Part 9. TEXAS MEDICAL BOARD

Chapter 161. GENERAL PROVISIONS

22 TAC §161.6, §161.8

The Texas Medical Board proposes amendments to §161.6, Committees of the Board, and §161.8, Deputy Executive Director.

The amendment to §161.6 updates the duties of the Licensure Committee. The amendment to §161.8 updates name of Deputy Executive Director to Chief of Staff.

Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously proposes the rule review of Chapter 161.

Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the sections are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the rules as proposed.

Mr. Simpson also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to conform the rule to current practice for clarification.

There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.

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

No other statutes, articles or codes are affected by the proposal.

§161.6.Committees of the Board.

(a) (No change.)

(b) The following are standing and permanent committees of the board. The responsibilities and authority of these committees shall include the following duties and powers, and other responsibilities and charges that the board may from time to time delegate to these committees.

(1) - (4) (No change.)

(5) Licensure Committee:

(A) - (I) (No change.)

(J) review applications for acupuncture licensure recommended by the Texas State Board of Acupuncture Examiners and for applicants that hold licenses in other states that have licensure requirements that are substantially equivalent to those of this state, make determinations of eligibility, and report to the board its recommendations;

[(K) review applications for approval and certification of non-profit health organizations pursuant to the Medical Practice Act;]

[(L) review applications and reports for continued approval and certification of non-profit health organizations pursuant to the Medical Practice Act;]

(K) [(M)] review applications and make initial determinations and recommendations to the board regarding approval, denial, revocation, decertification, or continued approval and certification of non-profit health organizations pursuant to the Medical Practice Act;

(L) [(N)] develop and review board rules regarding all persons and entities subject to the Board's jurisdiction [non-profit health organizations], and make recommendations to the board regarding changes or implementation of such rules; [and]

(M) review applications for surgical assistant licensure, make determinations, of eligibility, and report to the board its recommendations; and

(N) [(O)] make recommendations to the board regarding matters brought to the attention of the licensure committee.

(6) - (8) (No change.)

(c) (No change.)

§161.8. Chief of Staff [ Deputy Executive Director ].

(a) The executive director may determine qualifications for and employ a chief of staff [deputy executive director ] who shall be responsible for the administrative operations of the agency and the performance of other duties as assigned by the executive director.

(b) Unless the board assigns duties or prerogatives exclusively to the executive director, the chief of staff [deputy executive director ] may exercise any responsibilities or authority of the executive director except for medical director duties.

(c) The chief of staff [deputy executivedirector ] acts under the supervision and at the direction of the executive director.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802092

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

22 TAC §§163.4 - 163.6, 163.10, 163.11

The Texas Medical Board proposes amendments to §163.4, Procedural Rules for Licensure Applicants, §163.5, Licensure Documentation, §163.6, Examinations Accepted for Licensure, §163.10, Relicensure, and §163.11, Active Practice of Medicine.

The amendment to §163.4 limits the Executive Director to determining applicants ineligible to be based on specific statutory or rule provisions. The amendment to §163.5 clarifies when an applicant must submit documentation regarding inpatient treatment, and updates language regarding alcohol/substance disorder and physical illness that did or could have impaired an applicant's ability to practice medicine. The amendment to §163.6 updates three-Attempt limit to conform to statutory requirements adopted by the Legislature in 2007. The amendment to §163.10 updates requirements to conform to previous rule changes to require that jurisprudence Examination be taken only once. The amendment to §163.11 deletes "passage of SPEX examination" as a stated remedy for applicants who cannot demonstrate that they have been in the active practice of medicine.

Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously proposes the rule review of Chapter 163.

Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the sections are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the rules as proposed will be none.

Mr. Simpson also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to conform this rule to rules previously adopted and provide efficiency at the agency and convenience for applicants by requiring that the Jurisprudence Examination be taken only once; avoid confusion by applicants who have not understood that the passage of the SPEX examination must be approved by the agency as a remedy and clarify the rule to conform with the actual practice; provide clarification and conform the rule to actual practice; and conform the rule to statutory changes adopted by the Legislature and clarify the three-attempt rule in accordance with current practice.

There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.

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

No other statutes, articles or codes are affected by the proposal.

§163.4.Procedural Rules for Licensure Applicants.

(a) - (d) (No change.)

(e) If the Executive Director determines that the applicant does not clearly meet all licensing requirements, a license may be issued only upon action by the board following a recommendation by the Licensure Committee, in accordance with §155.007 of the Act (relating to Application Process) and §187.13 of this title (relating to Informal Board Proceedings Relating to Licensure Eligibility).

(f) If the Executive Director determines that the applicant is ineligible for licensure based on one or more of the statutory or regulatory provisions listed in paragraphs (1) - (5) of this subsection [for one or more reasons], the applicant may appeal that decision to the Licensure Committee before completing other licensure requirements for a determination by the Committee solely regarding issues raised by the determination of ineligibility. If the Committee overrules the determination of the Executive Director, the applicant may then provide additional information to complete the application, which must be analyzed by board staff and approved before a license may be issued. Grounds for ineligibility under this subsection include noncompliance with the following:

(1) Section 155.003(a)(1) of the Act that requires the applicant to be 21 years of age;

(2) Section 155.003(b) and (c) of the Act that require that medical or osteopathic medical education received by an applicant must be accredited by an accrediting body officially recognized by the United States Department of Education, or meet certain other requirements, as more fully set forth in §§163.4(a)(8), 163.5(b)(11), 163.5(c)(2)(C), 163.5(c)(2)(D), and 163.1(12)(B)(iii) and (iv) of this chapter;

(3) Sections 155.051 - 155.0511, and 155.056 of the Act that relates to required licensure examinations and examination attempts;

(4) Section 163.7 of this chapter relating to the Ten Year Rule; and

(5) Section 163.6(e) of this chapter that requires passage of the Jurisprudence Examination within three attempts,

§163.5.Licensure Documentation.

(a) - (c) (No change.)

(d) Applicants may be required to submit other documentation, which may include the following:

(1) - (3) (No change.)

(4) Inpatient Treatment for Alcohol/Substance Disorder [Abuse] or Physical or Mental Illness. Each applicant who has been admitted to an inpatient facility within the last five years for the treatment of alcohol/substance disorder [abuse ] or mental illness (recurrent or severe major depressive disorder, bipolar disorder, schizophrenia, schizoaffective disorder, or any severe personality disorder), or a physical illness that did or could have impaired the applicant's ability to practice medicine, shall submit documentation to include items listed in subparagraphs (A) - (D) of this paragraph. An inpatient facility shall include a hospital, ambulatory surgical center, nursing home, and rehabilitation facility. [, but not limited to:]

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

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

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

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

(5) Outpatient Treatment for Alcohol/Substance Disorder [Abuse ] or Mental Illness. Each applicant who has been treated on an outpatient basis within the last five years for alcohol/substance disorder [abuse] or mental illness (recurrent or severe major depressive disorder, bipolar disorder, schizophrenia, schizoaffective disorder, or any severe personality disorder), or a physical illness that did or could have impaired the applicant's ability to practice medicine, shall submit documentation to include, but not limited to:

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

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

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

(6) - (9) (No change.)

(e) (No change.)

§163.6.Examinations Accepted for Licensure.

(a) (No change.)

(b) Examination Attempt Limit [Three-Attempt Limit].

(1) An applicant must pass each part of an examination listed in subsection (a) of this section within three attempts. An applicant who attempts more than one type of examination must pass each part of at least one examination and shall not be allowed to combine parts of different types of examination. Attempts at a comparable part of a different type of examination shall be counted against the three-attempt limit.

(2) Notwithstanding paragraph (1) of this subsection, an applicant who, on September 1, 2005, held a Texas physician-in-training permit issued under §155.105 of the Act or had an application for that permit pending before the board must pass each part of the examination within three attempts, except that, if the applicant has passed all but one part of the examination within three attempts, the applicant may take the remaining part of the examination one additional time. However, an applicant is considered to have satisfied the requirements of this subsection if the applicant:

(A) passed all but one part of the examination approved by the board within three attempts and passed the remaining part of the examination within six attempts;

(B) is specialty board certified by a specialty board that:

(i) is a member of the American Board of Medical Specialties; or

(ii) is approved by the American Osteopathic Association; and

(iii) has completed in this state an additional two years of postgraduate medical training approved by the board.

(3) The limitation on examination attempts by an applicant under paragraph (1) of this subsection does not apply to an applicant who:

(A) is licensed and in good standing as a physician in another state;

(B) has been licensed for at least five years;

(C) does not hold a medical license in the other state that has any restrictions, disciplinary orders, or probation; and

(D) passed all but one part of the examination approved by the board within three attempts and:

(i) passed the remaining part of the examination within one additional attempt; or

(ii) passed the remaining part of the examination within six attempts if the applicant:

(I) is specialty board certified by a specialty board that:

(-a-) is a member of the American Board of Medical Specialties; or

(-b-) is approved by the American Osteopathic Association; and

(II) has completed in this state an additional two years of postgraduate medical training approved by the board.

(c) - (e) (No change.)

§163.10.Relicensure.

(a) Application for Relicensure. If a physician's license has been automatically cancelled due to failure to submit a complete registration application and registration fee, the physician must apply for relicensure and may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.

[(b) Exemption from Jurisprudence Examination. A person may qualify for a new license without having to take the Texas jurisprudence examination if that person's license has been canceled for less than two years.]

(b) [(c)] Existing Board Orders at Time of Cancellation.

(1) A physician who allows his or her license to be canceled following nonpayment while under an order of the board may apply for relicensure. Unless otherwise provided, the terms of the order shall be tolled for the period following cancellation.

(2) The licensee shall be required to comply with the terms of the order for either the period of time remaining on the order when the licensee had his or her license canceled for nonpayment of licensure fees or for an extended period of time as established by the board at the time of relicensure.

(3) A physician who allows his or her license to be canceled following nonpayment while under a suspension order of the board must also demonstrate that his or her return to the practice of medicine is in the physician's and the public's best interest as defined under Chapter 167 of this title (relating to Reinstatement and Reissuance).

(4) The board retains the discretion to add or delete terms and conditions of the tolled order upon the granting of relicensure.

§163.11.Active Practice of Medicine.

(a) - (b) (No change.)

(c) Applicants who do not meet the requirements of subsections (a) and (b) of this section may, in the discretion of the executive director or board, be eligible for an unrestricted license or a restricted license subject to one or more of the following conditions or restrictions:

(1) current certification or recertification by the American Board of Medical Specialties or Bureau of Osteopathic Specialists obtained by passing a monitored specialty certification or recertification examination or formal evaluation;

[(2) passage of the SPEX examination;]

(2) [(3)] limitation of the practice of the applicant to specified activities of medicine and/or exclusion of specified activities of medicine;

(3) [(4)] remedial education, including but not limited to a mini-residency, fellowship or other structured program;

(4) [(5)] such other remedial or restrictive conditions or requirements that, in the discretion of the board are necessary to ensure protection of the public and minimal competency of the applicant to safely practice medicine.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802093

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

22 TAC §§166.1, 166.2, 166.5, 166.6

The Texas Medical Board proposes amendments to §166.1, Physician Registration, §166.2, Continuing Medical Education, §166.5, Relicensure, and §166.6, Exemption From Registration Fee for Retired Physician Providing Voluntary Charity Care.

The amendment to §166.1 updates rule to conform with biennial registration. The amendment to §166.2 updates rule to conform with biennial registration and updates reference to Disciplinary Guidelines, Chapter 190. The amendment to §166.5 clarifies that relicensure is required in the case of either Relinquishment or Voluntary Surrender of a License. The amendment to §166.6 updates rule to conform with biennial registration.

Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously proposes the rule review of Chapter 166.

Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the sections are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the rules as proposed.

Mr. Simpson also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to provide clarity by: conforming the rule to the change to biennial registration; updating references to other rules; and specifying that a relicensure application is required after both a relinquishment or voluntary surrender of a license.

There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.

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

No other statutes, articles or codes are affected by the proposal.

§166.1.Physician Registration.

(a) - (d) (No change.)

(e) All permits issued to license holders arevalid [ that expire on or after January 1, 2006 shall remain in effect ] for two-year periods.

§166.2.Continuing Medical Education.

(a) As a prerequisite to the registration of a physician's permit a physician must complete 48 [24] hours of continuing medical education (CME) every 24 [12] months. CME hours must be completed in the following categories:

(1) At least 24 [12] hours every 24 [ 12] months are to be from formal courses that are:

(A) - (E) (No change.)

(2) At least two [one] of the 24 [12 ] formal hours of CME which are required by paragraph (1) of this subsection must involve the study of medical ethics and/or professional responsibility. Whether a particular hour of CME involves the study of medical ethics and/or professional responsibility shall be determined by the organizations which are enumerated in paragraph (1) of this subsection as part of their course planning.

(3) The remaining 24 [12] hours for the 24 [ 12]-month period may be composed of informal self-study, attendance at hospital lectures or grand rounds not approved for formal CME, or case conferences and shall be recorded in a manner that can be easily transmitted to the board upon request.

(4) (No change.)

(b) A physician must report on the registration permit application if she or he has completed the required CME during the previous 2 years [year].

(1) A licensee may carry forward CME credit hours earned prior to a registration report which are in excess of the 48 [24]-hour biennial [annual ] requirement and such excess hours may be applied to the following years' requirements.

(2) - (3) (No change.)

[(4) A licensee under a two-year permit who timely registers may apply CME credit hours retroactively to the preceding year's annual requirement, however, those hours may be counted only toward one registration period. A maximum of 24 hours may be applied retroactively.]

(c) - (j) (No change.)

(k) Unless exempted under the terms of this section, a licensee's apparent failure to obtain and timely report the completion of the required number of hours of CME on his or her registration application as provided for in this section may [shall] result in the denial of the registration permit until such time as the physician obtains and reports the required CME hours. The executive director of the board may issue to the licensee a temporary CME license numbered so as to correspond to the nonrenewed license. Such a temporary CME license shall be issued upon receipt of a written request and fee for the license made prior to the expiration of the 30-day grace period for registration at the direction of the executive director for a period of no longer than 60 days. A temporary CME license issued pursuant to this subsection may be issued to allow the physician who has not obtained or timely reported the required number of hours an opportunity to correct any deficiency so as not to require termination of ongoing patient care.

(l) (No change.)

(m) CME hours which are obtained during the 30 day grace period after the expiration of the licensee's permit or while under a CME temporary license to comply with the CME requirements for the preceding two years [year ] as a prerequisite for obtaining a registration permit, shall first be credited to meet the CME requirements for the previous registration period and then [ year. Once the previous year's CME requirement is satisfied, ] any additional hours obtained shall be credited to meet the CME requirements for the current registration period [year].

(n) (No change.)

(o) Administrative penalties for failure to timely obtain and report required CME hours may be assessed in accordance with §§187.75 - 187.82 of this title (relating to Imposition of Administrative Penalty) and §190.14 (relating to Disciplinary Sanction Guidelines) [ determined by the Disciplinary Process Review Committee of the board as provided for in §187.40 of this title (relating to Administrative Penalties)].

(p) Unless exempted under the terms of this section, failure to obtain and timely report the CME hours on a registration permit application shall subject the licensee to a monetary penalty for late registration in the amount set forth in §175.2 of this title (relating to Penalties). Any temporary CME licensure fee and any administrative penalty imposed for failure to obtain and timely report the 48 [24] hours of CME required for a [annual ] registration permit application shall be in addition to the applicable penalties for late registration as set forth in §175.2 of this title (relating to Penalties).

§166.5.Relicensure.

(a) (No change.)

(b) To be relicensed following voluntary relinquishment or surrender of a medical license, a physician must reapply and qualify under §164.151 of the Act and §196.4 of this title (relating to Relicensure After Relinquishment or [and] Surrender of a Medical License).

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

(a) - (c) (No change.)

(d) A physician who qualifies for and obtains an exemption from the registration fee authorized under this section shall obtain and report continuing medical education as required under the Act, §§156.051 - 156.055 [.055 ] and §166.2 of this title (relating to Continuing Medical Education), except that the number of hours of informal CME, as required by §166.2(a)(3) shall be reduced from 24 [12] hours to 20 [ 10] hours.

(e) - (f) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802094

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

22 TAC §169.2

The Texas Medical Board proposes amendments to §169.2, Definitions.

The amendment to §169.2 updates name of Texas Medical Board.

Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the section 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 rule as proposed.

Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously proposes the rule review of Chapter 169.

Mr. Simpson also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to clarify the rules by updating the name of the agency.

There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.

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

No other statutes, articles or codes are affected by the proposal.

§169.2.Definitions.

The following words and terms, when used in this chapter, 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) - (6) (No change.)

(7) Physician--A licensee of the Texas Medical Board [ State Board of Medical Examiners].

(8) - (13) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802095

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

The Texas Medical Board proposes amendments to §171.3, Physician-in-Training Permits, §171.4, Board-Approved Fellowships, §171.6, Duties of Program Directors to Report and the repeal of §171.5, Institutional Permits and new §171.5, Duties of PIT Holders to Report.

The amendment to §171.3 updates name of Texas Medical Board; extends period for updating a Physician-In-Training Permit application from 90 to 120 days; conforms Executive Director authority to grant application, refer to committee, or determine ineligible to that of licensure application; clarifies provision regarding alcohol/substance disorder and physical illness and outpatient treatment. The amendment to §171.4 deletes obsolete provision regarding fellowships approved before September 1, 2006. The repeal of §171.5 removes obsolete provision regarding Institutional Permits, which have been replaced by Physician-In-Training Permits, and replaces with a new rule regarding the "Duties of PIT Holders to Report." The amendment to §171.6 extends from 7 days to 30 days for Program Directors to report certain matters to the Board; requires reporting for all participants in the program, whether under a PIT Permit or full License; and deletes requirement for annual reports by Program Directors

Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously proposes the rule review of Chapter 171.

Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the sections are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the rules as proposed.

Mr. Simpson also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to clarify the rule by updating the name of the agency and provide additional protection of the public by requiring that applications be updated after 120 days, conform the practice regarding the Executive Director approving a physician-in-training permit, referring to committee, or determining ineligible; remove an obsolete provision from the rule to avoid confusion regarding fellowships approved before September 1, 2006; remove from the rule an obsolete provision relating to Institutioinal Permits, since such permits are no longer issued; and provide more flexibility for Program Directors to report certain matters to the Board and assures that such reports are provided to any person in the training program, whether such person is practicing in the training program under a physician-in-training permit or a full license.

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.

22 TAC §§171.3 - 171.6

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

No other statutes, articles or codes are affected by the proposal.

§171.3.Physician-in-Training Permits.

(a) Definitions.

(1) (No change.)

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

(3) - (6) (No change.)

(b) (No change.)

(c) Application for Physician-in-Training Permit.

(1) Application Procedures.

(A) Applications for a physician-in-training permit shall be submitted to the board no earlier than the 120th [ninetieth (90th) ] day prior to the date the applicant intends to begin postgraduate training in Texas to ensure the application information is not outdated. To assist in the expedited processing of the application, the application should be submitted as early as possible within the sixty-day window prior to the date the applicant intends to begin postgraduate training in Texas.

(B) - (G) (No change.)

(H) All applicants for physician-in-training permits whose applications have been filed with the board in excess of one year will be considered expired.

(I) If the Executive Director determines that the applicant clearly meets all PIT requirements, the Executive Director or a person designated by the Executive Director, may issue a permit to the applicant, to be effective on the date of the reported first date of the training program without formal board approval, as authorized by §155.002(b) of the Act.

(J) If the Executive Director determines that the applicant does not clearly meet all PIT requirements, a PIT may be issued only upon action by the board following a recommendation by the Licensure Committee, in accordance with §155.007 of the Act (relating to Application Process) and §187.13 of this title (relating to Informal Board Proceedings Relating to Licensure Eligibility).

(K) If the Executive Director determines that the applicant is ineligible for a PIT for one or more reasons listed under subsection (b)(1)(A) and (C) - (E) of this section, the applicant may appeal that decision to the Licensure Committee before completing other licensure requirements for a determination by the Committee solely regarding issues raised by the determination of ineligibility. If the Committee overrules the determination of the Executive Director, the applicant may then provide additional information to complete the application, which must be analyzed by board staff and approved before a license may be issued.

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

(A) - (C) (No change.)

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

(i) - (iv) (No change.)

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

(i) - (iii) (No change.)

(F) - (G) (No change.)

(d) - (e) (No change.)

§171.4.Board-Approved Fellowships.

(a) - (g) (No change.)

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

§171.5.Duties of PIT Holders to Report.

(a) Failure of any PIT holder to comply with the provisions of this chapter or the Medical Practice Act §160.002 and §160.003 may be grounds for disciplinary action as an administrative violation against the PIT holder.

(b) The PIT holder shall report in writing to the executive director of the board the following circumstances within thirty days of their occurrence:

(1) the opening of an investigation or disciplinary action taken against the PIT holder by any licensing entity other than the TMB;

(2) an arrest, fine (over $100), charge or conviction of a crime, indictment, imprisonment, placement on probation, or receipt of deferred adjudication; and

(3) diagnosis or treatment of a physical, mental or emotional condition, which has impaired or could impair the PIT holder's ability to practice medicine.

§171.6.Duties of Program Directors to Report.

(a) (No change.)

(b) The director of each approved postgraduate training program shall report in writing to the executive director of the board the following circumstances within thirty (30) [seven] days of the director's knowledge for all participants [any physician-in-training permit holder] completing postgraduate training:

(1) - (7) (No change.)

[(c) Annual reports. Program directors for postgraduate training programs must ensure that the board receives certain information annually in order to keep the board informed on a permit holder's progress while in the approved training program. The required information shall be sent to the board on forms provided by the board and shall include:]

[(1) information regarding the permit holder's criminal and disciplinary history, professional character, mailing address, and place where engaged in training since the program director's last report;]

[(2) certification by the permit holder's program director, on a form provided by the board, regarding the permit holder's training; and]

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

(c) [(d) ] A violation of §§164.051-164.053 or any other provision of the Medical Practice Act is grounds for disciplinary action by the Board.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802096

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

22 TAC §171.5

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Medical Board or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal 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 proposal.

§171.5.Institutional Permits.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802097

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

The Texas Medical Board proposes amendments to §172.1, Purpose; §172.2, Construction and Definitions; §172.3, Distinguished Professors Temporary License; §172.6, Visiting Professor Temporary License; §172.8, Faculty Temporary License; and §172.13, Conceded Eminence

The amendment to §172.1 adds citation to Medical Practice Act to clarify authority for chapter. The amendment to §172.2 conforms to other rules regarding authority of Executive Director to issue a temporary license, refer to committee, or determine ineligible. The amendment to §172.3 refers to medical schools that are accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Bureau of Professional Education, instead of listing each school. The amendment to §172.6 refers to medical schools that are accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Bureau of Professional Education, instead of listing each school. The amendment to §172.8 refers to medical schools that are accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Bureau of Professional Education, instead of listing each school. The amendment to §172.13 clarifies that medical school must be accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Bureau of Professional Education.

Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously proposes the rule review of Chapter 172.

Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the sections are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the rules as proposed.

Mr. Simpson also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to provide clarity by referencing a citation to the Medical Practice Act; provide efficiency by authorizing the Executive Directors to issue a temporary license, refer to committee, or determine ineligible, just as is provided for applications for full licensure; eliminate listing medical schools to avoid necessity of amending the rule anytime a medical school is established; and provide clarity to the rules by stating that a medical school must be accredited by certain accrediting institutions.

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.

Subchapter A. GENERAL PROVISIONS AND DEFINITIONS

22 TAC §172.1, §172.2

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

No other statutes, articles or codes are affected by the proposal.

§172.1.Purpose.

Pursuant to §155.104 of the Medical Practice Act, the Board is authorized to adopt rules relating to granting temporary and limited licenses. This chapter is promulgated to provide criteria for the eligibility and discipline of physicians who apply for and are granted temporary and limited licenses.

§172.2.Construction and Definitions.

(a) - (e) (No change.)

(f) All applicants for temporary or limited licenses whose applications have been filed with the board in excess of one year will be considered expired.

(1) If the Executive Director determines that the applicant clearly meets all requirements for the temporary or limited license, the Executive Director or a person designated by the Executive Director, may issue a license to the applicant, to be effective on the date of issuance without formal board approval, as authorized by §155.002(b) of the Act.

(2) If the Executive Director determines that the applicant does not clearly meet all requirements for a temporary or limited license, a license may be issued only upon action by the board following a recommendation by the Licensure Committee, in accordance with §155.007 of the Act (relating to Application Process) and §187.13 of this title (relating to Informal Board Proceedings Relating to Licensure Eligibility).

(3) If the Executive Director determines that the applicant is ineligible for a temporary or limited for one or more reasons that are not subject to exception by statute or rule, the applicant may appeal that decision to the Licensure Committee before completing other licensure requirements for a determination by the Committee solely regarding issues raised by the determination of ineligibility. If the Committee overrules the determination of the Executive Director, the applicant may then provide additional information to complete the application, which must be analyzed by board staff and approved before a license may be issued.

(g) [(f)] In addition to other definitions that may apply to licensure, the following words and terms, when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

(1) Act that is part of patient care service--Any diagnosis, assessment, or treatment including the taking of diagnostic imaging studies as well as the preparation of pathological material for examination.

(2) Episodic consultation--Consultation on an irregular or infrequent basis involving no more than 24 patients of a physician's diagnostic or therapeutic practice per calendar year. Multiple consultations may be performed for one or more patients up to 24 patients per calendar year.

(3) Informal consultation--Consultation performed outside the context of a contractual relationship and on an irregular or infrequent basis without the expectation of or exchange of direct or indirect compensation.

(4) Patient care service initiated in this state--Any act constituting the practice of medicine as defined in this chapter in which the patient is physically located in Texas at the time of diagnosis, treatment, or testing.

(5) Person--An individual unless otherwise expressly made applicable to a partnership, association, or corporation.

(6) Practice of medicine--A person shall be considered to be practicing medicine under any of the following circumstances listed in subparagraphs (A) - (D) of this paragraph. This definition does not negate the responsibility of applicants to demonstrate engagement in the active practice of medicine as set forth in § [Section ] 163.11 of this title (relating to Active Practice of Medicine).

(A) the person publicly professes to be a physician or surgeon and diagnoses, treats, or offers to treat any mental or physical disease or disorder, or any physical deformity or injury by any system or method or to effect cures thereof;

(B) the person diagnoses, treats or offers to treat any mental or physical disease or disorder, or any physical deformity or injury by any system or method and to effect cures thereof and charges therefor, directly or indirectly, money or other compensation;

(C) the person exercises medical judgment, renders an opinion, or gives advice concerning the diagnosis or treatment of a patient, or makes any determination regarding the appropriate or necessary medical response to a particular patient's medical condition that affects the medical care of the patient; or

(D) the person is physically located in another jurisdiction, other than the state of Texas, and through any medium performs an act that is part of patient care service initiated in this state that would affect the diagnosis or treatment of the patient.

(7) State--Any state, territory, or insular possession of the United States and the District of Columbia.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802098

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

22 TAC §§172.3, 172.6, 172.8

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

No other statutes, articles or codes are affected by the proposal.

§172.3.Distinguished Professors Temporary License.

(a) The executive director of the board may issue a distinguished professors temporary license to an applicant:

(1) - (2) (No change.)

(3) who holds an appointment as a salaried full professor on the faculty working full-time in one of the following institutions:

(A) a school of medicine in this state accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Bureau of Professional Education;

(B) The University of Texas Health Center at Tyler;

(C) The University of Texas M.D. Anderson Cancer Center; or

(D) a program of graduate medical education, accredited by the Accreditation Council for Graduate Medical Education, that exceeds the requirements for eligibility for first board certification in the discipline.

[(A) University of Texas Medical Branch at Galveston;]

[(B) University of Texas Southwestern Medical Center at Dallas;]

[(C) University of Texas Health Science Center at Houston;]

[(D) University of Texas Health Science Center at San Antonio;]

[(E) University of Texas Health Center at Tyler;]

[(F) University of Texas M.D. Anderson Cancer Center;]

[(G) Texas A&M University College of Medicine;]

[(H) Texas Tech University School of Medicine;]

[(I) Baylor College of Medicine; or]

[(J) University of North Texas Health Science Center at Fort Worth.]

(b) - (e) (No change.)

§172.6.Visiting Professor Temporary License.

The board may issue a temporary license to practice medicine to a physician appointed as a visiting professor by a Texas medical school or institution in accordance with this section.

(1) - (3) (No change.)

(4) The visiting professor temporary license may be issued to one of the following institutions:

(A) a school of medicine in this state accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Bureau of Professional Education;

(B) The University of Texas Health Center at Tyler;

(C) The University of Texas M.D. Anderson Cancer Center; or

(D) a program of graduate medical education, accredited by the Accreditation Council for Graduate Medical Education, that exceeds the requirements for eligibility for first board certification in the discipline.

[(A) University of Texas Medical Branch at Galveston;]

[(B) University of Texas Southwestern Medical Center at Dallas;]

[(C) University of Texas Health Science Center at Houston;]

[(D) University of Texas Health Science Center at San Antonio;]

[(E) University of Texas Health Center at Tyler;]

[(F) University of Texas M.D. Anderson Cancer Center;]

[(G) Texas A&M University College of Medicine;]

[(H) Texas Tech University School of Medicine;]

[(I) Baylor College of Medicine; or]

[(J) University of North Texas Health Science Center at Fort Worth.]

(5) - (7) (No change.)

§172.8.Faculty Temporary License.

(a) The board may issue a faculty temporary license to practice medicine to a physician in accordance with § [Section ] 155.104, Tex. Occ. Code. "Physician," as used in that statute and in this section, is interpreted to mean a person who holds an M.D., D.O., or equivalent degree and who is licensed to practice medicine in another state or Canadian province or has completed at least three years of postgraduate residency, but does not hold a license to practice medicine in this state.

(1) - (2) (No change.)

(3) "Institution," as used in this section, shall mean any of the following:

(A) a school of medicine in this state accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Bureau of Professional Education;

(B) The University of Texas Health Center at Tyler;

(C) The University of Texas M.D. Anderson Cancer Center; or

(D) a program of graduate medical education, accredited by the Accreditation Council for Graduate Medical Education, that exceeds the requirements for eligibility for first board certification in the discipline.

[(A) University of Texas Medical Branch at Galveston;]

[(B) University of Texas Southwestern Medical Center at Dallas;]

[(C) University of Texas Health Science Center at Houston;]

[(D) University of Texas Health Science Center at San Antonio;]

[(E) University of Texas Health Center at Tyler;]

[(F) University of Texas M.D. Anderson Cancer Center;]

[(G) Texas A&M University College of Medicine;]

[(H) Texas Tech University School of Medicine;]

[(I) Baylor College of Medicine; or]

[(J) University of North Texas Health Science Center at Fort Worth.]

(4) - (5) (No change.)

(b) - (i) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802099

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

22 TAC §172.13

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

No other statutes, articles or codes are affected by the proposal.

§172.13.Conceded Eminence.

(a) - (b) (No change.)

(c) An applicant for a license based on conceded eminence must complete an application showing that the applicant:

(1) is recommended to the board by the dean, president, or chief academic officer of:

(A) a school of medicine in this state accredited by the LCME or AOA;

(B) (No change.)

(C) The University of Texas M.D. Anderson Cancer Center;[, ] or

(D) (No change.)

(2) - (8) (No change.)

(9) has not been convicted of, or placed on deferred adjudication, community supervision, or deferred disposition for a felony, a misdemeanor connected with the practice of medicine, or a misdemeanor involving moral turpitude; and [. And]

(10) (No change.)

(d) - (h) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802100

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

22 TAC §182.8

The Texas Medical Board proposes amendments to §182.8, Expert Physician Reviewers.

The amendment to §182.8 clarifies that an expert will be designated who is in the same specialty designated by the Respondent, not necessarily the same specialty as the Respondent Board Certified.

Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the section 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 rule as proposed.

Mr. Simpson also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the sections will be to assure that cases are reviewed by expert physicians who practice in the same or similar specialty as the Respondent.

There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.

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

No other statutes, articles or codes are affected by the proposal.

§182.8.Expert Physician Reviewers.

(a) Selection of Reviewers. Any complaint alleging a possible violation of the standard of care will be referred to Expert Physician Reviewers who will review all the medical information and records collected by the board and shall report findings in the prescribed format.

(1) Reviewers shall be randomly selected from among those Expert Panel members who practice in the same specialty as the physician who is the subject of the complaint. The practice area or specialty declared by the subject physician as his area of practice shall be the specialty of the expert reviewers.

(2) - (4) (No change.)

(b) - (c) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802101

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

22 TAC §§184.1, 184.2, 184.4 - 184.6, 184.8, 184.9, 184.18 - 184.20, 184.26

The Texas Medical Board proposes amendments to §184.1, Purpose, §184.2, Definitions, §184.4, Qualifications for Licensure, §184.5, Procedural Rules for Licensure Applicants, §184.6, Licensure Documentation, §184.8, License Renewal, §184.9, Relicensure, §184.18, Administrative Penalties, §184.19, Complaint Procedure Notification, §184.20, Investigations, and §184.26, Voluntary Relinquishment or Surrender of a License.

The amendment to §184.1 adds a reference to the Medical Practice Act and the Surgical Assistants Act, authorizing rules. The amendment to §184.2 updates the name of the Texas Medical Board. The amendment to §184.4 clarifies the educational requirements to provide that educational programs must be approved by the Commission on Accreditation of Allied Health Education Programs or approved by the Texas Nursing Board or Physician Assistant Board; and clarifies the examination requirements to provide that examinations must be given by the American Board of Surgical Assistants, the National Board of Surgical Technology and Surgical Assisting (NBSTSA), or the National Surgical Assistant Association. The amendment to §184.5 deletes an obsolete provision regarding an applicant who applied prior to September 1, 2002. The amendment to §184.6 updates the reference to alcohol/substance disorder. The amendment to §184.8 clarifies the rule by setting forth requirements that an applicant must furnish supplemental explanations and prohibiting a Surgical Assistant from using the identification as a Surgical Assistant after a license is expired. The amendment to §184.9 provides that a license shall be considered to be canceled if expired for more than one year. The amendment to §184.18 updates rule to refer to rules regarding imposition of an administrative penalty under chapter 187. The amendment to §184.19 updates references to other Board rules. The amendment to §184.20 deletes a misplaced reference to licensure procedure. The amendment to §184.26 corrects the title of Chapter 196 of the Board Rules.

Elsewhere in this issue of the Texas Register , the Texas Medical Board contemporaneously proposes the rule review of Chapter 184.

Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the sections are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the rules as proposed.

Mr. Simpson also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to provide clarity by adding references to statutory provisions that authorize the rules; provide clarity by updating the name of the agency; provide clarity to the rules by specifying that educational programs must be approved by one of several specified institutions; avoid confusion in the rules by deleting a provision that is no longer in use; provide a more correct name for impairment due to alcohol or substance use; provide clarity to the rules by specifying that an applicant must furnish supplemental explanation in the case a question on the application is answered in the affirmative, and provides protection for the public by specifying that a person whose surgical assistant license has expired may no longer hold him/herself out as a surgical assistant; provide clarity and conform the rule to actual practice by stating that a license shall be considered canceled if it has been expired for more than one year; establishes that the more efficient procedure for handling administrative violations shall apply to a surgical assistant just at it applies to a physician; provide clarity by updating references to rules of the Texas Medical Board; delete a provision that is not germane to this rule. The provision has been moved to another section; and provide a correction of the title of a section of the Board Rules.

There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Sally Durocher, P.O. Box 2018, Austin, Texas 78768-2018. A public hearing will be held at a later date.

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

No other statutes, articles or codes are affected by the proposal.

§184.1.Purpose.

These rules are promulgated under the authority Medical Practice Act Title 3, Subtitle B, Tex. Occ. Code and the Surgical Assistants Act, Tex. Occ. Code Ann. Ch. 206. The purpose of these rules is to establish requirements for the education, training, and professional behavior for persons who identify themselves as licensed surgical assistants without a financial burden to the people of Texas. Furthermore, the purpose of these rules and regulations is to also encourage the more effective utilization of the skills of physicians by enabling them to delegate health care tasks to licensed surgical assistants. These sections are not intended to, and shall not be construed to, restrict the physician from delegating technical and clinical tasks to technicians, other assistants, or employees who perform delegated tasks in a surgical setting and who are not rendering services as a surgical assistant or identifying themselves as a licensed surgical assistant. Nothing in these rules and regulations shall be construed to relieve the supervising physician of the professional or legal responsibility for the care and treatment of his or her patients. In addition, nothing in these rules and regulations shall be construed to require licensure as a surgical assistant for those individuals who are exempted, including registered nurses and physician assistants, under §206.002 of the Act.

§184.2.Definitions.

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

(1) - (5) (No change.)

(6) Board--The Texas Medical Board [State Board of Medical Examiners].

(7) - (9) (No change.)

(10) Surgical assistant--A person licensed as a surgical assistant by the Texas Medical Board [State Board of Medical Examiners].

(11) (No change.)

§184.4.Qualifications for Licensure.

(a) Except as otherwise provided in this section, an individual applying for licensure must:

(1) - (12) (No change.)

(13) have successfully completed an educational program as set forth [ in surgical assisting or a substantially equivalent educational program as outlined] in subparagraphs (A) and (B) of this paragraph;

(A) A surgical assistant program accredited by Commission on Accreditation of Allied Health Education Programs (CAAHEP); or

(B) a substantially equivalent program that is one of [ is limited to] the following:

[(i) a surgical assistant program that is in compliance with the guidelines for program accreditation established by Commission on Accreditation of Allied Health Education Programs (CAAHEP);]

(i) [(ii)] a medical school whereby the applicant can verify completion of basic and clinical sciences coursework;

(ii) [(iii)] a registered nurse first assistant program that is approved by the Texas Board of Nursing for purposes of licensure as a registered nurse by [ acceptable to the board]; and

(iii) [(iv)] an accredited surgical physician assistant program that is approved by the Texas Physician Assistant Board for purposes of physician assistant licensure [ acceptable to the board].

(C) [(B)] The curriculum of an [ a surgical assisting] educational program listed in subparagraphs (A) and (B) of this paragraph must include at a minimum, either as a part of that curriculum or as a required prerequisite, successful completion of college level instruction in the following courses[, with the exception that clauses (iv) and (v) of this subparagraph are not required to be college level instruction]:

(i) anatomy;

(ii) physiology;

(iii) basic pharmacology;

(iv) aseptic techniques;

(v) operative procedures;

(vi) chemistry;

(vii) microbiology; and

(viii) pathophysiology. [;]

[(ix) clinical service rotations, that either:]

[(I) are each at least 80 hours in length, in the following areas:]

[(-a-) cardiovascular surgery;]

[(-b-) trauma surgery;]

[(-c-) general surgery;]

[(-d-) obstetrics and gynecology;]

[(-e-) orthopedics;]

[(-f-) pediatrics or an elective if the applicant affirms that he or she has no intent to work as a surgical assistant for pediatric surgery; or]

[(II) meet the CAAHEP's supervised clinical preceptorship guidelines.]

(14) - (16) (No change.)

(b) An applicant must provide documentation that the applicant has passed a surgical or first assistant examination required for certification by one of the following certifying boards:

(1) (No change.)

(2) National Board of Surgical Technology and Surgical Assisting (NBSTSA) formerly known as Liaison Council on Certification for the Surgical Technologist (LCC-ST); or

(3) (No change.)

§184.5.Procedural Rules for Licensure Applicants.

(a) (No change.)

[(b) An applicant for licensure who applies before September 1, 2002 must submit a preliminary application along with appropriate application fees in order to qualify for the special eligibility provisions under §206.205 of the Act and §§184.4 (b) and (c) of this title (relating to Qualifications for Licensure).]

(b) [(c)] The executive director shall review each application for licensure and shall recommend to the board all applicants eligible for licensure. The executive director also shall report to the board the names of all applicants determined to be ineligible for licensure, together with the reasons for each recommendation. An applicant deemed ineligible for licensure by the executive director may request review of such recommendation by the board's licensure committee within 20 days of receipt of such notice, and the executive director may refer any application to the licensure committee for a recommendation concerning eligibility. If the committee finds the applicant ineligible for licensure, such recommendation, together with the reasons, shall be submitted to the board unless the applicant requests a hearing not later than the 20th day after the date the applicant receives notice of the determination. The hearing shall be before an administrative law judge of the State Office of Administrative Hearings and shall comply with the Administrative Procedure Act and its subsequent amendments and the rules of the State Office of Administrative Hearings and the board. The board shall, after receiving the administrative law judge's proposed findings of fact and conclusions of law, determine the eligibility of the applicant for licensure. A surgical assistant whose application for licensure is denied by the board shall receive a written statement containing the reasons for the board's action. All reports received or gathered by the board on each applicant are confidential and are not subject to disclosure under the Public Information Act, Tex. Gov't Code, Ch. 552. The board may disclose such reports to appropriate licensing authorities in other states.

§184.6.Licensure Documentation.

(a) - (b) (No change.)

(c) Applicants may be required to submit other documentation, which may include the following:

(1) - (2) (No change.)

(3) Inpatient treatment for alcohol/substance disorder [abuse ] or mental illness. Each applicant that has been admitted to an inpatient facility within the last five years for treatment of alcohol/substance disorder [abuse] or mental illness must submit the following:

(A) - (D) (No change.)

(4) Outpatient treatment for alcohol/substance disorder [abuse ] or mental illness. Each applicant that has been treated on an outpatient basis within the past five years for alcohol/substance disorder [abuse] must submit the following:

(A) - (C) (No change.)

(5) - (6) (No change.)

§184.8.License Renewal.

(a) - (d) (No change.)

(e) A licensee shall furnish a written explanation of his or her affirmative answer to any question asked on the application for license renewal, if requested by the board. This explanation shall include all details as the board may request and shall be furnished within 14 days of the date of the board's request.

(f) [(e)] Falsification of an affidavit or submission of false information to obtain renewal of a license shall subject a surgical assistant to denial of the renewal and/or to discipline pursuant to §206.301 of the Act.

(g) [(f)] Expired Annual Registration Permits.

(1) If a surgical assistant's registration permit has been expired for 90 days or less, the surgical assistant may obtain a new permit by submitting to the board a completed permit application, the registration fee, and the penalty fee, as defined in §175.3(2) of this title (relating to Penalties).

(2) If a surgical assistant's registration permit has been expired for longer than 90 days but less than one year, the surgical assistant may obtain a new permit by submitting a completed permit application, the registration fee, and a penalty fee as defined in §175.3(2) of this title [(relating to Penalties)].

(3) If a surgical assistant's registration permit has been expired for one year or longer, the surgical assistant's license is automatically canceled, unless an investigation is pending, and the surgical assistant may not obtain a new permit.

(4) A surgical assistant may not hold himself out as a licensed surgical assistant if he holds an expired permit. [ Practicing as a surgical assistant after the expiration of the registration permit without obtaining a new registration permit for the current registration period has the same effect as, and is subject to all penalties of, practicing as a surgical assistant without a license.]

§184.9.Relicensure.

If a surgical assistant's license has been expired for one year or longer, the license is considered to have been canceled, unless an investigation is pending, and the person may not renew the license. The surgical assistant may obtain a new license by complying with the requirements and procedures for obtaining an original license.

§184.18.Administrative Penalties.

(a) Pursuant to §206.351 of the Act, the board by order may impose an administrative penalty, in accordance with and subject to §§187.75 - 187.82 of this title (relating to the Imposition of Administrative Penalty) [ the provisions of the APA], against a person licensed or regulated under the Act who violates the Act or a rule or order adopted under the Act. The imposition of such a penalty shall be consistent with the requirements of the Act [and the APA].

(b) (No change.)

[(c) Prior to the imposition of an administrative penalty by board order, a person must be given notice and opportunity to respond and present evidence and argument on each issue that is the basis for the proposed administrative penalty at a show compliance proceeding.]

(c) [(d)] The amount of the penalty shall be based on the factors set forth under the Act, §206.351(c) and Chapter 190 of this title (relating to Disciplinary Guidelines).

(d) [(e)] Consistent with the Act, §206.351(e), if the board by order determines that a violation has occurred and imposes an administrative penalty on a person licensed or regulated under the Act, the board shall give notice to the person of the board's order which shall include a statement of the right of the person to seek judicial review of the order.

(e) [(f)] An administrative penalty may be imposed under this section for the following:

(1) failure to timely comply with a board subpoena issued by the board pursuant to §206.308 of the Act and board rules shall be grounds for the imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation;

(2) failure to timely comply with the terms, conditions, or requirements of a board order shall be grounds for imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation;

(3) failure to timely report a change of address to the board shall be grounds for imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation;

(4) failure to timely respond to a patient's communications shall be grounds for imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation;

(5) failure to comply with the complaint procedure notification requirements as set forth in §184.19 of this title (relating to Complaint Procedure Notification) shall be grounds for imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation;

(6) failure to provide show compliance proceeding information in the prescribed time shall be grounds for imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation; and

(7) for any other violation other than quality of care that the board deems appropriate shall be grounds for imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation.

(f) [(g)] In the case of untimely compliance with a board order, the board staff shall not be authorized to impose an administrative penalty without an informal show compliance proceeding if the person licensed or regulated under the Act has not first been brought into compliance with the terms, conditions, and requirements of the order other than the time factors involved.

(g) [(h)] Any order proposed under this section shall be subject to final approval by the board.

(h) [(i)] Failure to pay an administrative penalty imposed through an order shall be grounds for disciplinary action by the board pursuant to the Act, §206.302(a)(4), regarding unprofessional or dishonorable conduct likely to deceive or defraud, or injure the public, and shall also be grounds for the executive director to refer the matter to the attorney general for collection of the amount of the penalty.

(i) [(j)] A person who becomes financially unable to pay an administrative penalty after entry of an order imposing such a penalty, upon a showing of good cause by a writing executed by the person under oath and at the discretion of the Disciplinary Process Review Committee of the board, may be granted an extension of time or deferral of no more than one year from the date the administrative penalty is due. Upon the conclusion of any such extension of time or deferral, if payment has not been made in the manner and in the amount required, action authorized by the terms of the order or subsection (h) [(i)] of this section and the Act, §206.301(a)(4) may be pursued.

§184.19.Complaint Procedure Notification.

Pursuant to §206.153 of the Act, §178.3 [Chapter 188 ] of this title (relating to Complaint Procedure Notification) shall govern surgical assistants with regard to methods of notification for filing complaints with the agency. If the provisions of §178.3 of this title [Chapter 188] conflict with the Act or rules under this chapter, the Act and provisions of this chapter shall control.

§184.20.Investigations.

(a) - (b) (No change.)

[(c) Renewal of licenses. A licensee shall furnish a written explanation of his or her answer to any question asked on the application for license renewal, if requested by the board. This explanation shall include all details as the board may request and shall be furnished within 14 days of the date of the board's request.]

(c) [(d)] Reports to the Board.

(1) Relevant information required to be reported to the board pursuant to §206.159 of the Act, indicating that a surgical assistant's practice poses a continuing threat to the public welfare shall include a narrative statement describing the time, date, and place of the acts or omissions on which the report is based.

(2) A report that a surgical assistant's practice constitutes a continuing threat to the public's welfare shall be made as soon as possible after the peer review committee, quality assurance committee, surgical assistant, surgical assistant student, physician or any person usually present in the operating room, including a nurse or surgical technologist involved reaches that conclusion and is able to assemble the relevant information.

§184.26.Voluntary Relinquishment or Surrender of a License.

Chapter 196 of this title (relating to Voluntary Relinquishment or Surrender of a Medical License) shall govern procedures relating to surgical assistants where applicable. If the provisions of Chapter 196 of this title conflict with the Surgical Assistant Act or rules under this chapter, the Surgical Assistant Act and provisions of this chapter shall control.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802102

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

The Texas Medical Board proposes amendments to §193.1, Purpose, §193.2, Definitions, §193.4, Scope of Standing Delegation Orders, §193.6, Delegation of the Carrying Out or Signing of Prescription Drug Orders to Physician Assistants and Advanced Practice Nurses, §193.7, Delegated Drug Therapy Management, §193.8, Delegated Administration of Immunizations or Vaccinations by a Pharmacist under Written Protocol, §193.9, Pronouncement of Death, §193.10, Collaborative Management of Glaucoma, and the repeal of §193.11, Use of Lasers.

The amendment to §193.1 updates the name of Texas Medical Board. The amendment to §193.2 updates the name of Texas Physician Assistant Board. The amendment to §193.4 clarifies that pre-signed prescriptions shall be utilized by the authorizing physician only under certain conditions. The amendment to §193.6 clarifies that a supervising physician must be on-site at a practice site serving medically underserved populations at least once every 10 business day, not once every 10 days that the clinic is open, on-site at an alternate practice site at least 20 percent of the time the alternative practice site is open, and must spend a majority of time at a facility-based site; and that charts to be reviewed must be charts of patients that have been seen since the supervising physician's last onsite review. The amendment to §193.7 updates the reference to Texas Pharmacy Act. The amendment to §193.8 updates the reference to Texas Pharmacy Act. The amendment to §193.9 updates the reference to Texas Medical Practice Act. The amendment to §193.10 updates the reference to Texas Optometry Act and name of Texas Medical Board. The repeal of §193.11 will delete the rule regarding use of a laser/pulsed light device.

Elsewhere in this issue of the Texas Register, the Texas Medical Board contemporaneously proposes the rule review of Chapter 193.

Robert D. Simpson, General Counsel, Texas Medical Board, has determined that for the first five-year period the sections are in effect there will be no fiscal implications to state or local government as a result of enforcing the sections as proposed. There will be no effect to individuals required to comply with the rules as proposed.

Mr. Simpson also has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to clarify the rules by updating the name of the agency; provide clarity by updating the name of the Texas Physician Assistant Board; provide clarity by specifying that pre-signed prescriptions are not authorized except under certain conditions; clarify that the statutory provision requiring that a supervising physician be onsite at a medically underserved site at lease once every 10 business days, and that this provision is not prorated based on the number of hours that the site is open for business; provide clarity by updating references to the Texas Pharmacy Act; provide clarity by updating references to the Texas Medical Practice Act; clarify the rules by updating the name of the agency and the reference to the Texas Optometry Act; and repeal a rule to avoid a piecemeal approach to the regulation of lasers.

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.

22 TAC §§193.1, 193.2, 193.4, 193.6 - 193.10

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

No other statutes, articles or codes are affected by the proposal.

§193.1.Purpose.

(a) The purpose of this chapter is to encourage the more effective utilization of the skills of physicians by establishing guidelines for the delegation of health care tasks to qualified non-physicians providing services under reasonable physician control and supervision where such delegation is consistent with the patient's health and welfare; and to provide guidelines for physicians in order that existing legal constraints should not be an unnecessary hindrance to the more effective provision of health care services Texas Occupations Code Annotated, §164.052 and §164.053 empower the Texas Medical Board [State Board of Medical Examiners ] to cancel, revoke or suspend the license of any practitioner of medicine upon proof that such practitioner is guilty of failing to supervise adequately the activities of persons acting under the physician's supervision, allowing another person to use his license for the purpose of practicing medicine, or of aiding or abetting, directly or indirectly, the practice of medicine by a person or entity not licensed to do so by the board. The board recognizes that the delivery of quality health care requires expertise and assistance of many dedicated individuals in the allied health profession. The provisions of this chapter are not intended to, and shall not be construed to, restrict the physician from delegating administrative and technical or clinical tasks not involving the exercise of 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. The board recognizes that statutory law shall prevail over any rules adopted and that the practice of medicine is, by statute, defined as follows: "A person shall be considered to be practicing medicine within the Medical Practice Act:

(1) - (2) (No change.)

(b) (No change.)

§193.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the contents clearly indicate otherwise.

(1) Advanced practice nurse--A registered nurse approved by the Texas Board of Nursing [Texas State Board of Nurse Examiners] to practice as an advanced practice nurse on the basis of completion of an advanced educational program. The term includes a nurse practitioner, a nurse midwife, nurse anesthetist, and clinical nurse specialist, as defined by Texas Occupations Code Annotated, §301.152.

(2) - (7) (No change.)

(8) Physician Assistant--A person who is licensed as a physician assistant by the Texas Physician Assistant Board [ State Board of Physician Assistant Examiners].

(9) - (10) (No change.)

(11) Site serving a medically underserved population--A site located in a medically underserved area; a site located in a health manpower shortage area; a rural health clinic designated under Public Law 95-210, the Rural Health Clinic Services Act of 1977; a public health clinic or a family planning clinic operating under contract with the Texas Department of Human Services or the Department of State Health Services [Texas Department of Health ]; a site located in an area in which there exists an insufficient number of physicians providing services to eligible clients of federal, state, or locally funded health care programs, as determined by the Department of State Health Services [ Texas Department of Health]; or a site that serves a disproportionate number of clients eligible to participate in federal, state, or locally funded health care programs, as determined by the Department of State Health Services [ Texas Department of Health].

(12) - (14) (No change.)

§193.4.Scope of Standing Delegation Orders.

Providing the authorizing physician is satisfied as to the ability and competence of those for whom the physician is assuming responsibility, and with due regard for the safety of the patient and in keeping with sound medical practice, standing delegation orders may be authorized for the performance of acts and duties which do not require the exercise of independent medical judgment. Limitations on the physician's use of standing delegation orders which are stated in this section shall not apply to patient care delivered by physician assistants or advanced practice nurses, as authorized by the Medical Practice Act, Texas Occupations Code Annotated, §§157.051 - 157.060 [157] or §193.6 of this title (relating to Delegation of the Carrying Out or Signing of Prescription Drug Orders to Physician Assistants and Advanced Practice Nurses). When care is delivered under other circumstances, standing delegation orders may include authority to undertake the following as listed in paragraphs (1) - (8) of this section:

(1) - (3) (No change.)

(4) the administration or providing of drugs ordered by direct personal or voice communication by the authorizing physician who shall assume responsibility for the patient's welfare, providing such administration or provision of drugs shall be in compliance with other state or federal laws and providing further that pre-signed prescriptions shall [not] be utilized by the authorizing physician only [except] under the following conditions shown in subparagraphs (A) - (D) of this paragraph.

(A) - (D) (No change.)

(5) - (6) (No change.)

(7) the provision of services and the administration of therapy by public health departments as officially prescribed by the Department of State Health Services [Texas Department of Health] for the prevention or treatment of specific communicable diseases or health conditions for which the Department of State Health Services [ Texas Department of Health] is responsible for control under state law;

(8) (No change.)

§193.6.Delegation of the Carrying Out or Signing of Prescription Drug Orders to Physician Assistants and Advanced Practice Nurses.

(a) (No change.)

(b) Delegation of prescriptive authority at site serving underserved populations.

(1) (No change.)

(2) Physician supervision at site serving medically underserved populations Physician supervision of a physician assistant or an advanced practice nurse at a site serving a medically underserved population will be adequate if a delegating physician:

(A) (No change.)

(B) visits the clinic in person at least once every ten business days whether or not the clinic is open daily during regular business hours at a time when [during which] the advanced practice nurse or physician assistant is on site providing care, in order to observe and provide medical direction and consultation to include, but not be limited to:

(i) - (ii) (No change.)

(iii) verifying that patient care is provided by the clinic in accordance with a written quality assurance plan on file at the clinic, which includes a random review and countersignature of at least 10% of the patient charts by the physician of charts for patients seen since the physician's last onsite visit;

(C) - (D) (No change.)

(3) (No change.)

(c) (No change.)

(d) Delegation of prescriptive authority at a physician's alternate practice site.

(1) - (2) (No change.)

(3) Physician supervision is adequate for the purposes of this subsection if the delegating physician:

(A) is on-site with the advanced practice nurse or physician assistant at least 20 percent of the time that the alternate practice site is open;

(B) randomly reviews at least 10 percent of the medical charts of patients seen by a physician assistant or advanced practice nurse at the site since the physician was onsite last; and

(C) (No change.)

(4) (No change.)

(e) Delegation of prescriptive authority at a facility-based practice site.

(1) - (2) (No change.)

(3) Physician supervision. Physician supervision of the carrying out and signing of a prescription drug order shall conform to what a reasonable, prudent physician would find consistent with sound medical judgment but may vary with the education and experience of the advanced practice nurse or physician assistant. A physician shall provide continuous supervision, but the constant physical presence of the physician is not required, although the physician must spend the majority of their time onsite at the facility.

(f) - (i) (No change.)

(j) Violations. Violation of this section by the delegating physician may result in a refusal to approve supervision or the cancellation of the physician's authority to delegate to a physician assistant or an advanced practice nurse under this section. Violation of this section may also subject the physician to disciplinary action as provided by the Act, §164.001, for violation of §164.051. If an advanced practice nurse violates this section or the Act, §§157.051 - 157.060, the board shall promptly notify the Texas Board of Nursing [Texas Board of Nurse Examiners ] of the alleged violation. If a physician assistant violates this section or the Act, §§157.051 - 157.060, the board shall promptly notify the Texas Physician Assistant Board [ State Board of Physician Assistant Examiners].

(k) (No change.)

(l) Delegation related to obstetrical services.

(1) A physician may delegate to a physician assistant offering obstetrical services and certified by the board as specializing in obstetrics or an advanced practice nurse recognized by the Texas Board of Nursing [Texas State Board of Nurse Examiners ] as a nurse midwife the act or acts of administering or providing controlled substances to the nurse midwife's or physician assistant's clients during intra-partum and immediate post-partum care. The physician shall not delegate the use of a prescription sticker or the use or issuance of an official prescription form relating to the prescription of Schedule II controlled substance as described under §481.075 of the Health and Safety Code.

(2) - (10) (No change.)

(m) - (n) (No change.)

§193.7.Delegated Drug Therapy Management.

(a) - (f) (No change.)

(g) Construction and interpretation. This section shall not be construed or interpreted to restrict the use of a pre-established health care program or restrict a physician from authorizing the provision of patient care by use of a pre-established health care program if the patient is institutionalized and the care is to be delivered in a licensed hospital with an organized medical staff that has authorized standing delegation orders, standing medical orders, or protocols. This section may not be construed to limit, expand, or change any provision of law concerning or relating to therapeutic drug substitution or administration of medication, including the Texas Pharmacy Act, Texas Occupations Code Chapter 551 [ Article 4542a-1, Vernon's Texas Civil Statutes, §17(a)(5)].

§193.8.Delegated Administration of Immunizations or Vaccinations by a Pharmacist under Written Protocol.

(a) - (f) (No change.)

(g) Construction and interpretation. This section shall not be construed or interpreted to restrict the use of a pre-established health care program or restrict a physician from authorizing the provision of patient care by use of a pre-established health care program if the patient is institutionalized and the care is to be delivered in a licensed hospital with an organized medical staff that has authorized standing delegation orders, standing medical orders, or protocols. This section may not be construed to limit, expand, or change any provision of law concerning or relating to therapeutic drug substitution or administration of medication, including the Texas Pharmacy Act, Texas Occupations Code §§554.001 - 554.004 [ Article 4542a-1, Vernon's Texas Civil Statutes, §17(a)(5)].

§193.9.Pronouncement of Death.

(a) Purpose. These rules are promulgated under the authority of the Medical Practice Act, §157.001 [3.06(d) ], to allow physicians to receive information from Texas licensed vocational nurses through electronic communication for the purpose of making a pronouncement of death. Electronic communication includes, but is not limited to telephone, facsimile transmission, or electronic mail.

(b) - (d) (No change.)

§193.10.Collaborative Management of Glaucoma.

(a) Purpose. The purpose of this section is to implement the mandate of the 76th Legislature as it relates to the Optometry Act, Texas Occupations Code Chapter 351 [ Article 4552, §1.02, Vernon's Texas Civil Statutes ], regarding the minimum standards for the collaborative management of glaucoma.

(b) Minimum requirements. At a minimum, the treating ophthalmologist should follow the guidelines outlined in paragraphs (1) - (10) of this subsection [section].

(1) - (4) (No change.)

(5) The ophthalmologist must report any irregular behavior of the optometrist to the Texas Medical Board [State Board of Medical Examiners ] for referral to the Texas Optometry Board.

(6) - (10) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802103

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

22 TAC §193.11

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Medical Board or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal 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 proposal.

§193.11.Use of Lasers.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 22, 2008.

TRD-200802116

Donald W. Patrick, MD, JD

Executive Director

Texas Medical Board

Earliest possible date of adoption: June 8, 2008

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

Chapter 213. PRACTICE AND PROCEDURE

22 TAC §§213.27 - 213.30, 213.33

The Texas Board of Nursing (Board) proposes amendments to 22 Texas Administrative Code §§213.27, 213.28, 213.29, 213.30, and 213.33, relating to Practice and Procedure. The proposed amendments add language to the foregoing rules regarding the Board's Disciplinary Sanction Policies and its Disciplinary Guidelines for Criminal Conduct. The modified guidelines were published on March 9, 2007 in the Texas Register (32 TexReg 1409). The Board approved modifications to the Board's Eligibility and Disciplinary Sanction Policies pertaining to substance abuse/dependency, lying and falsification, sexual misconduct, and fraud, theft, and deception, and these were published on February 22, 2008 in the Texas Register (33 TexReg 1646). These policies and guidelines are referred to by the Staff and Board when determining appropriate decisions in eligibility and disciplinary matters and should, therefore, be included in the Board's rules. The purpose of these policies is to address issues that arise in eligibility and disciplinary matters under Texas Occupations Code §301.452(b) and rules §§213.27, 213.28, 213.29, 213.30, and 213.33.

Katherine Thomas, Executive Director, has determined that for the first five-year period the proposed amendments are in effect there will be no additional fiscal implications for state or local government as a result of implementing the proposed amendments.

Ms. Thomas has also determined that for each year of the five years the proposed amendments are in effect, the public benefit will be that the amendments will provide greater efficiency in the administration of the agency's functions. There will not be any foreseeable effect on small businesses. There are no anticipated costs to affected individuals as a result of the implementation of the proposed amendments.

Written comments on the proposal may be submitted to Joy Sparks, Assistant General Counsel, Texas Board of Nursing, 333 Guadalupe, Suite 3-460, Austin, Texas 78701, or by e-mail to joy.sparks@bne.state.tx.us, or by fax to Joy Sparks at (512) 305-8101.

The amendments are proposed pursuant to the authority of Texas Occupations Code §301.151 which authorizes the Texas Board of Nursing to adopt, enforce, and repeal rules consistent with its legislative authority under the Nursing Practice Act.

No other articles, statutes or codes are affected by this proposal.

§213.27.Good Professional Character.

(a) - (f) (No change.)

(g) The following disciplinary and eligibility sanction policies and guidelines shall be used by the Executive Director, the State Office of Administrative Hearings (SOAH), or the Board in evaluating good professional character in eligibility and disciplinary matters:

(1) Disciplinary Sanctions for Fraud, Theft and Deception approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1646) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(2) Disciplinary Sanctions for Lying and Falsification approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1647) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(3) Disciplinary Sanctions for Sexual Misconduct approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1649) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(4) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(5) Disciplinary Guidelines for Criminal Conduct approved by the Board and published on March 9, 2007 in the Texas Register (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.

§213.28.Licensure of Persons with Criminal Offenses.

(a) - (l) (No change.)

(m) The following disciplinary and eligibility sanction policies and guidelines shall be used by the Executive Director, the State Office of Administrative Hearings (SOAH), or the Board in evaluating the impact of criminal conduct on nurse licensure in eligibility and disciplinary matters:

(1) Disciplinary Sanctions for Fraud, Theft and Deception approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1646) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(2) Disciplinary Sanctions for Lying and Falsification approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1647) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(3) Disciplinary Sanctions for Sexual Misconduct approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1649) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(4) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(5) Disciplinary Guidelines for Criminal Conduct approved by the Board and published March 9, 2007 in the Texas Register (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.

§213.29.Criteria and Procedure Regarding Intemperate Use and Lack of Fitness in Eligibility and Disciplinary Matters.

(a) - (i) (No change.)

(j) The following disciplinary and eligibility sanction policies and guidelines shall be used by the Executive Director, the State Office of Administrative Hearings (SOAH), or the Board in evaluating the appropriate licensure determination or sanction in eligibility and disciplinary matters:

(1) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's web site at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(2) Disciplinary Guidelines for Criminal Conduct approved by the Board and published on March 9, 2007 in the Texas Register (32 TexReg 1409) and available on the Board's website http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.

§213.30.Declaratory Order of Eligibility for Licensure.

(a) - (h) (No change.)

(i) The following disciplinary and eligibility sanction policies and guidelines shall be used by the Executive Director, the State Office of Administrative Hearings (SOAH), when recommending a declaratory order of eligibility; and the Board in determining the appropriate declaratory order in eligibility matters:

(1) Disciplinary Sanctions for Fraud, Theft and Deception approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1646) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(2) Disciplinary Sanctions for Lying and Falsification approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1647) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(3) Disciplinary Sanctions for Sexual Misconduct approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1649) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(4) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(5) Disciplinary Guidelines for Criminal Conduct approved by the Board and published on March 9, 2007 in the Texas Register (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.

§213.33.Factors Considered for Imposition of Penalties/Sanctions and/or Fines.

(a) - (g) (No change.)

(h) The following disciplinary and eligibility sanction policies and guidelines shall be used by the Executive Director, the State Office of Administrative Hearings (SOAH), when recommending a sanction; and the Board in determining the appropriate penalty/sanction in disciplinary and eligibility matters:

(1) Disciplinary Sanctions for Fraud, Theft and Deception approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1646) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(2) Disciplinary Sanctions for Lying and Falsification approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1647) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(3) Disciplinary Sanctions for Sexual Misconduct approved by the Board and published on February 22, 2008 in the Texas Register (33 TexReg 1649) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(4) Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder and published on February 22, 2008 in the Texas Register (33 TexReg 1651) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/dsp.html.

(5) Disciplinary Guidelines for Criminal Conduct approved by the Board and published on March 9, 2007 in the Texas Register (32 TexReg 1409) and available on the Board's website at http://www.bon.state.tx.us/disciplinaryaction/discp-guide.html.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on April 21, 2008.

TRD-200802087

Joy Sparks

Assistant General Counsel

Texas Board of Nursing

Earliest possible date of adoption: June 8, 2008

For further information, please call: (512) 305-6824