SECTION 295.205. Certification: Applications, Denials, and Renewals

(a) General requirements. Applications for initial or renewal certification under these sections must be made on the appropriate forms provided by the Texas Department of Health (department). The application shall be signed by the applicant and must be accompanied by a check or money order, made payable to the Texas Department of Health, for the amount of the initial or renewal certification fee. Only applications that are complete shall be considered by the department; the duty to meet all requirements for certification rests with the applicant. For specific requirements for the various certification disciplines, refer to the sections applicable to that discipline relating to certification requirements.

(b) Inquiries. Potential applicants who wish to discuss or obtain information concerning qualification requirements may do so by calling the department's Environmental Lead Program at [phone] or [phone] (toll-free in Texas). The applicant may also visit the program's website at http://www.tdh.state.tx.us/beh/lead to obtain information and to download forms.

(c) Denials. The department may deny an application for initial or renewal certification if the applicant fails to meet the standards established by these sections. If a time period is specified, applicants may not reapply for that period.

(1) past history of assessed penalties from violations of these sections by the applicant and/or the applicant's employees or agents--three years;

(2) evidence that the applicant cannot be legally employed in the United States;

(3) fraud, misrepresentation, or deception in obtaining, attempting to obtain, or renewing a certificate--three years;

(4) failure to submit the required appropriate documentation within 60 days of a written request by the department for consideration toward granting certification;

(5) failure to submit the required fee for initial certification or when renewing a certification, including any additionally required late fees within 60 days of a written request;

(6) failure to maintain or to permit inspection of the records required of all certified persons--one year;

(7) employing or permitting an unauthorized person or individual to work on any lead project or operation--one year;

(8) engaging in or attempting to engage in a lead-related activity without a valid certification--three years;

(9) failure to comply with any rule adopted by the board or order issued by the department--one year;

(10) failure to meet the terms of reciprocity as described in §295.215(a) of this title (relating to Reciprocity);

(11) conviction within the past five years of a felony or a misdemeanor related to conditions for which a person engaged in lead activities--three years;

(12) failure of a certified person to complete their responsibilities during a lead project or operation due to insufficient financial resources--three years;

(13) failure to prevent lead contamination of areas adjacent to the abatement area--three years;

(14) failure to pass the state certification examination with a score of at least 70% correct in no more than three attempts within six months of completing the appropriate training course(s);

(15) engaging in cheating practices on any state certification examination--three years;

(16) failure to provide a certification application with an original signature of the applicant (not photocopied, facsimiled, or electronically reproduced);

(17) failure to successfully complete the required appropriate training course(s) from a department-accredited training program provider for consideration toward granting certification;

(18) failure to successfully complete the required appropriate refresher training course(s) from a department-accredited training program provider for consideration toward granting renewal certification;

(19) failure to successfully complete the required appropriate refresher training course(s) from a department-accredited training program provider no sooner than 180 days prior to the certification's expiration date or within one year beyond the certification expiration date;

(20) failure to submit a complete renewal certification application within one year beyond the three-year certification expiration date of the previous certification;

(21) failure to submit a complete initial certification application within six months after passing the state certification examination with a score of at least 70% correct;

(22) failure to submit a complete initial certification application, including documentation of any additionally required refresher training course(s), within one year after completing the additionally required refresher training course, and within three years of passing the state certification examination with a score of at least 70% correct; or

(23) failure to submit a complete initial certification application, including documentation of any additionally required refresher training course(s), within one year after completing the additionally required refresher training course(s), and within three years of completing the original training course.

(d) Administrative penalty. In accordance with §295.220 of this title (relating to Compliance: Administrative Penalty) an administrative penalty may be assessed, for fraud or misrepresentation in obtaining, attempting to obtain, or renewing a certification.

(e) Appeal of certification denial. A denial of an initial or renewal certification application may be appealed by the applicant. The hearing will be conducted as outlined in subsection (f)(5) of this section. The details for requesting a hearing will be included in each letter of denial.

(f) Processing initial or renewal certification applications.

(1) Time periods. Applications for initial or renewal certification will be processed within 60 days of receipt by issuing a certification or by providing a written notice to the applicant outlining the reasons why the application is deficient. In cases of a deficient application, the certification will be issued within 60 days of the applicant meeting all the certification requirements including receipt of all acceptable documents at the department.

(2) Reimbursement of fees. Initial or renewal certification application fees will be refunded only when the department does not process a completed application in the time period specified, or an applicant is not able to meet the certification requirements. If fee amounts paid to the department are in excess of the correct fee amount, the excess payment will be reimbursed. Reimbursement of fees paid for a certification application not meeting the requirements will be made, minus a $25 administrative fee.

(3) Denial of an initial or renewal certification application due to abandonment of the application does not constitute grounds for reimbursement. Abandonment is defined as failure to respond to a written request of the department by the applicant for a period of 90 days.

(4) Appeal of reimbursement denial. If a request for reimbursement authorized by this subsection is denied, the applicant may then appeal to the commissioner of health for a resolution of the dispute. The applicant shall give written notice to the commissioner by writing to the chief, Environmental Lead Branch, the designated representative of the commissioner, requesting reimbursement of all filing fees paid because his/her initial or renewal certification application was not processed within the prescribed time period or the applicant can prove that he/she did respond to a written request of the department within 90 days of that request. The branch chief shall submit a written report of the facts related to the processing of the application and good cause for exceeding the established time periods or evidence that the application was abandoned. The commissioner will determine the final action and provide written notification of his/her decision to the applicant and the branch chief.

(5) Contested case hearing. If at any time during the processing of the initial or renewal certification application, a contested case proceeding arises, the applicant may request a hearing in accordance with the department's Fair Hearing Procedures found at 25 TAC, §§1.51 - 1.55.

(g) Reminder notices. Not later than the 60th day before the date a person's or firm's certification is scheduled to expire, the department, as a service to the certified person or firm, shall send written notice of the impending expiration to the person or firm at the person's or firm's last known address according to the records of the department. For those individuals or firms issued a three-year certification prior to January 1, 2005, at least 60 days before the end of years one and two of the three-year certification period, the department, as a service to the certified person or firm, shall send a reminder notice of the impending due-date of their annual fee, including an annual fee payment coupon, to the certified person's or firm's last known address according to the records of the department. It is the responsibility of the certified person or firm to keep the department informed of their current address, or change of address for all certification categories, and to take action to keep their certification current or renew their certification whether or not they have received the notification from the department. Failure by the department to send the timely notice, including any annual fee payment coupon, creates no liability to the department and does not relieve the applicant of the obligation to file a timely renewal application or making a timely annual fee payment. The reminder notice will state:

(1) the type of certification requiring payment of the annual fee or certification renewal fee;

(2) the time period allowed for payment of the annual fee or certification renewal fee; and

(3) the amount of the annual fee or certification renewal fee.

(h) Certification renewal requirements.

(1) A certification may be renewed for an additional two-year term provided that the person:

(A) is qualified to be certified;

(B) pays to the department the proper certification renewal fee;

(C) submits to the department a complete certification renewal application on the prescribed form along with all required documentation;

(D) successfully completes the requirements for certification renewal;

(E) has complied with all final orders resulting from any violations of these sections; and

(F) submits a copy of the refresher training course certificate(s), if required.

(2) Expired certifications. A person whose certification has been expired for:

(A) 90 days or less may renew the certification by paying to the department a renewal fee that is equal to 1-1/2 times the normally required renewal fee;

(B) more than 90 days but less than one year may renew the certification by paying to the department a renewal fee that is two times the normally required renewal fee;

(C) one year or more may not renew their certification. The person may become re-certified by complying with the current requirements and procedures, including any examination requirements, for an original certification.

(3) Renewal by out-of-state practitioner. A person who was certified in this state, moved to another state, and is currently certified and has been in practice in the other state for the two years preceding the date of application, may obtain a new certification without any applicable reexamination. The person must pay to the department a fee that is equal to two times the normally required renewal fee for the certification.

(i) Prohibition. Practicing with an expired certification is prohibited. If a certification holder makes a timely and sufficient application for the renewal of the certification by the expiration date, the current certification in his/her possession does not expire until the application has been finally approved or denied by the department. Certifications which have been expired for a period of one year or more beyond the expiration date cannot be renewed. The person or firm whose certification has been expired for one year or more may become re-certified by complying with the current requirements and procedures, including any examination requirements, for an original certification.

(j) Replacements. A certified person or firm may obtain a replacement certificate and/or identification (ID) card by submitting such request in writing on a department-issued form along with the reissuance fee of $20 for each official document requested.

(k) Retention of control. The department may, at any time after the filing of any application and before the expiration of any certification, require:

(1) additional written information and assurances; and

(2) cooperation with any inspections initiated by the department, or the production of any documentary or other evidence that the department considers necessary to determine whether the certification should be granted, delayed, denied, modified, suspended or revoked.

(l) Change of name, address, telephone number, business name, organization affiliation, and/or firm's owner or authorized agent. The Texas Department of Health (department) must be notified in writing by the certified person or firm of these changes from that person's or firm's original application for certification on file at the department no later than 60 days after that change. Failure to maintain current information on file with the department may result in the suspension of the certification.

(m) TexasOnline. The department is authorized to collect subscription and convenience fees, in amounts determined by the TexasOnline Authority, to recover costs associated with processing certification applications, examination registrations, and replacement applications through TexasOnline, in accordance with the Texas Government Code, §2054.111 (relating to Use of TexasOnline Project).

Source Note: The provisions of this §295.205 adopted to be effective February 19, 1996, 21 TexReg 968; amended to be effective May 10, 1998, 23 TexReg 4280; amended to be effective March 23, 2003, 28 TexReg 2347; amended to be effective January 1, 2005, 29 TexReg 11987