TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 165. MEDICAL RECORDS

22 TAC §165.1

The Texas Medical Board (Board) adopts amendments to Title 22, Part 9, §165.1, concerning Medical Records with changes, described below, to the proposed text as published in the September 6, 2019, issue of the Texas Register (44 TexReg 4817). The rule will be republished.

The adopted amendment to §165.1 adds a requirement that physicians must retain forensic medical examination records of a sexual assault victim for 20 years from the date of examination. This change is in accordance with and pursuant to the passage of HB531 (86th Reg. Session) which amended Section 153.003 of the Texas Occupations Code.

The Board sought stakeholder input through the Enforcement Stakeholder Group, which made comments on the proposed changes to the rules that were incorporated in the proposed text.

The Board also received one written comment from the Texas Medical Association (TMA), suggesting specific revisions to the proposed rule change that, in essence, would result in a restatement of the statute, Texas Occupations Code Section 153.003, as amended by the Legislature.

The Board disagreed with the TMA and declined to make the suggested revisions. However, in an effort to not restate the statute in the rule, the Board adopts the proposed amendment to §165.1(b)(3) with changes to reflect that a licensed physician is required to retain records from a forensic medical examination in accordance with Section 153.003 of the Medical Practice Act.

The Board received no other written comments. No one appeared in person to testify regarding the rules at the public hearing on October 18, 2019.

The amendments are adopted under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure.

§165.1.Medical Records.

(a) Contents of Medical Record. Regardless of the medium utilized, each licensed physician of the board shall maintain an adequate medical record for each patient that is complete, contemporaneous and legible. For purposes of this section, an "adequate medical record" should meet the following standards:

(1) The documentation of each patient encounter should include:

(A) reason for the encounter and relevant history, physical examination findings and prior diagnostic test results;

(B) an assessment, clinical impression, or diagnosis;

(C) plan for care (including discharge plan if appropriate); and

(D) the date and legible identity of the observer.

(2) Past and present diagnoses should be accessible to the treating and/or consulting physician.

(3) The rationale for and results of diagnostic and other ancillary services should be included in the medical record.

(4) The patient's progress, including response to treatment, change in diagnosis, and patient's non-compliance should be documented.

(5) Relevant risk factors should be identified.

(6) The written plan for care should include when appropriate:

(A) treatments and medications (prescriptions and samples) specifying amount, frequency, number of refills, and dosage;

(B) any referrals and consultations;

(C) patient/family education; and

(D) specific instructions for follow up.

(7) Include any written consents for treatment or surgery requested from the patient/family by the physician.

(8) Include a summary or documentation memorializing communications transmitted or received by the physician about which a medical decision is made regarding the patient.

(9) Billing codes, including CPT and ICD-9-CM codes, reported on health insurance claim forms or billing statements should be supported by the documentation in the medical record.

(10) All non-biographical populated fields, contained in a patient's electronic medical record, must contain accurate data and information pertaining to the patient based on actual findings, assessments, evaluations, diagnostics or assessments as documented by the physician.

(11) Any amendment, supplementation, change, or correction in a medical record not made contemporaneously with the act or observation shall be noted by indicating the time and date of the amendment, supplementation, change, or correction, and clearly indicating that there has been an amendment, supplementation, change, or correction.

(12) Salient records received from another physician or health care provider involved in the care or treatment of the patient shall be maintained as part of the patient's medical records.

(13) The board acknowledges that the nature and amount of physician work and documentation varies by type of services, place of service and the patient's status. Paragraphs (1) - (12) of this subsection may be modified to account for these variable circumstances in providing medical care.

(b) Maintenance of Medical Records.

(1) A licensed physician shall maintain adequate medical records of a patient for a minimum of seven years from the anniversary date of the date of last treatment by the physician.

(2) If a patient was younger than 18 years of age when last treated by the physician, the medical records of the patient shall be maintained by the physician until the patient reaches age 21 or for seven years from the date of last treatment, whichever is longer.

(3) A licensed physician is required to retain records from a forensic medical examination in accordance with Section 153.003 of the Medical Practice Act.

(4) A physician may destroy medical records that relate to any civil, criminal or administrative proceeding only if the physician knows the proceeding has been finally resolved.

(5) Physicians shall retain medical records for such longer length of time than that imposed herein when mandated by other federal or state statute or regulation.

(6) Physicians may transfer ownership of records to another licensed physician or group of physicians only if the physician provides notice consistent with §165.5 of this title (relating to Transfer and Disposal of Medical Records) and the physician who assumes ownership of the records maintains the records consistent with this chapter.

(7) Medical records may be owned by a physician's employer, to include group practices, professional associations, and non-profit health organizations, provided records are maintained by these entities consistent with this chapter.

(8) Destruction of medical records shall be done in a manner that ensures continued confidentiality.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 21, 2019.

TRD-201903829

Scott Freshour

General Counsel

Texas Medical Board

Effective date: November 10, 2019

Proposal publication date: September 6, 2019

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


CHAPTER 172. TEMPORARY AND LIMITED LICENSES

SUBCHAPTER D. DISASTER EMERGENCY RULE

22 TAC §172.21

The Texas Medical Board adopts amendments to Title 22, Part 9, Subchapter D, Disaster Emergency Rule, §172.21, concerning Other Health Care Providers Practice and Limited License for Disasters and Emergencies. The rule is adopted with non-substantive changes to the proposed text as published in the September 6, 2019, issue of the Texas Register (44 TexReg 4818). The rule will be republished.

Section 172.21, relating to Other Health Care Providers Practice and Limited License for Disasters and Emergencies, is amended to include Advance Practice Nurses (APRN) as being exempt from the requirement for a written Prescriptive Authority Agreement during a disaster, as the APRNs were inadvertently omitted from the rule when it was initially adopted. The inclusion of APRNs is consistent with the practice in previous disasters.

The Board sought stakeholder input through the Licensure Stakeholder Group, which made comments on the proposed changes to the rules that were incorporated in the proposed text.

The Board also received a written comment from the Texas Board of Nursing (TBON) suggesting that the rule be further amended to delete the word "onsite" in subsection (c) from the proposed version.

The Board agreed with the TBON and adopts the proposed amendment to rule 172.21(c) with the non-substantive deletion of the word "onsite", as maintaining Prescriptive Authority Agreements "onsite" during a disaster was not the intent of the Board in creating this rule.

The Board received no other written comments. No one appeared in person to testify regarding the rules at the public hearing on October 18, 2019.

For these reasons, the Board adopts the amendments to rule 172.21(c) with the non-substantive change described above to the proposed text as published in the September 6, 2019, issue of the Texas Register (44 TexReg 4818). The amendment will be republished.

The amendments are adopted under the authority of the Texas Occupations Code Annotated, §153.001, which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure.

§172.21.Other Health Care Providers Practice and Limited License for Disasters and Emergencies.

(a) For out of state licensees, permit holders, and certificate holders, other than physicians, who practice in health care areas subject to regulation by the Board, the process for obtaining authority to practice in Texas during a disaster or emergency is set out in §172.20(b)(1) and (2), relating to Physician Practice and Limited License for Disasters and Emergencies, including all verification and reporting requirements.

(b) In addition, the following is applicable to these health care providers:

(1) the health care provider must practice under the supervision and delegation of a physician and the supervising physician must be licensed and practicing in Texas prior to the date of the disaster or emergency declaration and without restrictions on ability to supervise or delegate;

(2) except as specified in subsection (c) of this section, the provisions related to supervision and delegation under §157.001, Texas Occupations Code, apply to both the health care provider and supervising physician; and

(3) the health care provider must also comply with all provisions of the applicable Texas Occupations Code for that occupation.

(c) Physician assistants, advanced practice registered nurses, and Texas supervising physicians practicing under this section are not required to maintain documentation describing supervisory arrangements and instructions for prescriptive authority as otherwise required by Chapter 157, Texas Occupations Code.

(d) The Board shall have jurisdiction over licensees, permit holders, and certificate holders practicing under this subchapter for all purposes set forth in or related to the Texas Occupations Code, and all other applicable state and federal laws, and such jurisdiction shall continue in effect even after the licensee, permit holder, or certificate holder have stopped practicing under this section related to providing medical services in Texas during the disaster.

(e) The authority to practice issued to a licensee, permit holder, or certificate holder under this subchapter shall be valid for no more than thirty (30) days from the date the licensee, permit holder, or certificate holder is authorized to practice or until the emergency or disaster declaration has been withdrawn or ended, whichever is longer.

(f) A licensee, permit holder, and certificate holder holding limited emergency authority under this subchapter shall not receive any compensation outside of their usual compensation for the provision of medical services during a disaster or emergency.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 21, 2019.

TRD-201903830

Scott Freshour

General Counsel

Texas Medical Board

Effective date: November 10, 2019

Proposal publication date: September 6, 2019

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


CHAPTER 175. FEES AND PENALTIES

22 TAC §175.1, §175.2

The Texas Medical Board (Board) adopts amendments to rule §175.1, concerning Application and Administrative Fees, and §175.2, concerning Registration and Renewal Fees. The amendments to §175.1 and §175.2 are being adopted without changes to the proposed text as published in the July 26, 2019, issue of the Texas Register (44 TexReg 3757). The adopted rules will not be republished.

The adopted amendments to §175.1 and §175.2 reinstate fees for initial and renewal approval for instructor and medical radiologic technology and non-certified technician (NCT) training programs, in anticipation for approval processes to be implemented in accordance with recently adopted rules by the Texas Board of Medical Radiologic Technology (MRT Board). The amendments proposed for §175.1 and §175.2 seek to reinstate initial and renewal fees for instructor approval at $50, which is not an increase or decrease from initial approval fees required by the Department of State Health Services (DSHS). However, for both Limited MRT and NCT programs the proposed instructor approval fee represents a decrease from fees formerly imposed by DSHS, as renewal will be required every three years rather than every two (for Limited MRT programs) or annually (for NCT programs).

The adopted amendments under §175.1 set forth a $500 fee for initial approval of limited curriculum training programs, with proposed amendments to §175.2 requiring a $500 renewal fee every three years, a decrease from $900 (for a two-year term) fee formerly in effect under DSHS. A fee of $500 is proposed under §175.1 for initial approval for NCT training programs, with a triennial renewal fee of $500 proposed under §175.2. While an increase from the $350 approval fee formerly in place under DSHS, the proposed fees will overall represent a decrease in cost for NCT training programs, as renewal of approval will be required triennially, rather than annually.

Finally, the adopted amendments to §175.1 and §175.2 repeal language setting forth obsolete fees related to a secondary permit no longer required for NCTs employed by physicians.

The Board has determined that the public benefit anticipated as a result of enforcing this adoption will be to set forth fees reasonable and necessary to cover the costs related to implementation and ongoing administration of approval processes for MRT and NCT training program and instructors and limited MRT exam authorization processes, without the use of additional general revenue.

No written comments were received and no one appeared in person to testify regarding the rules at the public hearing on October 18, 2019.

The amendments are adopted under the authority of the Texas Occupations Code Annotated, §601.054 and §601.057, which allow the board to set and collect fees in amounts that are reasonable and necessary to cover the costs of administering and enforcing Chapter 601.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 18, 2019.

TRD-201903825

Scott Freshour

General Counsel

Texas Medical Board

Effective date: November 7, 2019

Proposal publication date: July 26, 2019

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