
necessary, to its [members and] employees information regarding
their:
(1) qualifications for office or employment under this
chapter; and
(2) responsibilities under applicable laws relating
to standards of conduct for state officers or employees.
SECTION 18. Section 603.106, Occupations Code, is amended
to read as follows:
Sec. 603.106. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS. (a) The commissioner [executive secretary] shall
develop an intra-agency career ladder program. The program must
require intra-agency posting of all nonentry level positions
concurrently with any public posting.
(b) The commissioner [executive secretary] shall develop a
system of annual performance evaluations based on measurable job
tasks. All merit pay for department [board] employees must be based
on the system established under this subsection.
SECTION 19. Subsection (a), Section 603.107, Occupations
Code, is amended to read as follows:
(a) The commissioner [executive secretary] shall prepare
and maintain a written policy statement to ensure implementation of
an equal employment opportunity program under which all personnel
transactions are made without regard to race, color, disability,
sex, religion, age, or national origin. The policy statement must
include:
(1) personnel policies, including policies relating
to recruitment, evaluation, selection, application, training, and
promotion, that are in compliance with Chapter 21, Labor Code;
(2) a comprehensive analysis of the committee [board]
workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made of
significant underuse in the committee [board] workforce of all
persons for whom federal or state guidelines encourage a more
equitable balance; and
(4) reasonable methods to appropriately address those
areas of underuse.
SECTION 20. Section 603.151, Occupations Code, is amended
to read as follows:
Sec. 603.151. GENERAL POWERS AND DUTIES OF COMMISSIONER
[BOARD]. The commissioner [board] shall:
(1) establish the qualifications and fitness of
applicants for licenses, including renewed and reciprocal
licenses;
(2) revoke, suspend, or deny a license, probate a
license suspension, or reprimand a license holder for a violation
of this chapter, a [board] rule adopted by the executive
commissioner, or the code of ethics adopted by the executive
commissioner [board];
(3) spend money necessary to administer the
department's [board's] duties;
(4) request and receive necessary assistance from
another state agency, including a state educational institution;
(5) adopt an official seal; and
(6) adopt and publish a code of ethics.
SECTION 21. Section 603.152, Occupations Code, is amended
to read as follows:
Sec. 603.152. GENERAL RULEMAKING AUTHORITY. [(a)] The
executive commissioner [board] may adopt rules necessary to:
(1) regulate the practice of perfusion;
(2) enforce this chapter; and
(3) [govern board proceedings; and
[(4)] perform department [board] duties.
[(b) In adopting rules, the board shall consider the rules
and procedures of the Texas Board of Health and the department and
shall adopt procedural rules consistent with rules and procedures
of those entities.]
SECTION 22. Section 603.153, Occupations Code, is amended
to read as follows:
Sec. 603.153. RULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING. (a) The executive commissioner [board] may not adopt a
rule restricting advertising or competitive bidding by a person
regulated by the department [board] except to prohibit a false,
misleading, or deceptive practice.
(b) The executive commissioner [board] may not include in
rules to prohibit a false, misleading, or deceptive practice by a
person regulated by the department [board] a rule that:
(1) restricts the person's use of any medium for
advertising;
(2) restricts the person's personal appearance or use
of the person's voice in an advertisement;
(3) relates to the size or duration of any
advertisement by the person; or
(4) restricts the use by the person of a trade name in
advertising.
SECTION 23. Subchapter D, Chapter 603, Occupations Code, is
amended by adding Section 603.1535 to read as follows:
Sec. 603.1535. RULES ON CONSEQUENCES OF CRIMINAL
CONVICTION. (a) The executive commissioner shall adopt rules
necessary to comply with Chapter 53.
(b) In rules under this section, the executive commissioner
shall list the specific offenses for which a conviction would
constitute grounds for the commissioner to take action under
Section 53.021.
SECTION 24. Section 603.154, Occupations Code, is amended
to read as follows:
Sec. 603.154. FEES. After consulting the commissioner or
the department, the executive commissioner [board] shall set fees
in amounts reasonable and necessary to cover the costs of
administering this chapter.
SECTION 25. Section 603.155, Occupations Code, is amended
to read as follows:
Sec. 603.155. EXECUTIVE COMMISSIONER AND DEPARTMENT
[BOARD] DUTIES REGARDING COMPLAINTS. (a) The executive
commissioner [board] by rule shall:
(1) adopt a form to standardize information concerning
complaints made to the department [board]; and
(2) prescribe information to be provided to a person
when the person files a complaint with the department [board].
(b) The department [board] shall provide reasonable
assistance to a person who wishes to file a complaint with the
department [board].
SECTION 26. Section 603.156, Occupations Code, is amended
to read as follows:
Sec. 603.156. REGISTRY. The department [board] shall
prepare a registry of licensed perfusionists and provisionally
licensed perfusionists that is available to the public, license
holders, and appropriate state agencies.
SECTION 27. Subsection (a), Section 603.157, Occupations
Code, is amended to read as follows:
(a) The department [board] shall file annually with the
governor and the presiding officer of each house of the legislature
a complete and detailed written report accounting for all money
received and disbursed by the [board or the] department for the
administration of this chapter during the preceding year.
SECTION 28. Subchapter D, Chapter 603, Occupations Code, is
amended by adding Sections 603.158 and 603.159 to read as follows:
Sec. 603.158. USE OF TECHNOLOGY. The executive
commissioner shall implement a policy requiring the department to
use appropriate technological solutions to improve the
department's ability to perform its functions. The policy must
ensure that the public is able to interact with the department on
the Internet.
Sec. 603.159. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION POLICY. (a) The executive commissioner shall
develop and implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the department's
jurisdiction.
(b) The department's procedures relating to alternative
dispute resolution must conform, to the extent possible, to any
model guidelines issued by the State Office of Administrative
Hearings for the use of alternative dispute resolution by state
agencies.
(c) The commissioner shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the department.
SECTION 29. Section 603.201, Occupations Code, is amended
to read as follows:
Sec. 603.201. PUBLIC INTEREST INFORMATION. (a) The
department [board] shall prepare information of consumer interest
describing the profession of perfusion, the regulatory functions of
the department [board], and the procedures by which consumer
complaints are filed with and resolved by the department [board].
(b) The department [board] shall make the information
available to the public and appropriate state agencies.
SECTION 30. Section 603.202, Occupations Code, is amended
to read as follows:
Sec. 603.202. COMPLAINTS. (a) The executive commissioner
[board] by rule shall establish methods by which consumers and
service recipients are notified of the name, mailing address, and
telephone number of the department [board] for the purpose of
directing complaints to the department [board]. The department
[board] may provide for that notice:
(1) on each license form, application, or written
contract for services of a person licensed under this chapter;
(2) on a sign prominently displayed in the place of
business of each person licensed under this chapter; or
(3) in a bill for services provided by a person
licensed under this chapter.
(b) The department [board] shall list with its regular
telephone number any toll-free telephone number established under
other state law that may be called to present a complaint about a
health professional.
SECTION 31. Section 603.203, Occupations Code, is amended
to read as follows:
Sec. 603.203. RECORDS OF COMPLAINTS. (a) The department
[board] shall maintain a system to promptly and efficiently act on
complaints filed with the department. The department shall
maintain:
(1) information about the parties to the complaint and
the subject matter of the complaint;
(2) a summary of the results of the review or
investigation of the complaint; and
(3) information about the disposition of the complaint
[keep an information file about each complaint filed with the
board. The information file must be kept current and contain a
record for each complaint of:
[(1) each person contacted in relation to the
complaint;
[(2) a summary of findings made at each step of the
complaint process;
[(3) an explanation of the legal basis and reason for a
complaint that is dismissed;
[(4) the schedule established for the complaint under
Section 603.204(b) and a notation of any change in the schedule; and
[(5) other relevant information].
(b) The department shall make information available
describing its procedures for complaint investigation and
resolution.
(c) The department shall periodically notify the parties of
the status of the complaint until final disposition of the
complaint [If a written complaint is filed with the board that the
board has authority to resolve, the board, at least quarterly and
until final disposition of the complaint, shall notify the parties
to the complaint of the status of the complaint unless notice would
jeopardize an undercover investigation].
SECTION 32. Subsections (a), (b), and (d), Section 603.204,
Occupations Code, are amended to read as follows:
(a) The executive commissioner [board] shall adopt rules
concerning the investigation of a complaint filed with the
department [board]. The rules shall:
(1) distinguish among categories of complaints;
(2) ensure that a complaint is not dismissed without
appropriate consideration;
(3) require that the commissioner [board] be advised
of a complaint that is dismissed and that a letter be sent to the
person who filed the complaint explaining the action taken on the
dismissed complaint;
(4) ensure that the person who filed the complaint has
an opportunity to explain the allegations made in the complaint;
and
(5) prescribe guidelines concerning the categories of
complaints that require the use of a private investigator and the
procedures for the department [board] to obtain the services of a
private investigator.
(b) The department [board] shall:
(1) dispose of each complaint in a timely manner; and
(2) establish, not later than the 30th day after the
date the department [board] receives a complaint, a schedule for
conducting each phase of the complaint resolution process that is
under the control of the department [board].
(d) The executive secretary shall notify the commissioner
[board] of a complaint that is not resolved within the time
prescribed by the commissioner [board] for resolving the complaint
so that the commissioner [board] may take necessary action on the
complaint.
SECTION 33. Subsections (a), (c), (e), (f), (h), and (i),
Section 603.2041, Occupations Code, are amended to read as follows:
(a) In an investigation of a complaint filed with the
department [board], the department [board] may request that the
commissioner or the commissioner's designee approve the issuance of
a subpoena. If the request is approved, the department [board] may
issue a subpoena to compel the attendance of a relevant witness or
the production, for inspection or copying, of relevant evidence
that is in this state.
(c) If a person fails to comply with a subpoena, the
department [board], acting through the attorney general, may file
suit to enforce the subpoena in a district court in Travis County or
in the county in which a hearing conducted by the department [board]
may be held.
(e) The commissioner [board] may delegate the authority
granted under Subsection (a) to the executive secretary of the
committee [board].
(f) The department [board] shall pay a reasonable fee for
photocopies subpoenaed under this section in an amount not to
exceed the amount the department [board] may charge for copies of
its records.
(h) All information and materials subpoenaed or compiled by
the department [board] in connection with a complaint and
investigation are confidential and not subject to disclosure under
Chapter 552, Government Code, and not subject to disclosure,
discovery, subpoena, or other means of legal compulsion for their
release to anyone other than the department [board] or its agents or
employees involved in discipline of the holder of a license, except
that this information may be disclosed to:
(1) persons involved with the department [board] in a
disciplinary action against the holder of a license;
(2) professional perfusionist licensing or
disciplinary boards in other jurisdictions;
(3) peer assistance programs approved by the
department [board] under Chapter 467, Health and Safety Code;
(4) law enforcement agencies; and
(5) persons engaged in bona fide research, if all
individual-identifying information has been deleted.
(i) The filing of formal charges by the department [board]
against a holder of a license, the nature of those charges,
disciplinary proceedings of the department [board], and final
disciplinary actions, including warnings and reprimands, by the
department [board] are not confidential and are subject to
disclosure in accordance with Chapter 552, Government Code.
SECTION 34. Section 603.205, Occupations Code, is amended
to read as follows:
Sec. 603.205. PUBLIC PARTICIPATION. (a) The State Health
Services Council [board] shall develop and implement policies that
provide the public with a reasonable opportunity to appear before
the State Health Services Council [board] and to speak on any issue
related to the practice of perfusion [under the board's
jurisdiction].
(b) The commissioner [board] shall prepare and maintain a
written plan that describes how a person who does not speak English
or who has a physical, mental, or developmental disability may be
provided reasonable access to the department's [board's] programs.
SECTION 35. Subsection (b), Section 603.252, Occupations
Code, is amended to read as follows:
(b) The executive commissioner [board] shall prescribe the
application form and by rule may establish dates by which
applications and fees must be received.
SECTION 36. Section 603.253, Occupations Code, is amended
to read as follows:
Sec. 603.253. COMPETENCY EXAMINATION. (a) An applicant
must pass a competency examination to qualify for a license under
this chapter.
(b) The department [board] shall prepare or approve an
examination. The department [board] may prescribe an examination
that consists of or includes a written [or oral] examination given
by the American Board of Cardiovascular Perfusion or by a national
or state testing service.
(c) The department [board] shall have any written portion of
the examination validated by an independent testing professional.
(d) The department [board] shall administer an examination
to qualified applicants at least once each calendar year.
(e) On receipt of an application and application fee, the
department [board] shall waive the examination requirement for an
applicant who, at the time of application:
(1) is licensed or certified by another state that has
licensing or certification requirements the department [board]
determines to be substantially equivalent to the requirements of
this chapter; or
(2) holds a certificate as a certified clinical
perfusionist issued by the American Board of Cardiovascular
Perfusion before January 1, 1994, authorizing the holder to
practice perfusion in a state that does not license or certify
perfusionists.
SECTION 37. Subchapter F, Chapter 603, Occupations Code, is
amended by adding Section 603.2535 to read as follows:
Sec. 603.2535. JURISPRUDENCE EXAMINATION. (a) An
applicant must pass a jurisprudence examination to qualify for a
license under this chapter.
(b) The department shall develop and administer at least
twice each calendar year a jurisprudence examination to determine
an applicant's knowledge of this chapter, rules adopted by the
executive commissioner, and any other applicable laws of this state
affecting the applicant's practice of perfusion.
(c) The executive commissioner shall adopt rules to
implement this section, including rules related to the development
and administration of the examination, examination fees,
guidelines for reexamination, grading the examination, and
providing notice of examination results.
SECTION 38. Section 603.254, Occupations Code, is amended
to read as follows:
Sec. 603.254. QUALIFICATION FOR EXAMINATION. (a) To
qualify for the licensing examinations [examination] under this
chapter, an applicant must have successfully completed a perfusion
education program approved by the department [board].
(b) The department [board] may approve a perfusion
education program only if the program has educational standards
that are:
(1) at least as stringent as those established by the
Accreditation Committee for Perfusion Education of the American
Medical Association or its successor; and
(2) approved by the Commission on Accreditation of the
Allied Health Education Program of the American Medical Association
or its successor.
SECTION 39. Subsection (a), Section 603.255, Occupations
Code, is amended to read as follows:
(a) The department shall notify an applicant in writing of
the receipt and investigation of the applicant's application and
any other relevant evidence relating to qualifications established
by an executive commissioner [board] rule not later than:
(1) the 45th day after the date a properly submitted
and timely application is received; and
(2) the 30th day before the next examination date.
SECTION 40. Section 603.257, Occupations Code, is amended
to read as follows:
Sec. 603.257. REEXAMINATION AND ALTERNATIVES TO
EXAMINATION. The executive commissioner [board] by rule shall
establish:
(1) a limit on the number of times an applicant who
fails an examination may retake the examination;
(2) requirements for retaking an examination; and
(3) alternative methods of examining competency.
SECTION 41. Subsections (a), (c), and (d), Section 603.259,
Occupations Code, are amended to read as follows:
(a) The department [board] may issue a provisional license
to an applicant who files an application, pays an application fee,
and submits evidence satisfactory to the department [board] of
successful completion of the education requirement under Section
603.254.
(c) A provisionally licensed perfusionist must practice
under the supervision and direction of a licensed perfusionist
while performing perfusion. If the department [board] finds that a
licensed perfusionist is not reasonably available to provide
supervision and direction and if the department [board] approves an
application submitted to the department [board] by the
provisionally licensed perfusionist, supervision and direction may
be provided by a physician who is licensed by the Texas State Board
of Medical Examiners and certified by the American Board of
Thoracic Surgeons, Inc., or certified in cardiovascular surgery by
the American Osteopathic Board of Surgery.
(d) The executive commissioner [board] may not adopt a rule
governing supervision and direction that requires the immediate
physical presence of the supervising person.
SECTION 42. Section 603.301, Occupations Code, is amended
to read as follows:
Sec. 603.301. LICENSE RENEWAL. (a) A license is valid for
two years [one year] from the date of issuance and may be renewed
biennially [annually].
(b) The executive commissioner [Texas Board of Health] by
rule may adopt a system under which licenses expire on various dates
during the year.
(c) A person may renew an unexpired license by paying the
required renewal fee to the department before the license
expiration date.
(d) A person whose license has been expired for 90 days or
less may renew the license by paying to the department [the required
renewal fee and] a fee that is equal to 1-1/4 times [half] the
amount of the renewal fee [for the license]. If a license has been
expired for more than 90 days but less than one year [two years],
the person may renew the license by paying to the department [all
unpaid renewal fees and] a fee that is equal to 1-1/2 times the
amount of the renewal fee [for the license].
(e) Except as provided by Section 603.303, a person whose
license has been expired for one year [two years] or more may not
renew the license. The person may obtain a new license by
submitting to reexamination and complying with the requirements and
procedures for obtaining an original license.
(f) Before the 30th day before a person's license expiration
date, the department shall send written notice of the impending
license expiration to the person at the person's last known address
according to department [board] records.
SECTION 43. Section 603.303, Occupations Code, is amended
to read as follows:
Sec. 603.303. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER. (a) The department [board] may renew without
reexamination an expired license of a person who was licensed as a
perfusionist in this state, moved to another state, and is licensed
or certified and has been in practice in the other state for the two
years preceding the date the person applies for renewal.
(b) The person must pay to the department [board] a fee that
is equal to the amount of the renewal [examination] fee for the
license.
SECTION 44. Section 603.304, Occupations Code, is amended
to read as follows:
Sec. 603.304. CONTINUING EDUCATION. (a) To renew a
license under this chapter, a person must submit proof satisfactory
to the department [board] that the person has complied with the
continuing education requirements prescribed by the department
[board].
(b) The executive commissioner [board] shall establish
continuing education programs for licensed perfusionists and
provisionally licensed perfusionists under this chapter. The
standards of the programs must be at least as stringent as the
standards of the American Board of Cardiovascular Perfusion or its
successor.
(c) The executive commissioner [board] shall:
(1) establish a minimum number of hours of continuing
education required for license renewal under this chapter; and
(2) develop a process to evaluate and approve
continuing education courses.
(d) The executive commissioner [board] shall identify key
factors for a license holder's competent performance of
professional duties. The executive commissioner [board] shall
adopt a procedure to assess a license holder's participation in
continuing education programs.
SECTION 45. Subchapter G, Chapter 603, Occupations Code, is
amended by adding Section 603.305 to read as follows:
Sec. 603.305. GROUNDS FOR REFUSING RENEWAL. The department
may refuse to renew the license of a person who fails to pay an
administrative penalty imposed under Subchapter K unless
enforcement of the penalty is stayed or a court has ordered that the
administrative penalty is not owed.
SECTION 46. Section 603.353, Occupations Code, is amended
to read as follows:
Sec. 603.353. SURRENDER OF LICENSE. A license certificate
issued by the department [board] is the property of the department
[board] and shall be surrendered on demand.
SECTION 47. Section 603.401, Occupations Code, is amended
to read as follows:
Sec. 603.401. GROUNDS FOR DISCIPLINARY ACTION. If a
license holder violates this chapter or a rule or code of ethics
adopted by the executive commissioner [board], the department
[board] shall:
(1) revoke or suspend the license;
(2) place on probation the person if the person's
license has been suspended; [or]
(3) reprimand the license holder; or
(4) refuse to renew the license.
SECTION 48. Section 603.402, Occupations Code, is amended
to read as follows:
Sec. 603.402. HEARING. (a) If the department [board]
proposes to revoke, [or] suspend, or refuse to renew a person's
license, the person is entitled to a hearing before a hearings
officer appointed by the State Office of Administrative Hearings.
(b) The executive commissioner [board] shall prescribe
procedures for appealing to the commissioner [board] a decision to
revoke, [or] suspend, or refuse to renew a license.
SECTION 49. Section 603.403, Occupations Code, is amended
to read as follows:
Sec. 603.403. ADMINISTRATIVE PROCEDURE. A proceeding under
this subchapter to suspend, [or] revoke, or refuse to renew a
license is governed by Chapter 2001, Government Code.
SECTION 50. Subsection (a), Section 603.404, Occupations
Code, is amended to read as follows:
(a) The executive commissioner [board] by rule shall adopt a
broad schedule of sanctions for a violation of this chapter.
SECTION 51. Section 603.405, Occupations Code, is amended
to read as follows:
Sec. 603.405. PROBATION. The department [board] may
require a person whose license suspension is probated to:
(1) report regularly to the department [board] on
matters that are the basis of the probation;
(2) limit practice to areas prescribed by the
department [board]; or
(3) continue the person's professional education until
the license holder attains a degree of skill satisfactory to the
department [board] in those areas that are the basis of the
probation.
SECTION 52. Section 603.406, Occupations Code, is amended
to read as follows:
Sec. 603.406. MONITORING OF LICENSE HOLDER. (a) The
executive commissioner [board] by rule shall develop a system for
monitoring a license holder's compliance with the requirements of
this chapter.
(b) Rules adopted under this section must include
procedures to:
(1) monitor for compliance a license holder who is
ordered by the department [board] to perform certain acts; and
(2) identify and monitor license holders who represent
a risk to the public.
SECTION 53. Section 603.407, Occupations Code, is amended
to read as follows:
Sec. 603.407. INFORMAL PROCEDURES. (a) The executive
commissioner [board] by rule shall adopt procedures governing:
(1) informal disposition of a contested case under
Section 2001.056, Government Code; and
(2) an informal proceeding held in compliance with
Section 2001.054, Government Code.
(b) Rules adopted under Subsection (a) must:
(1) provide the complainant and the license holder an
opportunity to be heard; and
(2) require the presence of a representative of the
attorney general or the department's [board's] legal counsel to
advise the department [board] or the department's [board's]
employees.
SECTION 54. Subsection (a), Section 603.408, Occupations
Code, is amended to read as follows:
(a) The department [board or a three-member committee of
board members designated by the board] shall temporarily suspend
the license of a license holder if the department [board or
committee] determines from the evidence or information presented to
it that continued practice by the license holder would constitute a
continuing and imminent threat to the public welfare.
SECTION 55. Subchapter I, Chapter 603, Occupations Code, is
amended by adding Section 603.409 to read as follows:
Sec. 603.409. REFUND. (a) Subject to Subsection (b), the
department may order a license holder to pay a refund to a consumer
as provided in an agreement resulting from an informal settlement
conference instead of or in addition to imposing an administrative
penalty under this chapter.
(b) The amount of a refund ordered as provided in an
agreement resulting from an informal settlement conference may not
exceed the amount the consumer paid to the license holder for a
service regulated by this chapter. The department may not require
payment of other damages or estimate harm in a refund order.
SECTION 56. Subsection (a), Section 603.451, Occupations
Code, is amended to read as follows:
(a) The department [board] may request the attorney general
or the appropriate county or district attorney to commence an
action to enjoin a violation of this chapter.
SECTION 57. Section 603.4515, Occupations Code, is amended
to read as follows:
Sec. 603.4515. CIVIL PENALTY. (a) A person who violates
this chapter, [or] a rule [or order] adopted by the executive
commissioner, or an order adopted by the commissioner [board] under
this chapter is liable for a civil penalty not to exceed $5,000 a
day.
(b) At the request of the department [board], the attorney
general shall bring an action to recover a civil penalty authorized
under this section.
SECTION 58. Subchapter J, Chapter 603, Occupations Code, is
amended by adding Section 603.453 to read as follows:
Sec. 603.453. CEASE AND DESIST ORDER. (a) If it appears to
the commissioner that a person who is not licensed under this
chapter is violating this chapter, a rule adopted under this
chapter, or another state statute or rule relating to the practice
of perfusion, the commissioner after notice and an opportunity for
a hearing may issue a cease and desist order prohibiting the person
from engaging in the activity.
(b) A violation of an order under this section constitutes
grounds for imposing an administrative penalty under this chapter.
SECTION 59. Section 603.501, Occupations Code, is amended
to read as follows:
Sec. 603.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
department [board] may impose an administrative penalty on a person
licensed under this chapter who violates this chapter or a rule or
order adopted under this chapter.
SECTION 60. Section 603.502, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The executive commissioner by rule shall adopt an
administrative penalty schedule based on the criteria listed in
Subsection (b) for violations of this chapter or applicable rules
to ensure that the amounts of penalties imposed are appropriate to
the violation. The executive commissioner shall provide the
administrative penalty schedule to the public on request.
SECTION 61. Subsection (a), Section 603.503, Occupations
Code, is amended to read as follows:
(a) If the commissioner or the commissioner's designee
determines that a violation occurred, the commissioner or the
designee may issue to the department [board] a report stating:
(1) the facts on which the determination is based; and
(2) the commissioner's or the designee's
recommendation on the imposition of an administrative penalty,
including a recommendation on the amount of the penalty.
SECTION 62. Subsection (b), Section 603.504, Occupations
Code, is amended to read as follows:
(b) If the person accepts the determination and recommended
penalty of the commissioner or the commissioner's designee, the
commissioner [board] by order shall approve the determination and
impose the recommended penalty.
SECTION 63. Subsection (c), Section 603.505, Occupations
Code, is amended to read as follows:
(c) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the commissioner
[board] a proposal for a decision about the occurrence of the
violation and the amount of a proposed administrative penalty.
SECTION 64. Section 603.506, Occupations Code, is amended
to read as follows:
Sec. 603.506. DECISION BY COMMISSIONER [BOARD]. (a) Based
on the findings of fact, conclusions of law, and proposal for
decision, the commissioner [board] by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The notice of the commissioner's [board's] order given
to the person must include a statement of the right of the person to
judicial review of the order.
SECTION 65. Subsections (a) and (b), Section 603.507,
Occupations Code, are amended to read as follows:
(a) Within 30 days after the date the commissioner's
[board's] order becomes final, the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the commissioner's [board's] order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
commissioner or the commissioner's designee by certified mail.
SECTION 66. Subsection (b), Section 603.103, and Section
603.104, Occupations Code, are repealed.
SECTION 67. (a) The Texas State Board of Examiners of
Perfusionists is abolished on the effective date of this Act.
(b) As soon as possible after the effective date of this
Act, the commissioner of state health services shall appoint the
members of the Texas State Perfusionist Advisory Committee as
provided by Section 603.051, Occupations Code, as amended by this
Act. In making initial appointments to the committee, the
commissioner of state health services shall designate one member
for a term expiring February 1, 2007, two members for terms expiring
February 1, 2009, and two members for terms expiring February 1,
2011.
SECTION 68. (a) Not later than January 1, 2006, the
executive commissioner of the Health and Human Services Commission
shall:
(1) adopt the policies required by Sections 603.158
and 603.159, Occupations Code, as added by this Act; and
(2) adopt the rules required by Chapter 603,
Occupations Code, as amended by this Act.
(b) Not later than March 1, 2006, the Department of State
Health Services shall develop the jurisprudence examination
required by Section 603.2535, Occupations Code, as added by this
Act.
SECTION 69. (a) The changes in law made by this Act related
to the filing or investigation of a complaint under Chapter 603,
Occupations Code, as amended by this Act, apply only to a complaint
filed with the Department of State Health Services on or after the
effective date of this Act. A complaint filed before the effective
date of this Act is governed by the law as it existed immediately
before that date, and the former law is continued in effect for that
purpose.
(b) The changes in law made by this Act governing the
eligibility of a person for a license under Chapter 603,
Occupations Code, apply only to an application for a license filed
with the Department of State Health Services under Chapter 603,
Occupations Code, as amended by this Act, on or after the effective
date of this Act. A license application filed before the effective
date of this Act is governed by the law in effect at the time the
application was filed, and the former law is continued in effect for
that purpose.
(c) The change in law made by this Act with respect to
conduct that is grounds for imposition of a disciplinary sanction,
including a refund or a cease and desist order, applies only to
conduct that occurs on or after the effective date of this Act.
Conduct that occurs before the effective date of this Act is
governed by the law in effect on the date the conduct occurred, and
the former law is continued in effect for that purpose.
(d) The change in law made by Section 603.2535, Occupations
Code, as added by this Act, regarding the jurisprudence
examination, applies only to an application for a license filed
with the Department of State Health Services under Chapter 603,
Occupations Code, as amended by this Act, on or after September 1,
2006.
SECTION 70. Notwithstanding Section 603.301, Occupations
Code, as amended by this Act, the fees for an applicant renewing an
expired license under Chapter 603, Occupations Code, before
September 1, 2007, are governed by the law in effect immediately
before the effective date of this Act, and the former law is
continued in effect for that purpose. An applicant who renews an
expired license under Chapter 603, Occupations Code, on or after
September 1, 2007, is subject to the fees provided by Section
603.301, Occupations Code, as amended by this Act.
SECTION 71. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 403 passed the Senate on
March 31, 2005, by the following vote: Yeas 30, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 403 passed the House on
May 17, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor