TITLE 22.EXAMINING BOARDS

Part 9. TEXAS STATE BOARD OF MEDICAL EXAMINERS

Chapter 163. LICENSURE

22 TAC §163.1, §163.10

The Texas State Board of Medical Examiners proposes amendments to §163.1 and §163.10, concerning Licensure. The amendments are made to definitions and relicensure requirements.

Michele Shackelford, General Counsel, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendments are in effect there will be no fiscal implications to state or local government as a result of enforcing the rules as proposed.

Ms. Shackelford also has determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be updated rules. There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The amendments are proposed 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.

The following are affected by the proposed amendments: Texas Occupations Code Annotated, §§155.001-.008; 155.051.

§163.1.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicate otherwise.

(1) Acceptable approved medical school -- A medical school or college located in the United States or Canada that has been accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Bureau of Professional Education. [ is approved by the board. ]

[(2) Acceptable unapproved medical school -- A school or college located outside the United States or Canada that is not approved by the board but is substantially equivalent to a Texas medical school.]

(2) [ (3) ] Affiliated hospital -- Affiliation status of a hospital with a medical school as defined by the Liaison Committee on Medical Education and documented by the medical school in its application for accreditation.

(3) [ (4) ] Applicant -- One who files an application as defined in this section.

(4) [ (5) ] Application -- An application is all documents and information necessary to complete an applicant's request for licensure including the following:

(A) forms furnished by the board, completed by the applicant:

(i) all forms and addenda requiring a written response must be printed in ink;

(ii) photographs must meet United States Government passport standards;

(B) all documents required under §163.5 of this title (relating to Licensure Documentation); and

(C) the required fee, payable by check through a United States bank.

(5) Continuous -- 12 month periods of uninterrupted post graduate training with no absences greater than 21 days, unless such absences have been approved by the training program.

(6) Eligible for licensure in country of graduation -- An applicant must be eligible for licensure in the country in which the medical school is located except for any citizenship requirements.

(7) Examinations accepted by the board for licensure.

(A) United States Medical Licensing Examination (USMLE), with a score of 75 or better on each step, all steps must be passed within seven years;

(B) Federation Licensing Examination (FLEX), after July 1, 1985, passage of both components within seven years with a score of 75 or better on each component;

(C) Federation Licensing Examination (FLEX), prior to June 30, 1985, with a FLEX weighted average of 75 or better in one sitting;

(D) National Board of Medical Examiners Examination (NBME) or its successor all steps must be passed within seven years;

(E) National Board of Osteopathic Medical Examiners Examination (NBOME) or its successor all steps must be passed within seven years;

(F) Medical Council of Canada Examination (LMCC) or its successor, all steps must be passed within seven years;

(G) State board examination, before January 1, 1977, (with the exception of Virgin Islands, Guam, Tennessee Osteopathic Board or Puerto Rico after June 30, 1963); or

(H) One of the following examination combinations with a score of 75 or better on each part, level, component, or step, all parts, levels, components, or steps must be passed within seven years:

(i) FLEX I plus USMLE 3;

(ii) USMLE 1 and USMLE 2, plus FLEX II;

(iii) NBME I or USMLE 1, plus NBME II or USMLE 2, plus NBME III or USMLE 3;

(iv) NBME I or USMLE 1, plus NBME II or USMLE 2, plus FLEX II;

(v) NBOME I, plus NBOME II, plus FLEX II;

(vi) the NBOME Part I or COMLEX Level I and NBOME Part II or COMLEX Level II and NBOME Part III or COMLEX Level III.

(I) An applicant must pass each part of an examination within three attempts, except that an applicant who has passed all but one part of an examination within three attempts may take the remaining part of the examination one additional time.

(J) Notwithstanding subparagraph (I) of this paragraph, an applicant is considered to have satisfied the requirements of this section if the applicant:

(i) passed all but one part of an examination approved by the board within three attempts and passed the remaining part of the examination within five attempts;

(ii) is specialty board certified by a specialty board that:

(I) is a member of the American Board of Medical Specialties; or

(II) is approved by the American Osteopathic Association; and

(iii) completed in this state an additional two years of postgraduate medical training approved by the board.

(K) An applicant who has not passed an examination for licensure in a ten-year period prior to the filing date of the application must:

(i) pass a specialty certification examination or formal evaluation, recertification examination or formal evaluation, or an examination of continued demonstration of qualifications by a board that is a member of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists within the preceding ten years;

(ii) obtain through extraordinary circumstances, unique training equal to the training required for specialty certification as determined by a committee of the board and approved by the board, including but not limited to participation for at least six months in a training program approved by the board within twelve months prior to the application for licensure; or

(iii) pass the Special Purpose Examination (SPEX) within the preceding ten years.

(8) Examinations administered by the board for licensure -- To be eligible for licensure an applicant must sit for and pass the Texas medical jurisprudence examination administered by the board. A passing score is 75 or better on the Texas medical jurisprudence examinations. The board shall administer the Texas medical jurisprudence examination in writing at times and places designated by the board.

(9) Good professional character -- An applicant for licensure must not be in violation of or committed any act described in the Medical Practice Act, TEX. OCC. CODE ANN. §§164.051-.053.

(10) Graduate of an acceptable unapproved foreign medical school -- An applicant who is a graduate of a school or college located outside the United States or Canada whose school or college:

(A) is not currently undergoing the approval process of the Medical Board of California; and,

(B) is either;

(i) substantially equivalent to a Texas medical school; or

(ii) has not been disapproved by the Medical Board of California.

(11) [ (10) ] One-year training program -- Applicants who are graduates of acceptable approved medical schools must successfully complete one continuous year of postgraduate training approved by the board that is:

(A) accepted for certification by an American Specialty board that is a member of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists; or

(B) accredited by one of the following:

(i) the Accreditation Council for Graduate Medical Education, or its predecessor;

(ii) the American Osteopathic Association;

(iii) the Committee on Accreditation of Preregistration Physician Training Programs, Federation of Provincial Medical Licensing Authorities of Canada;

(iv) the Royal College of Physicians and Surgeons of Canada; or

(v) the College of Family Physicians of Canada; or

(C) a postresidency program, usually called a fellowship, for additional training in a medical specialty or subspecialty in a program approved by the Texas State Board of Medical Examiners.

(12) [ (11) ] Sixty (60) semester hours of college courses -- 60 semester hours of college courses other than in medical school that are acceptable to The University of Texas at Austin for credit on a bachelor of arts degree or a bachelor of science degree; the entire primary, secondary, and premedical education required in the country of medical school graduation, if the medical school is located outside the United States or Canada; or substantially equivalent courses as determined by the board.

(13) Studied medicine in an acceptable unapproved foreign medical school -- An applicant who has studied at a school or college located outside the United States or Canada whose school or college:

(A) is not currently undergoing the approval process of the Medical Board of California; and,

(B) is either;

(i) substantially equivalent to a Texas medical school; or

(ii) has not been disapproved by the Medical Board of California.

(14) [ (12) ] Substantially equivalent to a Texas medical school -- A medical school or college that is an institution of higher learning designed to select and educate medical students; provide students with the opportunity to acquire a sound basic medical education through training in basic sciences and clinical sciences; provide advancement of knowledge through research; develop programs of graduate medical education to produce practitioners, teachers, and researchers; and afford opportunity for postgraduate and continuing medical education. The school must provide resources, including faculty and facilities, sufficient to support a curriculum offered in an intellectual environment that enables the program to meet these standards. The faculty of the school shall actively contribute to the development and transmission of new knowledge. The medical school shall contribute to the advancement of knowledge and to the intellectual growth of its students and faculty through scholarly activity, including research. The medical school shall include, but not be limited to, the following characteristics:

(A) The facilities for basic sciences and clinical training (i.e., laboratories, hospitals, library, etc.) shall be adequate to ensure opportunity for proper education.

(B) The admissions standards shall be substantially equivalent to a Texas medical school.

(C) The basic sciences curriculum shall include the contemporary content of those expanded disciplines that have been traditionally titled gross anatomy, biochemistry, biology , [ and ] histology, physiology, microbiology , [ and ] immunology, pathology, pharmacology and neuroscience, as defined by the Texas Higher Education Coordinating Board.

(D) The fundamental clinical subjects, which shall be offered in the form of required patient-related clerkships, are internal medicine, obstetrics and gynecology, pediatrics, psychiatry, neurology, family practice, introduction to patient/physical examination, and surgery, as defined by the Texas Higher Education Coordinating Board.

(E) The curriculum shall be of at least 130 weeks in duration.

(F) The school shall provide advancement of knowledge through research.

(G) The school shall develop programs of graduate medical education to produce practitioners, teachers, and researchers.

(H) The school shall provide opportunity for postgraduate and continuing medical education.

(I) Medical education courses must be centrally organized, integrated and controlled into a continuous program which was conducted, monitored and approved by the medical school which issues the degree.

(J) All medical or osteopathic medical education received by the applicant in the United States must be accredited by an accrediting body officially recognized by the United States Department of Education as the accrediting body for medical education leading to the doctor of medicine degree or the doctor of osteopathy degree in the United States. In addition, all medical or osteopathic medical education received in Texas must also comply with Chapter 162 of this title (relating to Supervision of Medical School Students) that requires physicians to register with the board prior to supervising medical students who are not enrolled at a medical school that has been accredited by the Liaison Committee on Medical Education or the American Osteopathic Association. This subsection does not apply to postgraduate medical education or training.

(K) An applicant who is unable to comply with the requirements of subparagraph (J) of this paragraph is eligible for an unrestricted license if the applicant:

(i) received such medical education in a hospital or teaching institution Sponsoring or participating in a program of graduate medical education accredited by the Accrediting Council for Graduate Medical Education, the American Osteopathic Association, or the Texas State Board of Medical Examiners in the same subject as the medical or osteopathic medical education if the hospital or teaching institution has an agreement with the applicant's school; or

(ii) is specialty board certified by a board approved by the Bureau of Osteopathic Specialists or the American Board of Medical Specialties.

(15) [ (13) ] Three-year training program -- Applicants who are graduates of, or have studied at an acceptable unapproved foreign medical schools must successfully complete three continuous years of postgraduate training in the United States or Canada , progressive in nature and acceptable for specialty board certification in one specialty area that is:

(A) accredited by one of the following:

(i) the Accreditation Council for Graduate Medical Education;

(ii) the American Osteopathic Association;

(iii) the Committee on Accreditation of Preregistration Physician Training Programs, Federation of Provincial Medical Licensing Authorities of Canada;

(iv) the Royal College of Physicians and Surgeons of Canada;

(v) the College of Family Physicians of Canada; and

(vi) all programs approved by the board after August 25, 1984; or

(B) a board-approved program for which a Faculty Temporary Permit was issued; or

(C) a postresidency program, usually called a fellowship, for additional training in a medical specialty or subspecialty, approved by the Texas State Board of Medical Examiners.

§163.10.Relicensure.

(a) Application for Relicensure. If a physician's annual registration permit has been expired for one year due to failure to submit an application for registration and annual registration fee, it is considered to have been canceled, unless an investigation is pending, and the physician may not obtain a new annual registration permit. The physician must apply for relicensure and may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.

(b) Exemption from Jurisprudence Examination. A person may qualify for a new license without having to take the Texas jurisprudence examination if that person's license is considered canceled for less than two years.

(c) Existing Board Orders at Time of Cancellation.

(1) A physician who allows his or her license to be canceled following nonpayment while under an order of the board may apply for relicensure. Unless otherwise provided, the terms of the order shall be tolled for the period following cancellation.

(2) The licensee shall be required to comply with the terms of the order for either the period of time remaining on the order when the licensee had his or her license cancelled for nonpayment of licensure fees or for an extended period of time as established by the board at the time relicensure.

(3) A physician who allows his or her license to be cancelled following nonpayment while under a suspension order of the board must also demonstrate that his or her return to the practice of medicine is in the physician's and the public's best interest as defined under Chapter 167 of this title (relating to Reinstatement and Reissuance.

(4) The board retains the discretion to add or delete terms and conditions of the tolled order upon the granting of relicensure.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2003.

TRD-200301117

Donald W. Patrick MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: March 30, 2003

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


Chapter 167. REINSTATEMENT AND REISSUANCE

22 TAC §§167.1, 167.2, 167.4 - 167.6

The Texas State Board of Medical Examiners proposes amendments to §§167.1, 167.2, 167.4-167.6, concerning procedures for reinstatement and reissuance of a license.

Elsewhere in this issue of the Texas Register , the Texas State Board of Medical Examiners proposes the rule review for Chapter 167.

Michele Shackelford, General Counsel, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendments are in effect there is possible impact to physicians applying for reinstatement or reissuance of a license because they are required to prove eligibility for licensure at the time of reapplication. This may impact some physicians who would be required to take an examination or become specialty board certified or recertified in order to qualify for licensure. The dollar amount will vary with each case. There will be no effect to state or local government.

Ms. Shackelford also has determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be updated procedures for reinstatement and reissuance of a license. There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The amendments are proposed 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.

The following are affected by the proposed amendments: Texas Occupations Code Annotated, §§155.001-155.008; 156.005; 164.001; 164.004-.009; 164.051; 164.101-.103; 164.151-.154.

§167.1.Reinstatement or Reissuance of Medical License Following Suspension or Revocation.

(a) Reinstatement of Medical License Following Suspension.

(1) An [ The ] applicant whose license has been suspended by order of the board must submit a written request to the board's compliance division and appear [ before the board ] at a probationer show compliance proceeding as described in §187.44 of this title (relating to Probationer Show Compliance Proceedings) and in paragraph (2) of this subsection to request reinstatement of licensure [ license ].

(2) A person may not apply for reinstatement of a license that was suspended before the first anniversary of the date on which the suspension became effective.

(3) A request [ Request ] for reinstatement following suspension cannot be considered more often than annually unless otherwise specified by order [ Order ] of the board [ Board ].

(4) An applicant's request for reinstatement must include evidence that all stipulations for the probation of the suspension have been completed.

(5) A physician who allows his or her license to be cancelled for nonpayment while under a suspension order may apply for relicensure in accordance with §163.10 of this title (relating to Relicensure).

(b) Reissuance of License Following Revocation.

(1) An applicant whose license has been revoked must complete in every detail the application for reissuance of license, including payment of the required application fee.

(2) The applicant whose license has been revoked must submit a written request to the board's licensure division and appear before a committee of the board to request reissuance of license.

(3) A person may not apply for reissuance of a license that was revoked before the first anniversary of the date on which the revocation became effective.

(4) An application [ Application ] for reissuance of a license following revocation cannot be considered more often than annually.

(5) In addition to any other requirement set out in this chapter for reissuance of a license following revocation, an applicant must also demonstrate compliance with current licensure eligibility requirements.

§167.2. Procedure for [ Informal Disposition of ] Requests for Reinstatement.

Pursuant to the Medical Practice Act, §§154.006, 164.003 and 164.151-.154, and the Administrative Procedure Act, Government Code, §2001.056, the following rules shall apply to [ informal ] dispositions of any requests for reinstatement of a medical license following suspension.

(1) The board may make a [ an informal ] disposition of any request for reinstatement of a medical license following suspension by stipulation, agreed order, agreed settlement, consent order, or default.

(2) In the event the board makes such a disposition of a request for reinstatement of a medical license following suspension, the disposition shall be in writing and, if appropriate, the writing shall be signed by the applicant.

(3) To facilitate the expeditious disposition of requests for reinstatement following suspension, the board may provide an applicant with an opportunity to attend a probationer show compliance proceeding in accordance with §187.44 of this title (relating to Probationer Show Compliance Proceedings) [ an informal settlement conference ].

(4) [ If the opportunity for an informal settlement conference is provided to an applicant, the ] In accordance with §187.44 of this title (relating to Probationer Show Compliance Proceedings) an applicant for reinstatement shall be provided with written notice of the time, date, and location of the [ conference ] probationer show compliance proceeding and the rules governing the proceeding by certified mail - return receipt requested, overnight or express mail, or registered mail, to the last mailing address of the applicant or the applicant's attorney on file with the board.

[(5) One or more members of the board or a district review committee shall conduct the informal settlement conference as the board's representative(s). When a board member and a district review committee member conduct such a conference, the board member shall serve as chairman of the conference. In the event that the representatives consist of two board members or two district review committee members, the representative who has seniority on the board or committee shall serve as the chairman of the conference. In the event a public member of the board or a district review committee member serves as the only board representative in such a conference, a board consultant or the board's executive director, if the executive director is a physician, may serve as a medical advisor to the representative.]

(5) [ (6) ] The probationer show compliance proceeding [ informal settlement conference ] shall allow:

(A) the board staff to address whether it is in the best interest of the public and the physician to return to the practice of medicine by presenting a synopsis of the allegations and the basis of the suspension of the applicant's medical license, the facts which the board staff reasonably believes could be proven by competent evidence at a hearing, and whether the applicant has complied with the terms and conditions of the order [ Order ] suspending his license if applicable;

(B) the applicant to reply to the board staff's presentation and present facts the applicant reasonably believes could be proven by competent evidence at a hearing;

(C) presentation of evidence by the staff and the applicant which may include medical and office records, x-rays, pictures, film recordings of all kinds, audio and video recordings, diagrams, charts, drawings, and any other illustrative or explanatory materials which in the discretion of the board's representative(s) are relevant to the proceeding;

(D) representation of the applicant by counsel;

(E) presentation of oral or written statements by the applicant or the applicant's counsel;

(F) presentation of oral or written statements or testimony by witnesses; and,

(G) questioning of witnesses.

(6) [ (7) ] The board's representative(s) shall exclude from the probationer show compliance proceeding [ informal settlement conference ] all persons except witnesses during their testimony or presentation of statements, the applicant, the applicant's attorney or representative, board members, district review committee members, and board staff.

(7) [ (8) ] During the probationer show compliance proceeding [ informal settlement conference ], the board's legal counsel [ or a representative of the Office of the Attorney General ] shall be present to advise the board's representative(s) or the board's employees.

(8) [ (9) ] [ Except with the agreement of the applicant, during ] During the deliberations of an appropriate settlement, the board's representative(s) at a probationer show compliance proceeding [ an informal settlement conference ] shall exclude [ the board staff which presented the allegations and facts related to the request for reinstatement following suspension, ] the applicant, the applicant's attorney or representative, any witnesses, and the general public. A board legal counsel and board staff [ or representative of the Office of the Attorney General ] shall be available to assist the representative(s) in their deliberations.

[(10) After an informal settlement conference has been held, the staff of the board and the board's representative(s) shall be subject to the ex parte provisions of the Administrative Procedure Act with regard to contacts with board members and administrative law judges concerning the case.]

(9) [ (11) ] At the probationer show compliance proceeding [ informal settlement conference, ] the board's representative(s) will attempt to mediate disputed matters, and the board's representative(s) may call upon the board staff at any time for assistance in conducting the proceeding [ informal settlement conference ].

(10) [ (12) ] The board's representative(s) shall prohibit or limit access to the board's investigative file by the applicant, the applicant's attorney or representative, any witnesses, and the public consistent with the Medical Practice Act, §164.007.

[(13) Although notes may be made by the participants, mechanical or electronic recordings shall not be made of settlement discussions, mediation efforts, and the informal settlement conference.]

[(14) The settlement conference shall be informal and shall not follow the procedures established under Chapter 187 of this title (relating to Procedure) for contested cases.]

(11) [ (15) ] At the conclusion of the probationer show compliance proceeding [ informal settlement conference ], the board's representative(s) shall make recommendations for disposition of the request for reinstatement which may include deferral pending receipt of additional information, denial of the request, or in accordance with board rule §187.43 [ Board Rule §187.38 ] of this title (relating to Proceedings for the Modification/Termination of Agreed Orders and Disciplinary Orders), a modification or termination of the agreed or disciplinary order under which the suspension was originally granted. The board's representative(s) may make recommendations to the applicant for resolution of the issues. Such recommendations may include any reasonable restrictions authorized by the Act and any other remedial actions in the public interest. These recommendations may be subsequently modified by the board's representative(s) or staff based on new information, a change of circumstance, or to expedite a resolution in the interest of protecting the public. These recommendations may be adopted, modified, or rejected by the duly convened board or through the duly authorized actions of the board's Disciplinary Process Review Committee.

(12) [ (16) ] The applicant may either accept or reject the settlement recommendations proposed by the board's representative(s). If the applicant accepts the recommendations, the applicant shall execute the settlement agreement in the form of an agreed order or affidavit as soon thereafter as is practicable. If the applicant rejects the proposed agreement, the applicant shall be given the option of requesting a formal hearing. If the applicant requests a formal hearing, the matter shall be referred to the board's staff for hearing, as described in Chapter 187, Subchapter C of this title (relating to Formal Proceedings at SOAH [ Hearing ]).

(13) [ (17) ] Following acceptance and execution by the applicant of the settlement agreement, the agreement shall be submitted to the board for approval.

(14) [ (18) ] The following as stated in subparagraphs (A)-(C) of this paragraph relate to consideration of an agreed disposition by the board.

(A) Upon an affirmative majority vote, the board shall enter an order approving the proposed settlement agreement. The order shall bear the signature of the president of the board or of the officer presiding at such meeting and shall be referenced in the minutes of the board.

(B) If the board does not approve a proposed settlement agreement, the applicant shall be so informed and the matter shall be referred to the board staff for appropriate action to include further negotiation, further investigation, an additional probationer show compliance proceeding [ informal settlement conference ] or a formal hearing.

(C) To promote the expeditious resolution of any request for reinstatement, with the approval of the executive director, a member of the Executive Committee, or the Disciplinary Process Review Committee, board staff may present a proposed settlement agreement to the board for consideration and acceptance without conducting a probationer show compliance proceeding [ an informal settlement conference ]. If the board does not approve such a proposed settlement agreement, the applicant shall be so informed and the matter shall be referred to the board staff for appropriate action to include further negotiation, further investigation, a probationer show compliance proceeding [ an informal settlement conference ] or a hearing.

§167.4.Best Interests of Physician.

Pursuant to §164.151 of the Act, a physician may be reissued a medical license or reinstated to the practice of medicine only if the physician demonstrates that the reissuance or reinstatement is in the physician's best interests. Best interests of the physician may include, but not be limited to, an assessment by the Board as to whether the physician:

(1) understands all issues of competency, technical, educational, training or ethical limitations as found in the order [ Order ] which led to the revocation or suspension of a license; and

(2) demonstrates that risk of further disciplinary proceedings for the revocation or suspension of the license of the physician will be minimal or minimized if the physician is returned to the practice of medicine.

§167.5.Best Interests of the Public.

Pursuant to §164.151 of the Act, a physician may be reissued a medical license or reinstated to the practice of medicine only if the physician demonstrates that the reissuance or reinstatement is in the best interests of the public. Best interests of the public may include, but not be limited to, an assessment by the Board as to whether the physician demonstrates:

(1) remediation of any competency, technical, educational, training or ethical limitations as found in the order [ Order ] leading to revocation or suspension of a license or any competency, technical, educational, training or ethical limitations found since the entry of the order;

(2) that risk of further disciplinary proceedings for the revocation or suspension of the license will be minimal or minimized if the physician is returned to the practice of medicine and the public will adequately be protected, whether by probationary order [ Order ] or other terms and conditions as agreed to by the physician or authorized by §§164.101-.102 of the Act;

(3) that an adequate practice plan will be in place to reduce or eliminate the risk of further disciplinary proceedings by the board [ Board ]; and

(4) continued medical competency such that the physician is able to provide the same standard of medical care as any applicant for a license under Chapter 163 of this title (relating to Licensure). Further, the board [ Board ] shall require an applicant for reissuance to meet the qualifications and requirements set forth in Chapter 163 of this title, including, but not limited to documentation of completion of the process of a current application for licensure.

§167.6.Final Action.

In any contested case proceeding regarding a reinstatement or reissuance request, the order [ Order ] revoking or suspending a license is a final action and shall not be subject to further litigation as to its findings of fact or conclusions of law, provided, however, that the order [ Order ] may be admissible and relevant for purposes of establishing the basis for the original action and subsequent efforts after the order [ Order ] by the physician to demonstrate reinstatement of the license is in the best interests of the public and the applicant physician.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2003.

TRD-200301118

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: March 30, 2003

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


Chapter 169. AUTHORITY OF PHYSICIANS TO SUPPLY DRUGS

22 TAC §§169.1 - 169.5, 169.7

The Texas State Board of Medical Examiners proposes amendments to §§169.1-169.5, 169.7, concerning authority of physicians to supply drugs. The amendments are necessary for general clean up of the chapter.

Elsewhere in this issue of the Texas Register , the Texas State Board of Medical Examiners proposes the rule review for Chapter 169.

Michele Shackelford, General Counsel, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendments are in effect there will be no fiscal implications to state or local government as a result of enforcing the rules as proposed.

Ms. Shackelford also has determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be updated rules. There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The amendments are proposed 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.

The following are affected by the proposed amendments: Texas Occupations Code Annotated, §§157.002; 158.001-.003.

§169.1.Purpose.

The purpose of this chapter is to provide physicians with guidelines for supplying drugs to their patients as authorized by the Medical Practice Act§§157.002, 158.001-.003 ("the Act") Title 3 Subtitle B Tex. Occ. Code Ann. [ Texas Civil Statutes, Article 4495b, section 3.06(d)(2) and 5.09, ] and by the Texas Pharmacy Act Title 3 Subtitle J Tex. Occ.Code Ann.

§169.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--The Medical Practice Act of Texas, Title 3 Subtitle B Tex. Occ. Code Ann. [ Texas Civil Statutes, Article 4495b ].

(2) Administer--The direct application of a drug by injection, inhalation, ingestion, or any other means to the body of a physician's patient.

(3) Board--The Texas State Board of Medical Examiners.

(4) Dispense--Preparing, packing, compounding, or labeling for delivery a prescription drug or device in the course of professional practice to an ultimate user or his or her agent by or pursuant to the lawful order of a physician.

(5) Distribute--The delivery of a prescription drug or device other than by administering or dispensing.

(6) Immediate needs--The amount of a prescription drug needed for the proper treatment of a patient until access to a pharmacy is possible. "Immediate needs" shall be considered the amount of medication deemed necessary for a 72-hour period.

(7) Physician--A licensee of the Texas State Board of Medical Examiners.

(8) Provision--To supply one or more unit doses of a [ drug, medicine, or ] dangerous drug or controlled substance .

(9) Reimbursed for cost--An additional charge separate from that made for the physician's professional services which includes the cost of the drug product and all other actual costs to the physician incidental to providing the dispensing service, but not including a separate fee for the act of dispensing the drug product itself.

(10) Rural area--An area in which there is no pharmacy within a 15-mile radius of the physician's office and which is within either a county with a total population of 5,000 or less according to the most recent federal census; or a city or town, incorporated or unincorporated, with a population of less than 2,500 according to the most recent federal census, but not including a city or town, incorporated or unincorporated, whose boundaries are adjacent to an incorporated city or town with an equal or greater population.

(11) Sample--A prescription drug which is prepackaged by the original manufacturer, provided to the physician at no cost by the manufacturer, and is either marked as a sample on the original container or is included in the physician's records as a sample.

(12) Standing delegation order--Written instructions, orders, rules, regulations, or procedures prepared by a physician and designed for a patient population with specific diseases, disorders, health problems, or sets of symptoms. Such written instructions, orders, rules, regulations, or procedures shall delineate under what set of conditions and circumstances action should be instituted. These instructions, orders, rules, regulations, or procedures are to provide authority of and a plan for use with patients presenting themselves prior to being examined or evaluated by a physician to assure that such acts are carried out correctly and are distinct from specific orders written for a particular patient.

(13) Standing medical orders--Orders, rules, regulations, or procedures prepared by a physician or approved by a physician or the medical staff of an institution for patients who [ which ] have been examined or evaluated by a physician and which are used as a guide in preparation for and carrying out medical and/or surgical procedures. These orders, rules, regulations, or procedures are authority and direction for the performance for certain prescribed acts for patients by authorized persons as distinguished from specific orders written for a particular patient.

§169.3.Administration of Drugs.

A physician may personally administer those drugs to his or her patients, which are, in the physician's medical judgment, therapeutically beneficial or necessary for the patient's treatment. A physician may delegate [ authority for administration of drugs to patients in his or her office ] to any qualified and properly trained person the authority to administer drugs . A physician shall comply with all appropriate record keeping requirements applicable to the drugs administered, or shall assure compliance with said record keeping requirements by persons acting under the physician's direction and supervision. A physician may charge a fee for the administration of drugs to a patient that is separate from fees charged for other medical services. The separate fee shall allow the physician to recover the cost of administration, including the cost of the drug itself.

§169.4.Providing, Dispensing, or Distributing Drugs.

Except as otherwise provided in §169.5 of this chapter, a physician may provide, dispense, or distribute drugs for use or consumption by the patient away from the physician's office or after the conclusion of the physician-patient encounter only in quantities as are necessary to meet the patient's immediate needs. A physician shall comply personally with all appropriate labeling and record keeping requirements under state or federal law or shall oversee compliance by persons acting under his or her direction and supervision. A physician who provides, dispenses, or distributes drugs to a patient to meet his or her immediate needs may not charge a fee separate from that charged for medical services provided to the patient.

§169.5.Exceptions.

Under the following circumstances, a physician may dispense or distribute drugs in quantities greater than those necessary to meet a patient's immediate needs.

(1) A licensed physician who practices medicine in a rural area [ in which there is no pharmacy ] may maintain a supply of dangerous drugs in his or her office to be dispensed in treating his or her patients and may be reimbursed for the cost of supplying those drugs without violating the Texas Pharmacy Act, Title 3 Subtitle J Tex. Occ. Code Ann. [ Texas Civil Statutes, Article 4542a-1 ]. A physician desiring to dispense dangerous drugs in compliance with this subsection and §§158.001-.003 of the Act [ Texas Civil Statutes, Article 4495b, 5.09(c) ], shall notify the board and the Texas State Board of Pharmacy that he or she practices in a rural area.

(2) If a physician believes that a patient's prescribed treatment regimen should include certain drugs, the physician may supply them to the patient by means of pharmaceutical samples. No charge may be made by a physician for such samples. A patient's immediate needs as defined in this chapter shall not affect or limit the quantity of pharmaceutical samples a physician may provide to the patient.

§169.7.Record Keeping.

(a) The following provisions relate to dangerous drugs.

(1) A licensee shall be presumed to have complied with record keeping requirements for dangerous drugs (the Texas Health and Safety Code, Chapter 483) received as pharmaceutical samples if:

(A) the licensee maintains a copy of each signed request form for samples required by the Prescription Drug Marketing Act of 1987, Public Law Number 100-293, 102 Statute 95 (21 United States Code 503(D) for a period of two years from the date of acquisition; and

(B) the licensee makes appropriate entries in patients' medical records when a pharmaceutical sample is supplied to a patient.

(2) A licensee shall be presumed to have complied with record keeping requirements for dangerous drugs (the Texas Health and Safety Code, Chapter 483) received or acquired other than as a pharmaceutical sample if:

(A) the licensee maintains all invoices for purchases, receiving orders, or other documentation of receipt or acquisition for a period of two years from the date of receipt or acquisition; and

(B) the licensee makes appropriate entries in patients' medical records when a dangerous drug is provided, administered, or supplied to a patient.

(b) The following provisions relate to controlled substances.

(1) A licensee shall be presumed to have complied with record keeping requirements for controlled substances (the Texas Health and Safety Code, Chapter 481) received as pharmaceutical samples if:

(A) the licensee maintains a copy of each signed request form for samples required by the Prescription Drug Marketing Act of 1987, Public Law Number 100-293, 102 Statute 95 (21 United States Code 503(D) for a period of two years from the date of acquisition; and

(B) the licensee maintains records of pharmaceutical samples as required by the Texas Department of Public Safety under 37 TAC §13.202-.207, [ section 13.28, Texas Department of Public Safety, controlled substance regulations ] (Receipt or Distribution of Controlled Substances) .

(2) A licensee shall be presumed to have complied with the record keeping requirements for controlled substances (the Texas Health and Safety Code, Chapter 481) received or acquired other than as a pharmaceutical sample if the licensee maintains records of such controlled substances as required by 37 TAC, section 13.28, Texas Department of Public Safety, controlled substance regulations.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2003.

TRD-200301119

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: March 30, 2003

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


Chapter 171. POSTGRADUATE TRAINING PERMITS

22 TAC §171.1

The Texas State Board of Medical Examiners proposes an amendment to §171.1, concerning reporting requirements relating to postgraduate training permits. The amendment is necessary to update the reporting requirements.

Michele Shackelford, General Counsel, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendment is in effect there may be fiscal implications. The fiscal impact to those persons required to report information to the board will be minimal. With the additional reporting requirements, it may result in complaints being opened and investigations pursued. The cost of the investigations is difficult to calculate at this time.

Ms. Shackelford also has determined that for each year of the first five years the amendment as proposed is in effect the public benefit anticipated as a result of enforcing the section will be updated reporting requirements. There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The amendment is proposed 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.

The following are affected by the proposed amendment: Texas Occupations Code Annotated, §§155.105; 160.002-.004; 164.051-.053.

§171.1.Construction.

(a) Permit holders under this chapter shall be subject to the duties, limitations, disciplinary actions, rehabilitation order provisions, and procedures applicable to licensees in the Medical Practice Act and board rules. Permit holders under this chapter shall also be subject to the limitations and restrictions elaborated in this chapter.

(b) Permit holders under this chapter shall cooperate with the board and board staff involved in the investigation, review, or monitoring associated with the permit holder's practice of medicine. Such cooperation shall include, but not be limited to, permit holder's written response to the board or board staff written inquiry within 14 days of receipt of such inquiry.

(c) In accordance with §155.105 of the Medical Practice Act, the board shall retain jurisdiction to discipline a permit holder whose permit has been terminated, canceled, and/or expired if the permit holder violated the Medical Practice Act or board rules during the time the permit was valid. [ The board may, in its discretion, retain jurisdiction over a permit and the permit holder if the permit is terminated, canceled and/or expires while the permit holder is under investigation ].

(d) The issuance of a permit to a physician shall not be construed to obligate the board to issue the physician subsequent permits or licenses. The board reserves the right to investigate, deny a permit or full licensure, and/or discipline a physician regardless of when the information was received by the board.

(e) The director of each approved postgraduate training program shall report in writing to the executive director of the board the following events within seven days of their occurrence:

(1) if an applicant did not begin the training program due to failure to graduate from medical school as scheduled or for any other reason(s);

(2) if a permit holder has been terminated or has resigned from the program and the reasons(s) why;

(3) if a permit holder has been or will be absent from the program for more than 21 consecutive [ 30 ] days (excluding vacation, family, or military leave) and the reason(s) why;

(4) if the program has information that a permit holder has been arrested after the permit holder begins training in the program; and/or

(5) if the program has information that a permit holder, while in postgraduate training: [ any relevant information relating to the acts of any permit holder if in the opinion of the director of the program the permit holder poses a threat to the public welfare through the practice of medicine ].

(A) engaged in alcohol or chemical substance abuse, dependency or addiction;

(B) engaged in sexual contact with a patient, or sexually inappropriate behavior or comments directed towards a patient;

(C) behaved in a disruptive manner toward physicians, hospital personnel, other medical personnel, patients, patient's family members or others that interferes with patient care or could be reasonably expected to adversely impact the quality of care rendered to a patient;

(D) is known or suspected to have a medical disorder and has exhibited behavior that is likely to have resulted from the disorder and that could reasonable be expected to adversely affect the quality of care rendered to patients;

(E) is known or suspected to have a sexual disorder, including but not limited to pedophilia, exhibitionism, voyeurism, frotteurism, or sexual sadism;

(F) was named in a professional liability claim or suit in which the permit holder was named that involved death or serious bodily injury and in which funds were paid on behalf of the permit holder; or

(G) failed to practice medicine in an acceptable professional manner consistent with public health and welfare where such failure indicates the permit holder in unable to practice medicine in a competent manner and the permit holder has been unable to correct his or her deficiencies through the remedial measures, if any, offered by the program.

(6) if the program has determined that a permit holder has committed unprofessional or dishonorable conduct within the meaning of the Act or as defined under §190.1(c)(2) of this title relating to and the reason(s) why.

(7) if the program has, in relation to academic or non-academic reasons, made a final determination and taken disciplinary or adverse action to include:

(A) limited, reduced, suspended, revoked or denied privileges;

(B) formally warned, censured, reprimanded, or admonished in writing;

(C) monitored admissions and/or treatment plans in a manner that exceeds standard educational practices;

(D) placed the permit holder on academic or disciplinary probation;

(E) requested termination or terminated the permit holder from the program, requested or accepted withdrawal of the permit holder from the program, or requested or accepted resignation of the permit holder from the program; or

(F) any such similar action and the reason(s) why.

(f) Failure of any physician , hospital or medical institution to comply with the provisions of this chapter or the Medical Practice Act §§160.002-.003 may be grounds for the denial of permits to persons seeking permits to practice at that institution.

(g) Board staff shall establish a mechanism by which a medical institution and/or training program may receive information regarding the application status of any physician who has applied with the Board for a permit to practice at that medical institution and/or training program.

(h) A violation of § §164.051 -.053 or any other provision of the Medical Practice Act is grounds for denial or cancellation of a permit.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2003.

TRD-200301120

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: March 30, 2003

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


Chapter 174. TELEMEDICINE

22 TAC §§174.1 - 174.6, 174.10, 174.12 - 174.14, 174.17

The Texas State Board of Medical Examiners proposes amendments to §§174.1-174.6, 174.10, 174.12-174.14 and new §174.17, concerning Telemedicine. The amendments are necessary to clarify definitions and informed consent and for general cleanup of the chapter. New §174.17 concerns the use of the Internet in medical practice.

Michele Shackelford, General Counsel, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendments are in effect there will be no fiscal implications to state or local government as a result of enforcing the rules as proposed.

Ms. Shackelford also has determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be clarification and clean up of existing rules as well as a new rule regarding the internet in medical practice. There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The amendments and new rule are proposed 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.

The following are affected by the proposed amendments and new rule: Texas Occupations Code Annotated, §§151.056; 164.001-.004; 164.051; 164.059.

§174.1.Purpose.

This chapter is promulgated to promote the efficient administration of the provisions of the Medical Practice Act, §151.056 (relating to Application of Telemedicine [ §3.06(i) (concerning practice in another jurisdiction involving care initiated in this state) ].

§174.2.Definitions.

The following words and terms, when used in this chapter shall have the following meanings unless the context indicates otherwise.

(1) Act that is part of patient care service--Any diagnosis, assessment, or treatment including the taking of diagnostic imaging studies as well as the preparation of pathological material for examination.

(2) Episodic consultation--Consultation on an irregular or infrequent basis involving no more than 24 patients of a physician's diagnostic or therapeutic practice per calendar year. Multiple consultations may be performed for one or more patients up to 24 patients per calendar year.

(3) Informal consultation--Consultation performed outside the context of a contractual relationship and on an irregular or infrequent basis without the expectation of or exchange of direct or indirect compensation.

(4) Medical practice site--a patient-specific Internet site, access to which is limited to licensed physicians, associated medical personnel and patients. It is an interactive site and thus qualifies as a practice location. It requires a defined physician-patient relationship.

(5) [ (4) ] Medium--Any mechanism of information transfer including electronic means.

(6) [ (5) ] Patient care service initiated in this state--Any act constituting the practice of medicine as defined in this chapter in which the patient is physically located in Texas at the time of diagnosis, treatment, or testing.

(7) [ (6) ] Person--An individual unless otherwise expressly made applicable to a partnership, association, or corporation.

(8) Physician-patient e-mail--a computer-based communication between physician (or their medical personnel) and patients within a professional relationship in which the physician has taken on an explicit measure of responsibility for the patient's care.

(9) [ (7) ] Practice of medicine--A person shall be considered to be practicing medicine under any of the following circumstances:

(A) the person publicly professes to be a physician or surgeon and diagnoses, treats, or offers to treat any mental or physical disease or disorder, or any physical deformity or injury by any system or method or to effect cures thereof; or,

(B) the person diagnoses, treats or offers to treat any mental or physical disease or disorder, or any physical deformity or injury by any system or method and to effect cures thereof and charges therefor, directly or indirectly, money or other compensation; or,

(C) the person exercises medical judgment, renders an opinion, or gives advice concerning the diagnosis or treatment of a patient, or makes any determination regarding the appropriate or necessary medical response to a particular patient's medical condition; or

(D) [ (C) ] the person is physically located in another jurisdiction, other than the state of Texas, and through any medium performs an act that is part of patient care service initiated in this state that would affect the diagnosis or treatment of the patient.

(10) [ (8) ] State--Any state, territory, or insular possession of the United States and the District of Columbia.

§174.3.Qualifications for Special Purpose License for Practice of Medicine Across State Lines.

For a person to engage in the practice of medicine in Texas as defined under the Medical Practice Act, §151.056 [ §3.06(i) ], and §174.2 of this title (relating to Definitions), the person must:

(1) be 21 years of age or older;

(2) be actively licensed to practice medicine in another state which is recognized by the Texas State Board of Medical Examiners for purposes of licensure, and the license, as well as any other license currently held to practice medicine, must be without ongoing restrictions for cause or probation for cause, and without previous disciplinary actions or limitations of any kind for cause imposed by the state where the license was issued, and any other medical licenses previously held must not have been subject to such restrictions for cause, probation for cause, disciplinary actions or limitations of any kind for cause imposed by the state where the license was issued;

(3) be certified in a medical specialty pursuant to the standards of and approved by the American Board of Medical Specialties or the Bureau of Osteopathic Specialists and Boards of Certification;

(4) have passed the Texas Medical Jurisprudence Examination;

(5) be in possession of a special purpose license issued pursuant to the terms of this chapter after submission of a completed board-approved application for a special purpose license for the practice of medicine across state lines and any requisite initial fee and subsequent annual renewal fees; and,

(6) not be ineligible for licensure under §174.5 of this title (relating to Denial of Application for Special Purpose License to Practice Medicine Across State Lines).

§174.4.Limits on Special Purpose License to Practice Medicine Across State Lines.

A special purpose license to practice medicine across state lines shall be limited exclusively to the practice of medicine as defined by §174.2 of this chapter (relating to Definitions) and limited to the specialty or specialization upon which the license was granted under §174.3(a)(3) of this title (relating to Qualifications for Special Purpose License for Practice of Medicine Across State Lines), and the license holder shall practice medicine in a manner so as to comply with all other statutes and laws governing the practice of medicine in the state of Texas. Unless a person holds a current full license to practice medicine in this state pursuant to Chapter 163 of this title (relating to Licensure) and the provisions of the Medical Practice Act, Chapter 155 (relating to License to Practice Medicine) [ Subchapter C (concerning Licensure) ], a person holding a special purpose license shall not be authorized to physically practice medicine in the state of Texas.

§174.5.Denial of Application for Special Purpose License to Practice Medicine Across State Lines.

An application for a special purpose license to practice medicine across state lines may be denied based on failure to demonstrate the requisite qualifications for issuance of a special purpose license, any grounds for denial of an application for a full license, failure to submit the required fee, and any grounds for disciplinary action of a licensee under the Medical Practice Act, §164.051 (relating to Grounds for Denial or Disciplinary Action) [ §3.08 (concerning application denials and grounds for disciplinary action) ].

§174.6.Revocation and Limitation of Special Purpose License.

Upon a majority vote of the board, a person holding a special purpose license may be subject to the revocation or limitation of the license based on any grounds set forth in the Medical Practice Act, §164.051 (relating to grounds for denial or disciplinary action) [ §3.08 (concerning application denials and grounds for disciplinary action) ] or failure to maintain the qualifications set forth in §174.3 of this title (relating to Qualifications for a Special Purpose License to [ for ] Practice Medicine Across State Lines) or pursuant to §§174.7, 174.8, 174.9 and 174.10 of this title (relating to Cooperation, Appearances, Patient Medical Records and Informed Consent, Notification of Address, and Delegation and Supervision). A person holding a special purpose license shall be subject to the jurisdiction of the board for purposes of revocation or limitation of the special purpose license. Limitations which may be imposed on a special purpose license may include any action authorized under the Medical Practice Act, §164.001 [ §4.12 ] (concerning Methods of Discipline).

§174.10.Informed Consent.

(a) Written informed consent shall be obtained from any patient for the use of physician-patient e-mail or other [ who is the subject of out-of-state consultation by ] electronic means other than telephone or telefacsimile. [ Such informed consent shall include an explanation by the consulting physician or, in the absence of a consulting physician, by the physician consulted. ]

(b) The written informed consent shall include language that describes:

(1) types of transmissions that will be permitted (prescription refills, appointment scheduling, patient education, etc.);

(2) under what circumstances alternate forms of communication or office visits should be utilized;

(3) what security measures the physician has adopted as well as potential risks to privacy;

(4) the requirement for express patient consent to forward patient-identifiable information to a third party; and

(5) an acknowledgment by the patient that confidentiality of medical information may be compromised by electronic transmission for purposes of consultation.

(c) Failure to obtain written informed consent for communications [ consultation ] by electronic means other than telephone or telefacsimile shall be grounds for revocation or limitation of a special purpose license pursuant to §174.6 of this title (relating to Revocation and Limitation of Special Purpose License) and, if the person is licensed by the board, grounds for disciplinary action pursuant to the Medical Practice Act, §§164.001, 164.051, and 165.001-.004 [ §§3.08, 4.12, and 4.125 ] (concerning Grounds for Disciplinary Action, Authorized Disciplinary Action, and Administrative Penalties).

§174.12.Delegation and Supervision.

Tasks and activities related to consultation across state lines may be delegated by consulting physicians and consultant physicians to those persons qualified by licensing, training, or experience so long as the exercise of independent medical judgment is not required to be exercised by the individual to whom the task or activity is delegated. A physician delegating such tasks or activities shall ensure that the individual to whom delegation is made is qualified by licensure, training, or experience. A physician delegating such tasks or activities shall ensure that the person to whom delegation is made is adequately supervised. Improper delegation and failure to adequately supervise shall be grounds for revocation or limitation of a special purpose license pursuant to the provisions of §174.6 of this title (relating to Revocation and Limitation of Special Purpose License) and grounds for disciplinary action against licensees pursuant to the provisions of the Medical Practice Act, §164.051 [ §3.08 ] (concerning Grounds for Denial or Disciplinary Action).

§174.13.Exemptions.

The following activities shall be exempt from the requirements of a special purpose license and this chapter:

(1) episodic consultation by a medical specialist located in another jurisdiction who provides such consultation services on request to a person licensed in this state [ who practices in the same medical specialty ];

(2) consultation services provided by a physician located in another jurisdiction to a medical school as defined in the Education Code, section 61.501;

(3) consultation services provided by a physician located in another jurisdiction to an institution defined in either the Education Code, Subchapter C, Chapter 73, or Subchapter K, Chapter 74;

(4) informal consultation performed outside the context of a contractual relationship and on an irregular or infrequent basis without the expectation or exchange of direct or indirect compensation;

(5) furnishing of medical assistance in case of an emergency or disaster if no charge is made for the medical assistance; and,

(6) the acts of a physician located in another jurisdiction of a state of the United States whose borders are contiguous with the State of Texas who is the treating physician of a patient and orders home health or hospice services for a resident of this state to be delivered by a home and community support services agency licensed in this state.

§174.14.Temporary Suspension of Special Purpose License.

A special purpose license may be temporarily suspended pursuant to the provisions of the Medical Practice Act, §164.059 [ §4.13 ] and board rule §§187.55-187.62 [ §187.40 ] of this title (relating to Temporary Suspensions of Licenses).

§174.17.Use of the Internet in Medical Practice.

(a) Evaluation of the Patient. Physicians who utilize the Internet must ensure a proper physician-patient relationship is established that at a minimum includes:

(1) establishing that the person requesting the treatment is in fact who the person claims to be;

(2) establishing a diagnosis through the use of acceptable medical practices such as patient history, mental status examination, physical examination, and appropriate diagnostic and laboratory testing to establish diagnoses and identify underlying conditions and/or contra-indications to treatment recommended/provided;

(3) discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options; and

(4) ensuring the availability of the physician or coverage of the patient for appropriate follow-up care.

(b) Treatment. Treatment and consultation recommendations made in an online setting including issuing a prescription via electronic means, will be held to the same standards of appropriate practice as those in traditional (face-to-face) settings. An online or telephonic evaluation by questionnaire does not constitute an acceptable standard of care.

(c) Electronic Communications.

(1) Written policies and procedures must be maintained when using electronic mail for physician-patient communications. Policies must be evaluated periodically for currency. Such policies and procedures must address:

(A) privacy to assure confidentiality and integrity of patient-identifiable information;

(B) health care personnel, in addition to the physician, who will process messages;

(C) hours of operation and availability;

(D) types of transactions that will be permitted electronically;

(E) required patient information to be included in the communication, such as patient name, identification number and type of transaction;

(F) archival and retrieval; and

(G) quality oversight mechanisms.

(2) All patient-physician e-mail, as well as other patient-related electronic communications, must be stored and filed in the patient's medical record.

(3) Patients must be informed of alternative forms of communication for urgent matters.

(d) Medical Records.

(1) Medical records must include copies of all patient-related electronic communications, including patient-physician e-mail, prescriptions, laboratory and test results, evaluations and consultations, records of past care and instructions.

(2) Informed consent agreements related to the use of e-mail must be filed in the medical record.

(e) State Licensure. Physicians who treat and prescribe through the Internet are practicing medicine and must possess appropriate licensure in all jurisdictions where patients reside.

(f) Disclosure. Physician medical practice sites must clearly disclose:

(1) ownership of the website;

(2) specific services provided;

(3) office address and contact information;

(4) licensure and qualifications of physician(s) and associated health care providers;

(5) fees for online consultation and services and how payment is to be made;

(6) financial interest in any information, products, or services;

(7) appropriate uses and limitations of the site, including providing health advice and emergency health situations;

(8) uses and response times for e-mails, electronic messages, and other communications transmitted via the site;

(9) to whom patient health information may be disclosed and for what purpose;

(10) rights of patients with respect to patient health information; and

(11) information collected and any passive tracking mechanisms utilized.

(g) Accountability. Medical practice sites must provide patients with a clear mechanism to:

(1) access, supplement, and amend patient-provided personal health information;

(2) provide feedback regarding the site and the quality of information and services; and

(3) register complaints, including information regarding filing a complaint with the Texas State Board of Medical Examiners as provided for in Chapter 188 of this title (relating to Complaint Procedure Notification).

(h) Advertising/Promotion of Goods or Products. Advertising or promotion of goods or products from which the physician receives direct remuneration or incentives is prohibited.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2003.

TRD-200301121

Donald W. Patrick MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: March 30, 2003

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


Chapter 184. SURGICAL ASSISTANTS

22 TAC §184.25

The Texas State Board of Medical Examiners proposes new §184.25, concerning surgical assistants. The amendments concern continuing education for surgical assistants.

Michele Shackelford, General Counsel, Texas State Board of Medical Examiners, has determined that for the first five-year period the rule is in effect there will be an impact to those required to comply with continuing education requirements. The cost will vary depending on the courses taken by the licensee. There will be no effect to state or local government.

Ms. Shackelford also has determined that for each year of the first five years the rule as proposed is in effect the public benefit anticipated as a result of enforcing the section will be an active rule regarding continuing education for surgical assistants. There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The new rule is proposed 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.

The following are affected by the proposed new rule: Texas Occupations Code Annotated, §§206.201 and .210.

§184.25.Continuing Education.

(a) As a prerequisite to the annual registration of a surgical assistant's license, 18 hours of continuing education (CE) in surgical assisting or in courses that enhance the practice of surgical assisting are required to be completed in the following categories:

(1) at least one-half of the hours are to be from formal courses that are:

(A) designated for AMA/PRA Category I credit by a CE sponsor accredited by the Accreditation Council for Continuing Medical Education;

(B) approved for prescribed credit by the Association of Surgical Technologists/Association of Surgical Assistants, the American Board of Surgical Assistants, or the National Surgical Assistants Association;

(C) approved by the Texas Medical Association based on standards established by the AMA; or

(D) designated for AOA Category 1-A credit approved by the American Osteopathic Association.

(2) At least one of the formal hours of CE which are required by paragraph (1) of this subsection must involve the study of medical ethics and/or professional responsibility. Whether a particular hour of CE involves the study of medical ethics and/or professional responsibility shall be determined by the organizations which are enumerated in paragraph (1) of this subsection as part of their course planning.

(3) The remaining hours may be composed of informal self-study, attendance at hospital lectures or grand rounds not approved for formal CE, or case conferences and shall be recorded in a manner that can be easily transmitted to the board upon request.

(b) A licensed surgical assistant must report on the license renewal application if he or she has completed the required continuing education during the previous year. A licensee may carry forward CE credit hours earned prior to an annual registration report which are in excess of the 18-hour annual requirement and such excess hours may be applied to the following years' requirements. A maximum of 36 total excess credit hours may be carried forward and shall be reported according to the categories set out in subsection (a) of this section. Excess CE credit hours of any type may not be carried forward or applied to an annual report of CE more than two years beyond the date of the annual registration following the period during which the hours were earned.

(c) A licensed surgical assistant may request in writing an exemption for the following reasons:

(1) catastrophic illness;

(2) military service of longer than one year's duration outside the state;

(3) residence of longer than one year's duration outside the United States; or

(4) good cause shown submitted in writing by the licensee that gives satisfactory evidence to the board that the licensee is unable to comply with the requirement for continuing education.

(d) Exemptions are subject to the approval of the executive director of the board and must be requested in writing at least 30 days prior to the expiration date of the license.

(e) A exception under subsection (c) of this section may not exceed one year but may be requested annually, subject to the approval of the executive director or the board.

(f) This section does not prevent the board from taking board action with respect to a licensee or an applicant for a license by requiring additional hours of continuing education or of specific course subjects.

(g) The board may require written verification of both formal and informal credits from any licensee within 30 days of request. Failure to provide such verification may result in disciplinary action by the board.

(h) Unless exempted under the terms of this section, a licensee's apparent failure to obtain and timely report the 18 hours of CE as required and provided for in this section shall result in the denial of licensure renewal until such time as the licensee obtains and reports the required CE hours; however, the executive director of the board may issue to such a surgical assistant a temporary license numbered so as to correspond to the nonrenewed license. Such a temporary license shall be issued at the direction of the executive director for a period of no longer than 90 days. A temporary license issued pursuant to this subsection may be issued to allow the surgical assistant who has not obtained or timely reported the required number of hours an opportunity to correct any deficiency so as not to require termination of ongoing patient care.

(i) CE hours that are obtained to comply with the CE requirements for the preceding year as a prerequisite for obtaining licensure renewal, shall first be credited to meet the CE requirements for the previous year. Once the previous year's CE requirement is satisfied, any additional hours obtained shall be credited to meet the CE requirements for the current year.

(j) A false report or statement to the board by a licensee regarding CE hours reportedly obtained shall be a basis for disciplinary action by the board pursuant to §206.302-.304 of the Act and §164.051-.053 of the Medical Practice Act, Tex. Occ. Code Ann. A licensee who is disciplined by the board for such a violation may be subject to the full range of actions authorized by the Act including suspension or revocation of the surgical assistant's license, but in no event shall such action be less than an administrative penalty of $500.

(k) Administrative penalties for failure to timely obtain and report required CE hours may be determined by the Disciplinary Process Review Committee of the board as provided for in §184.19 of this chapter (relating to Administrative Penalties).

(l) Unless otherwise exempted under the terms of this section, failure to obtain and timely report CE hours for the renewal of a license shall subject the licensee to a monetary penalty for late registration in the amount set forth in §184.10 of this chapter (relating to Fees Related to the Renewal of Expired Licenses). Any temporary CE licensure fee and any administrative penalty imposed for failure to obtain and timely report the 18 hours of CE required for renewal of a license shall be in additional to the applicable penalties for late registration or as set forth in §184.11 of this chapter (relating to Fees).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2003.

TRD-200301122

Donald W. Patrick MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: March 30, 2003

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


Chapter 187. PROCEDURAL RULES

Subchapter B. INFORMAL BOARD PROCEEDINGS

22 TAC §§187.10, 187.12, 187.13

The Texas State Board of Medical Examiners proposes amendments to §§187.10, 187.12 and 187.13, concerning Procedural Rules. The amendments are necessary to formalize the procedure whereby the Executive Director has the authority to offer restricted licenses and permits.

Michele Shackelford, General Counsel, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendments are in effect there will be no fiscal implications to state or local government as a result of enforcing the rules as proposed.

Ms. Shackelford also has determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be formalized procedures regarding restricted license and permits. There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The amendments are proposed 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.

The following are affected by the proposed amendments: §§155.001-.008; 155.051-.058; 155.1025-.107; 155.151-.152; 164.001; 164.051.

§187.10.Purpose.

The purpose of informal board proceedings is to provide notice to an applicant or licensee of alleged violations of board rules or the Act, or the basis of denial of or ineligibility for licensure [ or of alleged violations ], an opportunity for an applicant or licensee to show compliance, and an opportunity for informal disposition of the matter.

§187.12.Notice.

The applicant or licensee shall be given notice of the opportunity to attend and participate at an informal board proceeding by hand delivery, regular mail, certified mail - return receipt requested, overnight or express mail, or registered mail to the address of record. The notice shall include the basis for denial or ineligibility or the alleged violations and a description of the process for informal board proceedings. Within the written notice, the applicant or licensee shall be adequately informed that failure to respond to the allegations either in writing or by personal appearance may result in default judgment.

§187.13.Informal Board Proceedings Relating to Licensure Eligibility.

(a) Recommendations by the Executive Director. [ Request for Review. ]

(1) The executive director shall review applications for licensure. If an applicant is determined to be ineligible for a license by the executive director pursuant to §§155.001-155.152 of the Act , [ and ] Chapter 163 of this title (relating to Licensure) or Chapter 171 of this title (relating to Postgraduate Training Permits) , the applicant may request review of that determination by a committee of the board [ the Licensure Committee ]. The applicant must request the review not later than the 20th day after the date the applicant receives notice of the determination.

(2) To promote the expeditious resolution of any licensure matter, the executive director with the approval of the board, may recommend that an applicant be eligible for a license only under certain terms and conditions and present a proposed agreed order to the applicant.

(A) If the proposed agreed order is acceptable to the applicant, the applicant shall sign the order and the order shall be presented to the board for consideration and acceptance without conducting an informal board proceeding relating to licensure eligibility.

(B) If the proposed agreed order is not acceptable to the applicant, the applicant may request review of the executive director's recommendation by a committee of the board. The applicant must request review not later than the 20th day after the date the applicant receives notice of the executive director's recommendation.

(b) Determination by a Committee of the Board [ Licensure Committee ].

[ (1) ] Upon review of an application for licensure, a committee of the board [ the Licensure Committee ] may determine that the applicant is ineligible for licensure or is eligible for licensure with or without restrictions.

(1) Licensure with Restrictions.

(A) [ (2) ] If the [ Licensure Committee ] committee determines that the applicant should be granted a license with restrictions based on the applicant's commission of a prohibited act or failure to demonstrate compliance with provisions under the Act or board rules, the committee, [ Committee ] as the board's representatives, shall propose an agreed order [ as set out in §187.19 of this title (relating to Resolution by Agreed Order). Following the acceptance and execution by the application of the settlement agreement, the agreement. ] The terms and conditions of the proposed agreed order shall be submitted to the board for approval [ as provided under §187.20 of this title (relating to Board Action) ].

(B) Upon an affirmative majority vote of members present, the board may approve the agreed order with or without modifications, and direct staff to present the order to the applicant. The order shall bear the signature of the president of the board. If the applicant agrees to the terms of the proposed agreed order, the effective date of the order shall be upon the signing of the order by the applicant and passage of the medical jurisprudence examination, if applicable.

(C) If the board does not approve the proposed agreed order, the applicant shall be so informed and the matter shall referred to board staff for appropriate action that may include further investigation or negotiation, or an additional appearance by the applicant before a committee of the board. The board must specify their rationale for the rejection of the proposed agreed order that shall be referenced in the minutes of the board.

(2) [ (3) ] Ineligibility Determination. If a committee of the board [ the Licensure Committee ] determines that an applicant is ineligible for a license, the committee [ Committee ] shall submit its determination along with the reasons for the determination to the full board for consideration.

(c) Notice. An applicant determined to be ineligible for licensure by the board shall be notified of the board's determination and given the option of appealing the board's decision to SOAH. An applicant has 20 days from the date the applicant receives notice of the board's determination to make the request. If an applicant requests a SOAH hearing, the matter shall be referred to board staff. If the applicant does not timely request a SOAH hearing, the board's decision shall become administratively final.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2003.

TRD-200301123

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: March 30, 2003

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


Chapter 196. VOLUNTARY SURRENDER OF A MEDICAL LICENSE

22 TAC §§196.1 - 196.5

The Texas State Board of Medical Examiners proposes amendments to §§196.1-196.5, concerning Voluntary Surrender of a Medical License. The amendments are necessary for general clean up of the chapter.

Elsewhere in this issue of the Texas Register , the Texas State Board of Medical Examiners proposes the rule review for Chapter 196.

Michele Shackelford, General Counsel, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendments are in effect there will be no fiscal implications to state or local government as a result of enforcing the rules as proposed.

Ms. Shackelford also has determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be clear and updated rules. There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The amendments are proposed 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.

The following are affected by the proposed amendments: Texas Occupations Code Annotated, Chapter 155, Subchapters A-C; §§164.051; 164.061.

§196.1.Surrender of License.

(a) Surrender by licensee.

(1) A licensee may at any time voluntarily surrender his or her license to practice medicine in Texas for any reason, without compulsion.

(2) Tender of the license may be by delivery by any means to the offices of the board, return receipt requested.

(b) Acceptance by the board.

[ (1) ] The board, based on a petition or request presented to the full board by a licensee or based on the recommendation of a committee, a panel, or representative(s) of the board, may consider whether to formally accept the voluntary surrender of the Texas medical license; however, surrender of a Texas medical license without acceptance thereof by the board, or a licensee's failure to pay his or her annual registration fee after initiation of an investigation [ disciplinary action, ] but prior to imposition of a disciplinary order by the board, shall not result in cancellation of the license and shall not deprive the board of jurisdiction in regard to disciplinary action against the licensee.

[(2) The board shall safeguard and keep secure any and all Texas medical licenses tendered to the board for purposes of a voluntary surrender until such time as the board determines an appropriate disposition of the license.]

§196.2.Surrender Associated with Disciplinary Action.

(a) When a licensee has surrendered his or her Texas medical license in lieu of a hearing or further investigation of alleged violations of the Medical Practice Act ("the Act"), Title 3 Subtitle B Tex. Occ.Code [ Article 4495b ], and its subsequent amendments, such a surrender shall be considered a surrender associated with a disciplinary action.

(b) [ A Texas medical license surrendered in accordance with this section shall not be returned to a licensee until after a board determination that the licensee is competent to resume practice. ]

[ (c) ] If the surrender of a Texas medical license was associated with disciplinary action based on findings of fact substantiating misconduct, the Texas medical license shall not be returned to the licensee if the board's order on the merits of the disciplinary action is inconsistent with the return of that license.

(c) If a licensee agrees to permanently surrender his or her license in lieu of disciplinary action, the licensee forfeits all rights to apply for any type of licensure with the board.

§196.3.Surrender Associated with Impairment.

(a) When a licensee who, by reason of impairment from illness, drunkenness, excessive use of drugs, narcotics, chemicals, or any other type of substance [ material ] or as a result of any mental or physical condition, is unable to treat patients with reasonable skill and safety and surrenders his or her Texas medical license, that surrender shall be deemed a surrender associated with impairment.

(b) A Texas medical license surrendered in accordance with this section shall not be returned to a licensee until after the board has determined that the licensee is competent to resume practice based on adequate medical and treatment information provided to the board.

§196.4. Reapplication for Licensure After Surrender of License. [ Return of License to Licensee. ]

In addition to other requirements established under this chapter, whenever [ Whenever ] a licensee [ voluntarily ] surrenders his or her Texas medical license and reapplies for licensure, [ under circumstances not associated with disciplinary or impairment action, the licensee may have his or her license returned after a determination by the board that ] the licensee must establish competence [ is competent ] to resume practice, [ following ] payment of applicable fees , compliance with current licensure eligibility provisions as provided under Chapter 163 of this title (relating to licensure) and [ after ] completion of training, courses, examinations, or seminars as directed by the board.

§196.5.Competence to Resume Practice.

(a) Unless otherwise specified in an [ agreed ] order[ , consent order, or stipulation ] of the board [ and a licensee, ] the board shall determine whether or not a licensee is competent to resume practice based on evidence of the licensee's competence or lack thereof as adduced through the procedures provided for in Chapter 187 of this title (relating to Procedural Rules [ Procedure ]).

(b) Competence to resume practice may be shown by the licensee providing probative credible evidence to indicate that he or she is fit to resume the practice of medicine. Likewise, any controverting evidence may be introduced to show the licensee's lack of competence or fitness.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2003.

TRD-200301124

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: March 30, 2003

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


Chapter 200. STANDARDS FOR PHYSICIANS PRACTICING COMPLEMENTARY AND ALTERNATIVE MEDICINE

22 TAC §§200.1 - 200.3

The Texas State Board of Medical Examiners proposes amendments to §200.2 and §200.3, concerning Integrative and Complementary Medicine. The amendments are necessary for general cleanup of the chapter, including detailed requirements regarding informed consent, treatment plan, adequate medical records, therapeutic validity, and clinical investigations. The chapter title will be changed to Standards for Physicians Practicing Complementary and Alternative Medicine.

Elsewhere in this issue of the Texas Register , the Texas State Board of Medical Examiners proposes the rule review for Chapter 200.

Michele Shackelford, General Counsel, Texas State Board of Medical Examiners, has determined that for the first five-year period the amendments are in effect there will be no fiscal implications to state or local government as a result of enforcing the rules as proposed.

Ms. Shackelford also has determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be updated regulations. There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

The amendments are proposed 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.

The following are affected by the proposed amendments: Texas Occupations Code Annotated, §§164.051-.053.

§200.1.Purpose.

The purpose of this chapter is to recognize that physicians should be allowed a reasonable and responsible degree of latitude in the kinds of therapies they offer their patients. The Board also recognizes that patients have a right to seek [ integrative or ] complementary and alternative therapies.

§200.2.Definitions.

The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) [ Integrative and ] Complementary and Alternative Medicine--Those health care methods of diagnosis, treatment, or interventions that are not acknowledged to be conventional but that may be offered by some licensed physicians in addition to, or as an alternative to, conventional medicine, and that provide a reasonable potential for therapeutic gain in a patient's medical condition and that are not reasonably outweighed by the risk of such methods.

(2) Conventional Medicine--Those health care methods of diagnosis, treatment, or interventions that are offered by most licensed physicians as generally accepted methods of routine practice, based upon medical training, experience and review of the peer reviewed scientific literature.

(3) Reasonable Potential for Therapeutic Gain--An expected beneficial outcome resulting from the application of a health care method containing medicinal or healing properties that is supported by scientific evidence and does not solely rely on placebo effect.

§200.3.Practice Guidelines for the Provision of [ Integrative and ] Complementary and Alternative Medicine.

A licensed physician shall not be found guilty of unprofessional conduct or be found to have committed professional failure to practice medicine in an acceptable manner solely on the basis of employing a health care method of [ integrative or ] complementary or alternative medicine, unless it can be demonstrated that such method has a safety risk for the patient that is unreasonably greater than the conventional treatment for the patient's medical condition. The Texas State Board of Medical Examiners will use the following guidelines to determine whether a physician's conduct violates the Medical Practice Act, §§164.051-.053 [ §§3.08(4), 3.08(4)(E), and 3.08(18) ] in regard to providing complementary and alternative [ integrative ] medical treatment.

(1) Patient Assessment. Prior to offering advice about complementary and alternative health care therapies, the physician shall undertake an assessment of the patient. This assessment should include but not be limited to, conventional methods of diagnosis and may include non-conventional methods of diagnosis [ and shall be documented in the patient's chart ]. Such assessment shall be documented in the patient's medical record and be based on performance and review of [ include ] the following listed in subparagraphs (A)- (D) [ (E) ] of this paragraph:

(A) an appropriate medical history and physician examination of the patient;

[(A) adequate medical records as defined in §165.1 of this title (relating to Medical Records);]

(B) [ documentation as to whether ] the conventional medical treatment options [ have been ] to be discussed with the patient and referral input, if necessary;

(C) [ documentation as to whether ] any prior conventional medical treatments attempted and the outcomes obtained or [ options have been tried, and if so, to what effect or a statement as to ] whether conventional options have been refused by the patient;

[(D) if a treatment is offered which is not considered to be conventional, documentation of at least a verbal informed consent for each treatment plan must be included (including documentation that the risks and benefits of the use of the treatment were discussed with the patient or guardian);]

(D) [ (E) documentation as to ] whether the complementary health care therapy could interfere with any other recommended or ongoing [ conventional ] treatment.

(2) Required Informed Consent. Prior to rendering any complementary or alternative treatment, the physician shall obtain written informed consent from the patient that includes the following:

(A) the objectives, expected outcomes, or goals of the proposed treatment, such as functional improvement, pain relief, or expected psychosocial benefit;

(B) the risks and benefits of the proposed treatment;

(C) the extent the proposed treatment could interfere with any ongoing or recommended medical care;

(D) a description of the underlying therapeutic basis or mechanism of action of the proposed treatment purporting to have a reasonable potential for therapeutic gain that is written in a manner understandable to the patient; and

(E) if applicable, whether a drug, supplement, or remedy employed in the treatment is:

(i) approved for human use by the U.S. Food and Drug Administration (FDA);

(ii) exempt from FDA preapproval under the Dietary Supplement and Health Education Act (DSHEA); or

(iii) a pharmaceutical compound not commercially available and, therefore, is also an investigation article subject to clinical investigation standards as discussed in paragraph (7) of this subsection.

(3) Treatment Plan.

(A) [ (2) ] The physician may offer the patient complementary or alternative [ and integrative ] treatment pursuant to a documented treatment plan tailored for the individual needs of the patient by which treatment progress or success can be evaluated with stated objectives such as pain relief and/or improved physical and/or psychosocial function. Such a documented treatment plan shall consider pertinent medical history, previous medical records and physical examination, as well as the need for further testing, consultations, referrals, or the use of other treatment modalities.

(B) The treatment offered should:

(i) have a favorable risk/benefit ratio compared to other treatments for the same condition;

(ii) be based upon a reasonable expectation that it will result in a favorable patient outcome, including preventive practices; and

(iii) be based upon the expectation that a greater benefit for the same condition will be achieved than what can be expected with no treatment.

(4) [ (3) ] Periodic Review of Treatment. The physician may use the treatment subject to documented periodic review of the patient's care by the physician at reasonable intervals . The physician shall evaluate the patient's progress under the treatment prescribed, ordered or administered, as well as any new information about etiology of the complaint in determining whether treatment objectives are being adequately met. [ in view of the individual circumstances of the patient in regard to progress toward reaching treatment objectives which takes into consideration the treatment prescribed, ordered or administered, as well as any new information about the etiology of the complaint. ]

(4) Complete and accurate records of the care provided including the elements addressed in paragraph 1 (A)-(E) of this section should be kept.

(5) Adequate Medical Records. In addition to those elements addressed in paragraph (1)(A)-(D) of this section, a physician implementing complementary and alternative therapies shall keep accurate and complete medical records to include:

(A) any diagnostic, therapeutic and laboratory results;

(B) the results of evaluations, consultations and referrals;

(C) treatments employed and their progress toward the stated objectives, expected outcomes, and goals of the treatment;

(D) the date, type, dosage, and quantity prescribed of any drug, supplement, or remedy used in the treatment plan;

(E) all patient instructions and agreements;

(F) periodic reviews;

(G) documentation of any communications with the patient's concurrent healthcare providers informing them of treatment plans.

(6) Therapeutic Validity All physicians must be able to demonstrate the medical, scientific, or other theoretical principles connected with any healthcare method offered and provided to patients.

(7) Clinical Investigations. Physicians using conventional medical practices or providing complementary and alternative medicine treatment while engaged in the clinical investigation of new drugs and procedures (a.k.a. medical research, research studies) are obligated to maintain their ethical and professional responsibilities. Physicians shall be expected to conform to the following ethical standards:

(A) Clinical investigations, medical research, or clinical studies should be part of a systematic program competently designed, under accepted standards of scientific research, to produce data that are scientifically valid and significant;

(B) A clinical investigator should demonstrate the same concern and caution for the welfare, safety and comfort of the patient involved as is required of a physician who is furnishing medical care to a patient independent of any clinical investigation; and

(C) A clinical investigator must have patients sign informed consent forms that are compliant with federal regulations, if applicable, and that indicate that the patients understand that they are participating in a clinical trial or investigational research.

(8) [ (5) ] If the provisions set out in paragraphs (1)- (5) [ (4) ] of this section are met, and if all treatment is properly documented, the board will presume such practices are in conformity with the Medical Practice Act, §§164.051-.053 [ §§3.08(4), 3.08(4)(E), and 3.08(18) ].

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 14, 2003.

TRD-200301158

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: March 30, 2003

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


Part 19. POLYGRAPH EXAMINERS BOARD

Chapter 395. CODE OF OPERATING PROCEDURE OF POLYGRAPH EXAMINERS

22 TAC §395.17

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Polygraph Examiners Board or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Polygraph Examiners Board proposes the repeal to §395.17, concerning Code of Operating Procedure of Polygraph Examiners.

The Texas Polygraph Board Examiners voted at its last board meeting, February 10, 2003 to publish for public comment the repeal of §395.17. This repeal is in response to an April 2000 Attorney General Opinion JC-0204, which stated that the board did not have the authority to inspect polygraph records unless a formal complaint was filed. Therefore, §395.17 is no longer enforceable.

Frank DiTucci, Executive Officer, Polygraph Examiners Board, has determined that the repeal will not result in any fiscal implications to the state or to units of local government for the first five year period.

Mr. DiTucci also has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be board compliance with Attorney General Opinion JC-0204. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the repeal as proposed.

Comments on the repeal may be submitted to: Frank DiTucci, Executive Officer, Polygraph Examiners Board, P.O. Box 4087, Austin, Texas 78773-0001. Written comments will be accepted up to May 8, 2003 or can be presented in person at the next scheduled board meeting, May 20, 2003.

The repeal is proposed under the Polygraph Examiners Act, Article 4413 (29cc), §6, which provides the board with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Polygraph Examiners Act, Article 4413 (29cc).

The repeal implements the Polygraph Examiners Act, Article 4413 (29cc).

§395.17.Written Authorization To Inspect Polygraph Records.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 13, 2003.

TRD-200301099

Frank DiTucci

Executive Director

Polygraph Examiners Board

Earliest possible date of adoption: March 30, 2003

For further information, please call: (512) 424-2058


Part 21. TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS

Chapter 461. GENERAL RULINGS

22 TAC §461.3

The Texas State Board of Examiners of Psychologists proposes amendments to §461.3, concerning Former Board Members. These amendments are being proposed in order to clarify that former Board members may be utilized as oral examiners or professional reviewers in furtherance of the Board's licensing and enforcement strategies.

Sherry L. Lee, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.

Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to make the rules easier for the licensees and public to follow and understand. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Brenda Skiff, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2- 450, Austin, TX 78701, (512) 305-7700.

The amendments are proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

The proposed amendment does not affect other statutes, articles, or codes.

§461.3.Former Board Members.

A Board member whose term has expired and who has ceased to serve as a Board member will not be employed or utilized to represent the Board in any official capacity except to serve as an oral examiner or as a professional reviewer . A former Board member may not hold himself or herself out as an official or unofficial representative of the Board. Any such representations are not binding upon the Board in any way. Disclosure of confidential or privileged information obtained by a former Board member in his or her capacity as a Board member is unprofessional conduct and grounds for disciplinary action by the Board.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 13, 2003.

TRD-200301100

Sherry L. Lee

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: March 30, 2003

For further information, please call: (512) 305-7700


22 TAC §461.7

The Texas State Board of Examiners of Psychologists proposes amendments to §461.7, concerning License Statuses. These amendments are being proposed in order to (1) explicitly state that a person with a pending complaint cannot go on inactive status, (2) clarify the meaning of "restricted status", and (3) eliminate the "resigned in lieu of delinquency" status due to its not being used.

Sherry L. Lee, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.

Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to make the rules easier for the licensees and public to follow and understand. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Brenda Skiff, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2- 450, Austin, TX 78701, (512) 305-7700.

The amendments are proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

The proposed amendment does not affect other statutes, articles, or codes.

§461.7.License Statuses.

(a) (No change.)

(b) Inactive Status.

(1) (No change.)

(2) A person may place his/her active license on inactive status for a period of two years. Reactivation of this license may occur at any time during this two-year period without the person having to take an exam provided that the person has notified the Board and has paid the required fees. At the end of the two-year period, if the license [ person ] has not been reactivated, the license automatically becomes void. The inactive status may be extended for additional increments of two years if, prior to the end of each two-year period, the person notifies the Board in writing that an extension is requested and submits proof to the Board of continuous licensure by a psychology licensing board in this or another jurisdiction for the past two-year period and payment of all required fees. A person may indefinitely remain on inactive status if he/she is licensed in this or another jurisdiction and complies with the extension requirements set forth in this paragraph. Any person wishing to reactivate his/her license that has been on inactive status for four years or more must take and pass the Jurisprudence Exam with the minimum acceptable score as set forth in §463.14 of this title (relating to Cutoff Scores) unless the person holds another license on active status with this Board.

(3) (No change.)

(4) A person with a pending complaint may not place a license on inactive status. [ only with express permission from the Board. ] If disciplinary action is taken against a person's inactive license, the person must reactivate the license until the action has been terminated.

(c) (No change.)

(d) Restricted status. Any licensee that is currently suspended, on probated suspension, or is currently required to fulfill some requirement in a Board order [ subject to disciplinary action and/or sanction ] is considered to be on restricted status. A person practicing under a restricted license must comply with any restrictions placed thereon by the Board.

(e) (No change.)

(f) Resignation Status. A person may resign only upon express agreement by the Board. A person who resigns shall be reported as:

(1)-(2) (No change.)

[ (3) Resigned in lieu of delinquency status if permitted to resign prior to voiding of the license due to failure to renew.]

(g)-(h) (No change)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 13, 2003.

TRD-200301101

Sherry L. Lee

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: March 30, 2003

For further information, please call: (512) 305-7700


22 TAC §461.11

The Texas State Board of Examiners of Psychologists proposes amendments to §461.11, concerning Continuing Education. These amendments are being proposed in order to (1) add a requirement that three hours of continuing education per year be taken in the area of ethics or professional responsibility, a requirement that is contained in the Rules of other mental health licensing agencies; (2) make clear that online courses are accepted so long as they have a certificate of completion; and (3) clarify that certain licensees may declare Continuing Education on online license renewal forms.

Sherry L. Lee, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.

Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to make the rules easier for the licensees and public to follow and understand. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Brenda Skiff, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2- 450, Austin, TX 78701, (512) 305-7700.

The amendments are proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

The proposed amendment does not affect other statutes, articles, or codes.

§461.11.Continuing Education.

(a) Requirements. All licensees of the Board are obligated to continue their professional education by completing a minimum of 12 hours of continuing education during each year that they hold a license from the Board regardless of the number of separate licensees held by the licensee. Of these 12 hours, all licensees must complete a minimum of three hours of continuing education per year in the areas of ethics, the Board's Rules of Conduct, or professional responsibility.

(b) Relevancy. All continuing education hours must be directly related to the practice of psychology. The Board shall make the determination as to whether the activity or publication claimed by the licensee is directly related to the practice of psychology. [ It is the responsibility of the licensee to engage in activities which provide demonstrated relevance to the practice of psychology. ] In order to establish relevancy to the practice of psychology, the Board may require a licensee to produce, in addition to the documentation required by subsection (d) of this section, course descriptions, conference catalogs and syllabi, or other material as warranted by the circumstances. The Board does not pre-approve continuing education credit. The Board shall not allow continuing education credit for personal psychotherapy, workshops for personal growth, the provision of services to professional associations by a licensee, foreign language courses, or computer training classes.

(c) (No change.)

(d) Documentation. It is the responsibility of each licensee to maintain documentation of all continuing education hours claimed under this rule and to provide this documentation upon request by the Board. Licensees shall maintain documentation of all continuing education hours claimed for at least five years. The Board will accept as documentation of continuing education:

(1)-(3) (No change.)

(4) for presenters of continuing education workshops or programs, copies of the official program announcement naming the licensee as a presenter and an outline or syllabus of the contents of the program or workshop; [ and ]

(5) for authors or editors of publications, a copy of the article or table of contents or title page bearing the name of licensee as the author or editor ; and

(6) for online or self-study courses, a copy of the certificate of completion generated by the completion of the course .

(e) Declaration Form. All licensees must sign and submit a completed Continuing Education Declaration Form for each year in which they are licensed by the Board specifying the continuing education received for the preceding renewal period. Licensees wishing to renew their license must submit the declaration form with the annual renewal form and fee no later than the renewal date. Licensees who do not wish to renew their license must submit the declaration form along with a written request to retire the license on or before the renewal date. Licensees shall not submit documentation of continuing education credits obtained unless requested to do so by the Board. Licensees who are not audited pursuant to subsection (f) of this section and who are otherwise eligible may declare their continuing education on the online license renewal form.

(f) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 13, 2003.

TRD-200301102

Sherry L. Lee

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: March 30, 2003

For further information, please call: (512) 305-7700


22 TAC §461.15

The Texas State Board of Examiners of Psychologists proposes amendments to §461.15, concerning Compliance with Act, Rules, Board Directives and Orders. These amendments are being proposed in order to clarify the responsibility of a licensee to comply with Board requests for information pursuant to an investigation.

Sherry L. Lee, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.

Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to make the rules easier for the licensees and public to follow and understand. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Brenda Skiff, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2- 450, Austin, TX 78701, (512) 305-7700.

The amendments are proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

The proposed amendment does not affect other statutes, articles, or codes.

§461.15.Compliance with Act, Rules, Board Directives and Orders.

Licensees must comply with the Act, Rules, Board Directives and Board Orders and must cooperate with Board investigations as prescribed in §465.35 of this title. Failure to comply may subject the licensee to a Board-initiated complaint and disciplinary action.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 13, 2003.

TRD-200301103

Sherry L. Lee

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: March 30, 2003

For further information, please call: (512) 305-7700


22 TAC §461.17

The Texas State Board of Examiners of Psychologists proposes amendments to §461.17, concerning Profile Information. These amendments are being proposed to clarify that providing profile information is a requirement for annual license renewal (online or otherwise) for licensed psychologists.

Sherry L. Lee, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.

Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to make the rules easier for the licensees and public to follow and understand. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Brenda Skiff, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 78701, (512) 305-7700.

The amendments are proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

The proposed amendment does not affect other statutes, articles, or codes.

§461.17.Profile Information.

The Board is required to establish a system whereby licensed psychologists will have public profile information maintained by the Board. The Board must collect a fee to be set by the Texas Online Authority beginning in 2002 for this system. Licensed psychologists must supply this information as a condition of annual renewal. This information may be supplied as a part of the online renewal process. The Board collects the following information as part of its profile information on licensed psychologists:

(1)-(8) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 13, 2003.

TRD-200301104

Sherry L. Lee

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: March 30, 2003

For further information, please call: (512) 305-7700


Chapter 463. APPLICATIONS AND EXAMINATIONS

22 TAC §463.2

The Texas State Board of Examiners of Psychologists proposes amendments to §463.2, concerning Application Process. These amendments are being proposed in order that a applicant may have two simultaneous applications with the Board, so long as the second application is to become an LSSP.

Sherry L. Lee, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.

Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to make the rules easier for the licensees and public to follow and understand. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Brenda Skiff, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2- 450, Austin, TX 78701, (512) 305-7700.

The amendments are proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

The proposed amendment does not affect other statutes, articles, or codes.

§463.2.Application Process.

Applications for licensure are processed in the following manner:

(1) An individual requests the application packet for the type of licensure desired and includes the fee for the Board to send the application packet. No applicant can have more than one application pending before the Board at one time, unless the second application is to become a [ with the exception of the ] licensed specialist in school psychology [ application ].

(2)-(5) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 13, 2003.

TRD-200301105

Sherry L. Lee

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: March 30, 2003

For further information, please call: (512) 305-7700


22 TAC §463.9

The Texas State Board of Examiners of Psychologists proposes amendments to §463.9, concerning Licensed Specialist in School Psychology. These amendments are being proposed in order to clarify that all applicants for a license as a licensed specialist in school psychology must have a formal internship through a regionally accredited institution of higher education.

Sherry L. Lee, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.

Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to make the rules easier for the licensees and public to follow and understand. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Brenda Skiff, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2- 450, Austin, TX 78701, (512) 305-7700.

The amendments are proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

The proposed amendment does not affect other statutes, articles, or codes.

§463.9.Licensed Specialist in School Psychology.

(a)-(b) (No change.)

(c) Completion of internship. Applicants must have completed a minimum of 1200 hours, of which 600 must be in a public school. A [ For applicants whose internships begin on or after July 1, 2001, a ] formal internship or other site-based training must be provided through a formal course of supervised study from a regionally accredited institution of higher education in which the applicant was enrolled or be obtained in accordance with §463.11(c)(1) and (c)(2)(C) of this title (relating to Licensed Psychologist). [ For applicants whose internships begin before this date, either a formal internship or experience may be obtained to comply with this internship rule. ] The internship in the public school must be supervised by an individual qualified in accordance with §465.38 of this title (relating to Psychological Services in the Schools). Internship which is not obtained in a public school must be supervised by a licensed psychologist. No experience with a supervisor who is related within the second degree of affinity or within the second degree by consanguinity to the person, or is under Board disciplinary order, may be considered for specialist in school psychology licensure. Internships may not involve more than two sites (a school district is considered one site) and may be obtained in not less than one or more than two academic years. These individuals must be designated as interns. Direct, systematic supervision must involve a minimum of one face-to-face contact hour per week or two consecutive face-to-face contact hours once every two weeks with the intern. The internship must include direct intern application of assessment, intervention, behavior management, and consultation, for children representing a range of ages, populations and needs.

(d)-(f) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 13, 2003.

TRD-200301106

Sherry L. Lee

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: March 30, 2003

For further information, please call: (512) 305-7700


Chapter 469. COMPLAINTS AND ENFORCEMENT

22 TAC §469.11

The Texas State Board of Examiners of Psychologists proposes amendments to §469.11, concerning Legal Actions Reported. These amendments are being proposed in order to clarify that criminal actions, civil actions pertaining to the practice of psychology, and administrative actions against a licensee in another state or by another licensing board in this state must be immediately reported to this Board.

Sherry L. Lee, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.

Ms. Lee also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be to make the rules easier for the licensees and public to follow and understand. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed.

Comments on the proposal may be submitted to Brenda Skiff, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 78701, (512) 305-7700.

The amendments are proposed under Texas Occupations Code, Title 3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it.

The proposed amendment does not affect other statutes, articles, or codes.

§469.11.Legal Actions Reported.

Any criminal action taken against a licensee including, but not limited to, arrest, indictment, or conviction, must be reported to the Board within thirty days of the activity. Any civil lawsuit pertaining to the practice of psychology or involving a licensee's patient or former patient must [ legal action, civil or criminal in nature, taken against a licensee or practice of a licensee must ] be reported to the Board's office by sending a copy of the initial pleadings to the Board within twenty days of the filing of such action with the court. The licensee may, if desired, submit any further documentation and/or a written explanation along with a copy of the pleadings. Any administrative action (complaint, agreed order) initiated against a licensee by another health licensing board in this state or any other jurisdiction must be reported to this Board by sending a copy of the correspondence from the other licensing board within thirty days of its receipt by the licensee.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 13, 2003.

TRD-200301107

Sherry L. Lee

Executive Director

Texas State Board of Examiners of Psychologists

Earliest possible date of adoption: March 30, 2003

For further information, please call: (512) 305-7700