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, [or] 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 proper professional relationship with the patient. (i)A proper relationship, at a minimum requires: (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 such as patient history, mental status examination, physical examination, and appropriate diagnostic and laboratory testing. An online or telephonic evaluation by questionnaire is inadequate; (III)discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options; and (IV)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 subclauses (I) through (IV) of this clause, 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 medications to a patient's family members if the patient has an illness determined by the Centers for Disease Control and Prevention, the World Health Organization, or the Governor's office to be pandemic. (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. (2) - (6)(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 September 19, 2011
TRD-201103850 Mari Robinson, J.D.
Executive Director
Texas Medical Board
Earliest possible date of adoption: October 30, 2011
For further information, please call: (512) 305-7016
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