When substantiated by credible evidence, the following acts,
practices, and conduct are considered to be violations of the Act.
The following shall not be considered an exhaustive or exclusive listing.
(1) Practice Inconsistent with Public Health and Welfare.
Failure to practice in an acceptable professional manner consistent
with public health and welfare within the meaning of the Act includes,
but is not limited to:
(A) failure to treat a patient according to the generally
accepted standard of care;
(B) negligence in performing medical services;
(C) failure to use proper diligence in one's professional
practice;
(D) failure to safeguard against potential complications;
(E) improper utilization review;
(F) failure to timely respond in person when on-call
or when requested by emergency room or hospital staff;
(G) failure to disclose reasonably foreseeable side
effects of a procedure or treatment;
(H) failure to disclose reasonable alternative treatments
to a proposed procedure or treatment;
(I) failure to obtain informed consent from the patient
or other person authorized by law to consent to treatment on the patient's
behalf before performing tests, treatments, procedures, or autopsies
as required under Chapter 49 of the Code of Criminal Procedure;
(J) termination of patient care without providing reasonable
notice to the patient;
(K) prescription or administration of a drug in a manner
that is not in compliance with Chapter 200 of this title (relating
to Standards for Physicians Practicing Complementary and Alternative
Medicine) or, that is either not approved by the Food and Drug Administration
(FDA) for use in human beings or does not meet standards for off-label
use, unless an exemption has otherwise been obtained from the FDA;
(L) prescription of any dangerous drug or controlled
substance without first establishing a defined physician-patient relationship.
(i) A defined physician-patient relationship must include,
at a minimum:
(I) establishing that the person requesting the medication
is in fact who the person claims to be;
(II) establishing a diagnosis through the use of acceptable
medical practices, which includes documenting and performing:
(-a-) patient history;
(-b-) mental status examination;
(-c-) physical examination that must be performed by
either a face-to-face visit or in-person evaluation as defined in §174.2(3)
and (4) of this title (relating to Definitions). The requirement for
a face-to-face or in-person evaluation does not apply to mental health
services, except in cases of behavioral emergencies, as defined by
25 TAC §415.253 (relating to Definitions); and
(-d-) appropriate diagnostic and laboratory testing.
(III) An online questionnaire or questions and answers
exchanged through email, electronic text, or chat or telephonic evaluation
of or consultation with a patient are inadequate to establish a defined
physician-patient relationship;
(IV) discussing with the patient the diagnosis and
the evidence for it, the risks and benefits of various treatment options;
and
(V) ensuring the availability of the licensee or coverage
of the patient for appropriate follow-up care.
(ii) A proper professional relationship is also considered
to exist between a patient certified as having a terminal illness
and who is enrolled in a hospice program, or another similar formal
program which meets the requirements of clause (i)(I) - (IV) of this
subparagraph, and the physician supporting the program. To have a
terminal condition for the purposes of this rule, the patient must
be certified as having a terminal illness under the requirements of
40 TAC §97.403 (relating to Standards Specific to Agencies Licensed
to Provide Hospice Service) and 42 CFR 418.22.
(iii) Notwithstanding the provisions of this subparagraph,
establishing a professional relationship is not required for:
(I) a physician to prescribe medications for sexually
transmitted diseases for partners of the physician's established patient,
if the physician determines that the patient may have been infected
with a sexually transmitted disease; or
(II) a physician to prescribe dangerous drugs and/or
vaccines for post-exposure prophylaxis of disease for close contacts
of a patient if the physician diagnoses the patient with one or more
of the following infectious diseases listed in items (-a-) - (-g-)
of this subclause, or is providing public health medical services
pursuant to a memorandum of understanding entered into between the
board and the Department of State Health Services. For the purpose
of this clause, a "close contact" is defined as a member of the patient's
household or any person with significant exposure to the patient for
whom post-exposure prophylaxis is recommended by the Centers for Disease
Control and Prevention, Texas Department of State Health Services,
or local health department or authority ("local health authority or
department" as defined under Chapter 81 of the Texas Health and Safety
Code). The physician must document the treatment provided to the patient's
close contact(s) in the patient's medical record. Such documentation
at a minimum must include the close contact's name, drug prescribed,
and the date that the prescription was provided.
(-a-) Influenza;
(-b-) Invasive Haemophilus influenzae Type B;
(-c-) Meningococcal disease;
(-d-) Pertussis;
(-e-) Scabies;
(-f-) Varicella zoster; or
(-g-) a communicable disease determined by the Texas
Department of State Health Services to:
(-1-) present an immediate threat of a high risk of
death or serious long-term disability to a large number of people;
and
(-2-) create a substantial risk of public exposure
because of the disease's high level of contagion or the method by
which the disease is transmitted.
(M) inappropriate prescription of dangerous drugs or
controlled substances to oneself, family members, or others in which
there is a close personal relationship that would include the following:
(i) prescribing or administering dangerous drugs or
controlled substances without taking an adequate history, performing
a proper physical examination, and creating and maintaining adequate
records; and
(ii) prescribing controlled substances in the absence
of immediate need. "Immediate need" shall be considered no more than
72 hours.
(N) providing on-call back-up by a person who is not
licensed to practice medicine in this state or who does not have adequate
training and experience.
(O) delegating the performance of nerve conduction
studies to a person who is not licensed as a physician or physical
therapist without:
(i) first selecting the appropriate nerve conductions
to be performed;
(ii) ensuring that the person performing the study
is adequately trained;
(iii) being onsite during the performance of the study;
and
(iv) being immediately available to provide the person
with assistance and direction.
(2) Unprofessional and Dishonorable Conduct. Unprofessional
and dishonorable conduct that is likely to deceive, defraud, or injure
the public within the meaning of the Act includes, but is not limited
to:
(A) violating a board order;
(B) failing to comply with a board subpoena or request
for information or action;
(C) providing false information to the board;
(D) failing to cooperate with board staff;
(E) engaging in sexual contact with a patient;
(F) engaging in sexually inappropriate behavior or
comments directed towards a patient;
(G) becoming financially or personally involved with
a patient in an inappropriate manner;
(H) referring a patient to a facility, laboratory,
or pharmacy without disclosing the existence of the licensee's ownership
interest in the entity to the patient;
(I) using false, misleading, or deceptive advertising;
(J) providing medically unnecessary services to a patient
or submitting a billing statement to a patient or a third party payer
that the licensee knew or should have known was improper. "Improper"
means the billing statement is false, fraudulent, misrepresents services
provided, or otherwise does not meet professional standards;
(K) behaving in an abusive or assaultive manner towards
a patient or the patient's family or representatives that interferes
with patient care or could be reasonably expected to adversely impact
the quality of care rendered to a patient;
Cont'd... |
