Part 24. TEXAS BOARD OF VETERINARY MEDICAL EXAMINERS

Chapter 575. PRACTICE AND PROCEDURE

22 TAC §575.27

The Texas Board of Veterinary Medical Examiners adopts the repeal of §575.27, concerning Complaints--Receipt, Investigation and Disposition. The repeal is adopted without changes to the proposal as published in the March 9, 2001, issue of the Texas Register (26 TexReg 1967).

The repeal is needed because the section is outdated and does not reflect the current complaint procedures of the Board. A new section will be adopted to replace the repealed section.

No comments were received regarding adoption of the repeal.

The repeal is adopted under the authority of §801.151(a) of the Texas Occupations Code which gives the Board authority to adopt rules necessary to administer the Veterinary Licensing Act.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 2, 2001.

TRD-200103751

Ron Allen

Executive Director

Texas Board of Veterinary Medical Examiners

Effective date: July 22, 2001

Proposal publication date: March 9, 2001

For further information, please call: (512) 305-7555

22 TAC §575.27

The Texas Board of Veterinary Medical Examiners adopts new §575.27, concerning Complaints--Receipt, Investigation and Disposition. The new section is adopted without changes to the proposed text as published in the March 9, 2001, issue of the Texas Register (26 TexReg 1967) .

The section updates the Board's current practices with regard to filing and investigating of complaints, informal disciplinary conferences and administrative law hearings. No substantive changes have been proposed. Adoption of the new section will explain in clear terms to both the complainant and respondent veterinarian the Board's procedures in processing complaints and the rights of the parties involved in the process. By restating these procedures, the Board will encourage public understanding and acceptance of the Board's complaint process.

One written comment on the section was received from Susan Hopper, D.V.M. Dr. Hopper suggested that the Board consider establishing a filing fee for complaints submitted to the Board. The Board responds that it is not legislatively empowered to establish a fee. In addition, a fee would have a chilling effect on the right of the public to file complaints against veterinarians and would be contrary to public policy set out in the Veterinary Licensing Act. Dr. Hopper also feels that the Board's investigators do not always obtain statements from all witnesses in a complaint case. The Board feels that the new section encourages witnesses with relevant knowledge to come forward with statements. The respondent veterinarian is urged to provide all relevant information, including any statements from witnesses, in the veterinarian's response to the complaint. Finally, Dr. Hopper objects that all complaint information in the investigation file is not available to the respondent veterinarian before the convening of the informal conference. The Board notes that the informal conference is a part of the investigative process and that by law (Texas Occupations Code, §801.207) the investigative record is confidential. If a veterinarian does not agree with the results of an informal conference, the veterinarian has the right to full disclosure of charges and an administrative hearing before the State Office of Administrative Hearings. The Board does not propose any changes to the section based on the comments of Dr. Hopper.

An oral comment was received from Mr. Ellis Gilleland of Austin, Texas. Mr. Gilleland stated that the new section gives too much discretion to the executive director by allowing the executive director to dismiss complaints without public review by the Board The Board notes that the current rules have not been changed in this regard. The executive director makes a determination as to whether a complaint should be processed based on a recommendation of an investigator who first reviews the complaint. Because of the large number of complaints received and the fact that the Board only meets three times a year, it is not feasible for the Board to review each complaint. No changes to the section are proposed based on these comments.

The new section is adopted under the authority of the Texas Occupations Code, §801.151(a). The Board interprets, §801.151(a) as authorizing it to adopt rules necessary to administer Chapter 801, including rules for complaint procedures.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 2, 2001.

TRD-200103752

Ron Allen

Executive Director

Texas Board of Veterinary Medical Examiners

Effective date: July 22, 2001

Proposal publication date: March 9, 2001

For further information, please call: (512) 305-7555

Chapter 741. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS

The State Board of Examiners for Speech-Language Pathology and Audiology (board) adopts amendments to §741.1 and §741.41, concerning speech-language pathology and audiology. Section 741.41 is adopted with changes to the proposed text as published in the March 2, 2001, issue of the Texas Register (26 TexReg 1824). Section 741.1 is adopted without changes and therefore the section will not be republished.

The adopted amendment to §741.1 defines the term "dispense" and renumbers the remaining paragraphs in this section. The adopted amendment to §741.41 clarifies advertising of services with respect to the fitting and dispensing of hearing aids to residents within the State of Texas by facsimile broadcast and Internet providers. The amendments are a result of the Audiology Practices, Inc., Petition for Adoption of a Rule, which was submitted in response to the phenomenal growth in the mail order business through the advent of the Internet and E-commerce.

The public benefit anticipated as a result of enforcing the sections will be to insure that clients seeking treatment of hearing loss through the use of amplification devices receive a comprehensive audiological evaluation to determine the appropriate device needed.

No comments were received on the proposal during the comment period.

A change was made due to staff comments. Concerning §741.41(d)(4), the word "includes" was changed to "including" to clarify the rule.

Subchapter A. DEFINITIONS

22 TAC §741.1

The amendment is adopted under Texas Occupations Code, §401.202, which provides the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce the Texas Occupations Code, Chapter 401.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 2, 2001.

TRD-200103778

Elsa Cardenas-Hagan

Presiding Officer

State Board of Examiners for Speech-Language Pathology and Audiology

Effective date: July 22, 2001

Proposal publication date: March 2, 2001

For further information, please call: (512) 458-7236

22 TAC §741.41

The amendment is adopted under Texas Occupations Code, §401.202, which provides the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce the Texas Occupations Code, Chapter 401.

§741.41.Code of Ethics.

(a) A licensee or registrant shall:

(1) seek appropriate medical consultation whenever indicated;

(2) seek to identify competent, dependable referral sources for clients;

(3) maintain objectivity in all matters concerning the welfare of the client;

(4) terminate a professional relationship when it is reasonably clear that the client is not benefiting from the services being provided; and

(5) provide accurate information to clients and the public about the nature and management of communicative disorders and about the profession and the services rendered.

(b) A licensee or registrant shall not:

(1) engage in the medical treatment of speech-language and hearing disorders;

(2) guarantee, directly or by implication, the results of any therapeutic procedures as follows:

(A) a reasonable statement of prognosis may be made; and

(B) caution must be exercised not to mislead clients to expect results that cannot be predicted from reliable evidence;

(3) delegate any service requiring professional competence of a licensee or registrant to anyone not licensed or registered for the performance of that service;

(4) provide services if the services can not be provided with reasonable skill or safety to the client;

(5) provide any services which create an unreasonable risk that the client may be mentally or physically harmed;

(6) engage in sexual contact, including intercourse, kissing or fondling, with a client or an assistant, intern, or student supervised by the licensee or registrant;

(7) use alcohol or drugs when the use adversely affects or could adversely affect the licensee's or registrant's provision of professional services;

(8) evaluate or treat speech, language, or hearing disorders solely by correspondence;

(9) reveal, without authorization, any professional or personal information about the person served professionally, unless required by law to do so, or unless doing so is necessary to protect the welfare of the person or of the community;

(10) participate in activities that constitute a conflict of professional interest which may include the following:

(A) the exclusive recommendation of a product that the individual owns or has produced;

(B) lack of accuracy in the performance description of a product a licensee or registrant has developed; or

(C) the restriction of freedom of choice for sources of services or products;

(11) use his or her professional relationship with a client, intern, assistant, or student to promote for personal gain or profit any item, procedure, or service unless the licensee or registrant has disclosed to the client, intern, assistant, or student the nature of the licensee's or registrant's personal gain or profit; and

(12) misrepresent his or her training or competence.

(c) A licensee or registrant shall fully inform clients of the:

(1) results, in writing, of an evaluation within 60 days;

(2) nature and possible effects of the services rendered; and

(3) nature and possible effects of activities if the client is participating in research or teaching activities.

(d) A licensee or registrant shall not present false, misleading, deceptive, or not readily verifiable information relating to the services of the licensee or registrant or any person supervised or employed by the licensee or registrant which includes, but is not limited to:

(1) use of professional or commercial affiliations in any way that would mislead clients or the public;

(2) presenting false, misleading, or deceptive information in connection with an application by the licensee or registrant for a license issued under the Texas Occupations Code, Chapter 401, or for employment to provide speech-language pathology or audiology services;

(3) presenting false, misleading, or deceptive information relating to the following:

(A) any advertisement, announcement, or presentation;

(B) any announcement of services;

(C) letterhead or business cards;

(D) commercial products;

(E) billing statements;

(F) facsimile broadcast; or

(G) Internet website.

(4) presenting false, misleading, or deceptive advertising that is not readily subject to verification including any manner of communication referenced in paragraph (3) of this subsection and advertising that:

(A) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;

(B) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;

(C) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated;

(D) contains a testimonial;

(E) causes confusion or misunderstanding as to the credentials, education, or licensure of a health care professional;

(F) advertises or represents that health care insurance deductibles or co-payments may be waived or are not applicable to health care services to be provided if the deductibles or co-payments are required;

(G) advertises or represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or co-payments are required;

(H) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; and

(I) advertises or represents in the use of a professional name, a title, or professional identification that is expressly or commonly reserved to or used by another profession or professional.

(e) A licensee or registrant shall maintain accurate records of professional services rendered as follows:

(1) records must be maintained for seven consecutive years;

(2) records are the responsibility and property of the entity or individual who owns the practice or the practice setting; and

(3) records created as a result of treatment in a school setting shall be maintained as part of the student's permanent school record.

(f) A licensee or registrant shall make a reasonable attempt to notify each client of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board by providing notification on:

(1) a sign prominently displayed in the primary place of business of each licensee; and

(2) a written document such as a written contract, a bill for service, or office information brochure provided by a licensee or registrant to a client or third party.

(g) A licensee or registrant shall bill a client or a third party only for the services actually rendered in the manner agreed to by the licensee or registrant and the client or the client's authorized representative and shall:

(1) provide, in plain language, a written explanation of the charges for speech-language pathology and/or audiology services previously made on a bill or statement for the client upon the written request of a client, a client's guardian, or a client's parent, if the client is a minor; and

(2) comply with the Health and Safety Code, §311.0025, which prohibits improper, unreasonable, or medically unnecessary billing by hospitals or health care professionals.

(h) A licensee or registrant shall inform the board of violations of this code of ethics or of any other provision of the chapter by:

(1) complying with any order relating to the licensee or registrant which is issued by the board;

(2) not aiding or abetting the practice of an unlicensed person when that person is required to have a license or registration under the Texas Occupations Code, Chapter 401;

(3) reporting in accordance with the Family Code, §261.101(b), if there is cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect by any person;

(4) not interfering with a board investigation or disciplinary proceeding by willful misrepresentation of facts to the board or the board's designee or by the use of threats or harassment against any person; and

(5) cooperating with the board by furnishing required documents or papers and by responding to a request for information from or a subpoena issued by the board or the board's designee within 30 days of the request.

(i) A supervisor of an intern or assistant shall:

(1) ensure that all services provided are in compliance with this chapter and the Texas Occupations Code, Chapter 401, such as verifying:

(A) the intern or assistant holds a license;

(B) the supervisor has been approved by the board office;

(C) the scope of practice is appropriate; and

(D) the intern or assistant is qualified to perform the procedure;

(2) be responsible for all client services performed by the intern or assistant;

(3) provide appropriate supervision after the board office approved the supervisory arrangement; and

(4) limit the number of interns and assistants being supervised in order to assure that the appropriate level of service is provided to the client/patient in accordance with subsection (b)(4) of this section, §741.62(f) of this title (relating to Requirements for an Intern in Speech-Language Pathology License), §741.65(g)-(h) of this title (relating to Requirements for an Assistant in Speech-Language Pathology License), §741.82(f) of this title (relating to Requirements for an Intern in Audiology License), and §741.85(g)-(h) of this title (relating to Requirements for an Assistant in Audiology License). The supervisor shall be responsible for all clients/patients who are receiving services from the intern or assistant he or she is supervising.

(j) In addition to the provisions listed in subsection (i) of this section, a supervisor of an assistant shall:

(1) be responsible for evaluations, interpretation, and case management of the assistant's clients; and

(2) not designate anyone other than a licensed speech-language pathologist or intern in speech-language pathology to represent speech-language pathology to an Admission, Review, and Dismissal (ARD).

(k) A licensed intern or assistant shall abide by the decisions made by the supervisor relating to the intern's or assistant's scope of practice. In the event the supervisor requests that the intern or assistant violate this chapter; the Texas Occupations Code, Chapter 401; or any other law, the intern or assistant shall refuse to do so and immediately notify the board office and any other appropriate authority.

(l) A licensee or registrant shall not intentionally or knowingly offer to pay or agree to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, or corporation for securing or soliciting patients or patronage for or from any health care professional. The provisions of the Health and Safety Code, §161.091, concerning the prohibition of illegal remuneration apply to licensees.

(m) A licensee or registrant who provides direct patient care shall comply with the Health and Safety Code, Chapter 85, Subchapter I, concerning the prevention of the transmission of HIV or Hepatitis B virus by infected health care workers.

(n) A licensee or registrant shall be subject to disciplinary action by the board if the licensee or registrant is issued a public letter of reprimand, is assessed a civil penalty by a court, or has an administrative penalty imposed by the attorney general's office under the Texas Code of Criminal Procedure, Article 56.31, relating to the Crime Victims Compensation Act.

(o) A licensee's or registrant's renewal shall be subject to the Family Code, Chapter 232, concerning failure to pay child support.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 2, 2001.

TRD-200103779

Elsa Cardenas-Hagan

Presiding Officer

State Board of Examiners for Speech-Language Pathology and Audiology

Effective date: July 22, 2001

Proposal publication date: March 2, 2001

For further information, please call: (512) 458-7236