|
These disciplinary sanction guidelines are designed to provide guidance in assessing sanctions for violations of the Medical Practice Act. The ultimate purpose of disciplinary sanctions is to protect the public, deter future violations, offer opportunities for rehabilitation if appropriate, punish violators, and deter others from violations. These guidelines are intended to promote consistent sanctions for similar violations, facilitate timely resolution of cases, and encourage settlements. (1)The standard sanctions outlined below shall apply to cases involving a single violation of the Act, and in which there are no aggravating or mitigating factors that apply. The board may impose more restrictive sanctions when there are multiple violations of the Act. The board may impose more or less severe or restrictive sanctions, based on any aggravating and/or mitigating factors listed in §190.15 of this chapter (relating to Aggravating and Mitigating Factors) that are found to apply in a particular case. (2)The standard and minimum sanctions outlined below are applicable to first time violators. In accordance with §164.001(g)(2) of the Act, the board shall consider revoking the person's license if the person is a repeat offender. (3)The standard and minimum sanctions outlined below are based on the conclusion stated in Section 164.001(j) of the Act that a violation related directly to patient care is more serious than one that involves only an administrative violation. An administrative violation may be handled informally in accordance with Section 187.14(7) of this title (relating to Informal Resolutions of Administrative Violations). Administrative violations may be more or less serious, depending on the nature of the violation. Administrative violations that are considered by the board to be more serious are designated as being an "aggravated administrative violation". (4)The maximum sanction in all cases is revocation of the licensee's license, which may be accompanied by an administrative penalty of up to $5,000 per violation. In accordance with §165.003 of the Act, each day the violation continues is a separate violation. (5)Each statutory violation constitutes a separate offense, even if arising out of a single act. (6)If the licensee acknowledges a violation and agrees to comply with terms and conditions of remedial action through an agreed order, the standard sanctions may be reduced. (7)The following standard sanctions shall apply to violations of the Act: (A)Failure to timely provide copies of medical or billing records upon written request is an administrative violation. (i)Violation of: (I)Section 159.006 - information furnished by licensee; and (II)Section 164.052(a)(2) - violation of Board Rule, to wit: §165.2 (relating to Medical Record Release and Charges). (ii)Standard Sanction: (I)furnishing medical records requested; (II)restitution; and (III)administrative penalty of $1,000 per violation. (B)Failure to timely comply with a board subpoena or request for information is an administrative violation. (i)Violation of §160.009 and board rule §179.4 (relating to Request for Information and Records from Physicians). (ii)Standard Sanction: (I)public reprimand; (II)compliance with the subpoena or request; and (III)administrative penalty of $500 for each day of noncompliance. (C)Conviction or deferred adjudication for a felony may be either an aggravated administrative violation or a patient care violation, depending on the facts underlying the offense. (i)Violation of §164.051(a)(2) (A) of the Medical Practice Act, §204.303(a)(2) of the Physician Assistant Act, and §205.351(a)(7) of the Acupuncture Act. (ii)In accordance with §164.057 (a)(1)(A) of the Medical Practice Act, the board shall suspend a licensee's license on proof that the licensee has been initially convicted of any felony. (iii)In accordance with §164.057(b) of the Medical Practice Act, the board shall revoke the licensee's license on final conviction for a felony. (D)Conviction or deferred adjudication for a misdemeanor involving moral turpitude may be either an aggravated administrative violation or a patient care violation, depending on the facts underlying the offense. (i)Violation of §164.051(a)(2)(B) of the Medical Practice Act and §205.351(a)(7) of the Acupuncture Act. (ii)Standard Sanction: (I)If the offense is related to the duties and responsibilities of the licensed occupation, the standard sanction shall be revocation of the license. (II)If the offense is not related to the duties and responsibilities of the licensed occupation, the standard sanction shall require: (-a-)Suspension of license, which may be probated after 90 days; (-b-)compliance with all restrictions, conditions and terms imposed by any order of probation or deferred adjudication; (-c-)public reprimand; and (-d-)administrative penalty of $2,000 per violation. (E)Conviction of a misdemeanor that directly relates to the duties and responsibilities of the licensed occupation may be either an administrative violation or a patient care violation, depending on the facts underlying the offense. (i)Violation of §53.021, Tex. Occ. Code. (ii)Standard Sanction: (I)If the offense involves patient care, the standard sanction shall be revocation of the license. (II)If the offense does not involve patient care and is an administrative violation only, the standard sanction shall require: (-a-)compliance with all restrictions, conditions and terms imposed by any order of probation or deferred adjudication; (-b-)public reprimand; and (-c-)administrative penalty of $2,000 per violation. (F)Conviction of Certain Misdemeanors may be either an administrative violation or a patient care violation, depending on the facts underlying the offense. (i)In accordance with §164.057(a)(1)(B), (C), (D), and (E) of the Medical Practice Act, the board shall suspend a licensee's license on proof that the licensee has been initially convicted any of the following misdemeanors: (I)a misdemeanor under Chapter 22, Penal Code, other than a misdemeanor punishable by fine only; (II)a misdemeanor on conviction of which a defendant is required to register as a sex offender under Chapter 62, Code of Criminal Procedure; (III)a misdemeanor under Section 25.07, Penal Code, or (IV)a misdemeanor under Section 25.071, Penal Code. (ii)In accordance with §164.057(b) of the Medical Practice Act, the board shall revoke the licensee's license on final conviction of any of these misdemeanors. (G)Failure to obtain/document continuing medical education is an administrative violation. (i)Violation of §164.051(a)(3) or violation of board rule §166.2 (relating to Continuing Medical Education). (ii)Standard Sanction: (I)directed CME; and (II)administrative penalty of $1,000 per violation. (H)Impairment of ability to practice may be either an aggravated administrative violation or a patient care violation, depending on the whether a violation of the standard of care has resulted from the impairment. (i)Within the meaning of §164.051(a)(4) - inability to practice medicine with reasonable skill and safety to patients because of illness, drunkenness, excessive use of drugs, or a mental condition. (ii)Standard Sanction: suspension of license until such time as the licensee can demonstrate that the licensee is safe and competent to practice medicine. (iii)Alternate Standard Sanction: probation of suspension for 10 years under terms and conditions, including, but not limited to: (I)drug testing; (II)restrictions on practice; (III)alcoholics anonymous/narcotics anonymous attendance; (IV)psychiatric/psychological evaluation and treatment; and (V)proficiency testing. (iv)Chapter 180 of this title (relating to Rehabilitation Orders) provides guidance on whether a licensee is eligible for and should be placed under a confidential rehabilitation order. (I)Failure to maintain adequate medical records may be either an administrative violation or a patient care violation, depending on whether a patient was harmed because of the failure. (i)Violation of: (I)Section 164.051(a)(6) - professional failure to practice medicine consistent with the public health and welfare; (II)Section 164.054 - additional requirements regarding drug records; (III)Section 164.053(a)(2) - failure to keep complete and accurate records of purchases and disposals of controlled substances and dangerous drugs, and (IV)Section 164.051(a)(3) - violation of board rules, including: (-a-)board rule §165.1(a) (relating to Medical Records) - failure to maintain adequate medical records; and (-b-)board rule §170.3 (relating to Authority of Physician to Prescribe for the Treatment of Pain) - prescribing guidelines for the treatment of pain. (ii)Standard Sanction: probation for 2 years under terms and conditions, including, but not limited to: (I)competency testing; (II)directed CME; (III)monitoring of practice; and (IV)administrative penalty of $2,000 per violation. (J)Quality of Care is a patient care violation. (i)Violations of: (I)Section 164.051(a)(6) - failure to practice medicine in a professional manner consistent with the public health and welfare; and (II)Section 164.051(a)(8) - repeated and meritorious medical malpractice claims. (ii)Standard Sanction: (I)The standard sanction, which shall apply in the case of a single patient with no substantial patient harm and no other aggravating or mitigating circumstances, shall be one or more of the following : (-a-)limiting the practice of the person, or excluding one or more specified activities of medicine; (-b-)proficiency testing; (-c-)directed CME; (-d-)monitoring of the practice; (-e-)public reprimand; and (-f-)administrative penalty of $3,000 per violation. (II)Standard sanction in a case involving patient harm or other aggravating factors shall be: (-a-)suspension of license for 3 years; (-b-)suspension may be probated after 90 days under terms and conditions similar to those described in subclause (I) of this clause, immediately preceding. (K)Discipline by peers may be either an administrative violation or a patient care violation, depending on the facts underlying the disciplinary action. (i)Within the meaning of §164.051(a)(7). (ii)Standard Sanction: See the applicable standard sanction for the violation of the Texas Medical Practice Act that most closely relates to the basis of the disciplinary action by peers. In addition, the licensee shall comply with all restrictions, conditions and terms imposed by the disciplinary action by peers. (iii)Alternate Standard Sanction: (I)public reprimand; (II)comply with all restrictions, conditions and terms imposed by the disciplinary action by peers; and (III)administrative penalty of $1,000 per violation. (L)Disciplined by another state or military may be either an administrative violation or a patient care violation, depending on the facts underlying the disciplinary action. (i)Within the meaning of §164.051(a)(9). (ii)Standard Sanction: See the applicable standard sanction for the most similar violation of the Act. In addition, the licensee shall comply with all restrictions, conditions and terms imposed by the other state or military. (iii)Alternate Standard Sanction: (I)comply with all restrictions, conditions and terms imposed by the other state or military; and (II)administrative penalty of $1,000 per violation. (iv)The standard sanction for a licensee whose license has been revoked by another state or who has voluntarily surrendered his license while an investigation or disciplinary action is pending shall be revocation of the license. (M)Improper prescribing, dispensing, or administering of drugs is a patient care violation. (i)Violation of: (I)Section 164.053(a)(3) - prescribing or dispensing drugs to a drug abuser; (II)Section 164.053(a)(5) - prescribing or administering drugs in a non therapeutic manner; and (III)Section 164.053(a)(6) - prescribing or administering drugs in a manner inconsistent with the public health and welfare. (ii)Standard Sanction: The standard sanction, which shall apply in the case of a single patient with no substantial patient harm and no other aggravating or mitigating circumstances, shall be: (I)suspension of license for 2 years. (II)suspension probated after 60 days under terms and conditions, including, but not limited to: (-a-)restrictions on practice, including prescribing, administering controlled substances and dangerous drugs; (-b-)proficiency testing; (-c-)directed CME; and (-d-)administrative penalty of $2,000 per violation. (N)Writing false or fictitious prescriptions is a patient care violation. (i)Violation of §164.053(a)(4). (ii)Standard Sanction: (I)suspension of license for 4 years; (II)suspension probated after 90 days under terms and conditions, including, but not limited to: (-a-)restrictions on practice including restrictions on prescribing, administering controlled substances and dangerous drugs; (-b-)proficiency testing; (-c-)directed CME; and (-d-)administrative penalty of $2,000 per violation. (O)Fraudulent, improper billing practices is an aggravated administrative violation. (i)Violation of §164.053(a)(7). (ii)Standard Sanction: (I)suspension of license for 3 years; (II)suspension probated after 90 days under terms and conditions, including, but not limited to: (-a-)monitoring of practice, including billing practices; (-b-)directed CME; (-c-)restitution; and (-d-)administrative penalty of $3,000 per violation. (P)Failing to adequately supervise subordinates and improper delegation is a patient care violation. (i)Violation of: (I)Section 164.053(a)(8) and (II)Section 164.053(a)(9). (ii)Standard Sanction: (I)suspension of license for 3 years; (II)suspension probated after 60 days under terms and conditions, including, but not limited to: (-a-)monitoring of practice; (-b-)directed CME; and (-c-)administrative penalty of $2,000 per violation. (Q)Failure to comply with the terms and conditions of a Board order may be either an aggravated administrative violation or a patient care violation, depending on the facts underlying the failure. (i)Within the meaning of §164.103 - rescission of probation. (ii)Standard Sanction: (I)public reprimand; (II)extension of the Board order by 6 months for each violation; and (III)administrative penalty of $2,000 per violation. (iii)Unless the board finds that the facts warrant a less severe sanction, the license of a person who violates a Board order to abstain from the consumption of alcohol and/or drugs, as evidenced by a positive drug test or other proof, shall be revoked. (R)For any violation of the Act that is not specifically mentioned in this rule, the board shall apply a sanction that generally follows the spirit and scheme of the sanctions stated in subparagraphs (A) - (R) of this paragraph.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed
with the Office of the Secretary of State on January 5, 2006
TRD-200600090 Donald W. Patrick, MD, JD
Executive Director
Texas Medical
Board
Effective date: January 25, 2006
Proposal publication date: November 4, 2005
For further information, please call: (512) 305-7016
|
