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 [
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] Establishing a
practitioner-patient [professional] relationship
is not required for:
(i)[(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)[(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 [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.
(I)[(-a-)] Influenza;
(II)[(-b-)] Invasive Haemophilus
influenzae Type B;
(III)[(-c-)] Meningococcal disease;
(IV)[(-d-)] Pertussis;
(V)[(-e-)] Scabies;
(VI)[(-f-)] Varicella zoster;
or
(VII)[(-g-)] a communicable
disease determined by the Texas Department of State Health Services
to:
(-a-)[(-1-)] present an immediate
threat of a high risk of death or serious long-term disability to
a large number of people; and
(-b-)[(-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) - (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 September 1, 2017
TRD-201703494 Mari Robinson, J.D.
Executive Director
Texas Medical Board
Earliest possible date of adoption: October 15, 2017
For further information, please call: (512) 305-7016
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