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 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 dangerous drugs and/or
vaccines for post-exposure prophylaxis of disease for close contacts
of a patient [a patient's close contacts] 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).[
: any person who provided care for the patient while the patient was
symptomatic; or a member of the patient's household.] 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-)Chicken Pox;]
(-a-)[(b)] Influenza;
(-b-)[(c)] Invasive Haemophilus
influenzae Type B;
(-c-)[(d)] Meningococcal disease;
(-d-)[(e)] Pertussis;
(-e-)[(f)] Scabies; [or]
(-f-)[(g)] Varicella zoster;
or [Shingles.]
(-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) - (O)(No change.)
(2) - (8)(No change.)
The agency certifies that legal counsel has
reviewed the proposal and found it to be within the state agency's
legal authority to adopt.
Filed with the
Office
of the Secretary of State on March 18, 2016
TRD-201601300 Mari Robinson, J.D.
Executive Director
Texas Medical Board
Earliest possible date of adoption: May 1, 2016
For further information, please call: (512) 305-7016
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