Texas Medical Board adopts new rules

The Texas Medical Board has adopted a number of new rules that became effective on or about November 30, 2009. The rules impact applicants for licensure, current physicians, physician assistants, hospitals, and other entities where physicians provide services. The proposed rules were published in the October 2, 2009 issue of the Texas Register. For the most part, the TMB received few comments to the rules and adopted the proposed rules with minor revisions.

In light of House Bill 3674 passed by the 81st Texas Legislature, applicants for licensure may demonstrate board certification to satisfy requirements relating to substantial equivalence of medical education. Under the amended rule, applicants who are foreign medical graduates may apply one year of their postgraduate training obtained outside the United States or Canada for licensure requirements, if the training is approved by the American Board of Medical Specialists or the Bureau of Osteopathic Specialists.

At one time, licensees had only three chances to pass the jurisprudence examination. That restriction has now been removed; however, an applicant must demonstrate “good cause” before taking the exam for a fourth or subsequent time.

There has also been an amendment to what is known as the Ten Year Rule. Now applicants for licensure who have not passed and taken an acceptable licensure examination in the ten years prior to the date of the application must demonstrate board certification, rather than just passage of a monitored examination.

Under an amendment relating to the active practice of medicine, if an applicant for licensure is unable to demonstrate that he or she has actively practiced medicine prior to the date of the application, the applicant may present proof of board certification obtained within two years of the date of the application.

In light of Senate Bill 292 passed by the 81st Texas Legislature, applicants and licensees must now submit emergency contact information to the TMB as part of the physician’s registration application. Telephone numbers, fax numbers, and email addresses are required, if available and as appropriate. A physician must report any changes to the contact information not later than the 45th day after the date of the change. The rule states that the Board may not release the emergency contact information, except in limited circumstances, including a public health emergency, and then only to limited officials or another licensed physician.

An amendment was made to the rule governing retired physicians providing voluntary charity care. Retired physicians are no longer required to apply for this exemption while their license is active.

The TMB adopted new rules regarding criminal history evaluation letters. The purpose of the rules is to allow potential applicants for licensure to obtain criminal history evaluation letters regarding potential eligibility for licensure. An individual may apply for licensure, regardless of the determination in a criminal history evaluation letter. The fee for a criminal history evaluation letter is $100.

The postgraduate training permit rules were amended, effective November 29, 2009. The reference to “board-approved fellowship” has been removed from the definition of “fellowship” to avoid any misrepresentation that a board-approved fellowship may be obtained prior to the completion of other residency training.

The rules relating to faculty temporary licenses were amended. A nonprofit health corporation certified by the TMB is now defined as an “institution” for purposes of faculty temporary licenses. The amendment requires a sponsoring institution to affirm that it has reviewed the physician’s professional and criminal background. In accordance with Senate Bill 1225, the amendment allows nonprofit corporations that are affiliated with programs accredited by the Accreditation Council for Graduate Medical Education to sponsor physicians for faculty temporary licenses.

The TMB amended the rules relating to physician profiles. A licensee’s mailing address will be posted on the licensee’s profile only if the licensee does not provide a practice address. The amendment also requires the TMB to remove references to medical malpractice investigations if closed by the TMB for over five years with no disciplinary action ever being taken.

The TMB also expanded its authority to conduct investigations relating to impaired licensees. For example, the TMB may require, based on probable cause, that an applicant or licensee submit to a physical or mental examination on the basis of a request issued by the TMB Executive Director. The request letter must state the reasons for the request and the physician or physicians approved to conduct the exam.

New language in the rules on rehabilitation orders establishes the statutory authority and purpose of the Texas Physician Health Program and the use of rehabilitation orders. The new Texas Physician Health Program will have a governing board, physician health advisory committee and a medical director. Their qualifications and responsibilities are now described in the Board rules.

To achieve consistency with Texas law on administrative hearings, the TMB amended its rules on notices of adjudicative hearings. The required content of a notice of adjudicative hearing will be consistent with the State Office of Administrative Hearings. Notice must include a disclosure “in at least 12-point bold face type, that the factual allegations listed in the notice could be deemed admitted.” Under the amended rule, a default judgment may be granted for a party’s failure to appear at a hearing upon a remand of the case back to the Board.

The TMB rules now establish disciplinary sanction guidelines for assessing sanctions for violations of the Medical Practice Act. The rules indicate that the ultimate purpose of the disciplinary sanctions is to “protect the public, deter future violations, offer opportunities for rehabilitation if appropriate, punish violators, and deter others from violations.” 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. Each statutory violation constitutes a separate offense, even if arising out of a single act. The rule will help to achieve consistency in the sanction process because a significant number of specific violations are identified, along with the “standard sanction” that may be assessed.

The latest amendments to the rules also contain changes regarding office-based anesthesia services and pain management clinics. The definition of “anesthesia services” has been amended in the rules to be consistent with the definition in the Texas Occupations Code. The definition of “pain management clinic” is defined in accordance with Senate Bill 911 passed by the 81st Legislature. Effective September 1, 2010, pain management clinics must be certified by the Board. The rules establish strict requirements for certification. The amended rules also address the grounds on which the TMB will inspect pain management clinics. Rules now govern the operation of pain management clinics, including staffing of personnel, standards of care, and patient billing procedures for pain management clinics that are subject to the Board’s authority. While a number of entities are exempt from certification (e.g., hospitals, hospices), the regulated pain management clinics may not operate in Texas unless the clinic is owned and operated by a medical director with an unrestricted license to practice medicine in Texas. The responsibilities of the clinic’s medical director are thoroughly defined in the rules.

The rules regarding standing delegation orders have also been amended. The amendments change the requirements relating to the delegation of the carrying out or signing of prescription drug orders at primary, alternate, and facility-based practice sites. Under the amended rules, physicians may now delegate to four (rather than three) physician assistants or advanced practice nurses (or their full-time equivalents) practicing at the physician’s primary or alternate practice site, unless a waiver is granted. Physicians who delegate the carrying out or signing of a prescription drug order must register with the Board the name and license number of the physician assistants or the advanced practice nurses to whom the delegation is made.

The authority of a physician to delegate obstetrical services has similarly been expanded. A physician may now delegate to four (rather than three) nurse midwives or physician assistants or their full-time equivalents, unless a waiver is granted.

The grounds for obtaining waivers are detailed in the rules. Under the amended rules, waivers may be granted for an alternate practice site if the Board determines that the types of health care services provided by a physician assistant or advanced practice nurse are limited in nature and duration and are within the scope of delegated authority. The Board must also determine that patient health care will not be adversely affected if a waiver is granted. Thus, in certain circumstances, the Board may modify or waive the limitation on the number of physician assistants or advanced practice nurses (not to exceed six or their full-time equivalents); the mileage limitation (75 miles for an alternate practice site under the amended rule); and the on-site supervision requirements, except that the physician must be available on-site at regular intervals and when on-site must be available to treat patients.

In light of additional new legislation, physicians may delegate to pharmacists at hospitals, hospital-based clinics, and academic institutions the management of a patient’s drug therapy treatment under certain conditions. This article does not address all of the amendments to the TMB rules that have become recently effective, but most of the changes have been identified. The TMB rules are important to all Board licensure applicants and licensees who practice in Texas. The new rules, which appeared in proposed form in October and were adopted in late November, should be on every physician’s reading list for 2010. Happy reading and Happy New Year!