TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 185. PHYSICIAN ASSISTANTS

22 TAC §§185.4, 185.6, 185.28

The Texas Physician Assistant Board (Board) proposes amendments to Chapter 185, relating to Physician Assistants, §§185.4, 185.6, and 185.28.

The amendments to §185.4, relating to Procedural Rules for Licensure Applicants, repeal language under subsection (a) requiring that an applicant pass the jurisprudence examination within three attempts. The changes are made to align the rules with recent rule amendments repealing jurisprudence exam attempt limits for individuals applying for a medical license, made pursuant to Senate Bill 674 (85th Legislature, Regular Session). It is the Board's interpretation of SB 674 that the legislature determined repeated attempts at passage of the jurisprudence examination has little to no weight as to competency to practice, was an unnecessary bar to licensure, and intended to eliminate unnecessary bars to licensure for all applicants applying for licensure under the Texas Medical Board and Advisory Board's jurisdiction.

The amendment to §185.6, relating to Biennial Renewal of License, repeals language requiring physician assistants to inform the board of address changes within two weeks of the effective date of the address change. The language proposed for repeal conflicts with another rule found under §185.27 requiring physician assistants to report any address change to the board within 30 days after the change occurs.

The amendment to §185.28, relating to Retired License, repeals language requiring retired physician assistants who wish to return to active status to provide professional evaluations from each employment held before his or her license was placed on a retired status. As retired physician assistants are prohibited from practicing, any employment held during retirement would not relate to the physician assistant practice, and therefore have little relevancy in determining current competency at the time that the physician assistant seeks to reactive his or her license.

Scott Freshour, General Counsel for the Board, has determined that for each year of the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing this proposal will be to improve consistency and increase clarity of the requirements for obtaining and maintaining a physician assistant license.

Mr. Freshour has also determined that for the first five-year period the sections are in effect there will be no fiscal impact or effect on government growth as a result of enforcing the sections as proposed.

There will be no effect to individuals required to comply with the rules as proposed. There will be no effect on small or micro businesses or rural communities.

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed amendments will be in effect, Mr. Freshour has determined the following:

(1) The proposed rules do not create or eliminate a government program.

(2) Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

(3) Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

(4) The proposed rules do not require an increase or decrease in fees paid to the agency.

(5) The proposed rules do not create new regulations.

(6) The proposed rules do not expand existing regulations. The proposed rules limit existing regulations, as described above.

(7) The proposed rules do not increase or decrease the number of individuals subject to the rules' applicability.

(8) The proposed rules do not positively or adversely affect this state's economy.

Comments on the proposal may be submitted to Rita Chapin, P.O. Box 2018, Austin, Texas 78768-2018, or e-mail comments to: rules.development@tmb.state.tx.us. A public hearing will be held at a later date.

The amendments are proposed under the authority of the Texas Occupations Code Annotated, §204.101, which provides authority for the Board to recommend adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; enforce this subtitle; and establish rules related to licensure. The amendments are further proposed under the authority of Senate Bill 674 (85th Legislature, Regular Session).

No other statutes, articles or codes are affected by this proposal.

§185.4.Procedural Rules for Licensure Applicants.

(a) Except as otherwise provided in this section, an individual shall be licensed by the board before the individual may function as a physician assistant. A license shall be granted to an applicant who:

(1) submits an application on forms approved by the board;

(2) pays the appropriate application fee as prescribed by the board;

(3) has successfully completed an educational program for physician assistants accredited by the Accreditation Review Commission on Education for the Physician Assistant, Inc. (ARC-PA), or by that committee's predecessor or successor entities, and holds a valid and current certificate issued by the National Commission on Certification of Physician Assistants ("NCCPA");

(4) certifies that the applicant is mentally and physically able to function safely as a physician assistant;

(5) does not have a license, certification, or registration as a physician assistant in this state or from any other licensing authority that is currently revoked or on suspension or the applicant is not subject to probation or other disciplinary action for cause resulting from the applicant's acts as a physician assistant, unless the board takes that fact into consideration in determining whether to issue the license;

(6) is of good professional character as defined under §185.2(8) of this title (relating to Definitions);

(7) submits to the board any other information the board considers necessary to evaluate the applicant's qualifications;

(8) meets any other requirement established by rules adopted by the board;

(9) must pass the national licensing examination required for NCCPA certification within no more than six attempts; and

(10) must pass the jurisprudence examination ("JP exam"), which shall be conducted on the licensing requirements and other laws, rules, or regulations applicable to the physician assistant profession in this state. The jurisprudence examination shall be developed and administered as follows:

(A) The staff of the Medical Board shall prepare questions for the JP exam and provide a facility by which applicants can take the examination.

(B) Applicants must pass the JP exam with a score of 75 or better [within three attempts].

(C) An examinee shall not be permitted to bring medical books, compends, notes, medical journals, calculators or other help into the examination room, nor be allowed to communicate by word or sign with another examinee while the examination is in progress without permission of the presiding examiner, nor be allowed to leave the examination room except when so permitted by the presiding examiner.

(D) Irregularities during an examination such as giving or obtaining unauthorized information or aid as evidenced by observation or subsequent statistical analysis of answer sheets, shall be sufficient cause to terminate an applicant's participation in an examination, invalidate the applicant's examination results, or take other appropriate action.

[(E) An applicant who is unable to pass the JP exam within three attempts must appear before a committee of the board to address the applicant's inability to pass the examination and to re-evaluate the applicant's eligibility for licensure. It is at the discretion of the committee to allow an applicant additional attempts to take the JP exam.]

(E) [(F)] A person who has passed the JP Exam shall not be required to retake the Exam for relicensure, except as a specific requirement of the board as part of an agreed order.

(b) The following documentation shall be submitted as a part of the licensure process:

(1) Name Change. Any applicant who submits documentation showing a name other than the name under which the applicant has applied must present certified copies of marriage licenses, divorce decrees, or court orders stating the name change. In cases where the applicant's name has been changed by naturalization the applicant should send the original naturalization certificate by certified mail to the board for inspection.

(2) Certification. Each applicant for licensure must submit:

(A) a letter of verification of current NCCPA certification sent directly from NCCPA, and

(B) a certificate of successful completion of an educational program submitted directly from the program on a form provided by the board.

(3) Examination Scores. Each applicant for licensure must have a certified transcript of grades submitted directly from the appropriate testing service to the board for all examinations accepted by the board for licensure.

(4) Verification from other states. On request of board staff, an applicant must have any state, in which he or she has ever been licensed as any type of healthcare provider regardless of the current status of the license, submit to the board a letter verifying the status of the license and a description of any sanctions or pending disciplinary matters. The information must be sent directly from the state licensing entities.

(5) Arrest Records. If an applicant has ever been arrested, a copy of the arrest and arrest disposition needs to be requested from the arresting authority and that authority must submit copies directly to the board.

(6) Malpractice. If an applicant has ever been named in a malpractice claim filed with any liability carrier or if an applicant has ever been named in a malpractice suit, the applicant must:

(A) have each liability carrier complete a form furnished by this board regarding each claim filed against the applicant's insurance;

(B) for each claim that becomes a malpractice suit, have the attorney representing the applicant in each suit submit a letter directly to the board explaining the allegation, dates of the allegation, and current status of the suit. If the suit has been closed, the attorney must state the disposition of the suit, and if any money was paid, the amount of the settlement. The letter shall be accompanied by supporting documentation including court records, if applicable. If such letter is not available, the applicant will be required to furnish a notarized affidavit explaining why this letter cannot be provided; and

(C) provide a statement, composed by the applicant, explaining the circumstances pertaining to patient care in defense of the allegations.

(7) Fingerprints. Each applicant must provide a complete and legible set of fingerprints, on a form prescribed by the board, to the board or to the Department of Public Safety for the purpose of obtaining criminal history record information from the Department of Public Safety and the Federal Bureau of Investigation;

(8) Additional Documentation. Additional documentation as is deemed necessary to facilitate the investigation of any application for licensure must be submitted.

(c) All physician assistant applicants shall provide sufficient documentation to the board that the applicant has, on a full-time basis, actively practiced as a physician assistant, has been a student at an acceptable approved physician assistant program, or has been on the active teaching faculty of an acceptable approved physician assistant program, within either of the last two years preceding receipt of an application for licensure. The term "full-time basis," for purposes of this section, shall mean at least 20 hours per week for 40 weeks duration during a given year. Applicants who are unable to demonstrate active practice on a full time basis may, in the discretion of the board, be eligible for an unrestricted license or a restricted license subject to one or more of the following conditions or restrictions as set forth in paragraphs (1) - (4) of this subsection:

(1) completion of specified continuing medical education hours approved for Category 1 credits by a CME sponsor approved by the American Academy of Physician Assistants;

(2) limitation and/or exclusion of the practice of the applicant to specified activities of the practice as a physician assistant;

(3) remedial education; and

(4) such other remedial or restrictive conditions or requirements which, in the discretion of the board are necessary to ensure protection of the public and minimal competency of the applicant to safely practice as a physician assistant.

(d) The executive director shall report to the board the names of all applicants determined to be ineligible for licensure, together with the reasons for each recommendation. An applicant deemed ineligible for licensure by the executive director may within 20 days of receipt of such notice request a review of the executive director's recommendation by a committee of the board, to be conducted in accordance with §187.13 of this title (relating to Informal Board Proceedings Relating to Licensure Eligibility), and the executive director may refer any application to said committee for a recommendation concerning eligibility. If the committee finds the applicant ineligible for licensure, such recommendation, together with the reasons therefore, shall be submitted to the board. The applicant shall be notified of the panel or committee's determination and given the option to appeal the determination of ineligibility to the State Office of Administrative Hearings (SOAH) or accept the determination of ineligibility. An applicant has 20 days from the date the applicant receives notice of the board's determination of ineligibility to submit a written response to the board indicating one of those two options. If the applicant does not within 20 days of receipt of such notice submit a response either accepting the determination of ineligibility or providing notice of his or her intent to appeal the determination of ineligibility, the lack of such response shall be deemed as the applicant's acceptance of the board's ineligibility determination. If the applicant timely notifies the board of his or her intent to appeal the board's ineligibility determination to SOAH, a contested case before SOAH will be initiated only in accordance with §187.24 of this title (relating to Pleadings). The applicant shall comply with all other provisions relating to formal proceedings as set out in this title Chapter 187 Subchapter C (relating to Formal Board Proceedings at SOAH). If the applicant does not timely comply with such provisions, or if prior to the initiation of a contested case at SOAH, the applicant withdraws his or her notice of intent to appeal the board's ineligibility determination to SOAH, the applicant's failure to take timely action or withdrawal shall be deemed acceptance of the board's ineligibility determination. The committee may refer any application for determination of eligibility to the full board. All reports received or gathered by the board on each applicant are confidential and are not subject to disclosure under the Public Information Act. The board may disclose such reports to appropriate licensing authorities in other states.

(e) Applicants for licensure:

(1) whose applications have been filed with the board in excess of one year will be considered expired. Any fee previously submitted with that application shall be forfeited unless otherwise provided by §175.5 of this title (relating to Payment of Fees or Penalties). Any further request for licensure will require submission of a new application and inclusion of the current licensure fee. An extension to an application may be granted under certain circumstances, including:

(A) Delay by board staff in processing an application;

(B) Application requires Licensure Committee review after completion of all other processing and will expire prior to the next scheduled meeting;

(C) Licensure Committee requires an applicant to meet specific additional requirements for licensure and the application will expire prior to deadline established by the Committee;

(D) Applicant requires a reasonable, limited additional period of time to obtain documentation after completing all other requirements and demonstrating diligence in attempting to provide the required documentation;

(E) Applicant is delayed due to unanticipated military assignments, medical reasons, or catastrophic events;

(2) who in any way falsify the application may be required to appear before the board;

(3) on whom adverse information is received by the board may be required to appear before the board;

(4) shall be required to comply with the board's rules and regulations which are in effect at the time the completed application form and fee are filed with the board;

(5) may be required to sit for additional oral or written examinations that, in the opinion of the board, are necessary to determine competency of the applicant;

(6) must have the application of licensure complete in every detail 20 days prior to the board meeting in which they are considered for licensure. Applicants may qualify for a Temporary License prior to being considered by the board for licensure, as required by §185.7 of this title (relating to Temporary License);

(7) who previously held a Texas health care provider license, certificate, permit, or registration may be required to complete additional forms as required.

(f) Alternative License Procedure for Military Service Members, Military Veterans, and Military Spouses.

(1) An applicant who is a military service member, military veteran, or military spouse may be eligible for alternative demonstrations of competency for certain licensure requirements. Unless specifically allowed in this subsection, an applicant must meet the requirements for licensure as specified in this chapter.

(2) To be eligible, an applicant must be a military service member, military veteran, or military spouse and meet one of the following requirements:

(A) holds an active unrestricted physician assistant license issued by another state that has licensing requirements that are substantially equivalent to the requirements for a Texas physician assistant license; or

(B) within the five years preceding the application date held a physician assistant license in this state.

(3) The executive director may waive any prerequisite to obtaining a license for an applicant described in this subsection after reviewing the applicant's credentials.

(4) Applications for licensure from applicants qualifying under paragraphs (1) and (2) of this subsection shall be expedited by the board's licensure division. Such applicants shall be notified, in writing or by electronic means, as soon as practicable, of the requirements and process for renewal of the license.

(5) Alternative Demonstrations of Competency Allowed. Applicants qualifying under paragraphs (1) and (2) of this subsection:

(A) in demonstrating compliance with subsection (d) of this section must only provide sufficient documentation to the board that the applicant has, on a full-time basis, actively practiced as a physician assistant, has been a student at an acceptable approved physician assistant program, or has been on the active teaching faculty of an acceptable approved physician assistant program, within one of the last three years preceding receipt of an Application for licensure;

(B) notwithstanding the one year expiration in subsection (e)(1) of this section, are allowed an additional 6 months to complete the application prior to it becoming inactive; and

(C) notwithstanding the 20 day deadline in subsection (e)(6) of this section, may be considered for permanent licensure up to 5 days prior to the board meeting.

(g) Applicants with Military Experience.

(1) For applications filed on or after March 1, 2014, the Board shall, with respect to an applicant who is a military service member or military veteran as defined in §185.2 of this title (relating to Definitions), credit verified military service, training, or education toward the licensing requirements, other than an examination requirement, for a license issued by the Board.

(2) This section does not apply to an applicant who:

(A) has had a physician assistant license suspended or revoked by another state or a Canadian province;

(B) holds a physician assistant license issued by another state or a Canadian province that is subject to a restriction, disciplinary order, or probationary order; or

(C) has an unacceptable criminal history.

(h) Re-Application for Licensure Prohibited. A person who has been determined ineligible for a license by the Licensure Committee may not reapply for a license prior to the expiration of one year from the date of the Board's ratification of the Licensure Committee's determination of ineligibility and denial of licensure.

§185.6.Biennial Renewal of License.

(a) Physician assistants licensed under the Physician Assistant Licensing Act shall register biennially and pay a fee. A physician assistant may, on notification from the board, renew an unexpired license by submitting the required form and documents and by paying the required renewal fee to the board on or before the expiration date of the permit. The fee shall accompany the required form which legibly sets forth the licensee's name, mailing address, business address, and other necessary information prescribed by the board.

(b) The following documentation shall be submitted as part of the renewal process:

(1) Continuing Medical Education. As a prerequisite to the biennial registration of a physician assistant's license, 40 hours of continuing medical education (CME) are required to be completed in the following categories:

(A) at least one-half of the hours are to be from formal courses:

(i) that are designated for Category I credit by a CME sponsor approved by the American Academy of Physician Assistants; or

(ii) approved by the board for course credit.

(B) The remaining hours may be from Category II composed of informal self-study, attendance at hospital lectures, grand rounds, case conferences, or by providing volunteer medical services at a site serving a medically underserved population, other than at a site that is the primary practice site of the license holder, and shall be recorded in a manner that can be easily transmitted to the board upon request.

(C) A physician assistant shall receive one credit of continuing medical education for each hour of time spent up to 6 hours per year, as required by subparagraph (A) of this paragraph based on participation in a program sponsored by the board and approved for CME credit for the evaluation of a physician assistant's competency or practice monitoring.

(2) A physician assistant must report on the biennial registration form if she or he has completed the required continuing medical education during the previous year. A licensee may carry forward CME credit hours earned prior to registration which are in excess of the 40 hour biennial requirement and such excess hours may be applied to the following years' requirements. A maximum of 80 total excess credit hours may be carried forward and shall be reported according to whether the hours are Category I and/or Category II. Excess CME credit hours of any type may not be carried forward or applied to a report of CME more than two years beyond the date of the biennial registration following the period during which the hours were earned.

(3) A physician assistant may request in writing an exemption for the following reasons:

(A) catastrophic illness;

(B) military service of longer than one year's duration outside the United States;

(C) residence of longer than one year's duration outside the United States; or

(D) good cause shown on written application of the licensee that gives satisfactory evidence to the board that the licensee is unable to comply with the requirement for continuing medical education.

(4) Exemptions are subject to the approval of the licensure committee of the board.

(5) A temporary exception under paragraph (4) of this subsection may not exceed two years but may be renewed biennially, subject to the approval of the board.

(6) This section does not prevent the board from taking disciplinary action with respect to a licensee or an applicant for a license by requiring additional hours of continuing medical education or of specific course subjects.

(7) The board may require written verification of both formal and informal credits from any licensee within 30 days of request. Failure to provide such verification may result in disciplinary action by the board.

(8) Unless exempted under the terms of this section, a physician assistant licensee's apparent failure to obtain and timely report the 40 hours of CME as required and provided for in this section shall result in nonrenewal of the license until such time as the physician assistant obtains and reports the required CME hours; however, the executive director of the board may issue to such a physician assistant a temporary license numbered so as to correspond to the nonrenewed license. Such a temporary license shall be issued at the direction of the executive director for a period of no longer than 90 days. A temporary license issued pursuant to this subsection may be issued to allow the physician assistant who has not obtained or timely reported the required number of hours an opportunity to correct any deficiency so as not to require termination of ongoing patient care.

(9) A physician assistant, who is a military service member, may request an extension of time, not to exceed two years, to complete any CME requirements.

(10) A physician assistant must provide a complete and legible set of fingerprints to the board, unless fingerprints were already submitted with their initial license application or a previous renewal request.

(c) Falsification of an affidavit or submission of false information to obtain renewal of a license shall subject a physician assistant to denial of the renewal and/or to discipline pursuant to the Act, §§204.301-204.303 [§§204.301-.303].

(d) If the renewal fee and completed application form are not received on or before the expiration date of the permit, the fees set forth in Chapter 175 of this title (relating to Fees and Penalties) shall apply.

(e) The board shall not waive fees or penalties.

(f) The board shall stagger biennial registration of physician assistants proportionally on a periodic basis.

(g) Practicing as a physician assistant as defined in the Act without a biennial registration permit for the current year as provided for in the board rules has the same force and effect as and is subject to all penalties of practicing as a physician assistant without a license.

[(h) Physician assistants shall inform the board of address changes within two weeks of the effective date of the address change.]

(h) [(i)] Expired Biennial Registration Permits.

(1) If a physician assistant's registration permit has been expired for less than one year, the physician assistant may obtain a new permit by submitting to the board a completed permit application, the registration fee, as defined in §175.2(2) of this title (relating to Registration and Renewal Fees) and the penalty fee, as defined in §175.3(2) of this title (relating to Penalties).

(2) If a physician assistant's registration permit has been expired for one year or longer, the physician assistant's license is automatically canceled, unless an investigation is pending, and the physician assistant may not obtain a new permit.

(3) A person whose license has expired may not engage in activities that require a license until the licensed has been renewed. Practicing as a physician assistant after a physician assistant's permit has expired under subsection (a) of this section without obtaining a new registration permit for the current registration period has the same effect as, and is subject to all penalties of, practicing as a physician assistant without a license. The Board interprets §204.156 of the Act to provide the exclusive sanction that may be imposed by the board for practicing medicine after the expiration of the permit.

(i) [(j)] A military service member who holds a physician assistant license in Texas is entitled to two years of additional time to complete any other requirement related to the renewal of the military service member's license.

(j) [(k)] The physician assistant board may refuse to renew a license if the licensee is in violation of a physician assistant board order.

§185.28.Retired License.

The registration fee shall not apply to retired physician assistants.

(1) To become exempt from the registration fee due to retirement:

(A) the physician assistant's current license must not be under an investigation or order with the board or otherwise have a restricted license; and

(B) the physician assistant must request in writing on a form prescribed by the board for his or her license to be placed on official retired status.

(2) The following restrictions shall apply to physician assistants whose licenses are on official retired status:

(A) the physician assistant must not engage in clinical activities or practice medicine in any state;

(B) the physician assistant may not prescribe or administer drugs to anyone, nor may the physician assistant possess a Drug Enforcement Agency or Texas controlled substances registration; and

(C) the physician assistant's license may not be endorsed to any other state.

(3) A physician assistant may return to active status by applying to the board, paying an application fee equal to an application fee for a physician assistant license, complying with the requirements for license renewal under the Act, demonstrating current certification by NCCPA, and [submitting professional evaluations from each employment held before the license was placed on retired status, and] complying with paragraph (4) of this section.

(4) The request of a physician assistant seeking a return to active status whose license has been placed on official retired status for two years or longer shall be submitted to the Licensure Committee of the board for consideration and a recommendation to the full board for approval or denial of the request. After consideration of the request and the recommendation of the Licensure Committee, the board shall grant or deny the request. If the request is granted, it may be granted without conditions or subject to such conditions which the board determines are necessary to adequately protect the public including but not limited to:

(A) current certification by the National Commission on the Certification of Physician Assistants;

(B) completion of specified continuing medical education hours approved for Category 1 credits by a CME sponsor approved by the American Academy of Physician Assistants;

(C) limitation and/or exclusion of the practice of the applicant to specified activities of the practice as a physician assistant;

(D) remedial education; and/or

(E) such other remedial or restrictive conditions or requirements which, in the discretion of the board are necessary to ensure protection of the public and minimal competency of the applicant to safely practice as a physician assistant.

(5) The request of a physician assistant seeking a return to active status whose license has been placed on official retired status for less than two years may be approved by the executive director of the board or submitted by the executive director to the Licensure Committee for consideration and a recommendation to the full board for approval or denial of the request. In those instances in which the executive director submits the request to the Licensure Committee of the board, the Licensure Committee shall make a recommendation to the full board for approval or denial. After consideration of the request and the recommendation of the Licensure Committee, the board shall grant or deny the request subject to such conditions which the board determines are necessary to adequately protect the public including but not limited to those options provided in paragraph (4)(A) - (E) of this section.

(6) In evaluating a request to return to active status, the Licensure Committee or the full board may require a personal appearance by the requesting physician assistant at the offices of the board, and may also require a physical or mental examination by one or more physicians or other health care providers approved in advance in writing by the executive director, the secretary-treasurer, the Licensure Committee, or other designee(s) determined by majority vote of the board.

(7) A physician assistant applying for retired status under paragraphs (1) and (2) of this section may be approved for emeritus retired status, a subgroup of "official retired status," provided that the physician assistant has:

(A) never received a remedial plan or been the subject of disciplinary action by the Texas Physician Assistant Board;

(B) no criminal history, including pending charges, indictment, conviction and/or deferred adjudication in Texas; and

(C) never held a license, registration or certification that has been restricted for cause, canceled for cause, suspended for cause, revoked or subject to another form of discipline in a state, or territory of the United States, a province of Canada, a uniformed service of the United States or other regulatory agency.

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 April 2, 2019.

TRD-201900988

Scott Freshour

General Counsel

Texas Medical Board

Earliest possible date of adoption: May 19, 2019

For further information, please call: (512) 305-7016