Part 7. STATE COMMITTEE OF EXAMINERS IN THE FITTING AND DISPENSING OF HEARING INSTRUMENTS
Chapter 141. FITTING AND DISPENSING OF HEARING INSTRUMENTS
The State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments (committee) proposes an amendment to §141.16, concerning the licensing and regulation of fitters and dispensers of hearing instruments.
BACKGROUND AND PURPOSE
Amendments to §141.16(g) and (h) relate to audiometric testing standards for hearing instrument fitters and dispensers. The amendments are proposed to ensure that the rule correctly reflects the provisions of Texas Occupations Code, §402.353, related to the requirement that audiometric testing be conducted in compliance with national standards as established by the American National Standards Institute (ANSI) "ears covered" octave band criteria for Permissible Ambient Noise Levels During Audiometric Testing.
SUMMARY
Amendments to §141.16(g) update the rule, reorganize existing language for clarity, and ensure that the rule references the most current national standards for audiometric testing as required by the statute.
An amendment to §141.16(h) removes an obsolete chart containing maximum permissible ambient noise levels as previously established by the American National Standards Institute.
FISCAL NOTE
Joyce Parsons, Executive Director, has determined that for each fiscal year of the first five years the section is in effect, there will be no fiscal implications to the state as a result of enforcing or administering the section as proposed. Implementation of the proposed section will not result in any fiscal implications for local governments.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Ms. Parsons has also determined that there will be no economic costs to small businesses or micro-businesses required to comply with the section as proposed. This was determined by interpretation of the rule that small businesses and micro-businesses will not be required to alter their business practices in order to comply with the section. There is no anticipated economic costs to persons who are required to comply with the section as proposed. There is no anticipated negative impact on local employment.
PUBLIC BENEFIT
Ms. Parsons has also determined that for each year of the first five years the section is in effect, the public will benefit from adoption of the section. The public benefit anticipated as a result of enforcing and administering the section is to effectively regulate the practice of fitting and dispensing of hearing instruments in Texas, which will protect and promote public health, safety, and welfare.
REGULATORY ANALYSIS
The committee has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
TAKINGS IMPACT ASSESSMENT
The committee has determined that the proposed amendment does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Joyce Parsons, Executive Director, State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments, Department of State Health Services, 1100 West 49th Street, Austin, Texas 78756 or by email to fdhi@dshs.state.tx.us. When e-mailing comments, please indicate "Comments on Proposed Rules" in the e-mail subject line. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.
STATUTORY AUTHORITY
The proposed amendment is authorized by the Texas Occupations Code, §402.102, which authorizes the committee to adopt rules necessary for the performance of the committee's duties.
The proposed amendment affects the Texas Occupations Code, Chapter 402.
§141.16.Conditions of Sale.
(a) - (f) (No change.)
(g) Audiom etric testing not conducted in a stationary acoustical enclosure.
(1) A notation shall be made on the hearing test if testing was not done in a stationary acoustical enclosure and sound-level measurements must be conducted at the time of the testing to ensure that ambient noise levels meet permissible standards for testing threshold to 20 dB based on the most current American National Standards Institute "ear covered" octave band criteria for Permissible Ambient Noise Levels During Audiometric Testing, or the test environment shall have a maximum allowable ambient noise level of 42 dBA .
(2) (No change.)
[
(3)
If audiometric testing is
not conducted in a stationary acoustical enclosure, the test environment shall
have a maximum allowable ambient noise level of 42 dBA.]
(h) Audiometric testing conducted in a stationary acoustical enclosure.
(1) (No change.)
(2) A stationary acoustical enclosure includes, but is not limited to, an audiometric test room.
(A) - (B) (No change.)
[
(C)
The primary and necessary
requirement of an audiometric test room is to ensure that the maximum permissible
ambient noise levels established by the American National Standards Institute
do not exceed the levels for audiometric test room for ears covered 250 -
8000 Hz. The levels are as follows:]
[Figure: 22 TAC §141.16(h)(2)(C)]
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 June 15, 2007.
TRD-200702438
Ronald Ensweiler
Chair
State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 458-7111 x6972
Chapter 161. GENERAL PROVISIONS
The Texas Medical Board proposes an amendment to §161.3, concerning Organization and Structure.
The amendment proposes standards of conduct for Board members, including prohibiting expert testimony by board members in cases in which a licensee is a party and in which the expert testimony relates to the standard of care or medical malpractice.
Elsewhere in this issue of the Texas Register, the Texas Medical Board contemporaneously withdraws the amendment to §161.3, which was previously published in the May 4, 2007, issue of the Texas Register (32 TexReg 2438).
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 a standard that Board members should follow in their conduct as a Board member. 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 the board member's official position to imply professional superiority or competence.
(10) A board member should avoid the use of the board member's official position as an endorsement in any health care related matter.
(11) A board member should not appear as an expert witness in any case in which a licensee of the board is a party and in which the expert testimony relates to standard of care or professional malpractice. A board member may provide expert testimony if the board member has been called primarily as a fact witness. A board member should disclose any potential employment as an expert witness to and seek prior approval of the board's executive committee. When providing expert testimony in any matter, a board member should state that any opinion of the board member is not on behalf of or approved by the board and should not claim special expertise because of board membership.
(12) 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 June 15, 2007.
TRD-200702431
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 305-7016
22 TAC §§176.1, 176.2, 176.4, 176.6, 176.8, 176.9
The Texas Medical Board proposes amendments to §§176.1, 176.2, 176.4, 176.6, 176.8 and 176.9, concerning Health Care Liability Lawsuits and Settlements.
The amendments provide statutory references to Chapter 74 of the Texas Civil Practices and Remedies Code and Chapters 82 and 1901 of the Insurance Code, and updates the name of the Texas Medical Board.
Elsewhere in this issue of the Texas Register, the Texas Medical Board contemporaneously proposes the review of Chapter 176.
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 general cleanup of the chapter. 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 and §160.052, 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 proposal.
§176.1.Definitions.
For the purposes of this chapter:
(1) "Health care liability claim" means a cause of action against a licensee for treatment, lack of treatment, or other claimed departure from accepted standards of medical or health care or safety that proximately results in injury to or death of a patient, whether the patient's claim or cause of action sounds in tort or contract. This definition is consistent with Texas Civil Practices and Remedies Code §74.001(a)(13) (relating to medical liability).
(2) - (6) (No change.)
§176.2.Reporting Responsibilities,
(a) The reporting form set out in §176.9 of this chapter
must be completed and forwarded to the Texas
Medical Board
[
State Board of Medical Examiners
] for each defendant licensee against
whom a health care liability complaint has been filed or a settlement has
been made.
(1) (No change.)
(2) A licensee is ultimately responsible for assuring that this information is reported to the board, as required by TEX. OCC. CODE §160.052(b). The licensee shall report the required information if:
(A) the licensee does not carry
professional
[
health care
] liability insurance
as described in Chapter 1901 of
the Texas Insurance Code
;
(B)
is not covered by
professional
[
health
care
] liability insurance;
(C) - (D) (No change.)
(3) (No change.)
(b) (No change.)
§176.4.Timeframes and Attachments.
(a) Part I of the form, reporting the filing of a lawsuit,
shall be filed not later than the 30th day after receipt of a complaint filed
in a lawsuit against the licensee. A copy of the complaint and any expert
report filed under
Texas Civil Practices and Remedies Code
Section
74.351
[
13.01, Medical Liability and Insurance Improvement Act
of Texas
], must be attached. If the expert report is not filed with
the Court at the time the lawsuit is filed, the expert report shall be filed
with the board, together with an updated Part I of the form, not later than
the 30th day after receipt of the expert report.
(b) (No change.)
§176.6.Penalty.
Failure by a licensed insurer to report under this chapter shall be
referred to the Texas Department of Insurance. Sanctions under
Chapter
82 of
the
Texas
Insurance Code, [
Article 1.10, section
7,
] may be imposed for failure to report.
§176.8.Board Review of Health Care Liability Lawsuits and Settlements.
(a)
In accordance with Section 164.201 of the Act, the board
shall review the medical competency of a licensee against whom three or more
expert reports under
Texas Civil Practices and Remedies Code Section
74.351
[
Section 13.01, Medical Liability and Insurance Improvement
Act of Texas (Article 4590i, Vernon's Texas Civil Statutes)
], have been
filed in three separate lawsuits within a five-year period in the same manner
as if a complaint against the licensee had been made to the board under Section
154.051.
(b) (No change.)
§176.9.Reporting Form.
The reporting form shall be as follows.
Figure: 22 TAC §176.9 (.pdf)
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 June 15, 2007.
TRD-200702433
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board proposes amendments to §§181.2, 181.3 and 181.6, concerning Contact Lens Prescriptions.
The amendments establish that the verification of a contact lens prescription may substitute for an original signature to create a valid contact lens prescription.
Elsewhere in this issue of the Texas Register, the Texas Medical Board contemporaneously proposes the review of Chapter 181.
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 carry out the Legislative requirement for the Board to adopt rules consistent with Chapter 353 of the Occupations Code related to contact lens prescriptions. 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.
Texas Occupations Code Annotated, §353.152 and §353.1015 are affected by this proposal.
§181.2.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the contents clearly indicate otherwise.
(1) Contact lens prescription--a written prescription that contains the following information:
(A) - (D) (No change.)
(E) the [
original
] signature of the physician
or a verification of the prescription as described by Tex. Occ. Code Section
353.1015
;
(F) - (J) (No change.)
(2) (No change.)
§181.3.Release of Contact Lens Prescription.
(a) Except as provided in subsection (d) of this section, each physician who performs an eye examination and fits a patient for contact lenses shall, on request, prepare and give a contact lens prescription to the patient , and as directed by any person designated to act on behalf of the patient, provide the prescription or verify the prescription as provided by Tex. Occ. Code Section 353.1015 . The physician may exclude categories of contact lenses if the exclusion is clinically indicated. The physician may not charge the patient a fee for providing the contact lens prescription but may charge a fee for examination and a fee for fitting of contact lenses as a condition for giving a contact lens prescription to the patient.
(b) - (e) (No change.)
(f) A physician may not condition the availability to a patient of an eye examination, a fitting for contact lenses, the issuance or verification of a contact lens prescription, or any combination of these services on a requirement that the patient agree to purchase contact lenses or other ophthalmic goods from the physician.
(g) - (h) (No change.)
§181.6.Physician's Prescriptions: Delegation.
(a)
These rules shall not be interpreted to prevent, [
limit,
] or restrict a physician from treating or prescribing for the
physician's patients or from directing or instructing others under the physician's
control, supervision or instruction who assists those patients according to
specific directions, orders, instructions, or prescriptions.
(b) If a physician's directions, instructions, orders, or prescriptions are to be performed or filled by an optician who is independent of the physician's office, the directions, instructions, orders or prescriptions must be:
(1) in writing or verified under Tex. Occ. Code Section 353.1015 ;
(2) - (3) (No change.)
(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 June 15, 2007.
TRD-200702434
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board proposes new §182.9, concerning Selection of Reviewers in Cases of Utilization Review.
The new section provides that review of cases regarding the assessment and/or determination of the medical necessity of treatment will be referred to experts randomly selected from among those experts who participate in making such decisions for another individual, entity, or organization.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the new rule 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 new rule as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to provide that review of medical necessity decisions will be made by experts who are engaged in making medical necessity decisions. 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 rule 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 new rule.
§182.9.Selection of Reviewers in Cases of Utilization Review.
Any complaint alleging a violation of the standards set by the Board for procedures necessary to make a reasoned medical decision in the assessment and/or determination of the medical necessity of treatment will be referred to experts randomly selected from among those experts who participate in making such decisions for another individual, entity, or organization.
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 June 15, 2007.
TRD-200702432
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board proposes amendments to §191.4, concerning Activities and Scope of Authority.
The proposed amendment deletes the provision that allows District Review Committee (DRC) members to serve as experts for the purpose of evaluating the medical competency of physicians under investigation. The proposed amendment also establishes that DRC members are allowed to participate in mediation and requires DRC members to have the same qualifications as expert panel members; however they do not need to meet the same selection criteria.
Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously proposes the review of Chapter 191.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that, for the first five-year period the proposed 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 that DRC members are utilized appropriately and meet statutory requirements. 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 §163.0045, 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 proposal.
§191.4.Activities and Scope of Authority.
(a) - (b) (No change.)
[
(c)
After appropriate orientation
and training by the board and the disciplinary process review committee, one
of the committees, selected on a rotating basis, may be requested to review
selected investigative files for evaluation of medical practice or professional
competency and make recommendations for each investigative file to the board
or to the board's investigative staff, as may be appropriate and applicable.]
(c)
[
(d)
] After appropriate orientation
and training by the board and the disciplinary process review committee, district
review committee members may on occasion be requested by the executive director
to participate in informal settlement conferences, probationary panels,
mediation,
or perform other duties as may be assigned to committees
or committee members. Pursuant to Chapter 187 of this title, (relating to
Procedural Rules), the committee member shall make recommendations for each
investigative file.
A physician committee member who participates in
an informal settlement conference on a complaint relating to medical competency
must have the qualifications of an expert panel provided under §182.5(2)
of this title (relating to Expert Panels). A DRC member is not required to
meet the selection criteria of expert physician reviewers as set out in §182.8
of this title (relating to Expert Physician Reviewers) that requires an expert
physician reviewer be in the same specialty as a physician who is the subject
of a complaint.
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 June 15, 2007.
TRD-200702435
Donald W. Patrick, M.D.
Executive Director
Texas Medical Board
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board proposes amendments to §§194.2 - 194.6, concerning Non-Certified Radiologic Technicians.
The proposed amendments provide updates regarding the names of the Texas Medical Board and Department of State Health Services, and clarify that NCT registrations that are not renewed within 90 days will be considered expired.
Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously proposes the review of Chapter 194.
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 general cleanup of the chapter. 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.
Texas Occupations Code Annotated, §601.251, is affected by the proposal.
§194.2.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Board--The Texas
Medical Board
[
State Board
of Medical Examiners
].
(2) Non-certified technician (NCT) or registrant--A person who is registered with the board and either:
(A) is listed on the current registry with the Texas Department of
State Health Services
[
Health
] and meets one of the
following qualifications listed in clauses (i) and (ii) of this subparagraph;
(i) has completed a mandatory training program under 25 Texas Administrative Code, §143.17 (relating to Mandatory Training Programs for Non-Certified Technicians); or
(ii) if the person is licensed as a physician assistant in the State of Texas, has completed a mandatory training program under 25 Texas Administrative Code, §143.17 (relating to Mandatory Training Programs for Non-Certified Technicians) or has met the alternate training requirements under 25 Texas Administrative Code, §143.20 (relating to Alternate Training Requirements); or
(B) performs radiologic procedures for a physician to whom
a hardship exemption was granted by the Texas Department of
State Health
Services
[
Health
] within the previous year, as defined in
25 Texas Administrative Code, §143.19 (relating to Hardship Exemptions).
(3) (No change.)
§194.3.Registration.
(a) Any person in the State of Texas performing radiologic
procedures, as defined in §194.5 of this title (relating to Non-Certified
Technician's Scope of Practice), under the supervision of a current and active
licensed Texas physician, must be registered with the Texas
Medical Board
[
State Board of Medical Examiners
]. The physician must also
be registered with the board to supervise the non-certified technician.
(b) This section does not apply to registered nurses or to
persons certified by the Department of
State Health Services
[
Health
] under the Medical Radiologic Technologist Certification Act.
(c) (No change.)
(d) Applicants shall be 18 years of age or older and either:
(1) provide proof of the applicant's registry with the Texas
Department of
State Health Services
[
Health
] and meet
one of the following qualifications listed in subparagraphs (A) and (B) of
this paragraph:
(A) receive training and instruction as required in 25 Texas Administrative Code, §143.17 (relating to Mandatory Training Programs for Non-Certified Technicians); or
(B) if licensed as a physician assistant, receive training and instruction as required in 25 Texas Administrative Code, §143.17 (relating to Mandatory Training Programs for Non-Certified Technicians) or meet the alternate training requirements in 25 Texas Administrative Code, §143.20 (relating to Alternate Training Requirements); or
(2) perform radiologic procedures for a physician to whom a
hardship exemption was granted by the Texas Department of
State Health
Services
[
Health
] within the previous year under 25 Texas
Administrative Code, §143.19 (relating to Hardship Exemptions).
§194.4.Annual Renewal.
(a) Registrants shall renew the registration annually by:
(1) submitting a completed registration application;
(2) paying a fee, as specified by the board
under Chapter
175 (relating to fees, penalties, and forms)
[
, to the Texas State
Board of Medical Examiners by personal check, cashiers check or money order
]; and
(3) providing proof of the registrant's renewal of status on
the Texas Department of
State Health Services
[
Health
]
registry or that the registrant is working under a physician hardship exemption,
if applicable.
(b) If the registrant fails to comply with subsection (a) of this section on or before the expiration date of the registration, the following penalties as shown in paragraphs (1) and (2) of this subsection will be imposed:
(1) one to 90 days late--
penalty fee set under Section
175.3(4) (related to penalties for non-certified radiologic technicians)
[
$25 plus the required annual registration fee
];
(2) over 90 days late the registrant may not renew his or her
registration, and the registration will be
considered expired,
[
submitted to the board for cancellation
] unless an investigation is
pending. The registrant must submit a new application and comply with the
requirements and procedures for obtaining a permit.
(c) - (d) (No change.)
§194.5.Non-Certified Technician's Scope of Practice.
(a) A registrant may only perform the following radiologic procedures, as listed in paragraphs (1) and (2) of this subsection unless otherwise expressly permitted by statute or rule:
(1) bone densitometry utilizing a dual energy x-ray densitometer; or
(2) chest, spine, extremities, abdomen, skull studies or other
radiologic procedures utilizing standard film or film screen combinations
and an x-ray tube that is stationary at the time of exposure; however, a registrant
may not perform a procedure which has been identified as dangerous or hazardous
by the Texas Department of
State Health Services
[
Health
]
in 25 TAC §143.16 (Dangerous or Hazardous Procedures).
(b) - (c) (No change.)
(d) All registrants must comply with the safety rules of the
Texas Department of
State Health Services
[
Health
] relating
to the control of radiation as set forth in the Texas Regulations for the
Control of Radiation, 25 TAC Chapter 289.
§194.6.Suspension, Revocation or Nonrenewal of Registration.
(a) The board may refuse to issue a registration to an applicant and may, following notice of hearing and a hearing as provided for in the Administrative Procedure Act, take disciplinary action against any non-certified technician who:
(1) violates the Medical Practice Act, the rules of the Texas
Medical Board
[
State Board of Medical Examiners
], an order
of the board previously entered in a disciplinary proceeding, or an order
to comply with a subpoena issued by the board;
(2) violates the Medical Radiologic Technologist Certification
Act or the rules promulgated by the Texas Department of
State Health
Services
[
Health
];
(3) violates the rules of the Texas Department of
State
Health Services
[
Health
] for control of radiation;
(4) - (10) (No change.)
(b) (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 June 15, 2007.
TRD-200702436
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board proposes amendments to §§197.1 - 197.4, concerning Emergency Medical Service.
The proposed amendments provide updates regarding the names of the Texas Medical Board and Department of State Health Services, require that EMS medical directors report to the board the names and license numbers of all emergency medical personnel who work under a medical director's supervision, and remove the requirement that on-line physicians be familiar with the capabilities of the prehospital providers, as well as local EMS operational policies and regional critical care referral protocols.
Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously proposes the review of Chapter 197.
Robert D. Simpson, General Counsel, Texas Medical Board, has determined that, for the first five-year period the proposed 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 general cleanup of the chapter and affirms that EMS medical directors are responsible for those under their supervision. 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 and §157.003, 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.
Texas Health and Safety Code, Chapter 773, is affected by the proposal.
§197.1.Purpose.
(a)
The purpose of this chapter is to facilitate
the most appropriate utilization of the skills of physicians who delegate
health care tasks to qualified emergency medical
services
[
service
] (EMS)
personnel
[
technicians
]. Such delegation
shall be consistent with the patient's health and welfare and shall be undertaken
pursuant to supervisory guidelines, which take into account the skill, training,
and experience of both physicians and EMS
personnel
[
technicians
].
(b) This chapter addresses :
(1) the qualifications, responsibilities, and authority of physicians who provide medical direction and/or supervision of prehospital care by EMS personnel;
(2) the qualifications, authority, and responsibilities of physicians who serve as medical directors (off-line);
(3) the relationship of EMS providers to the off-line medical director;
(4) components of on-line medical direction (direct medical control), including the qualifications and responsibilities of physicians who provide on-line medical direction and the relationship of prehospital providers to those physicians; and
(5) the responsibility of EMS personnel to private and intervenor physicians.
(c)
This chapter is not intended, and shall not
be construed to restrict a physician from delegating administrative and technical
or clinical tasks not involving the exercise of independent medical judgment
to those specially trained individuals instructed and directed by a licensed
physician who accepts responsibility for the acts of such allied health personnel.
Likewise, nothing in this chapter shall be construed to prohibit a physician
from instructing a technician, assistant, or other employee, who is not among
the classes of EMS
personnel
[
technicians
], as defined
in §197.2 of this title (relating to Definitions), to perform delegated
tasks so long as the physician retains supervision and control of the technician,
assistant, or employee.
(d) Nothing in this chapter shall be construed to relieve the supervising physician of the professional or legal responsibility for the care and treatment of his or her patients. A physician who, after agreeing to supervise EMS personnel, fails to do so adequately and properly, may be subject to disciplinary action pursuant to the Medical Practice Act.
(e) Implementation of this chapter will enhance the ability of EMS systems to assure adequate medical direction of all advanced prehospital providers and many basic level providers, as well as compliance by personnel and facilities with minimum criteria to implement medical direction of prehospital services. A medical director shall not be held responsible for noncompliance with this chapter if the EMS administration fails to provide the necessary administrative support to permit compliance with the provisions of this chapter.
§197.2.Definitions.
The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
(1) - (2) (No change.)
(3) Board--The Texas
Medical Board
[
State Board
of Medical Examiners
].
(4) - (5) (No change.)
(6) Emergency medical services personnel--Those individuals
certified or licensed by the Texas Department of
State Health Services
(DSHS)
[
Health (TDH)
] to provide emergency medical care.
(7) - (9) (No change.)
(10) Prehospital providers--All
DSHS
[
TDH
]
certified or licensed personnel providing medical care in an out-of-hospital
environment.
(11) - (12) (No change.)
§197.3.Off-line Medical Director.
(a) An off-line medical director shall be:
(1) a physician licensed to practice in Texas and shall be
registered as an EMS medical director with the Texas Department of
State
Health Services
[
Health
];
(2) - (7) (No change.)
(b) The off-line medical director shall be required to :
(1) - (2) (No change.)
(3) establish and monitor compliance with training guidelines
which meet or exceed the minimum standards set forth in the Texas Department
of
State Health Services
[
Health
] EMS certification
regulations;
(4) - (7) (No change.)
(8) develop a letter or agreement or contract between the medical
director(s) and the EMS administration outlining the specific responsibilities
and authority of each. The agreement should describe the process or procedure
by which a medical director may withdraw responsibility for EMS personnel
for noncompliance with the Emergency Medical
Services
[
Service
] Act, the Health and Safety Code, Chapter 773, the rules adopted in
this chapter, and/or accepted medical standards;
(9) - (12) (No change.)
(13) establish criteria for selection of a patient's destination;
[
and
]
(14) develop and implement a comprehensive mechanism for management
of patient care incidents, including patient complaints, allegations of substandard
care, and deviations from established protocols and patient care standards
; and
[
.
]
(15) report to the board the names of and license numbers of all emergency medical services personnel under the medical director's supervision.
§197.4.On-Line Medical Direction.
(a) - (b) (No change.)
(c) A physician providing or delegating on-line medical direction
("on-line physician")
shall be appropriately trained in the use of prehospital
protocols[
, and shall be familiar with the capabilities of the prehospital
providers, as well as local EMS operational policies and regional critical
care referral protocols
].
(d) - (e) (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 June 15, 2007.
TRD-200702437
Donald W. Patrick, M.D., J.D.
Executive Director
Texas Medical Board
Earliest possible date of adoption: July 29, 2007
For further information, please call: (512) 305-7016