Chapter 161. GENERAL PROVISIONS
The Texas Medical Board proposes an amendment to §161.3, concerning Organization and Structure.
The amendment sets out standards of conduct for board members.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the amendment is in effect there will be no fiscal implications to state or local government as a result of enforcing the section as proposed. There will be no effect to individuals required to comply with the section as proposed.
Mr. Simpson also has determined that for each year of the first five years the amendment as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to notify the public of standards of conduct expected of board members. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendment is proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for 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.
Section 152.006, Texas Occupations Code Annotated is affected by the proposed amendment.
§161.3.Organization and Structure.
(a) - (d) (No change.)
(e) A board member should strive to achieve and project the highest standards of professional conduct. Such standards include:
(1) A board member should not accept or solicit any benefit that might influence the board member in the discharge of official duties or that the board member knows or should know is being offered with the intent to influence official conduct.
(2) A board member should not accept employment or engage in any business or professional activity that would involve the disclosure of confidential information acquired by reason of the official position as a board member.
(3) A board member should not accept employment that could impair independence of judgment in the performance of the board member's official duties.
(4) A board member should not make personal investments that could reasonably be expected to create a conflict between the board member's private interest and the public interest.
(5) A board member should not intentionally or knowingly solicit, accept, or agree to accept any benefit for having exercised the board member's official powers or performed the board member's official duties in favor of another.
(6) A board member should be fair and impartial in the conduct of the business of the board. A board member should project such fairness and impartiality in any meeting or hearing.
(7) A board member should be diligent in preparing for meetings and hearings.
(8) A board member should avoid conflicts of interests. If a conflict of interest should unintentionally occur, the board member should recuse himself or herself from participating in any matter before the board that could be affected by the conflict.
(9) A board member should avoid the use their official position to imply professional superiority or competence.
(10) A board member should avoid the use of their official position as an endorsement in any health care related matter. Because an expert witness, by necessity, must disclose the witness's resume, which will include membership on the board, and because any health care related lawsuit could become the subject of a board investigation, a board member should not appear as an expert witness in any case, except with prior approval of the Executive Committee of the board.
(11) A board member should refrain from making any statement that implies that the board member is speaking for the board if the board has not voted on an issue or unless the board has given the board member such authority.
(f)
[
(e)
] One ground for removal from
the board occurs if a board member is absent from more than half of the regularly
scheduled board meetings that the member is eligible to attend during a calendar
year without an excuse approved by a majority vote of the board. If the executive
director of the board has knowledge that a potential ground for removal exists
due to a member's failure to attend an adequate number of regularly scheduled
board meetings, the executive director shall notify the president of the board
of the ground. The president of the board shall then notify the governor's
office that a potential ground for removal exists. A board member shall be
considered to have been absent from a regularly scheduled board meeting if
the member fails to attend at least a portion of either a full board session
or a portion of a regularly scheduled committee meeting to which a member
is assigned during such board meeting. Any dispute or controversy as to whether
or not an absence has occurred shall be submitted to the full board for resolution
by a majority vote after giving the purported absentee the opportunity to
present information concerning the alleged absences and after allowing discussion
by other members of the board.
(g)
[
(f)
] Each member of the board shall
receive per diem as provided by law for each day that the member engages in
the business of the board and will be reimbursed for travel expenses incurred
in accordance with the state of Texas and board's travel policies.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701515
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
22 TAC §§163.1, 163.2, 163.4, 163.6 - 163.9
The Texas Medical Board proposes amendments to §§163.1, 163.2, 163.4, 163.6 and new §§163.7 - 163.9, concerning Licensure.
The amendment to §163.1 recognizes the authority of the Texas Higher Education Coordinating Board to determine whether a degree conferred by a medical school located outside the United States or Canada is the equivalent of an accredited or authorized degree and to identify fraudulent and substandard medical schools. The amendment also provides that a fraudulent or substandard school may not be an acceptable unapproved medical school for purposes of licensure by the board. The amendment sets forth the curriculum definitions for course areas prescribed by the Texas Higher Education Coordinating Board for determining eligibility of international medical graduates for Texas medical licensure.
The amendment to §163.2 specifies that a graduate of a school located outside the United States or Canada, that has been disapproved by another state or identified as fraudulent or substandard by the Texas Higher Education Coordinating Board must show that the school meets the board's requirements for substantial equivalency as part of alternative licensure requirements.
The amendment to §163.4 authorizes the Licensure Committee of the board to consider an appeal of an Executive Director's determination of ineligibility for licensure without requiring further investigation of an application and to reopen the investigation if the Licensure Committee determines that the basis for ineligibility is not well founded.
The amendment to §163.6 deletes provisions regarding the "ten-year rule" so that those provisions can be included in a new §163.7 and provides that the JP Exam must only be taken once.
Proposed new §163.7 moves "ten-year rule," which was previously contained in §163.6(e), to this new section.
Proposed new §163.8 sets forth requirements of a medical school institution or degree program that will authorize its graduates to take the United States Medical Licensing Examination ("USMLE"), Jurisprudence Examination, or other professional licensing examination required for licensure by the board, thereby exempting the board and applicants for medical licensure from the provisions of Chapter 61, Subchapter G, Education Code, pursuant to §61.303, Education Code.
Proposed new §163.9 provides that any license or permit issued by the board terminates any previously issued license or permit, so that only one license or permit is held by a licensee at any time.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the rules are in effect there will be no fiscal implications to state or local government as a result of enforcing the section as proposed. There will be no effect to individuals required to comply with the sections as proposed.
Mr. Simpson also has determined that for each year of the first five years the rules as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to provide a policy that fraudulent or substandard medical schools will not be considered to be acceptable unapproved medical schools for purposes of licensure by the board; to recognize the statutory requirement that any graduate of a medical school located outside the United States or Canada must meet the board's requirements for substantial equivalency to a Texas medical school; to provide efficiency in the Licensure Division of the board by eliminating the necessity for further investigation upon a determination of ineligibility; to make the "ten-year rule" more prominent by putting it in a separate section and to promote efficiency by eliminating redundant taking of JP Exam; to make the "ten-year rule" more prominent so that applicants will more easily understand requirements of licensure; to specify the basis for authorization for graduates of medical schools to take professional licensing examinations required for licensure by the board and assures that the board and its employees and applicants will not be subject to criminal or administrative penalties because of identification of a medical school as fraudulent or substandard by the Texas Higher Education Coordinating Board if the medical school meets the requirements of the board for substantial equivalence to a Texas medical school and to reduce the potential confusion that would occur if license holders could hold more than one license from the board. There will be no effect on small or micro businesses. The amendment to §163.1 may affect small businesses that operate medical schools outside the United States or Canada adversely, if the Texas Higher Education Coordinating Board has identified a school as fraudulent or substandard.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendment and new sections are proposed under the authority of the Texas Occupations Code Annotated, §153.001 and §155.003(d), which provides authority for 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.
Section 61.303 and §61.3021, Texas Education Code and §§153.001, 155.003(d), 155.0031(d), 155.054(b), Texas Occupations Code Annotated are affected by the proposed rules.
§163.1.Definitions.
The following words and terms, (concerning General Definitions) when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) (No change.)
(2) Acceptable unapproved medical school--A school or college located outside the United States or Canada that:
(A) is substantially equivalent to a Texas medical school; and
(B) has not been disapproved by
a state physician licensing
or education agency
[
another state physician licensing agency unless
the applicant can provide evidence that the disapproval was unfounded
].
(i) If another state's physician licensing agency or education agency has determined that a medical degree conferred by a medical school is not the equivalent of an accredited or authorized degree or has otherwise disapproved the medical school, the board will not recognize the medical school as an acceptable unapproved medical school, unless:
(I) the Texas Higher Education Coordinating Board has determined that a degree conferred by the medical school is the equivalent of an accredited or authorized degree through the review process described by §61.3021, Texas Education Code; or
(II) the applicant can provide evidence that the determination or disapproval by the other state was unfounded.
(ii) A fraudulent or substandard medical school operating outside the United States or Canada shall not be an acceptable unapproved medical school. "Fraudulent or substandard," as used in this subsection, has the meaning assigned by §61.302, Texas Education Code. If the Texas Higher Education Coordinating Board certifies that it has determined, through the review process described by §61.3021, Texas Education Code, that a medical degree conferred by a medical school is not the equivalent of an accredited or authorized degree, the board will not recognize the medical school as an acceptable unapproved medical school.
(iii) This subsection shall not affect any person who received a license from the board prior to a determination by the Texas Higher Education Coordinating Board through the review process described by §31.3021, Texas Education Code.
(3) - (11) (No change.)
(12) Substantially equivalent to a Texas medical school--A medical school or college shall be considered to be substantially equivalent to a Texas medical school under the following conditions:
(A) An acceptable approved medical school shall be considered to be substantially equivalent to a Texas medical school. A medical school operating within the United States or Canada that is not an acceptable approved medical school shall not be considered to be substantially equivalent to a Texas medical school.
(B)
A medical school operating outside the
United States or Canada may be determined to be substantially equivalent to
a Texas medical school if the medical school is
[
that is an institution of higher learning
] designed to select and educate medical students
and [;
] provide students with the opportunity to acquire
a sound basic medical education through training in basic sciences and clinical
sciences. The school should provide information about the school's program
of advancement of knowledge through research; the school's development of
programs of graduate medical education to produce practitioners, teachers,
and researchers; and, the school's program to provide opportunity for postgraduate
and continuing medical education, for the board's consideration. In addition
,
to be determined substantially equivalent to a Texas medical school,
the medical school's characteristics shall include, but not be limited to,
the following:
(i)
[
(A)
] The facilities for basic sciences
and clinical training (i.e., laboratories, hospitals, library, etc.) shall
be adequate to ensure opportunity for proper education.
(ii)
[
(B)
] The admissions standards
shall ensure that the medical school has a pool of applicants sufficiently
large and possessing United States national level qualifications to fill its
entering class. Medical schools must select students who possess the intelligence,
integrity, and personal and emotional characteristics necessary for them to
become effective physicians.
(iii) The curriculum shall meet the requirements for an unapproved medical school as set forth in the "Curriculum Definitions for Course Areas Prescribed by the Texas Higher Education Coordinating Board for Determining Eligibility of International Medical Graduates for Texas Medical Licensure," as adopted by the Texas Higher Education Coordinating Board, as follows:
(I)
[
(C)
] The basic sciences curriculum
shall include the contemporary content of those expanded disciplines that
have been traditionally titled gross anatomy, biochemistry, biology, physiology,
microbiology, immunology, pathology, pharmacology, and neuroscience[
, as defined by the Texas Higher Education Coordinating Board, the Liaison
Council on Medical Education, and/or the American Osteopathic Association
Bureau of Professional Education
].
(II)
[
(D)
] The fundamental clinical
subjects, which shall be offered in the form of required patient-related clerkships,
are internal medicine, obstetrics and gynecology, pediatrics, psychiatry,
family practice, and surgery [
, as defined by the Texas Higher Education
Coordinating Board, the Liaison Council on Medical Education, and/or American
Osteopathic Association Bureau of Professional Education
].
(iv)
[
(E)
] The curriculum shall be of
at least 130 weeks in duration.
(v)
[
(F)
] There must be integrated institutional
responsibility for the overall design, management and evaluation of a coherent
and coordinated curriculum.
(vi)
[
(G)
] For schools that have geographically
separated programs, the principal academic officer of each geographically
remote site must coordinate the curriculum with an academic officer of the
medical school responsible for organizing the educational program.
(13) - (14) (No change.)
§163.2.Full Texas Medical License.
(a) (No change.)
(b) Graduates of medical schools outside the United States or Canada. To be eligible for full licensure, an applicant who is a graduate from a school outside the United States or Canada must:
(1) - (3) (No change.)
(4) be a graduate of:
(A) an acceptable unapproved medical school as defined under §163.1(2) of this title; or
(B)
a
[
any
] medical school
that
meets the board's requirements for substantial equivalence to a Texas medical
school
and:
(i) - (ii) (No change.)
(iii) have, on a full-time basis, actively diagnosed or treated
patients
[
persons
] or have been on the active teaching faculty
of an acceptable approved medical school for three of the last four years
preceding receipt of an Application for licensure, which may include post-graduate
training (The term "full-time basis" shall have the same meaning provided
in §163.11(b) of this title); and
(iv) (No change.)
(5) - (11) (No change.)
(c) (No change.)
§163.4.Procedural Rules for Licensure Applicants.
(a) - (e) (No change.)
(f) If the Executive Director determines that the applicant is ineligible for licensure for one or more reasons, the applicant may appeal that decision to the Licensure Committee before completing other licensure requirements for a determination by the Committee solely regarding issues raised by the determination of ineligibility. If the Committee overrules the determination of the Executive Director, the applicant may then provide additional information to complete the application, which must be analyzed by board staff and approved before a license may be issued.
§163.6.Examinations Accepted for Licensure.
(a) - (d) (No change.)
[
(e)
An applicant who has not passed
an examination listed in subsection (a) for licensure within the ten-year
period prior to the filing date of the application must:]
[
(1)
pass a monitored specialty certification examination
or formal evaluation, a monitored recertification examination or formal evaluation,
or a monitored examination of continued demonstration of qualifications by
a board that is a member of the American Board of Medical Specialties or the
Bureau of Osteopathic Specialists within the preceding ten years;]
[
(2)
obtain through extraordinary circumstances,
unique training equal to the training required for specialty certification
as determined by a committee of the board and approved by the board, including
but not limited to participation for at least six months in a training program
approved by the board within twelve months prior to the application for licensure;
or]
[
(3)
pass the Special Purpose Examination (SPEX)
within the preceding ten years.]
(e)
[
(f)
] Texas Medical Jurisprudence
Examination (JP Exam).
(1) In this chapter, when applicants are required to pass the JP exam, applicants must pass the JP exam with a score of 75 or better within three attempts.
(2) An examinee shall not be permitted to bring medical books, compendia, 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.
(3) 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.
(4) A person who has passed the JP Exam shall not be required to retake the Exam for another or similar license, except as a specific requirement of the board.
§163.7.Ten Year Rule.
An applicant who has not passed an examination listed in §163.6(a) of this title (relating to Examinations Accepted for Licensure) for licensure within the ten-year period prior to the filing date of the application must:
(1) pass a monitored specialty certification examination or formal evaluation, a monitored recertification examination or formal evaluation, or a monitored examination of continued demonstration of qualifications by a board that is a member of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists within the preceding ten years;
(2) obtain through extraordinary circumstances, unique training equal to the training required for specialty certification as determined by a committee of the board and approved by the board, including but not limited to participation for at least six months in a training program approved by the board within twelve months prior to the application for licensure; or
(3) pass the Special Purpose Examination (SPEX) within the preceding ten years. The applicant must score 75 or better within three attempts.
§163.8.Authorization to Take Professional Licensing Examination.
(a) The purpose of this section is to set forth the requirements of a medical school institution or degree program that will authorize its graduates to take the United State Medical Licensing Examination ("USMLE"), Jurisprudence Examination, or other professional licensing examination required for licensure by the board. By agreement entered into by the board (Agreement Regarding USMLE Step 3), the board has authorized the Federation of State Medical Boards ("FSMB") to verify eligibility of applicants, register approved applicants, and assure that the USMLE is administered according to stated guidelines. The Agreement provides that the board may set requirements for eligibility for applicants to take the USMLE that may be in addition to USMLE requirements.
(b) A medical school institution or degree program shall be approved by the board for purposes of authorizing graduates of the medical school institution or degree program to take a professional licensing examination required by this title if the medical school institution or degree program:
(1) is accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Bureau of Professional Education; or
(2) meets the requirements of the Educational Commission for Foreign Medical Graduates (ECFMG) for purposes of certification of foreign medical graduates.
(c) Nothing in this subsection shall be construed to limit the provisions of §155.0031(d), Occupations Code, requiring an applicant to provide information showing that each medical school attended is substantially equivalent to a Texas medical school.
§163.9.Only One License.
Upon the issuance of any license or permit, all previously issued licenses and permits, including postgraduate training permits, shall be considered to be terminated. A person may not have more than one license or permit at the same time, except that a license holder who is required to register periodically may hold the license and the registration permit at the same time.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701516
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board proposes an amendment to §164.4, concerning Board Certification.
The amendment clarifies that "board certified" may only be advertised by a physician who is certified by a member of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists or is the American Board of Oral and Maxillofacial Surgery; that membership may only be advertised in an organization that meets specified requirements; that a field of interest may only be advertised if the physician is board certified or a member of such an organization; and that board certification must be identified if a physician advertises a field of interest that is not included in the board certification.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the amendment is in effect there will be no fiscal implications to state or local government as a result of enforcing the section as proposed. There will be no effect to individuals required to comply with the section as proposed.
Mr. Simpson also has determined that for each year of the first five years the amendment as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to clarify requirements regarding advertisements that a physician is "board certified" or that the physician is a member, fellow, or diplomate of or certified by a specialty organization. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendment is proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for 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.
Section 153.002, Texas Occupations Code Annotated is affected by the proposed amendment.
§164.4.Board Certification.
(a) A physician is authorized to use the term "board certified[
,
]" [
or any similar words or phrase calculated to convey the same
meaning
] in any advertising for his or her practice
only
if
the specialty board
that
[
which
] conferred the certification
and the certifying organization [
meets the requirements in paragraphs
(1) - (2) of this subsection:
]
[
(1)
]
[
The certifying organization
] is
a member board of the American Board of Medical Specialties, or the Bureau
of Osteopathic Specialists, or is the American Board of Oral and Maxillofacial
Surgery.[; or]
[(2) The certifying organization requires that its applicants be certified by a separate certifying organization that is a member board of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists, or appropriate Royal College of Physicians and Surgeons, and the certifying organization meets the criteria set forth in subsection (b) of this section.]
(b)
A physician is authorized to advertise that the physician
is a member, fellow, diplomate, or certified by a named organization or other
designation calculated to convey a similar meaning, if such designation is
accurate, only if the organization meets the following requirements
[
Each certifying organization that is not a member board of the American Board
of Medical Specialties or the Bureau of Osteopathic Specialists must meet
each of the requirements set forth in paragraphs (1)-(5) of this subsection
]:
(1) the [certifying] organization requires all physicians
who are seeking certification to successfully pass a written or an oral examination
or both, which tests the applicant's knowledge and skills in the specialty
or subspecialty area of medicine. All or part of the examination may be delegated
to a testing organization. All examinations require a psychometric evaluation
for validation;
(2) the [certifying] organization has written proof
of a determination by the Internal Revenue Service that the certifying board
is tax exempt under the Internal Revenue Code pursuant to Section 501(c);
(3) the organization [certifying board]
has a permanent headquarters and staff;
(4) the organization [certifying board]
has at least 100 duly licensed members, fellows, diplomates, or certificate
holders
[
certificants
] from at least one-third of the states;
and
(5)
the [
certifying
] organization requires all physicians
who are seeking certification to have satisfactorily completed identifiable
and substantial training in the specialty or subspecialty area of medicine
in which the physician is seeking certification, and the [
certifying
] organization utilizes appropriate peer review. This identifiable training
shall be deemed acceptable unless determined by the
Texas Medical Board
[
Board of Medical Examiners
] to be inadequate in scope,
content, and duration in that specialty or subspecialty area of medicine in
order to protect the public health and safety.
(c) A physician may not authorize the use of or use the term
"board certified" [or any similar words or phrase calculated to convey
the same meaning
] if the claimed board certification has expired and
has not been renewed at the time the advertising in question was
ordered
[
published or broadcast
].
(d) The terms "board eligible," "board qualified," or any similar
words or phrase calculated to convey the same meaning
may
[
shall
] not be used in physician advertising.
(e) A physician's authorization of or use of the term "board
certified", or any similar words or phrase calculated to convey the same meaning
in any advertising for his or her practice shall constitute misleading or
deceptive advertising unless the specialty board which conferred the certification
and the certifying organization meet the requirements in
subsection (a)
[
subsections (a) and (b)
] of this section.
(f)
A physician may advertise a field of interest if the
physician is certified by, or a member, fellow, or diplomate of an organization
that meets the requirements of subsection (a) or (b) of this section.
[
A physician who is board certified by an organization that does not meet the
requirements set out in subsections (a) and (b) of this section, or otherwise
has a special interest in a particular field of medicine, may include in advertisements
the physician's field of interest. For each area of interest advertised the
physician must clearly state in the advertising "Not certified by an organization
recognized by the Texas State Board of Medical Examiners." This statement
must be separate and apart from other statements and shall be displayed conspicuously
with no abbreviations, changes, or additions in the quoted language so as
to be easily seen or understood by an ordinary consumer.
]
(g) A board certified physician who advertises board certification may advertise a field of interest that is different from the certified specialty only if the physician identifies the specialty for which the physician is board certified in an equal size of type or emphasis.
(h) A physician who is not board certified by, or a member, fellow, or diplomate of an organization that meets either the requirements of subsection (a) or (b) of this section may not advertise a field of interest, except that the physician may advertise that his or her practice is "limited to" a certain practice area.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701517
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board proposes an amendment to §166.5, concerning Relicensure.
The amendment clarifies that cancellation for non-payment applies also to failure to submit a complete registration application and registration fee and that a person must reapply and qualify for a license after a voluntary relinquishment or surrender of a license.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the amendment is in effect there will be no fiscal implications to state or local government as a result of enforcing the section as proposed. There will be no effect to individuals required to comply with the section as proposed.
Mr. Simpson also has determined that for each year of the first five years the amendment as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to provide clarification of policies of the board regarding reissuance or reinstatement of a license following cancellation for non-payment, relinquishment, or voluntary surrender. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendment is proposed under the authority of the Texas Occupations Code Annotated, §153.001 and §155.003(d) which provides authority for 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.
Section 156.004, Texas Occupations Code Annotated is affected by the proposed amendment.
§166.5.Relicensure [ Following Cancellation for Nonpayment of Registration Fee ].
(a)
To be relicensed following cancellation for
failure to submit a complete registration application and registration fee
[
nonpayment
], a physician must submit to reexamination and
qualify under
§164.151 of the Act and
§163.10 of this
title (relating to Relicensure).
(b) To be relicensed following voluntary relinquishment or surrender of a medical license, a physician must reapply and qualify under §164.151 of the Act and §196.4 of this title (relating to Relicensure After Relinquishment and Surrender of a Medical License).
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701518
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
Subchapter B. TEMPORARY LICENSES
The Texas Medical Board proposes an amendment to §172.5, concerning Visiting Physician Temporary Permit and new §172.14, concerning Limited License for Practice of Administrative Medicine.
The amendment to §172.5 deletes the requirement for a Visiting Physician Temporary Permit that the applicant hold a license from another state, territory, or Canada.
New §172.14 provides a new, limited license for the practice of administrative medicine, in accordance with SB 419.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the rules are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the sections as proposed.
Mr. Simpson also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to allow persons who are licensed in other countries the opportunity to obtain a Visiting Physician Temporary Permit in Texas so that they can obtain training from or provide training to Texas physicians in Texas, upon designation of a Texas licensed supervising physician and to allow applicants for licenses to obtain a limited license in cases in which the applicant does not intend to practice clinical medicine, allowing the Board to regulate those who practice administrative medicine without allowing them to practice clinical medicine. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendment is proposed under the authority of the Texas Occupations Code Annotated, §153.001 and §155.009, which provide 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.
Section 155.009, Texas Occupations Code Annotated is affected by the proposed rule.
§172.5.Visiting Physician Temporary Permit.
(a) The executive director of the board may issue a permit to practice medicine to an applicant who intends to practice under the supervision of a licensed Texas physician, excluding training in postgraduate training programs, for educational purposes or in order to practice charity care to underserved populations in Texas. In order to be determined eligible for a visiting physician permit the applicant must:
[
(1)
hold a current medical license that is
free of any restriction, disciplinary order or probation in another state,
territory, or Canadian province;
]
(1)
[
(2)
] not have any medical license
that is under restriction, disciplinary order, or probation in another state,
territory, or Canadian province;
(2)
[
(3)
] be supervised by a physician
with an unrestricted license in Texas;
(3)
[
(4)
] present written verification
from the physician who will be supervising the applicant that the physician
will provide continuous supervision of the applicant. Constant physical presence
of the physician is not required but the physician must remain readily available;
and
(4)
[
(5)
] present written verification
from the supervising physician as to the purpose for the requested permit.
(b) Visiting physician permits shall be valid for no more than
ten working days and for a specified locale and purpose. The executive director
of the board, in his/her discretion, may extend the length of the
temporary
permit
[
state
] if the applicant shows good cause for why
the extended time is needed.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701519
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
The new section is proposed under the authority of the Texas Occupations Code Annotated, §153.001 and §155.009, which provide 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.
Section 155.009, Texas Occupations Code Annotated is affected by the proposed rule.
§172.14.Limited License for Practice of Administrative Medicine.
(a) The board may issue a license to an applicant pursuant to the authority of §155.009, Tex. Occ. Code, that is limited to administrative medicine.
(b) "Administrative medicine," as used in this section, means:
(1) professional managerial, administrative, or supervisory activities related to the practice of medicine or the delivery of health care services;
(2) medical research;
(3) investigative medicine; and
(4) the assessment and/or determination of the medical necessity of treatment on behalf of another person, entity, or organization.
(c) An administrative medicine license does not include the authority to practice clinical medicine, prescribe dangerous drugs or controlled substances, or delegate medical acts or prescriptive authority.
(d) An applicant for an administrative medicine license must complete the same application and meet the same requirements as an applicant for a full Texas medical license, except that the applicant for an administrative medicine license shall not be required to show that the applicant has been engaged in the active practice of medicine, as defined in §163.11 of this title (relating to Active Practice of Medicine).
(e) The holder of an administrative medicine license shall be required to pay the same fees and meet all other requirements for issuance and renewal of the license as a person holding an unlimited license to practice medicine
(f) The holder of an Administrative Medicine License shall be subject to the Medical Practice Act and the Rules of the board as a person holding a full license to practice medicine.
(g) This section shall have no effect on any full Texas medical license issued prior to the effective date of this rule. The license of any physician who has agreed to a board order restricting the license to administrative medicine based on the failure to meet the licensure requirement to be engaged in the active practice of medicine, upon request of the physician, may be converted to an administrative medicine license and the board order regarding such physician shall be terminated.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701520
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board proposes an amendment to §173.3, concerning Physician-Initiated Updates.
The amendment requires license holders to report to the board within thirty days any change of address, incarceration, or conviction of certain crimes.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the amendment is in effect there will be no fiscal implications to state or local government as a result of enforcing the section as proposed. There will be no effect to individuals required to comply with the section as proposed.
Mr. Simpson also has determined that for each year of the first five years the amendment as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to assure notification to the board of changes of address, incarceration, or conviction of certain crimes within thirty days. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendment is proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for 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.
No other statutes, articles or codes are affected by the proposed amendment.
§173.3.Physician-Initiated Updates.
(a) - (c) (No change.)
(d) A physician shall report the following to the Board within 30 days after the event:
(1) Any change of address;
(2) Incarceration in a state or federal penitentiary;
(3) An initial conviction, final conviction, or placement on deferred adjudication, community supervision, or deferred disposition for:
(A) a felony;
(B) a misdemeanor that directly relates to the duties and responsibilities of a physician licensed by the board;
(C) a misdemeanor involving moral turpitude;
(D) a misdemeanor under Chapter 22, Penal Code, other than a misdemeanor punishable by fine only;
(E) a misdemeanor on conviction of which a defendant is required to register as a sex offender under Chapter 62, Code of Criminal Procedure;
(F) a misdemeanor under §25.07, Penal Code; or
(G) a misdemeanor under §25.071, Penal Code; or
(4) An initial finding by the trier of fact of guilt of a felony under:
(A) Chapter 481 or 483, Health and Safety Code;
(B) Section 485.033, Health and Safety Code; or
(C) the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. §801 et seq.).
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701521
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board proposes an amendment to §182.5, concerning Expert Panel.
The amendment adds the American Board of Oral and Maxillofacial Surgery to the list of boards that may certify members of the board's Expert Physician Panel, and adds repeated submission of reports that are not reliable to reasons for removal of a member of the Expert Physician Panel.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the amendment is in effect there will be no fiscal implications to state or local government as a result of enforcing the section as proposed. There will be no effect to individuals required to comply with the section as proposed.
Mr. Simpson also has determined that for each year of the first five years the amendment as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to allow review of standard of care cases by an appropriate specialist in the case of oral and maxillofacial surgery and allows the board to remove an Expert Physician Panel member because of repeated submission of reports that are not reliable. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendment is proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for 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.
Section 154.056, Texas Occupations Code Annotated is affected by the proposed amendment.
§182.5.Expert Panel.
(a) Physicians may be appointed to the Expert Panel as follows:
(1) Composition. The Expert Panel shall be composed of physicians approved by the board to act as Expert Physician Reviewers.
(2) Qualifications. To be eligible to serve on the Expert Panel, a physician must meet the following criteria:
(A) licensed to practice medicine in Texas
(B) certification by the American Board of Oral and Maxillofacial Surgery or an organization that is a member of the American Board of Medical Specialties or the Bureau of Osteopathic Specialists;
(C) no history of licensure restriction;
(D) no history of peer discipline;
(E) acceptable malpractice complaint history; and
(F) in active practice as defined by §163.11 of this title (relating to the Active Practice of Medicine).
(b) - (c) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701522
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board proposes amendments to §184.4, §184.8 and new §184.26, concerning Surgical Assistants.
The amendment to §184.4 deletes date sensitive provisions of the rule that are no longer applicable.
The amendment to §184.8 provides the description of procedure for obtaining a surgical assistant permit after the expiration of the prior permit and cancellation of the permit after it has been expired for one year.
New §184.26 provides for voluntary relinquishment or voluntary surrender of a surgical assistant permit.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the sections are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the sections as proposed.
Mr. Simpson also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to clean up rule to make it more easily read and understandable; to conform the procedure for cancellation of a surgical assistant permit to that of other licensees of the agency and to assure a procedure for allowing a permit holder to relinquish a permit if no disciplinary action is pending or voluntary surrender the permit if disciplinary action is pending. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendments and new rules are proposed under the authority of the Texas Occupations Code Annotated, §206.101 and §206.210, which provides authority for 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.
No other sections, articles or codes are affected by the proposed rules.
§184.4.Qualifications for Licensure.
(a) Except as otherwise provided in this section, an individual applying for licensure must:
(1) - (12) (No change.)
(13) have successfully completed an educational program in surgical assisting or a substantially equivalent educational program as outlined in subparagraphs (A) and (B) of this paragraph;
(A) A surgical assistant program or a substantially equivalent program is limited to the following:
(i) [a surgical assistant program approved by the board.
After September 1, 2003, applicants who wish the board to recognize their
education and training at] a surgical assistant program [
must demonstrate] that [the program
] is in compliance with the guidelines
for program accreditation established by Commission on Accreditation of Allied
Health Education Programs (CAAHEP);
(ii) - (iv) (No change.)
(B) (No change)
(14) - (16) (No change)
[
(b)
An applicant who submits an application
before September 1, 2002 must provide documentation that the applicant has
passed a surgical or first assistant examination required for certification
by one of the following certifying boards:
]
[
(1)
American Board of Surgical Assistants;
]
[
(2)
Liaison Council on Certification for the
Surgical Technologist (LCC-ST); or
]
[
(3)
National Surgical Assistant Association.
]
(b)
[
(c)
] An applicant [
who submits
an application on or after September 1, 2002
] must provide documentation
that the applicant has passed a surgical or first assistant examination required
for certification by one of the following certifying boards:
(1) American Board of Surgical Assistants;
(2) Liaison Council on Certification for the Surgical Technologist (LCC-ST); or
(3) the National Surgical Assistant Association provided that the exam was administered on or after March 29, 2003.
[
(d)
An applicant who submits an application
before September 1, 2002 and is unable to meet the educational requirements
set out in subsections (a)(12) and (13) of this section must also provide
documentation that the applicant:
]
[
(1)
will complete before the third anniversary
of the date the license is issued under this chapter the following academic
courses approved by the board:
]
[
(A)
anatomy;
]
[
(B)
physiology;
]
[
(C)
basic pharmacology;
]
[
(D)
aseptic techniques;
]
[
(E)
operative procedures;
]
[
(F)
chemistry; and
]
[
(G)
microbiology; or
]
[
(2)
since September 30, 1995, has practiced
full-time as a surgical assistant in the United States under the direct supervision
of a physician licensed in the United States and has continuously been certified
as a surgical assistant by one of the following national certifying boards:
]
[
(A)
American Board of Surgical Assistants;
]
[
(B)
Liaison Council on Certification for the
Surgical Technologist (LCC-ST); or
]
[
(C)
National Surgical Assistant Association.
]
§184.8.License Renewal.
(a) - (e) (No change.)
(f) Expired Annual Registration Permits.
(1) If a surgical assistant's registration permit has been expired for 90 days or less, the surgical assistant may obtain a new permit by submitting to the board a completed permit application, the registration fee, and the penalty fee, as defined in §175.3(2) of this title (relating to Penalties).
(2) If a surgical assistant's registration permit has been expired for longer than 90 days but less than one year, the surgical assistant may obtain a new permit by submitting a completed permit application, the registration fee, and a penalty fee as defined in §175.3(2) of this title (relating to Penalties).
(3) If a surgical assistant's registration permit has been expired for one year or longer, the surgical assistant's license is automatically canceled, unless an investigation is pending, and the surgical assistant may not obtain a new permit.
(4) Practicing as a surgical assistant after the expiration of the registration permit without obtaining a new registration permit for the current registration period has the same effect as, and is subject to all penalties of, practicing as a surgical assistant without a license.
§184.26.Voluntary Relinquishment or Surrender of a License.
Chapter 196 of this title (relating to Voluntary Relinquishment or Surrender of a License) shall govern procedures relating to surgical assistants where applicable. If the provisions of Chapter 196 conflict with the Surgical Assistant Act or rules under this chapter, the Surgical Assistant Act and provisions of this chapter shall control.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701523
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
Subchapter G. SUSPENSION BY OPERATION OF LAW
The Texas Medical Board proposes new §§187.70 - 187.73, concerning Procedural Rules.
New §187.70 states the purpose of proposed rules regarding suspension of a medical license upon the licensee's incarceration in a state or federal penitentiary.
New §187.71 provides a procedure for a hearing before board representatives to consider facts regarding a licensee's incarceration in a state or federal penitentiary.
New §187.72 provides that a panel of board representatives may determine whether a licensee is incarcerated and whether any mitigating factors permit probation of suspension.
New §187.73 authorizes the termination of suspension upon the release of a licensee who has been incarcerated in a state or federal penitentiary.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the new sections are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the sections as proposed.
Mr. Simpson also has determined that for each year of the first five years the new sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to clarify the purpose of the proposed rules; to provide a mechanism for the board to more quickly comply with the mandatory requirement to suspend a license upon incarceration in a state or federal penitentiary; to allow the board to more quickly take action upon a licensee's incarceration in a state or federal penitentiary and to assure that a suspension based on incarceration in a state or federal penitentiary will not be terminated until the release has been properly shown to the board. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The new sections are proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for 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.
Section 164.058, Texas Occupations Code Annotated is affected by the proposed new rules.
§187.70.Purposes and Construction.
The purpose of this subchapter is to set forth a procedure for the suspension of a medical license in the case of incarceration of a physician in a state or federal penitentiary, as provided in §164.058 of the Act ("incarceration"). The board interprets this statute as providing for suspension by operation of law. Since the board's role in such circumstances is limited to whether the licensee is incarcerated, the board has determined that the procedures set forth in this subchapter will provide due process to the licensee and protect the public.
§187.71.Hearing before a Panel of Board Representatives.
(a) Upon receipt of information that a licensee is incarcerated, the board shall schedule a hearing before a panel of board representatives at the earliest practicable time after providing the licensee with at least ten days notice.
(b) The panel shall be composed of at least two members of the board and District Review Committee. At least one member must be a physician and one member must be a public member. The panel may be the same panel that is scheduled for Informal Show Cause and Settlement Conferences.
(c) At the hearing, the licensee shall have the right to respond to the allegations, be represented by counsel, and present evidence or information to the panel.
(d) The panel must base its decision or recommendation on evidence or information that is admissible under §2001.081, Texas Administrative Procedure Act.
(e) If the licensee disputes the fact that the licensee is incarcerated, the licensee may present evidence or information showing that the licensee has not been incarcerated. If the licensee admits that the licensee is incarcerated, but requests that the panel probate an order suspending the licensee's medical license, the licensee may present evidence or information showing that probation is authorized by §164.101 and §164.102 of the Act and that the suspension should be probated.
§187.72.Decision of the Panel.
(a) If the panel determines that the licensee is incarcerated, but does not determine that the suspension should be probated, the panel shall direct the Executive Director to enter an order suspending the medical license of the licensee in accordance with §164.057 or §164.058 of the Act. Because the Act requires suspension, the board has determined that an imminent peril to the public health, safety, or welfare requires immediate effect and the order of the Executive Director shall be effective and final immediately upon entry.
(b) If the panel determines that the suspension should be probated, the panel may recommend the terms and conditions of an agreed order to be signed by the licensee and presented to the board for approval. The agreed order shall be effective only after being signed by the licensee and approved by the board.
§187.73.Termination of Suspension.
Suspension may be terminated upon request by the licensee and proof that the licensee is no longer incarcerated.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701524
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
Subchapter B. VIOLATION GUIDELINES
The Texas Medical Board proposes an amendment to §190.8, concerning Violation Guidelines.
The amendment includes in the definition of Practice Inconsistent with Public Health and Welfare, the failure to follow standard procedures necessary to make a reasoned medical decision in the assessment and/or determination of the medical necessity of treatment for another individual, entity, or organization and providing on-call back-up by a person who is not licensed to practice medicine or who does not proper training or experience to provide such back up; includes in the definition of unprofessional conduct that is likely to deceive, defraud, or injure the public within the meaning of the Act the failure to report abuse of a patient as required by law and intimidation of a complainant or witness regarding an investigation by the board.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the amendment is in effect there will be no fiscal implications to state or local government as a result of enforcing the section as proposed. There will be no effect to individuals required to comply with the section as proposed.
Mr. Simpson also has determined that for each year of the first five years the amendment as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to set forth standards by which the board can determine whether medical necessity decision are made; assures that physicians provide on-call-back up by a person who is properly trained and qualified; provides enforcement by the board of a physician who does not report abuse as required by law; and provides for discipline of a physician who attempts to intimidate a person who has filed a complaint or who is a witness in a board investigation. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendment is proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for 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.
Sections 164.051, 164.052 and 164.053, Texas Occupations Code Annotated are affected by the proposed amendment.
§190.8.Violation Guidelines.
When substantiated by credible evidence, the following acts, practices, and conduct are considered to be violations of the Act. The following shall not be considered an exhaustive or exclusive listing.
(1) Practice Inconsistent with Public Health and Welfare. Failure to practice in an acceptable professional manner consistent with public health and welfare within the meaning of the Act includes, but is not limited to:
(A) - (M) (No change.)
(N) Failure to follow standard procedures necessary to make a reasoned medical decision in the assessment and/or determination of the medical necessity of treatment for another individual, entity, or organization, including:
(i) reviewing relevant information that is reasonably available;
(ii) communicating with the treating physician as reasonably necessary to clarify information;
(iii) consulting with another physician with appropriate expertise, if the case includes issues that are outside the expertise of the physician reviewer; and
(iv) documenting a reasoned medical analysis.
(O) providing on-call back-up by a person who is not licensed to practice medicine in this state or who does not have adequate training and experience.
(2) Unprofessional and Dishonorable Conduct. Unprofessional and dishonorable conduct that is likely to deceive, defraud, or injure the public within the meaning of the Act includes, but is not limited to:
(A) - (O) (No change.)
[
(P)
failing to report suspected abuse of a
patient by a third party, when the report of that abuse is required by law;
]
(P)
[
(Q)
] behaving in a disruptive manner
toward licensees, hospital personnel, other medical personnel, patients, family
members or others that interferes with patient care or could be reasonably
expected to adversely impact the quality of care rendered to a patient;
(Q)
[
(R)
] entering into any agreement
whereby a licensee, peer review committee, hospital, medical staff, or medical
society is restricted in providing information to the board; and
(R)
[
(S)
] commission of the following
violations of federal and state laws whether or not there is a complaint,
indictment, or conviction:
(i) any felony;
(ii) any offense in which assault or battery, or the attempt of either is an essential element;
(iii) any criminal violation of the Medical Practice Act or other statutes regulating or pertaining to the practice of medicine;
(iv) any criminal violation of statutes regulating other professions in the healing arts that the licensee is licensed in;
(v) any misdemeanor involving moral turpitude as defined by paragraph (6) of this section;
(vi) bribery or corrupt influence;
(vii) burglary;
(viii) child molestation;
(ix) kidnapping or false imprisonment;
(x) obstruction of governmental operations;
(xi) public indecency; and
(xii) substance abuse or substance diversion.
(S) contacting or attempting to contact a complainant or witness regarding an investigation by the board for purposes of intimidation. It is not a violation for a licensee under investigation to have contact with a complainant or witness if the contact is in the normal course of business and unrelated to the investigation.
(3) - (6) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701525
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board proposes amendments to §196.1, concerning Relinquishment of License and §196.4, concerning Relicensure After Relinquishment or Surrender of License.
The amendment to §196.1 and §196.4 provides for relinquishment of a license if no disciplinary action is pending.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the amendments are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the sections as proposed.
Mr. Simpson also has determined that for each year of the first five years the amendments as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to provide separate designations and clarify procedures for a license holder to voluntarily request cancellation of a license, one (relinquishment) in case no disciplinary action is pending and another (voluntary surrender) in case disciplinary action is pending. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendments are proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for 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.
No other statutes, articles or codes are affected by the proposed amendments.
§196.1. Relinquishment [ Surrender ] of License.
(a)
Relinquishment
[
Surrender
] by licensee.
(1) A licensee may at any time voluntarily
relinquish
[
surrender
] his or her license to practice medicine in Texas
for any reason, without compulsion.
(2) Tender of the license may be by delivery by any means to the offices of the board, return receipt requested.
(b) Acceptance by the board. The board, based on a petition
or request presented to the full board by a licensee or based on the recommendation
of a committee, a panel, or representative(s) of the board, may consider whether
to formally accept the voluntary
relinquishment
[
surrender
] of the Texas medical license; however,
relinquishment
[
surrender
] of a Texas medical license without acceptance thereof by
the board, or a licensee's failure to pay his or her registration fee after
initiation of an investigation but prior to imposition of a disciplinary order
by the board, shall not result in cancellation of the license and shall not
deprive the board of jurisdiction in regard to disciplinary action against
the licensee.
§196.4. Relicensure [ Reapplication for Licensure ] After Relinquishment or Surrender of License.
In addition to other requirements established under this chapter and §164.151 of the Act , whenever a licensee relinquishes or surrenders his or her Texas medical license and reapplies for licensure, the licensee must establish competence to resume practice, payment of applicable fees, compliance with current licensure eligibility provisions as provided under Chapter 163 of this title (relating to licensure) and completion of training, courses, examinations, or seminars as directed by the board.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701526
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board proposes an amendment to §198.1 and new §§198.2 - 198.6, concerning Unlicensed Practice.
The amendment to §198.1 sets forth a purpose clause for rules to implement cease and desist authority to be used in the case of a person who is practicing medicine without a license.
New §198.2 authorizes the board to either investigate a complaint regarding the practice of medicine without a license or refer the complaint to a proper law enforcement authority, or both.
New §198.3 provides a procedure for the investigation of a complaint regarding the practice of medicine without a license and for filing a complaint with the State Office of Administrative Hearings.
New §198.4 authorizes agreed cease and desist orders.
New §198.5 provides for filing of a complaint regarding the unlicensed practice of medicine with the State Office of Administrative Hearings.
New §198.6 sets forth the penalties for violation of a cease and desist order, as authorized by statute.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the sections are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the sections as proposed.
Mr. Simpson also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to clarify the purpose of the proposed rule; provide a method by which the board can investigate a complaint regarding the practice of medicine without a license; assure that complaints of the practice of medicine without a license will be properly investigated; allow for settlement of cases regarding the practice of medicine without a license without the expense of a formal hearing; to assure that, in absence of an agreed cease and desist order, a complaint regarding the unlicensed practice of medicine will go forward to a contested case hearing and to set forth in one place the various penalties for violation of a cease and desist order. There will be no effect on small or micro businesses.
Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.
The amendment and new sections are proposed under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for 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.
Sections 165.052 and §165.001, et. seq., and 165.101 et. seq., Texas Occupations Code Annotated are affected by the proposed rules.
§198.1. Purpose [ Unlicensed Practice ].
The purpose of this chapter is to establish procedures for the handling of complaints regarding the unlicensed practice of medicine and other violations of the Medical Practice Act, a rule adopted by the board, or another statute relating to the practice of medicine by a person who is not licensed by the board, in accordance with Occupations Code, Title 3, Subtitle B, Chapter 165, Subchapters B, C, and D.
[
(a)
In the absence of board jurisdiction,
complaints to the board regarding the unlicensed practice of medicine or the
performance of any medical procedure without the required permit, registration,
or license shall be routed to one or more of the following for appropriate
handling including further investigation, prosecution, and/or injunctive relief:
]
[
(1)
the Office of the Attorney General;
]
[
(2)
the Texas Department of Public Safety;
]
[
(3)
the United States Drug Enforcement Administration;
]
[
(4)
the Texas Department of Health;
]
[
(5)
the local district or county attorney's
office with jurisdiction;
]
[
(6)
the local law enforcement agency;
]
[
(7)
any state or federal licensing board or
other agency which maintains jurisdiction over a person who is the subject
of the complaint.
]
[
(b)
In any instance in which the board may
have concurrent jurisdiction with another agency over the subject of a complaint
related to the unlicensed practice of medicine or the performance of any medical
procedure without the required permit, registration, or license, the board
may pursue further investigation and appropriate disciplinary action before
or after routing the complaint to such an agency.
]
[
(c)
The routing of a complaint to another
agency as provided by this chapter shall be in writing unless to do so is
likely to jeopardize any further investigation, prosecution, or injunctive
relief.
]
§198.2.Complaints.
(a) Complaints to the board regarding the unlicensed practice of medicine and other violations of the Medical Practice Act, a rule adopted by the board, or another statute relating to the practice of medicine by a person who is not licensed by the board or the performance of any medical procedure without the required permit, registration, or license shall be routed to one or more of the following for appropriate handling including further investigation, cease and desist proceedings, criminal prosecution, and/or injunctive relief:
(1) the Investigation Division of the Board;
(2) the Office of the Attorney General;
(3) the Texas Department of Public Safety;
(4) the United States Drug Enforcement Administration;
(5) the Texas Department of Health;
(6) the local district or county attorney's office with jurisdiction;
(7) the local law enforcement agency;
(8) any state or federal licensing board or other agency which maintains jurisdiction over a person who is the subject of the complaint.
(b) In any instance in which the board may have concurrent jurisdiction with another agency over the subject of a complaint under this section, the board may pursue further investigation and appropriate action before or after routing the complaint to another agency.
(c) The routing of a complaint to another agency as provided by this section shall be in writing unless to do so is likely to jeopardize any further investigation, prosecution, or injunctive relief.
§198.3.Investigation of Complaints.
(a) A complaint or information that a person has committed a violation under this Chapter shall be processed in a manner similar to a complaint against a licensee (see Chapter 178 of this title (relating to Complaints)).
(b) After sufficient information and evidence has been gathered, a committee of board employees designated by the Executive Director, which may include the Executive Director, shall determine whether the information and evidence gathered indicate that a violation has occurred.
(c) If the committee of board employees determines that the information and evidence gathered indicate that a violation has occurred, the committee may recommend that a formal complaint be filed with the State Office of Administrative Hearings, providing notice and opportunity for a hearing as provided in Subchapter C of this title (relating to Formal Board Proceedings at SOAH).
§198.4.Agreed Cease and Desist Order.
(a) Pursuant to the authority of §165.052 and §164.002(a) of the Act, with the agreement of a respondent, the board may enter an agreed cease and desist order.
(b) Prior to the filing of a formal complaint, the board may notify the person who is alleged to have committed a violation under this Chapter and offer a settlement of the matter by an agreed cease and desist order.
(c) An agreed cease and desist order shall be effective and enforceable against the respondent immediately upon receipt by the board of a proposed agreed cease and desist order signed by the respondent, but shall not become final until approved by the board.
§198.5.Contested Cease and Desist Proceeding.
(a) If the committee of board employees recommends that a formal complaint be filed with the State Office of Administrative Hearings, agency staff shall file a formal complaint and request a hearing as soon as practicable, in accordance with §164.005 of the Act.
(b) Upon receipt of a proposal for decision by an Administrative Law Judge at the State Office of Administrative Hearings, the board may enter a cease and desist order.
§198.6.Violation of a Cease and Desist Order.
If a respondent violates a cease and desist order or an agreed cease and desist order, the board may:
(1) Impose an administrative penalty against the respondent, and/or
(2) refer the matter to the attorney general to institute action for:
(A) an injunction against violation of the cease and desist order,
(B) any administrative penalty assessed by the board,
(C) a civil penalty in accordance with the §165.101 of the Act,
(D) expenses in accordance with the Act, §165.103, and
(E) any other remedy provided by law.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701527
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-7016
Chapter 216. CONTINUING EDUCATION
22 TAC §§216.1, 216.3, 216.4, 216.9, 216.11
The Board of Nurse Examiners proposes amendments to 22 Texas Administrative Code §§216.1, 216.3, 216.4, 216.9 and 216.11, relating to Continuing Education. Effective January 1, 2007, the contact hour for continuing education was changed from a 50-minute contact hour to a 60-minute contact hour. A contact hour is an organized learning activity that is either a didactic or clinical experience or an independent study. This change was implemented by American Nurses Credentialing Center's Commission on Accreditation. The amendments to §216.1(8) and §216.4(1) implement this change.
The proposed amendment to §216.3 is for the purpose of updating the CE requirements by deleting the requirement for RNs to take a CE course relating to Hepatitis C (§216.3(4)) that expired on June 1, 2004. The proposal would delete paragraph (4) and renumber subsequent paragraphs.
The proposed amendments to §216.9 and §216.11 address the updated process the Board utilizes to ensure that licensees comply with the CE requirements. In the past, the Staff would randomly audit licensees to determine whether they had complied, and if they did not provide the evidence, an investigation was opened in enforcement. The new process requires audited licensees to prove compliance with CE requisites prior to renewal, and if the proof is not forthcoming, the licensee's license is not renewed (new amendment to §216.11). This process is also compliant with Texas Occupations Code §301.303(a) that states "[t]he board...may require participation in continuing competency programs as a condition of renewal of a license." It creates a more streamlined process, and alleviates some of the burden imposed on Enforcement; therefore, §216.9(2) requiring the board to "notify the licensee of the results of the audit" becomes an unnecessary provision.
Katherine Thomas, Executive Director, has determined that for the first five-year period the proposed amendments are in effect there will be no additional fiscal implications for state or local government as a result of implementing the proposed amendments.
Ms. Thomas has also determined that for each year of the first five years the proposed amendments are in effect, the public benefit will be that the amendments will provide greater efficiency in the administration of the agency's functions. There will not be any foreseeable effect on small businesses. There are no anticipated costs to affected individuals as a result of the implementation of the proposed amendments.
Written comments on the proposal may be submitted to Katherine A. Thomas, MN, RN, Executive Director, Board of Nurse Examiners, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to joy.sparks@bne.state.tx.us, or by fax to Katherine Thomas at (512) 305-8101.
The amendments are proposed pursuant to the authority of Texas Occupations Code §301.151 which authorizes the Board of Nurse Examiners to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act.
No other articles, statutes or codes are affected by this proposal.
§216.1.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:
(1) - (7) (No change.)
(8) Contact hour--
Sixty
[
Fifty
] consecutive
minutes of participation in a learning activity.
(9) - (21) (No change.)
§216.3.Requirements.
Twenty contact hours of continuing education within the two years immediately preceding renewal of registration are required.
(1) - (3) (No change.)
[(4) For the biennium beginning 6/1/2002 and ending 6/1/2004, every license holder who renews a license to practice as a Registered Nurse in the State of Texas shall complete not less than two hours of continuing education relating to Hepatitis C. This requirement may be met through completion of either Type I or Type II approved continuing education activities, as set forth in Rule §216.4 of this title.]
[(A) The minimum 2 hours of continuing education requirement for Hepatitis C shall include information relevant to the prevention, assessment, and treatment of Hepatitis C.]
[(B) The required hours are not in addition to the requirements of paragraphs (1) and (2) of this section.]
(4)
[
(5)
] For either two year renewal
cycle preceding September 1, 2007, a license holder who renews a license to
practice as a Nurse or Advanced Practice Nurse shall have completed not less
than two contact hours of continuing education in bioterrorism as part of
the total hours of continuing education required to be completed under (1) and (2).
(A) The minimum two contact hours required continuing education in bioterrorism shall include information relevant to preparing for, reporting medical events resulting from, and responding to the consequences of an incident of bioterrorism.
(B) The bioterrorism continuing education program will be acceptable to the board for Type I or Type II credit if it meets the following criteria:
(i) the bioterrorism course must include information relating to preparing for an incidence of bioterrorism including the clues to bioterrorism attack and the signs, symptoms, and modes of transmission of high-priority agents of bioterrorism;
(ii) the bioterrorism course must include information relating to the reporting of an incidence of bioterrorism including the ways in which to contact the proper authorities and correctly document the incidence of bioterrorism;
(iii) the bioterrorism course must include information relating to the implementation of decontamination procedures, the identification of treatment locations and treatment personnel, the acquisition of treatment-related supplies, the awareness of any facility-organized response plans, and the development of a patient care plan to address the situation; and
(iv) the bioterrorism course is designed for and targeted to Registered Nurses and Licensed Vocational Nurses.
(C) A license holder who does not comply with the continuing education requirement imposed under this paragraph is subject only to required completion of the continuing education requirement in a period set by the board of 30 days or less or an administrative penalty imposed under Subchapter K of the Nursing Practice Act, or both.
(D) A license holder who does not comply with the sanctions imposed under subparagraph (C) of this paragraph is subject to any sanction imposed under §301.453 of the Nursing Practice Act.
(5)
[
(6)
] Forensic Evidence Collection.
(A) Each nurse licensed in Texas and employed in an emergency room setting on or after September 1, 2006 shall complete a minimum of two hours of continuing education relating to forensic evidence collection, as required by Texas Occupations Code §301.306 and this rule by:
(i) September 1, 2008 for nurses to whom this requirement applies who are employed in an ER setting on or before September 1, 2006, or
(ii) within two years of the initial date of employment in an emergency room setting. This requirement may be met through completion of either Type I or Type II approved continuing education activities, as set forth in §216.4 of this title.
(B) This requirement shall apply to nurses who work in an emergency room (ER) setting that is:
(i) the nurse's home unit;
(ii) an ER unit to which the nurse "floats" or schedules shifts; or
(iii) a nurse employed under contractual, temporary, per diem, agency, traveling, or other employment relationship whose duties include working in an ER.
(C) A licensed nurse in Texas who would otherwise be exempt from CE requirements during the nurse's initial licensure or first renewal periods under §216.8(b) or (c) of this title shall comply with the requirements of this section. This is a one-time requirement for each nurse employed in an emergency room setting. In compliance with §216.7(b) of this title, each licensee is responsible for maintaining records of CE attendance. Validation of course completion in Forensic Evidence Collection should be retained by the nurse indefinitely, even if a nurse changes employment.
(D) The minimum 2 hours of continuing education requirement shall include information relevant to forensic evidence collection and age or population-specific nursing interventions that may be required by other laws and/or are necessary in order to assure evidence collection that meets requirements under Texas Government Code §420.031 regarding use of a service-approved evidence collection kit and protocol. Content may also include but is not limited to documentation, history-taking skills, use of sexual assault kit, survivor symptoms, and emotional and psychological support interventions for victims.
(E) The required hours are included in the requirements of paragraphs (1) - (3) of this section relating to continuing education requirements for nurses.
(6)
[
(7)
] Continuing Education Requirements
for Retired Nurses Providing Only Voluntary Charity Care.
(A) In compliance with Texas Occupations Code §112.051, the Board shall adopt rules providing for reduced fees and continuing education requirements for retired health care practitioners whose only practice is voluntary charity care.
(B) A nurse who is 65 years old or older and who holds or is seeking to hold a valid volunteer retired (VR) nurse authorization:
(i) Must have completed at least 10 hours of either Type 1 or Type 2 continuing education as defined in this chapter during the previous biennium, unless the nurse also holds valid recognition as an advanced practice nurse or is a Volunteer Retired Registered Nurse (VR-RN) with advanced practice authorization in a given role and specialty in the State of Texas.
(ii) Must have completed at least 20 hours of either Type I or Type 2 CE as defined in this chapter if authorized by the Board in a specific advanced practice role and specialty. The 20 hours of CE must meet the same criteria as APN CE defined under paragraph (3) of this section. An APN authorized as a VR-RN with APN authorization may NOT hold prescriptive authority. This does not preclude a registered nurse from placing his/her APN authorization on inactive status and applying for authorization only as a VR-RN.
(iii) Is exempt from fulfilling targeted CE requirements except as required for volunteer retired advanced practice nurses.
§216.4.Criteria for Acceptable Continuing Education Activity.
The following criteria have been established to guide the licensed
nurse in selecting appropriate programs and to guide the provider in planning
and presenting continuing education programs. Activities which may meet these
criteria include: classroom instruction, individualized instruction, academic
courses, self-directed study, and
institutional
[
institu-tional
]-based instruction.
(1) Length. The program shall be at least one contact hour
(
60 consecutive
[
50 consecu-tive
] minutes) in length.
(2) - (9) (No change.)
§216.9.Audit Process.
The board shall select a random sample of licensees
90 days prior to
[
for
] each renewal month. Audit forms shall be sent to
selected licensees to substantiate compliance with the continuing education
requirements.
(1) (No change.)
[(2) The board shall notify the licensee of the results of the audit.]
(2)
[
(3)
] Failure to notify the board
of a current mailing address will not absolve the licensee from audit requirements.
(3)
[
(4)
] By this rule, an audit shall
be automatic for a licensee who has been found non-compliant in an immediately
preceding audit.
(4)
[
(5)
] Failure to complete the audit
satisfactorily or falsification of records shall constitute unprofessional
conduct and provide grounds for disciplinary action.
§216.11.Consequences of Non-Compliance.
Failure to comply with the Board's CE requirements will result
in the denial of renewal.
[
Licensees found non-compliant shall
be referred to the board's practice and compliance department for possible
disciplinary action.
]
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 23, 2007.
TRD-200701528
Katherine A. Thomas, MN, RN
Executive Director
Board of Nurse Examiners
Earliest possible date of adoption: June 3, 2007
For further information, please call: (512) 305-6823