DEPARTMENT OF REGULATORY AGENCIES 4 CCR 745-1 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _______________________________________________________________________________ Authority The authority for the development and adoption of these Rules is found in sections 12-310-103(4) and 24- 4-103, C.R.S..

Scope and Purpose These Rules affect individuals who apply and are registered as Surgical Assistants and Surgical Technologists, as defined in section 12-310-102, C.R.S.

1.1 Clarification of who is required to register for the Surgical Assistant and Surgical Technologist Registration Program pursuant to section 12-310-102, C.R.S.

A. Anyone who regularly performs the majority of the duties of a surgical assistant or a surgical technologist who is employed, contracted, or credentialed by a healthcare facility needs to register.

B. A person who is performing surgical assistant or surgical technologist functions within the scope of another license, certification or registration does not need to register for the surgical assistant or Surgical Technologist program.

C. Definitions:

1. 1. "Healthcare facility" is defined as a hospital, ambulatory surgical center, freestanding surgical outpatient facility, or similar facility.

1.2 Declaratory Orders, pursuant to section 24-4-105(11), C.R.S.

The purpose of this Rule is to establish procedures for the handling of requests for declaratory orders filed pursuant to the Colorado Administrative Procedures Act at section 24-4-105(11), C.R.S.

A. Any person or entity may petition the Director of the Division of Professions and Occupations (Director) for a declaratory order to terminate controversies or remove uncertainties as to the applicability of any statutory provision or of any rule or order of the Director.

B. The Director will determine, at her discretion and without notice to petitioner, whether to rule upon such petition. If the Director determines that she will not rule upon such a petition, the Director shall promptly notify the petitioner of her action and state the reasons for such decision.

C. In determining whether to rule upon a petition filed pursuant to this Rule, the Director will consider the following matters, among others:

1. 1. Whether a ruling on the petition will terminate a controversy or remove uncertainties as to the applicability to petitioner of any statutory provisions or rule or order of the Director.
2. 2. Whether the petition involves any subject, question or issue that is the subject of a formal or informal matter or investigation currently pending before the Director or a court involving one or more petitioners.
3. 3. Whether the petition involves any subject, question or issue that is the subject of a formal or informal matter or investigation currently pending before the Director or a court but not involving any petitioner.
4. 4. Whether the petition seeks a ruling on a moot or hypothetical question or will result in an advisory ruling or opinion.
5. 5. Whether the petitioner has some other adequate legal remedy, other than an action for declaratory relief pursuant to Colorado Rules of Civil Procedure 57, which will terminate the controversy or remove any uncertainty as to the applicability to the petitioner of the statute, rule, or order in question.

D. Any petition filed pursuant to this rule shall set forth the following:

1. 1. The name and address of the petitioner and whether the petitioner is registered pursuant to Title 12, Article 310.
2. 2. The statute, rule, or order to which the petition relates.
3. 3. A concise statement of all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule, or order in question applies or potentially applies to the petitioner.

E. If the Director determines that she will rule on the petition, the following procedures shall apply:

1. 1. The Director may rule upon the petition based solely upon the facts presented in the petition. In such a case:
   1. a. Any ruling of the Director will apply only to the extent of the facts presented in the petition and any amendment to the petition.
   2. b. The Director may order the petitioner to file a written brief, memorandum, or statement of position.
   3. c. The Director may set the petition, upon due notice to petitioner, for a non- evidentiary hearing.
   4. d. The Director may dispose of the petition on the sole basis of the matters set forth in the petition.
   5. e. The Director may request the petitioner to submit additional facts in writing. In such event, such additional facts will be considered as an amendment to the petition.
   6. f. The Director may take administrative notice of facts pursuant to the Colorado Administrative Procedures Act at section 24-4-105(8), C.R.S., and may utilize her experience, technical competence, and specialized knowledge in the disposition of the petition.
2. 2. If the Director rules upon the petition without a hearing, she shall promptly notify the petitioner of her decision.
3. 3. The Director may, at her discretion, set the petition for hearing, upon due notice to petitioner, for the purpose of obtaining additional facts or information or to determine the truth of any facts set forth in the petition or to hear oral argument on the petition. The hearing notice to the petitioner shall set forth, to the extent known, the factual or other matters that the Director intends to inquire.
4. 4. For the purpose of such a hearing, to the extent necessary, the petitioner shall have the burden of proving all the facts stated in the petition; all of the facts necessary to show the nature of the controversy or uncertainty; and the manner in which the statute, rule, or order in question applies or potentially applies to the petitioner and any other facts the petitioner desires the Director to consider.

F. The parties to any proceeding pursuant to this Rule shall be the Director and the petitioner. Any other person may seek leave of the Director to intervene in such a proceeding, and leave to intervene will be granted at the sole discretion of the Director. A petition to intervene shall set forth the same matters as are required by section (D) of this Rule. Any reference to a "petitioner" in this Rule also refers to any person who has been granted leave to intervene by the Director.

G. Any declaratory order or other order disposing of a petition pursuant to this Rule shall constitute agency action subject to judicial review pursuant to the Colorado Administrative Procedures Act at section 24-4-106, C.R.S.

1.3 Reporting Criminal Convictions, Judgments, and Administrative Proceedings

This Rule establishes the reporting procedures for the information referenced in section 12-310-103(3)(b), C.R.S.

A registrant shall inform the Director, in a manner set forth by the Director, within thirty days of any of the following events:

A. The conviction of the registrant of a misdemeanor related to drugs and alcohol or any felony under the laws of any state or of the United States, or a crime related to the registrant's practice as a surgical assistant or surgical technologist. A guilty verdict, a guilty plea, or a nolo contendere plea accepted by the court is considered a conviction for the purposes of this Rule;

B. A disciplinary action imposed upon the registrant by another jurisdiction that registers or licenses surgical assistants or surgical technologists, which would be a violation of section 12-310- 106(2)(f) or (i), C.R.S., including, but not limited to, a citation, sanction, probation, civil penalty, or a denial, suspension, revocation, or modification of a license or registration whether it is imposed by consent decree, order, or other decision, for any cause other than failure to pay a license or registration fee by the due date or failure to meet continuing professional education requirements;

C. Revocation or suspension by another state board, municipality, federal or state agency of any health services-related license or registration, other than a license or registration for surgical assistants or surgical technologists as described in section 12-310-106, C.R.S.;

D. Any judgment, award, or settlement of a civil action or arbitration in which there was a final judgment or settlement against the registrant for malpractice as a surgical assistant or surgical technologist.

E. The notice to the Director shall include the following information:

1. 1. If the event is an action by a governmental agency (as described above), the name of the agency, its jurisdiction, the case name, and the docket, proceeding, or case number by which the event is designated, and a copy of the consent decree, order, or decision;
2. 2. If the event is a felony conviction or a misdemeanor conviction for drugs or alcohol, the court, its jurisdiction, the case name, the case number, a description of the matter or a copy of the indictment or charges, and any plea or verdict entered by the court. The registrant shall also provide to the Director a copy of the imposition of sentence related to the conviction and the completion of all terms of the sentence within ninety days of such action;
3. 3. If the event concerns a civil action or arbitration proceeding, the court or arbiter, the jurisdiction, the case name, the case number, a description of the matter or a copy of the complaint, and a copy of the verdict, the court or arbitration decision, or, if settled, the settlement agreement and court's order of dismissal.

F. The registrant notifying the Director may submit a written statement with the notice to be included with the registrant records.

1.4 Regarding the continuing duty to report information to the Director's office. Each registrant shall provide notice to the Office within thirty days of any change of address or change in name in a manner established by the Director.

1.5 Armed Services Experience Repealed effective 11/30/2012.

_________________________________________________________________________ Editor’s Notes History Entire rule emer. rule eff. 02/18/2011.

Entire rule eff. 04/14/2011.

Rules 3, 4, 5 eff. 03/30/2012.

Rule 5 repealed eff. 11/30/2012.