TITLE 22. EXAMINING BOARDS

PART 9. TEXAS MEDICAL BOARD

CHAPTER 161. GENERAL PROVISIONS

The Texas Medical Board (Board) proposes amendments to §§161.1 - 161.6. The Board proposes repeal of §§161.8, 161.9, 161.11 - 161.13.

The Board conducted a rule review and determined the rule is still necessary. The Board further determined that the amendments and deletions were necessary to accurately reflect the operations of the board and eliminate obsolete committees and their related functions.

The amendment to §161.1, relating to Introduction, adds language to recognize and include all advisory board and committees under TMB authority. The proposed amendment also deletes unnecessary repetitive statutory language.

The amendment to §161.2, relating to Purpose and Functions, adds language to recognize and include all advisory board and committees under TMB authority, and the role of the board in determining qualifications and eligibility criteria for certain licenses and permits.

The amendment to §161.3, relating to Organization and Structure, deletes unnecessary repetitive statutory language. The proposed amendment simplifies rules relating to standards of eligibility, conduct, and potential grounds for removal of board members.

The amendment to §161.4, relating to Officers of the Board, removes an incorrect word.

The amendment to §161.5, relating to Meetings, deletes reference to certain committees that are disbanded, obsolete or unnecessary.

The amendment to §161.6, relating to Committees of the Board, deletes unnecessary repetitive statutory language.

The repeal of §161.8, relating to Chief of Staff, deletes unnecessary repetitive statutory language.

The repeal of §161.9, relating to Medical Director, deletes unnecessary repetitive statutory language.

The repeal of §161.11, relating to Rule Changes, deletes unnecessary repetitive statutory language.

The repeal of §161.12, relating to Compliance with Non-Discrimination Laws, deletes unnecessary repetitive statutory language.

The repeal of §161.13, relating to General Considerations, deletes unnecessary repetitive statutory language.

The public benefit anticipated as a result of these amendments is to simplify and clarify the functions and operations of the board that are not otherwise clearly set out in statute. This increases public ability to understand the functions and duties of the board.

Scott Freshour, General Counsel for the Texas Medical 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 simplify and clarify the functions and operations of the board that are not otherwise clearly set out in statute. This increases public ability to understand the functions and duties of the board.

Mr. Freshour has determined that for the first five-year period these rule amendments are in effect, there will be no effect to individuals required to comply with these rules as proposed. There will be no effect on small businesses, micro businesses, or rural communities.

Pursuant to Texas Government Code §2006.002, the agency provides the following economic impact statement for the proposed rule amendments and has determined that for each year of the first five years the proposed amendments will be in effect there will be no effect on small businesses, micro businesses, or rural communities. The agency has considered alternative methods of achieving the purpose of the proposed rule amendments and found none.

Pursuant to Texas Government Code §2001.024(a)(4), Mr. Freshour certifies that the agency has determined that for each year of the first five years these rule amendments, as proposed, are in effect:

(1) there is no additional estimated cost to the state or to local governments expected as a result of enforcing or administering the rules;

(2) there are no estimated reductions in costs to the state or to local governments as a result of enforcing or administering the rules;

(3) there is no estimated loss or increase in revenue to the state or to local governments as a result of enforcing or administering the rules;

(4) there are no foreseeable implications relating to cost or revenues of the state or local governments with regard to enforcing or administering the rules;

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 a new regulation.

(6) The proposed rules expand, limit, or repeal an existing regulation 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.

22 TAC §§161.1 - 161.6

The amendments are proposed under the authority of the Texas Occupations Code Annotated, 153.001, which provides authority for the Board to adopt rules necessary to administer and enforce the Medical Practice Act.

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

§161.1.Introduction.

(a) The Texas Medical Board, referred to as the "board" or the "Medical Board", is an agency of the executive branch of state government statutorily empowered to regulate the practice of medicine in Texas. [Any reference in these rules to the former Texas State Board of Medical Examiners means the Texas Medical Board. The Medical Board also] The Board also provides oversight and support for several advisory boards and advisory committees. [the Texas Physician Assistant Board, referred to as the "Physician Assistant Board," the Texas State Board of Acupuncture Examiners, referred to as the "Acupuncture Board."]

[(b) The board may adopt rules as necessary to govern its own proceedings, perform its duties, regulate the practice of medicine in Texas, and enforce applicable law.]

[(c) The board may act under its statute and rules through the Executive Director, Executive Committee, or another committee of the board.]

§161.2.Purpose and Functions.

(a) The purpose of the board is to protect the public's safety and welfare through the regulation of the practice of medicine. [The board fulfills its purpose primarily through the licensure and discipline of physicians and other allied health care providers as mandated by law.]

(b) The board's functions include but are not limited to the following:

(1) Establish standards for the practice of medicine by physicians.

(2) Regulate the practice of medicine through the licensure and discipline of physicians.

(3) Provide oversight of the several advisory boards and advisory committees. [Texas Physician Assistant Board and the Texas State Board of Acupuncture Examiners as specified by law.]

(4) Interpret the Medical Practice Act and applicable sections of the Acts, [Physician Assistant Licensing Act, the Acupuncture Act, the Surgical Assistant Act] and [the Board] Rules [to physicians, physician assistants, acupuncturists, surgical assistants], of the several advisory boards and advisory committees subject to Medical Board oversight. [and the public to ensure informed professionals, allied health professionals, and consumers.]

(5) Receive complaints and investigate possible violations of the Medical Practice Act and the Board Rules.

(6) Discipline violators through appropriate legal action to enforce the Medical Practice Act and the Board Rules.

[(7) Provide a mechanism for public comment with regard to the Board Rules and the Medical Practice Act and the Surgical Assistant Act.]

(7) [(8)] Review and modify the Board Rules when necessary and appropriate.

8 [(9)] Examine and license qualified applicants to practice medicine, [acupuncture, and] surgical assisting, perfusion and medical physics in Texas in a manner that ensures that applicable standards are maintained.

(9) [(10)] Provide recommendations to the legislature concerning appropriate changes to the Medical Practice Act and Surgical Assistant Act to ensure that the acts are current and applicable to changing needs and practices.

[(11) Provide informal public information on licensees.]

[(12) Maintain data concerning the practice of medicine.]

§161.3.Organization and Structure.

[(a) The board shall consist of 19 members appointed by the Governor with the advice and consent of the Senate.]

[(b) The board shall consist of the following composition: nine physicians with a degree of doctor of medicine (M.D.) and licensed to practice medicine in Texas for at least three years; three physicians with a degree of doctor of osteopathic medicine (D.O.) and licensed to practice medicine in Texas for three years; and seven members who represent the public.]

[(c) The terms of board members shall be six years in length and shall be staggered so that the terms of not more than one-third of the members shall expire in a single calendar year. Upon completion of a term, a member shall continue to serve until a successor has been appointed. A member may be reappointed to successive terms as permitted by law at the discretion of the Governor.]

(a) [(d)] Each board member shall meet and maintain the qualifications for board membership and execute their duties as set by law.

[(e)] A board member should strive to achieve and project the highest standards of professional conduct. Such standards include:

(1) A board member should not accept or solicit any benefit that might influence the board member in the discharge of official duties or that the board member knows or should know is being offered with the intent to influence official conduct.

(2) A board member should not accept employment or engage in any business or professional activity that would involve the disclosure of confidential information acquired by reason of the official position as a board member.

(3) A board member should not accept employment that could impair independence of judgment in the performance of the board member's official duties.

(4) A board member should not make personal investments that could reasonably be expected to create a conflict between the board member's private interest and the public interest.

(5) A board member should not intentionally or knowingly solicit, accept, or agree to accept any benefit for having exercised the board member's official powers or performed the board member's official duties in favor of another.

(6) A board member should be fair and impartial in the conduct of the business of the board. A board member should project such fairness and impartiality in any meeting or hearing.

(7) A board member should be diligent in preparing for meetings and hearings.

(8) A board member should avoid conflicts of interests. If a conflict of interest should unintentionally occur, the board member should recuse himself or herself from participating in any matter before the board that could be affected by the conflict.

(9) A board member should avoid the use the board member's official position to imply professional superiority or competence.

(10) A board member should avoid the use of the board member's official position as an endorsement in any health care related matter.

(11) Board member appearances.

(A) A board member should not appear as an expert witness in any case in which a licensee of the board is a party and in which the expert testimony relates to standard of care or professional malpractice. A board member may provide expert testimony if the board member has been called primarily as a fact witness. A board member should disclose any potential employment as an expert witness to and seek prior approval of the board's executive committee. When providing expert testimony in any matter, a board member should state that any opinion of the board member is not on behalf of or approved by the board and should not claim special expertise because of board membership.

(B) A board member shall not appear in any administrative proceeding involving the exercise of the board's licensing or disciplinary authority before the board or the State Office of Administrative Hearings in which proceeding a licensee of the board is a party. A board member may furnish a written statement for a licensee to use in such administrative proceedings only if:

(i) the board member sought and received in writing the prior approval of the board's executive committee;

(ii) the written statement of the board member used by a licensee presents only facts that the board member has personally witnessed and does not offer or provide any statement as to character of the licensee or characterization of the events witnessed; and

(iii) the written statement plainly states that the recitation of the witnessed facts is not an indication of in any manner that the board concurs with, agrees to, or supports those facts or the board member in his or her action.

(12) A board member should refrain from making any statement that implies that the board member is speaking for the board if the board has not voted on an issue or unless the board has given the board member such authority.

(c) [(f)] Report of Potential Grounds for Removal. In addition to Section 152.006 of the Act, the following are grounds [If the executive director of the board has knowledge that a potential ground for removal exists, the executive director shall notify the president of the board of that ground. The president of the board shall then notify the governor's office and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the president of the board, the executive director shall notify the next highest ranking officer of the board, who shall then notify the governor and the attorney general that a potential ground for removal exists. Grounds] for potential removal that must be reported are as follows:

(1) For purposes of Section 152.006(a)(5), a [A board member is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the board. A] board member shall be considered to have been absent from a regularly scheduled board meeting if the member fails to attend at least a portion of either a full board session or a portion of a regularly scheduled committee meeting to which a member is assigned during such board meeting. Any dispute or controversy as to whether or not an absence has occurred shall be submitted to the full board for resolution by a majority vote after giving the purported absentee the opportunity to present information concerning the alleged absences and after allowing discussion by other members of the board.

(2) A board member who is subject of a non-disciplinary or disciplinary action, including but not limited to any remedial plan, board order, or administrative penalty, regardless of the nature of the violation(s) that led to the remedial plan, board order, or administrative penalty.

[(g) The validity of an action of the board is not affected by the fact that the action is taken when a ground for potential removal of a board member exists.]

[(h)] Each member of the board shall receive per diem as provided by law for each day that the member engages in the business of the board and will be reimbursed for travel expenses incurred in accordance with the state of Texas and board's travel policies.

§161.4.Officers of the Board.

(a) The Governor shall designate a member of the board to serve as the president of the board.

(b) The board shall elect officers from among its members to serve as the vice president and the secretary-treasurer for a term not to extend longer than two years. The election of officers shall be held at least every other year at a regular meeting of the board.

(c) All elections and any other issues requiring a vote of the board shall be decided by a simple majority of the members present and voting.

(d) If more than two candidates are nominated for an office, and no candidate receives a majority on the first ballot, a second ballot will be conducted between the two candidates receiving the highest number of votes.

(e) Duties of the officers.

(1) The duties of the president shall include the following:

(A) approve the agenda for each board meeting;

(B) preside at all meetings of the board;

(C) represent the board in legislative matters and in meetings with related groups;

(D) appoint the members to serve on the standing, ad hoc, and advisory committees of the board;

(E) appoint the chair of each board committee;

(F) perform or designate a member or members of the board to coordinate the annual performance review of the executive director; and[.]

(G) perform such other duties as pertain to the office of the president. [and]

(2) The duties of the vice president shall include the following:

(A) function as president in the absence or incapacity of the president;

(B) serve as president if the office of president becomes vacant until another member is named by the Governor; and

(C) perform such other duties that are from time to time assigned by the board.

(3) The duties of the secretary-treasurer shall include the following:

(A) function as president in the absence or incapacity of both the president and vice president;

(B) serve as president if both the offices of president and vice president becomes vacant until another member is elected by the board or named by the Governor; and

(C) perform such other duties as set out by law or such other duties that are from time to time assigned by the board.

(f) In the event of the absence or incapacity of the president, vice president, and secretary-treasurer, the board may elect another person to act as presiding officer of a board meeting or may elect an interim acting president for the duration of the absence or incapacity of the officers.

(g) After the death, resignation, or permanent incapacity of any elected officer, the board shall hold an election to fill the vacant officer position. If any elected officer is elected to another position at these elections, that officer's vacant position shall be filled by election to be held following the creation of the new vacancy.

§161.5.Meetings.

(a) [The board shall meet at least four times a year. It shall consider such matters as may be necessary.]

(a) [(b)] Special meetings shall be called by the president or by resolution of the board or upon written request signed by five members of the board.

[(c) An agenda for each board meeting and committee meeting shall be posted in accordance with law and copies shall be sent to the board members.]

(b) [(d)] Board and committee meetings shall be conducted pursuant to the provisions of Robert's Rules of Order Newly Revised unless the board by rule adopts a different procedure.

[(e) A quorum for transaction of business by the board shall be one more than half the board's membership at the time of the meeting.]

(c) [(f)] The board may act only by majority vote of its members present and voting, with each member entitled to one vote. No proxy vote shall be allowed.

[(g) Meetings of the board and of the committees are open to the public unless such meetings are conducted in executive session pursuant to state law.]

(d) [(h)] In order that board and committee meetings may be conducted safely, efficiently, and with decorum, attendees may not engage in disruptive activity that interferes with board proceedings.

(e) [(i)] Members of the public shall remain within those areas of the board offices and board meeting room designated as open to the public.

(f) [(j)] Members of the public shall not address or question board members during meetings unless recognized by the board's presiding officer pursuant to a published agenda item.

(g) [(k)] Journalists have the same right of access to board meetings conducted in open session as other members of the public and are subject to the same requirements.

(h) [(l)] The board's presiding officer may exclude from a meeting any person who, after being duly warned, persists in disruptive activity that interferes with board proceedings.

(i) [(m)] Any person may record all or any part of the proceedings of a public board meeting in attendance by means of a tape recorder, video camera, or any other means of sonic or visual reproduction.

(1) The executive director shall direct any individual wishing to record or videotape as to equipment location, placement, and the manner in which the recording is conducted.

(2) The decision will be made so as not to disrupt the normal order and business of the board.

[(n) Executive Session.]

[(1) The board may meet in executive session pursuant to law.]

[(2) An executive session of the board shall not be held unless a quorum of the board has first been convened in open meeting. If during such open meeting, a motion is passed by the board to hold an executive session, the presiding officer shall publicly announce that an executive session will be held.]

[(3) The presiding officer of the board shall announce the date and time at the beginning and end of the executive session.]

[(4) A certified agenda of the executive session shall be prepared.]

[(o) Committee minutes shall be approved by the full board with a quorum of the committee members present to vote on approval of the minutes.]

§161.6.Committees of the Board.

(a) Each board committee shall be composed of board members appointed by the president of the board and shall include at least one physician member who holds the degree of doctor of osteopathic medicine and one public member.

(b) The following are standing and permanent committees of the board. The responsibilities and authority of these committees shall include the following duties and powers, and other responsibilities and charges that the board may from time to time delegate to these committees.

(1) Disciplinary Process Review Committee:

(A) oversee the disciplinary process and give guidance to the board and board staff regarding means to improve the disciplinary process and more effectively enforce the Medical Practice Act and board rules;

(B) monitor the effectiveness, appropriateness and timeliness of the disciplinary process and enforcement of the Medical Practice Act and board rules;

(C) make recommendations regarding resolution and disposition of specific cases and approve, adopt, modify, or reject recommendations from board staff or board representatives regarding actions to be taken on pending cases;

(D) approve dismissals of complaints and closure of investigations; and

(E) make recommendations to the board staff and the board regarding policies, priorities, budget, and any other matters related to the disciplinary process and enforcement of the Medical Practice Act and board rules.

(2) Executive Committee:

(A) ensure records are maintained of all committee actions;

(B) delegate tasks to other committees;

(C) take action on matters of urgency that may arise between board meetings;

(D) assist in the presentation of information concerning the board and the regulation of the practice of medicine to the Legislature and other state officials;

(E) review staff reports regarding finances and the budget;

(F) formulate and make recommendations to the board concerning future board goals and objectives and the establishment of priorities and methods for their accomplishment;

(G) study and make recommendations to the board regarding the roles and responsibilities of the board offices and committees;

(H) study and make recommendations to the board regarding ways to improve the efficiency and effectiveness of the administration of the board;

(I) study and make recommendations to the board regarding board rules or any area of a board function that, in the judgment of the committee, needs consideration; and

(J) make recommendations to the board regarding matters brought to the attention of the executive committee.

(3) Finance Committee:

(A) review staff reports regarding finances and the budget;

(B) assist in the presentation of budget needs to the Legislature and other state officials;

(C) recommend proper fees for the agency to charge; and

(D) consider and make recommendations to the board regarding any aspect of board finances.

[(4) Legislative Committee:]

[(A) review and make recommendations to the board regarding proposed legislative changes concerning the Medical Practice Act and the regulation of medicine;]

[(B) establish communication with members of the Legislature, trade associations, consumer groups, and related groups;]

[(C) assist in the organization, preparation, and delivery of information and testimony to members and committees of the Legislature; and]

[(D) make recommendations to the board regarding matters brought to the attention of the legislative committee.]

(4) [(5)] Licensure Committee:

(A) review applications for licensure and permits, make determinations of eligibility and report to the board its recommendations as provided by the Medical Practice Act and board rules;

(B) review board rules regarding licensure and make recommendations to the board regarding changes or implementation of such rules;

(C) evaluate each examination accepted by the board and develop each examination administered by the board;

(D) investigate and report to the board any problems in the administration of examinations and recommend and implement ways of correcting identified problems;

(E) make recommendations to the board regarding postgraduate training permits and issues concerning physicians in training;

(F) maintain communication with Texas medical schools;

(G) develop rules with regard to international medical schools in the areas of curriculum, faculty, facilities, academic resources, and performance of graduates;

(H) study and make recommendations regarding documentation and verification of records from all applicants for licensure or permits;

(I) review applications for acudetox specialist certification, surgical assistants, perfusionists and medical physicists, make determinations of eligibility, and report to the board its recommendations as provided by Texas Occupations Code [Annotated, 205.303] and board rules;

[(J) review applications for acupuncture licensure recommended by the Texas State Board of Acupuncture Examiners and for applicants that hold licenses in other states that have licensure requirements that are substantially equivalent to those of this state, make determinations of eligibility, and report to the board its recommendations;]

(J) [(K)] review applications and make initial determinations and recommendations to the board regarding approval, denial, revocation, decertification, or continued approval and certification of non-profit health organizations pursuant to the Medical Practice Act;

(K) [(L)] develop and review board rules regarding all persons and entities subject to the Board's jurisdiction, and make recommendations to the board regarding changes or implementation of such rules; and

(L) [(M)] review applications for surgical assistant licensure, make determinations, of eligibility, and report to the board its recommendations; and

(M) [(N)] make recommendations to the board regarding matters brought to the attention of the licensure committee.

[(6) Public Information/Physician Profile Committee:]

[(A) develop information for distribution to the public;]

[(B) review and make recommendations to the board in regard to press releases, newsletters, web-sites and other publications;]

[(C) study and make recommendations to the board regarding all aspects of public information and public relations;]

[(D) receive information from the public concerning the regulation of medicine pursuant to a published agenda item and board rules;]

[(E) study and make recommendation to the board regarding all aspects of physician profiles; and]

[(F) make recommendations to the board regarding matters brought to the attention of the public information/physician profile committee.]

[(7) Standing Orders Committee:]

[(A) review and make recommendations to the board regarding board rules pertaining to standing orders;]

[(B) study and make recommendations to the board regarding issues concerning or referred by the Texas State Board of Acupuncture Examiners or other acupuncture issues;]

[(C) study and make recommendations to the board regarding issues concerning or referred by the Texas Physician Assistant Board;]

[(D) study and make recommendations to the board concerning ethical issues related to the practice of medicine; and]

[(E) make recommendations to the board regarding matters brought to the attention of the standing orders committee.]

[(8) Telemedicine Committee:]

[(A) review, study, and make recommendations to the board concerning the practice of telemedicine, including but not limited to licensure, regulation, and/or discipline of telemedicine license holders or applicants;]

[(B) review, study, and make recommendations to the board concerning interstate and intrastate telemedicine issues;]

[(C) review, study, and make recommendations to the board concerning board rules regarding or affecting the practice of telemedicine; and]

[(D) review, study, and make recommendations to the board concerning any other issue brought to the attention of the committee.]

(c) With statutory or board authorization, the president may appoint, disband, or reconvene standing, ad hoc, or advisory committees as deemed necessary. Such committees shall have and exercise such authority as may be granted by the board.

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 August 28, 2019.

TRD-201902962

Scott Freshour

General Counsel

Texas Medical Board

Earliest possible date of adoption: October 13, 2019

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


22 TAC §§161.8, 161.9, 161.11 - 161.13

The repeals are proposed under the authority of the Texas Occupations Code Annotated, 153.001, which provides authority for the Board to adopt rules necessary to administer and enforce the Medical Practice Act.

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

§161.8.Chief of Staff.

§161.9.Medical Director.

§161.11.Rule Changes.

§161.12.Compliance with Non-Discrimination Laws.

§161.13.General Considerations.

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 August 28, 2019.

TRD-201902963

Scott Freshour

General Counsel

Texas Medical Board

Earliest possible date of adoption: October 13, 2019

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