| (xii) substance abuse or substance diversion.
(S) contacting or attempting to contact a complainant,
witness, medical peer review committee member, or professional review
body as defined under §160.001 of the Act regarding statements
used in an active investigation by the board for purposes of intimidation.
It is not a violation for a licensee under investigation to have contact
with a complainant, witness, medical peer review committee member,
or professional review body if the contact is in the normal course
of business and unrelated to the investigation.
(T) failing to timely submit complete forms for purposes
of registration as set out in §166.1 of this title (relating
to Physician Registration) when it is the intent of the licensee to
maintain licensure with the board as indicated through submission
of an application and fees prior to one year after a permit expires.
(3) Disciplinary actions by another state board. A
voluntary surrender of a license in lieu of disciplinary action or
while an investigation or disciplinary action is pending constitutes
disciplinary action within the meaning of the Act. The voluntary surrender
shall be considered to be based on acts that are alleged in a complaint
or stated in the order of voluntary surrender, whether or not the
licensee has denied the facts involved.
(4) Disciplinary actions by peer groups. A voluntary
relinquishment of privileges or a failure to renew privileges with
a hospital, medical staff, or medical association or society while
investigation or a disciplinary action is pending or is on appeal
constitutes disciplinary action that is appropriate and reasonably
supported by evidence submitted to the board, within the meaning of §164.051(a)(7)
the Act.
(5) Repeated or recurring meritorious health care liability
claims. It shall be presumed that a claim is "meritorious," within
the meaning of §164.051(a)(8) of the Act, if there is a finding
by a judge or jury that a licensee was negligent in the care of a
patient or if there is a settlement of a claim without the filing
of a lawsuit or a settlement of a lawsuit against the licensee in
the amount of $50,000 or more. Claims are "repeated or recurring,"
within the meaning of §164.051(a)(8) of the Act, if there are
three or more claims in any five-year period. The date of the claim
shall be the date the licensee or licensee's medical liability insurer
is first notified of the claim, as reported to the board pursuant
to §160.052 of the Act or otherwise.
(6) Discipline based on Criminal Conviction. The board
is authorized by the following separate statutes to take disciplinary
action against a licensee based on a criminal conviction:
(A) Felonies.
(i) Section 164.051(a)(2)(B) of the Medical Practice
Act, §204.303(a)(2) of the Physician Assistant Act, and §203.351(a)(7)
of the Acupuncture Act, (collectively, the "Licensing Acts") authorize
the board to take disciplinary action based on a conviction, deferred
adjudication, community supervision, or deferred disposition for any
felony.
(ii) Chapter 53, Texas Occupations Code authorizes
the board to revoke or suspend a license on the grounds that a person
has been convicted of a felony that directly relates to the duties
and responsibilities of the licensed occupation.
(iii) Because the provisions of the Licensing Acts
may be based on either conviction or a form of deferred adjudication,
the board determines that the requirements of the Act are stricter
than the requirements of Chapter 53 and, therefore, the board is not
required to comply with Chapter 53, pursuant to §153.0045 of
the Act.
(iv) Upon the initial conviction for any felony, the
board shall suspend a physician's license, in accordance with §164.057(a)(1)(A),
of the Act.
(v) Upon final conviction for any felony, the board
shall revoke a physician's license, in accordance with §164.057(b)
of the Act.
(B) Misdemeanors.
(i) Section 164.051(a)(2)(B) of the Act authorizes
the board to take disciplinary action based on a conviction, deferred
adjudication, community supervision, or deferred disposition for any
misdemeanor involving moral turpitude.
(ii) Chapter 53, Texas Occupations Code authorizes
the board to revoke or suspend a license on the grounds that a person
has been convicted of a misdemeanor that directly relates to the duties
and responsibilities of the licensed occupation.
(iii) For a misdemeanor involving moral turpitude,
the provisions of §164.051(a)(2) of the Medical Practice Act
and §205.351(a)(7) of the Acupuncture Act, may be based on either
conviction or a form of deferred adjudication, and therefore the board
determines that the requirements of these licensing acts are stricter
than the requirements of Chapter 53 and the board is not required
to comply with Chapter 53, pursuant to §153.0045 of the Act.
(iv) The Medical Practice Act and the Acupuncture Act
do not authorize disciplinary action based on conviction for a misdemeanor
that does not involve moral turpitude. The Physician Assistant Act
does not authorize disciplinary action based on conviction for a misdemeanor.
Therefore these licensing acts are not stricter than the requirements
of Chapter 53 in those situations. In such situations, the conviction
will be considered to directly relate to the practice of medicine
if the act:
(I) arose out of the practice of medicine, as defined
by the Act;
(II) arose out of the practice location of the physician;
(III) involves a patient or former patient;
(IV) involves any other health professional with whom
the physician has or has had a professional relationship;
(V) involves the prescribing, sale, distribution, or
use of any dangerous drug or controlled substance; or
(VI) involves the billing for or any financial arrangement
regarding any medical service;
(v) Misdemeanors involving moral turpitude. Misdemeanors
involving moral turpitude, within the meaning of the Act, are those
which:
(I) have been found by Texas state courts to be misdemeanors
of moral turpitude;
(II) involve dishonesty, fraud, deceit, misrepresentation,
violence; or
(III) reflect adversely on a licensee's honesty, trustworthiness,
or fitness to practice under the scope of the person's license.
(vi) Those misdemeanors found by state Texas courts
not to be crimes of moral turpitude are not misdemeanors of moral
turpitude within the meaning of the Act.
(C) In accordance with §164.058 of the Act, the
board shall suspend the license of a licensee serving a prison term
in a state or federal penitentiary during the term of the incarceration
regardless of the offense.
(7) Violations of the Health and Safety Code. In accordance
with §164.055 of the Act, the Board shall take appropriate disciplinary
action against a physician who violates §170.002 or Chapter 171,
Texas Health and Safety Code.
(8) For purposes of §164.051(a)(4)(C) of the Texas
Occupations Code, any use of a substance listed in Schedule I, as
established by the Commissioner of the Department of State Health
Services under Chapter 481, or as established under the Comprehensive
Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. §801
et seq.) constitutes excessive use of such substance.
|
| Source Note: The provisions of this §190.8 adopted to be effective November 30, 2003, 28 TexReg 10496; amended to be effective July 4, 2004, 29 TexReg 6092; amended to be effective January 25, 2006, 31 TexReg 396; amended to be effective July 3, 2007, 32 TexReg 3994; amended to be effective June 24, 2009, 34 TexReg 4124; amended to be effective October 3, 2010, 35 TexReg 8754; amended to be effective June 28, 2011, 36 TexReg 3921; amended to be effective December 18, 2011, 36 TexReg 8378; amended to be effective July 4, 2012, 37 TexReg 4929; amended to be effective December 23, 2012, 37 TexReg 9774; amended to be effective August 3, 2014, 39 TexReg 5750; amended to be effectiveDecember 7, 2014, 39 TexReg 9345; amended to be effective June 3, 2015, 40 TexReg 3159; amended to be effective July 7, 2016, 41 TexReg 4835; amended to be effective February 22, 2018, 43 TexReg 863; amended to be effective July 22, 2018, 43 TexReg 4750 |
