Part 9. TEXAS STATE BOARD OF MEDICAL EXAMINERS

Chapter 175. FEES, PENALTIES, AND APPLICATIONS

22 TAC §175.1

The Texas State Board of Medical Examiners adopts an amendment to §175.1, concerning fees, penalties, and applications, without changes to the proposed text as published in the April 19, 2002, issue of the Texas Register (27 TexReg 3299) and will not be republished.

The adoption will increase the fee for a physician annual registration permit from $330 to $334. The board is mandated by the 77th Legislature through TexasOnline Authority to increase its fees to cover the cost for development of an on-line renewal system.

No comments were received regarding adoption of the rule.

The amendment is adopted under the authority of the Occupations Code Annotated, §153.001, which provides the Texas State Board of Medical Examiners to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; and enforce this subtitle.

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 May 29, 2002.

TRD-200203332

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Effective date: June 18, 2002

Proposal publication date: April 19, 2002

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

22 TAC §§184.1, 184.6, 184.8, 184.13, 184.15

The Texas State Board of Medical Examiners adopts new §§184.1, 184.6, 184.8, 184.13 and 184.15, concerning Surgical Assistants. Sections 184.1, 184.6, 184.8 and 184.13 are adopted without changes to the proposed text as published in the April 19, 2002, issue of the Texas Register (27 TexReg 3300) and will not be republished. Section 184.15 is adopted with nonsubstantive changes to correct an error. Several words were omitted from the original proposal. The text of the rule will be republished.

The new chapter is adopted as a result of House Bill 1183 of the 77th Legislature requiring the board to license and regulate surgical assistants.

Elsewhere in this issue of the Texas Register the Texas State Board of Medical Examiners has withdrawn the previously proposed version of §184.4 which appeared in the April 19, 2002, issue of the Texas Register (27 TexReg 3300). The Texas State Board of Medical Examiners contemporaneously proposes a new version of §184.4 and also proposes §184.4 on an emergency basis.

No comments were received regarding adoption of the proposed rules.

The new sections are adopted under the authority of the Occupations Code Annotated, §153.001, which provides the Texas State Board of Medical Examiners to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; and enforce this subtitle.

§184.15.Grounds for Denial of Licensure and for Disciplinary Action.

The board may refuse to issue a license to any person and may, following notice of hearing as provided for in the APA, take disciplinary action against any surgical assistant that:

(1) fraudulently or deceptively obtains or attempts to obtain a license;

(2) fraudulently or deceptively uses a license;

(3) falsely represents that the person is a physician;

(4) violates the Act, or any rules relating to the practice of surgical assisting;

(5) is convicted of a felony, or has imposition of deferred adjudication or pre-trial diversion;

(6) habitually uses drugs or alcohol to the extent that, in the opinion of the board, the person cannot safely perform as a surgical assistant;

(7) has been adjudicated as mentally incompetent or has a mental or physical condition that renders the person unable to safely perform as a surgical assistant;

(8) has committed an act of moral turpitude. An act involving moral turpitude shall be defined as an act involving baseness, vileness, or depravity in the private and social duties one owes to others or to society in general, or an act committed with knowing disregard for justice, honesty, principles, or good morals;

(9) has acted in an unprofessional or dishonorable manner that is likely to deceive, defraud, or injure any member of the public;

(10) has failed to practice as a surgical assistant in an acceptable manner consistent with public health and welfare;

(11) has committed any act that is in violation of the laws of this state if the act is connected with practice as a surgical assistant; a complaint, indictment, or conviction of a law violation is not necessary for the enforcement of this provision. Proof of the commission of the act while in practice as a surgical assistant or under the guise of practice as a surgical assistant is sufficient for action by the board under this section;

(12) has had the person's license or other authorization to practice as a surgical assistant suspended, revoked, or restricted or who has had other disciplinary action taken by another state regarding practice as a surgical assistant or had disciplinary action taken by the uniformed services of the United States. A certified copy of the record of the state or uniformed services of the United States taking the action is conclusive evidence of it;

(13) unlawfully advertises in a false, misleading, or deceptive manner as defined by §101.201 of the Tex. Occ. Code;

(14) alters, with fraudulent intent, any surgical assistant license, certificate, or diploma;

(15) uses any surgical assistant license, certificate, or diploma that has been fraudulently purchased, issued, or counterfeited or that has been materially altered;

(16) is removed or suspended or has disciplinary action taken by his peers in any professional association or society, whether the association or society is local, regional, state, or national in scope, or is being disciplined by a licensed hospital or medical staff of a hospital, including removal, suspension, limitation of privileges, or other disciplinary action, if that action, in the opinion of the board, was based on unprofessional conduct or professional incompetence that was likely to harm the public. This action does not constitute state action on the part of the association, society, or hospital medical staff;

(17) has repeated or recurring meritorious health care liability claims that in the opinion of the board evidence professional incompetence likely to harm the public; or

(18) sexually abuses or exploits another person during the licensee's practice as a surgical assistant.

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 May 29, 2002.

TRD-200203333

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Effective date: June 18, 2002

Proposal publication date: April 19, 2002

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

Chapter 201. LICENSING AND ENFORCEMENT--PRACTICE AND PROCEDURE

22 TAC §201.8

The Texas Funeral Service Commission (Commission) adopts an amendment to §201.8, relating to Procedures for the Petition for Adoption of Rules without changes to the proposed text as published in the April 19, 2002, issue of the Texas Register (27 TexReg 3303).

The section functions to define procedures on behalf of the consumer for the petition for adoption of rules.

The Commission received no public comments on the proposed amendment.

The amendment is adopted under §651.152 of the Texas Occupations Code. The Commission interprets §651.152 as authorizing it to adopt rules as necessary to administer Chapter 651.

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 May 30, 2002.

TRD-200203349

O.C. "Chet" Robbins

Executive Director

Texas Funeral Service Commission

Effective date: June 19, 2002

Proposal publication date: April 19, 2002

For further information, please call: (512) 936-2466

22 TAC §203.1

The Texas Funeral Service Commission (Commission) adopts an amendment to §203.1, concerning Definitions without changes to the proposed text as published in the April 19, 2002, issue of the Texas Register (27 TexReg 3304).

The section functions to define terms commonly used in the funeral service industry.

The Commission received no public comments on the proposed amendment.

The amendment is adopted under §651.152 of the Texas Occupations Code. The Commission interprets §651.152 as authorizing it to adopt rules as necessary to administer Chapter 651.

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 May 30, 2002.

TRD-200203351

O.C. "Chet" Robbins

Executive Director

Texas Funeral Service Commission

Effective date: June 19, 2002

Proposal publication date: April 19, 2002

For further information, please call: (512) 936-2466

22 TAC §203.20

The Texas Funeral Service Commission (Commission) adopts §203.20, concerning Cash Advance Items, without changes to the proposed text as published in the April 19, 2002, issue of the Texas Register (27 TexReg 3303).

The Texas Funeral Service Commission adopts the new section to conform to Occupations Code, §651.406 and the Federal Trade Commission funeral rule.

The Texas Funeral Directors Association requested a public hearing to discuss §203.20. The Commission held the public hearing on May 21, 2002, and received public comment at this hearing from 3 individuals, a summary of which follows:

Summary of Comments and Commission Responses:

1. Comment: The adoption of the new statute concerning the Cash Advance Items will impose a requirement on Texas Funeral Providers that is different from the Federal Trade Commission (FTC) funeral rule. If §203.20 is adopted, confusion will again exist as to what is required concerning cash advance items. To impose such requirements in a state rule would create an inconsistency with the FTC funeral rule and result in the confusion that both the industry and the government agreed years ago should be eliminated.

Commission Response: The Commission disagrees with this comment. The FTC funeral rule states that if the state requirement affords an overall level of protection to consumers which is as great as, or greater than, the protection afforded by the FTC funeral rule, then the FTC funeral rule will not be in effect in that state to the extent specified by the FTC in its determination, for as long as the state administers and enforces effectively the state requirement.

The Commission's current statute at Texas Occupations Code, §651.406(a)(2) states:

A purchase agreement must state the amount paid or owed to another person by the funeral establishment on behalf of the customer and each fee charged the customer for the cost of advancing funds or becoming indebted to another person on behalf of the customer

The new §203.20 mirrors the statute's language above. The Commission is without authority to adopt a rule allowing funeral establishments to disclose less information on the funeral purchase agreement than is required by the relevant statute.

2. Comment: We would like to see language added that mirrors §203.7(a)(2), (b)(5) and §203.8(f)(2).

Commission Response: The Commission disagrees with this suggested comment. Indeed, §203.7 originated from the FTC funeral rule, as does this new §203.20. Adoption of this new section does not negate or replace §203.7 or §203.8. This rule merely states that it is deceptive to claim that something costs one amount, when in fact it costs another amount.

The Commission's current statute at Texas Occupations Code, §651.406(a)(2) states:

A purchase agreement must state the amount paid or owed to another person by the funeral establishment on behalf of the customer and each fee charged the customer for the cost of advancing funds or becoming indebted to another person on behalf of the customer

The new §203.20 mirrors the statute's language above. The Commission is without authority to adopt a rule allowing funeral establishments to disclose less information on the funeral purchase agreement than is required by the relevant statute.

3. Comment: Consumers are requesting more non-traditional services these days. Having been brought up in the funeral business, I was always taught that anything a family asks you for, you try to get, try to provide. In turn, obviously to stay in business you have to be able to make a profit on it. Say a family comes in and requests "can you get a catering for me" and then we say "well, it's X amount of dollars" or say "let me get the costs and estimate the cost." It's very confusing to me as a funeral director and I've been licensed 18 years, of what the intent of what we are trying to pass here. So in turn as a funeral director if it is confusing to me, it's confusing to the consumer. More and more families are saying, "make it simple" or "what's the bottom line." As an industry, we have always supported the FTC rule as far as disclosures, but I disagree with limiting us as an industry by saying that if something is not on a general price list, you can't charge for it, when society is changing everyday and people's requests are changing more and more.

Commission's Response: The Commission disagrees with this comment. The new rule does not refer to a "general price list." This rule merely states that it is deceptive to claim that something costs one amount, when in fact it costs another amount.

The section is adopted under §651.152 of the Texas Occupations Code, which authorizes the Commission to issue such rules and regulations as may be necessary to administer Chapter 651.

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 May 30, 2002.

TRD-200203352

O.C. "Chet" Robbins

Executive Director

Texas Funeral Service Commission

Effective date: June 19, 2002

Proposal publication date: April 19, 2002

For further information, please call: (512) 936-2466