TITLE 22.EXAMINING BOARDS

The Texas Medical Board (Board) adopts the amendments to §§163.1, 163.2, 163.4, and 163.6, and the repeal of §163.12, relating to licensure, without changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3466) and will not be republished.

Prior to publishing the proposed amendments, the Board sought stakeholder input through a Licensure Stakeholder Group, organized in 2005. The Licensure Stakeholder Group made comments on the suggested changes to the rules at a meeting held on March 21, 2006, which comments were incorporated into the published proposed rules.

The Board received no comments on the proposed amendments to §§163.1, 163.4, and 163.6, and the amendments are adopted as published, without changes. The Board received no comments on the proposed repeal of §163.12, and the repeal is adopted.

The Board received comments regarding proposed amendments to §163.2 from the following: the Texas Department of State Health Services, the Texas Medical Association and several individuals.

Comment 1. The Texas Department of State Health Services commented that the Board should allow licensure of state and local public health officials who do not meet the "active practice/full-time" requirement of current board rules. The Board has responded to this comment by authorizing the publication of a proposed new §162.14, Limited License for Practice of Administrative Medicine. The Board believes that a new type of license, specifically addressed to the non-clinical practice of medicine, will meet the concerns expressed by this comment.

Comment 2. Three commenters raised concerns about proposed changes to §163.2(b)(4)(B)(i), which would require an applicant to have passed the basic sciences portion of an acceptable licensure examination within two attempts. The commenters believe that the same attempt limit be applied to graduates of foreign medical schools as to U.S. and Canadian graduates. One of these commenters raised a question regarding the statutory authority to increase the attempt limit from three to two.

Response to Comment 2. The Board disagrees with these comments. First, it should be noted that foreign graduates of acceptable unapproved medical schools, as defined in §163.1(2) of the Rules, have the same three-attempt limit as graduates of approved U.S. and Canadian medical schools. The changes proposed create an alternative path to licensure for graduates of medical schools outside of the U.S. and Canada that are not approved and cannot be shown to be substantially equivalent or that have been disapproved by another state licensing agency. This alternative for licensure sets several requirements that are different from requirements for graduates of approved or acceptable medical schools. For graduates who cannot meet those standards, the proposed changes to the rule would provide different, alternative requirements. These alternative requirements would substitute for the requirement that the applicant have graduated from an approved medical school or a medical school that has been shown to be substantially equivalent to a Texas medical school and that has not been disapproved by another state. No one objected to any alternative requirement other than the two attempt limit for the basic sciences portion of the examination.

Each of the alternative requirements are designed to compensate for a medical school that is not approved or shown to be acceptable.

1. The requirement for an approved medical school is the only requirement to assure that an applicant is proficient in basic sciences. If an applicant has not graduated from an approved or otherwise acceptable medical school, the Board believes that some requirement substitute to try to assure that the applicant is proficient in basic sciences. The Board has reviewed a paper made available by the National Medical Examiners Board that shows that additional exam attempts create a higher probability of "false positives." False positives occur when an applicant is able to pass an examination without adequate proficiency in the subject matter. This might result from luck in answering multiple choice questions or from the fact that the sample of exam questions serendipitously corresponds to the applicant's less-than-adequate proficiency. To decrease the possibility of false positives for applicants who have attended medical schools that are neither approved or shown to be acceptable, the Board believes that this higher standard should be required.

2. Another requirement that exceeds requirements for graduates of approved or acceptable medical schools is the requirement to have never been disciplined by another state or a peer review committee. A medical school should monitor the character and fitness of its students and a record of that should be available for the Board to review. There is no assurance that an unapproved medical school has procedures in place to monitor character and fitness. Therefore, this additional requirement is justified.

3. Normally, applicants must only show that they have been in active, full-time practice for one of the last two years. This requirement may be met by being in a postgraduate training program. To assure that an applicant has been monitored, either by a training program or by hospitals or other state licensing agency for enough time to demonstrate character and fitness, the Board believes that this requirement should be increased to three of the last four years for graduates of medical schools that are not approved or shown to be acceptable.

4. An applicant can be shown to be clinically proficient in a specialty by attaining board certification. Therefore, this additional requirement for a graduate of a medical school that is not approved and has not been shown to be acceptable is justified.

Comment 3. One commenter urged that, instead of an increased examination attempt limit, the Board allow graduates of approved Texas residency programs to continue under standard guidelines, perhaps adding a trial period to review an individual's performance. The Board disagrees with this comment. The purpose of the increased examination attempt limit for basic sciences is to decrease the risk of false positives on that part of the examination and to try to assure that the applicant has adequate proficiency in basic sciences. Eliminating that requirement in favor of a trial period for those who participate in approved Texas residency programs would limits the benefits of this alternative licensure path to Texas postgraduates. Moreover, it would not address basic sciences. The practice of medicine requires a firm foundation in basic sciences, and therefore, the Board believes that a requirement for the alternative licensure of a graduate of an unapproved medical school should attempt to assure proficiency in basic sciences.

For the reasons stated, the Board does not believe that comments to the rules as published should be adopted. The Board has adopted amendments to §163.2, as published, without changes.

22 TAC §§163.1, 163.2, 163.4, 163.6

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

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

Filed with the Office of the Secretary of State on June 8, 2006.

TRD-200603093

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Effective date: June 28, 2006

Proposal publication date: April 28, 2006

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

22 TAC §163.12

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

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

Filed with the Office of the Secretary of State on June 8, 2006.

TRD-200603094

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Effective date: June 28, 2006

Proposal publication date: April 28, 2006

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

Chapter 166. PHYSICIAN REGISTRATION

22 TAC §§166.1, 166.2, 166.6

The Texas Medical Board (Board) adopts the amendments to §§166.1, 166.2, and 166.6, relating to Physician Registration. Sections 166.1 and 166.2 are adopted without changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3469) and will not be republished. Section 166.6 is adopted with minor changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3469). The text of the rule will be republished.

The Board received no comments on the proposed amendments to §166.1 or §166.2, and the amendments are adopted without changes.

The Board received one comment from the Texas Medical Association regarding the proposed amendment to §166.6. The Association understood "voluntary charity care" to be limited to "indigent populations in medically underserved areas." As expressed by the comma following "indigent populations" in the proposed rule as published, the Board intended that "voluntary charity care" include three categories of medical care provided for no compensation: (A) to indigent populations; (B) in medically underserved areas; or (C) for a disaster relief organization. Therefore, the Board has adopted the rule with these grammatical changes to clarify the intended meaning of the rule.

§166.6.Exemption From Registration Fee for Retired Physician Providing Voluntary Charity Care.

(a) A retired physician licensed by the board whose only practice is the provision of voluntary charity care shall be exempt from the registration fee.

(b) As used in this section:

(1) "voluntary charity care" means medical care provided for no compensation to:

(A) indigent populations;

(B) in medically underserved areas; or

(2) "compensation" means direct or indirect payment of anything of monetary value, except payment or reimbursement of reasonable, necessary, and actual travel and related expenses.

(c) To qualify for and obtain such an exemption, a physician must truthfully certify under oath, on a form approved by the board, and received by the board at least 30 days prior to the expiration date of the permit, that the following information is correct:

(1) the physician's practice of medicine does not include the provision of medical services for either direct or indirect compensation which has monetary value of any kind;

(2) the physician's practice of medicine is limited to voluntary charity care for which the physician receives no direct or indirect compensation of any kind for medical services rendered;

(3) the physician's practice of medicine does not include the provision of medical services to members of the physician's family; and

(4) the physician's practice of medicine does not include the self-prescribing of controlled substances or dangerous drugs.

(d) A physician who qualifies for and obtains an exemption from the registration fee authorized under this section shall obtain and report continuing medical education as required under the Act, §§156.051-.055 and §166.2 of this title (relating to Continuing Medical Education), except that the number of hours of informal CME, as required by §166.2(a)(3) shall be reduced from 12 hours to 10 hours.

(e) A retired physician who has obtained an exemption from the registration fee as provided for under this section, may be subject to disciplinary action under the Act, §§164.051-.053, based on unprofessional or dishonorable conduct likely to deceive, defraud, or injure the public if the physician engages in the compensated practice of medicine, the provision of medical services to members of the physician's family, or the self-prescribing of controlled substances or dangerous drugs.

(f) A physician who attempts to obtain an exemption from the registration fee under this section by submitting false or misleading statements to the board shall be subject to disciplinary action pursuant to the Act, §164.052(a)(1), in addition to any civil or criminal actions provided for by state or federal law.

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

Filed with the Office of the Secretary of State on June 9, 2006.

TRD-200603116

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Effective date: June 29, 2006

Proposal publication date: April 28, 2006

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

Chapter 171. POSTGRADUATE TRAINING PERMITS

22 TAC §§171.2 - 171.4, 171.6, 171.7

The Texas Medical Board (Board) adopts amendments to §§171.2 - 171.4, 171.6, and 171.7, relating to Postgraduate Training Permits. Sections 171.2, 171.6 and 171.7 are adopted without changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3473) and will not be republished. Sections 171.3 and 171.4 are adopted with changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3473). The text of the rules will be republished.

The Board received comments from the Texas Graduate Medical Education Council and no others.

Comment 1. The commenter requested that the definition of "Fellowship," in §171.3(a)(4) apply to an "Approved Fellowship" to differentiate between the approved fellowships and the board-approved fellowship. After reviewing the language of the definition, the Board determined that the words: "or fellowship approved by the Texas Medical Board" be added to the end of the sentence, so that the defined word "fellowship" can be used in the definition of "Approved Board Fellowship." Whenever in these rules the word "fellowship" appears, the intent is to refer to any approved fellowship, whether approved by the Board or any of the other listed entities. The Board agreed and the rule has been amended.

Comment 2. The commenter suggested a change to §171.3(a)(6)(A), to specifically reference any "fellowship," as defined by the rule. The Board agreed and the rule has been amended.

Comment 3. The commenter suggested a change to §171.3(b)(1)(D) to specifically reference a "fellowship," as defined by the rule. The Board agreed and the rule has been amended.

Comment 4. The commenter suggested a change to §171.3(c)(2)(B)(i)(I) to correct the reference to sections defining an approved postgraduate training program. The Board agreed and the rule has been amended.

Comment 5. The commenter suggested a change to §171.3(c)(2)(B)(ii)(I)(-a-) to correct the reference to sections defining an approved postgraduate training program. The Board agreed and the rule has been amended.

Comment 6. The commenter suggested a change to §171.3(c)(2)(B)(ii)(II)(-c-) to identify a "mentoring physician," rather that a "postgraduate training program," stating that the visiting training does not enter a program at the hosting institution on these electives. The Board agrees with the comment, but believes that "on-site preceptor physician" is a more descriptive phrase than "mentoring physician". The Board agreed and the rule has been amended.

Comment 7. The commenter suggested a grammatical change to §171.4(h) for clarity. The Board agreed and the rule has been amended.

No comments were received regarding §§171.2, 171.6, and 171.7 and the Board adopted those proposed rules as published.

§171.3.Physician-in-Training Permits.

(a) Definitions.

(1) Approved Postgraduate Training Program: a clearly defined and delineated postgraduate medical education training program, including postgraduate subspecialty training programs, approved by the Accreditation Council for Graduate Medical Education (ACGME), the American Osteopathic Association (AOA), the Committee on Accreditation of Preregistration Physician Training Programs, the Federation of Provincial Medical Licensing Authorities of Canada (internships prior to 1994), the Royal College of Physicians and Surgeons of Canada, or the College of Family Physicians of Canada.

(2) Board-approved Fellowship: a clearly defined and delineated postgraduate subspecialty-training program approved by the Texas State Board of Medical Board under §171.4 of this title.

(3) Designated Institutional Official (DIO): The individual in a sponsoring graduate medical education institution who has the authority and responsibility for the graduate medical education programs.

(4) Fellowship: A subspecialty training program of graduate medical education for postgraduate residents who have completed the requirements for eligibility for first board certification in the specialty and that is approved by the Accreditation Council for Graduate Medical Education (ACGME), the American Osteopathic Association (AOA), a member board of the American Board of Medical Specialties (ABMS), or a member board of the Bureau of Osteopathic Specialists (BOS) or a fellowship approved by the Texas Medical Board.

(5) Postgraduate Resident: a physician who is in postgraduate training as an intern, resident, or fellow in an approved postgraduate training program or a board-approved fellowship.

(6) Physician-in-Training Permit:

(A) A physician-in-training permit is a permit issued by the board in its discretion to a physician who does not hold a license to practice medicine in Texas and is enrolled in a training program as defined in paragraphs (1), (2), and (4) of this subsection in Texas, regardless of his/her postgraduate year (PGY) status within the program.

(B) The permit shall be effective for the length of the postgraduate training program as reported by the training program.

(C) A physician-in-training permit is valid only for the practice of medicine within the training program for which it was approved. If a permit holder enters into a new program that is not covered by the issued permit, the permit shall be terminated and the permit holder must apply for a new permit for the new program.

(D) A physician-in-training permit holder is restricted to the supervised practice of medicine that is part of and approved by the training program. The permit does not allow for the practice of medicine that is outside of the approved program.

(b) Qualifications of Physician-in-Training Permit Holders.

(1) To be eligible for a physician-in-training permit, an applicant must present satisfactory proof to the board that the applicant:

(A) is at least 18 years of age;

(B) is of good professional character and has not violated §§164.051 - 164.053 of the Medical Practice Act;

(D) has been accepted into an approved postgraduate training program, a board-approved postgraduate fellowship training program, or a fellowship meeting the criteria set forth in subsection (a)(4) of this section; and

(E) has been credentialed by the postgraduate training program to include verification by the program of:

(i) the applicant's identity; and

(ii) the applicant's character and academic qualifications including verification of medical school graduation.

(2) To be eligible for a physician-in-training permit, an applicant must not have:

(A) a medical license, permit, or other authority to practice medicine that is currently restricted for cause, canceled for cause, suspended for cause, revoked or subject to another form of discipline in a state or territory of the United States, a province of Canada, or a uniformed service of the United States;

(B) an investigation or proceeding pending against the applicant for the restriction, cancellation, suspension, revocation, or other discipline of the applicant's medical license, permit, or authority to practice medicine in a state or territory of the United States, a province of Canada, or a uniformed service of the United States;

(C) a prosecution pending against the applicant in any state, federal, or Canadian court for any offense that under the laws of this state is a felony, a misdemeanor that involves the practice of medicine, or a misdemeanor that involves a crime of moral turpitude.

(1) Application Procedures.

(A) Applications for a physician-in-training permit shall be submitted to the board no earlier than the ninetieth (90th) day prior to the date the applicant intends to begin postgraduate training in Texas to ensure the application information is not outdated. To assist in the expedited processing of the application, the application should be submitted as early as possible within the sixty-day window prior to the date the applicant intends to begin postgraduate training in Texas.

(B) The board may, in unusual circumstances, allow substitute documents where exhaustive efforts on the applicant's part to secure the required documents is presented. These exceptions shall be reviewed by the board's executive director on a case-by-case basis.

(C) For each document presented to the board, which is in a foreign language, an official word-for-word translation must be furnished. The board's definition of an official translation is one prepared by a government official, official translation agency, or a college or university official, on official letterhead. The translator must certify that it is a "true translation to the best of his/her knowledge, that he/she is fluent in the language, and is qualified to translate." He/she must sign the translation with his/her signature notarized by a Notary Public. The translator's name and title must be typed/printed under the signature.

(D) The board's executive director shall review each application for training permit and shall approve the issuance of physician-in-training permits for all applicants eligible to receive a permit. The executive director shall also report to the board the names of all applicants determined to be ineligible to receive a permit, together with the reasons for each recommendation. The executive director may refer any application to a committee or panel of the board for review of the application for a determination of eligibility.

(E) An applicant deemed ineligible to receive a permit by the executive director may request review of such recommendation by a committee or panel of the board within 20 days of written receipt of such notice from the executive director.

(F) If the committee or panel finds the applicant ineligible to receive a permit, such recommendation together with the reasons for the recommendation, shall be submitted to the board unless the applicant makes a written request for a hearing within 20 days of receipt of notice of the committee's or panel's determination. The hearing shall be before an administrative law judge of the State Office of Administrative Hearings and shall comply with the Administrative Procedure Act, the rules of the State Office of Administrative Hearings and the board. The board shall, after receiving the administrative law judge's proposed findings of fact and conclusions of law, determine the eligibility of the applicant to receive a permit. A physician whose application to receive a permit is denied by the board shall receive a written statement containing the reasons for the board's action.

(G) All reports and investigative information received or gathered by the board on each applicant are confidential and are not subject to disclosure under the Public Information Act, Gov't Code Chapter 552 and the Medical Practice Act, Tex. Occ. Code §§155.007(g), 155.058, and 164.007(c). The board may disclose such reports and investigative information to appropriate licensing authorities in other states.

(2) Physician-in-Training Permit Application. An application for a physician-in-training permit must be on forms furnished by the board and include the following:

(A) the required fee as mandated in the Medical Practice Act, §153.051 and as construed in board rules;

(B) certification by the postgraduate training program:

(i) for a Texas postgraduate training program, a certification must be completed by the director of medical education, the chair of graduate medical education, the program director, or, if none of the previously named positions is held by a Texas licensed physician, the Texas Licensed physician supervising physician of the postgraduate training program on a form provided by the board that certifies that:

(I) the program meets the definition of an approved postgraduate training program in subsection (a)(1), (a)(2), and (a)(4) of this section;

(II) the applicant has met all educational and character requirements established by the program and has been accepted into the program; and

(III) the program has received a letter from the dean of the applicant's medical school that states that the applicant is scheduled to graduate from medical school before the date the applicant plans to begin postgraduate training, if the applicant has not yet graduated from medical school.

(ii) if the applicant is completing rotations in Texas as part of the applicant's residency out-of-state training program or with the military:

(I) a certification must be completed by the director of medical education, the chair of graduate medical education, the program director, or, if none of the previously named positions is held by a physician licensed in any state, the supervising physician, licensed in any state, of the postgraduate training program on a form provided by the board that certifies that:

(-a-) the program meets the definition of an approved postgraduate training program in subsection (a)(1), (a)(2), and (a)(4) of this section;

(-b-) the applicant has met all educational and character requirements established by the program and has been accepted into the program;

(-c-) the program has received a letter from the dean of the applicant's medical school which states that the applicant is scheduled to graduate from medical school before the date the applicant plans to begin postgraduate training, if the applicant has not yet graduated from medical school; and

(II) a certification by the Texas Licensed physician supervising the Texas rotations of the postgraduate training program on a form provided by the board that certifies:

(-a-) the facility at which the rotations are being completed,

(-b-) the dates the rotations will be completed in Texas, and

(-c-) that the Texas on-site preceptor physician will supervise and be responsible for the applicant during the rotation in Texas;

(C) arrest records. If an applicant has ever been arrested, a copy of the arrest and arrest disposition must be requested from the arresting authority by the applicant and said authority must submit copies directly to the board;

(D) medical records for inpatient treatment for alcohol/substance abuse, mental illness, and physical illness. Each applicant who has been admitted to an inpatient facility within the last five years for the treatment of alcohol/substance abuse, mental illness (recurrent or severe major depressive disorder, bipolar disorder, schizophrenia, schizoaffective disorder, or any severe personality disorder), or physical illness shall submit documentation to include, but not limited to:

(i) an applicant's statement explaining the circumstances of the hospitalization;

(ii) all records, submitted directly from the inpatient facility;

(iii) a statement from the applicant's treating physician/psychotherapist as to diagnosis, prognosis, medications prescribed, and follow-up treatment recommended; and

(iv) a copy of any contracts signed with any licensing authority or medical society or impaired physician's committee;

(E) medical records for outpatient treatment for alcohol/substance abuse, mental illness, or physical illness. Each applicant that has been treated on an outpatient basis within the last five years for alcohol/substance abuse, mental illness (recurrent or severe major depressive disorder, bipolar disorder, schizophrenia, schizoaffective disorder, or any severe personality disorder), or physical illness shall submit documentation to include, but not limited to:

(i) an applicant's statement explaining the circumstances of the outpatient treatment;

(ii) a statement from the applicant's treating physician/psychotherapist as to diagnosis, prognosis, medications prescribed, and follow-up treatment recommended; and

(iii) a copy of any contracts signed with any licensing authority or medical society or impaired physician's committee;

(F) an oath on a form provided by the board attesting to the truthfulness of statements provided by the applicant;

(G) such other information or documentation the board and/or the executive director deem necessary to ensure compliance with this chapter, the Medical Practice Act and board rules.

(d) Expiration of Physician-in-Training Permit.

(1) Physician-in-Training permits shall be issued with effective dates corresponding with the beginning and ending dates of the postgraduate resident's training program as reported to the board by the program director.

(2) Physician-in-training permits shall expire on any of the following, whichever occurs first:

(A) on the reported ending date of the postgraduate training program;

(B) on the date a postgraduate training program terminates or otherwise releases a permit holder from its training program; or

(C) on the date the permit holder obtains full licensure or temporary licensure pending full licensure pursuant to §155.002 of the Act.

(3) Physician-in-training permit holders who are issued permits on or after April 1, 2005, and who require extensions to remain in a training program after a program's reported ending date must submit a written request to the board and fee, if required, along with a statement by the program director authorizing the request for the extension. Such extensions shall be granted at the discretion of the board's executive director and may not be for longer than 90 days unless good cause is shown.

(e) The executive director of the board may, in his/her discretion, issue a temporary physician-in-in-training permit to an applicant if the applicant and the postgraduate training program have submitted written requests. The executive director, in his/her discretion, will determine the length of the permit and may issue additional temporary physician-in-training permits to an applicant.

§171.4.Board-Approved Fellowships.

(a) The executive director may in his/her discretion, upon written request, approve fellowships as referenced in §171.3(a)(2) of this chapter. Fellowships meeting the criteria set forth in §171.3(a)(4) of this chapter do not require board approval for physician-in-training permits to be issued to subspecialty postgraduate residents in the fellowship. If the executive director does not recommend approval, the institution's designated institutional official (DIO) and chair of the Graduate Medical Education Committee (GMEC) may appeal to the board for its discretionary consideration of the request.

(b) The initial request for approval should be submitted to the executive director, on a form prescribed by the board, 90 days prior to the beginning date of the program to assist in the expedited processing of an application. The request must include the length of the fellowship; the length of time for which the institution is requesting approval of the fellowship itself, not to exceed five years; and other information as required by the board.

(c) Approval of fellowships requires certification by the DIO and the chair of the GMEC of the institution in which the fellowship will be conducted that the fellowship program has been evaluated and approved by the institution's graduate medical education committee. The evaluation shall include but not be limited to satisfactory demonstration to the committee of the fellowship's:

(1) goals and objectives; documented curriculum; and, qualifications of the program director and program faculty, including, but not limited to, certification by the appropriate specialty board and/or appropriate educational qualifications;

(2) process by which subspecialty postgraduate residents are selected;

(3) prerequisite requirements of the postgraduate residents, including whether prior residency training in a related specialty is required;

(4) delineated duties and responsibilities required of subspecialty postgraduate residents in the program;

(5) number of subspecialty postgraduate residents to be enrolled each year;

(6) scholarly activity to be required of subspecialty postgraduate residents;

(7) type of supervision to be provided for subspecialty postgraduate residents;

(8) requirements for the program director or supervising physician to hold a Texas license or faculty temporary license issued by the board;

(9) methods for evaluation of subspecialty postgraduate residents by the program; and

(10) progressive nature, including, but not limited to, the progressively greater responsibility of the subspecialty postgraduate residents throughout the course of the fellowship if the fellowship is over one year in length.

(d) Institutions with board-approved fellowships must determine whether to conduct internal reviews of the program at the mid-point of the program's most recent approval period.

(e) Institutions with board-approved fellowships that are eligible for accreditation as described in §171.3(a)(4) of this chapter must determine whether the fellowship should seek such accreditation rather than board approval of the fellowship.

(f) The DIO and the chair of the GMEC of the institution for which a fellowship program has been previously approved by the board must apply to have the program approved again, if the program is to continue after the expiration date. Applications for subsequent approval must comply with all requirements in this section for initial approval and must be submitted at least three months prior to the expiration of the approved program in order to prevent a lapse in time of the fellowship. Permit holders shall be allowed to complete their fellowship regardless of continuing program approval.

(h) All fellowships that have been approved before September 1, 2006 shall expire on the date provided in the original approval, but no later than August 31, 2007. A new application for approval must be submitted at least three months prior to the expiration date or on June 1, 2007, whichever date is earlier. All requests for board approval of fellowships submitted on or after September 1, 2006 must comply with the requirements of this chapter.

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

Filed with the Office of the Secretary of State on June 9, 2006.

TRD-200603119

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Effective date: June 29, 2006

Proposal publication date: April 28, 2006

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

Chapter 172. TEMPORARY AND LIMITED LICENSES

Subchapter C. LIMITED LICENSES

22 TAC §172.13

The Texas Medical Board (Board) adopts the new §172.13, relating to a limited license for Conceded Eminence, without changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3478) and will not be republished.

Prior to publishing the proposed new rule, the Board sought stakeholder input through a Licensure Stakeholder Group, organized in 2005. The Licensure Stakeholder Group made comments on the suggested changes to the rules at a meeting held on March 21, 2006, which comments were incorporated into the published proposed rules.

The Board received one comment from the Texas Medical Association in support of this rule, as published.

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

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

Filed with the Office of the Secretary of State on June 9, 2006.

TRD-200603120

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Effective date: June 29, 2006

Proposal publication date: April 28, 2006

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

Chapter 174. TELEMEDICINE

22 TAC §174.2, §174.6

The Texas Medical Board (Board) adopts the amendments to §174.2 (Definitions) and new §174.6 (standards for delegation to and supervision of telepresenters), relating to Telemedicine. The amendments and the new rule are adopted without changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3479) and will not be republished.

Prior to publishing the proposed amendments, the Board sought stakeholder input through an Enforcement Stakeholder Group, organized in 2005. The Enforcement Stakeholder Group made comments on the suggested changes to the rules at a meeting held on March 21, 2006, which comments were incorporated into the published proposed rules.

The Board received one comment from the Texas Medical Association regarding the proposed new §174.6. The Association suggested that §174.6(c) be expanded to provide a definition of "adequate supervision." The Board will seek comments from the Enforcement Stakeholder Group regarding a definition of "adequate supervision," which may be considered by the Board in future rulemaking actions.

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

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

Filed with the Office of the Secretary of State on June 9, 2006.

TRD-200603121

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Effective date: June 29, 2006

Proposal publication date: April 28, 2006

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

Chapter 178. COMPLAINTS

22 TAC §178.8

The Texas Medical Board (Board) adopts amendments to §178.8, relating to the deletion of the deadline for filing an appeal to the dismissal of a complaint, without changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3480) and will not be republished.

Prior to publishing the adopted new rule, the Board sought stakeholder input through an Enforcement Stakeholder Group, organized in 2005. The Enforcement Stakeholder Group made comments on the suggested changes to the rules at a meeting held on March 21, 2006, which comments were incorporated into the published proposed rules.

The only comment received regarding this proposed rule was from the Texas Medical Association in support of this rule, as published.

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

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

Filed with the Office of the Secretary of State on June 9, 2006.

TRD-200603122

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Effective date: June 29, 2006

Proposal publication date: April 28, 2006

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

Chapter 185. PHYSICIAN ASSISTANTS

22 TAC §§185.1 - 185.4, 185.6 - 185.8, 185.13, 185.15 - 185.19, 185.22, 185.23, 185.26

The Texas Medical Board (Board) adopts amendments to §§185.1 - 185.4, 185.6 - 185.8, 185.13, 185.15 - 185.19, 185.22, 185.23, and new §185.26, relating to physician assistants. Sections 185.1 - 185.3, 185.6 - 185.8, 185.13, 185.15 - 185.19, 185.22, 185.23, and 185.26 are adopted without changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3481) and will not be republished. Section 185.4 is adopted with changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3481). The text of the rule will be republished.

The adopted rules were proposed by the Texas Physician Assistant Board and approved by the Texas Medical Board.

Prior to publishing the proposed new rule, the Board sought stakeholder input through an Enforcement Stakeholder Group, organized in 2005. The comments of the Enforcement Stakeholder Group on the suggested changes to the rules were incorporated into the published proposed rules.

There were no comments received regarding §§185.1 - 185.3, 185.6 - 185.8, 185.13, 185.15 - 185.19, 185.22, and 185.23 and new §185.26.

There was only one comment regarding §185.4, that being from an individual, a member of the Texas Physician Assistant Board. The individual pointed out that the proposed rule as published contained a mistake in §185.4(a)(10), which stated that "applicants who apply for a license on or after January 1, 2007, passes the national licensing examination required for NCCPA certification within no more that three attempts." This should have been "six attempts," in accordance with the action of the Texas Physician Assistant Board and the Medical Board and was a typographical error. The Board has corrected this error and the rule will be adopted with the change.

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

§185.4.Procedural Rules for Licensure Applicants.

(a) Except as otherwise provided in this section, an individual shall be licensed by the board before the individual may function as a physician assistant. A license shall be granted to an applicant who:

(1) submits an application on forms approved by the board;

(2) pays the appropriate application fee as prescribed by the board;

(3) has successfully completed an educational program for physician assistants or surgeon assistants accredited by the Accreditation Review Commission for the Education of Physician Assistants (ARC-PA), or by that committee's predecessor or successor entities, and holds a valid and current certificate issued by the National Commission on Certification of Physician Assistants ("NCCPA");

(4) certifies that the applicant is mentally and physically able to function safely as a physician assistant;

(5) does not have a license, certification, or registration as a physician assistant in this state or from any other licensing authority that is currently revoked or on suspension or the applicant is not subject to probation or other disciplinary action for cause resulting from the applicant's acts as a physician assistant, unless the board takes that fact into consideration in determining whether to issue the license;

(6) is of good moral character;

(7) is of good professional character as defined under §185.1(7) of this title.

(8) submits to the board any other information the board considers necessary to evaluate the applicant's qualifications;

(9) meets any other requirement established by rules adopted by the board; and

(10) for applicants who apply for a license on or after January 1, 2007, passes the national licensing examination required for NCCPA certification within no more than six attempts.

(11) for applicants who apply for a license on or after September 1, 2007, passes a jurisprudence examination ("JP exam"), which shall be conducted on the licensing requirements and other laws, rules, or regulations applicable to the physician assistant profession in this state. The jurisprudence examination shall be developed and administered as follows:

(A) The staff of the Medical Board shall prepare questions for the JP exam and provide a facility by which applicants can take the examination.

(B) Applicants must pass the JP exam with a score of 75 or better within three attempts.

(C) An examinee shall not be permitted to bring medical books, compends, notes, medical journals, calculators or other help into the examination room, nor be allowed to communicate by word or sign with another examinee while the examination is in progress without permission of the presiding examiner, nor be allowed to leave the examination room except when so permitted by the presiding examiner.

(D) Irregularities during an examination such as giving or obtaining unauthorized information or aid as evidenced by observation or subsequent statistical analysis of answer sheets, shall be sufficient cause to terminate an applicant's participation in an examination, invalidate the applicant's examination results, or take other appropriate action.

(E) An applicant who is unable to pass the JP exam within three attempts must appear before a committee of the board to address the applicant's inability to pass the examination and to re-evaluate the applicant's eligibility for licensure. It is at the discretion of the committee to allow an applicant additional attempts to take the JP exam.

(b) The following documentation shall be submitted as a part of the licensure process:

(1) Name Change. Any applicant who submits documentation showing a name other than the name under which the applicant has applied must present certified copies of marriage licenses, divorce decrees, or court orders stating the name change. In cases where the applicant's name has been changed by naturalization the applicant should send the original naturalization certificate by certified mail to the board for inspection.

(2) Certification. Each applicant for licensure must submit:

(A) a letter of verification of current NCCPA certification sent directly from NCCPA, and

(B) a certificate of successful completion of an educational program submitted directly from the program on a form provided by the board.

(3) Examination Scores. Each applicant for licensure must have a certified transcript of grades submitted directly from the appropriate testing service to the board for all examinations accepted by the board for licensure.

(4) Verification from other states. Each applicant for licensure who is licensed, registered, or certified in another state must have that state submit directly to the board, on a form provided by the board, that the physician assistant's license, registration, or certification is current and in full force and that the license, registration, or certification has not been restricted, canceled, suspended, or revoked. The other state shall also include a description of any sanctions imposed by or disciplinary matters pending in the state.

(5) State License Registration. Each applicant, if licensed, registered, or certified in another state as a physician assistant, must submit a copy of the license registration certificate to the board. The license, registration, or certificate number and the date of expiration must be visible on the copy.

(6) Arrest Records. If an applicant has ever been arrested, a copy of the arrest and arrest disposition needs to be requested from the arresting authority and that authority must submit copies directly to the board.

(7) Malpractice. If an applicant has ever been named in a malpractice claim filed with any liability carrier or if an applicant has ever been named in a malpractice suit, the applicant must:

(A) have each liability carrier complete a form furnished by this board regarding each claim filed against the applicant's insurance;

(B) for each claim that becomes a malpractice suit, have the attorney representing the applicant in each suit submit a letter directly to the board explaining the allegation, dates of the allegation, and current status of the suit. If the suit has been closed, the attorney must state the disposition of the suit, and if any money was paid, the amount of the settlement. The letter shall be accompanied by supporting documentation including court records if applicable. If such letter is not available, the applicant will be required to furnish a notarized affidavit explaining why this letter cannot be provided; and

(C) provide a statement, composed by the applicant, explaining the circumstances pertaining to patient care in defense of the allegations.

(8) Additional Documentation. Additional documentation as is deemed necessary to facilitate the investigation of any application for licensure must be submitted.

(c) The executive director shall review each application for licensure and shall recommend to the board all applicants eligible for licensure. The executive director also shall report to the board the names of all applicants determined to be ineligible for licensure, together with the reasons for each recommendation. An applicant deemed ineligible for licensure by the executive director may request review of such recommendation by a committee of the board within 20 days of receipt of such notice, and the executive director may refer any application to said committee for a recommendation concerning eligibility. If the committee finds the applicant ineligible for licensure, such recommendation, together with the reasons therefor, shall be submitted to the board unless the applicant requests a hearing within 20 days of receipt of notice of the committee's determination. The hearing shall be before an administrative law judge of the State Office of Administrative Hearings and shall comply with the Administrative Procedure Act and its subsequent amendments and the rules of the State Office of Administrative Hearings and the board. The committee may refer any application for determination of eligibility to the full board. The board shall, after receiving the administrative law judge's proposed findings of fact and conclusions of law, determine the eligibility of the applicant for licensure. A physician assistant whose application for licensure is denied by the board shall receive a written statement containing the reasons for the board's action. All reports received or gathered by the board on each applicant are confidential and are not subject to disclosure under the Public Information Act. The board may disclose such reports to appropriate licensing authorities in other states.

(d) All physician assistant applicants shall provide sufficient documentation to the board that the applicant has, on a full-time basis, actively practiced as a physician assistant, has been a student at an acceptable approved physician assistant program, or has been on the active teaching faculty of an acceptable approved physician assistant program, within either of the last two years preceding receipt of an application for licensure. The term "full-time basis," for purposes of this section, shall mean at least 20 hours per week for 40 weeks duration during a given year. Applicants who do not meet the requirements of subsections (a) and (b) of this section may, in the discretion of the board, be eligible for an unrestricted license or a restricted license subject to one or more of the following conditions or restrictions as set forth in paragraphs (1)-(4) of this subsection:

(1) completion of specified continuing medical education hours approved for Category 1 credits by a CME sponsor approved by the American Academy of Physician Assistants;

(2) limitation and/or exclusion of the practice of the applicant to specified activities of the practice as a physician assistant;

(3) remedial education; and

(4) such other remedial or restrictive conditions or requirements which, in the discretion of the board are necessary to ensure protection of the public and minimal competency of the applicant to safely practice as a physician assistant.

(e) Applicants for licensure:

(1) whose application for licensure which has been filed with the board office and which is in excess of one year old from the date of receipt, shall be considered inactive. Any fee previously submitted with the application shall be forfeited. Any further application procedure for licensure will require submission of a new application and inclusion of the current licensure fee;

(2) who in any way falsify the application may be required to appear before the board;

(3) on whom adverse information is received by the board may be required to appear before the board;

(4) shall be required to comply with the board's rules and regulations which are in effect at the time the completed application form and fee are filed with the board;

(5) may be required to sit for additional oral or written examinations that, in the opinion of the board, are necessary to determine competency of the applicant;

(6) must have the application of licensure complete in every detail 20 days prior to the board meeting in which they are considered for licensure. Applicants may qualify for a Temporary License prior to being considered by the board for licensure, as required by §185.7 of this title (relating to Temporary License);

(7) who previously held a Texas health care provider license, certificate, permit, or registration may be required to complete additional forms as required.

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

Filed with the Office of the Secretary of State on June 9, 2006.

TRD-200603123

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Effective date: June 29, 2006

Proposal publication date: April 28, 2006

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

Chapter 192. OFFICE-BASED ANESTHESIA SERVICES

22 TAC §§192.1 - 192.5

The Texas Medical Board (Board) adopts amendments to §§192.1 - 192.5, relating to Office-Based Anesthesia Services. Sections 192.1, 192.4, and 192.5 are adopted without changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3487) and will not be republished. Sections 192.2 and 192.3 are adopted with changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3487). The text of the rules will be republished.

Prior to publishing the adopted amendments, the proposed rules were the subject of a resource group of physicians with experience in anesthesia. The Board further sought stakeholder input through a Licensure Stakeholder Group, organized in 2005. The Licensure Stakeholder Group made comments on the suggested changes to the rules at a meeting held on March 21, 2006, which comments were incorporated into the published proposed rules.

The Board received comments regarding the proposed amendments from the Board of Nurse Examiners for the State of Texas and the Texas Association of Nurse Anesthetists.

Comment 1. The Board of Nurse Examiners commented that there had not been cooperation between the Texas Medical Board and the Board of Nurse Examiners regarding the proposed changes to Chapter 192 and the current rule should not be deleted or rewritten unless there is cooperation between the boards. As discussed below, the Texas Medical Board has considered and agreed with the comments of the Board of Nurse Examiners, demonstrating its cooperation with the Board of Nurse Examiners. As shown in the response to Comments 2 and 3, the Board has adopted amendments to the rules, as requested by the commenters, and adopted the amended rules, as shown below.

Comment 2. Both commenters contended that §192.2(k) attempted to expand the requirement for current competency in advanced cardiac life support to include certified registered nurse anesthetists and that the Board is without authority to regulate the practice of a nurse anesthetist. Further investigation has shown that the Board of Nurse Examiners already requires that certified registered nurse anesthetists be certified in advanced cardiac live support. The Board agrees that the proposed rule could be interpreted as an attempt to regulate nurse anesthetists and that the Board does not have statutory authority to do so.

A Board member noted that §192.2(c)(4) should be titled "Level IV services" and this non-substantive change has been made.

Comment 3. Both commenters contended that proposed §192.3(a) is in conflict with Texas Occupations Code, §157.058(a) and §157.060. The Board does not necessarily agree that there would be any conflict. The proposed rule simply stated that this rule should not be construed to affect any professional or legal responsibility for delegation to a non-physician, including a certified registered nurse anesthetist. If there is no professional or legal responsibility, as the commenters contend, then this rule would not be construed as an attempt to create any responsibility. If there is professional or legal responsibility, then the adopted rule would not be construed to increase or decrease that responsibility. However, in cooperation with the Board of Nurse Examiners, the Board has amended the proposed rule and adopted the amended rule as shown below. It is the intent of the Board, however, to affect no change in any legal or professional responsibility by the adoption of this rule.

No comments were received regarding §§192.1, 192.4, or 192.5.

§192.2.Provision of Anesthesia Services in Outpatient Settings.

(a) The purpose of these rules is to identify the roles and responsibilities of physicians providing, or overseeing by proper delegation, anesthesia services in outpatient settings and to provide the minimum acceptable standards for the provision of anesthesia services in outpatient settings.

(b) The rules promulgated under this title do not apply to physicians who practice in the following settings listed in paragraphs (1)-(8) of this subsection:

(1) an outpatient setting in which only local anesthesia, peripheral nerve blocks, or both are used;

(2) any setting physically located outside the State of Texas;

(3) a licensed hospital, including an outpatient facility of the hospital that is separately located apart from the hospital;

(4) a licensed ambulatory surgical center;

(5) a clinic located on land recognized as tribal land by the federal government and maintained or operated by a federally recognized Indian tribe or tribal organization as listed by the United States secretary of the interior under 25 U.S.C. (479-1 or as listed under a successor federal statute or regulation;

(6) a facility maintained or operated by a state or governmental entity;

(7) a clinic directly maintained or operated by the United States or by any of its departments, officers, or agencies; and

(8) an outpatient setting accredited by:

(A) the Joint Commission on Accreditation of Healthcare Organizations relating to ambulatory surgical centers;

(B) the American Association for the Accreditation of Ambulatory Surgery Facilities; or

(c) Standards for Anesthesia Services. The following standards are required for outpatient settings providing anesthesia services that are administered within two hours before an out patient procedure. If personnel and equipment meet the requirements of a higher level, lower level anesthesia services may also be provided.

(1) Level I services:

(A) at least two personnel must be present, including the physician who must be currently certified at least in AHA approved BCLS; and

(B) the following age-appropriate equipment must be present:

(i) bag mask valve;

(ii) oxygen;

(iii) AED or other defibrillator; and

(iv) pre-measured doses of epinephrine, atropine, adreno-corticoids, and antihistamines.

(2) Level II services:

(A) at least two personnel must be present, including the physician who must be currently certified at least in AHA approved ACLS or PALS, as appropriate;

(i) another person must be currently certified at least in AHA approved BCLS; and

(ii) a licensed health care provider, who may be one of the two required personnel, must attend the patient, until the patient is ready for discharge; and

(B) a crash cart must be present containing drugs and equipment necessary to carry out ACLS protocols, including, but not limited to, the following age-appropriate equipment:

(i) bag mask valve and appropriate airway maintenance devices;

(ii) oxygen;

(iii) AED or other defibrillator;

(iv) pre-measured doses of first line cardiac medications, including epinephrine, atropine, adreno-corticoids, and antihistamines;

(v) IV equipment;

(vi) pulse oximeter; and

(vii) EKG Monitor.

(3) Level III services:

(A) at least two personnel must be present, including the physician who must be currently certified at least in AHA approved ACLS or PALS, as appropriate;

(i) another person must be currently certified at least in AHA approved BCLS;

(ii) a licensed health care provider, which may be either of the two required personnel, must attend the patient, until the patient is ready for discharge; and

(iii) a person, who may be either of the two required personnel, must be responsible for monitoring the patient during the procedure; and

(B) the same equipment required for Level II;

(4) Level IV services: Physicians who practice medicine in this state and who administer anesthesia or perform a procedure for which anesthesia services are provided in outpatient settings at Level IV shall follow current, applicable standards and guidelines as put forth by the American Society of Anesthesiologists (ASA) including, but not limited to, the following listed in paragraphs (1)-(8) of this subsection:

(A) Basic Standards for Preanesthesia Care;

(B) Standards for Basic Anesthetic Monitoring;

(D) Position on Monitored Anesthesia Care;

(E) The ASA Physical Status Classification System;

(F) Guidelines for Nonoperating Room Anesthetizing Locations;

(G) Guidelines for Ambulatory Anesthesia and Surgery; and

(H) Guidelines for Office-Based Anesthesia.

(d) A physician delegating the provision of anesthesia or anesthesia-related services to a certified registered nurse anesthetist shall be in compliance with ASA standards and guidelines when the certified registered nurse anesthetist provides a service specified in the ASA standards and guidelines to be provided by an anesthesiologist.

(e) In an outpatient setting, where a physician has delegated to a certified registered nurse anesthetist the ordering of drugs and devices necessary for the nurse anesthetist to administer an anesthetic or an anesthesia-related service ordered by a physician, a certified registered nurse anesthetist may select, obtain and administer drugs, including determination of appropriate dosages, techniques and medical devices for their administration and in maintaining the patient in sound physiologic status. This order need not be drug-specific, dosage specific, or administration-technique specific. Pursuant to a physician's order for anesthesia or an anesthesia-related service, the certified registered nurse anesthetist may order anesthesia-related medications during perianesthesia periods in the preparation for or recovery from anesthesia. In providing anesthesia or an anesthesia-related service, the certified registered nurse anesthetist shall select, order, obtain and administer drugs which fall within categories of drugs generally utilized for anesthesia or anesthesia-related services and provide the concomitant care required to maintain the patient in sound physiologic status during those experiences.

(f) The anesthesiologist or physician providing anesthesia or anesthesia-related services in an outpatient setting shall perform a pre-anesthetic evaluation, counsel the patient, and prepare the patient for anesthesia per current ASA standards. If the physician has delegated the provision of anesthesia or anesthesia-related services to a CRNA, the CRNA may perform those services within the scope of practice of the CRNA. Informed consent for the planned anesthetic intervention shall be obtained from the patient/legal guardian and maintained as part of the medical record. The consent must include explanation of the technique, expected results, and potential risks/complications. Appropriate pre-anesthesia diagnostic testing and consults shall be obtained per indications and assessment findings. Pre-anesthetic diagnostic testing and specialist consultation should be obtained as indicated by the pre-anesthetic evaluation by the anesthesiologist or suggested by the nurse anesthetist's pre-anesthetic assessment as reviewed by the surgeon. If responsibility for a patient's care is to be shared with other physicians or non-physician anesthesia providers, this arrangement should be explained to the patient.

(g) Physiologic monitoring of the patient shall be determined by the type of anesthesia and individual patient needs. Minimum monitoring shall include continuous monitoring of ventilation, oxygenation, and cardiovascular status. Monitors shall include, but not be limited to, pulse oximetry and EKG continuously and non-invasive blood pressure to be measured at least every five minutes. If general anesthesia is utilized, then an O2 analyzer and end-tidal CO2 analyzer must also be used. A means to measure temperature shall be readily available and utilized for continuous monitoring when indicated per current ASA standards. An audible signal alarm device capable of detecting disconnection of any component of the breathing system shall be utilized. The patient shall be monitored continuously throughout the duration of the procedure. Postoperatively, the patient shall be evaluated by continuous monitoring and clinical observation until stable by a licensed health care provider. Monitoring and observations shall be documented per current ASA standards. In the event of an electrical outage which disrupts the capability to continuously monitor all specified patient parameters, at a minimum, heart rate and breath sounds will be monitored on a continuous basis using a precordial stethoscope or similar device, and blood pressure measurements will be reestablished using a non-electrical blood pressure measuring device until electricity is restored. There should be in each location, sufficient electrical outlets to satisfy anesthesia machine and monitoring equipment requirements, including clearly labeled outlets connected to an emergency power supply. A two-way communication source not dependent on electrical current shall be available. Sites shall also have a secondary power source as appropriate for equipment in use in case of power failure.

(h) All anesthesia-related equipment and monitors shall be maintained to current operating room standards. All devices shall have regular service/maintenance checks at least annually or per manufacturer recommendations. Service/maintenance checks shall be performed by appropriately qualified biomedical personnel. Prior to the administration of anesthesia, all equipment/monitors shall be checked using the current FDA recommendations as a guideline. Records of equipment checks shall be maintained in a separate, dedicated log which must be made available upon request. Documentation of any criteria deemed to be substandard shall include a clear description of the problem and the intervention. If equipment is utilized despite the problem, documentation must clearly indicate that patient safety is not in jeopardy. All documentation relating to equipment shall be maintained for seven years or for a period of time as determined by the board.

(i) Each location must have emergency supplies immediately available. Supplies should include emergency drugs and equipment appropriate for the purpose of cardiopulmonary resuscitation. This must include a defibrillator, difficult airway equipment, and drugs and equipment necessary for the treatment of malignant hyperthermia if "triggering agents" associated with malignant hyperthermia are used or if the patient is at risk for malignant hyperthermia. Equipment shall be appropriately sized for the patient population being served. Resources for determining appropriate drug dosages shall be readily available. The emergency supplies shall be maintained and inspected by qualified personnel for presence and function of all appropriate equipment and drugs at intervals established by protocol to ensure that equipment is functional and present, drugs are not expired, and office personnel are familiar with equipment and supplies. Records of emergency supply checks shall be maintained in a separate, dedicated log and made available upon request. Records of emergency supply checks shall be maintained for seven years or for a period of time as determined by the board.

(j) The operating surgeon shall verify that the appropriate policies or procedures are in place. Policies, procedure, or protocols shall be evaluated and reviewed at least annually. Agreements with local emergency medical service (EMS) shall be in place for purposes of transfer of patients to the hospital in case of an emergency. EMS agreements shall be evaluated and re-signed at least annually. Policies, procedure, and transfer agreements shall be kept on file in the setting where procedures are performed and shall be made available upon request. Policies or procedures must include, but are not limited to the following listed in paragraphs (1)-(2) of this subsection:

(1) Management of outpatient anesthesia. At a minimum, these must address:

(A) patient selection criteria;

(B) patients/providers with latex allergy;

(D) ACLS (advanced cardiac life support) or PALS (pediatric advanced life support) algorithms;

(E) infection control;

(F) documentation and tracking use of pharmaceuticals, including controlled substances, expired drugs and wasting of drugs; and

(G) discharge criteria.

(2) Management of emergencies. At a minimum, these must include, but not be limited to:

(A) cardiopulmonary emergencies;

(B) fire;

(D) chemical spill; and

(E) natural disasters.

(k) Physicians, and anesthesiologists shall maintain current competency in ACLS, PALS, or a course approved by the board. In all settings under these rules, at a minimum, at least two persons, including the surgeon or anesthesiologist, shall maintain current competency in basic life support.

(l) Physicians or surgeons must notify the board in writing within 15 days if a procedure performed in any of the settings under these rules resulted in an unanticipated and unplanned transport of the patient to a hospital for observation or treatment for a period in excess of 24 hours, or a patient's death intraoperatively or within the immediate postoperative period. Immediate postoperative period is defined as 72 hours.

§192.3.Compliance with Office-Based Anesthesia Rules.

(a) A physician who provides anesthesia services or performs a procedure for which anesthesia services are provided in an outpatient setting shall comply with the rules adopted under this title.

(b) The board may require a physician to submit and comply with a corrective action plan to remedy or address any current or potential deficiencies with the physician's provision of anesthesia services in an outpatient setting in accordance with the Medical Practice Act, Title 3 Subtitle C §§162.101-.107 of the Texas Occupations Code, or rules of the board.

(c) Any physician who violates these rules shall be subject to disciplinary action and/or termination of the registration issued by the board as authorized by the Medical Practice Act or rules of the board.

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

Filed with the Office of the Secretary of State on June 9, 2006.

TRD-200603124

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Effective date: June 29, 2006

Proposal publication date: April 28, 2006

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

Chapter 199. PUBLIC INFORMATION

22 TAC §199.5

The Texas Medical Board (Board) adopts new §199.5 (Notice of Ownership Interest in a Niche Hospital), relating to Public Information, without changes to the proposed text as published in the April 28, 2006, issue of the Texas Register (31 TexReg 3491) and will not be republished.

Prior to publishing the proposed amendments, the Board collaborated with the Texas Department of Health Services in the design of the proposed form for notice to be sent to that agency. Furthermore, the Board sought stakeholder input through an Enforcement Stakeholder Group, organized in 2005. The Enforcement Stakeholder Group made comments on the suggested changes to the rules at a meeting held on March 21, 2006, which comments were incorporated into the published proposed rules.

The Board received no comments regarding the proposed new rule.

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

Filed with the Office of the Secretary of State on June 9, 2006.

TRD-200603125

Donald W. Patrick, M.D., J.D.

Executive Director

Texas Medical Board

Effective date: June 29, 2006

Proposal publication date: April 28, 2006

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

Part 19. POLYGRAPH EXAMINERS BOARD

Chapter 391. POLYGRAPH EXAMINER INTERNSHIP

22 TAC §391.3

The Polygraph Examiners Board adopts an amendment to §391.3, concerning Internship Training Schedule, with a minor change to the proposed text as published in the April 7, 2006, issue of the Texas Register (31 TexReg 2981). The text of the rule will be republished.

Paragraph (12) is amended because it is not the board's position to limit proprietorship. Paragraph (14) is amended because the rule was in conflict with other statutes. Paragraph (17)(A) is amended for general grammatical clean-up.

Paragraph (17)(A) is adopted with a minor change. The comma (,) after the word, "class" has been deleted.

One individual commented on §391.3(14). The individual felt sponsors needed to stay current by attending continuing education and that could influence the interns they were sponsoring. The board heard the written comment and voted to adopt the amendments as written to §391.3(14).

The amendment is adopted under the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703, 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, Texas Occupations Code, Chapter 1703.

§391.3.Internship Training Schedule.

The following internship schedule has been approved and adopted by the Board as a minimum type and number of hours of any internship training program to be utilized in course of supervised instruction:

(1) History and development of polygraph--four hours.

(2) Legal and ethical aspects of polygraph.

(A) Texas Polygraph Examiners Act--10 hours.

(B) Statements and reports, civil rights, examiner and professional ethics--10 hours.

(3) Physiology--24 hours.

(A) Nervous system, autonomic nervous system.

(i) Sympathetic system.

(ii) Parasympathetic system.

(B) Circulatory system and the heart.

(D) Effects of drugs, alcohol, and illness.

(4) Psychology--24 hours.

(A) General.

(B) Abnormal.

(5) Interrogation and interviews--100 hours.

(A) Receiving case briefing.

(B) Pre-test interview.

(6) Chart interpretation--120 hours.

(A) All types of tests and responses.

(B) Chart marking.

(7) Question formulation and test construction--120 hours.

(A) All types of tests.

(B) All types of questions.

(8) Instrumentation--10 hours.

(A) Construction and maintenance.

(B) Trouble shooting.

(9) Summary and general review--10 hours.

(10) Supervised testing and interviewing--minimum of 30 tests.

(11) Counseling and critique as required in opinion of sponsor.

(12) A list of approved polygraph schools shall be maintained at the Board office and will be made available upon request. Board approval of a polygraph school will be based on the school's training schedule. The board may recognize American Polygraph Association (A.P.A.) accredited schools.

(13) The Board may request and require inspection and review of the internship program of any licensed examiner or internee at any time to ascertain compliance with the program approved by the Board.

(14) Each sponsoring polygraph examiner shall submit to the Board progress reports every 60 days from the date of Board approval of the internship on each intern on forms furnished by the Board. To serve as a sponsor for an intern polygraph examiner, a Texas licensed polygraph examiner must have held an original Texas polygraph license continuously for at least two years immediately preceding the application .

(15) No licensed examiner shall have more than two (2) interns under his/her sponsorship at any one time.

(16) The Secretary of the Board and/or the Executive Officer may approve an intern applicant who meets the qualifications set forth in §391.2 of this title (relating to Procedure and Qualifications) and:

(A) who is a graduate of a polygraph examiners course approved by the Board and has completed not less than six months of internship training; or

(B) who is not a graduate of an approved polygraph examiners course and has completed not less than 12 months of internship training; and

(C) the Executive Officer may approve an intern applicant who meets the qualifications set forth in §391.2 of this title (relating to Procedure and Qualifications).

(17) The intern licensing period shall begin:

(A) on the first day of class of a Board approved polygraph basic school and continue as long as the intern maintains a passing grade in that class provided the intern has, prior to the commencement of the school, completed all of the requirements for the intern license;

(B) if the school has begun and the applicant has not completed all of the requirements for licensure, the internship shall begin on the date the applicant is approved for the intern license; or

(C) if the applicant is not a graduate of an approved polygraph examiners course but intends to complete not less than 12 months of internship training; the internship shall begin on the date the applicant is approved for the intern license by the Board.

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

Filed with the Office of the Secretary of State on June 7, 2006.

TRD-200603063

Frank DiTucci

Executive Director

Polygraph Examiners Board

Effective date: June 27, 2006

Proposal publication date: April 7, 2006

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

Part 35. TEXAS STATE BOARD OF EXAMINERS OF MARRIAGE AND FAMILY THERAPISTS

Chapter 801. LICENSURE AND REGULATION OF MARRIAGE AND FAMILY THERAPISTS

The Texas State Board of Examiners of Marriage and Family Therapists (board) adopts the repeal of §§801.18, 801.19, 801.144, 801.201, 801.202, 801.204, and 801.361 - 801.369; new §§801.18, 801.201, 801.202, and 801.361 - 801.364; and amendments to §§801.1, 801.2, 801.11 - 801.17, 801.41 - 801.54, 801.71 - 801.73, 801.91 - 801.93, 801.111 - 801.114, 801.141 - 801.143, 801.171 - 801.174, 801.203, 801.231 - 801.237, 801.261 - 801.268, 801.291 - 801.302, 801.331 - 801.332, and 801.351, concerning the licensure and regulation of marriage and family therapists. New §§801.18, 801.201, 801.202, and 801.362, and amendments to §§801.2, 801.42, 801.44, 801.45, 801.112, 801.142, 801.143, 801.174, 801.203, and 801.233 are adopted with changes to the proposed text as published in the December 23, 2005, issue of the Texas Register (30 TexReg 8595). The repeal of §§801.18, 801.19, 801.144, 801.201, 801.202, 801.204, 801.361 - 801.369; new §§801.361, 801.363, 801.364; and amendments to §§801.1, 801.11 - 801.17, 801.41, 801.43, 801.46 - 801.54, 801.71 - 801.73, 801.91 - 801.93, 801.111, 801.113, 801.114, 801.141, 801.171 - 801.173, 801.231, 801.232, 801.234 - 801.237, 801.261 - 801.268, 801.291 - 801.302, 801.331, 801.332, and 801.351 are adopted without changes, and the sections will not be republished.

BACKGROUND AND PURPOSE

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Chapter 801 has been reviewed in its entirety and the board has determined that the reasons for adopting the sections continue to exist because rules relating to the licensure and regulation of marriage and family therapists are needed in order to protect and promote public health, safety, and welfare. The rule review revealed that the sections require modification to update and clarify the rules.

In general, each section was reviewed and new, repealed, or amended rules are adopted in order to ensure clarity; to ensure that the rules reflect current legal, policy, and operational considerations; to ensure accuracy; to improve draftsmanship; and to make the rules more accessible, understandable, and usable, to the extent possible.

Additionally, the 79th Texas Legislature, 2005, enacted House Bill 1413, which became effective September 1, 2005. The legislation was the result of the review of the board and the board's enabling statute by the Sunset Advisory Commission. The Commission recommended, and the Legislature enacted, amendments to the enabling statute (Occupations Code, Chapter 502) that are intended to strengthen the regulation of marriage and family therapists and apply Sunset across-the-board recommendations for licensing programs. This rule adoption addresses those statutory amendments.

The repeals, new sections, and amendments are the result of the comprehensive rule review undertaken by the board and the board's staff, as well as the need to implement and incorporate recent legislation.

SECTION-BY-SECTION SUMMARY

Regarding Subchapter A, amendments to §801.1 are adopted to improve draftsmanship. Amendments to §801.2 are adopted to add a new definition of "client", to revise the definition of "regionally accredited institution" to "accredited institutions", to improve accuracy and clarity, and to delete unnecessary language.

Regarding Subchapter B, amendments to §801.11 are adopted to ensure that at least one public member shall be appointed to the Ethics Committee, to ensure that the board member training program shall meet the requirements of the enabling statute, and to clarify that board members are entitled to reimbursement of travel expenses.

Amendments to §801.12 are adopted to improve draftsmanship. Amendments to §801.13 are adopted to reflect current policy and operational considerations. Amendments to §801.14 and §801.15 are adopted to improve accuracy, and revise references to the Act and department. Amendments to §801.16 are adopted to improve and clarify the board's policy regarding disability accommodations. Amendments to §801.17 are adopted to include a "renewal card".

The repeal of §801.18 is adopted as not reflecting current operational procedures.

The repeal of existing §801.19 and new §801.18 are adopted to renumber the section and to reflect the doubling of licensing fees necessitated by the move to two-year license terms. Notwithstanding other law, two-year license terms were mandated by House Bill 2292, 78th Regular Session. Fees for a two-year license are two times the amount of the fee for a one-year license. The section is also adopted to reflect the board's authority to collect fees required to fund the Office of Patient Protection and the processing costs of transactions conducted through Texas Online.

Regarding Subchapter C, amendments to §801.41 and §801.42 are adopted to improve and clarify the sections and to delete the word "rendering" and the subject concerning "scope". Amendments to §801.43 are adopted to improve draftsmanship. Amendments to §801.44 are adopted to clarify board expectations regarding information to be provided to prospective clients.

Amendments to §801.45 - 801.47 are adopted to improve draftsmanship. Amendments to §801.48 are adopted to clarify the section and incorporate the topic of the release of mental health records. Amendments to §801.49 are adopted to eliminate the unnecessary prohibition that applicants may not use board members as references. Amendments to §§801.50 - 801.54 are adopted to improve accuracy and draftsmanship and to clarify the sections.

Regarding Subchapter D, amendments to §801.71 and §801.72 are adopted to improve draftsmanship and clarify that an application must be complete within one year of the original date of filing or the application may be voided.

Amendments to §801.73 are adopted to reflect current operating procedure, to eliminate the requirement relating to an applicant's references, and to require applicants to submit proof of completion of the jurisprudence examination, which is required by recent Sunset legislation.

Regarding Subchapter E, amendments to §§801.91 - 801.93 are adopted to improve draftsmanship and accuracy of the sections.

Regarding Subchapter F, amendments to §801.111 are adopted to improve draftsmanship. Amendments to §801.112 are adopted to clarify that it is the responsibility of the applicant to have foreign coursework and degrees evaluated by a professional transcript evaluation service approved by the board. Amendments to §801.113 and §801.114 are adopted to improve draftsmanship.

Regarding Subchapter G, amendments to §801.141 are adopted to improve draftsmanship. Amendments to §801.142 are adopted to clarify that the section relates only to experience requirements for licensure and to move existing language from §801.144 into the section. Amendments to §801.143 are adopted to improve accuracy and draftsmanship and clarify the section's intent. The section is also amended to clarify that an approved supervisor must have either completed a graduate level course in supervision, a continuing education course in supervision, or be approved by the American Association of Marriage and Family Therapy to supervise interns. The repeal of §801.144 is adopted, as the language of the section is more appropriately placed into §801.142 and §801.143.

Regarding Subchapter H, amendments to §801.171 and §801.172 are adopted to improve draftsmanship. Amendments to §801.173 are adopted to clarify that the section relates to the licensure examination and to delete obsolete language. Amendments to §801.174 are adopted to clarify and establish procedures for the licensure and jurisprudence examinations.

Regarding Subchapter I, the repeal of §§801.201, 801.202 and 801.204 and new §801.201 and §801.202 are adopted in order to reorganize, rewrite, and improve the subchapter. Amendments to §801.203 are adopted to correct references.

Regarding Subchapter J, amendments to §801.231 are adopted to include late renewal and surrender of license. Amendments to §801.232 are adopted to reflect the two-year term of license requirement established by House Bill 2292, 78th Regular Session, 2003. Amendments are also adopted to update language relating to failure to pay student loans and to incorporate language relating to failure to pay an administrative penalty, as established by recent Sunset legislation. Amendments to §801.233 are adopted to eliminate language relating to fee proration as not reflecting current operating procedure. Amendments to §801.234 are adopted to reflect current operating procedure, to improve section intent, and to eliminate unnecessary language relating to license renewal when a contested case is pending. The Administrative Procedure Act governs license renewal when a contested case is pending.

Amendments to §801.235 are adopted to clarify and update the section. Amendments to §801.236 are adopted to clarify and update the section, to require that inactive status periods are two-year periods and are renewable biennially, to eliminate fee proration upon return to active status, and to eliminate unnecessary language. Amendments to §801.237 are adopted to clarify procedures relating to license surrender when a complaint is not pending and when a complaint is pending.

Regarding Subchapter K, amendments to §§801.261 - 801.264 are adopted to improve draftsmanship; to incorporate references and procedures relating to the two-year term of license requirement established by House Bill 2292, 78th Regular Session, 2003; and to provide for the acceptance of one hour of ethics continuing education for completing the jurisprudence examination. Amendments to §801.265 are adopted to establish that the board may evaluate continuing education sponsors, remove sponsor approval for non-compliance, and disallow continuing education hours gained from unapproved sponsors.

Amendments to §801.266 are adopted to reference the two-year term of license requirement established by House Bill 2292, 78th Regular Session, 2003 and to clarify the use of clinical supervision as continuing education hours. Amendments to §801.267 are adopted to improve accuracy concerning clock hour credits. Amendments to §801.268 are adopted to improve draftsmanship and update the section concerning continuing education.

Regarding Subchapter L, amendments to §§801.291 - 801.293 are adopted to improve draftsmanship and update the sections. Amendments to §801.294 are adopted to incorporate the board's new authority to issue a cease and desist order to an unlicensed person who is in violation of the Act or rules, and to impose an administrative penalty upon that person for violation of an order. Amendments to §§801.295 - 801.298 are adopted to improve draftsmanship; to clarify, update, and improve the sections; to update obsolete language relating to cease and desist orders; and to clarify monitoring requirements. Amendments to §801.299 are adopted to update the board's administrative penalty schedule to reflect recent Sunset legislation and to eliminate obsolete language. Amendments to §801.300 - 801.302 are adopted to improve draftsmanship and clarify that administrative penalties may be assessed in combination with or in lieu of other disciplinary action.

Regarding Subchapter M, amendments to §801.331 and §801.332 are adopted to revise and add references concerning licensing of persons with criminal backgrounds.

Regarding Subchapter N, amendments to §801.351 are adopted to change the term settlement conference to informal conference; to update the section to reflect current operating procedure; to improve accuracy; to incorporate language relating to the board's new authority to order consumer refunds as part of an informal conference agreement; and to establish new language relating to the failure to appear at an informal conference.

Regarding Subchapter O, the repeal of §§801.361 - 801.369 are adopted to reorganize and improve the subchapter and to eliminate obsolete and unnecessary provisions. New §§801.361 - 801.364 are adopted to establish updated provisions relating to formal hearings that reflect current operating procedures.

COMMENTS

There were no public comments received regarding the proposal. However, the following changes are made by the board as a result of further review of the rule proposal by the board and its staff.

Change: Regarding the definition of "regionally accredited institutions" in §801.2(24), the term was changed to "accredited institutions". The section was renumbered in order to maintain alphabetical order of definitions. The definition was modified to delete obsolete language relating to accreditation associations and to clarify the accreditation bodies acceptable to the board.

Change: Regarding the definition of "client" in §801.2(7), the definition was modified to clarify that a client is a person who receives services from a license holder.

Change: Regarding the definition of "party" in §801.2(22), the definition was amended to read as it did prior to the proposed change, referencing persons or entities having a justiciable interest in a matter.

Change: Regarding the initial associate licensure fee referenced in proposed §801.18(b)(8), the fee is deleted and the section renumbered accordingly. The initial license fee referenced in §801.18(b)(3) is inclusive of the initial associate license fee.

Change: Regarding §801.42, the first sentence was shortened to improve clarity and structure.

Change: Regarding §801.42(17), the word "and" is deleted to improve clarity and structure.

Change: Regarding new §801.42(19), the rule is added to clarify that "any other related services provided by a licensee" are professional therapeutic services which may be provided by a license holder.

Change: Regarding §801.44(a), the rule is revised to improve clarity and sentence structure.

Change: Regarding §801.45(b), the rule is revised to not delete paragraph (5) as was originally proposed, but to revise the paragraph to clarify that a licensee shall not engage in sexual contact with "a clinical supervisor or supervisee".

Change: Regarding §801.112(b), the rule is revised to reference the term "accredited institutions" and delete obsolete language.

Change: Regarding §801.142, the section title is revised to better reflect the section's content.

Change: Regarding §801.142(a)(1) and (2), the paragraphs are revised to clarify supervised clinical experience and sentence structure.

Change: Regarding §801.142(j), the rule is revised to improve clarity and eliminate the reference to a contract.

Change: Regarding §801.143(a)(3), the rule is revised to provide an additional option for becoming a board-approved supervisor.

Change: Regarding §801.174(f), the rule is revised to clarify that applicants who fail the licensure examination two or more times must identify and complete additional courses of study which address the area(s) of deficit before the board will approve the applicant to reschedule the examination.

Change: Regarding §801.201(a), the rule is revised to improve clarity.

Change: Regarding §801.202(a), the rule is revised to use consistent terminology.

Change: Regarding §801.202(a)(2), the rule is revised to reference the term "accredited institution" and delete obsolete language.

Change: Regarding §801.202(a)(5), the word "licensure" is deleted, as the rule refers to both the licensure and the jurisprudence examinations.

Change: Regarding §801.203(a)(2) and (4)-(6), the rules are revised to delete the word "and" in §801.203(a)(2), to eliminate the reference in proposed §801.203(a)(4) to issuing a provisional license to a person who has not taken a licensure examination, and to revise, improve, and renumber §801.203(a)(5) and (6) to §801.203(a)(4) and (5).

Change: Regarding §801.233, the rule is revised to clarify that it applies to the marriage and family therapist license.

Change: Regarding §801.362(c), the graphic was revised from "NOTICE OF [HEARING/INFORMAL CONFERENCE]" to " NOTICE OF (EITHER HEARING OR INFORMAL CONFERENCE)" to clarify the Notice Of Failure To Appear.

Subchapter A. INTRODUCTION

22 TAC §801.1, §801.2

STATUTORY AUTHORITY

The adopted amendments are authorized by Occupations Code, §502.151, which authorizes the board to adopt a code of professional ethics for license holders and to determine the qualifications and fitness of a license applicant; Occupations Code, §502.152, which authorizes the board to adopt rules establishing the board's procedures; Occupations Code, §502.153, which authorizes the board to set fees in amounts reasonable and necessary to cover the costs of administering the licensing program; and Occupations Code, §502.158, which authorizes the board to adopt rules regarding complaints.

§801.2.Definitions.

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

(1) Accredited institutions--An institution which holds accreditation or candidacy status from the American Council on Education (ACE), the Council for Higher Education Accreditation (CHEA), the Commission on Accreditation for Marriage and Family Therapy Education (COAMFTE), or the California Bureau for Private Postsecondary and Vocational Education.

(2) Act--The Licensed Marriage and Family Therapist Act relating to the licensing and regulation of marriage and family therapists, Occupations Code, Chapter 502.

(3) Administrative Law Judge (ALJ)--A person within the State Office of Administrative Hearings who conducts hearings under this subchapter on behalf of the Board.

(4) APA--The Administrative Procedure Act, Texas Government Code, Chapter 2001.

(5) Associate--A licensed marriage and family therapist associate.

(6) Board--The Texas State Board of Examiners of Marriage and Family Therapists.

(7) Client--An individual, family, couple, group, or organization who receives services from a person identified as a marriage and family therapist who is either licensed or unlicensed by the board.

(8) Completed application--The official marriage and family therapy application form, fees and all supporting documentation which meets the criteria set out in §801.73 of this title (relating to Required Application Materials).

(9) Contested case--A proceeding in accordance with the APA and this chapter, including, but not limited to, rule enforcement and licensing, in which the legal rights, duties, or privileges of a party are to be determined by the board after an opportunity for an adjudicative hearing.

(10) Department--The Texas Department of State Health Services.

(11) Family systems--An open, ongoing, goal-seeking, self-regulating, social system which shares features of all such systems. Certain features such as its unique structuring of gender, race, nationality and generation set it apart from other social systems. Each individual family system is shaped by its own particular structural features (size, complexity, composition, life stage), the psychobiological characteristics of its individual members (age, race, nationality, gender, fertility, health and temperament) and its socio-cultural and historic position in its larger environment.

(12) Formal hearing--A hearing or proceeding in accordance with this chapter, including a contested case as defined in this section to address the issues of a contested case.

(13) Group supervision--Supervision that involves a minimum of three and no more than six marriage and family supervisees or associates in a clinical setting during the supervision hour. A supervision hour is forty-five minutes.

(14) Individual supervision--Supervision of no more than two marriage and family therapy supervisees or associates in a clinical setting during the supervision hour. A supervision hour is forty-five minutes.

(15) Investigator--A professional complaint investigator employed by the Texas Department of State Health Services.

(16) License--A marriage and family therapist license, a marriage and family therapist associate license, or a provisional marriage and family therapist license.

(17) Licensed marriage and family therapist--An individual who offers to provide marriage and family therapy for compensation.

(18) Licensee--Any person licensed by the Texas State Board of Examiners of Marriage and Family Therapists.

(19) Licensed marriage and family therapist associate--An individual who offers to provide marriage and family therapy for compensation under the supervision of a board-approved supervisor.

(20) Marriage and family therapy--The rendering of professional therapeutic services to clients, singly or in groups, and involves the professional application of family systems theories and techniques in the delivery of therapeutic services to those persons. The term includes the evaluation and remediation of cognitive, affective, behavioral, or relational dysfunction or processes.

(21) Month--A calendar month.

(22) Party--Each person, governmental agency, or officer or employee of a governmental agency named by the Administrative Law Judge (ALJ) as having a justiciable interest in the matter being considered, or any person, governmental agency, or officer or employee of a governmental agency meeting the requirements of a party as prescribed by applicable law.

(23) Person--An individual, corporation, partnership, or other legal entity.

(24) Pleading--Any written allegation filed by a party concerning its claim or position.

(25) Recognized religious practitioner--A rabbi, clergyman, or person of similar status who is a member in good standing of and accountable to a legally recognized denomination or legally recognizable religious denomination or legally recognizable religious organization and other individuals participating with them in pastoral counseling if:

(A) the therapy activities are within the scope of the performance of their regular or specialized ministerial duties and are performed under the auspices of sponsorship of an established and legally cognizable church, denomination or sect, or an integrated auxiliary of a church as defined in Federal Tax Regulations, 26, Code of Federal Regulation 1.6033-2,(g)(5)(i), (1982);

(B) the individual providing the service remains accountable to the established authority of that church, denomination, sect, or integrated auxiliary; and

(26) Supervision--The guidance or management in the provision of clinical services.

(27) Supervisor--A person meeting the requirements set out in §801.143 of this title (relating to Supervisor Requirements), to supervise an associate and/or marriage and family therapist.

(28) Texas Open Meetings Act--Government Code, Chapter 551.

(29) Texas Public Information Act--Government Code, Chapter 552.

(30) Therapist--For the purposes of this chapter, a Texas licensed marriage and family therapist.

(31) Waiver--The suspension of educational, professional, and/or examination requirements for applicants who meet the criteria for licensure under special conditions.

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603184

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter B. THE BOARD

22 TAC §§801.11 - 801.18

STATUTORY AUTHORITY

The adopted amendments and new rules are authorized by Occupations Code, §502.151, which authorizes the board to adopt a code of professional ethics for license holders and to determine the qualifications and fitness of a license applicant; Occupations Code, §502.152, which authorizes the board to adopt rules establishing the board's procedures; Occupations Code, §502.153, which authorizes the board to set fees in amounts reasonable and necessary to cover the costs of administering the licensing program; and Occupations Code, §502.158, which authorizes the board to adopt rules regarding complaints.

§801.18.Fees.

(a) The board has established the following fees for licenses, license renewals, examinations, and all other administrative expenses under the Licensed Marriage and Family Therapists Act (Act).

(b) The schedule of fees shall be as follows:

(1) application fee--$40;

(2) licensure examination fee--shall be in accordance with the current contracted examination fee;

(3) initial licensure fee issued for a two-year term--$90;

(4) biennial renewal fee--$130;

(5) late renewal fee--late renewal fees shall be set as follows:

(A) on or before 90 days--biennial renewal fee plus one-half of the current contracted examination fee; and

(B) longer than 90 days but less than one year--biennial renewal fee plus fee equal to the current contracted examination fee;

(6) inactive status (administrative) fee--$75;

(7) duplicate license fee--$10;

(8) provisional licensure fee--$40;

(9) continuing education sponsor fee--$50 annually;

(10) child support reinstatement fee--$40;

(11) verification fee--$10; and

(12) student loan default reinstatement fee--$40.

(d) For all applications and renewal applications, the board is authorized to collect subscription and convenience fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online. For all applications and renewal applications, the board is authorized to collect fees to fund the Office of Patient Protection in accordance with Occupations Code, Chapter 101 (relating to Health Professions Council.)

(e) The board shall make periodic reviews of its fee schedule and make any adjustments necessary to provide funds to meet its expenses without creating an unnecessary surplus. All fee changes shall be made through rulemaking procedures.

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603185

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

22 TAC §801.18, §801.19

STATUTORY AUTHORITY

The adopted repeals are authorized by Occupations Code, §502.151, which authorizes the board to adopt a code of professional ethics for license holders and to determine the qualifications and fitness of a license applicant; Occupations Code, §502.152, which authorizes the board to adopt rules establishing the board's procedures; Occupations Code, §502.153, which authorizes the board to set fees in amounts reasonable and necessary to cover the costs of administering the licensing program; and Occupations Code, §502.158, which authorizes the board to adopt rules regarding complaints.

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603186

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter C. GUIDELINES FOR PROFESSIONAL THERAPEUTIC SERVICES AND CODE OF ETHICS

22 TAC §§801.41 - 801.54

STATUTORY AUTHORITY

§801.42.Professional Therapeutic Services.

The following are professional therapeutic services which may be provided by a marriage and family therapist:

(1) marriage therapy which utilizes systems, methods, and processes which include interpersonal, cognitive, cognitive-behavioral, developmental, psychodynamic, and affective methods and strategies to achieve resolution of problems associated with cohabitation and interdependence of adults living as couples through the changing marriage life cycle. These family system approaches assist in stabilizing and alleviating mental, emotional, or behavioral dysfunctions of either partner;

(2) sex therapy which utilizes systems, methods, and processes which include interpersonal, cognitive, cognitive-behavioral, developmental, psychodynamic, and affective methods and strategies in the resolution of sexual disorders;

(3) family therapy which utilizes systems, methods, and processes which include interpersonal, cognitive, cognitive-behavioral, developmental, psychodynamic, affective, and family systems methods and strategies with families to achieve mental, emotional, physical, moral, educational, spiritual, and career development and adjustment through the changing family life cycle. These family system approaches assist in stabilizing and alleviating mental, emotional, or behavioral dysfunctions of a family member;

(4) child therapy which utilizes systems methods and processes which include interpersonal, cognitive, cognitive-behavioral, developmental, psychodynamic, affective and family systems methods and strategies with families to achieve mental, emotional, physical, moral, educational, spiritual, and career development and adjustment through the changing family life cycle. These family system approaches assist in stabilizing and alleviating mental, emotional, or behavioral dysfunctions of a child;

(5) play therapy which utilizes systems, methods, and processes which include play and play media as the child's natural medium of self-expression, and verbal tracking of the child's play behaviors as part of the therapist's role in helping children overcome their social, emotional, and mental problems;

(6) individual psychotherapy which utilizes systems, methods, and processes which include interpersonal, cognitive, cognitive-behavioral, developmental, psychodynamic, affective and family systems methods and strategies to achieve mental, emotional, physical, social, moral, educational, spiritual, and career development and adjustment through the developmental life span. These family system approaches assist in stabilizing and alleviating mental, emotional or behavioral dysfunctions in an individual;

(7) divorce therapy which utilizes systems, methods, and processes which include interpersonal, cognitive, cognitive behavioral, developmental, psychodynamic, affective and family system methods and strategies with families to achieve mental, emotional, physical, moral, educational, spiritual, and career development and adjustment through the changing family life cycle. These family system approaches assist in stabilizing and alleviating mental, emotional, or behavioral dysfunctions of the partners;

(8) mediation which utilizes systems, methods, and processes to facilitate resolution of disputes between two or more dissenting parties, including but not limited to any issues in divorce settlements, parenting plan modifications, parent-child conflicts, pre-marital agreements, workplace conflicts, and estate settlements. Mediation involves specialized therapeutic skills that foster cooperative problem solving, stabilization of relationships, and amicable agreements. Court appointed mediation requires specialized training period;

(9) group therapy which utilizes systems methods and processes which include interpersonal, cognitive, cognitive-behavioral, developmental, psychodynamic, and affective methods and strategies to achieve mental, emotional, physical, moral, educational, spiritual, and career development and adjustment throughout the life span;

(10) chemical dependency therapy which utilizes systems methods and processes which include interpersonal, cognitive, cognitive-behavioral, developmental, psychodynamic, affective methods and strategies, and 12-step methods to promote the healing of the client;

(11) rehabilitation therapy which utilizes systems methods and processes which include interpersonal, cognitive, cognitive-behavioral, developmental, psychodynamic, and affective methods and strategies to achieve adjustment to a disabling condition and to reintegrate the individual into the mainstream of society;

(12) referral services which utilizes systems methods and processes which include evaluating and identifying needs of clients to determine the advisability of referral to other specialists, and informing the client of such judgment and communicating as requested or deemed appropriate to such referral sources. This includes social studies and family assessments of the individual within the family;

(13) diagnostic assessment which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as well as the International Classification of Diseases (ICD) as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary;

(14) psychotherapy which utilizes systems methods and processes which include interpersonal, cognitive, cognitive-behavioral, developmental, psychodynamic, and affective methods and strategies to assist clients in their efforts to recover from mental or emotional illness;

(15) hypnotherapy which utilizes systems methods and processes which include the principles of hypnosis and post-hypnotic suggestion in the treatment of mental and emotional disorders and addictions;

(16) biofeedback which utilizes systems methods and processes which include electronic equipment to monitor and provide feedback regarding the individual's physiological responses to stress. The therapist who uses biofeedback must be able to prove academic preparation and supervision in the use of the equipment as a part of the therapist's academic program or the substantial equivalent provided through continuing education;

(17) assessment and appraisal which utilizes systems methods and processes which include formal and informal instruments and procedures, for which the therapist has received appropriate training and supervision in individual and group settings for the purposes of determining the client's strengths and weaknesses, mental condition, emotional stability, intellectual ability, interests, aptitudes, achievement level and other personal characteristics for a better understanding of human behavior, and for diagnosing mental problems;

(18) consultation which utilizes systems, methods, and processes which include the application of specific principles and procedures in consulting to provide assistance in understanding and solving current or potential problems that the consultee may have in relation to a third party, whether individuals, groups, or organizations; and

(19) any other related services provided by a licensee.

§801.44.Relationships with Clients.

(a) A therapist shall make known to a prospective client the important aspects of the professional relationship, including but not limited to office procedures, after-hours coverage, fees, and arrangements for payment which might affect the client's decision to enter into the relationship.

(b) No commission or rebate or any other form of renumeration shall be given or received by a therapist for the referral of clients for professional services.

(c) A therapist shall not use relationships with clients to promote, for personal gain or for the profit of an agency, commercial enterprises of any kind.

(d) A therapist shall not engage in activities that seek to meet the therapist's personal needs instead of the needs of the client.

(e) Under normal circumstances a therapist shall not be involved in the therapy of family members, intimate friends, close associates, or others whose welfare might be jeopardized by such a dual relationship.

(f) A therapist shall be responsible for setting and maintaining professional boundaries.

(g) A therapist may disclose confidential information to medical or law enforcement personnel if the therapist determines that there is a probability of imminent physical injury by the client to the client or others or there is a probability of immediate mental or emotional injury to the client.

(h) In group therapy settings, the therapist shall take reasonable precautions to protect individuals from physical or emotional trauma resulting from interaction within the group.

(i) A therapist shall keep accurate records of therapeutic services to include, but not be limited to, dates of services, types of services, progress or case notes, and billing information for a minimum of five years for an adult client and 5 years beyond the age of 18 years of age for a minor.

(j) A therapist shall bill clients or third parties for only those services actually rendered or as agreed to by mutual understanding at the beginning of services or as later modified by mutual agreement.

(k) A therapist shall terminate a professional relationship when it is reasonably clear that the client is not benefiting from it.

(l) A licensee who engages in interactive therapy via the telephone or internet must provide the client with his/her license number and information on how to contact the board by telephone or mail, and must adhere to all other provisions of this chapter.

§801.45.Sexual Misconduct.

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

(1) Mental health services--The assessment, diagnosis, treatment, or therapy in a professional relationship to assist an individual or group in:

(A) alleviating mental or emotional illness, symptoms, conditions, or disorders, including alcohol or drug addiction;

(B) understanding conscious or subconscious motivations;

(D) modifying feelings, attitudes, or behaviors that interfere with effective emotional, social, or intellectual functioning.

(2) Mental health services provider--A licensee or any other licensed or unlicensed individual who performs or purports to perform mental health services, including a licensee under the provisions of the Act.

(3) Sexual contact--

(A) deviate sexual intercourse as defined by Penal Code, §21.01;

(B) sexual contact as defined by Penal Code, §21.01;

(D) requests by a licensee for conduct described by subparagraph (A), (B), or (C) of this paragraph.

(4) Sexual exploitation--A pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. The term does not include obtaining information about a client's sexual history within standard accepted practice.

(5) Therapeutic deception--A representation by a licensee that sexual contact with, or sexual exploitation by, the licensee is consistent with, or a part of, a client's or former client's therapy.

(b) A licensee shall not engage in sexual contact with a person who is:

(1) a client;

(2) a former client with whom there has been no therapeutic contact for a minimum of two years;

(3) an associate or an intern for whom the licensee has administrative or clinical responsibility;

(4) an intern in a marriage and family therapy graduate program in which the licensee offers professional or educational services; or

(5) a clinical supervisor or supervisee of the licensee.

(c) A therapist shall not provide therapeutic services to a person with whom the therapist has had a sexual relationship.

(d) A licensee shall not practice therapeutic deception or sexual exploitation.

(e) Because sexual contact with former clients are so frequently harmful to the client, and because such contacts undermine public confidence in the marriage and family therapy profession and thereby deter the public's use of needed services, marriage and family therapists do not engage in sexual contact with former clients even after a two year interval except in the most unusual circumstances. The marriage and family therapists who engages in such activity after the two years following cessation or termination of therapy bears the burden of demonstrating that there has been no exploitation, in light of all relevant factors, including:

(1) the amount of time has passed since therapy terminated;

(2) the nature and duration of the therapy;

(3) the circumstances of termination;

(4) the client's personal history;

(5) the client's current mental status;

(6) the likelihood of adverse impact on the client and others; and

(7) any statements or actions made by the therapist during the course of therapy suggesting or inviting the possibility of a post termination sexual or romantic relationship with the client.

(f) It is not a defense under subsections (b)-(d) of this section, if the sexual contact, sexual exploitation, or therapeutic deception with the person occurred:

(1) with the consent of the person;

(2) outside the therapy or treatment sessions of the person; or

(3) off the premises regularly used by the licensee for the therapy or treatment sessions of the person.

(g) Examples of sexual exploitation are:

(1) sexual harassment, sexual solicitation, physical advances, or verbal or nonverbal conduct that is sexual in nature and:

(A) is offensive or creates a hostile environment, and the licensee knows or is told this; or

(B) is sufficiently severe or intense to be abusive to a reasonable person in the context;

(2) any behavior, gestures, or expressions which may reasonably be interpreted as inappropriately seductive or sexual;

(3) inappropriate sexual comments about or to a person, including making sexual comments about a person's body;

(4) making sexually demeaning comments to or about an individual's sexual orientation;

(5) making comments about potential sexual performance except when the comment is pertinent to the issue of sexual function or dysfunction in therapy or treatment;

(6) requesting details of sexual history or sexual likes and dislikes when not necessary for therapy or treatment of the individual;

(7) initiating conversation regarding the sexual likes and dislikes when not necessary for therapy or treatment of the individual;

(8) kissing or fondling;

(9) making a request to date;

(10) any other deliberate or repeated comments, gestures, or physical acts not constituting sexual intimacies but of a sexual nature;

(11) any bodily exposure of genitals, anus, or breasts;

(12) encouraging a client, student, associate, or former client to masturbate in the presence of the licensee; and

(13) masturbation by the licensee when a client, student, associate, or former client is present.

(h) Examples of sexual contact are:

(1) genital and genital contact;

(2) genital and anal contact;

(3) genital and oral contact;

(4) genital and any object contact;

(5) anal and any object contact;

(6) touching breasts;

(7) touching genitals;

(8) touching anus; and

(9) touching buttocks.

(i) A licensee shall report sexual misconduct as follows.

(1) If a licensee has reasonable cause to suspect that a client has been the victim of a sexual exploitation, sexual contact, or therapeutic deception by another licensee or a mental health services provider during therapy or any other course of treatment, or if a client alleges sexual exploitation, sexual contact, or therapeutic deception by another licensee or mental health services provider during therapy or any other course of treatment, the licensee shall report alleged misconduct not later than the 30th day after the date the licensee became aware of the misconduct or the allegations to:

(A) the district attorney in the county in which the alleged sexual exploitation, sexual contact, or therapeutic deception occurred;

(B) the board if the misconduct involves a licensee; and

(2) Before making a report under this subsection, the reporter shall inform the alleged victim of the reporter's duty to report and shall determine if the alleged victim wants to remain anonymous.

(3) A report under this subsection need contain only the information needed to:

(A) identify the reporter;

(B) identify the alleged victim, unless the alleged victim has requested anonymity;

(D) provide the name of the alleged perpetrator.

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603187

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter D. APPLICATION PROCEDURES

22 TAC §§801.71 - 801.73

STATUTORY AUTHORITY

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603188

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter E. CRITERIA FOR DETERMINING FITNESS OF APPLICANTS FOR EXAMINATION AND LICENSURE

22 TAC §§801.91 - 801.93

STATUTORY AUTHORITY

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603189

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter F. ACADEMIC REQUIREMENTS FOR EXAMINATION AND LICENSURE

22 TAC §§801.111 - 801.114

STATUTORY AUTHORITY

§801.112.General.

(a) The board shall accept as meeting licensure requirements graduate work done at American universities which hold accreditation or candidacy status from accepted regional educational accrediting associations as reported by the American Association of Collegiate Registrars and Admissions Officers.

(b) Degrees and coursework received at foreign universities shall be acceptable only if such coursework may be counted as transfer credit by accredited institutions. It is the applicant's responsibility to have degrees and coursework evaluated by a professional transcript evaluation service approved by the board.

(c) The relevance to the licensing requirements of academic courses, the titles of which are not self-explanatory, must be substantiated through course descriptions in official school catalogs, bulletins, syllabi, or by other means.

(d) The board shall count no undergraduate level courses taken by an applicant as meeting any academic requirements unless the applicant's official transcript clearly shows that the course was awarded graduate credit by the school.

(e) The board shall accept no coursework which an applicant's transcript indicates was not completed with a passing grade or for credit.

(f) In the case of coursework taken outside of a program of studies for which a degree was granted, no course in which the applicant received a grade below "B" or "pass" shall be counted toward meeting academic requirements for examination or licensure.

(g) In evaluating transcripts, the board shall consider a quarter hour of academic credit as two-thirds of a semester hour.

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603190

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter G. EXPERIENCE REQUIREMENTS FOR LICENSURE

22 TAC §§801.141 - 801.143

STATUTORY AUTHORITY

§801.142.Supervised Clinical Experience Requirements and Conditions.

(a) The applicant must have completed a minimum of two years of work experience in marriage and family therapy services that:

(1) includes at least 3,000 hours of clinical services to individuals, couples or families, of which at least 1,500 hours must be direct clinical services, 750 hours to couples or families, and the remaining 1,500 hours may come from related experiences that may include but not be limited to workshops, public relations, writing case notes, consulting with referral sources, etc; and

(2) the applicant must be supervised in a manner acceptable to the board, including:

(A) at least 200 hours of supervision;

(B) of the 200 hours, at least 100 hours must be individual supervision;

(D) at least 50 hours of the post-graduate supervision must be individual supervision.

(b) An associate may practice marriage and family therapy in any established setting under supervision, such as a private practice, public or private agencies, hospitals, etc.

(c) During the period of supervised experience, an associate may be employed on a salary basis or be used within an established supervisory setting. The established settings must be structured with clearly defined job descriptions and areas of responsibility. The board may require that the applicant provide documentation of all work experience.

(d) During the post graduate supervision, both the supervisor and the associate may have disciplinary actions taken against their licenses for violations of the Act or rules.

(e) Supervision must be conducted under a supervision contract, which must be submitted to the board on the official form within 60 days of the initiation of supervision.

(f) Group supervised experience of an associate may count toward an associate's supervision requirement only if the supervision group consisted of a minimum of three and no more than six associates during the supervision hour.

(g) Individual supervised experience of an associate may count toward the associate's supervision requirement only if the supervision consisted of no more than two associates.

(h) The 200 hours of supervision must be face-to-face. The associate must receive a minimum of one hour of supervision every two weeks. A supervision hour is 45 minutes.

(i) An associate may have no more than two board-approved supervisors at a time, unless given prior approval by the board or its designee.

(j) The associate may receive credit for up to 500 clock hours toward the required 3,000 hours of supervised clinical services by providing services via telephonic or other electronic media, as approved by the supervisor.

§801.143.Supervisor Requirements.

(a) Supervisors are recognized by the board when subsection (a) or (b) of this section is met by submitting an application which includes documentation and verification of the following:

(1) a license (which is not a provisional or an associate license) issued by the board or a license as a marriage and family therapist in another state or territory;

(2) a graduate degree in marriage and family therapy or a graduate degree in a related mental health field, such as counseling and guidance, psychology, psychiatry, and clinical social work, from an accredited institution as defined in §801.2 of this title (relating to Definitions);

(3) one of the following:

(A) successful completion of a one-semester graduate course in marriage and family therapy supervision from an accredited institution; or

(B) a 40 hour continuing education course in clinical supervision offered by a board approved provider; and

(4) at least 3,000 hours of direct client contact in the practice of marriage and family therapy over a minimum of three years as a licensed marriage and family therapist.

(b) In lieu of meeting the qualifications set forth in subsection (a) of this section, a person is an acceptable supervisor if the person has been designated as an approved supervisor or supervisor-in-training by the American Association of Marriage and Family Therapy (AAMFT) before the person provides any supervision.

(d) A supervisor may not be related within the second degree by affinity (marriage) or within the third degree by consanguinity (blood or adoption) to the person whom he or she is supervising.

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603191

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter G. EXPERIENCE REQUIREMENTS FOR EXAMINATION AND LICENSURE

22 TAC §801.144

STATUTORY AUTHORITY

The adopted repeal is authorized by Occupations Code, §502.151, which authorizes the board to adopt a code of professional ethics for license holders and to determine the qualifications and fitness of a license applicant; Occupations Code, §502.152, which authorizes the board to adopt rules establishing the board's procedures; Occupations Code, §502.153, which authorizes the board to set fees in amounts reasonable and necessary to cover the costs of administering the licensing program; and Occupations Code, §502.158, which authorizes the board to adopt rules regarding complaints

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603192

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter H. EXAMINATIONS

22 TAC §§801.171 - 801.174

STATUTORY AUTHORITY

§801.174.Licensure and Jurisprudence Examinations.

(a) The licensure examination shall be a written examination prescribed by the board which has been validated by an independent testing professional.

(b) An applicant shall apply to take the licensure examination on a form prescribed by the board. The applicant will pay the examination fee at the examination site.

(c) The board, or its designee, shall determine the times and places for licensing examinations and give reasonable public notice.

(d) The board, or its designee, shall notify the examinee of the results of the licensure examination in accordance with the current examination contract or agreement. If the board is notified of a potential delay of notification of exam results, the board shall notify the examinee as soon as possible regarding the delay.

(e) Procedures for failure of an applicant to pass a licensure examination are as follows:

(1) An applicant who fails an examination may retake the examination at the next scheduled date.

(2) Fee for the examination is in accordance with subsection (b) of this section.

(3) The applicant must reschedule the examination and resubmit the examination fee.

(4) The board shall furnish the person who failed the examination with an analysis of that person's performance on the examination if so requested in writing by the examinee

(f) If an applicant fails the licensure examination two or more times, the board may require the applicant to identify additional courses of study which address the area(s) of deficit; and present satisfactory evidence of completion of the courses before approving the applicant to reschedule the licensure examination.

(g) Effective September 1, 2006, all applicants for licensure must submit proof of successful completion of the jurisprudence examination at the time of application.

(h) The jurisprudence examination must have been completed no more than six months prior to the licensure application date.

(i) The jurisprudence examination is available as an online learning experience and applicable fees are payable directly to the approved vendor.

(j) The jurisprudence examination content is based on the Act, the rules of the board, and other state laws and rules that relate to the practice of marriage and family therapy.

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603193

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter I. ISSUANCE OF LICENSE

22 TAC §§801.201, 801.202, 801.204

STATUTORY AUTHORITY

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603195

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter I. LICENSING

22 TAC §§801.201 - 801.203

STATUTORY AUTHORITY

The adopted new sections and amendment are authorized by Occupations Code, §502.151, which authorizes the board to adopt a code of professional ethics for license holders and to determine the qualifications and fitness of a license applicant; Occupations Code, §502.152, which authorizes the board to adopt rules establishing the board's procedures; Occupations Code, §502.153, which authorizes the board to set fees in amounts reasonable and necessary to cover the costs of administering the licensing program; and Occupations Code, §502.158, which authorizes the board to adopt rules regarding complaints.

§801.201.General Licensing.

(a) Upon receipt and approval of application documentation and required fees, the board shall issue the person a license containing a license number within 30 days.

(b) The board will replace a lost, damaged, or destroyed license certificate upon a written request from the therapist and payment of the duplicate license fee. Requests must include a statement detailing the loss or destruction of the therapist's original license or be accompanied by the damaged certificate.

(c) Upon the written request and payment of the license certificate duplicate fee by a licensee, the board will provide a licensee with a duplicate license within 30 days for a second place of practice which is designated in a licensee's file.

§801.202.Associate License.

(a) An associate license shall be issued to an applicant who has:

(1) obtained a master's or doctorate degree in marriage and family therapy or a related mental health field with course work and training equivalent to a graduate degree in marriage and family therapy as set out in §801.114 of this title (relating to Academic Course Content);

(2) submitted an official graduate transcript from an accredited institution;

(3) submitted a complete application and all applicable fees to the board;

(4) submitted a supervisory contract to the board which specifies all contractual agreements with said supervisor and that the supervisor has met the requirements of §801.143 of this title (relating to Supervisor Requirements); and

(5) submitted proof of successful completion of the required examinations.

(b) The initial associate license will be issued for a period of 24 months and may be renewed biennially for a period not to exceed a total of 72 months. The appropriate board committee may consider exceptions to the 72 month time limit.

§801.203.Provisional License.

(a) A provisional license may be granted to a person who:

(1) is licensed or otherwise registered as a marriage and family therapist by another state or other jurisdiction, whose requirements for licensure or registration, at the time the license or registration was obtained, were substantially equivalent to the requirements set out in §801.73 of this title (relating to Required Application Materials);

(2) has successfully passed a national examination relating to marriage and family therapy or an examination approved by the board;

(3) is sponsored by a licensed marriage and family therapist in Texas with whom the provisional license holder may practice under this section;

(4) provides documentation, on board prescribed forms, of the experience requirements set out in Subchapter G of this chapter (relating to Experience Requirements for Licensure); and

(5) meets any other requirements set forth under the Act.

(b) Upon formal written request, the board may waive the requirement set out in subsection (a)(3) of this section if it is determined that compliance with subsection (a)(3) of this section would cause undue hardship to the applicant.

(1) the provisional license holder passes the examination required by Subchapter H of this chapter (relating to Licensure Examinations);

(2) the provisional license holder provides an official graduate transcript meeting the requirements set forth in Subchapter F of this chapter (relating to Academic Requirements for Examination and Licensure);

(3) the provisional license holder provides documentation, on board prescribed forms, of the experience requirements set out in Subchapter G of this chapter; and

(4) the provisional license holder meets any other requirements set forth under the Act.

(d) The board must complete the processing of a provisional license holder's application for license within 180 days after the provisional license was issued. The board may extend the 180-day deadline to allow for the receipt and tabulation of pending examination results.

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603194

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter J. LICENSURE RENEWAL AND INACTIVE STATUS

22 TAC §§801.231 - 801.237

STATUTORY AUTHORITY

§801.233.Staggered Renewals.

The board shall use a staggered system for licensure renewals. The renewal date of a marriage and family therapist license shall be the last day of the licensee's birth month.

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603196

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter K. CONTINUING EDUCATION REQUIREMENTS

22 TAC §§801.261 - 801.268

STATUTORY AUTHORITY

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603197

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter L. COMPLAINTS AND VIOLATIONS

22 TAC §§801.291 - 801.302

STATUTORY AUTHORITY

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603198

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter M. LICENSING OF PERSONS WITH CRIMINAL BACKGROUNDS

22 TAC §801.331, §801.332

STATUTORY AUTHORITY

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603199

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter N. INFORMAL CONFERENCES

22 TAC §801.351

STATUTORY AUTHORITY

The adopted amendment is authorized by Occupations Code, §502.151, which authorizes the board to adopt a code of professional ethics for license holders and to determine the qualifications and fitness of a license applicant; Occupations Code, §502.152, which authorizes the board to adopt rules establishing the board's procedures; Occupations Code, §502.153, which authorizes the board to set fees in amounts reasonable and necessary to cover the costs of administering the licensing program; and Occupations Code, §502.158, which authorizes the board to adopt rules regarding complaints.

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603200

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

Subchapter O. FORMAL HEARINGS

22 TAC §§801.361 - 801.369

STATUTORY AUTHORITY

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603201

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972

22 TAC §§801.361 - 801.364

STATUTORY AUTHORITY

The adopted new sections are authorized by Occupations Code, §502.151, which authorizes the board to adopt a code of professional ethics for license holders and to determine the qualifications and fitness of a license applicant; Occupations Code, §502.152, which authorizes the board to adopt rules establishing the board's procedures; Occupations Code, §502.153, which authorizes the board to set fees in amounts reasonable and necessary to cover the costs of administering the licensing program; and Occupations Code, §502.158, which authorizes the board to adopt rules regarding complaints.

§801.362.Notice.

(a) For purposes of contested case proceedings before the State Office of Administrative Hearings, proper notice means notice sufficient to meet the provisions of the Texas Government Code, Chapter 2001 and the State Office of Administrative Hearings Rules of Procedure, 1 Texas Administrative Code, Chapter 155.

(b) For purposes of informal conferences, proper notice shall include the name and style of the case, the date, time, and place of the informal conference, and a short statement of the purpose of the conference.

(c) The following statement shall be attached to the notice of hearing or notice of informal conference, in bold letters of at least 10 point type:

Figure: 22 TAC §801.362(c)

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

Filed with the Office of the Secretary of State on June 12, 2006.

TRD-200603202

Wayne Hinson, Ph.D.

Chair

Texas State Board of Examiners of Marriage and Family Therapists

Effective date: July 2, 2006

Proposal publication date: December 23, 2005

For further information, please call: (512) 458-7111 x6972