TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 163. LICENSURE

The Texas Medical Board (TMB) adopts amendments to §§163.2, 163.4, 163.6, 163.13 and the repeal of §163.7, concerning Licensure, without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4751) and will not be republished.

TMB sought stakeholder input at a meeting held on August 4, 2017. The comments were incorporated into the proposed rules as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4751).

The amendment to §163.2, concerning Full Texas Medical License, deletes language under subsection (d)(5)(A) that sets forth requirements related to §163.7 of this title (relating to 10 Year Rule). The amendments are adopted to reflect the repeal of 22 TAC §163.7 of this title.

The amendment to §163.4, concerning Procedural Rules for Licensure Applicants, deletes language under subsection (d)(5)(D) related to §163.7. The amendments are adopted to reflect the repeal of §163.7 of this title.

The amendment to §163.6, concerning Examinations Accepted for Licensure, deletes language under subsection (e)(1) requiring that an applicant pass the jurisprudence examination within three attempts. The changes are made pursuant to the passage of Senate Bill 674 (85th Legislature, Regular Session), which amended §155.056 of the Texas Occupations Code.

The repeal of §163.7, concerning Ten Year Rule, repeals requirements that an applicant have passed an examination listed in §163.6(a) of this title (relating to Examinations Accepted for Licensure) for licensure within the ten-year period prior to the filing date of the application. The repeal is adopted to remove an unnecessary impediment to licensure for physicians who have maintained competency through the active practice of medicine, and otherwise meet all general eligibility requirements.

The amendment to §163.13, concerning Expedited Licensure Process, adds a new subsection (b), creating an expedited licensing process for out-of-state psychiatrists. The amendments are adopted in accordance with the passage of Senate Bill 674, 85th Legislative Regular Session, which added Texas Occupations Code, §155.010 and requires the Board to create an expedited licensing process for applicants who hold an unrestricted license to practice medicine issued in another state, are board certified in psychiatry, and meet other general eligibility requirements.

The amended sections are adopted in order to have rules that comport with applicable statutes and are clear and consistent, and expedite the licensure of qualified out-of-state psychiatrists and remove unnecessary impediments to licensure for qualified and experienced physicians, addressing Texas' continued population growth and increasing need for qualified physicians.

The following entities furnished written comments in response to the proposed repeal of §163.7: Texas Medical Association (TMA) and a private consulting firm located in Austin. No one appeared to testify at the public hearing held on October 20, 2017.

Comment No. 1:

TMA supports the repeal of §163.7, stating that repealing the rule will enhance the recruitment of qualified physicians and remove one impediment to addressing a shortage of physicians that affect certain areas of Texas.

Comment No. 2:

The private consulting firm opposes the repeal of §163.7, stating that the rule is necessary to ensure that physicians demonstrate current competency in order to obtain licensure. The firm recommended that, as an alternative to repeal, the rule be amended with added language allowing for applicants to show current competency through the maintenance of hospital privileges for at least five of the prior 10 years to the date of the application.

TMB Response:

TMB disagrees that §163.7 is necessary to ensure that physicians demonstrate current competency in order to obtain licensure, or that creating alternative eligibility through the showing of continuous hospital privileges is a better option than repeal. Current competency is sufficiently addressed under §163.11, Active Practice of Medicine, which requires that applicants for medical licensure demonstrate that they have, "on a full-time basis, actively diagnosed or treated persons or has been on the active teaching faculty of an acceptable approved medical school, within either of the last two years preceding receipt of an Application for licensure." Therefore, the Board declines to make the firm's proposed changes and adopts the repeal of §163.7 as published.

TMB received no comments on the remaining sections.

22 TAC §§163.2, 163.4, 163.6, 163.13

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. The amendments are further adopted under the authority of Texas Occupations Code Annotated, Chapter 155, as amended by Senate Bill 674 (85th Leg., R.S.).

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 November 6, 2017.

TRD-201704476

Scott Freshour

Interim Executive Director

Texas Medical Board

Effective date: November 26, 2017

Proposal publication date: September 15, 2017

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


22 TAC §163.7

The repeal is 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. The repeal is further adopted under the authority of Texas Occupations Code Annotated, Chapter 155, as amended by Senate Bill 674 (85th Leg. R.S.)(2017).

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 November 6, 2017.

TRD-201704477

Scott Freshour

Interim Executive Director

Texas Medical Board

Effective date: November 26, 2017

Proposal publication date: September 15, 2017

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


CHAPTER 171. POSTGRADUATE TRAINING PERMITS

22 TAC §171.3

The Texas Medical Board (Board) adopts an amendment to §171.3, concerning Physician-in-Training Permits, without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4753) and will not be republished.

The amendment to §171.3 adds language to subsection (d)(2)(C), clarifying that a physician-in-training permit shall expire not only upon the date the permit holder obtains full licensure, but temporary or limited licensure as well. The purpose of the amendment is to align the language of §171.3 with §163.9 of this title (relating to Only One License), which provides that a person may not have more than one license or permit at the same time, and that upon the issuance of any license or permit, all previously issued licenses and permits, including postgraduate training permits, shall be considered to be terminated.

No comments were received regarding adoption of the amendment.

The amendment is 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. The amendment is further adopted under the authority of Texas Occupations Code Annotated, Chapter 155.

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 November 6, 2017.

TRD-201704478

Scott Freshour

Interim Executive Director

Texas Medical Board

Effective date: November 26, 2017

Proposal publication date: September 15, 2017

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


CHAPTER 172. TEMPORARY AND LIMITED LICENSES

SUBCHAPTER B. TEMPORARY LICENSES

22 TAC §172.4, §172.8

The Texas Medical Board (TMB) adopts amendments to §172.4, concerning State Health Agency Temporary License and §172.8, concerning Faculty Temporary License, without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4754) and will not be republished.

The amendment to §172.4 deletes language under paragraphs (1)(C) and (2)(A) referencing §163.7 of this title (relating to Ten Year Rule). The amendments are made to reflect the adoption of the repeal of §163.7 of this title, which is also published in this issue of the Texas Register.

The amendment to §172.8 deletes language under subsection (a)(2), requiring that an applicant pass the jurisprudence examination within three attempts. The changes are made pursuant to Senate Bill 674 (85th Legislature, Regular Session). Further amendments are made to subsection (k), deleting language referencing §163.7 of this title. The amendments are made to reflect the adoption of the repeal of §163.7 of this title, which is also published in this issue of the Texas Register.

The following entities submitted written comments on the proposed amendments: Texas Medical Association (TMA). TMA expressed support of amendments proposed for §172.4. No comments were received regarding the adoption of §172.8.

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. The amendments are further adopted under the authority of Texas Occupations Code Annotated, Chapter 155, as amended by Senate Bill 674 (85th Leg. R.S.)(2017).

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 November 6, 2017.

TRD-201704479

Scott Freshour

Interim Executive Director

Texas Medical Board

Effective date: November 26, 2017

Proposal publication date: September 15, 2017

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


CHAPTER 174. TELEMEDICINE AND MENTAL HEALTH SERVICES

The Texas Medical Board (TMB) adopts amendments to §§174.1 - 174.3, 174.5 - 174.9 and new §174.4, concerning Mental Health Services and adopts the repeal of §§174.10-174.12, concerning Telemedicine. Sections 174.1 - 174.7 and 174.10 - 174.12 are adopted without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4756) and will not be republished. Sections 174.8 and 174.9 are adopted with non-substantive changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4756). The text of the rules will be republished.

TMB sought stakeholder input through its Telemedicine Stakeholder Group, which met on July 17, 2017. At the meeting, all the members of the Stakeholder Group expressed support for the proposed rules. There were several comments made at that meeting concerning relatively minor changes to the proposed rules. These minor changes were incorporated into the proposed rules published for notice and comment. All the changes proposed are made to insure the rules comport with statutory changes by virtue of Senate Bill 1107.

The amendment to §174.1, concerning Purpose, adds language stating that the purpose of the telemedicine rules is to clarify the requirements of Chapter 111 of the Texas Occupations Code related to the provision of telemedicine medical services. Other language referring to the "standards for the use of the Internet" is deleted as it is no longer relevant and is too vague.

The amendment to §174.2, concerning Definitions, deletes multiple definitions pertaining to telemedicine that are no longer valid or necessary, while adding new definitions of "Prescription," "Store and Forward Technology," "Telehealth Services," Telemedicine Medical Services," and Ultimate User." All these changes are adopted to comport with the new definitions in Senate Bill 1107 dealing with telemedicine and telehealth services.

The amendment to §174.3, concerning Prevention of Fraud and Abuse, deletes language outlining a list of written protocols required in order to establish that a physician has made a good faith effort to prevent fraud and abuse through the use of telemedicine medical services, and substitute with new language requiring that the physician adopt protocols to prevent fraud and abuse that are consistent with standards established by the Health and Human Services Commission Pursuant to §531.02161 of the Government Code. These changes clarify requirements for adopting protocols related to preventing fraud and abuse, and comport with the language in Senate Bill 1107.

New §174.4, concerning Notice to Patients, adds language setting forth two subsections outlining requirements for physicians who communicate with patients by electronic communications other than telephone or facsimile. Paragraph (1) provides that such physicians must provide patients with written or electronic notification of privacy practices prior to evaluation or treatment via a telemedicine medical service and that in addition, a good faith effort be made to obtain the patient's written or electronic acknowledgement. Paragraph (2) requires that the notices of privacy practices include language that is consistent with federal standards under 45 CFR Parts 160 and 164. Paragraph (3) sets forth language requiring that physicians who utilize telemedicine medical services provide patients with notice of how to file a complaint with the Board. These changes were made to comport with Senate Bill 1107.

The amendment to §174.5, concerning Issuance of Prescriptions, deletes language related to requirements for notification of privacy practices and moves it to new §174.4 of this title (relating to Notice to Patients). Other language related to other notification requirements, including the necessity of an in-person evaluation, is repealed. New language is added that sets out minimum requirements for the validity of prescriptions issued as a result of a telemedicine medical service. The amendments add language limiting the treatment of chronic pain through telemedicine medical services. The Texas Medical Board consulted with Texas Board of Pharmacy to insure the amendments to this section comport with statutes and rules related to pharmacies and pharmacists. These changes were also made to comport with Senate Bill 1107.

The amendment to §174.6, concerning Minimum Standards for the Provision of Telemedicine Medical Services, deletes multiple requirements for providing telemedicine services through an "established medical site." New language is added setting forth simplified minimum requirements for providing a health care service or procedure through telemedicine that comport with Senate Bill 1107. This amendment addresses requirements related to the standard of care, medical record keeping, and patient communications.

The amendment to §174.7, concerning Enforcement Authority, deletes requirements related to providing telemedicine services at locations other than "established medical sites." Language is added clarifying the Board's enforcement authority to investigate and discipline physicians for violations of statutes and rules related to telemedicine services. These changes were made to comport with Senate Bill 1107.

The amendment to §174.8, concerning State Licensure, deletes language related to requirements for the evaluation and treatment of a patient by telemedicine that was superseded by Senate Bill 1107. The amendment further adds language clarifying that physicians providing telemedicine services must possess a full Texas medical license when treating residents of Texas.

The amendment to §174.9, concerning Provision of Mental Health Services, deletes language regarding technology and security requirements and adds language setting forth requirements related to the provision of mental health services. These requirements include: a requirement of licensure or certification; establishment of a provider/patient relationship; and a requirement to meet the standard of care. The amendment makes clear that technology may be used to provide mental health services to patients in a different location from the licensed or certified provider. The amendment also recognizes that mental health services can be provided by a number of different providers who are not physicians. Many of these providers have their own licensing requirements and defined scope of practices. The rule insures these mental health providers may continue services as long as in compliance with all applicable laws and rules. The amendment also makes clear that the Board may investigate and discipline Board licensees for violations of rules related to the providing of mental health services, or refer those not subject to Medical Board authority to the proper regulatory agency. These changes were made to comport with Senate Bill 1107.

Section 174.10, concerning Medical Records for Telemedicine Medical Services, is repealed, as the language under this rule was moved to §174.6 of this title (relating to Minimum Standards for the Provision of Telemedicine Medical Services).

Section 174.11, concerning On Call Services, is repealed, as call coverage rules are now located under Chapter 177 of this title (relating to Business Organizations and Agreements).

Section 174.12, concerning State Licensure, is repealed, as the language was added to §174.8 of this title (relating to State Licensure).

TMB received public written comments regarding proposed rules in Chapter 174 from the following commenters: Teladoc; Texas e-health Alliance; Texas Medical Association; Coalition for Nurses in Advanced Practice; Erisa Industry Committee; Texas Nurses Association; Texas Nurse Practitioners; Texas Psychological Association; Texas Society for Clinical Social Work; Texas Association for Marriage and Family Therapy; National Association of Social Workers; Texas Counseling Association; Texas State Board Examiners of Marriage and Family Therapists, Texas State Board of Examiners of Professional Counselors; Texas State Board of Social Work Examiners; Texas Council of Community Centers; Texas EMS Alliance; City of Houston Fire Department, Texas Academy of Physician Assistants, the Texas Hospital Association, and approximately 65 individuals. The individual commenters included were almost exclusively mental health providers other than physicians, and the comments were provided through primarily a standardized form letter.

In addition, oral comments on the proposed amendments were received from three individuals at a public hearing on Friday, October 20, 2017.

The following is a summary of the comments and the TMB responses:

Commenter: Teladoc

Teladoc is a telemedicine provider in Texas and fully supported the proposed revisions. They were also a stakeholder and involved in the drafting of SB 1107. Teladoc recommended making the following non-substantive changes: fixing one typographical comma error found in §174.5 and deleting text published as remaining under §174.8(a). The Board agrees with the recommendations. The text under §174.8(a) contained formatting errors and was not published accurately. Accordingly, the Board adopts §174.8 with non-substantive changes to the published amendments. The amendments to the rule will be republished.

Commenter: Texas e-Health Alliance

Texas e-Health Alliance represents a number of telemedicine providers in Texas. Texas e-Health Alliance fully supported the proposed revisions. It was also a stakeholder and involved in the drafting of SB 1107.

Commenter: Texas Academy of Physician Assistants (TAPA)

TAPA represents approximately 8,000 physician assistants practicing in Texas. TAPA expressed full support for the proposed amendments.

Commenter: Texas Hospital Association (THA)

THA represents over 450 hospitals and health care systems in Texas. THA expressed full support for the proposed amendments.

Commenter: Texas Medical Association (TMA)

TMA is a professional association representing 50,000 physicians in Texas. It was also a stakeholder and involved in the drafting of SB 1107.

The TMA physician stakeholder who attended the meeting on July 17, 2017, fully supported the proposed amendment.

TMA legal staff submitted written comments that generally supported the proposed rules as a major proponent of SB 1107. Although, in support of rules, certain TMA legal staff comments seem to be in conflict with the TMA physician representative's comments of full support made at the July meeting, and recommendation of no changes.

1. This comment concerned the striking of rules and asked that detailed requirements related to the physician-patient relationship be maintained as set out in the previous rule.

TMB Response:

TMB disagrees with TMA's assertion of the necessity of keeping any of the defined terms or elements to comprise a physician-patient relationship. SB 1107 clearly states what is required to establish a physician-patient relationship. Further, Senate Bill 1107 applies the same standard of care as that of an in-person setting and limits TMB from requiring any higher standard of care than specified in Senate Bill 1107.

2. This comment concerned the issuing of prescriptions, stating that the amendments will result in a lack of clarity for the requirements related to the establishment of a physician-patient relationship prior to issuing prescriptions in a non-telemedicine setting and telemedicine settings. In addition, TMA asserted the amendments lack sufficient guidance to physicians on what is required for telemedicine encounters not resulting in issuance of a prescription.

TMB Response:

TMB disagrees with the TMA comments. SB 1107 requires rules that define a valid prescription, but that does not mean that a telemedicine encounter has to result in a prescription. The bill does not impact a non-telemedicine prescription. Any encounter whether by telemedicine or in-person, whether resulting in the issuance of a prescription, is held to the same standard of care.

3. This comment stated TMB should not just rely on the standard of care in regulating telemedicine.

TMB Response:

TMB disagrees with the TMA comments. Any encounter whether by telemedicine or in-person is held to the same standard of care. This standard is long recognized in Texas as the legal standard utilized to evaluate patient care and complaints concerning a physician's care to a patient.

4. This comment requested clarity on Privacy Notice Requirements.

TMB Response:

TMB disagrees with the TMA comments. The privacy notice provision is flexible, as long as the notice is provided. There are any number of ways to provide said notice, and TMB does not believe it is necessary to be overly prescriptive. Additionally, TMA asks about an instance where previous notice has been given. The rule does not intend duplicate notices, but rather insure that a patient when initially utilizing telemedicine is informed of privacy practice related to this delivery method.

5. This comment requested consistency in use of terms, practitioner, physician and health professional.

TMB Response:

TMB disagrees with the TMA comments that the terms as used are confusing or inconsistent. None of the stakeholders or subsequently received comments expressed any confusion over the use of these terms.

6. This comment requested clarity on amendments adding language related to licensing requirements set forth under §174.8.

TMB Response:

TMB agrees with the TMA comments, and removed the term "advanced."

Accordingly, the Board adopts §174.8 with non-substantive changes to the published amendments. The amendments to the rule will be republished.

7. This comment requested clarity on §174.9 related to mental health services.

TMB Response:

TMB agrees with the TMA comments. TMB is adopting the amendments striking the phrase, "practice of medicine" to recognize other mental health providers provide mental health services according to their licensure or certification, and the scope of their practice as defined in law and rule. Non-substantive changes are also adopted to the amendments published, to recognize other mental health providers provide mental health services according to their licensure or certification, and the scope of their practice as defined in law and rule. Any action related to these mental health providers will be under the jurisdiction of the respective state regulatory authority and agency.

Commenters: Texas Nurses Association (TNA)

TNA generally supported the proposed rules but expressed concern over the language in §174.9 stating that mental health services are the practice of medicine. The concern was that this would limit access to mental health services, and expanded TMB's regulatory authority.

TMB agrees with the TNA's comments. TMB is adopting the amendments striking the phrase, "practice of medicine", to recognize other mental health providers provide mental health services according to their licensure or certification, and the scope of their practice as defined in law and rule. Accordingly, TMB adopts §174.9 with non-substantive changes to the published amendments. The amendments to the rule will be republished.

Commenter: Coalition for Nurses in Advanced Practice (CNAP)

CNAP opposed the proposed definition under §174.2 setting forth the definition for "telehealth", stating that TMB does not have the authority to regulate telehealth. CNAP expressed concern over the language in §174.9 stating that mental health services are the practice of medicine. The concern was that this would limit access to mental health services, and expanded TMB's regulatory authority.

TMB disagrees that the definition under §174.2 is unnecessary, as including it will provide better clarity to TMB's licensees on the distinction between telehealth and telemedicine.

TMB agrees with the CNAP's comment as to §174.9. TMB is adopting the amendments striking the phrase, "practice of medicine" to recognize other mental health providers provide mental health services according to their licensure or certification, and the scope of their practice as defined in law and rule.

Commenters: Erisa Industry Committee (ERIC)

ERIC expressed concerns that the proposed amendments are vague, and recommended retaining language requiring written protocols to address fraud and abuse, notice to patients about the limitations of telemedicine and steps to take if there is a need for in-person follow up care, adding language §174.6 clarifying that an in-person evaluation is not required to establish a physician-patient relationship, and retain language required under the unamended rule for the evaluation and treatment of a patient by telemedicine, including the discussion of a diagnosis and the evidence for it, as well of a discussion of the need for an in-person follow up care should the need arise.

TMB declines to adopt the recommended changes and disagrees that the amendments to the rules are vague. TMB disagrees that retaining language under the unamended rule would comport with Senate Bill 1107's requirements.

Commenters:

The Texas Psychological Association; Texas Society for Clinical Social Work; Texas Association for Marriage and Family Therapy; National Association of Social Workers; Texas Counseling Association; Texas State Board of Examiners of Professional Counselors; Texas State Board of Examiners of Marriage and Family Therapists, Texas State Board of Social Work Examiners; Texas Council of Community Centers and approximately 65 individuals.

All of these comments centered on proposed §174.9 and expressed concern over the proposed language that stated providing mental health services is the practice of medicine. The concern was that this would severely limit access to mental health services, and expanded TMB's regulatory authority.

TMB Response:

TMB agrees, and adopts the rule with non-substantive amendments striking the language related to the "practice of medicine," to recognize other mental health providers provide mental health services according to their licensure or certification, and the scope of their practice as defined in law and rule.

The rule is further amended to recognize other mental health providers, and their allowed scope for providing mental health services according to their licensure or certification, and the scope of their practice as defined in law and rule. Any action related to these mental health providers will be under the jurisdiction of the respective state regulatory authority and agency.

Commenters: Texas EMS Alliance and City of Houston Fire Department:

These two commenters were concerned that the proposed rules would somehow supersede or interfere with ability of EMS providers to continue operating under their current statutory and regulatory scheme.

TMB Response:

TMB disagrees. The regulation of EMS is under a completely different statutory provision and rules, and are not affected or changed in any way by these rules. A written letter to that affect has also been provided to the City of Houston Fire Department in response.

SUBCHAPTER A. TELEMEDICINE

22 TAC §§174.1 - 174.8

The amendments and new rule are adopted under the authority of the Texas Occupations Code Annotated, §153.001, which provide authority for TMB 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. The rules are also authorized by Chapter 111 of the Texas Occupations Code, as amended by Senate Bill 1107 (Regular Session, 2017).

§174.8.State Licensure.

Physicians who treat and prescribe through communications technology are practicing medicine and must possess a full Texas medical license when treating residents of Texas. An out-of-state physician may provide episodic consultations without a Texas medical license, as provided in Texas Occupations Code, §151.056, §172.2(g)(4) of this title (relating to Construction and Definitions), and §172.12(f) of this title (relating to Out-of-State Telemedicine License).

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 November 6, 2017

TRD-201704480

Scott Freshour

Interim Executive Director

Texas Medical Board

Effective date: November 26, 2017

Proposal publication date: September 15, 2017

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


SUBCHAPTER B. MENTAL HEALTH SERVICES

22 TAC §174.9

The amendment is adopted under the authority of the Texas Occupations Code Annotated, §153.001, which provide authority for TMB 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. The rules are also authorized by Chapter 111 of the Texas Occupations Code, as amended by Senate Bill 1107 (Regular Session, 2017).

§174.9.Provision of Mental Health Services.

The Board recognizes that mental health services are expressly exempt from the provisions of Section 111, Texas Occupations Code. Pursuant to §§151.056, 153.001 and 157.001 of the Medical Practice Act, the Board has authority to promulgate rules concerning mental health services. Given that many areas of the state lack access to mental health services and providers, the use of technology can help alleviate this shortage. Therefore, the following rules are enacted to provide greater access to care, while insuring patient safety:

(1) Licensure or Certification Required--Any individual providing mental health services must be properly licensed or certified in this state to perform health care services, or be a qualified mental health professional-community services (QMHP-CS) as defined in 25 TAC §412.303(48) (relating to Definitions) and only perform tasks and activities within the scope of the individual's licensure or certification.

(2) Use of Technology to Provide Mental Health Services--Mental health services may be provided to a patient at a different location from the location of the licensed or certified provider using telecommunications or information technology.

(3) Establishing the Provider/Patient Relationship--When providing mental health services, the provider must establish the provider-patient relationship, which can be established through use of telecommunications or information technology.

(4) Standard of Care--When providing mental health services, such services must be conducted in the same manner as those in a traditional in-person setting. This includes keeping of proper medical records, performing observations and evaluations, and treatment. If treatment involves the use of prescription medication, all applicable federal and state laws and rules apply.

(5) Investigations and Discipline--Complaints regarding violations of rules related to mental health services may result in an investigation and discipline under the Medical Practice Act and applicable board rules and procedures, or referral to the proper regulatory authority of the practitioner providing the mental health services.

(6) Chronic Pain Treatment Prohibited--Treatment of chronic pain with scheduled drugs through use of telecommunications or information technology is prohibited, unless otherwise allowed under federal and state law.

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 November 6, 2017.

TRD-201704481

Scott Freshour

Interim Executive Director

Texas Medical Board

Effective date: November 26, 2017

Proposal publication date: September 15, 2017

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


22 TAC §§174.10 - 174.12

The repeals are adopted under the authority of the Texas Occupations Code Annotated, §153.001, which provide authority for TMB 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. The rules are also authorized by Chapter 111 of the Texas Occupations Code, as amended by Senate Bill 1107 (Regular Session, 2017).

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 November 6, 2017.

TRD-201704482

Scott Freshour

Interim Executive Director

Texas Medical Board

Effective date: November 26, 2017

Proposal publication date: September 15, 2017

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 §175.1, concerning Application and Administrative Fees, and §175.2, concerning Registration and Renewal Fees, without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4760). The amended rules will not be republished.

The amendment to §175.1 deletes language tying fee calculation for the Prescription Drug Monitoring Program (PMP) to Article IX, §18.55 of House Bill 1, 84th Legislature, and adds language requiring fee calculation to be made in accordance with the Texas General Appropriations Act. The amendment will increase flexibility under the rules for any future PMP fee changes necessitated by amendments made to the Medical Board's cost allocation for PMP administration through the General Appropriations Act.

The amendment to §175.2 deletes language tying fee calculation for the Prescription Drug Monitoring Program to Article IX, §18.55 of House Bill 1, 84th Legislature, and adds language requiring fee calculation to be in accordance with the Texas General Appropriations Act. The amendment will increase flexibility under the rules for any future PMP fee changes necessitated by amendments made to the Medical Board's cost allocation for PMP administration through the General Appropriations Act.

No comments were received regarding adoption of the rules.

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. The amendments are also authorized by Texas Occupations Code Annotated, §156.001 and §554.006, and Article VIII, Senate Bill 1, 85th Legislature, Regular Session (2017).

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 November 6, 2017.

TRD-201704483

Scott Freshour

Interim Executive Director

Texas Medical Board

Effective date: November 26, 2017

Proposal publication date: September 15, 2017

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


CHAPTER 187. PROCEDURAL RULES

The Texas Medical Board (TMB) adopts amendments to §187.16, concerning Informal Show Compliance Proceedings (ISC) Information and Notices, §187.18, concerning ISC Scheduling, Process and Procedures and §187.83, concerning Proceedings for Cease and Desist Orders. Sections 187.16 and 187.18 are adopted with non-substantive changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4762). The text of the rules will be republished. Section 187.83 is adopted without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4765) and will not be republished.

The Board sought stakeholder input through Stakeholder Groups which made comments on the suggested changes to the rules at a meeting held on August 4, 2017. The comments were incorporated into the proposed rules as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4762).

The amendment to §187.16 sets out a finding that the statutory minimum requirements related to the Informal Show Compliance Proceedings (ISCs), as set out in the Texas Occupations Code, §164 et seq., are comprehensive and complete. The amendments state that rules related to ISC proceedings will be promulgated only as necessary to be consistent with statutory requirements. The amendment deletes provisions duplicative of §164 of the Texas Occupations Code and deletes an incorrect reference to providing 30 rather than 45 days' notice prior to an ISC. The amendment to §187.18 deletes ISC requirements duplicative of those set out in §164.003 and §164.0031 of the Texas Occupations Code and clarifies the procedures for conducting an ISC.

The amendment to §187.83 corrects an erroneous citation to Texas Occupations Code to reflect the correct citation to §164.052.

Comments §187.16:

The Board received written comments from the Texas Medical Association (TMA) and two individuals appeared to testify at the public hearing held on October 20, 2017, regarding §187.16.

Comment 1: TMA disagrees with the proposed deletion of the requirement that the Board provide the licensee with the rules governing the proceedings and guidelines to assist the licensee to prepare for the ISC, including requirements regarding requests to reschedule the ISC. TMA further urges the Board to adopt a requirement that the Board provide the licensee a comprehensive description of the ISC process, in addition to the rules and guidelines governing the ISC along with a description of the requirements for requesting rescheduling of the ISC.

Board Response: The Board determined that the information relating to the rules and guidelines designed to assist a licensee in preparation for an ISC and requirements for requesting rescheduling of the ISC are set out in Board Rule. Additionally, such information may be compiled into a FAQ and posted on the Board's website.

Comment 2: Two individuals echoed TMA's concerns in that licensees are not fully apprised of the process and procedures prior to coming to an ISC and urged the Board to better inform licensees about the process to include information regarding the complaint, alleged violations and applicable statutes.

Board Response: The Board disagrees with this commenter's assertions and explained that the licensees are fully apprised of the complaint, alleged violations and the applicable statutes prior to and ISC. Furthermore, the Board reiterated that the procedural information, rules and guidelines that will assist a licensee in preparation for an ISC, including requirements for requesting rescheduling of the ISC are set out in Board Rules. Additionally, such information may be compiled into a FAQ and posted on the Board's website.

The Board declines to make additional changes to §187.16 based on such comments. However, based on TMA stakeholder input, the Board adopts a change to the title of §187.16 to read "Informal Show Compliance (ISC) Information and Notices," as this change is non-substantive and will accurately reflect the contents of the rule which contains notice requirements and delineates the information that will be provided to licensees. The Board further adopts non-substantive changes in §187.16 to abbreviate the references to "informal meetings" and "Informal Show Compliance Proceedings" to "ISC." The Board adopts the amendments to the title published in the September 15, 2017, issue of the Texas Register (42 TexReg 4762) with non-substantive changes.

Comments §187.18:

The Board received written comments from the Texas Medical Association (TMA) and no one appeared to testify at the public hearing held on October 20, 2017, regarding §187.16.

Comment 1: TMA urges the Board to change the title of §187.18 to eliminate the words "Based on Personal Appearance" and consolidate §187.16 and §187.18 into one rule stating that the titles of these two rules are confusing to licensees who may be unable to discern or locate the rules applicable to ISC notice requirements and procedures.

Board Response: The Board declines to consolidate §187.16 and §187.18 into one rule. The Board agrees that the title of §187.18, pertaining to "Informal Show Compliance Proceedings and Settlement Conferences Based on Personal Appearance" should be changed to reflect the purpose and contents of the rule and should be renamed "ISC Scheduling, Process and Procedures."

Comment 2: TMA states that proposed subsection (d) which states "Informal proceedings shall be conducted in accordance with §164.003 and §164.0032 of the Act. The board representative may:" should be changed to read "ISCs shall be conducted in accordance with §164.003 and §164.0032 of the Act. In addition to ISC requirements under these laws, the board representative may also:" TMA maintains that the words "Informal Proceedings" should be replaced with "ISCs" in the first sentence of subsection (d) and that the proposed rule as published does not clearly establish that the mandatory elements for ISCs, as described in statute, are in addition to the discretionary elements that are listed in subsection (d). TMA asserts that changing the preamble in subsection (d) as described above would clarify this subsection.

Board Response: The Board agrees with TMA's comment and suggested changes to the first sentence, relating to §187.18(d). Specifically, the Board agrees that "Informal Proceedings" should be changed to "ISCs." The Board further determines that TMA's suggested clarification of the first sentence in §187.18(d) is non-substantive and agrees that changing the first sentence of subsection (d) to read "ISCs shall be conducted in accordance with §164.003 and §164.0032 of the Act. In addition to ISC requirements under these laws, the board representative may also:" would clarify that the statutory and discretionary elements apply during ISC proceedings.

Comment 3: TMA comments that subsection (d)(1), as published, may place licensees on unequal footing in that the rule, as published, affords Board staff the opportunity to ask clarifying questions during the ISC, but not the licensee. TMA maintains that the licensee should also be afforded the opportunity to ask clarifying questions and make clarifying statements.

Board Response: The Board disagrees with TMA's assertion. Licensees who appear at an ISC are always afforded an opportunity to ask questions about the ISC process, after it is explained to them at the beginning of the conference. Licensees are also afforded an opportunity to engage in a dialogue with the board representatives regarding the matters at issue in the case. They are also afforded an opportunity to clarify any statements previously made. Additionally, they are also afforded an opportunity to make introductory remarks and closing remarks in response to the allegations as presented by the board staff. Should the licensee need to clarify statements, references or actions referenced during the ISC, they are afforded an opportunity to do so before the conclusion of the ISC.

Comment 4: TMA states that subsection (d)(2) should be further revised to clearly establish that both the licensee and board staff are allowed to make closing remarks at the conclusion of the ISC. They suggest changing the proposed rule to state "allow closing summaries, and if allowed, it must be allowed by both the licensee or the licensee's representative and board staff," as opposed to the rule as published which states "allow a closing summary by both the licensee or the licensee's authorized representative and board staff."

Board Response: The Board disagrees with TMA's assertion that the §187.18(d)(2), as published, does not clearly articulate that the licensee (or authorized representative) and board staff are allowed to make a closing summary statement. Notwithstanding this provision as published, closing remarks by board staff and licensee or authorize representative at the conclusion of an ISC is an established procedure and each side is afforded the opportunity to make a closing statement.

Comment 5: TMA proposes changes to subsection (k) because it fails to require dismissal upon a determination by the board representatives that there was no violation by the licensee. Further, TMA asserts that the rule fails to clearly establish that the board representatives must make a determination that the licensee has violated the Act prior to disposing of the case via enumerated actions (k)(2) through (k)(8).

Board Response: The Board disagrees with TMA's assertion that the rule, as published, lacks clarity. The board representatives are constrained by the statute and rules and cannot take disciplinary action without a determination that a violation occurred. Naturally, dismissal occurs when the board representatives find no violation.

Accordingly, the Board takes the following actions with regard to §187.18 as published:

The Board adopts a non-substantive change in the title of §187.18 to read "ISC Scheduling, Process and Procedures." The Board adopts a non-substantive change in the first sentence of subsection (d) to read "ISCs shall be conducted in accordance with §164.003 and §164.0032 of the Act. In addition to ISC requirements under these laws, the board representative may also…." The Board adopts the amendments to those sections, with non-substantive changes. The amendments will be republished.

The Board declines to make further changes to §187.18(d)(1), (d)(2) and (k) and adopts the remaining amendments, as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4762) without additional changes.

Comments §187.83:

No comments were received regarding adoption of §187.83 and no one appeared to testify at the public hearing held on October 20, 2017.

SUBCHAPTER B. INFORMAL BOARD PROCEEDINGS

22 TAC §187.16, §187.18

The amendments are adopted under the authority of the Texas Occupations Code Annotated, §153.001, which provide 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. The amendments are also adopted under the authority of Texas Occupations Code Chapter 164.

§187.16.Informal Show Compliance (ISC) Information and Notices.

(a) Texas Medical Board finds that statutory minimum requirements related to the Informal Show Compliance Proceedings (ISCs) as set out in the Texas Occupations Code, §164 et seq. are comprehensive and complete. Pursuant to §153.001 and §164.003 of the Medical Practice Act, the Board is authorized to adopt rules relating to the ISCs and how they are to be conducted. These rules are promulgated to clarify the ISC process and procedures only as necessary to be consistent with the statutory requirements.

(b) Notice of the time, date and place of the ISC shall be extended to the licensee and the complainant(s) in writing, by hand delivery, regular mail, certified mail -- return receipt requested, overnight or express mail, courier service, or registered mail, to the address of record of the complainants and the address of record of the licensee or the licensee's authorized representative to be sent at least 45 days prior to the date of the ISC. The notice to the licensee or the licensee's authorized representative shall also include:

(1) a statement that the licensee has the opportunity to attend and participate in the ISC;

(2) a written statement of the nature of the allegations; and

(3) a copy of the information the board intends to use at the ISC. If the complaint includes an allegation that the licensee has violated the standard of care, the notice shall also include a copy of the Expert Physician Reviewers' Report, prepared in accordance with §154.0561, Texas Occupations Code. The information required by this section may be given in separate communications at different times, provided all of the information has been provided at least 45 days prior to the date of the ISC.

(c) All information provided by the board staff and the licensee shall be provided to the board representatives for review prior to the board representatives making a determination of whether the licensee has violated the Act, board rules, remedial plan, or board order.

(d) All ISC proceedings shall be scheduled not later than the 180th day after the date the board's official investigation of the complaint is commenced, unless good cause is shown by the board for scheduling the ISC after that date. For purposes of this subsection:

(1) "Scheduled" means the act of the agency to reserve a date for the ISC.

(2) "Good cause" shall have the meaning set forth in §179.6 of this title (relating to Time Limits).

§187.18.ISC Scheduling, Process and Procedures.

(a) After referral of an investigation to the agency's legal division, the Hearings Coordinator of the board shall schedule an ISC before an ISC Panel in accordance with the requirements set forth in §164.003(b)(4) and §164.0031 of the Act.

(b) Requests to reschedule the ISC by a licensee must be in writing and shall be referred to the Hearings Counsel for consideration. To avoid undue disruption of the ISC schedule, the Hearings Counsel should grant a request applying the following guidelines:

(1) A request by a licensee to reschedule an ISC must be in writing and may be granted only if the licensee provides satisfactory evidence of the following requirements:

(A) A request received by the agency within five business days after the licensee received notice of the date of the ISC, must provide details showing that:

(i) the licensee has a conflicting event that had been scheduled prior to receipt of notice of the ISC;

(ii) the licensee has made reasonable efforts to reschedule such event but a conflict cannot reasonably be avoided.

(B) A request received by the agency more than five business days after the licensee received notice of the date of the ISC must provide details showing that an extraordinary event or circumstance has arisen since receipt of the notice that will prevent the licensee from attending the ISC. The request must show that the request is made within five business days after the licensee first becomes aware of the event or circumstance.

(2) A request by a licensee to reschedule an ISC based on the failure of the agency to send timely notice before the date scheduled for the ISC, as required by §164.003 of the Act, shall be granted, provided the request is received by the agency within five business days after the late notice is received by the licensee.

(c) Prior to the ISC, the board representatives shall be provided with the information sent to the licensee by the board staff and any responses received in accordance with §164.003(f) of the Act.

(d) ISCs shall be conducted in accordance with §164.003 and §164.0032 of the Act. In addition to the requirements under these laws, the board representatives may:

(1) ask questions of the licensee and staff, and allow clarifying questions by staff;

(2) allow a closing summary by both the licensee or the licensee's authorized representative and board staff.

(e) The board representatives may allow a complainant, to make an oral statement. Such statement may be given outside the physical presence of the licensee for a demonstrated and legitimate need. If such statement is allowed, arrangements will be made to allow the licensee to listen to the statement contemporaneously as it is given.

(f) The board representatives may refuse to consider any information not submitted in a timely manner without good cause. If the board representatives allow the licensee to submit late information, the representatives may reschedule.

(g) A board attorney, who has not been involved with the preparation of the case, shall be designated as the Hearings Counsel, and act in accordance with §164.003 and §164.0032 of the Act.

(h) A request by a licensee to make a recording of the ISC, as allowed by §164.003(i) of the Act, must be submitted in writing, and received by the Board at least 15 days prior to the date of the ISC. Deliberations of the ISC panel shall be excluded from any such recording. The recording is part of the investigative file and may not be released to a third party unless authorized under the Act. The licensee may be charged a fee to cover the cost of recording the proceeding. Licensees and their representatives may not independently record an ISC.

(i) The ISC shall be informal and shall not follow the procedures established under this title for formal board proceedings.

(j) At the conclusion of the presentations, the board representatives shall deliberate in order to make recommendations for the disposition of the complaint or allegations.

(k) The board representatives may:

(1) make recommendations to dismiss the complaint or allegations. The dismissal of any matter is without prejudice to additional investigation and/or reconsideration of the matter at any time;

(2) make recommendations regarding an agreed order and propose resolution of the issues to the licensee to be reduced to writing and processed in accordance with §187.19 of this title (relating to Resolution by Agreed Order);

(3) defer the ISC, pending further investigation;

(4) direct that a formal Complaint be filed with SOAH;

(5) recommend to the President of the board that a Disciplinary Panel be convened to consider the temporary suspension or restriction of the licensee's license;

(6) recommend the imposition of an administrative penalty pursuant to §§187.75 - 187.82 of this chapter (relating to Procedural Rules); or

(7) recommend that a remedial plan be issued to resolve the complaint pursuant to §187.9 of this chapter (relating to Board Actions).

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 November 6, 2017.

TRD-201704485

Scott Freshour

Interim Executive Director

Texas Medical Board

Effective date: November 26, 2017

Proposal publication date: September 15, 2017

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


SUBCHAPTER I. PROCEEDINGS FOR CEASE AND DESIST ORDERS

22 TAC §187.83

The amendment is 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. The amendments are also adopted under the authority of Texas Occupations Code, Chapter 164.

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 November 6, 2017.

TRD-201704486

Scott Freshour

Interim Executive Director

Texas Medical Board

Effective date: November 26, 2017

Proposal publication date: September 15, 2017

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