Chapter 161. GENERAL PROVISIONS
The Texas Medical Board (Board) adopts amendments to §161.7, concerning Executive Director, without changes to the proposed text as published in the December 21, 2007, issue of the Texas Register (32 TexReg 9510) and will not be republished.
The amendments authorize the Executive Director to delegate responsibilities and authority to other staff members.
Prior to publishing the proposed amendments, the Board sought stakeholder input through Stakeholder Groups, which made comments on the suggested changes to the rules at a meeting held on October 24, 2007. The comments were incorporated into the published proposed rules.
The Board received no public written comments and no one appeared to testify at the public hearing held on February 8, 2008.
The amendments are adopted under the authority of the Texas Occupations Code Annotated, §153.001 and §154.006, which provide 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.
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 February 25, 2008.
TRD-200801100
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Effective date: March 16, 2008
Proposal publication date: December 21, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board (Board) adopts amendments to §166.4, concerning Expired Registration Permits, without changes to the proposed text as published in the December 21, 2007, issue of the Texas Register (32 TexReg 9511) and will not be republished.
The amendments interpret §156.005, Texas Occupations Code, as providing an exclusive penalty for practicing medicine after the expiration of a permit and within one year.
Prior to publishing the proposed amendments, the Board sought stakeholder input through Stakeholder Groups, which made comments on the suggested changes to the rules at a meeting held on October 24, 2007. The comments were incorporated into the published proposed rules.
The Board received no public written comments and no one appeared to testify at the public hearing held on February 8, 2008.
The amendments are adopted under the authority of the Texas Occupations Code Annotated, §153.001 and §154.006, which provide 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.
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 February 25, 2008.
TRD-200801101
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Effective date: March 16, 2008
Proposal publication date: December 21, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board (Board) adopts amendments to §§167.1, 167.3, and 167.8, and the repeal and replacement of §167.4, and §167.5, concerning Reinstatement and Reissuance, without changes to the proposed text as published in the December 21, 2007, issue of the Texas Register (32 TexReg 9512) and will not be republished.
The amendments to Chapter 167 amend the process for the application for the request for reissuance of a revoked license and add the requirement that a physician who wishes to have an active medical license after his license has been revoked or suspended must also demonstrate that his service would benefit the citizens of Texas.
Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously adopts the rule review of Chapter 167, Reinstatement and Reissuance.
Prior to publishing the proposed amendments, the Board sought stakeholder input through Stakeholder Groups, which made comments on the suggested changes to the rules at a meeting held on October 24, 2007. The comments were incorporated into the published proposed rules.
The Board received no public written comments and no one appeared to testify at the public hearing held on February 8, 2008.
The amendments are adopted under the authority of the Texas Occupations Code Annotated, §153.001 and §154.006, which provide 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.
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 February 25, 2008.
TRD-200801102
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Effective date: March 16, 2008
Proposal publication date: December 21, 2007
For further information, please call: (512) 305-7016
The repeals are adopted under the authority of the Texas Occupations Code Annotated, §153.001 and §154.006, which provide 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.
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 February 25, 2008.
TRD-200801103
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Effective date: March 16, 2008
Proposal publication date: December 21, 2007
For further information, please call: (512) 305-7016
The new sections are adopted under the authority of the Texas Occupations Code Annotated, §153.001 and §154.006, which provide 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.
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 February 25, 2008.
TRD-200801104
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Effective date: March 16, 2008
Proposal publication date: December 21, 2007
For further information, please call: (512) 305-7016
The Texas Medical Board (Board) adopts amendments to §175.1, concerning Application Fees, without changes to the proposed text as published in the September 7, 2007, issue of the Texas Register (32 TexReg 5956) and will not be republished.
The adopted amendment increases fees in accordance with contingency revenue riders and the requirement to produce additional revenue for implementation of S.B. 29, S.B. 1731, and salary increases in H.B. 1.
Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously adopts the rule review of Chapter 175, Fees, Penalties and Forms.
Prior to publishing the proposed amendments, the Board sought stakeholder input through Stakeholder Groups, which made comments on the suggested changes to the rules at a meeting held on October 24, 2007. The comments were incorporated into the published proposed rules.
The Board received no public written comments; and no one appeared to testify at the public hearing held on February 8, 2008.
The amendment is adopted under the authority of the Texas Occupations Code Annotated, §153.001 and §154.006, which provide 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.
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 February 25, 2008.
TRD-200801105
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Effective date: March 16, 2008
Proposal publication date: September 7, 2007
For further information, please call: (512) 305-7016
22 TAC §§177.1, 177.3, 177.4, 177.6, 177.9, 177.13
The Texas Medical Board (Board) adopts amendments to §§177.1, 177.3, 177.4, 177.6, 177.9, and 177.13, concerning Certification of Non-Profit Health Organizations, without changes to the proposed text as published in the December 21, 2007, issue of the Texas Register (32 TexReg 9514) and will not be republished.
The adopted amendments update the name of the Texas Medical Board, amends statutory references to the Business Organizations Code, corrects citations to other provisions in the Board's rules, and updates the Form for complaint notification.
Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously adopts the rule review of Chapter 177, Certification of Non-Profit Health Organizations.
Prior to publishing the proposed amendments, the Board sought stakeholder input through Stakeholder Groups, which made comments on the suggested changes to the rules at a meeting held on October 24, 2007. The comments were incorporated into the published proposed rules.
The Board received no public written comments; and no one appeared to testify at the public hearing held on February 8, 2008.
The amendments are adopted under the authority of the Texas Occupations Code Annotated, §153.001 and §154.006, which provide 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.
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 February 25, 2008.
TRD-200801106
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Effective date: March 16, 2008
Proposal publication date: December 21, 2007
For further information, please call: (512) 305-7016
Subchapter H. IMPOSITION OF ADMINISTRATIVE PENALTY
The Texas Medical Board (Board or TMB) adopts new rules to be included in a new Subchapter H, Chapter 187, to include §§187.75 (Purposes and Construction); 187.76 (Notice of Intention to Impose Administrative Penalty; Response); 187.77 (Payment of the Administrative Penalty); 187.78 (Written Response); 187.79 (Personal Appearance at an Informal Meeting); 187.80 (Imposition of Administrative Penalty); 187.81 (Reports of Imposition of Administrative Penalty); and 187.82 (Unpaid Administrative Penalties). New §§187.75 - 187.81 are adopted with changes to the proposed text as published in the December 21, 2007, issue of the Texas Register (32 TexReg 9517) and will be republished. Section 187.82 is adopted without changes and will not be republished.
The new rules provide that the board may impose an administrative penalty, in accordance with the provision of §165.001, et seq., Occ. Code, and set forth the procedure for notification of intention to impose administrative penalty, for opportunity to provide a written response or request a personal appearance at an informal meeting, for notice of the right to judicial review of the imposition of the administrative penalty, for reports to the National Practitioner Data Bank and in Board newsletters, and for required payment of administrative penalties before a licensee's registration may be renewed.
The Board received comments regarding the proposed new rules from Austin Heart and the Texas Medical Association (TMA).
Comment No. 1. Both Austin Heart and TMA commented that the 14-day notice of intention to impose an administrative penalty, as originally proposed, should be increased to 30 days.
Response: The Board notes that only 10-days notice is required for a contested case hearing under the Administrative Procedure Act, §2001.051(1), Gov't Code. The 14-day notice, as provided in the proposed rules as originally published, exceeded this requirement. However, in an effort to provide even more notice and opportunity to respond, the Board has revised §187.79 to allow 30 days from the date the Board sends notice of intention to impose administrative penalty for the licensee to request a personal appearance at an informal meeting. Furthermore, under the revision, the Board cannot take action to impose an administrative penalty until the next regular meeting after 30 days after the notice is sent. Thus, a written response will be accepted and considered up until that next regular meeting, which may be as much as 90 days after the notice is sent. The Board believes that this revision will satisfy the concerns expressed by this comment.
Comment No. 2. The TMA commented that the rules should set forth the detail of the notice of intention to impose administrative penalty, which should be specific and unambiguous.
Response: The Board has responded to this comment by revising §187.76 to include a new subsection (b), which provides that the notice shall include, at a minimum, information regarding the allegations, based on information then available, to allow the licensee to prepare a response; deadlines for a response and the consequences of failing to meet such deadlines; the consequences of paying a proposed administrative penalty, including the fact that payment will constitute a public record; the licensee's right to submit a written response or request a personal appearance; a description of the procedural process for consideration of a written response or request for personal appearance; and the name and contact information for an employee who can provide further information. The Board provided a draft of this revision to the Commenter before adoption; and the Commenter responded that: "TMA supports provision of a detailed notice as outlined in the regulation." The Board believes that this revision satisfies the concerns expressed by this comment.
Comment No. 3. The TMA commented that it strongly supports a provision stating that a prompt response to an allegation will provide an opportunity that an investigation will not be opened.
Response: The Board has responded to this comment by revising §187.76 by adding a new subsection (d). It was the intent of the originally published proposed rule to provide this opportunity through the 14-day required response time. By extending the response time to 30 days, the Board intends to clarify its intent that no investigation should be opened if an adequate response is received in time for the Board to dismiss the complaint under the provisions of §157.057(b), Occ. Code. The Board believes that this revision will satisfy the concerns expressed by this comment.
Comment No. 4. The TMA commented that a prompt response within 30 days after the complaint has been received by the Board depends largely upon the rapid action of TMB staff in forwarding the allegation to the licensee. The Commenter urged the Board to place in the regulation a time frame within which TMB staff must forward the notice.
Response: The Board disagrees with this comment. The Board intends that the notice shall be sent as soon as practicable after the complaint is received, affording the licensee with at least 14 days to file a written response that can be a basis for determining that a complaint should not be filed and no investigation should be opened. This was the basis for the 14-day deadline provided in the proposed rule as originally published. The Board believes that the current practice for notice of a complaint allows for a prompt response. Notice of intention to impose an administrative penalty should be sent at least as quickly as notices are now being sent, so such a provision is not necessary. Moreover, such a requirement could interfere with the simplicity and efficiency of the process of imposing an administrative penalty. Therefore, the Board has not made any revisions to the rule as originally published that would implement this comment.
Comment No. 5. The TMA commented that it strongly supports the ability of a physician to request an informal meeting before a member of the TMB or its District Review Committee to contest allegations, as contained in the proposed regulation.
Response: The Board has responded to this comment by retaining the right of a licensee to request an informal meeting in the revision to §187.79 of the new rules.
Comment No. 6. The TMA commented that the notice of intention to impose administrative penalty be sent by certified mail, return receipt requested, to validate the timeframe applicable to a particular physician.
Response: Response to Comment No. 2. The Board disagrees with this comment. The cost of sending notices of complaints and disciplinary action by certified mail, return receipt requested, would be substantial. The fiscal impact to the Board cannot be assumed in light of current appropriations for operations of the agency. Furthermore, certified mail, return receipt requested, does not guarantee delivery and would provide an opportunity for licensees to avoid notice simply by failing to accept the certified mail. For these reasons, the Board does not believe that any changes should be made to the rules as published. The Board has adopted the revisions to the new rules with no change regarding this comment.
Comment No. 7. The TMA commented that the calculation of the licensee's response to the Board's notice should be conditioned upon the postmark of the document and not the receipt of the response by the TMB.
Response: The Board disagrees with this comment. The purpose of these new rules is to provide for a simple, efficient, and expedited procedure for handling complaints of administrative violations of the Medical Practice Act. The Board has accepted the comment to extend the notice period from 14 days to 30 days. Calculating the response time based on the postmark, rather than the date received by the Board, would further extend the time for handling these administrative violations and would interfere with the simplicity of the procedure, the efficiencies gained from the procedure, and an expeditious resolution of the complaint. For these reasons, the Board does not believe that any changes should be made to the rules as published. The Board has adopted the revisions to the new rules with no change regarding this comment.
Comment No. 8. The TMA commented that TMB should have the discretion to waive the deadlines for a response for good cause.
Response: The Board disagrees with this comment. Such discretion would insert an element of subjectivity into a procedure that is designed to be simple, efficient, and expeditious. A requirement to make a discretionary decision would interfere with the efficiencies necessary for this procedure to benefit the licensees and the agency. By extending the deadline from 14 days to 30 days, as requested by the Commenter (far exceeding the 10-day requirement of the Administrative Procedure Act), the Board believes that a reasonable response time has been allowed. Furthermore, a written response will be considered at any time before the Board takes action to impose an administrative penalty. Since the revised rule provides that the Board cannot take action to impose an administrative penalty until the next regular meeting of the board after the expiration of 30 days after the notice of intention to impose administrative penalty is sent to the licensee, a written response in many cases will be received by the Board and considered weeks or months after the 30-day deadline. While the deadline for requesting a personal appearance will be a strict deadline, the facts that the Board has extended the time from 14 days to 30 days and that the licensee may still submit a written response, are considered to be a reasonable accommodation of the concerns raised by this comment.
Comment No. 9. The TMA commented that the proposed rules, as originally published, could be interpreted to allow for the imposition of an administrative penalty for violations that are designated aggravated administrative violations in 22 TAC §190.14.
Response: The Board has responded to this comment by revising §187.75 to specifically exclude aggravated administrative violations. This comment stated what the Board intended originally, and the revision clarifies that intent. The Board believes that this revision will satisfy the concerns expressed by this comment.
Comment No. 10. The TMA commented that §187.77, as originally published, would violate §164.0025, Occ. Code.
Response: The Board has responded to this comment by revising §187.77, to require that any payment of an administrative violation must be presented to the Board at the next regular meeting for approval. This was an unintentional drafting error, and the Board appreciates the Commenter's constructive criticism. The Board believes that this revision will satisfy the concerns expressed by this comment.
Comment No. 11. The TMA commented that the regulation should clarify whether "board representatives" means board members or board staff.
Response: The Board notes that the reference to "board representatives," as originally published, referred to §164.004(a)(2), Occ. Code, which has consistently been applied by the Board to mean members of the Board or the District Review Committee. Furthermore, the proposed §187.79(b), as originally published, provided that an informal meeting would be held under the procedures set forth in 22 TAC §187.17, which provides that one Board representative must be a "public member," and one Board representative must be a "physician member." The proposed rule, as originally published, further provided that the requirement for two or more Board representatives does not apply and that "there may be one or more board representatives at the informal meeting, who may be either a physician or public member of the Board." The Board has revised this provision to include members of the District Review Committee. Therefore, the Board believes that, as revised, the proposed rule is clear that any Board representative must be a member of the Board or a member of the District Review Committee. The Board believes that the revision will satisfy the concerns expressed by this comment.
Comment No. 12. The TMA commented that it strongly supports the notion that the newsletter and press release will not contain the names of physicians subject to the penalties outlined by this regulation. They stated that such publication is an unnecessary additional punishment on the licensee.
Response: The Board has responded to this comment by retaining the provision in §187.81 in the revision to the new rules.
Comment No. 13. The TMA commented that the regulation should contain an express statement that information and proposed action are confidential.
Response: The Board has responded to this comment by revising §187.81 to include a new subsection (c), which specifically states that the complaint, Notice of Intention to Impose An Administrative Penalty, a written response or request for personal appearance by the licensee, any information provided to any and report of a panel or board representatives of the DPRC, shall remain confidential. The Board believes that this revision will satisfy the concerns expressed by this comment.
No one appeared to testify at the public hearing held on February 8, 2008.
The new rules are adopted 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. The new rules are further adopted under the authority of §165.002, which provides that the Board by rule shall prescribe the procedure by which the Board may impose an administrative penalty.
§187.75.Purposes and Construction.
The purpose of this subchapter is to set forth a procedure for the imposition of an administrative penalty as provided in Chapter 165, Subchapter A (§165.001, et seq.) of the Act, for violations identified in §190.14 of this title (relating to Disciplinary Sanction Guidelines) as administrative violations, but not including aggravated administrative violations.
§187.76.Notice of Intention to Impose Administrative Penalty; Response.
(a) Before an administrative penalty is imposed, the board will provide a licensee who is alleged to have committed an administrative violation with a notice of the allegations regarding an administrative violation and the amount of a proposed administrative penalty.
(b) The Notice shall include, at a minimum:
(1) information regarding the allegations, based on information then available, to allow the licensee to prepare a response;
(2) deadlines for a response and the consequences of failing to meet such deadlines;
(3) the consequences of paying a proposed administrative penalty, including the fact that payment will constitute a public record;
(4) the licensee's right to submit a written response or request a personal appearance;
(5) a description of the procedural process for consideration of a written response or request for a personal appearance;
(6) the name and contact information for an employee who can provide further information.
(c) The licensee may respond to the notice as follows:
(1) The licensee may pay the proposed administrative penalty;
(2) The licensee may provide a written response to the board; or
(3) The licensee may request a personal appearance at an informal meeting.
(d) If the licensee submits a written response within 30 days after the complaint is received by the board, board staff may determine that the complaint should not be filed and no investigation opened. Because the board is limited to 30 days for the preliminary investigation, pursuant to §157.057(b), Occupations Code, no extensions may be granted to this deadline.
§187.77.Payment of the Administrative Penalty.
If the licensee pays the administrative penalty, the payment shall be acknowledged on a copy of the notice, which shall constitute an agreed imposition of the administrative penalty. A report of the payments upon notice of intention to impose administrative penalties shall be made to the board at the next regular meeting for approval.
§187.78.Written Response.
If, at any time prior to the imposition of an administrative penalty, the licensee submits a written response without a request for a personal appearance at an informal meeting, the allegations and the written response shall be submitted to the Disciplinary Process Review Committee of the board ("DPRC") at the next regular meeting. The action of the DPRC shall be submitted to the Board for approval.
§187.79.Personal Appearance at an Informal Meeting.
(a) If, within 30 days after the Notice of Intention to Impose Administrative Penalty is sent to the licensee, the licensee submits a request for personal appearance at an informal meeting, an informal meeting shall be scheduled in accordance with §164.004(a)(2) of the Act before one or more board representatives.
(b) An informal meeting under this Subchapter may consider only dismissal of the matter or the imposition of an administrative penalty. The board representatives may not consider revocation, suspension, or any other sanction. The provisions of §187.18 of this title (relating to Informal Show Compliance Proceeding and Settlement Conference Based on Personal Appearance) shall apply to the informal meeting, except that there may be one or more board representatives at the informal meeting, who may be either a physician or public member of the Board or District Review Committee.
(c) The recommendation of the board representative(s) to impose the administrative penalty or to dismiss the allegations shall be referred to the DPRC at the next regular meeting. The action of the DPRC shall be submitted to the Board for approval.
§187.80.Imposition of Administrative Penalty.
(a) The board may enter an order imposing an administrative penalty in accordance with §165.004 of the Act at the next regular meeting of the board after the expiration of 30 days after Notice of Intention to Impose Administrative Penalty is sent to the licensee if:
(1) the licensee has failed to respond to the notice; or
(2) the DPRC has approved the imposition of an administrative penalty.
(b) Upon imposition of an administrative penalty, the board shall notify the licensee of the board's order. The notice shall include a statement of the right of the licensee to judicial review of the order, in accordance with §165.005 of the Act.
(c) If the licensee pursues judicial review of the order, the administrative record shall include the Notice of Intention to Impose Administrative Penalty, any written response provided by the licensee, any documents reviewed by board representatives at an informal meeting, the recommendation of the board representative(s), any documents considered by the DPRC, the minutes of the DPRC, the minutes of the board imposing an administrative penalty, and the order imposing an administrative penalty.
(d) An administrative penalty imposed by the board shall be due and payable to the board within 60 days after the licensee receives notice of the board's order.
§187.81.Reports of Imposition of Administrative Penalty.
(a) An imposition of an administrative penalty shall be a public record.
(b) The imposition of an administrative penalty shall not be considered a restriction or limitation on the license of the licensee and shall not be reported to the National Practitioner Data Bank. The board's newsletter and any press release shall include only the number of administrative penalties imposed.
(c) The complaint, Notice of Intention to Impose an Administrative Penalty, a written response or request for personal appearance by the licensee, any information provided to and any report of a panel of board representatives or the DPRC, shall remain confidential, in accordance with §164.007(c), Occupations Code.
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 February 25, 2008.
TRD-200801107
Donald W. Patrick, MD, JD
Executive Director
Texas Medical Board
Effective date: March 16, 2008
Proposal publication date: December 21, 2007
For further information, please call: (512) 305-7016