Texas Register

TITLE 22 EXAMINING BOARDS
PART 9TEXAS MEDICAL BOARD
CHAPTER 190DISCIPLINARY GUIDELINES
SUBCHAPTER BVIOLATION GUIDELINES
RULE §190.8Violation Guidelines
ISSUE 05/08/2020
ACTION Emergency
Preamble Texas Admin Code Rule

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 valid practitioner-patient relationship. Establishing a practitioner-patient 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 subclauses (I) - (VII) of this clause, 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.

        (I)Influenza;

        (II)Invasive Haemophilus influenzae Type B;

        (III)Meningococcal disease;

        (IV)Pertussis;

        (V)Scabies;

        (VI)Varicella zoster; or

        (VII)a communicable disease determined by the Texas Department of State Health Services to:

          (-a-)present an immediate threat of a high risk of death or serious long-term disability to a large number of people; and

          (-b-)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;

    (L)failing to timely respond to communications from a patient;

    (M)failing to complete the required amounts of CME;

    (N)failing to maintain the confidentiality of a patient;

    (O)failing to report suspected abuse of a patient by a third party, when the report of that abuse is required by law;

    (P)behaving in a disruptive manner toward licensees, hospital personnel, other medical personnel, patients, family members or others that interferes with patient care or could be reasonably expected to adversely impact the quality of care rendered to a patient;

    (Q)entering into any agreement whereby a licensee, peer review committee, hospital, medical staff, or medical society is restricted in providing information to the board; and

    (R)commission of the following violations of federal and state laws whether or not there is a complaint, indictment, or conviction:

      (i)any felony;

      (ii)any offense in which assault or battery, or the attempt of either is an essential element;

      (iii)any criminal violation of the Medical Practice Act or other statutes regulating or pertaining to the practice of medicine;

      (iv)any criminal violation of statutes regulating other professions in the healing arts that the licensee is licensed in;

      (v)any misdemeanor involving moral turpitude as defined by paragraph (6) of this section;

      (vi)bribery or corrupt influence;

      (vii)burglary;

      (viii)child molestation;

      (ix)kidnapping or false imprisonment;

      (x)obstruction of governmental operations;

      (xi)public indecency; and

      (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.

     (U)Notice and Compliance Requirements Concerning COVID-19 Minimum Standards of Safe Practice

      (i)All physicians providing patient care or engaging in an in-person patient encounter, must implement the following minimum COVID-19 standards of safe practice.

        (I)a mask must be worn by both the patient and physician or the physician’s delegate when in proximity of the patient (meaning less than a 6-foot distance between the patient and the physician or the physician’s delegate);

        (II)follow policies the physician, medical and healthcare practice, or facility has in place regarding COVID-19 screening and testing and/or screening patients;

        (III)that, before any encounter, patients must be screened for potential symptoms of COVID-19 or verified previously screened within last 20 days; and

        (IV)that prior to care involving a medical procedure or surgery on the mucous membranes, including the respiratory tract, with a high risk of aerosol transmission, the minimum safety equipment used by a physician or physician’s delegate should include N95 masks, or an equivalent protection from aerosolized particles, and face shields.

      (ii)All physicians providing patient care or engaging in an in-person patient encounter in medical and healthcare practices, offices, and facilities, other than hospitals as defined under Chapter 241 of the Texas Health & Safety Code, shall post a COVID-19 Minimum Standards of Safe Practice Notice (COVID-19 Notice), delineating the minimum standards of safe practice described in this subsection, in each public area and treatment room or area of the office, practice, or facility.

  (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.

The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 1, 2020

TRD-202001738

Scott Freshour

General Counsel

Texas Medical Board

Effective date: May 1, 2020

Expiration date: August 28, 2020

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



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