CHAPTER 166. PHYSICIAN REGISTRATION
The Texas Medical Board (Board) adopts amendments to Chapter 166, §166.2, concerning Continuing Medical Education, without changes to the proposed text as published in the February 27, 2009, issue of the Texas Register (34 TexReg 1369) and will not be republished.
The amendment will allow members of the Board's Expert Physician Panel to obtain up to 6 hours of formal Continuing Medical Education each year for time actually spent in reviewing standard of care cases and providing a report to the Board. It is appropriate to award up to 6 hours of CME credits for the review of standard of care cases at the Board and the work provided to the Board warrants such credit.
The Board received no public written comments and no one appeared to testify at the public hearing held on April 3, 2009, regarding the amendment to §166.2.
The amendment is adopted under the authority of the Texas Occupations Code Annotated, §153.001 and §156.051, which provide authority for the 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 and to adopt a program for the continuing medical education of license holders.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 16, 2009.
TRD-200901453
Mari Robinson, J.D.
Interim Executive Director
Texas Medical Board
Effective date: May 6, 2009
Proposal publication date: February 27, 2009
For further information, please call: (512) 305-7016
22 TAC §§183.2, 183.4, 183.10, 183.20
The Texas Medical Board (Board) adopts amendments to Chapter 183, Acupuncture, §183.2, concerning Definitions, §183.10, concerning Patient Records, and §183.20, concerning Continuing Acupuncture Education, without changes to the proposed text as published in the February 27, 2009, issue of the Texas Register (34 TexReg 1370) and will not be republished. The Board also adopts an amendment to §183.4, concerning Licensure, with minor grammatical changes to the proposed text as published in the February 27, 2009, issue of the Texas Register (34 TexReg 1370). The text of the rule will be republished.
The Board sought stakeholder input through Stakeholder Groups, which made comments on the suggested changes to the rules at a meeting held on January 15, 2009. The comments were incorporated into the proposed rules.
Elsewhere in this issue of the Texas Register, the Board contemporaneously adopts the rule review of Chapter 183.
The amendments to §183.2, relating to Definitions, recognize acupuncture schools in the United States or Canada that have been approved by an accrediting body recognized by the Texas Higher Education Coordinating Board and delete obsolete references to examinations taken prior to January 1, 2007.
The Board has determined that acupuncture schools in the United States and Canada that have been approved by an accrediting body recognized by the Texas Higher Education Coordinating Board should be recognized by the Board of Acupuncture Examiners for purposes of licensure.
The amendments to §183.4, relating to Licensure, clarifies a possible confusion created by the current language of the rule, which incorrectly indicates that an unapproved acupuncture school in the United States or Canada can be recognized for licensure; increases the limit on times allowed for passage of the examination required for licensure from 3 times to 5 times; deletes the requirement that the JP examination be passed within three attempts and provides that passage of the JP examination is not required more than once; clarifies than an application is expired, rather than inactive, after one year; provides that applicants of acupuncture schools in the United States or Canada are not required to have a personal interview at board offices; updates procedures for submitting fingerprints for licensure applications; clarifies the requirement to file an application for relicensure when a license has been expired for more than one year; and makes grammatical corrections. The amendment to §183.4 is adopted with a minor grammatical change in subsection (a)(7)(E). At the end of subparagraph (E), the "; and" is being removed, as it is no longer necessary.
The Board has determined that confusion regarding the interpretation of this rule should be settled by making it clear that an acupuncture school in the United State or Canada must be approved; it is appropriate to allow an applicant 5 attempts to pass the examination required for licensure; passage of the JP Examination should only be require one time; an application for licensure should expire after one year; applicants who have attended acupuncture school in the United State or Canada should not be required to have a personal interview at board offices; the procedures for submitting fingerprints for licensure applications should be updated; and an application for relicensure should be required when a license has been expired for more than one year.
The amendments to §183.10, relating to Patient Records, specify vital signs that must be taken in a proper examination and reduce time for records to be maintained from indefinitely to 5 years, specifying situations in which they must be maintained longer.
The Board has determined that it is reasonable to require that acupuncturists maintain patient records for 5 years, or longer in certain situations. A proper initial examination should include taking vital signs.
The amendments to §183.20, relating to Continuing Acupuncture Education, delete a provision stating that credit for an ethics course completed for purposes of maintenance of licensure for another health profession may satisfy the requirement for continuing acupuncture education in ethics; require one hour of continuing acupuncture education in biomedicine after November 30, 2010; update references to other board rules; specify that three years of previous experience must be continuous to achieve approved provider status; and delete unnecessary words.
The Board has determined that ethics courses completed for purposes of maintenance of licensure for another health profession may not address acupuncture and should not be recognized for credit for continuing acupuncture education. One hour of continuing acupuncture education in Biomedicine should be required after November 30, 2010. Three continuous years of previous experience should be required for a CAE provider to achieve approved provider status.
The Board received no public written comments and no one appeared to testify at the public hearing held on April 3, 2009, regarding adoption of §§183.2, 183.4, 183.10 and 183.20.
The amendments are adopted under the authority of the Texas Occupations Code Annotated, §153.001 which provide authority for the 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. The amendments are also adopted under the authority of §205.101, Texas Occupations Code Annotated, which provide authority for the Texas State Board of Acupuncture Examiners to adopt rules subject to approval of the Texas Medical Board.
§183.4.Licensure.
(a) Qualifications. An applicant must present satisfactory proof to the acupuncture board that the applicant:
(1) is at least 21 years of age;
(2) is of good professional character as defined in §183.2 of this title (relating to Definitions);
(3) has successfully completed 60 semester hours of general academic college level courses, other than in acupuncture school, that are not remedial and would be acceptable at the time they were completed for credit on an academic degree at a two or four year institution of higher education within the United States accredited by an agency recognized by the Higher Education Coordinating Board or its equivalent in other states as a regional accrediting body. Coursework completed as a part of a degree program in acupuncture or Oriental medicine may be accepted by the acupuncture board if, in the opinion of the acupuncture board, such coursework is substantially equivalent to the required hours of general academic college level coursework;
(4) is a graduate of an acceptable approved acupuncture school;
(5) has taken and passed, within five attempts, each component of the full National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM) examination. If an applicant submits to multiple attempts on a component before and on or after June 1, 2004, the number of attempts shall be combined based on the subject matter tested;
(6) has taken and passed the CCAOM (Council of Colleges of Acupuncture and Oriental Medicine) Clean Needle Technique (CNT) course and practical examination;
(7) for applicants who apply for a license on or after September 1, 2007, passes a jurisprudence examination ("JP exam"), which shall be conducted on the licensing requirements and other laws, rules, or regulations applicable to the acupuncture profession in this state. The jurisprudence examination shall be developed and administered as follows:
(A) Questions for the JP Exam shall be prepared by agency staff with input from the Acupuncture board and the agency staff shall make arrangements for a facility by which applicants can take the examination.
(B) Applicants must pass the JP exam with a score of 75 or better within three attempts.
(C) An examinee shall not be permitted to bring medical books, compends, notes, medical journals, calculators or other help into the examination room, nor be allowed to communicate by word or sign with another examinee while the examination is in progress without permission of the presiding examiner, nor be allowed to leave the examination room except when so permitted by the presiding examiner.
(D) Irregularities during an examination such as giving or obtaining unauthorized information or aid as evidenced by observation or subsequent statistical analysis of answer sheets, shall be sufficient cause to terminate an applicant's participation in an examination, invalidate the applicant's examination results, or take other appropriate action.
(E) 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.
(8) is able to communicate in English as demonstrated by one of the following:
(A) passage of the NCCAOM examination taken in English;
(B) passage of the TOEFL (Test of English as a Foreign Language) with a score of 550 or higher on the paper based test or with a score of 213 or higher on the computer based test;
(C) passage of the TSE (Test of Spoken English) with a score of 45 or higher;
(D) passage of the TOEIC (Test of English for International Communication) with a score of 500 or higher;
(E) graduation from an acceptable approved school of acupuncture located in the United States or Canada; or
(F) at the discretion of the acupuncture board, passage of any other similar, validated exam testing English competency given by a testing service with results reported directly to the acupuncture board or with results otherwise subject to verification by direct contact between the testing service and the acupuncture board.
(b) Procedural rules for licensure applicants. The following provisions shall apply to all licensure applicants.
(1) Applicants for licensure:
(A) whose documentation indicates any name other than the name under which the applicant has applied must furnish proof of the name change;
(B) whose application for licensure which has been filed with the board office and which is in excess of one year old from the date of receipt shall be considered expired. Any fee previously submitted with that application shall be forfeited. Any further application procedure for licensure will require submission of a new application and inclusion of the current licensure fee;
(C) who in any way falsify the application may be required to appear before the acupuncture board. It will be at the discretion of the acupuncture board whether or not the applicant will be issued a Texas acupuncture license;
(D) on whom adverse information is received by the acupuncture board may be required to appear before the acupuncture board. It will be at the discretion of the acupuncture board whether or not the applicant will be issued a Texas license;
(E) shall be required to comply with the acupuncture board's rules and regulations which are in effect at the time the completed application form and fee are filed with the board;
(F) may be required to sit for additional oral, written, or practical examinations or demonstrations that, in the opinion of the acupuncture board, are necessary to determine competency of the applicant;
(G) must have the application for licensure completed and legible in every detail 60 days prior to the acupuncture board meeting in which they are to be considered for licensure unless otherwise determined by the acupuncture board based on good cause.
(2) Applicants for licensure who wish to request reasonable accommodation due to a disability must submit the request at the time of filing the application.
(3) Applicants who have been licensed in any other state, province, or country shall complete a notarized oath or other verified sworn statement in regard to the following:
(A) whether the license, certificate, or authority has been the subject of proceedings against the applicant for the restriction for cause, cancellation for cause, suspension for cause, or revocation of the license, certificate, or authority to practice in the state, province, or country, and if so, the status of such proceedings and any resulting action; and
(B) whether an investigation in regard to the applicant is pending in any jurisdiction or a prosecution is pending against the applicant in any state, federal, national, local, or provincial court for any offense that under the laws of the state of Texas is a felony, and if so, the status of such prosecution or investigation.
(4) An applicant for a license to practice acupuncture may not be required to appear before the acupuncture board or any of its committees unless the application raises questions about the applicant's:
(A) physical or mental impairment;
(B) criminal conviction; or
(C) revocation of a professional license.
(c) Licensure documentation.
(1) Original documents/interview. Upon request, any applicant must appear for a personal interview at the board offices and present original documents to a representative of the board for inspection. Original documents may include, but are not limited to, those listed in paragraph (2) of this subsection.
(2) Required documentation. Documentation required of all applicants for licensure shall include the following:
(A) Birth certificate/proof of age. Each applicant for licensure must provide a copy of either a birth certificate and translation, if necessary, to prove that the applicant is at least 21 years of age. In instances where a birth certificate is not available, the applicant must provide copies of a passport or other suitable alternate documentation.
(B) Name change. Any applicant who submits documentation showing a name other than the name under which the applicant has applied must present copies of marriage licenses, divorce decrees, or court orders stating the name change. In cases where the applicant's name has been changed by naturalization the applicant must submit the original naturalization certificate by hand delivery or by certified mail to the board office for inspection.
(C) Examination scores. Each applicant for licensure must have a certified transcript of grades submitted directly from the appropriate testing service to the acupuncture board for all examinations used in Texas for purposes of licensure in Texas.
(D) Dean's certification. Each applicant for licensure must have a certificate of graduation submitted directly from the school of acupuncture on a form provided by the acupuncture board. The applicant shall attach to the form a recent photograph, meeting United States Government passport standards, before submitting it to the school of acupuncture. The school shall have the Dean or the designated appointee sign the form attesting to the information on the form and placing the school seal over the photograph.
(E) Diploma or certificate. All applicants for licensure must submit a copy of their diploma or certificate of graduation.
(F) Evaluations. All applicants must provide, on a form furnished by the acupuncture board, evaluations of their professional affiliations for the past ten years or since graduation from acupuncture school, whichever is the shorter period.
(G) Preacupuncture school transcript. Each applicant must have the appropriate school or schools submit a copy of the record of their undergraduate education directly to the acupuncture board. Transcripts must show courses taken and grades obtained. If determined that the documentation submitted by the applicant is not sufficient to show proof of the completion of 60 semester hours of college courses other than in acupuncture school, the applicant must obtain coursework verification by submitting documentation to the acupuncture board for a determination as to the adequacy of such education or to a two or four year institution of higher education within the United States. The institution must be preapproved by the board's executive director and accredited by an agency recognized as a regional accrediting body by the Texas Higher Education Coordinating Board or its equivalent in another state.
(H) School of acupuncture transcript. Each applicant must have his or her acupuncture school submit a transcript of courses taken and grades obtained directly to the acupuncture board. Transcripts must clearly demonstrate completion of 1,800 instructional hours, with at least 450 hours of herbal studies.
(I) Fingerprint card. Each applicant must submit his or her fingerprints according to the procedure prescribed by the board.
(J) Other verification. For good cause shown, with the approval of the acupuncture board, verification of any information required by this subsection may be made by a means not otherwise provided for in this subsection.
(3) Additional documentation. Applicants may be required to submit other documentation, including but not limited to the following:
(A) Translations. An accurate certified translation of any document that is in a language other than the English language along with the original document or a certified copy of the original document which has been translated.
(B) Arrest Records. If an applicant has ever been arrested, a copy of the arrest and arrest disposition from the arresting authority and submitted by that authority directly to the acupuncture board.
(C) Malpractice. If an applicant has ever been named in a malpractice claim filed with any liability carrier or if an applicant has ever been named in a malpractice suit, the applicant shall submit the following:
(i) a completed liability carrier form furnished by the acupuncture board regarding each claim filed against the applicant's insurance;
(ii) for each claim that becomes a malpractice suit, a letter from the attorney representing the applicant directly to this board explaining the allegation, dates of the allegation, and current status of the suit. If the suit has been closed, the attorney must state the disposition of the suit, and if any money was paid, the amount of the settlement, unless release of such information is prohibited by law or an order of a court with competent jurisdiction. If such letter is not available, the applicant will be required to furnish a notarized affidavit explaining why this letter cannot be provided; and
(iii) a statement, composed by the applicant, explaining the circumstances pertaining to patient care in defense of the allegations.
(D) Inpatient treatment for alcohol/substance abuse or mental illness. Each applicant that has been admitted to an inpatient facility within the last five years for the treatment of alcohol/substance abuse or mental illness must submit the following:
(i) an applicant's statement explaining the circumstances of the hospitalization;
(ii) an admitting summary and discharge summary, submitted directly from the inpatient facility;
(iii) a statement from the applicant's treating physician/psychotherapist as to diagnosis, prognosis, medications prescribed, and follow-up treatment recommended; and
(iv) a copy of any contracts or agreements signed with any licensing authority.
(E) Outpatient treatment for alcohol/substance abuse or mental illness. Each applicant that has been treated on an outpatient basis within the last five years for alcohol/substance abuse or mental illness must submit the following:
(i) an applicant's statement explaining the circumstances of the outpatient treatment;
(ii) a statement from the applicant's treating physician/psychotherapist as to diagnosis, prognosis, medications prescribed, and follow-up treatment recommended; and
(iii) a copy of any contracts or agreements signed with any licensing authority.
(F) Additional documentation. Additional documentation as is deemed necessary to facilitate the investigation of any application for licensure.
(G) DD214. A copy of the DD214 indicating separation from any branch of the United States military.
(H) Other verification. For good cause shown, with the approval of the acupuncture board, verification of any information required by this subsection may be made by a means not otherwise provided for in this subsection.
(I) False documentation. Falsification of any affidavit or submission of false information to obtain a license may subject an acupuncturist to denial of a license or to discipline pursuant to the Act, §205.351.
(4) Substitute documents/proof. The acupuncture board may, at its discretion, allow substitute documents where proof of exhaustive efforts on the applicant's part to secure the required documents is presented. These exceptions are reviewed by the acupuncture board, a board committee, or the board's executive director on an individual case-by-case basis.
(d) Temporary license.
(1) Issuance. The acupuncture board may, through the executive director of the agency, issue a temporary license to a licensure applicant who appears to meet all the qualifications for an acupuncture license under the Act, but is waiting for the next scheduled meeting of the acupuncture board for review and for the license to be issued.
(2) Duration/renewal. A temporary license shall be valid for 100 days from the date issued and may be extended only for another 30 days after the date the initial temporary license expires. Issuance of a temporary license may be subject to restrictions at the discretion of the executive director and shall not be deemed dispositive in regard to the decision by the acupuncture board to grant or deny an application for a permanent license.
(e) Distinguished professor temporary license.
(1) Issuance. The acupuncture board may issue a distinguished professor temporary license to an acupuncturist who:
(A) holds a substantially equivalent license, certificate, or authority to practice acupuncture in another state, province, or country;
(B) agrees to and limits any acupuncture practice in this state to acupuncture practice for demonstration or teaching purposes for acupuncture students and/or instructors, and in direct affiliation with an acupuncture school that is a candidate for accreditation or has accreditation through the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM) at which the students are trained and/or the instructors teach;
(C) agrees to and limits practice to demonstrations or instruction under the direct supervision of a licensed Texas acupuncturist who holds an unrestricted license to practice acupuncture in this state;
(D) pays any required fees for issuance or renewal of the distinguished professor temporary license; and
(E) passes the JP Exam, as provided in subsection (a)(7) of this section.
(2) Duration. The distinguished professor temporary license shall be valid for a continuous one-year period; however, the permit is revocable at any time the board deems necessary. The distinguished professor temporary license shall automatically expire one year after the date of issuance. The distinguished professor temporary license may not be renewed or reissued.
(3) Disciplinary action. A distinguished professor temporary license or renewal may be denied, terminated, canceled, suspended, or revoked for any violation of acupuncture board rules or the Act, Subchapter H.
(f) Relicensure. If an acupuncturist's license has been expired for one year, it is considered to have been canceled, and the acupuncturist may not renew the license. The acupuncturist may submit an application for relicensure and must comply with the requirements and procedures for obtaining an original license.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 16, 2009.
TRD-200901454
Mari Robinson, J.D.
Interim Executive Director
Texas Medical Board
Effective date: May 6, 2009
Proposal publication date: February 27, 2009
For further information, please call: (512) 305-7016
The Texas Medical Board (Board) adopts an amendment to Chapter 189, §189.4, concerning Limitations on Physician Probationer's Practice, with changes to the proposed text as published in the January 9, 2009, issue of the Texas Register (34 TexReg 170). The text of the rule will be republished.
The Board sought stakeholder input through Stakeholder Groups, which made comments on the suggested changes to the rule at a meeting held on October 29, 2008. The comments were incorporated into the proposed rule.
On December 11, 2008 the Board authorized the publication for public comment of proposed revision to §189.4, relating to Limitations on Physician Probationer's Practice (the "proposed rule"). The proposed rule was published in the January 9, 2009, issue of the Texas Register, beginning at 34 TexReg 170. A public hearing was held to consider public comments on the proposed rule on February 6, 2009.
The proposed revision would have added a provision recognizing Board Rule §185.2(19), which provides that a physician with a restricted license may not supervise or delegate prescriptive authority to a physician assistant.
SUMMARY OF FACTUAL BASIS. The Board has determined that the rule should reference the provision in the Physician Assistant Act and the Board Rules regarding Physician Assistants that prohibits a physician from supervising a physician assistant if the physician's license is restricted.
SUMMARY OF COMMENTS. The Board received comments from the Texas Medical Association, which commented that the actual language of the proposed rule could subject a physician to conflicting guidance from the Texas Medical Board by expressly authorizing the physician to supervise a physician assistant, while at the same time imposing restrictions on the physician's license that would invoke the provisions of §204.205(1) of the Physician Assistant Act, prohibiting a physician from supervising a physician assistant if the physician's license is restricted.
The Board has responded to this comment by revising the proposed language to specifically reference §204.205(1) of the Physician Assistant Act. The revised language constitutes a non-substantive amendment to the proposed rule, as published. The revised rule, as adopted by the Board at a meeting on April 3, 2009 provides: (d) In accordance with §204.205(1), Texas Occupations Code, and §185.2(19) of this title (relating to Definitions), a probationer may not supervise or delegate prescriptive authority to a physician assistant if the probationer's license and practice of medicine are restricted by an order of the board.
The Board believes that this revision will satisfy the concerns expressed by this comment.
The amendment is adopted under the authority of Texas Occupations Code Annotated, §153.001 and §204.102, which provide authority for the 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, and to adopt rules to regulate physician assistants and physicians who supervise physician assistants.
§189.4.Limitations on Physician Probationer's Practice.
(a) A probationer is not authorized to supervise a physician assistant, advanced practice nurse, or surgical assistant unless expressly permitted under the probationer's order.
(b) A probationer may not delegate prescriptive authority to a physician assistant or advanced practice nurse unless expressly permitted under the probationer's order.
(c) A finding that a probationer has violated or attempted to violate subsections (a) and (b) of this section shall be considered unprofessional and dishonorable conduct likely to deceive, defraud or injure the public and is a violation of the Act.
(d) In accordance with §204.205(1), Texas Occupations Code, and §185.2(19) of this title (relating to Definitions), a probationer may not supervise or delegate prescriptive authority to a physician assistant if the probationer's license and practice of medicine are restricted by an order of the board.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 16, 2009.
TRD-200901455
Mari Robinson, J.D.
Interim Executive Director
Texas Medical Board
Effective date: May 6, 2009
Proposal publication date: January 9, 2009
For further information, please call: (512) 305-7016