Current through Reg. 49, No. 52; December 27, 2024
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
relationship. Establishing a practitioner-patient 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 if the physician diagnoses the patient with one or more of the
following infectious diseases listed in subclauses (I) - (VII) of this clause,
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.
(II) Invasive Haemophilus influenzae Type
B;
(III) Meningococcal
disease;
(VI) Varicella zoster; or
(VII) a communicable disease determined by
the Texas Department of State Health Services to:
(-a-) present an immediate threat of a high
risk of death or serious long-term disability to a large number of people;
and
(-b-) 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) Unprofessional and Dishonorable Conduct.
Unprofessional and dishonorable conduct that is likely to deceive, defraud, or
injure the public within the meaning of the Act includes, but is not limited
to:
(A) violating a board order;
(B) failing to comply with a board subpoena
or request for information or action;
(C) providing false information to the
board;
(D) failing to cooperate
with board staff;
(E) engaging in
sexual contact with a patient;
(F)
engaging in sexually inappropriate behavior or comments directed towards a
patient;
(G) becoming financially
or personally involved with a patient in an inappropriate manner;
(H) referring a patient to a facility,
laboratory, or pharmacy without disclosing the existence of the licensee's
ownership interest in the entity to the patient;
(I) using false, misleading, or deceptive
advertising;
(J) providing
medically unnecessary services to a patient or submitting a billing statement
to a patient or a third party payer that the licensee knew or should have known
was improper. "Improper" means the billing statement is false, fraudulent,
misrepresents services provided, or otherwise does not meet professional
standards;
(K) behaving in an
abusive or assaultive manner towards a patient or the patient's family or
representatives that interferes with patient care or could be reasonably
expected to adversely impact the quality of care rendered to a
patient;
(L) failing to timely
respond to communications from a patient;
(M) failing to complete the required amounts
of CME;
(N) failing to maintain the
confidentiality of a patient;
(O)
failing to report suspected abuse of a patient by a third party, when the
report of that abuse is required by law;
(P) behaving in a disruptive manner toward
licensees, hospital personnel, other medical personnel, patients, family
members or others that interferes with patient care or could be reasonably
expected to adversely impact the quality of care rendered to a
patient;
(Q) entering into any
agreement whereby a licensee, peer review committee, hospital, medical staff,
or medical society is restricted in providing information to the board;
and
(R) commission of the following
violations of federal and state laws whether or not there is a complaint,
indictment, or conviction:
(ii) any offense in which
assault or battery, or the attempt of either is an essential element;
(iii) any criminal violation of the Medical
Practice Act or other statutes regulating or pertaining to the practice of
medicine;
(iv) any criminal
violation of statutes regulating other professions in the healing arts that the
licensee is licensed in;
(v) any
misdemeanor involving moral turpitude as defined by paragraph (6) of this
section;
(vi) bribery or corrupt
influence;
(viii) child
molestation;
(ix) kidnapping or
false imprisonment;
(x) obstruction
of governmental operations;
(xi)
public indecency; and
(xii)
substance abuse or substance diversion.
(S) contacting or attempting to contact a
complainant, witness, medical peer review committee member, or professional
review body as defined under §160.001 of the Act regarding statements used
in an active investigation by the board for purposes of intimidation. It is not
a violation for a licensee under investigation to have contact with a
complainant, witness, medical peer review committee member, or professional
review body if the contact is in the normal course of business and unrelated to
the investigation.
(T) failing to
timely submit complete forms for purposes of registration as set out in §
166.1 of
this title (relating to Physician Registration) when it is the intent of the
licensee to maintain licensure with the board as indicated through submission
of an application and fees prior to one year after a permit
expires.
(3) Disciplinary
actions by another state board. A voluntary surrender of a license in lieu of
disciplinary action or while an investigation or disciplinary action is pending
constitutes disciplinary action within the meaning of the Act. The voluntary
surrender shall be considered to be based on acts that are alleged in a
complaint or stated in the order of voluntary surrender, whether or not the
licensee has denied the facts involved.
(4) Disciplinary actions by peer groups. A
voluntary relinquishment of privileges or a failure to renew privileges with a
hospital, medical staff, or medical association or society while investigation
or a disciplinary action is pending or is on appeal constitutes disciplinary
action that is appropriate and reasonably supported by evidence submitted to
the board, within the meaning of §164.051(a)(7) the Act.
(5) Repeated or recurring meritorious health
care liability claims. It shall be presumed that a claim is "meritorious,"
within the meaning of §164.051(a)(8) of the Act, if there is a finding by
a judge or jury that a licensee was negligent in the care of a patient or if
there is a settlement of a claim without the filing of a lawsuit or a
settlement of a lawsuit against the licensee in the amount of $50,000 or more.
Claims are "repeated or recurring," within the meaning of §164.051(a)(8)
of the Act, if there are three or more claims in any five-year period. The date
of the claim shall be the date the licensee or licensee's medical liability
insurer is first notified of the claim, as reported to the board pursuant to
§160.052 of the Act or otherwise.
(6) Discipline based on Criminal Conviction.
The board is authorized by the following separate statutes to take disciplinary
action against a licensee based on a criminal conviction:
(A) Felonies.
(i) Section 164.051(a)(2)(B) of the Medical
Practice Act, §204.303(a)(2) of the Physician Assistant Act, and
§203.351(a)(7) of the Acupuncture Act, (collectively, the "Licensing
Acts") authorize the board to take disciplinary action based on a conviction,
deferred adjudication, community supervision, or deferred disposition for any
felony.
(ii) Chapter 53, Texas
Occupations Code authorizes the board to revoke or suspend a license on the
grounds that a person has been convicted of a felony that directly relates to
the duties and responsibilities of the licensed occupation.
(iii) Because the provisions of the Licensing
Acts may be based on either conviction or a form of deferred adjudication, the
board determines that the requirements of the Act are stricter than the
requirements of Chapter 53 and, therefore, the board is not required to comply
with Chapter 53, pursuant to §153.0045 of the Act.
(iv) Upon the initial conviction for any
felony, the board shall suspend a physician's license, in accordance with
§164.057(a)(1)(A), of the Act.
(v) Upon final conviction for any felony, the
board shall revoke a physician's license, in accordance with §164.057(b)
of the Act.
(B)
Misdemeanors.
(i) Section 164.051(a)(2)(B) of
the Act authorizes the board to take disciplinary action based on a conviction,
deferred adjudication, community supervision, or deferred disposition for any
misdemeanor involving moral turpitude.
(ii) Chapter 53, Texas Occupations Code
authorizes the board to revoke or suspend a license on the grounds that a
person has been convicted of a misdemeanor that directly relates to the duties
and responsibilities of the licensed occupation.
(iii) For a misdemeanor involving moral
turpitude, the provisions of §164.051(a)(2) of the Medical Practice Act
and §205.351(a)(7) of the Acupuncture Act, may be based on either
conviction or a form of deferred adjudication, and therefore the board
determines that the requirements of these licensing acts are stricter than the
requirements of Chapter 53 and the board is not required to comply with Chapter
53, pursuant to §153.0045 of the Act.
(iv) The Medical Practice Act and the
Acupuncture Act do not authorize disciplinary action based on conviction for a
misdemeanor that does not involve moral turpitude. The Physician Assistant Act
does not authorize disciplinary action based on conviction for a misdemeanor.
Therefore these licensing acts are not stricter than the requirements of
Chapter 53 in those situations. In such situations, the conviction will be
considered to directly relate to the practice of medicine if the act:
(I) arose out of the practice of medicine, as
defined by the Act;
(II) arose out
of the practice location of the physician;
(III) involves a patient or former
patient;
(IV) involves any other
health professional with whom the physician has or has had a professional
relationship;
(V) involves the
prescribing, sale, distribution, or use of any dangerous drug or controlled
substance; or
(VI) involves the
billing for or any financial arrangement regarding any medical
service;
(v) Misdemeanors
involving moral turpitude. Misdemeanors involving moral turpitude, within the
meaning of the Act, are those which:
(I) have
been found by Texas state courts to be misdemeanors of moral
turpitude;
(II) involve dishonesty,
fraud, deceit, misrepresentation, violence; or
(III) reflect adversely on a licensee's
honesty, trustworthiness, or fitness to practice under the scope of the
person's license.
(vi)
Those misdemeanors found by state Texas courts not to be crimes of moral
turpitude are not misdemeanors of moral turpitude within the meaning of the
Act.
(C) In accordance
with §164.058 of the Act, the board shall suspend the license of a
licensee serving a prison term in a state or federal penitentiary during the
term of the incarceration regardless of the offense.
(7) Violations of the Health and Safety Code.
In accordance with §164.055 of the Act, the Board shall take appropriate
disciplinary action against a physician who violates §170.002 or Chapter
171, Texas Health and Safety Code.
(8) For purposes of §
164.051(a)(4)(C)
of the Texas Occupations Code, any use of a substance listed in Schedule I, as
established by the Commissioner of the Department of State Health Services
under Chapter 481, or as established under the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (
21
U.S.C. §
801 et seq.) constitutes
excessive use of such substance.
