TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 178. COMPLAINTS

22 TAC §178.4

The Texas Medical Board (Board) adopts on an emergency basis the emergency amendment to 22 TAC §178.4(d) for purposes of the COVID-19 disaster declaration. The amendment is being made pursuant to Executive Order GA 09 and amends certain reporting requirements under 22 TAC §178.4(d) for instances of physicians undertaking and performing non-urgent elective surgeries or procedures.

The emergency rule amendment is adopted on an emergency basis due to the imminent peril to the public health, safety and welfare caused by unnecessary exposure of both patients and health care professionals in undertaking and performing non-urgent elective surgeries and procedures during the COVID-19 pandemic.

The amended definitions are applicable only for purposes of the COVID-19 disaster declaration and shall only remain effective until the COVID-19 disaster declaration is terminated.

The emergency rule amendment is adopted under the authority of the Texas Occupations Code, §153.001, which provides authority for the Board to recommend and adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine; and enforce this subtitle.

In addition, the emergency rule amendment is adopted on an emergency basis pursuant to Texas Government Code §2001.034, which authorizes the adoption of a rule on an emergency basis without prior notice and comment based upon a determination of imminent peril to the public health, safety or welfare.

The statutes affected by this rule: Texas Medical Practice Act, Chapters 151 and 164, Texas Occupations Code.

§178.4.Complaint Initiation.

(a) A complainant may initiate a complaint by submitting the information concerning the complaint to the board. This information should include at a minimum:

(1) The name and contact information of the complainant;

(2) The name of the licensee against who the complaint is filed;

(3) The time and place of the alleged violation of the Act; and

(4) If applicable, the name and birth date of the patient who the physician has allegedly harmed.

(b) The board may file a complaint on its own initiative.

(c) The identity of a complainant, as well as the complaint itself, is part of the investigative information gathered by board employees and shall remain confidential. All complaints must provide sufficient information to identify the source or the name of the person who filed the complaint. Confidentiality shall be waived only by a written statement of the complainant specifically waiving confidentiality or by the complainant testifying in a contested case hearing. Notwithstanding the previous provisions, the name and address of an insurance agent, insurer, pharmaceutical company or third-party administrator that files a complaint against a physician shall be reported to the subject physician within 15 days of receipt by the board, unless the notice would jeopardize an investigation.

(d) A peer review committee, licensee, and all other groups named in §§160.003, 204.208, 205.304, and 206.159 of the Act shall report relevant information to the board relating to the acts of the licensee in this state if, in their opinion, that licensee poses a continuing threat to the public welfare through the licensee's continued practice. The report shall include a narrative statement describing the time, date, and place of the acts or omissions on which the report is based; and it shall be made to the board as soon as possible after the threat is identified and the relevant information can be assembled. Pursuant to Executive Order GA 09, and not withstanding any other statute, rule or provision concerning timing or when a report must be made to the Board, any peer review committee, licensee, and other group, entity, or person named in §§160.003, 204.208, 205.304, and 206.159 of the Act shall be immediately required to report any physician scheduling to perform, preparing to perform, performing, or who has performed a non-urgent elective surgery or procedure, as defined in §187.57(c) of this subtitle, while Executive Order GA 09 is in effect, immediately to the board. This duty to report is mandatory whether any type of proceeding, inquiry, investigation, or action of any kind is being considered, has been initiated, or is on-going at a hospital, ambulatory surgical center, or any other facility or medical setting. All reporting under this emergency rule is subject to confidentiality under §§160.004-160.008 of the Act; immunity for civil liability under §160.010 of the Act; and the prohibitions against discipline and discrimination under §160.012 of the Act.

The agency certifies that legal counsel has reviewed the emergency adoption 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 24, 2020.

TRD-202001232

Scott Freshour

General Counsel

Texas Medical Board

Effective date: March 24, 2020

Expiration date: July 21, 2020

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


CHAPTER 187. PROCEDURAL RULES

SUBCHAPTER F. TEMPORARY SUSPENSION AND RESTRICTION PROCEEDINGS

22 TAC §187.57

The Texas Medical Board (Board) adopts on an emergency basis an amendment to 22 TAC §187.57(c) for purposes of the COVID-19 disaster declaration. The amendment is being made pursuant to Executive Order GA 09 and amends the definition of "Continuing Threat" under 22 TAC #167;187.57(c).

The amended rule is adopted on an emergency basis due to the imminent peril to the public health, safety and welfare caused by unnecessary exposure of both patients and health care professionals in undertaking and performing non-urgent elective surgeries and procedures during the COVID-19 pandemic.

The amended definitions are applicable only for purposes of the COVID-19 disaster declaration and shall only remain effective until the COVID-19 disaster declaration is terminated.

The emergency rule amendment is adopted under the authority of the Texas Occupations Code, §153.001, which provides authority for the Board to recommend and adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine; and enforce this subtitle.

In addition, the emergency rule amendment is adopted on an emergency basis pursuant to Texas Government Code §2001.034, which authorizes the adoption of a rule on an emergency basis without prior notice and comment based upon a determination of imminent peril to the public health, safety or welfare.

The statutes affected by this rule: Texas Medical Practice Act, Chapters 151 and 164, Texas Occupations Code.

§187.57.Charge of the Disciplinary Panel.

(a) The disciplinary panel shall determine from the evidence or information presented to it whether a person's continuation in practice constitutes a continuing threat to the public welfare.

(b) If the disciplinary panel determines that a person's continuation in practice would constitute a continuing threat to the public welfare, the disciplinary panel shall temporarily suspend or restrict the license of that person.

(c) In accordance with the Act, §151.002(a)(2), "continuing threat to the public welfare," means a real danger to the health of a physician's patients or the public caused through the physician's lack of competence, impaired status, performance of a non-urgent elective surgery or procedure, or failure to care adequately for the physician's patients. A real danger exists if patients have an exposure to or risk of injury that is not merely abstract, hypothetical or remote and is based on actual actions or inactions of the physician. Information that the physician has committed similar actions or inactions in the past shall be considered by the disciplinary panel.

(1) For purposes of this rule all licensed health care professionals shall postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient's physician.

(2) Provided, however, that this prohibition shall not apply to any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.

(d) The disciplinary panel may also temporarily restrict or suspend a license of a person upon proof that a person has been arrested for an offense under:

(1) Section 22.011(a)(2), Penal Code (sexual assault of a child);

(2) Section 22.021(a)(1)(B), Penal Code (aggravated sexual assault of a child);

(3) Section 21.02, Penal Code (continuous sexual abuse of a young child or children); or

(4) Section 21.11, Penal Code (indecency with a child).

The agency certifies that legal counsel has reviewed the emergency adoption 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 23, 2020.

TRD-202001217

Scott Freshour

General Counsel

Texas Medical Board

Effective date: March 23, 2020

Expiration date: July 20, 2020

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


PART 15. TEXAS STATE BOARD OF PHARMACY

CHAPTER 291. PHARMACIES

SUBCHAPTER A. ALL CLASSES OF PHARMACIES

22 TAC §291.30

The Texas State Board of Pharmacy adopts on an emergency basis new rule §291.30, concerning Medication Limitations, and finds that it is not practical to provide the usual 30 days' prior notice and hearing. The Texas State Board of Pharmacy recognizes the extraordinary demand for chloroquine, hydroxychloroquine, mefloquine, or azithromycin as a result of COVID-19 (coronavirus).

The new rule is adopted on an emergency basis due to the imminent peril to public health, safety and welfare caused by shortages of medication for existing conditions due to COVID-19 (coronavirus).

Emergency new rule §291.30 provides limitations on the dispensing of chloroquine, hydroxychloroquine, mefloquine, or azithromycin.

The emergency new rule is adopted under §551.002 and 554.051 of the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas Occupations Code). The Board interprets §551.002 as authorizing the agency to protect the public through the effective control and regulation of the practice of pharmacy. The Board interprets §554.051(a) as authorizing the agency to adopt rules for the proper administration and enforcement of the Act. In addition, the new rule is adopted on an emergency basis pursuant to Texas Government Code §2001.034, which authorizes the adoption of a rule on an emergency basis without prior notice and comment based upon a determination of imminent peril to the public health, safety or welfare.

The statutes affected by this rule: Texas Pharmacy Act, Chapters 551 - 566 and 568 - 569, Texas Occupations Code; Chapter 2001, Texas Government Code.

§291.30.Medication Limitations.

No prescription or medication order for chloroquine, hydroxychloroquine, mefloquine, or azithromycin may be dispensed or distributed unless all the following apply:

(1) the prescription or medication order bears a written diagnosis from the prescriber consistent with the evidence for its use;

(2) the prescription or medication order is limited to no more than a fourteen (14) day supply, unless the patient was previously established on the medication prior to the effective date of this rule; and

(3) no refills may be permitted unless a new prescription or medication order is furnished.

The agency certifies that legal counsel has reviewed the emergency adoption 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 20, 2020.

TRD-202001208

Allison Vordenbaumen Benz, R.Ph., M.S.

Executive Director

Texas State Board of Pharmacy

Effective date: March 20, 2020

Expiration date: July 17, 2020

For further information, please call: (512) 305-8010