AN ACT

relating to the adoption of a nonsubstantive revision of statutes relating to the licensing and regulation of certain professions and business practices, including conforming amendments, repeals, and penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.  ADOPTION OF CODE. The Occupations Code is adopted to read as follows:

OCCUPATIONS CODE

TITLE 1. GENERAL PROVISIONS

CHAPTER 1. GENERAL PROVISIONS

[Chapters 2-50 reserved for expansion]

TITLE 2. GENERAL PROVISIONS RELATING TO LICENSING

CHAPTER 51. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 52. TRANSFER OF LICENSE

CHAPTER 53. CONSEQUENCES OF CRIMINAL CONVICTION

CHAPTER 54. EXAMINATION ON RELIGIOUS HOLY DAY

CHAPTER 55. RENEWAL OF LICENSE WHILE ON MILITARY DUTY

[Chapters 56-100 reserved for expansion]

TITLE 3. HEALTH PROFESSIONS

SUBTITLE A. PROVISIONS APPLYING TO HEALTH PROFESSIONS GENERALLY

CHAPTER 101. HEALTH PROFESSIONS COUNCIL

CHAPTER 102. SOLICITATION OF PATIENTS

CHAPTER 103. RIGHT TO OBJECT TO PARTICIPATION IN ABORTION

PROCEDURE

CHAPTER 104. HEALING ART PRACTITIONERS

[Chapters 105-150 reserved for expansion]

SUBTITLE B. PHYSICIANS

CHAPTER 151. GENERAL PROVISIONS

CHAPTER 152. STATE BOARD OF MEDICAL EXAMINERS

CHAPTER 153. POWERS AND DUTIES

CHAPTER 154. PUBLIC INTEREST INFORMATION AND COMPLAINT

PROCEDURES

CHAPTER 155. LICENSE TO PRACTICE MEDICINE

CHAPTER 156. LICENSE RENEWAL

CHAPTER 157. AUTHORITY OF PHYSICIAN TO DELEGATE CERTAIN MEDICAL

ACTS

CHAPTER 158. AUTHORITY OF PHYSICIAN TO PROVIDE CERTAIN DRUGS AND

SUPPLIES

CHAPTER 159. PHYSICIAN-PATIENT COMMUNICATION

CHAPTER 160. REPORT AND CONFIDENTIALITY REQUIREMENTS

[Chapter 161 reserved for expansion]

CHAPTER 162. REGULATION BY BOARD OF CERTAIN NONPROFIT HEALTH

CORPORATIONS

CHAPTER 163. DISTRICT REVIEW COMMITTEES

CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES

CHAPTER 165. PENALTIES

[Chapters 166-200 reserved for expansion]

SUBTITLE C. OTHER PROFESSIONS PERFORMING MEDICAL PROCEDURES

CHAPTER 201. CHIROPRACTORS

CHAPTER 202. PODIATRISTS

CHAPTER 203. MIDWIVES

CHAPTER 204. PHYSICIAN ASSISTANTS

CHAPTER 205. ACUPUNCTURE

[Chapters 206-250 reserved for expansion]

SUBTITLE D. DENTISTRY

CHAPTER 251. GENERAL PROVISIONS RELATING TO PRACTICE

OF DENTISTRY

CHAPTER 252. STATE BOARD OF DENTAL EXAMINERS

CHAPTER 253. EXECUTIVE DIRECTOR AND PERSONNEL

CHAPTER 254. BOARD POWERS AND DUTIES

CHAPTER 255. PUBLIC INTEREST INFORMATION AND COMPLAINT

PROCEDURES

CHAPTER 256. LICENSING OF DENTISTS AND DENTAL HYGIENISTS

CHAPTER 257. LICENSE RENEWAL

CHAPTER 258. PRACTICE BY DENTIST

CHAPTER 259. PROHIBITED OR RESTRICTED COMMERCIAL OR PROFESSIONAL

ACTIVITIES

CHAPTER 260. OPERATION OF CERTAIN DENTAL PRACTICES

CHAPTER 261. CONFIDENTIALITY AND IMMUNITY OF DENTAL PEER REVIEW

COMMITTEE

CHAPTER 262. REGULATION OF DENTAL HYGIENISTS

CHAPTER 263. LICENSE DENIAL AND DISCIPLINARY PROCEEDINGS

CHAPTER 264. PENALTIES AND ENFORCEMENT PROVISIONS

CHAPTER 265. REGULATION OF DENTAL ASSISTANTS

CHAPTER 266. REGULATION OF DENTAL LABORATORIES

[Chapters 267-300 reserved for expansion]

SUBTITLE E. REGULATION OF NURSING

CHAPTER 301. REGISTERED NURSES

CHAPTER 302. LICENSED VOCATIONAL NURSES

CHAPTER 303. NURSING PEER REVIEW

[Chapters 304-350 reserved for expansion]

SUBTITLE F. PROFESSIONS RELATED TO EYES AND VISION

CHAPTER 351. OPTOMETRISTS AND THERAPEUTIC OPTOMETRISTS

CHAPTER 352. OPTICIANS

CHAPTER 353. CONTACT LENS PRESCRIPTION ACT

[Chapters 354-400 reserved for expansion]

SUBTITLE G. PROFESSIONS RELATED TO HEARING AND SPEECH

CHAPTER 401. SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS

CHAPTER 402. HEARING INSTRUMENT FITTERS AND DISPENSERS

[Chapters 403-450 reserved for expansion]

SUBTITLE H. PROFESSIONS RELATED TO CERTAIN TYPES OF THERAPY

CHAPTER 451. ATHLETIC TRAINERS

CHAPTER 452. EXECUTIVE COUNCIL OF PHYSICAL THERAPY AND

OCCUPATIONAL THERAPY EXAMINERS

CHAPTER 453. PHYSICAL THERAPISTS

CHAPTER 454. OCCUPATIONAL THERAPISTS

CHAPTER 455. MASSAGE THERAPY

[Chapters 456-500 reserved for expansion]

SUBTITLE I. REGULATION OF PSYCHOLOGY AND COUNSELING

CHAPTER 501. PSYCHOLOGISTS

CHAPTER 502. MARRIAGE AND FAMILY THERAPISTS

CHAPTER 503. LICENSED PROFESSIONAL COUNSELORS

CHAPTER 504. CHEMICAL DEPENDENCY COUNSELORS

CHAPTER 505. SOCIAL WORKERS

[Chapters 506-550 reserved for expansion]

SUBTITLE J. PHARMACY AND PHARMACISTS

CHAPTER 551. GENERAL PROVISIONS

CHAPTER 552. TEXAS STATE BOARD OF PHARMACY

CHAPTER 553. EXECUTIVE DIRECTOR AND OTHER BOARD PERSONNEL

CHAPTER 554. BOARD POWERS AND DUTIES; RULEMAKING AUTHORITY

CHAPTER 555. PUBLIC INTEREST INFORMATION AND COMPLAINT

PROCEDURES

CHAPTER 556. ADMINISTRATIVE INSPECTIONS AND WARRANTS

CHAPTER 557. PHARMACIST-INTERNS

CHAPTER 558. LICENSE TO PRACTICE PHARMACY

CHAPTER 559. RENEWAL OF LICENSE TO PRACTICE PHARMACY

CHAPTER 560. LICENSING OF PHARMACIES

CHAPTER 561. RENEWAL OF PHARMACY LICENSE

CHAPTER 562. PRACTICE BY LICENSE HOLDER

CHAPTER 563. PRESCRIPTION REQUIREMENTS; DELEGATION OF

ADMINISTRATION AND PROVISION OF DANGEROUS

DRUGS

CHAPTER 564. PROGRAM TO AID IMPAIRED PHARMACISTS

AND PHARMACY STUDENTS

CHAPTER 565. DISCIPLINARY ACTIONS AND PROCEDURES; REINSTATEMENT

OF LICENSE

CHAPTER 566. PENALTIES AND ENFORCEMENT PROVISIONS

CHAPTER 567. LABELING REQUIREMENTS FOR CERTAIN PRESCRIPTION

DRUGS OR DRUG PRODUCTS

[Chapters 568-600 reserved for expansion]

SUBTITLE K. PROFESSIONS RELATED TO USE OF CERTAIN

MEDICAL EQUIPMENT

CHAPTER 601. MEDICAL RADIOLOGIC TECHNOLOGISTS

CHAPTER 602. MEDICAL PHYSICISTS

CHAPTER 603. PERFUSIONISTS

CHAPTER 604. RESPIRATORY CARE PRACTITIONERS

CHAPTER 605. ORTHOTISTS AND PROSTHETISTS

[Chapters 606-650 reserved for expansion]

SUBTITLE L. FUNERAL DIRECTING AND EMBALMING

CHAPTER 651. FUNERAL DIRECTING AND EMBALMING

[Chapters 652-700 reserved for expansion]

SUBTITLE M. REGULATION OF OTHER HEALTH PROFESSIONS

CHAPTER 701. DIETITIANS

CHAPTER 702. HEALTH SPAS

[Chapters 703-800 reserved for expansion]

TITLE 4. PROFESSIONS RELATED TO ANIMAL HEALTH

CHAPTER 801. VETERINARIANS

[Chapters 802-900 reserved for expansion]

TITLE 5. REGULATION OF FINANCIAL AND LEGAL SERVICES

SUBTITLE A. FINANCIAL SERVICES

CHAPTER 901. ACCOUNTANTS

[Chapters 902-950 reserved for expansion]

SUBTITLE B. LEGAL SERVICES

CHAPTER 951. PREPAID LEGAL SERVICES

CHAPTER 952. LAWYER REFERRAL SERVICES

[Titles 6-8 reserved for expansion]

TITLE 9. REGULATION OF BARBERS, COSMETOLOGISTS,

AND RELATED OCCUPATIONS

CHAPTER 1601. BARBERS

CHAPTER 1602. COSMETOLOGISTS

[Chapters 1603-1700 reserved for expansion]

TITLE 10. OCCUPATIONS RELATED TO LAW ENFORCEMENT AND SECURITY

CHAPTER 1701. LAW ENFORCEMENT OFFICERS

CHAPTER 1702. PRIVATE INVESTIGATORS AND PRIVATE SECURITY

AGENCIES

CHAPTER 1703. POLYGRAPH EXAMINERS

CHAPTER 1704. REGULATION OF BAIL BOND SURETIES

[Chapters 1705-1800 reserved for expansion]

TITLE 11. REGULATION OF SALES AND SOLICITATION

CHAPTER 1801. COMMISSION MERCHANTS

CHAPTER 1802. AUCTIONEERS

CHAPTER 1803. SOLICITATION FOR PUBLIC SAFETY ORGANIZATIONS

CHAPTER 1804. SOLICITATION FOR VETERANS ORGANIZATIONS

CHAPTER 1805. SALE OF SECONDHAND BUSINESS MACHINES

[Title 12 reserved for expansion]

TITLE 13. SPORTS, AMUSEMENTS, AND ENTERTAINMENT

SUBTITLE A. GAMING

CHAPTER 2001. BINGO

CHAPTER 2002. CHARITABLE RAFFLES

CHAPTER 2003. INSPECTION AND REGULATION OF GAMBLING VESSELS

[Chapters 2004-2050 reserved for expansion]

SUBTITLE B. SPORTS

CHAPTER 2051. ATHLETE AGENTS

CHAPTER 2052. COMBATIVE SPORTS

CHAPTER 2053. RIDING STABLES

[Chapters 2054-2100 reserved for expansion]

SUBTITLE C. ARTS AND MUSIC

CHAPTER 2101. CONSIGNMENT OF ART WORKS

CHAPTER 2102. COLLECTION OF ROYALTIES ON NONDRAMATIC MUSICAL

WORKS

CHAPTER 2103. LICENSING AND PERFORMING FEES FOR CERTAIN

RECORDINGS

CHAPTER 2104. REGULATION OF OUTDOOR MUSIC FESTIVALS

CHAPTER 2105. REGULATION OF TALENT AGENCIES

[Chapters 2106-2150 reserved for expansion]

SUBTITLE D. OTHER AMUSEMENTS AND ENTERTAINMENT

CHAPTER 2151. REGULATION OF AMUSEMENT RIDES

CHAPTER 2152. REGULATION OF CIRCUSES, CARNIVALS, AND ZOOS

CHAPTER 2153. COIN-OPERATED MACHINES

CHAPTER 2154. REGULATION OF FIREWORKS AND FIREWORKS DISPLAYS

CHAPTER 2155. HOTELS AND BOARDINGHOUSES

CHAPTER 2156. THEATERS

CHAPTER 2157. REGULATION OF MOTION PICTURE THEATERS

OCCUPATIONS CODE

TITLE 1. GENERAL PROVISIONS

CHAPTER 1. GENERAL PROVISIONS

Sec. 1.001. PURPOSE OF CODE

Sec. 1.002. CONSTRUCTION OF CODE

Sec. 1.003. REFERENCE IN LAW TO STATUTE REVISED BY CODE

CHAPTER 1. GENERAL PROVISIONS

Sec. 1.001.  PURPOSE OF CODE. (a) This code is enacted as a part of the state's continuing statutory revision program, begun by the Texas Legislative Council in 1963 as directed by the legislature in the law codified as Section 323.007, Government Code. The program contemplates a topic-by-topic revision of the state's general and permanent statute law without substantive change.

(b)  Consistent with the objectives of the statutory revision program, the purpose of this code is to make the law encompassed by this code more accessible and understandable by:

(1)  rearranging the statutes into a more logical order;

(2)  employing a format and numbering system designed to facilitate citation of the law and to accommodate future expansion of the law;

(3)  eliminating repealed, duplicative, unconstitutional, expired, executed, and other ineffective provisions; and

(4)  restating the law in modern American English to the greatest extent possible. (New.)

Sec. 1.002.  CONSTRUCTION OF CODE. Chapter 311, Government Code (Code Construction Act), applies to the construction of each provision in this code except as otherwise expressly provided by this code. (New.)

Sec. 1.003.  REFERENCE IN LAW TO STATUTE REVISED BY CODE. A reference in a law to a statute or a part of a statute revised by this code is considered to be a reference to the part of this code that revises that statute or part of that statute. (New.)

[Chapters 2-50 reserved for expansion]

TITLE 2. GENERAL PROVISIONS

RELATING TO LICENSING

CHAPTER 51. TEXAS DEPARTMENT OF LICENSING AND REGULATION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 51.001. DEFINITIONS

Sec. 51.002. APPLICATION OF SUNSET ACT

[Sections 51.003-51.050 reserved for expansion]

SUBCHAPTER B. DEPARTMENT AND COMMISSION

Sec. 51.051. TEXAS DEPARTMENT OF LICENSING AND REGULATION

Sec. 51.052. APPOINTMENT OF COMMISSION

Sec. 51.053. COMMISSION MEMBERSHIP; ELIGIBILITY

Sec. 51.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS

Sec. 51.055. TERMS; VACANCY

Sec. 51.056. PRESIDING OFFICER

Sec. 51.057. GROUNDS FOR REMOVAL

Sec. 51.058. COMPENSATION; REIMBURSEMENT

Sec. 51.059. MEETINGS

Sec. 51.060. CIVIL LIABILITY

[Sections 51.061-51.100 reserved for expansion]

SUBCHAPTER C. COMMISSIONER AND OTHER DEPARTMENT PERSONNEL

Sec. 51.101. COMMISSIONER

Sec. 51.102. COMMISSIONER TERM; VACANCY

Sec. 51.103. COMMISSIONER POWERS AND DUTIES

Sec. 51.104. PERSONNEL

Sec. 51.105. DIVISION OF RESPONSIBILITIES

Sec. 51.106. QUALIFICATIONS AND STANDARDS OF CONDUCT

INFORMATION

Sec. 51.107. CAREER LADDER PROGRAM; PERFORMANCE

EVALUATIONS

Sec. 51.108. EQUAL EMPLOYMENT OPPORTUNITY

POLICY; REPORT

[Sections 51.109-51.200 reserved for expansion]

SUBCHAPTER D. POWERS AND DUTIES

Sec. 51.201. GENERAL POWERS AND DUTIES OF COMMISSION

Sec. 51.202. FEES

Sec. 51.203. RULES

Sec. 51.204. RULES RESTRICTING ADVERTISING OR COMPETITIVE

BIDDING

Sec. 51.205. LICENSE EXPIRATION AND RENEWAL

Sec. 51.206. ANNUAL REPORT

[Sections 51.207-51.250 reserved for expansion]

SUBCHAPTER E. PUBLIC INTEREST INFORMATION

AND COMPLAINT PROCEDURES

Sec. 51.251. PUBLIC INTEREST INFORMATION

Sec. 51.252. COMPLAINTS

Sec. 51.253. PUBLIC PARTICIPATION

[Sections 51.254-51.300 reserved for expansion]

SUBCHAPTER F. ADMINISTRATIVE PENALTY

Sec. 51.301. IMPOSITION OF PENALTY

Sec. 51.302. AMOUNT OF PENALTY

Sec. 51.303. REPORT AND NOTICE OF VIOLATION AND PENALTY

Sec. 51.304. PENALTY TO BE PAID OR HEARING REQUESTED

Sec. 51.305. HEARING ON RECOMMENDATIONS

Sec. 51.306. DECISION BY COMMISSION

Sec. 51.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL

Sec. 51.308. COLLECTION OF PENALTY

Sec. 51.309. REMITTANCE OF PENALTY AND INTEREST

Sec. 51.310. ADMINISTRATIVE PROCEDURE

[Sections 51.311-51.350 reserved for expansion]

SUBCHAPTER G. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 51.351. INSPECTIONS AND INVESTIGATIONS

Sec. 51.352. INJUNCTIVE RELIEF; CIVIL PENALTY

Sec. 51.353. ADMINISTRATIVE SANCTIONS

Sec. 51.354. RIGHT TO HEARING; ADMINISTRATIVE

PROCEDURE

CHAPTER 51. TEXAS DEPARTMENT OF LICENSING AND REGULATION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 51.001.  DEFINITIONS. In this chapter:

(1)  "Commission" means the Texas Commission of Licensing and Regulation.

(2)  "Commissioner" means the commissioner of licensing and regulation.

(3)  "Department" means the Texas Department of Licensing and Regulation. (V.A.C.S. Art. 9100, Sec. 1.)

Sec. 51.002.  APPLICATION OF SUNSET ACT. The Texas Commission of Licensing and Regulation and the Texas Department of Licensing and Regulation are subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission and the department are abolished September 1, 2003. (V.A.C.S. Art. 9100, Sec. 4.)

[Sections 51.003-51.050 reserved for expansion]

SUBCHAPTER B. DEPARTMENT AND COMMISSION

Sec. 51.051.  TEXAS DEPARTMENT OF LICENSING AND REGULATION. (a) The Texas Department of Licensing and Regulation is the primary state agency responsible for the oversight of businesses, industries, general trades, and occupations that are regulated by the state and assigned to the department by the legislature.

(b)  The department is governed by the commission and the commissioner. (V.A.C.S. Art. 9100, Sec. 2.)

Sec. 51.052.  APPOINTMENT OF COMMISSION. (a) The commission consists of six members appointed by the governor with the advice and consent of the senate.

(b)  Appointments to the commission shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 9100, Secs. 3(a), (b).)

Sec. 51.053.  COMMISSION MEMBERSHIP; ELIGIBILITY. (a) Each member of the commission must be a representative of the general public.

(b)  A person is not eligible for appointment as a member of the commission if the person or the person's spouse:

(1)  is registered, certified, or licensed by the department;

(2)  is employed by or participates in the management of a business entity or other organization regulated by or receiving funds from the department;

(3)  owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the department; or

(4)  uses or receives a substantial amount of tangible goods, services, or funds from the department, other than compensation or reimbursement authorized by law for commission membership, attendance, or expenses. (V.A.C.S. Art. 9100, Sec. 5.)

Sec. 51.054.  MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a)  In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b)  An officer, employee, or paid consultant of a Texas trade association in a field regulated by the department may not be a member of the commission and may not be an employee of the department who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(c)  A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in a field regulated by the department may not be a member of the commission and may not be an employee of the department who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(d)  A person may not serve as a member of the commission or act as the general counsel to the commission if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the commission. (V.A.C.S. Art. 9100, Sec. 6.)

Sec. 51.055.  TERMS; VACANCY. (a) Members of the commission serve staggered six-year terms. The terms of two members expire on February 1 of each odd-numbered year.

(b)  If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired term. (V.A.C.S. Art. 9100, Sec. 7.)

Sec. 51.056.  PRESIDING OFFICER. (a) The commission shall elect one of its members as presiding officer. The presiding officer serves in that capacity for a period of two years.

(b)  The presiding officer may vote on all matters before the commission. (V.A.C.S. Art. 9100, Sec. 8.)

Sec. 51.057.  GROUNDS FOR REMOVAL. (a) It is a ground for removal from the commission that a member:

(1)  does not have at the time of appointment the qualifications required for appointment to the commission;

(2)  does not maintain during service on the commission the qualifications required for appointment to the commission;

(3)  violates a prohibition established by Section 51.054;

(4)  cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5)  is absent from more than half of the regularly scheduled commission meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the commission.

(b)  The validity of an action of the commission is not affected by the fact that it is taken when a ground for removal of a commission member exists.

(c)  If the commissioner has knowledge that a potential ground for removal exists, the commissioner shall notify the presiding officer of the commission of the ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 9100, Sec. 9.)

Sec. 51.058.  COMPENSATION; REIMBURSEMENT. (a) A commission member may not receive compensation for service on the commission.

(b)  A commission member is entitled to reimbursement for actual and necessary expenses incurred in performing functions as a commission member, subject to any applicable limitation on reimbursement provided by the General Appropriations Act. (V.A.C.S. Art. 9100, Sec. 10.)

Sec. 51.059.  MEETINGS. (a) The commission shall meet at least once in each quarter of the calendar year.

(b)  The commission may meet at other times at the call of the presiding officer or as provided by commission rules. (V.A.C.S. Art. 9100, Sec. 11.)

Sec. 51.060.  CIVIL LIABILITY. A member of the commission is not liable in a civil action for an act performed in good faith while performing duties as a commission member. (V.A.C.S. Art. 9100, Sec. 3(c).)

[Sections 51.061-51.100 reserved for expansion]

SUBCHAPTER C. COMMISSIONER AND OTHER DEPARTMENT PERSONNEL

Sec. 51.101.  COMMISSIONER. The commission shall appoint the commissioner who serves as executive director of the department. (V.A.C.S. Art. 9100, Sec. 13(a) (part).)

Sec. 51.102.  COMMISSIONER TERM; VACANCY. (a) The commissioner serves a one-year term that expires on March 1. A commissioner is eligible for reappointment by the commission.

(b)  If a vacancy occurs during the commissioner's term, the commission shall appoint a replacement to fill the unexpired term. (V.A.C.S. Art. 9100, Sec. 13(b).)

Sec. 51.103.  COMMISSIONER POWERS AND DUTIES. The commissioner shall:

(1)  perform any duties assigned by the commission or specified by law;

(2)  administer and enforce the department's programs; and

(3)  issue licenses, registrations, certificates, and permits authorized by the department's programs and prescribe necessary forms. (V.A.C.S. Art. 9100, Secs. 13(a) (part), (c).)

Sec. 51.104.  PERSONNEL. (a) The commissioner may employ persons to perform the department's work and may prescribe their duties and compensation, subject to the personnel policies adopted by the commission and the commission's approval of the budget.

(b)  Subject to the commission's personnel policies, the commissioner may remove any department employee. (V.A.C.S. Art. 9100, Sec. 15(a).)

Sec. 51.105.  DIVISION OF RESPONSIBILITIES. The commission shall develop and implement policies that clearly define the respective responsibilities of the commission, the commissioner, and the staff of the department. (V.A.C.S. Art. 9100, Sec. 12(e).)

Sec. 51.106.  QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The commission shall provide, as often as necessary, to its members and employees information regarding their:

(1)  qualifications for office or employment under this chapter; and

(2)  responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 9100, Sec. 12(d).)

Sec. 51.107.  CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The commissioner or the commissioner's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting. The program may not penalize or otherwise adversely affect an employee who chooses not to move from one office location to another.

(b)  The commissioner or the commissioner's designee shall develop a system of annual performance evaluations. All merit pay for department employees must be based on the system established under this subsection. (V.A.C.S. Art. 9100, Secs. 15(b), (c).)

Sec. 51.108.  EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The commissioner or the commissioner's designee shall prepare and maintain a written policy statement to assure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:

(1)  personnel policies, including policies related to recruitment, evaluation, selection, appointment, training, and promotion of personnel;

(2)  a comprehensive analysis of the department workforce that meets federal and state guidelines;

(3)  procedures by which a determination can be made of significant underuse in the department workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and

(4)  reasonable methods to appropriately address those areas of significant underuse.

(b)  A policy statement prepared under Subsection (a) must cover an annual period, be updated at least annually, and be filed with the governor.

(c)  The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports made to the legislature. (V.A.C.S. Art. 9100, Secs. 15(d), (e), (f).)

[Sections 51.109-51.200 reserved for expansion]

SUBCHAPTER D. POWERS AND DUTIES

Sec. 51.201.  GENERAL POWERS AND DUTIES OF COMMISSION. (a) The commission shall:

(1)  supervise the commissioner's administration of the department;

(2)  formulate the policy objectives for the department; and

(3)  approve the department's operating budget and the department's requests for legislative appropriations.

(b)  The commission may adopt rules as necessary for its own procedures. (V.A.C.S. Art. 9100, Secs. 12(a), (b), (c).)

Sec. 51.202.  FEES. (a) The commission shall set fees, in amounts reasonable and necessary to cover the costs of administering the programs or activities, for:

(1)  licenses, registrations, certificates, titles, and permits issued by the commissioner;

(2)  license, registration, certificate, title, and permit renewals and late renewals;

(3)  examinations; and

(4)  any other program or activity administered by the department for which a fee is authorized.

(b)  The commissioner by rule may provide for prorating the fees set by the commission for the initial issuance of a license, registration, certificate, or permit, so that a person regulated by the department pays only that portion of the applicable fee that is allocable to the number of months during which the license, registration, certificate, or permit is valid.

(c)  The commissioner shall develop cost management procedures that enable the commission to determine with reasonable accuracy the cost to the department of each program and activity for which a fee is charged. (V.A.C.S. Art. 9100, Secs. 12(f), (h), 13(d).)

Sec. 51.203.  RULES. The commissioner shall adopt rules as necessary to implement this chapter and any other law establishing a program regulated by the department. (V.A.C.S. Art. 9100, Sec. 14(a) (part).)

Sec. 51.204.  RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The commissioner may not adopt rules restricting advertising or competitive bidding by a person regulated by the department except to prohibit false, misleading, or deceptive practices by that person.

(b)  The commissioner may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the department a rule that:

(1)  restricts the use of any advertising medium;

(2)  restricts the person's personal appearance or the use of the person's voice in an advertisement;

(3)  relates to the size or duration of an advertisement used by the person; or

(4)  restricts the use of a trade name in advertising by the person. (V.A.C.S. Art. 9100, Secs. 14(b), (c).)

Sec. 51.205.  LICENSE EXPIRATION AND RENEWAL. (a) The commission may adopt a system under which licenses, registrations, certificates, or permits expire on various dates during the year and may provide for a renewal period that exceeds 12 months.

(b)  The commission shall notify a person regulated by the department of the impending expiration of the person's license, registration, certificate, or permit. (V.A.C.S. Art. 9100, Sec. 12(g).)

Sec. 51.206.  ANNUAL REPORT. (a) The commissioner shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the commission during the preceding fiscal year.

(b)  The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 9100, Sec. 13(e).)

[Sections 51.207-51.250 reserved for expansion]

SUBCHAPTER E. PUBLIC INTEREST INFORMATION

AND COMPLAINT PROCEDURES

Sec. 51.251.  PUBLIC INTEREST INFORMATION. (a) The department shall prepare information of public interest describing the functions of the commission and department and the procedures by which complaints are filed with and resolved by the commission or department.

(b)  The department shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 9100, Sec. 16(a).)

Sec. 51.252.  COMPLAINTS. (a) The commissioner by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the department for the purpose of directing complaints to the department. The department may provide for that notice:

(1)  on each registration form, application, or written contract for services of a person regulated by the department;

(2)  on a sign prominently displayed in the place of business of each person regulated by the department; or

(3)  in a bill for service provided by a person regulated by the department.

(b)  The department shall keep an information file about each complaint filed with the commission or department that the commission or department has authority to resolve.

(c)  If a written complaint is filed with the commission or department that the commission or department has authority to resolve, the department, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 9100, Secs. 16(b), (c).)

Sec. 51.253.  PUBLIC PARTICIPATION. (a) The commission shall develop and implement policies that provide the public with a reasonable opportunity to appear before the commission and to speak on any issue under the commission's jurisdiction.

(b)  The commission shall prepare and maintain a written plan that describes how a person who does not speak English or who has a physical, mental, or developmental disability may be provided reasonable access to the commission's programs. (V.A.C.S. Art. 9100, Secs. 16(d), (e).)

[Sections 51.254-51.300 reserved for expansion]

SUBCHAPTER F. ADMINISTRATIVE PENALTY

Sec. 51.301.  IMPOSITION OF PENALTY. In addition to or in lieu of a sanction imposed on a person under Section 51.353, the commission may impose an administrative penalty on the person. (V.A.C.S. Art. 9100, Secs. 12(i) (part); 17(b) (part).)

Sec. 51.302.  AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $1,000 for each violation.

(b)  The amount of the penalty shall be based on:

(1)  the seriousness of the violation;

(2)  the history of previous violations;

(3)  the amount necessary to deter a future violation;

(4)  efforts made to correct the violation; and

(5)  any other matter that justice may require. (V.A.C.S. Art. 9100, Secs. 17(b) (part), (e), (f) (part).)

Sec. 51.303.  REPORT AND NOTICE OF VIOLATION AND PENALTY. (a)  If, after investigation of a possible violation and the facts surrounding the possible violation, the commissioner determines that a violation occurred, the commissioner shall issue a preliminary report stating:

(1)  the facts on which the determination is based; and

(2)  the commissioner's recommendation on the imposition of the administrative penalty, including a recommendation on the amount of the penalty.

(b)  Not later than the 14th day after the date the preliminary report is issued, the commissioner shall give written notice of the violation to the person on whom the penalty may be imposed.

(c)  The notice issued under this section must:

(1)  include a brief summary of the alleged violation;

(2)  state the amount of the recommended penalty; and

(3)  inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 9100, Secs. 17(f) (part), (g).)

Sec. 51.304.  PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice, the person may:

(1)  accept the commissioner's determination and recommended administrative penalty; or

(2)  make a written request for a hearing on that determination.

(b)  If the person accepts the commissioner's determination, the commission by order shall approve the determination and require the person to pay the recommended penalty. (V.A.C.S. Art. 9100, Secs. 17(h), (i).)

Sec. 51.305.  HEARING ON RECOMMENDATIONS. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the commissioner shall set a hearing and give written notice of the hearing to the person.

(b)  The commissioner may employ a hearings officer for this purpose.

(c)  The hearings officer shall:

(1)  make findings of fact and conclusions of law; and

(2)  promptly issue to the commission a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 9100, Secs. 17(d) (part), (j) (part).)

Sec. 51.306.  DECISION BY COMMISSION. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the commission by order may determine that:

(1)  a violation occurred and impose an administrative penalty; or

(2)  a violation did not occur.

(b)  The commissioner shall give notice of the commission's order to the person. The notice must include:

(1)  separate statements of the findings of fact and conclusions of law;

(2)  the amount of any penalty imposed;

(3)  a statement of the right of the person to judicial review of the commission's order; and

(4)  any other information required by law. (V.A.C.S. Art. 9100, Secs. 12(i) (part); 17(j) (part), (k).)

Sec. 51.307.  OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the commission's order becomes final, the person shall:

(1)  pay the penalty; or

(2)  file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both, and:

(A)  forward the amount imposed to the department for deposit in an escrow account; or

(B)  give the department a supersedeas bond in a form approved by the commissioner that:

(i)  is for the amount of the penalty; and

(ii)  is effective until judicial review of the decision is final.

(b)  A person who is financially unable to comply with Subsection (a)(2) is entitled to judicial review if the person files with the court, as part of the person's petition for judicial review, a sworn statement that the person is unable to meet the requirements of that subsection. (V.A.C.S. Art. 9100, Secs. 17(l), (m).)

Sec. 51.308.  COLLECTION OF PENALTY. If the person on whom the administrative penalty is imposed violates Section 51.307(a), the department or the attorney general may bring an action to collect the penalty. (V.A.C.S. Art. 9100, Sec. 17(n) (part).)

Sec. 51.309.  REMITTANCE OF PENALTY AND INTEREST. (a) If, after judicial review, the administrative penalty is reduced or not imposed, the commissioner shall:

(1)  remit to the person the appropriate amount, plus accrued interest, if the person paid the amount of the penalty; or

(2)  execute a release of the bond, if the person posted a supersedeas bond.

(b)  The interest paid under Subsection (a)(1) is accrued at the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid to the commissioner and ending on the date the penalty is remitted. (V.A.C.S. Art. 9100, Sec. 17(p).)

Sec. 51.310.  ADMINISTRATIVE PROCEDURE. (a) The commissioner by rule shall prescribe procedures for the determination and appeal of a decision to impose an administrative penalty.

(b)  A proceeding under this subchapter to impose an administrative penalty is considered to be a contested case under Chapter 2001, Government Code. (V.A.C.S. Art. 9100, Sec. 17(d) (part).)

[Sections 51.311-51.350 reserved for expansion]

SUBCHAPTER G. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 51.351.  INSPECTIONS AND INVESTIGATIONS. (a)  The department may conduct inspections or investigations as necessary to enforce the laws administered by the department.

(b)  The department, during reasonable business hours, may:

(1)  enter the business premises of a person regulated by the department or a person suspected of being in violation of or threatening to violate a law establishing a regulatory program administered by the department or a rule or order of the commissioner related to a regulatory program administered by the department; and

(2)  examine and copy records pertinent to the inspection or investigation. (V.A.C.S. Art. 9100, Sec. 19.)

Sec. 51.352.  INJUNCTIVE RELIEF; CIVIL PENALTY. (a)  The attorney general or the commissioner may institute an action for injunctive relief to restrain a violation by and to collect a civil penalty from a person that appears to be in violation of or threatening to violate a law establishing a regulatory program administered by the department or a rule or order of the commissioner related to the regulatory program.

(b)  The amount of a civil penalty may not exceed $1,000 for each violation or $250,000 in the aggregate.

(c)  An action filed under this section must be filed in a district court in Travis County.

(d)  The attorney general and the department may recover reasonable expenses incurred in obtaining injunctive relief under this section, including court costs, reasonable attorney's fees, investigative costs, witness fees, and deposition expenses. (V.A.C.S. Art. 9100, Sec. 18.)

Sec. 51.353.  ADMINISTRATIVE SANCTIONS. (a)  The commissioner shall adopt rules relating to administrative sanctions that may be enforced against a person regulated by the department. If a person violates a law establishing a regulatory program administered by the department or a rule or order of the commissioner relating to the program, the commissioner may:

(1)  issue a written reprimand to the person that specifies the violation;

(2)  revoke or suspend the person's license, registration, certificate, or permit; or

(3)  place the person on probation if the person's license, registration, certificate, or permit has been suspended.

(b)  If a suspension is probated, the commissioner may require the person to:

(1)  report regularly to the commissioner on matters that are the basis of the probation;

(2)  limit practice to the areas prescribed by the commissioner; or

(3)  continue or renew professional education in those areas that are the basis for the probation until the person attains a degree of skill satisfactory to the commissioner. (V.A.C.S. Art. 9100, Secs. 17(a), (c).)

Sec. 51.354.  RIGHT TO HEARING; ADMINISTRATIVE PROCEDURE. (a)  A person is entitled to a hearing if the commissioner proposes to suspend or revoke a license, registration, certificate, or permit.

(b)  The commissioner may employ a hearings officer for this purpose.

(c)  The commissioner by rule shall prescribe procedures for the determination and appeal of a decision to suspend or revoke a license, registration, certificate, or permit.

(d)  A proceeding under this chapter to suspend or revoke a license, registration, certificate, or permit is considered to be a contested case under Chapter 2001, Government Code. (V.A.C.S. Art. 9100, Sec. 17(d) (part).)

CHAPTER 52. TRANSFER OF LICENSE

Sec. 52.001. TRANSFER OF LICENSE PERMITTED

Sec. 52.002. AUTHORITY TO ENGAGE IN OCCUPATION AFTER ACQUIRING

LICENSE

Sec. 52.003. MULTIPLE HOLDERS OF SINGLE LICENSE PROHIBITED

Sec. 52.004. SALE OF CERTAIN LICENSES

CHAPTER 52. TRANSFER OF LICENSE

Sec. 52.001.  TRANSFER OF LICENSE PERMITTED. Except as otherwise provided by law, a person who owns or holds a license to engage in an occupation issued in accordance with the laws of this state may transfer the license in the records of the licensing entity. (V.A.C.S. Art. 5221h; New.)

Sec. 52.002.  AUTHORITY TO ENGAGE IN OCCUPATION AFTER ACQUIRING LICENSE. A person who purchases or is assigned a license to engage in an occupation may engage in that occupation under the license during the unexpired term of the license after the person has complied with the legal requirements provided for in original applications for those licenses. (V.A.C.S. Art. 5221i (part).)

Sec. 52.003.  MULTIPLE HOLDERS OF SINGLE LICENSE PROHIBITED. This chapter does not permit two or more persons to engage in the same occupation under one license at the same time. (V.A.C.S. Art. 5221i (part).)

Sec. 52.004.  SALE OF CERTAIN LICENSES. (a)  A license held by a person to engage in an occupation is considered an asset of the person and may be sold in the same manner as the person's other property if the entity operating under the license is closed out by legal process.

(b)  A person who purchases a license sold under Subsection (a) may engage in that occupation under the license or transfer the license to another person.

(c)  A license transferred under Subsection (b) may be transferred only one time. (V.A.C.S. Art. 5221i (part).)

CHAPTER 53. CONSEQUENCES OF CRIMINAL CONVICTION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 53.001. APPLICABILITY OF CERTAIN DEFINITIONS

Sec. 53.002. APPLICABILITY OF CHAPTER

[Sections 53.003-53.020 reserved for expansion]

SUBCHAPTER B. INELIGIBILITY FOR LICENSE

Sec. 53.021. AUTHORITY TO REVOKE, SUSPEND, OR DENY

LICENSE

Sec. 53.022. FACTORS IN DETERMINING WHETHER CONVICTION

RELATES TO OCCUPATION

Sec. 53.023. ADDITIONAL FACTORS FOR LICENSING AUTHORITY

TO CONSIDER

Sec. 53.024. PROCEEDINGS GOVERNED BY ADMINISTRATIVE

PROCEDURE ACT

Sec. 53.025. GUIDELINES

[Sections 53.026-53.050 reserved for expansion]

SUBCHAPTER C. NOTICE AND REVIEW OF SUSPENSION, REVOCATION,

OR DENIAL OF LICENSE

Sec. 53.051. NOTICE

Sec. 53.052. JUDICIAL REVIEW

CHAPTER 53. CONSEQUENCES OF CRIMINAL CONVICTION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 53.001.  APPLICABILITY OF CERTAIN DEFINITIONS. The definitions provided by Chapter 2001, Government Code, apply to this chapter. (V.A.C.S. Art. 6252-13c, Sec. 1.)

Sec. 53.002.  APPLICABILITY OF CHAPTER. This chapter does not apply to:

(1)  the Supreme Court of Texas, a person licensed under the court's authority on behalf of the judicial department of government, or an applicant for a license issued under the court's authority on behalf of the judicial department of government;

(2)  a peace officer or an applicant for a license as a peace officer described by Article 2.12, Code of Criminal Procedure; or

(3)  a person who:

(A)  is licensed by the Texas State Board of Medical Examiners, the Texas State Board of Pharmacy, the State Board of Dental Examiners, or the State Board of Veterinary Medical Examiners; and

(B)  has been convicted of a felony under Chapter 481 or 483 or Section 485.033, Health and Safety Code. (V.A.C.S. Art. 6252-13c, Sec. 2; Art. 6252-13d, Sec. 5.)

[Sections 53.003-53.020 reserved for expansion]

SUBCHAPTER B. INELIGIBILITY FOR LICENSE

Sec. 53.021.  AUTHORITY TO REVOKE, SUSPEND, OR DENY LICENSE. (a)  A licensing authority may suspend or revoke a license, disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing examination on the grounds that the person has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of the licensed occupation.

(b)  A license holder's license shall be revoked on the license holder's imprisonment following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision. (V.A.C.S. Art. 6252-13c, Secs. 4(a), (e).)

Sec. 53.022.  FACTORS IN DETERMINING WHETHER CONVICTION RELATES TO OCCUPATION. In determining whether a criminal conviction directly relates to an occupation, the licensing authority shall consider:

(1)  the nature and seriousness of the crime;

(2)  the relationship of the crime to the purposes for requiring a license to engage in the occupation;

(3)  the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and

(4)  the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation. (V.A.C.S. Art. 6252-13c, Sec. 4(b).)

Sec. 53.023.  ADDITIONAL FACTORS FOR LICENSING AUTHORITY TO CONSIDER. (a)  In determining the fitness to perform the duties and discharge the responsibilities of the licensed occupation of a person who has been convicted of a crime, the licensing authority shall consider, in addition to the factors listed in Section 53.022:

(1)  the extent and nature of the person's past criminal activity;

(2)  the age of the person when the crime was committed;

(3)  the amount of time that has elapsed since the person's last criminal activity;

(4)  the conduct and work activity of the person before and after the criminal activity;

(5)  evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release; and

(6)  other evidence of the person's fitness, including letters of recommendation from:

(A)  prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the person;

(B)  the sheriff or chief of police in the community where the person resides; and

(C)  any other person in contact with the convicted person.

(b)  The applicant has the responsibility, to the extent possible, to obtain and provide to the licensing authority the recommendations of the prosecution, law enforcement, and correctional authorities as required by Subsection (a)(6).

(c)  In addition to fulfilling the requirements of Subsection (b), the applicant shall furnish proof in the form required by the licensing authority that the applicant has:

(1)  maintained a record of steady employment;

(2)  supported the applicant's dependents;

(3)  maintained a record of good conduct; and

(4)  paid all outstanding court costs, supervision fees, fines, and restitution ordered in any criminal case in which the applicant has been convicted. (V.A.C.S. Art. 6252-13c, Sec. 4(c).)

Sec. 53.024.  PROCEEDINGS GOVERNED BY ADMINISTRATIVE PROCEDURE ACT. A proceeding before a licensing authority to establish factors required to be considered under this subchapter is governed by Chapter 2001, Government Code. (V.A.C.S. Art. 6252-13c, Sec. 4(d).)

Sec. 53.025.  GUIDELINES. (a)  Each licensing authority shall issue guidelines relating to the practice of the licensing authority under this chapter. The guidelines must state the reasons a particular crime is considered to relate to a particular license and any other criterion that affects the decisions of the licensing authority.

(b)  A state licensing authority that issues guidelines under this section shall file the guidelines with the secretary of state for publication in the Texas Register.

(c)  A local or county licensing authority that issues guidelines under this section shall post the guidelines at the courthouse for the county in which the licensing authority is located or publish the guidelines in a newspaper having countywide circulation in that county.

(d)  Amendments to the guidelines, if any, shall be issued annually. (V.A.C.S. Art. 6252-13d, Sec. 4.)

[Sections 53.026-53.050 reserved for expansion]

SUBCHAPTER C. NOTICE AND REVIEW OF SUSPENSION, REVOCATION,

OR DENIAL OF LICENSE

Sec. 53.051.  NOTICE. A licensing authority that suspends or revokes a license or denies a person a license or the opportunity to be examined for a license because of the person's prior conviction of a crime and the relationship of the crime to the license shall notify the person in writing of:

(1)  the reason for the suspension, revocation, denial, or disqualification;

(2)  the review procedure provided by Section 53.052; and

(3)  the earliest date the person may appeal the action of the licensing authority. (V.A.C.S. Art. 6252-13d, Sec. 2.)

Sec. 53.052.  JUDICIAL REVIEW. (a)  A person whose license has been suspended or revoked or who has been denied a license or the opportunity to take an examination under Section 53.021 and who has exhausted the person's administrative appeals may file an action in the district court in the county in which the licensing authority is located for review of the evidence presented to the licensing authority and the decision of the licensing authority.

(b)  The petition for an action under Subsection (a) must be filed not later than the 30th day after the date the licensing authority's decision is final and appealable. (V.A.C.S. Art. 6252-13d, Sec. 3.)

CHAPTER 54. EXAMINATION ON RELIGIOUS HOLY DAY

Sec. 54.001. DEFINITIONS

Sec. 54.002. EXAMINATION SCHEDULED ON RELIGIOUS HOLY DAY

CHAPTER 54. EXAMINATION ON RELIGIOUS HOLY DAY

Sec. 54.001.  DEFINITIONS. In this chapter:

(1)  "Religious holy day" means a day on which the tenets of a religious organization prohibit the organization's members from participating in secular activities.

(2)  "Religious organization" means an organization that qualifies under Section 11.20, Tax Code.

(3)  "State agency" means an agency in the executive, legislative, or judicial branch of state government that administers an examination for licensing or other regulatory purposes. (V.A.C.S. Art. 6252-16d, Subsecs. (b), (c), (d).)

Sec. 54.002.  EXAMINATION SCHEDULED ON RELIGIOUS HOLY DAY. (a)  Each state agency shall adopt a procedure to permit an examinee who wishes to observe a religious holy day on which the person's religious beliefs prevent the person from taking an examination to take an examination scheduled to be administered by the agency on that religious holy day on an alternate date.

(b)  Each state agency shall adopt rules as necessary to implement this section. (V.A.C.S. Art. 6252-16d, Subsecs. (a), (e).)

CHAPTER 55. RENEWAL OF LICENSE WHILE ON MILITARY DUTY

Sec. 55.001. DEFINITIONS

Sec. 55.002. EXEMPTION FROM PENALTY FOR FAILURE TO RENEW

LICENSE

CHAPTER 55. RENEWAL OF LICENSE WHILE ON MILITARY DUTY

Sec. 55.001.  DEFINITIONS. In this chapter:

(1)  "License" means a license, certificate, registration, permit, or other form of authorization required by law or a state agency rule that must be obtained by an individual to engage in a particular business.

(2)  "State agency" means a department, board, bureau, commission, committee, division, office, council, or agency of the state. (V.A.C.S. Art. 9027, Sec. 1.)

Sec. 55.002.  EXEMPTION FROM PENALTY FOR FAILURE TO RENEW LICENSE. A state agency that issues a license shall adopt rules to exempt an individual who holds a license issued by the agency from any increased fee or other penalty imposed by the agency for failing to renew the license in a timely manner if the individual establishes to the satisfaction of the agency that the individual failed to renew the license in a timely manner because the individual was on active duty in the United States armed forces serving outside this state. (V.A.C.S. Art. 9027, Sec. 2.)

[Chapters 56-100 reserved for expansion]

TITLE 3. HEALTH PROFESSIONS

SUBTITLE A. PROVISIONS APPLYING TO HEALTH PROFESSIONS GENERALLY

CHAPTER 101. HEALTH PROFESSIONS COUNCIL

SUBCHAPTER A. HEALTH PROFESSIONS COUNCIL

Sec. 101.001. HEALTH PROFESSIONS COUNCIL

Sec. 101.002. COMPOSITION OF COUNCIL

Sec. 101.003. OFFICERS

Sec. 101.004. COMPENSATION OF MEMBERS

Sec. 101.005. COUNCIL STAFF

Sec. 101.006. BUDGET

Sec. 101.007. DUTIES OF COUNCIL

[Sections 101.008-101.050 reserved for expansion]

SUBCHAPTER B. TELEPHONE COMPLAINT SYSTEM

Sec. 101.051. TELEPHONE COMPLAINT SYSTEM

Sec. 101.052. TELEPHONE LISTING

Sec. 101.053. CONFIDENTIALITY

[Sections 101.054-101.100 reserved for expansion]

SUBCHAPTER C. TRAINING PROGRAM

Sec. 101.101. TRAINING PROGRAM

Sec. 101.102. PROGRAM REQUIREMENTS

[Sections 101.103-101.150 reserved for expansion]

SUBCHAPTER D. REPORTING REQUIREMENTS

Sec. 101.151. ANNUAL REPORT

[Sections 101.152-101.200 reserved for expansion]

SUBCHAPTER E. GROUNDS FOR LICENSE REVOCATION OR DENIAL

Sec. 101.201. FALSE, MISLEADING, OR DECEPTIVE ADVERTISING

Sec. 101.202. FAILURE TO PROVIDE BILLING INFORMATION

Sec. 101.203. OVERCHARGING OR OVERTREATING

Sec. 101.204. REMEDIES

[Sections 101.205-101.250 reserved for expansion]

SUBCHAPTER F. ENFORCEMENT

Sec. 101.251. CIVIL PENALTY

Sec. 101.252. INJUNCTION

Sec. 101.253. REMEDIES NOT EXCLUSIVE

CHAPTER 101. HEALTH PROFESSIONS COUNCIL

SUBCHAPTER A. HEALTH PROFESSIONS COUNCIL

Sec. 101.001.  HEALTH PROFESSIONS COUNCIL. In this chapter, "council" means the Health Professions Council. (New.)

Sec. 101.002.  COMPOSITION OF COUNCIL. The council consists of 14 members, with one member appointed by each of the following:

(1)  the Texas Board of Chiropractic Examiners;

(2)  the State Board of Dental Examiners;

(3)  the Texas Optometry Board;

(4)  the Texas State Board of Pharmacy;

(5)  the Texas State Board of Podiatric Medical Examiners;

(6)  the State Board of Veterinary Medical Examiners;

(7)  the Texas State Board of Medical Examiners;

(8)  the Board of Nurse Examiners;

(9)  the Texas State Board of Examiners of Psychologists;

(10)  the Board of Vocational Nurse Examiners;

(11)  the entity that regulates the practice of physical therapy;

(12)  the entity that regulates the practice of occupational therapy;

(13)  the health licensing division of the Texas Department of Health; and

(14)  the governor's office. (V.A.C.S. Art. 4512p, Sec. 1(b).)

Sec. 101.003.  OFFICERS. The council shall elect from the council's members a presiding officer and assistant presiding officer to conduct the business of the council. (V.A.C.S. Art. 4512p, Sec. 1(c).)

Sec. 101.004.  COMPENSATION OF MEMBERS. A member of the council is not entitled to receive compensation or a per diem for the member's service on the council. (V.A.C.S. Art. 4512p, Sec. 1(d).)

Sec. 101.005.  COUNCIL STAFF. The council may employ staff or designate staff for the council from the employees of the regulatory agencies listed in Section 101.002 as necessary for the council to carry out the council's duties. (V.A.C.S. Art. 4512p, Sec. 1(e).)

Sec. 101.006.  BUDGET. The council shall adopt an annual budget that is funded by a prorated assessment paid by the regulatory agencies listed in Section 101.002. (V.A.C.S. Art. 4512p, Sec. 1(f).)

Sec. 101.007.  DUTIES OF COUNCIL. The council shall:

(1)  administer the functions provided by this chapter; and

(2)  provide a means for the regulatory agencies represented on the council to coordinate administrative and regulatory efforts. (V.A.C.S. Art. 4512p, Sec. 1(a).)

[Sections 101.008-101.050 reserved for expansion]

SUBCHAPTER B. TELEPHONE COMPLAINT SYSTEM

Sec. 101.051.  TELEPHONE COMPLAINT SYSTEM. The council shall establish and operate a toll-free telephone complaint system to provide assistance and referral services for persons making a complaint relating to a health profession regulated by the state. (V.A.C.S. Art. 4512p, Sec. 2(a).)

Sec. 101.052.  TELEPHONE LISTING. A state agency that regulates a health profession shall list the toll-free telephone number of the complaint system with the agency's regular telephone number. (V.A.C.S. Art. 4512p, Sec. 2(b).)

Sec. 101.053.  CONFIDENTIALITY. A complaint, adverse report, or other information regarding the content of a complaint in the possession of the council or its employee or agent relating to a person initiating a complaint or the license holder who is the subject of the complaint is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than:

(1)  a council employee or agent involved in collecting complaint information;

(2)  the specific council member agency or board responsible for regulating the health profession in which the person who is the subject of the complaint is a license holder; or

(3)  an employee or agent of the member agency or board who is involved in the discipline of license holders. (V.A.C.S. Art. 4512p, Sec. 2(c).)

[Sections 101.054-101.100 reserved for expansion]

SUBCHAPTER C. TRAINING PROGRAM

Sec. 101.101.  TRAINING PROGRAM. (a) The council shall establish a training program for the governing bodies of state agencies that regulate health professions.

(b)  Before a member of a governing body may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of the training program established under this section. (V.A.C.S. Art. 4512p, Secs. 3(a), (b).)

Sec. 101.102.  PROGRAM REQUIREMENTS. The training program must provide information to a participant regarding:

(1)  the enabling legislation that created the governing body to which the member is appointed;

(2)  the programs operated by the state agency governed by the governing body;

(3)  the role and functions of that state agency;

(4)  the rules of that state agency with an emphasis on the rules that relate to disciplinary and investigatory authority;

(5)  the current budget for that state agency;

(6)  the results of the most recent formal audit of that state agency;

(7)  the requirements of the:

(A)  open meetings law, Chapter 551, Government Code;

(B)  open records law, Chapter 552, Government Code; and

(C)  administrative procedure law, Chapter 2001, Government Code;

(8)  the requirements of the conflict of interest laws and other laws relating to public officials; and

(9)  any applicable ethics policies adopted by that state agency or the Texas Ethics Commission. (V.A.C.S. Art. 4512p, Sec. 3(c).)

[Sections 101.103-101.150 reserved for expansion]

SUBCHAPTER D. REPORTING REQUIREMENTS

Sec. 101.151.  ANNUAL REPORT. (a) The council shall prepare an annual report that includes:

(1)  a statistical compilation of enforcement actions taken by a regulatory agency listed in Section 101.002;

(2)  recommendations for statutory changes to improve the regulation of the health care professions; and

(3)  other relevant information and recommendations determined necessary by the council.

(b)  The council shall send the report to the governor, the lieutenant governor, and the speaker of the house of representatives not later than February 1 of each year. (V.A.C.S. Art. 4512p, Secs. 8(a), (b), (c).)

[Sections 101.152-101.200 reserved for expansion]

SUBCHAPTER E. GROUNDS FOR LICENSE REVOCATION OR DENIAL

Sec. 101.201.  FALSE, MISLEADING, OR DECEPTIVE ADVERTISING. (a) A person may not use advertising that is false, misleading, deceptive, or not readily subject to verification.

(b)  False, misleading, or deceptive advertising or advertising not readily subject to verification includes advertising that:

(1)  makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;

(2)  makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;

(3)  compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated;

(4)  contains a testimonial;

(5)  causes confusion or misunderstanding as to the credentials, education, or licensing of a health care professional;

(6)  represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required;

(7)  represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required;

(8)  makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or

(9)  represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional. (V.A.C.S. Art. 4512p, Secs. 4(a) (part), (b).)

Sec. 101.202.  FAILURE TO PROVIDE BILLING INFORMATION. On the written request of a patient, a health care professional shall provide, in plain language, a written explanation of the charges for professional services previously made on a bill or statement for the patient. (V.A.C.S. Art. 4512p, Sec. 5(a).)

Sec. 101.203.  OVERCHARGING OR OVERTREATING. A health care professional may not persistently or flagrantly overcharge or overtreat a patient. (V.A.C.S. Art. 4512p, Sec. 5(b).)

Sec. 101.204.  REMEDIES. (a) A violation of this subchapter is subject to action by the appropriate health licensing agency as a ground for revocation or denial of a license.

(b)  A violation of Section 101.201 is grounds for action under Section 17.47, 17.58, 17.60, or 17.61, Business & Commerce Code, by the consumer protection division of the office of the attorney general.

(c)  A violation of Section 101.201 does not create a private cause of action, including an action for breach of warranty or for an implied contract or warranty for good and workmanlike service. (V.A.C.S. Art. 4512p, Secs. 4(a) (part), (c), 5(c).)

[Sections 101.205-101.250 reserved for expansion]

SUBCHAPTER F. ENFORCEMENT

Sec. 101.251.  CIVIL PENALTY. (a) A person who violates this chapter is liable to the state for a civil penalty in an amount not to exceed $1,000 for each violation. Each day a violation occurs constitutes a separate violation.

(b)  The attorney general may initiate an action under this section by filing suit in a district court in Travis County or in the county in which the violation occurred.

(c)  The attorney general may recover reasonable expenses incurred in obtaining a civil penalty under this section, including court costs, reasonable attorney's fees, reasonable investigative costs, witness fees, and deposition expenses.

(d)  A civil penalty recovered under this section shall be deposited in the state treasury. (V.A.C.S. Art. 4512p, Sec. 6.)

Sec. 101.252.  INJUNCTION. (a) The attorney general or the appropriate health licensing agency may bring an action for an injunction to stop a violation or threatened violation of this chapter.

(b)  The attorney general or health licensing agency may recover reasonable expenses incurred in obtaining an injunction under this section, including court costs, reasonable attorney's fees, reasonable investigative costs, witness fees, and deposition expenses. (V.A.C.S. Art. 4512p, Sec. 7.)

Sec. 101.253.  REMEDIES NOT EXCLUSIVE. The remedies provided by this chapter are in addition to any other remedy provided by law, including rules. (V.A.C.S. Art. 4512p, Sec. 9.)

CHAPTER 102. SOLICITATION OF PATIENTS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 102.001. SOLICITING PATIENTS; OFFENSE

Sec. 102.002. REBUTTABLE PRESUMPTION

Sec. 102.003. FEDERAL LAW; CONSTRUCTION

Sec. 102.004. APPLICABILITY TO ADVERTISING

Sec. 102.005. APPLICABILITY TO CERTAIN ENTITIES

Sec. 102.006. FAILURE TO DISCLOSE; OFFENSE

Sec. 102.007. APPLICABILITY

Sec. 102.008. DISCIPLINARY ACTION

Sec. 102.009. INJUNCTION

Sec. 102.010. CIVIL PENALTIES

Sec. 102.011. SUIT FOR INJUNCTIVE RELIEF OR ASSESSMENT

OF CIVIL PENALTY

[Sections 102.012-102.050 reserved for expansion]

SUBCHAPTER B. HEALING ARTS

Sec. 102.051. SOLICITING PATIENTS; OFFENSE

Sec. 102.052. APPLICABILITY TO PHYSICIANS

Sec. 102.053. EXCEPTION FOR CERTAIN ADVERTISING

Sec. 102.054. ACCESSIBILITY AND USE OF WITNESS TESTIMONY

CHAPTER 102. SOLICITATION OF PATIENTS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 102.001.  SOLICITING PATIENTS; OFFENSE. (a) A person commits an offense if the person knowingly offers to pay or agrees to accept, directly or indirectly, overtly or covertly any remuneration in cash or in kind to or from another for securing or soliciting a patient or patronage for or from a person licensed, certified, or registered by a state health care regulatory agency.

(b)  Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.

(c)  An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the person:

(1)  has previously been convicted of an offense under this section; or

(2)  was employed by a federal, state, or local government at the time of the offense. (Health and Safety Code Secs. 161.091(a), (d) (part).)

Sec. 102.002.  REBUTTABLE PRESUMPTION. It is a rebuttable presumption that a person violated Section 102.001 if:

(1)  the person refers or accepts a referral of a patient to an inpatient mental health facility or chemical dependency treatment facility;

(2)  before the patient is discharged or furloughed from the facility, the person pays the referring person or accepts payment from the facility for outpatient services to be provided by the referring person after the patient is discharged or furloughed from the facility; and

(3)  the referring person does not provide the outpatient services for which payment was made and does not return to the facility the payment received for those services. (Health and Safety Code Sec. 161.091(b).)

Sec. 102.003.  FEDERAL LAW; CONSTRUCTION. Section 102.001 permits any payment, business arrangement, or payment practice permitted by 42 U.S.C. Section 1320a-7b(b) or any regulation adopted under that law. (Health and Safety Code Sec. 161.091(e).)

Sec. 102.004.  APPLICABILITY TO ADVERTISING. Section 102.001 does not prohibit advertising, unless the advertising is:

(1)  false, misleading, or deceptive; or

(2)  not readily subject to verification, if the advertising claims professional superiority or the performance of a professional service in a superior manner. (Health and Safety Code Sec. 161.091(c).)

Sec. 102.005.  APPLICABILITY TO CERTAIN ENTITIES. Section 102.001 does not apply to:

(1)  a licensed insurer;

(2)  a governmental entity, including:

(A)  an intergovernmental risk pool established under Chapter 172, Local Government Code; and

(B)  an "institution" as defined in the Texas State College and University Employees Uniform Insurance Benefits Act (Article 3.50-3, Vernon's Texas Insurance Code);

(3)  a group hospital service corporation; or

(4)  a health maintenance organization that reimburses, provides, offers to provide, or administers hospital, medical, dental, or other health-related benefits under a health benefits plan for which it is the payor. (Health and Safety Code Sec. 161.091(f).)

Sec. 102.006.  FAILURE TO DISCLOSE; OFFENSE. (a) A person commits an offense if:

(1)  the person, in a manner otherwise permitted under Section 102.001, accepts remuneration to secure or solicit a patient or patronage for a person licensed, certified, or registered by a state health care regulatory agency; and

(2)  does not, at the time of initial contact and at the time of referral, disclose to the patient:

(A)  the person's affiliation, if any, with the person for whom the patient is secured or solicited; and

(B)  that the person will receive, directly or indirectly, remuneration for securing or soliciting the patient.

(b)  Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.

(c)  An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the person:

(1)  has previously been convicted of an offense under this section; or

(2)  was employed by a federal, state, or local government at the time of the offense. (Health and Safety Code Secs. 161.092(a), (b).)

Sec. 102.007.  APPLICABILITY. (a)  This subchapter does not apply to a health care information service that:

(1)  provides its services to a consumer only by telephone communication on request initiated by the consumer and without charge to the consumer;

(2)  provides information about health care providers to enable consumer selection of health care provider services without any direct influence by a health care provider on actual consumer selection of those services;

(3)  in response to each consumer inquiry, on a nondiscriminatory basis, provides information identifying health care providers who substantially meet the consumer's detailed criteria based on consumer responses to standard questions designed to elicit a consumer's criteria for a health care provider, including criteria concerning location of the practice, practice specialties, costs and payment policies, acceptance of insurance coverage, general background and practice experience, and various personal characteristics;

(4)  does not attempt through its standard questions for solicitation of consumer criteria or through any other means to lead a consumer to select or consider selection of a particular health care provider for health care provider services;

(5)  identifies to a consumer:

(A)  all health care providers substantially meeting the consumer's stated criteria who are located within the zip code area in which the consumer elects to obtain services from a health care provider; or

(B)  all health care providers substantially meeting the consumer's stated criteria who are located in zip code areas in the closest proximity to the elected zip code area if no health care provider substantially meeting the consumer's criteria is located within that zip code area;

(6)  discloses to each consumer the relationship between the health care information service and health care providers participating in its services;

(7)  does not provide or represent itself as providing diagnostic or counseling services or assessment of illness or injury and does not make any promise of cure or guarantee of treatment;

(8)  does not provide or arrange for transportation of a consumer to or from the location of a health care provider;

(9)  does not limit the scope of or direct its advertising or other marketing of its services to a particular health care provider specialty, to a particular segment of the population, or to persons suffering from a particular illness, condition, or infirmity;

(10)  charges to and collects a fee from a health care provider participating in its services that is set in advance, is consistent with the fair market value for those information services, and is not based on the potential value of a patient to a health care provider or on the value of or a percentage of the value of a professional service provided by the health care provider;

(11)  does not limit participation by a health care provider in its services to a particular health care specialty or to a particular service provided by a health care provider;

(12)  does not limit participation by a health care provider in its services for a reason other than:

(A)  failure to have a current license without limitation to practice in this state;

(B)  failure to maintain professional liability insurance while participating in the service;

(C)  significant dissatisfaction of consumers of the health care information service that is documented and can be proved;

(D)  a decision by a peer review committee that the health care provider has failed to meet prescribed standards or has not acted in a professional or ethical manner; or

(E)  termination of the contract between the health care provider and the health care information service by either party under the terms of the contract;

(13)  maintains a customer service department to handle complaints and answer questions for consumers;

(14)  maintains a customer follow-up system to monitor consumer satisfaction; and

(15)  does not use, maintain, distribute, or provide for any purpose any information that will identify a particular consumer, such as a name, address, or telephone number, obtained from a consumer seeking its services other than for the purposes of:

(A)  providing the information to the health care provider with whom an appointment is made;

(B)  performing administrative functions necessary to operate the health care information service;

(C)  providing directly to a consumer, at the request of that consumer on that consumer's initial contact with the health care information service, information relating to health-related support groups or providers of health-care-related services or equipment within the area of interest requested by the consumer; or

(D)  conducting analytical research on data obtained through provision of services and preparing statistical reports that generally analyze that data but do not in any manner identify one or more specific consumers.

(b)  In this section:

(1)  "Health care information service" means a person who provides information to a consumer regarding health care providers that can enable the consumer to select one or more health care providers to furnish health care services.

(2)  "Health care provider" means a person licensed, certified, or registered by a state health care regulatory agency other than:

(A)  a mental health facility as defined by Section 571.003, Health and Safety Code; or

(B)  a treatment facility as defined by Section 464.001, Health and Safety Code. (Health and Safety Code Sec. 161.0915.)

Sec. 102.008.  DISCIPLINARY ACTION. A violation of Section 102.001 or 102.006 is grounds for disciplinary action by the regulatory agency that issued a license, certification, or registration to the person who committed the violation. (Health and Safety Code Secs. 161.091(d) (part), 161.092(c).)

Sec. 102.009.  INJUNCTION. (a) The attorney general or the appropriate district or county attorney, in the name of the state, may institute and conduct an action in a district court of Travis County or of a county in which any part of the violation occurs for an injunction or other process against a person who is violating this subchapter.

(b)  The district court may grant any prohibitory or mandatory relief warranted by the facts, including a temporary restraining order, temporary injunction, or permanent injunction. (Health and Safety Code Sec. 161.093.)

Sec. 102.010.  CIVIL PENALTIES. (a) A person who violates this subchapter is subject to a civil penalty of not more than $10,000 for each day of violation and each act of violation. In determining the amount of the civil penalty, the court shall consider:

(1)  the person's previous violations;

(2)  the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(3)  whether the health and safety of the public was threatened by the violation;

(4)  the demonstrated good faith of the person; and

(5)  the amount necessary to deter future violations.

(b)  The attorney general or the appropriate district or county attorney, in the name of the state, may institute and conduct an action authorized by this section in a district court of Travis County or of a county in which any part of the violation occurs.

(c)  A penalty collected under this section by the attorney general shall be deposited to the credit of the general revenue fund. A penalty collected under this section by a district or county attorney shall be deposited to the credit of the general fund of the county in which the suit was heard. (Health and Safety Code Secs. 161.094(a), (b), (e).)

Sec. 102.011.  SUIT FOR INJUNCTIVE RELIEF OR ASSESSMENT OF CIVIL PENALTY. (a) The party bringing a suit under this subchapter may:

(1)  combine a suit to assess and recover civil penalties with a suit for injunctive relief; or

(2)  file a suit to assess and recover civil penalties independently of a suit for injunctive relief.

(b)  The party bringing the suit may recover reasonable expenses incurred in obtaining civil penalties, injunctive relief, or both, including investigation costs, court costs, reasonable attorney's fees, witness fees, and deposition expenses.

(c)  The civil penalty and injunction authorized by this subchapter are in addition to any other civil, administrative, or criminal action provided by law. (Health and Safety Code Secs. 161.094(c), (d), (f).)

[Sections 102.012-102.050 reserved for expansion]

SUBCHAPTER B. HEALING ARTS

Sec. 102.051.  SOLICITING PATIENTS; OFFENSE. (a)  A person commits an offense if the person:

(1)  practices the art of healing with or without the use of medicine; and

(2)  employs or agrees to employ, pays or promises to pay, or rewards or promises to reward another for soliciting or securing a patient or patronage.

(b)  A person commits an offense if the person accepts or agrees to accept anything of value for soliciting or securing a patient or patronage for a person who practices the art of healing with or without the use of medicine.

(c)  An offense under this section is a misdemeanor punishable by a fine of not less than $100 or more than $200. Each violation of this section is a separate offense.

(d)  For purposes of this section, a person who practices the art of healing includes a masseur and an optometrist. (V.A.C.S. Art. 4505a, Sec. 1.)

Sec. 102.052.  APPLICABILITY TO PHYSICIANS. This subchapter does not apply to a practitioner of medicine subject to regulation under Subtitle B. (V.A.C.S. Art. 4505a, Sec. 2.)

Sec. 102.053.  EXCEPTION FOR CERTAIN ADVERTISING. Section 102.051 does not prohibit:

(1)  placement in a newspaper of an advertisement of the person's profession, business, or place of business; or

(2)  advertisement by handbill and payment for services in distributing the handbill. (V.A.C.S. Art. 4505b.)

Sec. 102.054.  ACCESSIBILITY AND USE OF WITNESS TESTIMONY. (a)  A person is not exempt from giving testimony in a proceeding to enforce Section 102.051.

(b)  The testimony a person gives in a proceeding to enforce Section 102.051 may not be used against that person in any criminal action or proceeding. A criminal action or proceeding may not be brought against a person because of the testimony given by that person in a proceeding to enforce Section 102.051. (V.A.C.S. Art. 4505c.)

CHAPTER 103. RIGHT TO OBJECT TO PARTICIPATION

IN ABORTION PROCEDURE

Sec. 103.001. RIGHT TO OBJECT

Sec. 103.002. DISCRIMINATION PROHIBITED

Sec. 103.003. REMEDIES

Sec. 103.004. DUTY OF CERTAIN PRIVATE ENTITIES TO MAKE

FACILITIES AVAILABLE

CHAPTER 103. RIGHT TO OBJECT TO PARTICIPATION

IN ABORTION PROCEDURE

Sec. 103.001.  RIGHT TO OBJECT. A physician, nurse, staff member, or employee of a hospital or other health care facility who objects to directly or indirectly performing or participating in an abortion procedure may not be required to directly or indirectly perform or participate in the procedure. (V.A.C.S. Art. 4512.7, Sec. 1.)

Sec. 103.002.  DISCRIMINATION PROHIBITED. (a) A hospital or health care facility may not discriminate against a physician, nurse, staff member, or employee, or an applicant for one of those positions, who refuses to perform or participate in an abortion procedure.

(b)  A hospital or health care facility may not discriminate against a physician, nurse, staff member, or employee because of the person's willingness to participate in an abortion procedure at another facility.

(c)  An educational institution may not discriminate against an applicant for admission or employment as a student, intern, or resident because of the applicant's attitude concerning abortion. (V.A.C.S. Art. 4512.7, Sec. 3.)

Sec. 103.003.  REMEDIES. A person whose rights under this chapter are violated may sue a hospital, health care facility, or educational institution in district court in the county where the hospital, facility, or institution is located for:

(1)  an injunction against any further violation;

(2)  appropriate affirmative relief, including admission or reinstatement of employment with back pay plus 10 percent interest; and

(3)  any other relief necessary to ensure compliance with this chapter. (V.A.C.S. Art. 4512.7, Sec. 4.)

Sec. 103.004.  DUTY OF CERTAIN PRIVATE ENTITIES TO MAKE FACILITIES AVAILABLE. A private hospital or private health care facility is not required to make its facilities available for the performance of an abortion unless a physician determines that the life of the mother is immediately endangered. (V.A.C.S. Art. 4512.7, Sec. 2.)

CHAPTER 104. HEALING ART PRACTITIONERS

Sec. 104.001. SHORT TITLE

Sec. 104.002. HEALING ART

Sec. 104.003. REQUIRED IDENTIFICATION

Sec. 104.004. OTHER PERSONS USING TITLE "DOCTOR"

Sec. 104.005. ENFORCEMENT

Sec. 104.006. APPLICABILITY TO ESTABLISHED CHURCH

Sec. 104.007. PENALTIES

CHAPTER 104. HEALING ART PRACTITIONERS

Sec. 104.001.  SHORT TITLE. This chapter may be cited as the Healing Art Identification Act. (V.A.C.S. Art. 4590e, Sec. 1 (part).)

Sec. 104.002.  HEALING ART. The healing art includes any system, treatment, operation, diagnosis, prescription, or practice to ascertain, cure, relieve, adjust, or correct a human disease, injury, or unhealthy or abnormal physical or mental condition. (V.A.C.S. Art. 4590e, Sec. 2.)

Sec. 104.003.  REQUIRED IDENTIFICATION. (a)  A person subject to this section who uses the person's name on a written or printed professional identification, including a sign, pamphlet, stationery, or letterhead, or who uses the person's signature as a professional identification shall designate as required by this section the healing art the person is licensed to practice.

(b)  A person who is licensed by the Texas State Board of Medical Examiners and holds a doctor of medicine degree shall use:

(1)  physician or surgeon, M.D.;

(2)  doctor, M.D.; or

(3)  doctor of medicine, M.D.

(c)  A person who is licensed by the Texas State Board of Medical Examiners and holds a doctor of osteopathy degree shall use:

(1)  physician or surgeon, D.O.;

(2)  osteopathic physician or surgeon;

(3)  doctor, D.O.;

(4)  doctor of osteopathy;

(5)  doctor of osteopathic medicine;

(6)  osteopath; or

(7)  D.O.

(d)  A person who is licensed by the State Board of Dental Examiners shall use:

(1)  dentist;

(2)  doctor, D.D.S.;

(3)  doctor of dental surgery;

(4)  D.D.S.; or

(5)  doctor of dental medicine, D.M.D.

(e)  A person who is licensed by the Texas Board of Chiropractic Examiners shall use:

(1)  chiropractor;

(2)  doctor, D.C.;

(3)  doctor of chiropractic; or

(4)  D.C.

(f)  A person who is licensed by the Texas Optometry Board shall use:

(1)  optometrist;

(2)  doctor, optometrist;

(3)  doctor of optometry; or

(4)  O.D.

(g)  A person who is licensed by the Texas State Board of Podiatric Medical Examiners shall use:

(1)  chiropodist;

(2)  doctor, D.S.C.;

(3)  doctor of surgical chiropody;

(4)  D.S.C.;

(5)  podiatrist;

(6)  doctor, D.P.M.;

(7)  doctor of podiatric medicine; or

(8)  D.P.M. (V.A.C.S. Art. 4590e, Sec. 3.)

Sec. 104.004.  OTHER PERSONS USING TITLE "DOCTOR." In using the title "doctor" as a trade or professional asset or on any manner of professional identification, including a sign, pamphlet, stationery, or letterhead, or as a part of a signature, a person other than a person described by Section 104.003 shall designate the authority under which the title is used or the college or honorary degree that gives rise to the use of the title. (V.A.C.S. Art. 4590e, Sec. 4.)

Sec. 104.005.  ENFORCEMENT. (a) On the request of a healing art licensing board listed in Section 104.003, the district or county attorney shall file and prosecute appropriate judicial proceedings in the name of the state against a person who violates Section 104.003.

(b)  The district or county attorney shall file the proceeding in the district court of the county in which the violation occurs. (V.A.C.S. Art. 4590e, Sec. 5.)

Sec. 104.006.  APPLICABILITY TO ESTABLISHED CHURCH. This chapter does not affect the use of the principles or teachings of an established church in ministering, without the use of any drug or material remedy, to the sick or suffering by prayer if:

(1)  sanitary and quarantine laws are complied with; and

(2)  the person ministering or offering to minister does not maintain an office, other than to exercise the principles or teachings of the church of which the person is a bona fide member. (V.A.C.S. Art. 4590e, Sec. 1 (part).)

Sec. 104.007.  PENALTIES. (a) A person who violates this chapter commits an offense. An offense under this section is a misdemeanor punishable by:

(1)  on conviction of a first offense, a fine of $100;

(2)  on conviction of a second offense, a fine of $500; and

(3)  on conviction of a third offense:

(A)  a fine of $1,000; or

(B)  revocation of the person's license to practice the healing art.

(b)  On conviction of the person, the district court shall notify the licensing board that issued the license. (V.A.C.S. Art. 4590e, Sec. 6.)

[Chapters 105-150 reserved for expansion]

SUBTITLE B. PHYSICIANS

CHAPTER 151. GENERAL PROVISIONS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 151.001. SHORT TITLE

Sec. 151.002. DEFINITIONS

Sec. 151.003. LEGISLATIVE FINDINGS

Sec. 151.004. APPLICATION OF SUNSET ACT

Sec. 151.005. GOVERNMENTAL DISCRIMINATION PROHIBITED

[Sections 151.006-151.050 reserved for expansion]

SUBCHAPTER B. APPLICATION AND CONSTRUCTION OF SUBTITLE

Sec. 151.051. DISCRIMINATION BASED ON TYPE OF ACADEMIC

MEDICAL DEGREE OR CERTAIN RELIGIOUS TENETS

PROHIBITED

Sec. 151.052. EXEMPTIONS

Sec. 151.053. APPLICATION TO CERTAIN PERSONS PROVIDING

NUTRITIONAL ADVICE

Sec. 151.054. APPLICATION TO SELF-CARE

Sec. 151.055. APPLICATION TO CERTAIN INDEPENDENT

CONTRACTOR AGREEMENTS

Sec. 151.056. APPLICATION TO TELEMEDICINE

SUBTITLE B. PHYSICIANS

CHAPTER 151. GENERAL PROVISIONS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 151.001.  SHORT TITLE. This subtitle may be cited as the Medical Practice Act. (V.A.C.S. Art. 4495b, Sec. 1.01.)

Sec. 151.002.  DEFINITIONS. (a) In this subtitle:

(1)  "Board" means the Texas State Board of Medical Examiners.

(2)  "Continuing threat to the public welfare" means a real and present danger to the health of a physician's patients from the acts or omissions of the physician caused through the physician's lack of competence, impaired status, or failure to care adequately for the physician's patients, as determined by:

(A)  the board;

(B)  a medical peer review committee in this state;

(C)  a physician licensed to practice medicine in this state or otherwise lawfully practicing medicine in this state;

(D)  a physician engaged in graduate medical education or training; or

(E)  a medical student.

(3)  "Disciplinary order" means an action taken under Section 164.001, 164.053, 164.058, or 164.101.

(4)  "Doctor of osteopathic medicine" includes a doctor of osteopathy, an osteopath, an osteopathic physician, and an osteopathic surgeon.

(5)  "Health care entity" means:

(A)  a hospital licensed under Chapter 241 or 577, Health and Safety Code;

(B)  an entity, including a health maintenance organization, group medical practice, nursing home, health science center, university medical school, or other health care facility, that:

(i)  provides medical care or health care services; and

(ii)  follows a formal peer review process to further quality medical care or health care;

(C)  a professional society or association of physicians, or a committee of such a society or association, that follows a formal peer review process to further quality medical care or health care; or

(D)  an organization established by a professional society or association of physicians, hospitals, or both, that:

(i)  collects and verifies the authenticity of documents and other information concerning the qualifications, competence, or performance of licensed health care professionals; and

(ii)  acts as a health care facility's agent under the Health Care Quality Improvement Act of 1986 (42 U.S.C. Section 11101 et seq.).

(6)  "Legally authorized representative" of a patient means:

(A)  a parent or legal guardian if the patient is a minor;

(B)  a legal guardian if the patient has been adjudicated incompetent to manage the patient's personal affairs;

(C)  an agent of the patient authorized under a durable power of attorney for health care;

(D)  an attorney ad litem appointed for the patient;

(E)  a guardian ad litem appointed for the patient;

(F)  a personal representative or statutory beneficiary if the patient is deceased; or

(G)  an attorney retained by the patient or by another person listed by this subdivision.

(7)  "Medical peer review" or "professional review action" means the evaluation of medical and health care services, including evaluation of the qualifications of professional health care practitioners and of patient care provided by those practitioners. The term includes evaluation of the:

(A)  merits of a complaint relating to a health care practitioner and a determination or recommendation regarding the complaint;

(B)  accuracy of a diagnosis;

(C)  quality of the care provided by a health care practitioner;

(D)  report made to a medical peer review committee concerning activities under the committee's review authority;

(E)  report made by a medical peer review committee to another committee or to the board as permitted or required by law; and

(F)  implementation of the duties of a medical peer review committee by a member, agent, or employee of the committee.

(8)  "Medical peer review committee" or "professional review body" means a committee of a health care entity, the governing board of a health care entity, or the medical staff of a health care entity, that operates under written bylaws approved by the policy-making body or the governing board of the health care entity and is authorized to evaluate the quality of medical and health care services or the competence of physicians, including evaluation of the performance of those functions specified by Section 85.204, Health and Safety Code. The term includes an employee or agent of the committee, including an assistant, investigator, intervenor, attorney, and any other person or organization that serves the committee.

(9)  "Medical records" means all records relating to the history, diagnosis, treatment, or prognosis of a patient.

(10)  "Operation" means the application of surgery or the performance of surgical services.

(11)  "Person" means an individual, unless the term is expressly made applicable to a partnership, association, or corporation.

(12)  "Physician" means a person licensed to practice medicine in this state.

(13)  "Practicing medicine" means the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions, by a person who:

(A)  publicly professes to be a physician or surgeon; or

(B)  directly or indirectly charges money or other compensation for those services.

(14)  "Surgery" includes:

(A)  surgical services, procedures, and operations; and

(B)  the procedures described in the surgery section of the common procedure coding system as adopted by the Health Care Financing Administration of the United States Department of Health and Human Services.

(b)  The terms "physician" and "surgeon" are synonyms. As used in this subtitle, the terms "practitioner" and "practitioner of medicine" include physicians and surgeons. (V.A.C.S. Art. 4495b, Secs. 1.03(a)(2), (3), (4), (5), (6), (9), (10), (11), (12), (15), (16), (17), as added Acts 74th Leg., R.S., Chs. 536 and 965, (17), as added Acts 74th Leg., R.S., Ch. 856, (18); New.)

Sec. 151.003.  LEGISLATIVE FINDINGS. The legislature finds that:

(1)  the practice of medicine is a privilege and not a natural right of individuals and as a matter of public policy it is necessary to protect the public interest through enactment of this subtitle to regulate the granting of that privilege and its subsequent use and control; and

(2)  the board should remain the primary means of licensing, regulating, and disciplining physicians. (V.A.C.S. Art. 4495b, Sec. 1.02 (part).)

Sec. 151.004.  APPLICATION OF SUNSET ACT. The Texas State Board of Medical Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this subtitle expires September 1, 2005. (V.A.C.S. Art. 4495b, Sec. 5.10.)

Sec. 151.005.  GOVERNMENTAL DISCRIMINATION PROHIBITED. (a)  A program supported in whole or in part by the state or by a political subdivision of the state may not discriminate against a health care practitioner because the practitioner is a physician specializing in ophthalmology.

(b)  A law or policy of the state or of a political subdivision of the state that requires or encourages a person to obtain vision care or medical eye care that is within the scope of practice of an optometrist or therapeutic optometrist may not discriminate against a health care practitioner because the practitioner is a physician specializing in ophthalmology. (V.A.C.S. Art. 4552-6.01, Subsecs. (a) (part), (b) (part).)

[Sections 151.006-151.050 reserved for expansion]

SUBCHAPTER B. APPLICATION AND CONSTRUCTION OF SUBTITLE

Sec. 151.051.  DISCRIMINATION BASED ON TYPE OF ACADEMIC MEDICAL DEGREE OR CERTAIN RELIGIOUS TENETS PROHIBITED. (a)  A hospital, institution, or program that is licensed by the state, is operated by the state or a political subdivision of the state, or directly or indirectly receives state financial assistance may not differentiate in regard to a person licensed under this subtitle solely on the basis of the academic medical degree held by the person. The hospital, institution, program, state agency, or political subdivision may adopt rules and requirements relating to qualifications for medical staff appointments, including reappointments and the termination of appointments, the delineation of clinical privileges, or the curtailment of clinical privileges of persons who are appointed to that medical staff or permitted to participate in educational programs if those rules and requirements do not differentiate solely on the basis of the academic medical degree held by the affected physician and are:

(1)  determined on a reasonable basis, such as the professional and ethical qualifications of the physician;

(2)  based on reasonable standards;

(3)  applied without irrelevant considerations;

(4)  supported by sufficient evidence; and

(5)  not arbitrary or capricious.

(b)  The limitations imposed under this section relating to discrimination based on the academic medical degree of a physician do not apply to practice limitations adopted by:

(1)  a medical school or college, including a program of a medical school or college; or

(2)  any office or offices of physicians, singularly or in groups, in the conduct of their profession.

(c)  This subtitle may not be construed in a manner that:

(1)  discriminates against a school or system of medical practice; or

(2)  affects the use of the principles or teachings of any church in ministering to the sick or suffering by prayer or pastoral counseling without the use of a drug or other material substance represented as medically effective. (V.A.C.S. Art. 4495b, Secs. 1.02 (part), 3.06(a).)

Sec. 151.052.  EXEMPTIONS. (a) This subtitle does not apply to:

(1)  a dentist, licensed under the laws of this state, engaged strictly in the practice of dentistry;

(2)  a licensed optometrist or therapeutic optometrist engaged strictly in the practice of optometry or therapeutic optometry as defined by law;

(3)  a licensed chiropractor engaged strictly in the practice of chiropractic as defined by law;

(4)  a registered nurse or licensed vocational nurse engaged strictly in the practice of nursing in accordance with the applicable licensing acts and other laws of this state;

(5)  a licensed podiatrist engaged strictly in the practice of podiatry as defined by law;

(6)  a licensed or certified psychologist engaged strictly in the practice of psychology as defined by law;

(7)  a licensed physical therapist engaged strictly in the practice of physical therapy in accordance with the law relating to physical therapy practice;

(8)  a commissioned or contract surgeon in the United States uniformed services or Public Health Service in the performance of that person's duties if the person is not engaged in private practice;

(9)  a person who furnishes medical assistance in an emergency or disaster situation if no charge is made for the medical assistance;

(10)  a student in training in a board-approved medical school while performing, under the supervision of a licensed practitioner, the duties assigned in the course of training;

(11)  a legally qualified physician of another state who is in this state for consultation with a physician licensed in this state but who does not:

(A)  maintain an office in this state; or

(B)  appoint a place in this state for seeing, examining, or treating a patient; or

(12)  any other activity that the board designates as exempt from the application of this subtitle.

(b)  Notwithstanding Subsection (a)(10), a medical resident, intern, or fellow is required to register and is subject to the other applicable provisions of this subtitle. (V.A.C.S. Art. 4495b, Sec. 3.06(b).)

Sec. 151.053.  APPLICATION TO CERTAIN PERSONS PROVIDING NUTRITIONAL ADVICE. (a) This subtitle does not prohibit a person from giving advice regarding the use and role of food and food ingredients, including dietary supplements.

(b)  Subsection (a) does not authorize a person to:

(1)  practice medicine; or

(2)  state, in violation of law, that a product might cure a disease, disorder, or condition. (V.A.C.S. Art. 4495b, Sec. 3.06(c).)

Sec. 151.054.  APPLICATION TO SELF-CARE. (a) This subtitle does not prohibit:

(1)  a person from providing or seeking advice or information relating to that person's self-care; or

(2)  the dissemination of information relating to self-care.

(b)  This section does not confer authority to practice medicine. (V.A.C.S. Art. 4495b, Sec. 3.06(e).)

Sec. 151.055.  APPLICATION TO CERTAIN INDEPENDENT CONTRACTOR AGREEMENTS. This subtitle does not prohibit a hospital from entering into an independent contractor agreement with a physician to provide services at the hospital or at another health care facility owned or operated by the hospital and:

(1)  paying the physician a minimum guaranteed amount to ensure the physician's availability;

(2)  billing and collecting from patients the physician's professional fees; or

(3)  retaining the collected professional fees up to the amount of the minimum guaranteed amount plus a reasonable collection fee. (V.A.C.S. Art. 4495b, Sec. 3.06(f).)

Sec. 151.056.  APPLICATION TO TELEMEDICINE. (a) A person who is physically located in another jurisdiction but who, through the use of any medium, including an electronic medium, performs an act that is part of a patient care service initiated in this state, including the taking of an x-ray examination or the preparation of pathological material for examination, and that would affect the diagnosis or treatment of the patient, is considered to be engaged in the practice of medicine in this state and is subject to appropriate regulation by the board.

(b)  This section does not apply to the act of:

(1)  a medical specialist located in another jurisdiction who provides only episodic consultation services on request to a physician licensed in this state who practices in the same medical specialty;

(2)  a physician located in another jurisdiction who is providing consultation services to a medical school as defined by Section 61.501, Education Code; or

(3)  a physician located in another jurisdiction who is providing consultation services to an institution subject to:

(A)  Subchapter C, Chapter 73, Education Code; or

(B)  Subchapter K, Chapter 74, Education Code. (V.A.C.S. Art. 4495b, Sec. 3.06(i).)

CHAPTER 152. STATE BOARD OF MEDICAL EXAMINERS

SUBCHAPTER A. ORGANIZATION OF BOARD

Sec. 152.001. TEXAS STATE BOARD OF MEDICAL EXAMINERS

Sec. 152.002. BOARD MEMBERSHIP

Sec. 152.003. ADDITIONAL MEMBERSHIP REQUIREMENTS

Sec. 152.004. MEMBERSHIP AND EMPLOYEE RESTRICTIONS

Sec. 152.005. TERMS; VACANCY

Sec. 152.006. GROUNDS FOR REMOVAL

Sec. 152.007. PER DIEM

Sec. 152.008. OFFICERS

Sec. 152.009. MEETINGS; QUORUM REQUIREMENTS

Sec. 152.010. TRAINING; GUIDELINES

[Sections 152.011-152.050 reserved for expansion]

SUBCHAPTER B. EXECUTIVE DIRECTOR AND OTHER PERSONNEL

Sec. 152.051. EXECUTIVE DIRECTOR

Sec. 152.052. EXECUTIVE DIRECTOR POWERS AND DUTIES

Sec. 152.053. SURETY BOND

Sec. 152.054. CHIEF OPERATING OFFICER; MEDICAL DIRECTOR

Sec. 152.055. PERSONNEL

Sec. 152.056. DIVISION OF RESPONSIBILITIES

Sec. 152.057. QUALIFICATIONS AND STANDARDS OF CONDUCT

INFORMATION

Sec. 152.058. CAREER LADDER; ANNUAL PERFORMANCE

EVALUATIONS

Sec. 152.059. EQUAL EMPLOYMENT OPPORTUNITY POLICY;

REPORT

CHAPTER 152. STATE BOARD OF MEDICAL EXAMINERS

SUBCHAPTER A. ORGANIZATION OF BOARD

Sec. 152.001.  TEXAS STATE BOARD OF MEDICAL EXAMINERS. The Texas State Board of Medical Examiners is an agency of the executive branch of state government with the power to regulate the practice of medicine. (V.A.C.S. Art. 4495b, Sec. 2.01.)

Sec. 152.002.  BOARD MEMBERSHIP. (a) The board consists of 18 members appointed by the governor with the advice and consent of the senate as follows:

(1)  twelve members who are learned and eminent physicians licensed in this state for at least three years before the appointment, nine of whom must be graduates of a reputable medical school or college with a degree of doctor of medicine (M.D.) and three of whom must be graduates of a reputable medical school or college with a degree of doctor of osteopathic medicine (D.O.); and

(2)  six members who represent the public.

(b)  Appointments to the board shall be made without regard to race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4495b, Secs. 2.02 (part), 2.03 (part), 2.05(b) (part), (c) (part), (d) (part).)

Sec. 152.003.  ADDITIONAL MEMBERSHIP REQUIREMENTS. (a) In this section:

(1)  "Direct provider of health care" includes:

(A)  an athletic trainer;

(B)  a chiropractor;

(C)  a dentist;

(D)  a hospital administrator;

(E)  a licensed vocational nurse;

(F)  a nursing home administrator;

(G)  an optometrist;

(H)  a pharmacist;

(I)  a physical therapist;

(J)  a physician assistant;

(K)  a podiatrist;

(L)  a psychologist;

(M)  a registered nurse; and

(N)  a social psychotherapist.

(2)  "Fiduciary position or interest" means a position or interest with respect to an entity that has the character of a trust. The term includes:

(A)  a member of a board of directors;

(B)  an officer;

(C)  a majority shareholder;

(D)  an agent; and

(E)  a person who, directly or through that person's spouse, receives more than one-tenth of the person's annual income from compensation for research into or instruction in the provision of health care received from:

(i)  a health care entity or other person, association, or organization engaged in the provision of health care; or

(ii)  a person, association, or organization engaged in producing drugs or analogous products.

(3)  "Immediate family member" means the parent, spouse, child, or sibling of a person who resides in the same household as the person.

(4)  "Provider of health care" means:

(A)  a direct provider of health care:

(i)  whose primary current activity is the provision of health care to persons or the administration of facilities or institutions in which that care is provided, including hospitals, long-term care facilities, out-patient facilities, and health maintenance organizations;

(ii)  who, if required by law or otherwise, has received professional or other training in the provision of that care or administration; and

(iii)  who is licensed or certified or otherwise claims the authority to provide that care or administration;

(B)  a person who is an indirect provider of health care in that the person holds a fiduciary position with or has a fiduciary interest in a health care entity;

(C)  a member of the immediate family of a person described by this subdivision;

(D)  a person who is engaged in or employed by an entity issuing a policy or contract of individual or group health insurance or hospital or medical service benefits; or

(E)  a person who is employed by, on the board of directors of, or holds elective office by or under the authority of a unit of federal, state, or local government or any organization that receives a significant part of its funding from a unit of federal, state, or local government.

(b)  A public member may not be:

(1)  licensed to practice medicine;

(2)  financially involved in any organization subject to regulation by the board; or

(3)  a provider of health care.

(c)  Each public member must be a resident of this state for at least the five years preceding appointment.

(d)  Each physician board member must be actively engaged in:

(1)  the practice of medicine for at least the five years preceding appointment; and

(2)  medical peer review at a health care entity for at least the three years preceding appointment. (V.A.C.S. Art. 4495b, Secs. 2.05(b) (part), (c) (part), (d) (part), (e).)

Sec. 152.004.  MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a)  In this section, "Texas trade or professional association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b)  A person is ineligible for appointment to the board if, at the time of appointment, the person is younger than 18 years of age or is a stockholder, paid full-time faculty member, or a member of the board of trustees of a medical school.

(c)  A person may not be a member of the board if the person is serving as the president, vice president, secretary, or treasurer of a statewide or national organization incorporated to represent the entire profession licensed to practice medicine in this state or the United States, including an organization representing the practice of osteopathic medicine, or is an employee of such an organization.

(d)  An officer, employee, or paid consultant of a Texas trade or professional association in the field of health care may not be a board member or employee who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(e)  A person who is the spouse of an officer, manager, or paid consultant of a Texas trade or professional association in the field of health care may not be a board member or employee who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(f)  A person may not serve as a member of the board or act as general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the board. (V.A.C.S. Art. 4495b, Secs. 2.03 (part); 2.05(f), (g), (h), (i), (j), (k); 2.09(g).)

Sec. 152.005.  TERMS; VACANCY. (a) Members of the board serve staggered six-year terms.

(b)  If a vacancy occurs during a member's term, the governor shall appoint a person to fill the vacancy. (V.A.C.S. Art. 4495b, Secs. 2.02 (part), 2.03 (part).)

Sec. 152.006.  GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:

(1)  does not have at the time of appointment the qualifications required by Section 152.002;

(2)  does not maintain during service on the board the qualifications required by Section 152.002;

(3)  violates a prohibition established by Section 152.004;

(4)  cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5)  is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year.

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

(c)  If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the president of the board of the potential ground. The president shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4495b, Sec. 2.04.)

Sec. 152.007.  PER DIEM. (a)  Each board member is entitled to receive a per diem as set by legislative appropriation for each day that the member engages in the business of the board.

(b)  If the General Appropriations Act does not prescribe the amount of the per diem, the per diem consists of actual expenses for meals, lodging, and transportation, plus $100. (V.A.C.S. Art. 4495b, Sec. 2.06.)

Sec. 152.008.  OFFICERS. Not later than December after each regular session of the legislature, the governor shall appoint from the members of the board a president and the board shall elect from its members a vice president, secretary-treasurer, and other officers as are required, in the board's opinion, to carry out the board's duties. (V.A.C.S. Art. 4495b, Sec. 2.07(a).)

Sec. 152.009.  MEETINGS; QUORUM REQUIREMENTS. (a)  The board shall conduct regular meetings at least four times a year at the times and places the board considers most convenient for applicants and board members.

(b)  The board may hold special meetings in accordance with rules adopted by the board.

(c)  After hearing all evidence and arguments in an open meeting, the board may conduct deliberations relating to license applications and disciplinary actions in executive sessions. The board shall vote and announce its decisions in open session.

(d)  A majority of the appointed board members constitutes a quorum for all purposes except for a board activity related to examining the credentials of license applicants as provided by Section 155.053. (V.A.C.S. Art. 4495b, Secs. 2.07(b), 2.08.)

Sec. 152.010.  TRAINING; GUIDELINES. (a) Before a board member may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of a training program established by the board under this section.

(b)  The training program shall provide information to a participant regarding:

(1)  this subtitle;

(2)  the programs operated by the board;

(3)  the role and functions of the board;

(4)  the rules of the board with an emphasis on the rules that relate to disciplinary and investigatory authority;

(5)  the current budget for the board;

(6)  the results of the most recent formal audit of the board;

(7)  the requirements of Chapters 551, 552, 2001, and 2002, Government Code;

(8)  the requirements of the conflict of interest laws and other laws relating to public officials; and

(9)  any applicable ethics policies adopted by the board or the Texas Ethics Commission.

(c)  In developing the training program, the board shall consult with the governor, the attorney general, and the Texas Ethics Commission.

(d)  If another state agency or entity is given the authority to establish the training requirements for board members, the board shall allow that training instead of developing its own program. Each board member shall comply with the training requirements established by the other state agency or entity. (V.A.C.S. Art. 4495b, Secs. 2.081, 2.09(x).)

[Sections 152.011-152.050 reserved for expansion]

SUBCHAPTER B. EXECUTIVE DIRECTOR AND OTHER PERSONNEL

Sec. 152.051.  EXECUTIVE DIRECTOR. (a)  The board shall appoint an executive director. The executive director serves as the chief executive and administrative officer of the board.

(b)  The executive director serves at the pleasure of the board. (V.A.C.S. Art. 4495b, Sec. 2.09(b) (part).)

Sec. 152.052.  EXECUTIVE DIRECTOR POWERS AND DUTIES. The executive director shall administer and enforce this subtitle under the supervision and at the direction of the board. (V.A.C.S. Art. 4495b, Sec. 2.09(b) (part).)

Sec. 152.053.  SURETY BOND. (a) The executive director shall file a surety bond with the board. The bond must be:

(1)  in an amount not less than $10,000;

(2)  issued in compliance with the insurance laws of this state; and

(3)  payable to the state for the use of the state if the executive director does not faithfully discharge the duties of the office.

(b)  The board shall pay the premium on the surety bond. (V.A.C.S. Art. 4495b, Sec. 3.01(f).)

Sec. 152.054.  CHIEF OPERATING OFFICER; MEDICAL DIRECTOR. (a) The executive director may employ a chief operating officer to:

(1)  administer, implement, and monitor systems and necessary measures to promote the quality and efficiency of board operations; and

(2)  perform other duties as assigned by the executive director.

(b)  If the executive director is not a physician licensed to practice in this state, the executive director shall appoint a medical director who is:

(1)  a physician licensed to practice in this state; and

(2)  primarily responsible for implementing and maintaining policies, systems, and measures regarding clinical and professional issues and determinations.

(c)  The chief operating officer or medical director acts under the supervision and at the direction of the executive director. (V.A.C.S. Art. 4495b, Sec. 2.09(b-1).)

Sec. 152.055.  PERSONNEL. (a)  The board shall employ, compensate, and provide persons as determined necessary by the board to administer this subtitle, including administrators, clerks, employees, consultants, and professionals.

(b)  The board shall reimburse those persons for actual and necessary expenses, including investigation expenses, travel expenses, and other incidental expenses, incurred in the performance of official duties as determined by the board.

(c)  An employee of the board may not be employed by or paid a fee for services provided by a statewide or national organization incorporated to represent the entire profession licensed to practice medicine in this state or the United States, including an organization representing the practice of osteopathic medicine.

(d)  A person is not eligible to serve as an employee of the board if the person is related within the second degree by affinity or within the third degree by consanguinity, as determined under Chapter 573, Government Code, to a person who is employed by or paid a fee for services provided by an organization described by Subsection (c). (V.A.C.S. Art. 4495b, Secs. 2.09(e), (f).)

Sec. 152.056.  DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4495b, Sec. 2.09(b) (part).)

Sec. 152.057.  QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:

(1)  qualifications for office or employment under this subtitle; and

(2)  responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4495b, Sec. 2.09(y).)

Sec. 152.058.  CAREER LADDER; ANNUAL PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency posting of all nonentry-level positions concurrently with any public posting.

(b)  The board shall develop a system of annual performance evaluations of the board's employees based on measurable job tasks. Any merit pay authorized by the board must be based on the system established under this subsection. (V.A.C.S. Art. 4495b, Secs. 2.09(u), (v).)

Sec. 152.059.  EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a)  The executive director or the executive director's designee shall prepare and maintain a written policy statement to assure implementation of an equal employment opportunity program under which all personnel decisions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:

(1)  personnel policies, including policies relating to recruitment, evaluation, selection, appointment, training, and promotion of personnel, that are in compliance with requirements adopted under Chapter 21, Labor Code;

(2)  a comprehensive analysis of the board's workforce that meets federal and state guidelines;

(3)  procedures by which a determination can be made of significant underuse in the board's workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and

(4)  reasonable methods to appropriately address those areas of significant underuse.

(b)  A policy statement prepared under Subsection (a) must:

(1)  cover an annual period;

(2)  be updated annually and reviewed by the Commission on Human Rights for compliance with requirements adopted under Chapter 21, Labor Code; and

(3)  be filed with the governor.

(c)  The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports made to the legislature. (V.A.C.S. Art. 4495b, Sec. 2.10, as added Acts 73rd Leg., R.S., Ch. 862.)

CHAPTER 153. POWERS AND DUTIES

SUBCHAPTER A. GENERAL POWERS AND DUTIES

OF BOARD

Sec. 153.001. ADOPTION OF RULES

Sec. 153.002. RULES RESTRICTING ADVERTISING OR COMPETITIVE

BIDDING

Sec. 153.003. RULES REGARDING MAINTENANCE OF PATIENT

RECORDS

Sec. 153.004. RULES REGARDING TELEMEDICINE SERVICES

Sec. 153.005. EXECUTIVE COMMITTEE; APPOINTMENT OF OTHER

COMMITTEES

Sec. 153.006. CRIMINAL RECORD REPORT

Sec. 153.007. AUTHORITY TO ISSUE SUBPOENA OR ADMINISTER

OATH

Sec. 153.008. BOARD RECORDS

Sec. 153.009. USE OF OFFICIAL SEAL

Sec. 153.010. ADOPTION OF FEE SCHEDULE BY BOARD PROHIBITED

Sec. 153.011. WAIVER OF FEE OR PENALTY BY BOARD PROHIBITED

Sec. 153.012. BOARD DUTIES REGARDING COMPLAINTS

Sec. 153.013. REPRESENTATION BY ATTORNEY GENERAL

[Sections 153.014-153.050 reserved for expansion]

SUBCHAPTER B. FEES; FUNDS; AUDIT

Sec. 153.051. FEES; BUDGET

Sec. 153.052. MEDICAL LICENSING FUND ACCOUNT

Sec. 153.053. DISPOSITION OF CERTAIN FEES

Sec. 153.054. CHARGES FOR CERTAIN RECORDS AND OTHER

MATERIAL

Sec. 153.055. ANNUAL REPORT

CHAPTER 153. POWERS AND DUTIES

SUBCHAPTER A. GENERAL POWERS AND DUTIES

OF BOARD

Sec. 153.001.  ADOPTION OF RULES. The board may adopt rules and bylaws as necessary to:

(1)  govern its own proceedings;

(2)  perform its duties;

(3)  regulate the practice of medicine in this state; and

(4)  enforce this subtitle. (V.A.C.S. Art. 4495b, Sec. 2.09(a) (part).)

Sec. 153.002.  RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by the person.

(b)  The board may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:

(1)  restricts the use of any advertising medium;

(2)  restricts the person's personal appearance or the use of the person's voice in an advertisement;

(3)  relates to the size or duration of an advertisement by the person; or

(4)  restricts the person's advertisement under a trade name. (V.A.C.S. Art. 4495b, Sec. 3.085.)

Sec. 153.003.  RULES REGARDING MAINTENANCE OF PATIENT RECORDS. The board by rule shall establish the period for which patient records must be maintained. (V.A.C.S. Art. 4495b, Sec. 5.085.)

Sec. 153.004.  RULES REGARDING TELEMEDICINE SERVICES. (a) In consultation with the Health and Human Services Commission and the commissioner of insurance, the board may adopt rules as necessary to:

(1)  ensure that appropriate care is provided to Medicaid and Medicare patients who receive services that are provided through telemedicine; and

(2)  prevent abuse and fraud in the use of telemedicine services for Medicaid and Medicare patients.

(b)  The rules adopted under Section (a)(2) may include rules relating to filing of claims and records required to be maintained in relation to telemedicine. (V.A.C.S. Art. 4495b, Sec. 5.11.)

Sec. 153.005.  EXECUTIVE COMMITTEE; APPOINTMENT OF OTHER COMMITTEES. (a)  Except as otherwise provided by this subtitle, the board may act under its rules through the executive director, the executive committee, or another committee. Except as otherwise provided by this subtitle, the executive committee consists of the president, vice president, and secretary-treasurer of the board.

(b)  The board may appoint committees from its membership. A committee appointed from the board membership shall:

(1)  consider matters relating to the enforcement of this subtitle and the rules adopted under this subtitle as referred to the committee; and

(2)  make recommendations to the board regarding those matters.

(c)  Each committee must have at least one member who meets the qualifications for a physician member under Sections 152.002 and 152.003 and holds the degree of doctor of osteopathic medicine and one member who meets the qualifications for a public member under Section 152.003. If a member appointed to a committee declines to accept the appointment or is determined to not be qualified under this subtitle to serve on the committee, the vacancy on the committee may be filled by any other board member regardless of qualification.

(d)  If members who meet the qualifications of Subsection (c) are not elected to the executive committee, the board shall appoint additional members to that committee so that at least one executive committee member meets the qualifications for a physician member under Sections 152.002 and 152.003 and holds the degree of doctor of osteopathic medicine and one executive committee member meets the qualifications for a public member under Section 152.003. (V.A.C.S. Art. 4495b, Secs. 2.09(b) (part), (i) (part).)

Sec. 153.006.  CRIMINAL RECORD REPORT. (a)  The board may receive criminal record reports from any law enforcement agency or another source regarding a license holder or license applicant.

(b)  Each criminal record report received from the Department of Public Safety is for the exclusive use of the board and is privileged. The report may not be released or otherwise disclosed to any person or agency by the board except on court order.

(c)  A license applicant whose application is subject to denial or a license holder whose license is subject to revocation or suspension because of adverse information contained in the criminal record report is entitled to a hearing before the board before any action on the license application or before the license may be revoked or suspended. (V.A.C.S. Art. 4495b, Sec. 2.09(h) (part).)

Sec. 153.007.  AUTHORITY TO ISSUE SUBPOENA OR ADMINISTER OATH. (a) The board may issue a subpoena or a subpoena duces tecum to compel the attendance of a witness and the production of books, records, and documents. The board may administer oaths and take testimony regarding any matter within its jurisdiction.

(b)  The board may delegate the authority granted under Subsection (a) to the executive director or the secretary-treasurer of the board.

(c)  A subpoena issued at the request of the board staff may be served either personally by the board's investigators or by certified mail.

(d)  The board shall pay, for photocopies subpoenaed at the request of the board's staff, a reasonable fee in an amount not to exceed the amount the board may charge for copies of its records. (V.A.C.S. Art. 4495b, Sec. 2.09(i) (part).)

Sec. 153.008.  BOARD RECORDS. (a) The board shall maintain a record of its proceedings. The record maintained under this subsection is public information.

(b)  For each license applicant, the board shall also maintain a record that shows:

(1)  the name, age, and place and duration of residence of the applicant;

(2)  the time spent by the applicant in medical study, including the respective medical schools; and

(3)  the years and schools from which degrees were granted to the applicant.

(c)  The record maintained under Subsection (b) must indicate whether an applicant was issued or denied a license. The record constitutes prima facie evidence of each matter contained in the record.

(d)  A certified copy of a record maintained under this section, under the hand and seal of the secretary-treasurer of the board, is admissible in evidence in all courts. (V.A.C.S. Art. 4495b, Sec. 2.09(d).)

Sec. 153.009.  USE OF OFFICIAL SEAL. Each certificate issued by the board shall be attested with the official seal of the board. (V.A.C.S. Art. 4495b, Sec. 3.05(a) (part).)

Sec. 153.010.  ADOPTION OF FEE SCHEDULE BY BOARD PROHIBITED. The board may not establish a fee schedule for medical services. (V.A.C.S. Art. 4495b, Sec. 2.09(a) (part).)

Sec. 153.011.  WAIVER OF FEE OR PENALTY BY BOARD PROHIBITED. The board may not waive collection of a fee or penalty assessed under this subtitle. (V.A.C.S. Art. 4495b, Sec. 2.09(k) (part).)

Sec. 153.012.  BOARD DUTIES REGARDING COMPLAINTS. (a)  The board by rule shall:

(1)  adopt a form to standardize information concerning complaints made to the board; and

(2)  prescribe information to be provided to a person when the person files a complaint with the board.

(b)  The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4495b, Secs. 4.02(d), (e).)

Sec. 153.013.  REPRESENTATION BY ATTORNEY GENERAL. The board shall be represented in court proceedings by the attorney general. (V.A.C.S. Art. 4495b, Sec. 2.09(l) (part).)

[Sections 153.014-153.050 reserved for expansion]

SUBCHAPTER B. FEES; FUNDS; AUDIT

Sec. 153.051.  FEES; BUDGET. (a) The board by rule shall set reasonable and necessary fees in amounts sufficient to cover the cost of administering this subtitle.

(b)  The board may not adjust a fee established on or before September 1, 1993, to an amount less than the amount of the fee on September 1, 1993.

(c)  The board shall by annual budget determine the manner of handling the funds received under this subtitle and the purposes for which those funds may be used. The budgeted expenses authorized by the board shall be paid from the funds received by the board and are not a charge on the general revenue of the state. (V.A.C.S. Art. 4495b, Sec. 2.09(k) (part).)

Sec. 153.052.  MEDICAL LICENSING FUND ACCOUNT. The medical licensing fund account is an account in the general revenue fund. Unless otherwise provided by this subtitle, the board shall deposit each fee, charge, and penalty received by the board in the state treasury to the credit of the medical licensing fund account. (V.A.C.S. Art. 4495b, Sec. 2.10(a), as added Acts 73rd Leg., R.S., Ch. 36.)

Sec. 153.053.  DISPOSITION OF CERTAIN FEES. (a) This section applies to each fee assessed for:

(1)  processing an application for and administering a partial or complete license examination;

(2)  processing an application for and issuing an annual registration receipt of a license holder;

(3)  processing and granting a license by reciprocity to a license holder of another state; and

(4)  processing an application for reinstatement and issuing a reinstated license after a lapse or cancellation of a license.

(b)  Of each fee collected, the board shall deposit $50 to the credit of the foundation school fund and $150 to the credit of the general revenue fund. (V.A.C.S. Art. 4495b, Secs. 3.11A(a), (b) (part).)

Sec. 153.054.  CHARGES FOR CERTAIN RECORDS AND OTHER MATERIAL. The board may set and collect a fee in an amount sufficient to reimburse the board for the actual expense incurred for:

(1)  each copy of a record maintained by the board; or

(2)  any printed material published by the board. (V.A.C.S. Art. 4495b, Sec. 3.10(b), as amended Acts 73rd Leg., R.S., Ch. 862.)

Sec. 153.055.  ANNUAL REPORT. (a)  The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.

(b)  The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4495b, Sec. 3.10(d).)

CHAPTER 154. PUBLIC INTEREST INFORMATION AND COMPLAINT

PROCEDURES

SUBCHAPTER A. PUBLIC INTEREST INFORMATION

Sec. 154.001. PUBLIC INTEREST INFORMATION

Sec. 154.002. INFORMATION FOR PUBLIC DISSEMINATION

Sec. 154.003. INFORMATION FOR PHYSICIANS

Sec. 154.004. DISCLOSURE OF DISCIPLINARY ORDERS

Sec. 154.005. PUBLIC PARTICIPATION

[Sections 154.006-154.050 reserved for expansion]

SUBCHAPTER B. COMPLAINT PROCEDURES

Sec. 154.051. COMPLAINT INITIATION

Sec. 154.052. RECORDS OF COMPLAINTS

Sec. 154.053. NOTIFICATION CONCERNING COMPLAINT

Sec. 154.054. COMPLAINT INFORMATION TO HEALTH CARE ENTITY

Sec. 154.055. RELEASE OF COMPLAINT INFORMATION TO

LEGISLATIVE COMMITTEE

Sec. 154.056. GENERAL RULES REGARDING COMPLAINT

INVESTIGATION; DISPOSITION

Sec. 154.057. CONDUCT OF INVESTIGATION; USE OF

INVESTIGATORS AS PEACE OFFICERS

Sec. 154.058. DETERMINATION OF MEDICAL COMPETENCY

CHAPTER 154. PUBLIC INTEREST INFORMATION AND COMPLAINT

PROCEDURES

SUBCHAPTER A. PUBLIC INTEREST INFORMATION

Sec. 154.001.  PUBLIC INTEREST INFORMATION. (a)  The board shall prepare information of public interest describing the functions of the board and the procedures by which complaints are filed with and resolved by the board.

(b)  The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4495b, Sec. 2.09(s)(1).)

Sec. 154.002.  INFORMATION FOR PUBLIC DISSEMINATION. (a)  The board shall prepare:

(1)  an alphabetical list of the names of the license holders;

(2)  an alphabetical list of the names of the license holders by the county in which the license holder's principal place of practice is located;

(3)  a summary of the board's functions;

(4)  a copy of this subtitle and a list of other laws relating to the practice of medicine;

(5)  a copy of the board's rules; and

(6)  other information considered appropriate by the board.

(b)  The board shall provide:

(1)  a copy of the information prepared under Subsection (a) to each person who requests a copy; and

(2)  copies of the information prepared under Subsection (a) to each public library in this state that requests the copies. (V.A.C.S. Art. 4495b, Secs. 2.09(q), (r).)

Sec. 154.003.  INFORMATION FOR PHYSICIANS. (a)  The board shall disseminate at least twice a year and at other times determined necessary by the board information of significant interest to the physicians of this state. The information must include summaries of:

(1)  disciplinary orders made against physicians licensed in this state;

(2)  board activities and functions;

(3)  pertinent changes in this subtitle or board rules; and

(4)  attorney general opinions.

(b)  The requirements of this section are in addition to the reporting requirements imposed under Section 164.060.

(c)  The board shall disseminate the information to:

(1)  each physician practicing in this state;

(2)  each health care entity and other board-designated health care institution operating in this state;

(3)  each member of a health-related legislative committee;

(4)  a member of the public who submits a written request; and

(5)  public libraries throughout this state. (V.A.C.S. Art. 4495b, Sec. 2.09(p).)

Sec. 154.004.  DISCLOSURE OF DISCIPLINARY ORDERS. (a)  On written request the board shall make available to the general public on payment of a reasonable fee to cover expenses and to appropriate state agencies information that includes:

(1)  a summary of any previous disciplinary order by the board against a specific physician licensed in this state;

(2)  the date of the order; and

(3)  the current status of the order.

(b)  If the board is not required under other state law to establish a toll-free telephone number, the board shall establish an eight-hour toll-free telephone number to make the information required by this section immediately available to any caller. (V.A.C.S. Art. 4495b, Sec. 2.09(s)(3) (part).)

Sec. 154.005.  PUBLIC PARTICIPATION. (a)  The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the board's jurisdiction.

(b)  The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4495b, Secs. 2.09(z), (aa) (part).)

[Sections 154.006-154.050 reserved for expansion]

SUBCHAPTER B. COMPLAINT PROCEDURES

Sec. 154.051.  COMPLAINT INITIATION. (a)  The board by rule shall establish methods by which members of the public and license holders are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:

(1)  on each registration form, application, or written contract for services of a person or entity regulated under this subtitle;

(2)  on a sign prominently displayed in the place of business of each person or entity regulated under this subtitle; or

(3)  in a bill for service provided by a person or entity regulated under this subtitle.

(b)  The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional.

(c)  A person, including a partnership, association, corporation, or other entity, may file a complaint against a license holder with the board. The board may file a complaint on its own initiative. (V.A.C.S. Art. 4495b, Secs. 2.09(s)(2), (3) (part); 4.02(a) (part).)

Sec. 154.052.  RECORDS OF COMPLAINTS. The board shall keep an information file about each complaint filed with the board. The information file must be kept current and contain a record for each complaint of:

(1)  each potential witness contacted in relation to the complaint;

(2)  a summary of findings made at each step of the complaint process;

(3)  an explanation of the legal basis and reason for the dismissal of a complaint;

(4)  the schedule for the disposition of the complaint prepared as required under Section 154.056 and a notation of any change in the schedule; and

(5)  other relevant information. (V.A.C.S. Art. 4495b, Secs. 4.02(b), (k) (part); 4.05(c) (part).)

Sec. 154.053.  NOTIFICATION CONCERNING COMPLAINT. (a) The board shall notify a physician who is the subject of a complaint filed with the board that a complaint has been filed and shall notify the physician of the nature of the complaint unless the notice would jeopardize an investigation.

(b)  Each party shall be notified of the projected time requirements for pursuing the complaint. Each party to the complaint must be notified of a change in the schedule not later than the 14th day after the date the change is made unless the notice would jeopardize an investigation.

(c)  If a written complaint is filed with the board that the board has authority to resolve, the board, at least as frequently as quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an investigation. (V.A.C.S. Art. 4495b, Secs. 4.02(c), (g) (part), (k) (part); 4.05(c) (part).)

Sec. 154.054.  COMPLAINT INFORMATION TO HEALTH CARE ENTITY. On written request, the board shall provide information to a health care entity regarding:

(1)  a complaint filed against a license holder that was resolved after investigation by:

(A)  a disciplinary order of the board; or

(B)  an agreed settlement; and

(2)  the basis of and current status of any complaint under active investigation. (V.A.C.S. Art. 4495b, Sec. 4.05(c) (part).)

Sec. 154.055.  RELEASE OF COMPLAINT INFORMATION TO LEGISLATIVE COMMITTEE. (a)  On request from a legislative committee created under Subchapter B, Chapter 301, Government Code, the board shall release all information regarding a complaint against a physician to aid in a legitimate legislative inquiry. The board may release the information only to the members of the committee.

(b)  In complying with a request under Subsection (a), the board may not identify the complainant or the patient and may reveal the identity of the affected physician only to the members of the committee. (V.A.C.S. Art. 4495b, Sec. 2.09(w).)

Sec. 154.056.  GENERAL RULES REGARDING COMPLAINT INVESTIGATION; DISPOSITION. (a)  The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this section must:

(1)  distinguish among categories of complaints;

(2)  ensure that a complaint is not dismissed without appropriate consideration;

(3)  require that the board be advised of the dismissal of a complaint and that a letter be sent to the person who filed the complaint explaining the action taken on the complaint;

(4)  ensure that a person who files a complaint has an opportunity to explain the allegations made in the complaint; and

(5)  prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.

(b)  The board shall:

(1)  dispose of each complaint in a timely manner; and

(2)  establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.

(c)  The executive director shall notify the board of a complaint that is unresolved after the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint.

(d)  The board shall adopt other rules as appropriate to administer this subchapter. (V.A.C.S. Art. 4495b, Secs. 4.02(a) (part), (j), (k) (part), (l).)

Sec. 154.057.  CONDUCT OF INVESTIGATION; USE OF INVESTIGATORS AS PEACE OFFICERS. (a)  Except as otherwise provided by this subchapter, each investigation of a complaint filed under this subtitle shall be conducted by the board or by a person authorized by the board to conduct the investigation.

(b)  The board shall make a preliminary investigation of the complaint. The board shall first determine whether the physician constitutes a continuing threat to the public welfare.

(c)  The board may commission investigators as peace officers to enforce this subtitle. An investigator commissioned as a peace officer under this subsection may not carry a firearm or exercise the powers of arrest. (V.A.C.S. Art. 4495b, Secs. 4.02(f) (part), (g) (part).)

Sec. 154.058.  DETERMINATION OF MEDICAL COMPETENCY. Each complaint against a physician that requires a determination of medical competency shall be reviewed by a board member, consultant, or employee with a medical background considered sufficient by the board. (V.A.C.S. Art. 4495b, Sec. 4.02(f) (part).)

CHAPTER 155. LICENSE TO PRACTICE MEDICINE

SUBCHAPTER A. LICENSE REQUIREMENTS

Sec. 155.001. LICENSE REQUIRED

Sec. 155.002. ISSUANCE OF LICENSE

Sec. 155.003. GENERAL ELIGIBILITY REQUIREMENTS

Sec. 155.004. ADDITIONAL ELIGIBILITY REQUIREMENTS FOR GRADUATES

OF CERTAIN FOREIGN MEDICAL SCHOOLS

Sec. 155.005. ELIGIBILITY REQUIREMENTS OF FOREIGN MEDICAL SCHOOL

STUDENTS IN FIFTH PATHWAY PROGRAM

Sec. 155.006. APPLICATION FOR LICENSE BY EXAMINATION

Sec. 155.007. APPLICATION PROCESS

Sec. 155.008. CRIMINAL RECORD CHECK

[Sections 155.009-155.050 reserved for expansion]

SUBCHAPTER B. LICENSE EXAMINATION

Sec. 155.051. EXAMINATION REQUIRED

Sec. 155.052. GENERAL EXAMINATION PROCEDURES

Sec. 155.053. PUBLIC MEMBER PARTICIPATION IN EXAMINATION

Sec. 155.054. EXAMINATION SUBJECTS

Sec. 155.055. NOTICE OF EXAMINATION RESULTS

Sec. 155.056. REEXAMINATION

Sec. 155.057. PRESERVATION OF EXAMINATION MATERIALS

Sec. 155.058. APPLICATION OF OPEN RECORDS AND OPEN MEETINGS LAW

TO EXAMINATION PROCEDURES

[Sections 155.059-155.100 reserved for expansion]

SUBCHAPTER C. RECIPROCITY AND CERTAIN TEMPORARY

LICENSES OR PERMITS

Sec. 155.101. LICENSE ISSUED UNDER RECIPROCAL AGREEMENT

Sec. 155.102. TEMPORARY LICENSE FOR CERTAIN OUT-OF-STATE

PRACTITIONERS

Sec. 155.103. TEMPORARY RECIPROCAL LICENSE FOR CERTAIN

PHYSICIANS EMPLOYED BY DEPARTMENT OF MENTAL

HEALTH AND MENTAL RETARDATION

Sec. 155.104. OTHER TEMPORARY LICENSES

Sec. 155.105. INSTITUTIONAL PERMIT

Sec. 155.106. CERTIFICATION OF LICENSE TO OTHER STATES

[Sections 155.107-155.150 reserved for expansion]

SUBCHAPTER D. ISSUANCE OF NEW OR DUPLICATE LICENSE

Sec. 155.151. DUPLICATE LICENSE

Sec. 155.152. ISSUANCE OF NEW LICENSE ON CHANGE OF NAME

CHAPTER 155. LICENSE TO PRACTICE MEDICINE

SUBCHAPTER A. LICENSE REQUIREMENTS

Sec. 155.001.  LICENSE REQUIRED. A person may not practice medicine in this state unless the person holds a license issued under this subtitle. (V.A.C.S. Art. 4495b, Sec. 3.07(a) (part).)

Sec. 155.002.  ISSUANCE OF LICENSE. The board may issue a license to practice medicine to a person who:

(1)  submits to the board a license application as required by this chapter;

(2)  presents satisfactory proof that the person meets the eligibility requirements established by this chapter; and

(3)  satisfactorily completes an examination or reexamination conducted under this chapter. (V.A.C.S. Art. 4495b, Secs. 3.04(a) (part), 3.05(a) (part), (c) (part).)

Sec. 155.003.  GENERAL ELIGIBILITY REQUIREMENTS. (a) To be eligible to take the license examination and to be issued a license under this chapter, an applicant must present proof satisfactory to the board that the applicant:

(1)  is at least 21 years of age;

(2)  is of good professional character;

(3)  has completed at least 60 semester hours of college courses, other than courses in medical school, that at the time of completion were acceptable to The University of Texas for credit on a bachelor of arts degree or a bachelor of science degree;

(4)  is a graduate of a medical or osteopathic school or college approved by the board at the time the degree was conferred; and

(5)  has completed a one-year program of graduate medical training approved by the board.

(b)  An applicant is eligible for examination before the applicant meets the requirement established by Subsection (a)(5) but is not eligible for an unrestricted license until all the requirements of Subsection (a) are satisfied.

(c)  To be recognized by the board for the purposes of this chapter, all medical or osteopathic medical education an applicant receives in the United States must be accredited by an accrediting body officially recognized by the United States Department of Education as the accrediting body for medical education leading to the doctor of medicine degree or the doctor of osteopathy degree. This subsection does not apply to postgraduate medical education or training.

(d)  An applicant who is unable to meet the requirement established by Subsection (c) for recognition of the applicant's medical or osteopathic medical education is eligible for an unrestricted license if the applicant:

(1)  received the education in a hospital or teaching institution sponsoring or participating in a program of graduate medical education accredited by the Accrediting Council for Graduate Medical Education, the American Osteopathic Association, or the board if the hospital or teaching institution has an agreement with the applicant's school; or

(2)  is specialty board certified by a specialty board approved by the American Osteopathic Association or the American Board of Medical Specialties. (V.A.C.S. Art. 4495b, Secs. 3.04(a), (b), (d), (f).)

Sec. 155.004.  ADDITIONAL ELIGIBILITY REQUIREMENTS FOR GRADUATES OF CERTAIN FOREIGN MEDICAL SCHOOLS. (a) This section applies only to a license applicant who is a graduate of a medical school that:

(1)  is located outside the United States and Canada; and

(2)  was not board approved at the time the applicant's degree was conferred.

(b)  To be eligible for a license under this chapter, an applicant subject to this section must, in addition to meeting the requirements of Section 155.003, present proof satisfactory to the board that the applicant:

(1)  is a graduate of a school whose curriculum meets the requirements for an unapproved medical school as determined by a committee of experts selected by the Texas Higher Education Coordinating Board;

(2)  has successfully completed at least three years of graduate medical training in the United States or Canada that was approved by the board on the date the training was completed;

(3)  is eligible for a license to practice medicine in the country in which the school is located;

(4)  holds a valid certificate issued by the Educational Commission for Foreign Medical Graduates;

(5)  is able to communicate in English; and

(6)  has passed the license examination under Subchapter B required by the board of each applicant.

(c)  The board by rule may establish an alternate educational requirement than that established by Section 155.003(a)(3) for an applicant subject to this section.

(d)  The board by rule may require, in addition to other license requirements, that an applicant who is subject to this section, or the school of which the applicant is a graduate, provide additional information to the board concerning the school before the board approves the applicant.

(e)  The board may refuse to issue a license to an applicant subject to this section if the board determines that the applicant:

(1)  does not possess the qualifications necessary to provide the same standard of medical care as provided by a physician licensed in this state; or

(2)  failed to provide evidence to establish to the board's satisfaction that the applicant completed medical education or professional training substantially equivalent to that provided by a medical school in this state. (V.A.C.S. Art. 4495b, Secs. 3.04(g), (h), (i), (j).)

Sec. 155.005.  ELIGIBILITY REQUIREMENTS OF FOREIGN MEDICAL SCHOOL STUDENTS IN FIFTH PATHWAY PROGRAM. (a) To be eligible for a license under this chapter, an applicant who has been a student of a foreign medical school must present proof satisfactory to the board that the applicant:

(1)  meets the requirements of Section 155.003 or Section 155.101;

(2)  has studied medicine in a medical school located outside the United States and Canada that is acceptable to the board;

(3)  has completed all of the didactic work of the foreign medical school but has not graduated from the school;

(4)  has attained a score satisfactory to a medical school in the United States approved by the Liaison Committee on Medical Education on a qualifying examination and has satisfactorily completed one academic year of supervised clinical training for foreign medical students, as defined by the American Medical Association Council on Medical Education (Fifth Pathway Program), under the direction of the medical school in the United States;

(5)  has attained a passing score on the Educational Commission for Foreign Medical Graduates examination or another examination, if required by the board;

(6)  has successfully completed at least three years of graduate medical training in the United States or Canada that was approved by the board as of the date the training was completed; and

(7)  has passed the license examination under Subchapter B required by the board of each applicant.

(b)  An applicant who satisfies the requirements of this section is not required to:

(1)  meet any requirement of the foreign medical school beyond completion of the didactic work; or

(2)  be certified by the Educational Commission for Foreign Medical Graduates.

(c)  A hospital that is licensed by this state, that is operated by this state or a political subdivision of this state, or that directly or indirectly receives state financial assistance may not require a person who has been a student of a foreign medical school but has not graduated from the school to satisfy any requirements other than those listed in Subsection (a) before beginning an internship or residency.

(d)  For purposes of licensing under this chapter, a document granted by a medical school located outside the United States issued after the completion of all the didactic work of the medical school is considered the equivalent of a degree of doctor of medicine or doctor of osteopathy on certification by the medical school in the United States in which the training was received that the person to whom the document was issued satisfactorily completed the requirements listed in Subsection (a)(4). (V.A.C.S. Art. 4495b, Sec. 3.041.)

Sec. 155.006.  APPLICATION FOR LICENSE BY EXAMINATION. Each application for a license by examination must be:

(1)  in writing;

(2)  verified by affidavit;

(3)  filed with the board on forms prescribed by the board; and

(4)  accompanied by documents and a fee as the board determines to be reasonable. (V.A.C.S. Art. 4495b, Sec. 3.04(c).)

Sec. 155.007.  APPLICATION PROCESS. (a) The executive director shall review each application for a license by examination or reciprocity and shall:

(1)  recommend to the board each applicant eligible for a license; and

(2)  report to the board the name of each applicant determined to be ineligible for a license, together with the reasons for that determination.

(b)  An applicant determined to be ineligible for a license by the executive director may request review of that determination by a committee of the board. The applicant must request the review not later than the 20th day after the date the applicant receives notice of the determination.

(c)  The executive director may refer an application to the board committee for a recommendation concerning eligibility. If the committee determines that the applicant is ineligible for a license, the committee shall submit that determination, together with the reasons for the determination, to the board unless the applicant requests a hearing not later than the 20th day after the date the applicant receives notice of the determination.

(d)  The committee may refer an application for determination of eligibility to the full board.

(e)  A hearing requested under Subsection (c) shall be held before an administrative law judge of the State Office of Administrative Hearings and must comply with:

(1)  Chapter 2001, Government Code; and

(2)  the rules of:

(A)  the State Office of Administrative Hearings; and

(B)  the board.

(f)  After receipt of the administrative law judge's proposed findings of fact and conclusions of law, the board shall determine the applicant's eligibility. The board shall provide an applicant who is denied a license a written statement containing the reasons for the board's action.

(g)  Each report received or gathered by the board on a license applicant is confidential and is not subject to disclosure under Chapter 552, Government Code. The board may disclose a report to an appropriate licensing authority in another state. (V.A.C.S. Art. 4495b, Sec. 3.01(h).)

Sec. 155.008.  CRIMINAL RECORD CHECK. The board shall submit to the Department of Public Safety a complete set of fingerprints of each license applicant, and the department shall classify and check the fingerprints against those in the department's fingerprint records. The department shall certify to the board its findings regarding the criminal record of the applicant or the applicant's lack of a criminal record. (V.A.C.S. Art. 4495b, Sec. 2.09(h) (part).)

[Sections 155.009-155.050 reserved for expansion]

SUBCHAPTER B. LICENSE EXAMINATION

Sec. 155.051.  EXAMINATION REQUIRED. Each applicant for a license to practice medicine in this state not otherwise eligible for a license under this subtitle must pass an examination approved by board rule. (V.A.C.S. Art. 4495b, Sec. 3.05(c) (part).)

Sec. 155.052.  GENERAL EXAMINATION PROCEDURES. (a) Each examination for a license to practice medicine must be prepared by a national testing service or prepared by the board and validated by qualified independent testing professionals. The examination must be conducted in writing and in English.

(b)  A license examination must be uniform and conducted in a fair and impartial manner to all persons and to each school or system of medicine. Each license applicant who takes an examination must be given questions identical to those received by each other applicant examined at the same time.

(c)  The board may give the license examination in two or more parts.

(d)  The board shall determine the credit to be given a license applicant on answers turned in on the subjects of complete and partial examination. The board's decision is final.

(e)  The board may establish examination fees.

(f)  The board shall give each license applicant notice of the date and place of the examination.

(g)  In addition to the requirements prescribed by this subchapter, the board may require applicants to comply with other requirements for examination that the board considers appropriate. (V.A.C.S. Art. 4495b, Secs. 3.05(a) (part), (b), (c) (part).)

Sec. 155.053.  PUBLIC MEMBER PARTICIPATION IN EXAMINATION. (a) A public member of the board may not participate in the preparation of an examination used to examine the academic and professional credentials of a license applicant or to examine the applicant orally or in writing.

(b)  Each public member shall be given notice of, and may be present at, each examination or deliberation concerning the results of an examination and may participate in the development and establishment of the procedures and criteria for each examination. (V.A.C.S. Art. 4495b, Sec. 2.09(m).)

Sec. 155.054.  EXAMINATION SUBJECTS. Each license examination must cover:

(1)  those subjects generally taught by medical schools, a knowledge of which is commonly and generally required of each candidate for the degree of doctor of medicine or doctor of osteopathy conferred by a board-approved school or college of medicine; and

(2)  the subject of medical jurisprudence. (V.A.C.S. Art. 4495b, Sec. 3.05(a) (part).)

Sec. 155.055.  NOTICE OF EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of a licensing examination not later than the 90th day after the date the examination is administered. However, if an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 30th day after the date the board receives the results from the testing service.

(b)  If the notice of the examination results will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.

(c)  If requested in writing by a person who fails the examination, the board shall provide to the person a summarized analysis of the person's performance on the examination that consists of the person's score on each portion of the examination. (V.A.C.S. Art. 4495b, Secs. 3.05(e), (f).)

Sec. 155.056.  REEXAMINATION. (a) A license applicant who is refused a license because of failure to pass the examination is entitled to take a subsequent examination at a time fixed by the board on payment of a fee set by the board.

(b)  An applicant may not take more than two subsequent examinations under Subsection (a). (V.A.C.S. Art. 4495b, Sec. 3.05(c) (part).)

Sec. 155.057.  PRESERVATION OF EXAMINATION MATERIALS. The board shall preserve all examination questions and answers, with the grades attached, in the board's executive office or in another repository as directed by board rule until the first anniversary of the date of the examination. (V.A.C.S. Art. 4495b, Sec. 3.05(a) (part).)

Sec. 155.058.  APPLICATION OF OPEN RECORDS AND OPEN MEETINGS LAW TO EXAMINATION PROCEDURES. (a) The following are exempt from Chapters 551 and 552, Government Code:

(1)  examination questions that may be used in the future;

(2)  examinations; and

(3)  deliberations and records relating to the professional character and fitness of applicants for examination.

(b)  Subsection (a)(2) does not prohibit the board from providing an examination to an applicant who has taken that examination.

(c)  Notwithstanding Subsection (a)(3), the board shall disclose records relating to the professional character and fitness of an individual applicant to that applicant on written request, other than information supplied to the board by a person who requests that the information not be disclosed. (V.A.C.S. Art. 4495b, Sec. 3.05(d).)

[Sections 155.059-155.100 reserved for expansion]

SUBCHAPTER C. RECIPROCITY AND CERTAIN TEMPORARY

LICENSES OR PERMITS

Sec. 155.101.  LICENSE ISSUED UNDER RECIPROCAL AGREEMENT. (a) On payment of the required fee, the board may issue a license to practice medicine to an applicant who:

(1)  is a graduate of a medical college determined to be acceptable by the board; and

(2)  holds a license or other authority to practice medicine issued by another state or a Canadian province that:

(A)  has requirements for physician registration and practice that are substantially equivalent to those established by the laws of this state; and

(B)  grants the same reciprocal privileges to persons licensed by the board.

(b)  An application for a license under this section must be in writing and sworn to by the applicant on a form prescribed by the board. The oath is a part of the application.

(c)  The application must:

(1)  state that:

(A)  the license or other authority under which the applicant has most recently practiced medicine in the state or Canadian province from which the applicant is transferring to this state or in the uniformed service of the United States in which the applicant served is in force and is not restricted, canceled, suspended, or revoked;

(B)  the applicant is the person to whom the license or other authority and the diploma were issued;

(C)  proceedings have not been instituted against the applicant for the restriction, cancellation, suspension, or revocation of the license or other authority to practice medicine by the state, Canadian province, or uniformed service of the United States in which it was issued; and

(D)  a prosecution is not pending against the applicant in any state, federal, or Canadian court for an offense that is a felony under the laws of this state;

(2)  include a description of any sanctions imposed by or disciplinary matters pending in the state or Canadian province in which the applicant was or is licensed or otherwise authorized to practice medicine; and

(3)  include evidence of postgraduate training as required by the board.

(d)  The application must be accompanied by:

(1)  a diploma or photograph of a diploma awarded to the applicant by an acceptable medical college and a certified transcript showing courses and grades;

(2)  a license, certified copy of a license, or similar evidence of other authority to practice medicine issued to the applicant by the other state or the Canadian province;

(3)  a certification made by the president or secretary of the board that issued the license or other authority or a registration office of the state or Canadian province that issued the license or other authority stating that:

(A)  the license or other authority has not been canceled, suspended, or revoked; and

(B)  the statement of the qualifications made in the application for a license in this state is accurate; and

(4)  evidence of a passing grade on an examination required by the board.

(e)  An applicant for a license under this section must be eligible for examination by the board.

(f)  The board by rule may require, in addition to other license requirements, that an applicant who holds a license issued by another state or Canadian province and who is a graduate of a medical school located outside the United States and Canada, or the school of which the applicant is a graduate, provide additional information to the board concerning the school before the board approves the applicant.

(g)  The board may refuse to issue a license to an applicant who holds a license issued by another state or a Canadian province and who graduated from a medical school outside the United States and Canada if the board determines that the applicant does not possess the qualifications necessary to provide the same standard of medical care as provided by a physician licensed in this state. The board may not refuse to issue a license to an applicant under this subsection if the applicant:

(1)  has held a license or other authority to practice medicine issued by another state or a Canadian province for the five years preceding the date of application for a license to practice in this state;

(2)  is not the subject of a sanction imposed by or disciplinary matter pending in any state or Canadian province in which the applicant is licensed or otherwise authorized to practice medicine; and

(3)  either:

(A)  is specialty board certified by a board that is:

(i)  a member of the American Board of Medical Specialties; or

(ii)  a specialty board approved by the American Osteopathic Association; or

(B)  successfully passes an examination as determined by board rule.

(h)  In addition to the requirements prescribed by this section, the board may require an applicant for a reciprocal license to comply with other requirements that the board considers appropriate. (V.A.C.S. Art. 4495b, Sec. 3.03.)

Sec. 155.102.  TEMPORARY LICENSE FOR CERTAIN OUT-OF-STATE PRACTITIONERS. (a) On application, the board may issue to an eligible applicant a temporary license to practice medicine. A temporary license expires on the 181st day after the date of issuance and may not be renewed except as provided by Subsection (f).

(b)  To be eligible for a temporary license under this section, an applicant must:

(1)  hold a current, active, and unrestricted license, that is not subject to any pending disciplinary matters, as a physician in another state that has licensing requirements substantially equivalent to the requirements of this subtitle;

(2)  have passed a national or other examination recognized by the board relating to the practice of medicine; and

(3)  be sponsored by a person licensed by the board under this subtitle with whom the temporary license holder may practice under this section.

(c)  The board may exempt an applicant for a temporary license from the requirement of Subsection (b)(3) if the board determines that compliance with that requirement constitutes a hardship to the applicant.

(d)  The board shall issue a license under this subtitle to the holder of a temporary license issued under this section if:

(1)  the temporary license holder passes the examination required by Subchapter B;

(2)  the board verifies that the temporary license holder has satisfied the academic and experience requirements for a license under this subtitle; and

(3)  the temporary license holder has satisfied any other license requirements under this subtitle.

(e)  The board shall assemble the documents and information necessary to process a temporary license holder's application for a license not later than the 90th day after the date the temporary license is issued and shall complete the processing of the application not later than the 90th day after the date the documents and information are assembled. If the board has not completed the processing of the application by the 180th day after the date the temporary license is issued, the board shall review the application to determine the cause of the delay.

(f)  A temporary license subject to this subsection may be renewed for an additional 180 days at the discretion of the executive director. (V.A.C.S. Art. 4495b, Sec. 3.0305.)

Sec. 155.103.  TEMPORARY RECIPROCAL LICENSE FOR CERTAIN PHYSICIANS EMPLOYED BY DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION. (a) In this section:

(1)  "National Practitioner Data Bank" means the National Practitioner Data Bank established by the United States Department of Health and Human Services under Title 45, Code of Federal Regulations, Part 60.

(2)  "Rural hospital" means a hospital located in a county with a population of 35,000 or less.

(b)  The board shall issue a temporary reciprocal license to an applicant who applies to the board in the manner prescribed by the board, pays the required fee, and:

(1)  holds a license or other authority to practice medicine issued by another state or a Canadian province that has requirements for physician registration and practice that are substantially equivalent to those established by the laws of this state;

(2)  has accepted employment with a rural hospital of the Texas Department of Mental Health and Mental Retardation; and

(3)  has not been the subject of disciplinary action taken by a medical disciplinary authority of another jurisdiction.

(c)  The board may not require an examination for a license issued under this section.

(d)  The board may not issue a license under this section if the National Practitioner Data Bank contains information about the applicant that indicates the existence of:

(1)  an adverse action regarding the applicant's:

(A)  license or other authority to practice medicine;

(B)  clinical privileges; or

(C)  membership; or

(2)  a medical malpractice payment.

(e)  A license issued under this section expires on the earlier of:

(1)  the date the physician ceases to be employed by a rural hospital of the Texas Department of Mental Health and Mental Retardation; or

(2)  the second anniversary of the date the license is issued.

(f)  A license issued under this section may not be renewed. (V.A.C.S. Art. 4495b, Sec. 3.031.)

Sec. 155.104.  OTHER TEMPORARY LICENSES. Except as provided by Sections 155.102 and 155.103, the board may adopt rules and set fees relating to granting temporary licenses and extending the expiration dates of temporary licenses. The board by rule shall set a time limit for the term of a temporary license. (V.A.C.S. Art. 4495b, Sec. 2.09(c) (part).)

Sec. 155.105.  INSTITUTIONAL PERMIT. (a) The board by rule may issue an institutional permit to a physician not otherwise licensed by the board who is participating in a graduate medical education training program approved by the board.

(b)  The board shall charge a fee for an institutional permit. The fee shall be deposited in the medical registration fund account.

(c)  An institutional permit does not authorize the performance of a medical act by the permit holder unless the act is performed:

(1)  as a part of the graduate medical education program; and

(2)  under the supervision of a physician. (V.A.C.S. Art. 4495b, Sec. 3.01(b).)

Sec. 155.106.  CERTIFICATION OF LICENSE TO OTHER STATES. On the request of a license holder, the board shall issue a certificate that endorses the license issued by the board to other states. The board shall charge a fee for the issuance of the certificate. (V.A.C.S. Art. 4495b, Sec. 2.09(t).)

[Sections 155.107-155.150 reserved for expansion]

SUBCHAPTER D. ISSUANCE OF NEW OR DUPLICATE LICENSE

Sec. 155.151.  DUPLICATE LICENSE. (a) If a license issued under this subtitle is lost or destroyed, the license holder may apply to the board for a duplicate license. The application must be on a form prescribed by the board, accompanied by an affidavit of the loss or destruction that states that the applicant is the person to whom the license was issued and other information concerning the loss or destruction of the license as required by the board.

(b)  On payment of a fee set by the board, the board shall issue a duplicate license to the person. (V.A.C.S. Art. 4495b, Sec. 3.09(a).)

Sec. 155.152.  ISSUANCE OF NEW LICENSE ON CHANGE OF NAME. The board may issue a new license to a license holder if the license holder changes the license holder's name. (V.A.C.S. Art. 4495b, Sec. 3.09(b).)

CHAPTER 156. LICENSE RENEWAL

SUBCHAPTER A. RENEWAL AND REGISTRATION

Sec. 156.001. ANNUAL REGISTRATION REQUIRED; REGISTRATION

PROCEDURE

Sec. 156.002. EXEMPTION FOR CERTAIN RETIRED PHYSICIANS

Sec. 156.003. STAGGERED RENEWAL SYSTEM

Sec. 156.004. NOTICE OF LICENSE EXPIRATION

Sec. 156.005. RENEWAL OF CERTAIN LICENSES

Sec. 156.006. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE

PRACTITIONER

Sec. 156.007. REGISTRATION RECEIPT

Sec. 156.008. PRACTICING MEDICINE WITHOUT ANNUAL

REGISTRATION PROHIBITED

Sec. 156.009. INACTIVE STATUS

[Sections 156.010-156.050 reserved for expansion]

SUBCHAPTER B. CONTINUING MEDICAL EDUCATION REQUIREMENTS

Sec. 156.051. REPORTING PROGRAM; RULES; EXEMPTION

Sec. 156.052. PRESUMPTION OF COMPLIANCE FOR CERTAIN LICENSE

HOLDERS

Sec. 156.053. TEMPORARY EXEMPTION

Sec. 156.054. AUTHORITY OF BOARD TO REQUIRE ADDITIONAL

HOURS

Sec. 156.055. CONTINUING EDUCATION IN PAIN TREATMENT

CHAPTER 156. LICENSE RENEWAL

SUBCHAPTER A. RENEWAL AND REGISTRATION

Sec. 156.001.  ANNUAL REGISTRATION REQUIRED; REGISTRATION PROCEDURE. (a) Each person licensed to practice medicine in this state must register with the board annually.

(b)  Except as provided by Section 156.002, the application for registration must be accompanied by an annual registration fee in an amount set by the board regardless of whether the person is practicing medicine in this state.

(c)  The person must file with the board a written application for registration on a form provided by the board that includes:

(1)  the person's name and mailing address;

(2)  the address of each place at which the person is engaged in the practice of medicine; and

(3)  other necessary information as prescribed by the board.

(d)  If the person is licensed to practice medicine by another state or country or by the uniformed services of the United States, the application must include a description of any investigation the person knows is in progress and any sanction imposed by or disciplinary matter pending in the state, country, or service regarding the person.

(e)  The board shall renew the license of an applicant who complies with this section. (V.A.C.S. Art. 4495b, Secs. 3.01(a) (part), (g) (part), 3.02(a).)

Sec. 156.002.  EXEMPTION FOR CERTAIN RETIRED PHYSICIANS. (a) The board by rule may exempt a retired physician from the annual registration fee requirement.

(b)  A retired physician licensed by the board whose only practice is voluntary charity care is exempt from the annual registration fee requirement. (V.A.C.S. Art. 4495b, Sec. 3.01(g) (part).)

Sec. 156.003.  STAGGERED RENEWAL SYSTEM. (a) A person must apply for annual registration on or before January 1 each year. The board by rule may adopt a system under which registrations expire on various dates during the year.

(b)  If the board adopts a staggered renewal system under Subsection (a), the board shall adjust accordingly the date for license cancellation due to nonpayment. For the year in which the expiration date is changed, registration fees payable on or before January 1 shall be prorated on a monthly basis so that each registrant pays only that portion of the registration fee that is allocable to the number of months during which the registration is valid. On renewal of the registration on the new expiration date, the total registration fee is payable. (V.A.C.S. Art. 4495b, Secs. 3.01(a) (part), 3.02(b).)

Sec. 156.004.  NOTICE OF LICENSE EXPIRATION. The board shall provide written notice to each physician at the physician's last known address according to the board's records at least 30 days before the expiration date of a license and shall allow a 30-day grace period for payment of the annual registration fee from the date of the expiration of the license. (V.A.C.S. Art. 4495b, Sec. 3.01(c)(6).)

Sec. 156.005.  RENEWAL OF CERTAIN LICENSES. (a) A person may renew an unexpired license by paying the required fee to the board on or before the expiration date of the license.

(b)  If the person's license has been expired for 90 days or less, the person may renew the license by paying to the board the required fee and a fee that is equal to one-half of the amount of the annual registration fee.

(c)  If the person's license has been expired for longer than 90 days but less than one year, the person may renew the license by paying to the board all unpaid fees and a fee that is equal to the amount of the annual registration fee.

(d)  If the person's license has been expired for one year or longer, the license is considered to have been canceled, unless an investigation is pending, and the person may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4495b, Secs. 3.01(c)(1), (2), (3), (4).)

Sec. 156.006.  RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination the expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for not more than two years preceding the renewal application.

(b)  The person must pay to the board a fee that is equal to the amount of the license examination fee. (V.A.C.S. Art. 4495b, Sec. 3.01(c)(5).)

Sec. 156.007.  REGISTRATION RECEIPT. (a) On receipt of a registration application, accompanied by the proper fee, the board, after ascertaining from the records of the board or from other sources considered reliable by the board that the applicant for registration is a physician in this state, shall issue to the applicant an annual registration receipt certifying that the applicant has filed the application and has paid the registration fee for the year.

(b)  The filing of the registration application, the payment of the fee, and the issuance of the receipt does not entitle the receipt holder to practice medicine in this state unless:

(1)  the receipt holder has been previously licensed as a physician by the board, as prescribed by law; and

(2)  the license to practice medicine is in effect. (V.A.C.S. Art. 4495b, Secs. 3.01(a) (part), (e) (part).)

Sec. 156.008.  PRACTICING MEDICINE WITHOUT ANNUAL REGISTRATION PROHIBITED. (a) Practicing medicine without an annual registration receipt for the current year as provided by this subchapter has the same effect as, and is subject to all penalties of, practicing medicine without a license.

(b)  In a prosecution for the unlawful practice of medicine, the receipt showing payment of the annual registration fee required by this chapter does not constitute evidence that the receipt holder is lawfully entitled to practice medicine. (V.A.C.S. Art. 4495b, Secs. 3.01(d), (e) (part).)

Sec. 156.009.  INACTIVE STATUS. The board may adopt rules and set reasonable fees relating to placing license holders on inactive status. The board by rule shall set a time limit for the period during which a license holder may remain on inactive status. (V.A.C.S. Art. 4495b, Sec. 2.09(c) (part).)

[Sections 156.010-156.050 reserved for expansion]

SUBCHAPTER B. CONTINUING MEDICAL EDUCATION REQUIREMENTS

Sec. 156.051.  REPORTING PROGRAM; RULES; EXEMPTION. (a) The board by rule shall adopt, monitor, and enforce a reporting program for the continuing medical education of license holders. The board shall adopt and administer rules that:

(1)  establish the number of hours of continuing medical education the board determines appropriate as a prerequisite to the annual registration of a license under this subtitle;

(2)  require at least one-half of the hours of continuing medical education established under Subdivision (1) to be board approved; and

(3)  adopt a process to assess a license holder's participation in continuing medical education courses.

(b)  In approving continuing medical education hours under Subsection (a)(2), the board shall consider the standards of:

(1)  the American Medical Association adopted by that association for its Physician's Recognition Award; or

(2)  the American Osteopathic Association.

(c)  The board shall permit the hours that are not subject to board approval under Subsection (a)(2) to consist of self-study or equivalent self-directed continuing medical education according to guidelines determined by the board.

(d)  This section does not apply to a license holder who is retired and is exempt by rule from paying the annual registration fee. (V.A.C.S. Art. 4495b, Secs. 3.025(a), (e).)

Sec. 156.052.  PRESUMPTION OF COMPLIANCE FOR CERTAIN LICENSE HOLDERS. A license holder is presumed to be in compliance with the requirements of this subchapter if, during the 36 months preceding the date of the required annual registration, the license holder becomes board certified or recertified in a medical specialty and that medical specialty program considers the standards of:

(1)  the American Board of Medical Specialties;

(2)  the American Medical Association;

(3)  the Advisory Board for Osteopathic Specialists and Boards of Certification; or

(4)  the American Osteopathic Association. (V.A.C.S. Art. 4495b, Sec. 3.025(b).)

Sec. 156.053.  TEMPORARY EXEMPTION. (a) The board may temporarily exempt a license holder from the continuing medical education requirement for:

(1)  catastrophic illness;

(2)  military service outside this state for longer than one year;

(3)  medical practice and residence outside the United States for longer than one year; or

(4)  good cause shown on the written application of the license holder that provides evidence satisfactory to the board that the license holder is unable to comply with the requirement.

(b)  A temporary exemption granted under Subsection (a) may not exceed one year but may be renewed annually. (V.A.C.S. Art. 4495b, Secs. 3.025(c), (d).)

Sec. 156.054.  AUTHORITY OF BOARD TO REQUIRE ADDITIONAL HOURS. This subchapter does not prevent the board from taking disciplinary action with respect to a license holder or license applicant by requiring additional hours of continuing medical education, including education in specific course subjects. (V.A.C.S. Art. 4495b, Sec. 3.025(f).)

Sec. 156.055.  CONTINUING EDUCATION IN PAIN TREATMENT. A physician licensed under this subtitle who submits an application for renewal of a license that designates a direct patient care practice and whose practice includes treating patients for pain is encouraged to include continuing medical education in pain treatment among the hours of continuing medical education completed to comply with Section 156.051(a)(2). (V.A.C.S. Art. 4495d.)

CHAPTER 157. AUTHORITY OF PHYSICIAN TO DELEGATE CERTAIN

MEDICAL ACTS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 157.001. GENERAL AUTHORITY OF PHYSICIAN TO DELEGATE

Sec. 157.002. GENERAL DELEGATION OF ADMINISTRATION AND PROVISION

OF DANGEROUS DRUGS

Sec. 157.003. EMERGENCY CARE

Sec. 157.004. DELEGATION REGARDING CERTAIN CARE FOR NEWBORNS;

LIABILITY

Sec. 157.005. PERFORMANCE OF DELEGATED ACT NOT PRACTICING WITHOUT

MEDICAL LICENSE

Sec. 157.006. LIMITATION ON BOARD RULES REGARDING DELEGATION

Sec. 157.007. APPLICABILITY OF OTHER LAWS

[Sections 157.008-157.050 reserved for expansion]

SUBCHAPTER B. DELEGATION TO ADVANCED PRACTICE NURSES AND

PHYSICIAN ASSISTANTS

Sec. 157.051. DEFINITIONS

Sec. 157.052. PRESCRIBING AT SITES SERVING CERTAIN MEDICALLY

UNDERSERVED POPULATIONS

Sec. 157.053. PRESCRIBING AT PHYSICIAN PRIMARY PRACTICE

SITES

Sec. 157.054. PRESCRIBING AT FACILITY-BASED PRACTICE SITES

Sec. 157.055. ORDERS AND PROTOCOLS

Sec. 157.056. PRESCRIPTION INFORMATION

Sec. 157.057. ADDITIONAL IMPLEMENTATION METHODS

Sec. 157.058. DELEGATION TO CERTIFIED REGISTERED NURSE

ANESTHETIST

Sec. 157.059. DELEGATION REGARDING CERTAIN OBSTETRICAL

SERVICES

Sec. 157.060. PHYSICIAN LIABILITY FOR DELEGATED ACT

[Sections 157.061-157.100 reserved for expansion]

SUBCHAPTER C. DELEGATION TO PHARMACISTS

Sec. 157.101. DELEGATION TO PHARMACIST

CHAPTER 157. AUTHORITY OF PHYSICIAN TO DELEGATE CERTAIN

MEDICAL ACTS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 157.001.  GENERAL AUTHORITY OF PHYSICIAN TO DELEGATE. (a) A physician may delegate to a qualified and properly trained person acting under the physician's supervision any medical act that a reasonable and prudent physician would find within the scope of sound medical judgment to delegate if, in the opinion of the delegating physician:

(1)  the act:

(A)  can be properly and safely performed by the person to whom the medical act is delegated;

(B)  is performed in its customary manner; and

(C)  is not in violation of any other statute; and

(2)  the person to whom the delegation is made does not represent to the public that the person is authorized to practice medicine.

(b)  The delegating physician remains responsible for the medical acts of the person performing the delegated medical acts.

(c)  The board may determine whether:

(1)  an act constitutes the practice of medicine, not inconsistent with this chapter; and

(2)  a medical act may be properly or safely delegated by physicians. (V.A.C.S. Art. 4495b, Sec. 3.06(d)(1).)

Sec. 157.002.  GENERAL DELEGATION OF ADMINISTRATION AND PROVISION OF DANGEROUS DRUGS. (a) In this section:

(1)  "Administering" means the direct application of a drug to the body of a patient by injection, inhalation, ingestion, or any other means.

(2)  "Provision" means the supply of one or more unit doses of a drug, medicine, or dangerous drug.

(b)  A physician may delegate to any qualified and properly trained person acting under the physician's supervision the act of administering or providing dangerous drugs in the physician's office, as ordered by the physician, that are used or required to meet the immediate needs of the physician's patients. The administration or provision of the dangerous drugs must be performed in compliance with laws relating to the practice of medicine and state and federal laws relating to those dangerous drugs.

(c)  A physician may also delegate to any qualified and properly trained person acting under the physician's supervision the act of administering or providing dangerous drugs through a facility licensed by the Texas State Board of Pharmacy, as ordered by the physician, that are used or required to meet the immediate needs of the physician's patients. The administration of those dangerous drugs must be in compliance with laws relating to the practice of medicine, professional nursing, and pharmacy and state and federal drug laws. The provision of those dangerous drugs must be in compliance with:

(1)  laws relating to the practice of medicine, professional nursing, and pharmacy;

(2)  state and federal drug laws; and

(3)  rules adopted by the Texas State Board of Pharmacy.

(d)  In the provision of services and the administration of therapy by public health departments, as officially prescribed by the Texas Department of Health for the prevention or treatment of specific communicable diseases or health conditions for which the Texas Department of Health is responsible for control under state law, a physician may delegate to any qualified and properly trained person acting under the physician's supervision the act of administering or providing dangerous drugs, as ordered by the physician, that are used or required to meet the needs of the patients. The provision of those dangerous drugs must be in compliance with laws relating to the practice of medicine, professional nursing, and pharmacy. An order for the prevention or treatment of a specific communicable disease or health condition for which the Texas Department of Health is responsible for control under state law may not be inconsistent with this chapter and may not be used to perform an act or duty that requires the exercise of independent medical judgment.

(e)  The administration or provision of the drugs may be delegated through a physician's order, a standing medical order, a standing delegation order, or another order defined by the board.

(f)  Subsections (b) and (c) do not authorize a physician or a person acting under the supervision of a physician to keep a pharmacy, advertised or otherwise, for the retail sale of dangerous drugs, other than as authorized under Section 158.003, without complying with the applicable laws relating to the dangerous drugs.

(g)  A drug or medicine provided under Subsection (b) or (c) must be supplied in a suitable container labeled in compliance with applicable drug laws. A qualified and trained person, acting under the supervision of a physician, may specify at the time of the provision of the drug the inclusion on the container of the date of the provision and the patient's name and address. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(2), (3), (4).)

Sec. 157.003.  EMERGENCY CARE. The authority to delegate medical acts to a properly qualified person as provided by this subchapter applies to emergency care provided by emergency medical personnel certified by the Texas Department of Health. (V.A.C.S. Art. 4495b, Sec. 3.06(d)(7).)

Sec. 157.004.  DELEGATION REGARDING CERTAIN CARE FOR NEWBORNS; LIABILITY. (a) It is the policy of this state that the prevention of ophthalmia neonatorum in newborn infants is of paramount importance for the protection of the health of the children of this state.

(b)  The authority to delegate medical acts to a midwife under Chapter 203 applies to the possession and administration of eye prophylaxis for the prevention of ophthalmia neonatorum.

(c)  A physician who issues a standing delegation order to a midwife under Chapter 203 is not liable in connection with an act performed under that standing delegation order if the midwife provides proof of documentation under that chapter before the order is issued. (V.A.C.S. Art. 4495b, Sec. 3.06(d)(8).)

Sec. 157.005.  PERFORMANCE OF DELEGATED ACT NOT PRACTICING WITHOUT MEDICAL LICENSE. A person to whom a physician delegates the performance of a medical act is not considered to be practicing medicine without a license by performing the medical act unless the person acts with knowledge that the delegation and the action taken under the delegation is a violation of this subtitle. (V.A.C.S. Art. 4495b, Sec. 3.07(i).)

Sec. 157.006.  LIMITATION ON BOARD RULES REGARDING DELEGATION. The board shall promote a physician's exercise of professional judgment to decide which medical acts may be safely delegated by not adopting rules containing, except as absolutely necessary, global prohibitions or restrictions on the delegation of medical acts. (V.A.C.S. Art. 4495b, Sec. 1.02 (part).)

Sec. 157.007.  APPLICABILITY OF OTHER LAWS. An act delegated by a physician under this chapter must comply with other applicable laws. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(5)(B)(i), (6)(E), (6)(J)(v); 3.061(b).)

[Sections 157.008-157.050 reserved for expansion]

SUBCHAPTER B. DELEGATION TO ADVANCED PRACTICE NURSES

AND PHYSICIAN ASSISTANTS

Sec. 157.051.  DEFINITIONS. In this subchapter:

(1)  "Advanced practice nurse" has the meaning assigned to that term by Section 301.152. The term includes an advanced nurse practitioner.

(2)  "Carrying out or signing a prescription drug order" means completing a prescription drug order presigned by the delegating physician, or the signing of a prescription by a registered nurse or physician assistant after that person has been designated to the board by the delegating physician as a person delegated to sign a prescription.

(3)  "Physician assistant" means a person who holds a license issued under Chapter 204. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(5)(E)(ii), (iii) (part), (vii), (6)(G)(i), (ii), (iv) (part); New.)

Sec. 157.052.  PRESCRIBING AT SITES SERVING CERTAIN MEDICALLY UNDERSERVED POPULATIONS. (a) In this section:

(1)  "Health manpower shortage area" means:

(A)  an urban or rural area of this state that:

(i)  is not required to conform to the geographic boundaries of a political subdivision but is a rational area for the delivery of health service;

(ii)  the secretary of health and human services determines has a health manpower shortage; and

(iii)  is not reasonably accessible to an adequately served area;

(B)  a population group that the secretary of health and human services determines has a health manpower shortage; or

(C)  a public or nonprofit private medical facility or other facility that the secretary of health and human services determines has a health manpower shortage, as described by 42 U.S.C. Section 254e(a)(1).

(2)  "Medically underserved area" means:

(A)  an area in this state with a medically underserved population;

(B)  an urban or rural area designated by the secretary of health and human services as an area in this state with a shortage of personal health services or a population group designated by the secretary as having a shortage of those services, as described by 42 U.S.C. Section 300e-1(7); or

(C)  an area defined as medically underserved by rules adopted by the Texas Board of Health based on:

(i)  demographics specific to this state;

(ii)  geographic factors that affect access to health care; and

(iii)  environmental health factors.

(3)  "Registered nurse" means a registered nurse recognized by the Board of Nurse Examiners as having the specialized education and training required under Section 301.152.

(4)  "Site serving a medically underserved population" means:

(A)  a site located in a medically underserved area;

(B)  a site located in a health manpower shortage area;

(C)  a clinic designated as a rural health clinic under 42 U.S.C. Section 1395x(aa);

(D)  a public health clinic or a family planning clinic under contract with the Texas Department of Human Services or the Texas Department of Health;

(E)  a site located in an area in which the Texas Department of Health determines there is an insufficient number of physicians providing services to eligible clients of federal, state, or locally funded health care programs; or

(F)  a site that the Texas Department of Health determines serves a disproportionate number of clients eligible to participate in federal, state, or locally funded health care programs.

(b)  After making a determination under this section that a site serves a medically underserved population, the Texas Department of Health shall publish notice of its determination in the Texas Register and provide an opportunity for public comment in the manner provided for a proposed rule under Chapter 2001, Government Code.

(c)  At a site serving a medically underserved population, a physician licensed by the board may delegate to a registered nurse or physician assistant acting under adequate physician supervision the act of administering, providing, or carrying out or signing a prescription drug order, as authorized by the physician through a physician's order, a standing medical order, a standing delegation order, or another order or protocol as defined by the board. The authority of a physician to delegate the carrying out or signing of prescription drug orders is limited to dangerous drugs.

(d)  An advertisement for a site serving a medically underserved population must include the name and business address of the supervising physician for the site.

(e)  Physician supervision is adequate for the purposes of this section if a delegating physician:

(1)  is responsible for the formulation or approval of the physician's order, standing medical order, standing delegation order, or other order or protocol, and periodically reviews the order and the services provided patients under the order;

(2)  is on-site to provide medical direction and consultation at least once every 10 business days during which the advanced practice nurse or physician assistant is on-site providing care;

(3)  receives a daily status report from the advanced practice nurse or physician assistant on any problem or complication encountered; and

(4)  is available through direct telecommunication for consultation, patient referral, or assistance with a medical emergency. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(5)(A), (B)(ii), (D), (E)(i), (iv), (v), (vi), (F), (H); New.)

Sec. 157.053.  PRESCRIBING AT PHYSICIAN PRIMARY PRACTICE SITES. (a) In this section, "primary practice site" means:

(1)  the practice location of a physician at which the physician spends the majority of the physician's time;

(2)  a licensed hospital, a licensed long-term care facility, or a licensed adult care center where both the physician and the physician assistant or advanced practice nurse are authorized to practice;

(3)  a clinic operated by or for the benefit of a public school district to provide care to the students of that district and the siblings of those students, if consent to treatment at that clinic is obtained in a manner that complies with Chapter 32, Family Code;

(4)  the residence of an established patient; or

(5)  another location at which the physician is physically present with the physician assistant or advanced practice nurse.

(b)  At a physician's primary practice site, a physician licensed by the board may delegate to a physician assistant or an advanced practice nurse acting under adequate physician supervision the act of administering, providing, or carrying out or signing a prescription drug order as authorized through a physician's order, a standing medical order, a standing delegation order, or another order or protocol as defined by the board. Providing a drug and carrying out or signing a prescription drug order under this section is limited to dangerous drugs.

(c)  Physician supervision of the carrying out and signing of prescription drug orders must conform to what a reasonable, prudent physician would find consistent with sound medical judgment but may vary with the education and experience of the particular advanced practice nurse or physician assistant. A physician shall provide continuous supervision, but the constant physical presence of the physician is not required.

(d)  An alternate physician may provide appropriate supervision on a temporary basis as defined and established by board rule.

(e)  A physician's authority to delegate the carrying out or signing of a prescription drug order at the physician's primary practice site under this section is limited to:

(1)  three physician assistants or advanced practice nurses or their full-time equivalents practicing at the physician's primary practice site; and

(2)  the patients with whom the physician has established or will establish a physician-patient relationship.

(f)  For purposes of Subsection (e)(2), the physician is not required to see the patient within a specific period. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(6)(A) (part), (C), (D), (F), (G)(iii).)

Sec. 157.054.  PRESCRIBING AT FACILITY-BASED PRACTICE SITES. (a) A physician licensed by the board may delegate, to one or more physician assistants or advanced practice nurses acting under adequate physician supervision whose practice is facility-based at a licensed hospital or licensed long-term care facility, the administration or provision of a drug and the carrying out or signing of a prescription drug order if the physician is:

(1)  the medical director or chief of medical staff of the facility in which the physician assistant or advanced practice nurse practices;

(2)  the chair of the facility's credentialing committee;

(3)  a department chair of a facility department in which the physician assistant or advanced practice nurse practices; or

(4)  a physician who consents to the request of the medical director or chief of medical staff to delegate the carrying out or signing of a prescription drug order at the facility in which the physician assistant or advanced practice nurse practices.

(b)  A physician's authority to delegate under Subsection (a) is limited as follows:

(1)  the delegation must be made under a physician's order, standing medical order, standing delegation order, or another order or protocol developed in accordance with policies approved by the facility's medical staff or a committee of the facility's medical staff as provided by the facility bylaws;

(2)  the delegation must occur in the facility in which the physician is the medical director, the chief of medical staff, the chair of the credentialing committee, or a department chair;

(3)  the delegation may not permit the carrying out or signing of prescription drug orders for the care or treatment of the patients of any other physician without the prior consent of that physician;

(4)  delegation in a long-term care facility must be by the medical director and is limited to the carrying out and signing of prescription drug orders to not more than three advanced practice nurses or physician assistants or their full-time equivalents;

(5)  a physician may not delegate at more than one licensed hospital or more than two long-term care facilities unless approved by the board; and

(6)  the authority of a physician to delegate the carrying out or signing of a prescription drug order under this section is limited to dangerous drugs.

(c)  Physician supervision of the carrying out and signing of prescription drug orders must conform to what a reasonable, prudent physician would find consistent with sound medical judgment but may vary with the education and experience of the particular advanced practice nurse or physician assistant. A physician shall provide continuous supervision, but the constant physical presence of the physician is not required.

(d)  An alternate physician may provide appropriate supervision on a temporary basis as defined and established by board rule. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(6)(A) (part), (C), (D), (H).)

Sec. 157.055.  ORDERS AND PROTOCOLS. A protocol or other order shall be defined in a manner that promotes the exercise of professional judgment by the advanced practice nurse and physician assistant commensurate with the education and experience of that person. Under this section, an order or protocol used by a reasonable and prudent physician exercising sound medical judgment:

(1)  is not required to describe the exact steps that an advanced practice nurse or a physician assistant must take with respect to each specific condition, disease, or symptom; and

(2)  may state the types or categories of medications that may be prescribed or the types or categories of medications that may not be prescribed. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(5)(C), (6)(B).)

Sec. 157.056.  PRESCRIPTION INFORMATION. The following information must be provided on each prescription subject to this subchapter:

(1)  the patient's name and address;

(2)  the drug to be dispensed;

(3)  directions to the patient regarding the taking of the drug and the dosage;

(4)  the intended use of the drug, if appropriate;

(5)  the name, address, and telephone number of the physician;

(6)  the name, address, telephone number, and identification number of the registered nurse or physician assistant completing or signing the prescription drug order;

(7)  the date; and

(8)  the number of refills permitted. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(5)(E)(iii) (part), (6)(G)(iv) (part).)

Sec. 157.057.  ADDITIONAL IMPLEMENTATION METHODS. The board may adopt additional methods to implement:

(1)  a physician's prescription; or

(2)  the delegation of the signing of a prescription under a physician's order, standing medical order, standing delegation order, or other order or protocol. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(5)(E)(iii) (part), (6)(G)(iv) (part).)

Sec. 157.058.  DELEGATION TO CERTIFIED REGISTERED NURSE ANESTHETIST. (a) In a licensed hospital or ambulatory surgical center, a physician may delegate to a certified registered nurse anesthetist the ordering of drugs and devices necessary for the nurse anesthetist to administer an anesthetic or an anesthesia-related service ordered by the physician.

(b)  The physician's order for anesthesia or anesthesia-related services is not required to specify a drug, dose, or administration technique.

(c)  Pursuant to the physician's order and in accordance with facility policies or medical staff bylaws, the nurse anesthetist may select, obtain, and administer those drugs and apply the medical devices appropriate to accomplish the order and maintain the patient within a sound physiological status.

(d)  This section shall be liberally construed to permit the full use of safe and effective medication orders to use the skills and services of certified registered nurse anesthetists. (V.A.C.S. Art. 4495b, Sec. 3.06(d)(6)(I).)

Sec. 157.059.  DELEGATION REGARDING CERTAIN OBSTETRICAL SERVICES. (a) In this section, "provide" means to supply, for a term not to exceed 48 hours, one or more unit doses of a controlled substance for the immediate needs of a patient.

(b)  A physician may delegate to a physician assistant offering obstetrical services and certified by the board as specializing in obstetrics or an advanced practice nurse recognized by the Board of Nurse Examiners as a nurse midwife the act of administering or providing controlled substances to the physician assistant's or nurse midwife's clients during intrapartum and immediate postpartum care.

(c)  The physician may not delegate the use of a prescription sticker or the use or issuance of an official prescription form under Section 481.075, Health and Safety Code.

(d)  The delegation of authority to administer or provide controlled substances under Subsection (b) must be under a physician's order, medical order, standing delegation order, or protocol that requires adequate and documented availability for access to medical care.

(e)  The physician's orders, medical orders, standing delegation orders, or protocols must require the reporting of or monitoring of each client's progress, including complications of pregnancy and delivery and the administration and provision of controlled substances by the nurse midwife or physician assistant to the clients of the nurse midwife or physician assistant.

(f)  The authority of a physician to delegate under this section is limited to:

(1)  three nurse midwives or physician assistants or their full-time equivalents; and

(2)  the designated facility at which the nurse midwife or physician assistant provides care.

(g)  The controlled substance must be supplied in a suitable container that is labeled in compliance with the applicable drug laws and must include:

(1)  the patient's name and address;

(2)  the drug to be provided;

(3)  the name, address, and telephone number of the physician;

(4)  the name, address, and telephone number of the nurse midwife or physician assistant; and

(5)  the date.

(h)  This section does not authorize a physician, physician assistant, or nurse midwife to operate a retail pharmacy as defined under Subtitle J.

(i)  This section authorizes a physician to delegate the act of administering or providing a controlled substance to a nurse midwife or physician assistant but does not require physician delegation of:

(1)  further acts to a nurse midwife; or

(2)  the administration of medications by a physician assistant or registered nurse other than as provided by this section. (V.A.C.S. Art. 4495b, Secs. 3.06(d)(6)(J)(i), (ii), (iii), (iv), (vi), (vii), (viii), (ix).)

Sec. 157.060.  PHYSICIAN LIABILITY FOR DELEGATED ACT. Unless the physician has reason to believe the physician assistant or advanced practice nurse lacked the competency to perform the act, a physician is not liable for an act of a physician assistant or advanced practice nurse solely because the physician signed a standing medical order, a standing delegation order, or another order or protocol authorizing the physician assistant or advanced practice nurse to administer, provide, carry out, or sign a prescription drug order. (V.A.C.S. Art. 4495b, Sec. 3.06(d)(6)(K).)

[Sections 157.061-157.100 reserved for expansion]

SUBCHAPTER C. DELEGATION TO PHARMACISTS

Sec. 157.101.  DELEGATION TO PHARMACIST. (a) In this section, "pharmacist" has the meaning assigned by Section 551.003.

(b)  A physician may delegate to a properly qualified and trained pharmacist acting under adequate physician supervision the performance of specific acts of drug therapy management authorized by the physician through the physician's order, standing medical order, standing delegation order, or other order or protocol as defined by board rule.

(c)  Physician supervision is considered to be adequate for the purposes of this section if a delegating physician:

(1)  is responsible for the formulation or approval of the physician's order, standing medical order, standing delegation order, or other order or protocol and periodically reviews the order or protocol and the services provided to a patient under the order or protocol;

(2)  has established a physician-patient relationship with each patient who is provided drug therapy management by a delegated pharmacist;

(3)  is geographically located so as to be able to be physically present daily to provide medical care and supervision;

(4)  receives, as appropriate, a periodic status report on each patient, including any problem or complication encountered; and

(5)  is available through direct telecommunication for consultation, assistance, and direction.

(d)  This section does not restrict the use of a preestablished health care program or restrict a physician from authorizing the provision of patient care by use of a preestablished health care program if the patient is institutionalized and the care is to be delivered in a licensed hospital with an organized medical staff that has authorized standing delegation orders, standing medical orders, or protocols.

(e)  This section does not limit, expand, or change any provision of law relating to therapeutic drug substitution or administration of medication, including Section 554.004.

(f)  The board by rule shall establish the minimum content of a written order or protocol. The order or protocol may not permit the delegation of medical diagnosis. (V.A.C.S. Art. 4495b, Secs. 3.061(a), (c), (d), (e), (f), (g).)

CHAPTER 158. AUTHORITY OF PHYSICIAN TO PROVIDE

CERTAIN DRUGS AND SUPPLIES

Sec. 158.001. PROVISION OF DRUGS AND OTHER SUPPLIES

Sec. 158.002. PROVISION OF FREE SAMPLES

Sec. 158.003. DISPENSING OF DANGEROUS DRUGS IN CERTAIN

RURAL AREAS

CHAPTER 158. AUTHORITY OF PHYSICIAN TO PROVIDE

CERTAIN DRUGS AND SUPPLIES

Sec. 158.001.  PROVISION OF DRUGS AND OTHER SUPPLIES. (a) A physician licensed under this subtitle may supply a patient with any drug, remedy, or clinical supply necessary to meet the patient's immediate needs.

(b)  This section does not permit a physician to operate a retail pharmacy without complying with Chapter 558. (V.A.C.S. Art. 4495b, Sec. 5.09(a).)

Sec. 158.002.  PROVISION OF FREE SAMPLES. (a) This chapter does not prohibit a physician from supplying a pharmaceutical sample to a patient free of charge if, in the physician's opinion, it is advantageous to the patient, in adhering to a course of treatment prescribed by the physician, to receive the sample.

(b)  A pharmaceutical sample provided under this section must be:

(1)  provided to the physician from the manufacturer free of charge and delivered to a patient free of any direct or indirect charge;

(2)  prepackaged by the original manufacturer and not repackaged; and

(3)  marked on the immediate container to indicate that it is a sample or recorded in records that indicate it is a sample.

(c)  Each state and federal labeling and recordkeeping requirement must be followed and documented. A record maintained under Subsection (b)(3) must be accessible as provided under state and federal law. (V.A.C.S. Art. 4495b, Sec. 5.09(b) (part).)

Sec. 158.003.  DISPENSING OF DANGEROUS DRUGS IN CERTAIN RURAL AREAS. (a) In this section, "reimbursement for cost" means an additional charge, separate from that imposed for the physician's professional services, that includes the cost of the drug product and all other actual costs to the physician incidental to providing the dispensing service. The term does not include a separate fee imposed for the act of dispensing the drug itself.

(b)  This section applies to an area located in a county with a population of 5,000 or less, or in a municipality or an unincorporated town with a population of less than 2,500, that is within a 15-mile radius of the physician's office and in which a pharmacy is not located. This section does not apply to a municipality or an unincorporated town that is adjacent to a municipality with a population of 2,500 or more.

(c)  A physician who practices medicine in an area described by Subsection (b) may:

(1)  maintain a supply of dangerous drugs in the physician's office to be dispensed in the course of treating the physician's patients; and

(2)  be reimbursed for the cost of supplying those drugs without obtaining a license under Chapter 558.

(d)  A physician who dispenses dangerous drugs under Subsection (c) shall:

(1)  comply with each labeling provision under Subtitle J applicable to that class of drugs; and

(2)  oversee compliance with packaging and recordkeeping provisions applicable to that class of drugs.

(e)  A physician who desires to dispense dangerous drugs under this section shall notify both the Texas State Board of Pharmacy and the board that the physician practices in an area described by Subsection (b). The physician may continue to dispense dangerous drugs in the area until the Texas State Board of Pharmacy determines, after notice and hearing, that the physician no longer practices in an area described by Subsection (b). (V.A.C.S. Art. 4495b, Sec. 5.09(c).)

CHAPTER 159. PHYSICIAN-PATIENT COMMUNICATION

Sec. 159.001. DEFINITION

Sec. 159.002. CONFIDENTIAL COMMUNICATIONS

Sec. 159.003. EXCEPTIONS TO CONFIDENTIALITY IN COURT OR

ADMINISTRATIVE PROCEEDINGS

Sec. 159.004. EXCEPTIONS TO CONFIDENTIALITY IN OTHER

SITUATIONS

Sec. 159.005. CONSENT FOR RELEASE OF CONFIDENTIAL

INFORMATION

Sec. 159.006. INFORMATION FURNISHED BY PHYSICIAN

Sec. 159.007. MEDIUM BY WHICH INFORMATION IS PROVIDED

Sec. 159.008. PHYSICIAN FEES FOR INFORMATION

Sec. 159.009. INJUNCTION; CAUSE OF ACTION FOR UNAUTHORIZED

RELEASE OF CONFIDENTIAL INFORMATION

CHAPTER 159. PHYSICIAN-PATIENT COMMUNICATION

Sec. 159.001.  DEFINITION. In this chapter, "patient" means a person who, to receive medical care, consults with or is seen by a physician. (V.A.C.S. Art. 4495b, Sec. 5.08(m).)

Sec. 159.002.  CONFIDENTIAL COMMUNICATIONS. (a) A communication between a physician and a patient, relative to or in connection with any professional services as a physician to the patient, is confidential and privileged and may not be disclosed except as provided by this chapter.

(b)  A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter.

(c)  A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

(d)  The prohibitions of this chapter continue to apply to a confidential communication or record relating to a patient regardless of when the patient receives the services of a physician, except for medical records at least 100 years old that are requested for historical research purposes.

(e)  The privilege of confidentiality may be claimed by the patient or by the physician. The physician may claim the privilege of confidentiality only on behalf of the patient. The physician's authority to claim the privilege is presumed in the absence of evidence to the contrary. (V.A.C.S. Art. 4495b, Secs. 5.08(a), (b), (c), (d), (e), (f).)

Sec. 159.003.  EXCEPTIONS TO CONFIDENTIALITY IN COURT OR ADMINISTRATIVE PROCEEDINGS. (a) An exception to the privilege of confidentiality in a court or administrative proceeding exists:

(1)  in a proceeding brought by a patient against a physician, including:

(A)  a malpractice proceeding; or

(B)  a criminal proceeding or license revocation proceeding in which the patient is a complaining witness and disclosure is relevant to a claim or defense of the physician;

(2)  if the patient or a person authorized to act on the patient's behalf submits a written consent to the release of confidential information as provided by Section 159.005;

(3)  in a proceeding to substantiate and collect on a claim for medical services provided to the patient;

(4)  in a civil action or administrative proceeding, if relevant, brought by the patient or a person on the patient's behalf, if the patient or person is attempting to recover monetary damages for a physical or mental condition including the patient's death;

(5)  in a disciplinary investigation or proceeding conducted under this subtitle, if the board protects the identity of any patient whose medical records are examined other than a patient:

(A)  for whom an exception exists under Subdivision (1); or

(B)  who has submitted written consent to the release of the medical records as provided by Section 159.005;

(6)  in a criminal investigation of a physician in which the board is participating, or assisting in the investigation or proceeding by providing certain medical records obtained from the physician, if the board protects the identity of a patient whose medical records are provided in the investigation or proceeding other than a patient:

(A)  for whom an exception exists under Subdivision (1); or

(B)  who has submitted written consent to the release of the medical records as provided by Section 159.005;

(7)  in an involuntary civil commitment proceeding, proceeding for court-ordered treatment, or probable cause hearing under Chapter 462, 574, or 593, Health and Safety Code;

(8)  if the patient's physical or mental condition is relevant to the execution of a will;

(9)  if the information is relevant to a proceeding brought under Section 159.009;

(10)  in a criminal prosecution in which the patient is a victim, witness, or defendant;

(11)  to satisfy a request for medical records of a deceased or incompetent person under Section 4.01(e), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes); or

(12)  to a court or a party to an action under a court order or court subpoena.

(b)  This section does not authorize the release of confidential information to investigate or substantiate criminal charges against a patient.

(c)  Records or communications are not discoverable under Subsection (a)(10) until the court in which the prosecution is pending makes an in camera determination as to the relevancy of the records or communications or any portion of the records or communications. That determination does not constitute a determination as to the admissibility of the information. (V.A.C.S. Art. 4495b, Sec. 5.08(g) (part).)

Sec. 159.004.  EXCEPTIONS TO CONFIDENTIALITY IN OTHER SITUATIONS. An exception to the privilege of confidentiality in a situation other than a court or administrative proceeding, allowing disclosure of confidential information by a physician, exists only with respect to the following:

(1)  a governmental agency, if the disclosure is required or authorized by law;

(2)  medical or law enforcement personnel, if the physician determines that there is a probability of:

(A)  imminent physical injury to the patient, the physician, or another person; or

(B)  immediate mental or emotional injury to the patient;

(3)  qualified personnel for research or for a management audit, financial audit, or program evaluation, but the personnel may not directly or indirectly identify a patient in any report of the research, audit, or evaluation or otherwise disclose identity in any manner;

(4)  those parts of the medical records reflecting charges and specific services provided if necessary in the collection of fees for medical services provided by a physician, professional association, or other entity qualified to provide or arrange for medical services;

(5)  a person who has the written consent of the patient or other person authorized to act on the patient's behalf for the release of confidential information, as provided by Section 159.005;

(6)  a person, corporation, or governmental agency involved in the payment or collection of fees for medical services provided by a physician;

(7)  another physician or other personnel acting under the direction of the physician who participate in the diagnosis, evaluation, or treatment of the patient;

(8)  an official legislative inquiry regarding state hospitals or state schools, if:

(A)  information or a record that identifies a patient or client is not released for any purpose unless proper consent to the release is given by the patient; and

(B)  only records created by the state hospital or school or its employees are included; or

(9)  health care personnel of a penal or other custodial institution in which the patient is detained if the disclosure is for the sole purpose of providing health care to the patient. (V.A.C.S. Art. 4495b, Sec. 5.08(h).)

Sec. 159.005.  CONSENT FOR RELEASE OF CONFIDENTIAL INFORMATION. (a) Consent for the release of confidential information must be in writing and signed by:

(1)  the patient;

(2)  a parent or legal guardian of the patient if the patient is a minor;

(3)  a legal guardian of the patient if the patient has been adjudicated incapacitated to manage the patient's personal affairs;

(4)  an attorney ad litem appointed for the patient, as authorized by:

(A)  Subtitle C, Title 7, Health and Safety Code;

(B)  Subtitle D, Title 7, Health and Safety Code;

(C)  Chapter XIII, Texas Probate Code; or

(D)  Chapter 107, Family Code; or

(5)  a personal representative of the patient if the patient is deceased.

(b)  The written consent must specify:

(1)  the information or medical records to be covered by the release;

(2)  the reasons or purposes for the release; and

(3)  the person to whom the information is to be released.

(c)  The patient, or other person authorized to consent, is entitled to withdraw the consent to the release of any information. Withdrawal of consent does not affect any information disclosed before the written notice of the withdrawal.

(d)  A patient may not bring an action against a physician for a disclosure made by the physician in good faith reliance on an authorized consent if the physician did not have written notice that the authorization was revoked.

(e)  A person who receives information made confidential by this subtitle may disclose the information only to the extent consistent with the authorized purposes for which consent to release the information is obtained. (V.A.C.S. Art. 4495b, Sec. 5.08(j).)

Sec. 159.006.  INFORMATION FURNISHED BY PHYSICIAN. (a) Unless the physician determines that access to the information would be harmful to the physical, mental, or emotional health of the patient, a physician who receives a written consent for release of information as provided by Section 159.005 shall furnish copies of the requested medical records, or a summary or narrative of the records, including records received from a physician or other health care provider involved in the care or treatment of the patient. The physician shall furnish the information not later than the 30th day after the date of receipt of the request.

(b)  The physician may delete confidential information about another patient or a family member of the patient who has not consented to the release.

(c)  If the physician denies the request, in whole or in part, the physician shall:

(1)  furnish the patient with a written statement, signed and dated, providing the reason for the denial; and

(2)  place a copy of the statement denying the request in the patient's medical records. (V.A.C.S. Art. 4495b, Sec. 5.08(k).)

Sec. 159.007.  MEDIUM BY WHICH INFORMATION IS PROVIDED. A person who is authorized to provide a copy of a record or a summary or narrative of the record to another person under this chapter may provide the copy, summary, or narrative on paper or using any other appropriate medium to which the person who is to provide and the person who is to receive the copy, summary, or narrative agree. (V.A.C.S. Art. 4495b, Sec. 5.08(n).)

Sec. 159.008.  PHYSICIAN FEES FOR INFORMATION. (a) Except as provided by Subsection (b), a physician:

(1)  may charge a reasonable fee, as prescribed by board rule, for copying medical records; and

(2)  is not required to permit examination or copying of the records until the fee is paid unless there is a medical emergency.

(b)  A physician may not charge a fee for copying medical records under Subsection (a) to the extent the fee is prohibited under Subchapter M, Chapter 161, Health and Safety Code. (V.A.C.S. Art. 4495b, Secs. 5.08(o), (p).)

Sec. 159.009.  INJUNCTION; CAUSE OF ACTION FOR UNAUTHORIZED RELEASE OF CONFIDENTIAL INFORMATION. (a) A person aggrieved by a violation of this chapter relating to the unauthorized release of confidential and privileged communications may petition the district court of the county in which the person resides, or in the case of a nonresident of the state, the district court of Travis County, for appropriate injunctive relief. The petition takes precedence over all civil matters on the docketed court except those matters to which equal precedence on the docket is granted by law.

(b)  The aggrieved person may prove a cause of action for civil damages. (V.A.C.S. Art. 4495b, Sec. 5.08(l).)

CHAPTER 160. REPORT AND CONFIDENTIALITY REQUIREMENTS

SUBCHAPTER A. REQUIREMENTS RELATING TO MEDICAL PEER REVIEW

Sec. 160.001. APPLICATION OF FEDERAL LAW

Sec. 160.002. REPORT OF MEDICAL PEER REVIEW

Sec. 160.003. REPORT BY CERTAIN PRACTITIONERS

Sec. 160.004. REPORT REGARDING CERTAIN IMPAIRED PHYSICIANS

Sec. 160.005. REPORT CONFIDENTIAL; COMMUNICATION NOT

PRIVILEGED

Sec. 160.006. BOARD CONFIDENTIALITY

Sec. 160.007. CONFIDENTIALITY RELATING TO MEDICAL PEER REVIEW

COMMITTEE

Sec. 160.008. USE OF CERTAIN CONFIDENTIAL INFORMATION

Sec. 160.009. COMPLIANCE WITH SUBPOENA

Sec. 160.010. IMMUNITY FROM CIVIL LIABILITY

Sec. 160.011. NOT STATE ACTION

Sec. 160.012. DISCIPLINE OR DISCRIMINATION PROHIBITED

Sec. 160.013. EXPUNGEMENT OF REPORT MADE IN BAD FAITH

Sec. 160.014. ACTION BY HEALTH CARE ENTITY NOT PRECLUDED

[Sections 160.015-160.050 reserved for expansion]

SUBCHAPTER B. REQUIREMENTS RELATING TO INSURERS

Sec. 160.051. DEFINITIONS

Sec. 160.052. REPORT FROM INSURER OR PHYSICIAN

Sec. 160.053. CONTENTS OF REPORT; ADDITIONAL INFORMATION

Sec. 160.054. REPORT NOT EVIDENCE

Sec. 160.055. SANCTIONS FOR FAILURE TO REPORT

Sec. 160.056. CIVIL LIABILITY

[Sections 160.057-160.100 reserved for expansion]

SUBCHAPTER C. REQUIREMENTS RELATING TO CERTAIN

CONVICTIONS OR ADJUDICATIONS

Sec. 160.101. REPORT BY COURT TO DEPARTMENT OF PUBLIC

SAFETY

Sec. 160.102. REPORT BY COURT TO BOARD

CHAPTER 160. REPORT AND CONFIDENTIALITY REQUIREMENTS

SUBCHAPTER A. REQUIREMENTS RELATING TO MEDICAL PEER REVIEW

Sec. 160.001.  APPLICATION OF FEDERAL LAW. The Health Care Quality Improvement Act of 1986 (42 U.S.C. Section 11101 et seq.) applies to a professional review action or medical peer review conducted by a professional review body or medical peer review committee in this state on or after September 1, 1987. (V.A.C.S. Art. 4495b, Sec. 5.06(a).)

Sec. 160.002.  REPORT OF MEDICAL PEER REVIEW. (a) A medical peer review committee or health care entity shall report in writing to the board the results and circumstances of a medical peer review that:

(1)  adversely affects the clinical privileges of a physician for a period longer than 30 days;

(2)  accepts a physician's surrender of clinical privileges either:

(A)  while the physician is under an investigation by the medical peer review committee relating to possible incompetence or improper professional conduct; or

(B)  in return for not conducting an investigation or proceeding relating to possible incompetence or improper professional conduct; or

(3)  adversely affects the membership of a physician in a professional society or association, if the medical peer review is conducted by that society or association.

(b)  The duty to report under this section may not be nullified through contract. (V.A.C.S. Art. 4495b, Sec. 5.06(b) (part).)

Sec. 160.003.  REPORT BY CERTAIN PRACTITIONERS. (a) This section applies to:

(1)  a medical peer review committee in this state;

(2)  a physician licensed in this state or otherwise lawfully practicing medicine in this state;

(3)  a physician engaged in graduate medical education or training;

(4)  a medical student;

(5)  a physician assistant or acupuncturist licensed in this state or otherwise lawfully practicing in this state; and

(6)  a physician assistant student or acupuncturist student.

(b)  A person or committee subject to this section shall report relevant information to the board relating to the acts of a physician in this state if, in the opinion of the person or committee, that physician poses a continuing threat to the public welfare through the practice of medicine.

(c)  The duty to report under this section may not be nullified through contract. (V.A.C.S. Art. 4495b, Sec. 5.06(d) (part).)

Sec. 160.004.  REPORT REGARDING CERTAIN IMPAIRED PHYSICIANS. (a) This section applies to:

(1)  a committee of a professional medical society or association operating under written bylaws approved by the policymaking body or governing board of the society or association and composed primarily of physicians;

(2)  the staff of that committee; or

(3)  a district or local intervenor participating in a program established to aid physicians whose ability to practice medicine is impaired, or reasonably believed to be impaired, by drug or alcohol abuse or mental or physical illness.

(b)  A person or committee subject to this section:

(1)  may report to the board or to a health care entity in which an affected physician has clinical privileges the name of the impaired physician together with pertinent information relating to that impairment; and

(2)  shall report to the board and any known health care entity in which the physician has clinical privileges if the person or committee determines that, through the practice of medicine, the physician poses a continuing threat to the public welfare.

(c)  Except as otherwise provided by this subtitle, each proceeding and record of a person described by Subsection (a) is confidential, and any communication made to the person or committee is privileged from disclosure in the manner provided under this subchapter for information submitted by a medical peer review committee. This confidentiality and privilege from disclosure applies to all information developed under this section, including information developed before September 1, 1991. (V.A.C.S. Art. 4495b, Sec. 5.06(e).)

Sec. 160.005.  REPORT CONFIDENTIAL; COMMUNICATION NOT PRIVILEGED. (a) A report made under this subchapter is confidential and is not subject to disclosure under Chapter 552, Government Code.

(b)  In a proceeding brought under this chapter or Chapter 158, 159, or 162, evidence may not be excluded on the ground that it consists of a privileged communication unless it is a communication between attorney and client. (V.A.C.S. Art. 4495b, Sec. 5.06(c).)

Sec. 160.006.  BOARD CONFIDENTIALITY. (a) A record, report, or other information received and maintained by the board under this subchapter or Subchapter B, including any material received or developed by the board during an investigation or hearing, is confidential. The board may disclose this information only:

(1)  in a disciplinary hearing before the board or in a subsequent trial or appeal of a board action or order;

(2)  to the physician licensing or disciplinary authority of another jurisdiction, to a local, state, or national professional medical society or association, or to a medical peer review committee located inside or outside this state that is concerned with granting, limiting, or denying a physician hospital privileges;

(3)  under a court order; or

(4)  to qualified personnel for bona fide research or educational purposes, if personally identifiable information relating to any physician or other individual is first deleted.

(b)  Any known hospital suspension of a physician for a term of 30 days or longer relating to the physician's competence and a disciplinary order of the board against a physician are not confidential.

(c)  A record or report disclosed by the board under this subchapter and a record or report received, maintained, or developed by the board, a medical peer review committee, a member of the committee, or a health care entity are not available for discovery or court subpoena and may not be introduced into evidence in any action for damages, including a medical professional liability action that arises out of the provision of or failure to provide a medical or health care service. (V.A.C.S. Art. 4495b, Secs. 5.06(s)(1) (part), (2) (part), (3).)

Sec. 160.007.  CONFIDENTIALITY RELATING TO MEDICAL PEER REVIEW COMMITTEE. (a) Except as otherwise provided by this subtitle, each proceeding or record of a medical peer review committee is confidential, and any communication made to a medical peer review committee is privileged.

(b)  If a judge makes a preliminary finding that a proceeding or record of a medical peer review committee or a communication made to the committee is relevant to an anticompetitive action, or to a civil rights proceeding brought under 42 U.S.C. Section 1983, the proceeding, record, or communication is not confidential to the extent it is considered relevant.

(c)  A record or proceeding of a medical peer review committee or a written or oral communication made to the committee may be disclosed to:

(1)  another medical peer review committee;

(2)  an appropriate state or federal agency;

(3)  a national accreditation body;

(4)  the board; or

(5)  the state board of registration or licensing of physicians of another state.

(d)  If a medical peer review committee takes action that could result in censure, suspension, restriction, limitation, revocation, or denial of membership or privileges in a health care entity, the affected physician shall be provided a written copy of the recommendation of the medical peer review committee and a copy of the final decision, including a statement of the basis for the decision. Disclosure to the affected physician of confidential peer review committee information relevant to the matter under review does not constitute waiver of the confidentiality requirements established under this subtitle.

(e)  Unless disclosure is required or authorized by law, a record or determination of or a communication to a medical peer review committee is not subject to subpoena or discovery and is not admissible as evidence in any civil judicial or administrative proceeding without waiver of the privilege of confidentiality executed in writing by the committee. The evidentiary privileges created by this subtitle may be invoked by a person or organization in a civil judicial or administrative proceeding unless the person or organization secures a waiver of the privilege executed in writing by the chair, vice chair, or secretary of the affected medical peer review committee.

(f)  If, under Sections 160.008(a) and (b), a person participating in peer review, a medical peer review committee, or a health care entity named as a defendant in a civil action filed as a result of participation in peer review may use otherwise confidential information in the defendant's own defense, a plaintiff in the proceeding may disclose a record or determination of or a communication to a medical peer review committee in rebuttal to information supplied by the defendant.

(g)  A person seeking access to privileged information must plead and prove waiver of the privilege. A member, employee, or agent of a medical peer review committee who provides access to an otherwise privileged communication or record in cooperation with a law enforcement authority in a criminal investigation is not considered to have waived any privilege established under this subtitle. (V.A.C.S. Art. 4495b, Secs. 5.06(g), (h), (i) (part), (j).)

Sec. 160.008.  USE OF CERTAIN CONFIDENTIAL INFORMATION. (a) This section applies to a person participating in peer review, a medical peer review committee, or a health care entity named as a defendant in a civil action filed as a result of participation in peer review.

(b)  A defendant subject to this section may use otherwise confidential information obtained for legitimate internal business and professional purposes, including use in the defendant's own defense. Use of confidential information under this subsection does not constitute a waiver of the confidential and privileged nature of medical peer review committee proceedings.

(c)  A defendant subject to this section may file a counterclaim in a pending action or may prove a cause of action in a subsequent action to recover defense costs, including court costs, attorney's fees, and damages incurred as a result of the civil action, if the plaintiff's original action is determined to be frivolous or brought in bad faith. (V.A.C.S. Art. 4495b, Secs. 5.06(o), (p).)

Sec. 160.009.  COMPLIANCE WITH SUBPOENA. (a) The governing body and medical staff of each health care entity and any other person shall comply with a subpoena for documents or information issued by the board under Section 153.007 or 204.308. The disclosure of documents or information under such a subpoena does not constitute a waiver of the privilege associated with medical peer review committee proceedings.

(b)  Failure to comply with a subpoena under Subsection (a) constitutes grounds for disciplinary action against the person or entity by the appropriate licensing board. (V.A.C.S. Art. 4495b, Sec. 5.06(k).)

Sec. 160.010.  IMMUNITY FROM CIVIL LIABILITY. (a) The following are immune from civil liability:

(1)  a person who, in good faith, reports or furnishes information to a medical peer review committee or the board;

(2)  a member, employee, or agent of the board, a medical peer review committee, or a medical organization committee, or a medical organization district or local intervenor, who takes an action or makes a recommendation within the scope of the functions of the board, committee, or intervenor program, if that member, employee, agent, or intervenor acts without malice and in the reasonable belief that the action or recommendation is warranted by the facts known to that person; and

(3)  a member or employee of the board or any person who assists the board in carrying out its duties or functions provided by law.

(b)  A cause of action does not accrue against a member, agent, or employee of a medical peer review committee or against a health care entity from any act, statement, determination or recommendation made, or act reported, without malice, in the course of medical peer review.

(c)  A person, medical peer review committee, or health care entity that, without malice, participates in medical peer review or furnishes records, information, or assistance to a medical peer review committee or the board is immune from any civil liability arising from that act.

(d)  A person or health care entity required to report to the board may not be found liable in a civil action for failure to report to the board unless the failure was committed knowingly or wilfully, except that the appropriate state licensing body may take action against a licensed person or entity for not reporting as required under this subtitle. (V.A.C.S. Art. 4495b, Secs. 5.06(l), (m), (n), (t).)

Sec. 160.011.  NOT STATE ACTION. The reporting or assistance provided for in this subchapter does not constitute state action on the reporting or assisting medical peer review committee or its parent organization. (V.A.C.S. Art. 4495b, Sec. 5.06(u).)

Sec. 160.012.  DISCIPLINE OR DISCRIMINATION PROHIBITED. (a) A person may not suspend, terminate, or otherwise discipline or discriminate against a person who reports to the board under this subtitle.

(b)  A person has a cause of action against a health care entity, or an owner or employee of a health care entity, that suspends or terminates the employment of the person or otherwise disciplines or discriminates against the person for reporting to the board under Section 160.002, 160.003, or 160.004. The person may recover:

(1)  the greater of:

(A)  actual damages, including damages for mental anguish regardless of whether other injury is shown; or

(B)  $1,000;

(2)  exemplary damages;

(3)  court costs; and

(4)  reasonable attorney's fees.

(c)  In addition to amounts recovered under Subsection (b), a person whose employment is suspended or terminated in violation of this section is entitled to:

(1)  either:

(A)  reinstatement in the person's former position; or

(B)  severance pay in an amount equal to three months of the person's most current salary; and

(2)  compensation for wages lost during the period of suspension or termination.

(d)  A person who brings an action under this section has the burden of proof. It is a rebuttable presumption that the person's employment was suspended or terminated for reporting an act that imperils the welfare of a patient if:

(1)  the person is suspended or terminated not later than the 90th day after the date of making a report in good faith; and

(2)  the board or a court determines that the reported case made the subject of the cause of action was a case in which the person was required to report under Section 160.002, 160.003, or 160.004.

(e)  An action under this section may be brought in the district court of the county in which:

(1)  the plaintiff resides;

(2)  the plaintiff was employed by the defendant; or

(3)  the defendant conducts business. (V.A.C.S. Art. 4495b, Sec. 5.06(q).)

Sec. 160.013.  EXPUNGEMENT OF REPORT MADE IN BAD FAITH. If a court makes a final determination that a report or complaint made to the board was made in bad faith, the complaint shall be expunged from the physician's or applicant's individual historical record. (V.A.C.S. Art. 4495b, Sec. 5.06(r) (part).)

Sec. 160.014.  ACTION BY HEALTH CARE ENTITY NOT PRECLUDED. The filing of a report with the board under this subchapter, or an investigation or disposition by the board, does not in itself preclude any action by a health care entity to suspend, restrict, or revoke the privileges or membership of the physician. (V.A.C.S. Art. 4495b, Sec. 5.06(f) (part).)

[Sections 160.015-160.050 reserved for expansion]

SUBCHAPTER B. REQUIREMENTS RELATING TO INSURERS

Sec. 160.051.  DEFINITIONS. In this subchapter:

(1)  "Commissioner" means the commissioner of insurance.

(2)  "Insurer" means an insurer or other entity that provides medical professional liability insurance covering a physician in this state. (V.A.C.S. Art. 4495b, Sec. 5.05(a) (part); New.)

Sec. 160.052.  REPORT FROM INSURER OR PHYSICIAN. (a) Each insurer shall submit to the board the report or other information described by Section 160.053 at the time prescribed. The insurer shall provide the report or information with respect to:

(1)  a notice of claim letter or complaint filed against an insured in a court, if the notice of claim letter or complaint seeks damages relating to the insured's conduct in providing or failing to provide a medical or health care service; and

(2)  settlement of a claim or lawsuit made on behalf of the insured.

(b)  A physician practicing medicine in this state shall report the information required under Section 160.053 if the physician:

(1)  does not carry or is not covered by medical professional liability insurance; or

(2)  is insured by a nonadmitted carrier or other entity providing medical liability insurance that is not reporting under this subchapter. (V.A.C.S. Art. 4495b, Sec. 5.05(a) (part).)

Sec. 160.053.  CONTENTS OF REPORT; ADDITIONAL INFORMATION. (a) Not later than the 30th day after the date an insurer receives a notice of claim letter or complaint from an insured, the insurer shall furnish to the board:

(1)  the name of the insured and the insured's Texas medical license number;

(2)  the policy number; and

(3)  a copy of the notice of claim letter or complaint.

(b)  The board, in consultation with the commissioner, shall adopt rules for reporting additional information as the board requires. In adopting the rules, the board shall consider other claim reports required under state and federal statutes in determining the information to be reported, form of the report, and frequency of reporting. Additional information the board requires may include:

(1)  the date of a judgment, dismissal, or settlement;

(2)  whether an appeal has been taken and by which party; and

(3)  the amount of the settlement or judgment against the insured. (V.A.C.S. Art. 4495b, Secs. 5.05(b), (c).)

Sec. 160.054.  REPORT NOT EVIDENCE. In the trial of an action against a physician based on the physician's conduct in providing or failing to provide a medical or health care service, a report or other information submitted to the board under this subchapter and the fact that the report or information has been submitted to the board may not be offered in evidence or used in any manner. (V.A.C.S. Art. 4495b, Sec. 5.05(e).)

Sec. 160.055.  SANCTIONS FOR FAILURE TO REPORT. The commissioner may impose sanctions authorized by Section 7, Article 1.10, Insurance Code, on an insurer who fails to report information as required by this subchapter. (V.A.C.S. Art. 4495b, Sec. 5.05(g).)

Sec. 160.056.  CIVIL LIABILITY. A person or entity is not liable for any action taken by the person or entity under this subchapter, and a cause of action does not arise against that person or entity, if the person or entity is:

(1)  an insurer reporting under this subchapter;

(2)  an agent or employee of that insurer; or

(3)  a member, employee, or representative of the board. (V.A.C.S. Art. 4495b, Sec. 5.05(d).)

[Sections 160.057-160.100 reserved for expansion]

SUBCHAPTER C. REQUIREMENTS RELATING TO CERTAIN

CONVICTIONS OR ADJUDICATIONS

Sec. 160.101.  REPORT BY COURT TO DEPARTMENT OF PUBLIC SAFETY. (a) This section applies to a person known to be a physician who is licensed or otherwise lawfully practicing in this state or applying to be licensed and who is convicted of or placed on deferred adjudication for:

(1)  a felony;

(2)  a misdemeanor involving moral turpitude;

(3)  a violation of a state or federal narcotics or controlled substances law; or

(4)  an offense involving fraud or abuse under the Medicare or Medicaid program.

(b)  Not later than the 30th day after the date a person described by Subsection (a) is convicted of an offense listed in that subsection or is placed on deferred adjudication for an offense listed in that subsection, the clerk of the court in which the person is convicted or placed on deferred adjudication shall prepare and forward to the Department of Public Safety the information required by Chapter 60, Code of Criminal Procedure.

(c)  The duty of a clerk to prepare and forward information under Subsection (b) is not affected by:

(1)  any subsequent appeal of the conviction for the offense reported; or

(2)  any subsequent dismissal of proceedings related to the placement on deferred adjudication for the offense reported. (V.A.C.S. Art. 4495b, Sec. 5.07(a).)

Sec. 160.102.  REPORT BY COURT TO BOARD. Not later than the 30th day after the date a court finds that a physician is mentally ill or mentally incompetent, the clerk of the court of record in which the finding is entered shall prepare and forward to the board a certified abstract of record, regardless of whether the adjudication or finding is subsequently withheld or appealed. (V.A.C.S. Art. 4495b, Sec. 5.07(b).)

[Chapter 161 reserved for expansion]

CHAPTER 162. REGULATION BY BOARD OF CERTAIN NONPROFIT

HEALTH CORPORATIONS

Sec. 162.001. CERTIFICATION BY BOARD

Sec. 162.002. LIMITATION ON PHYSICIAN FEES

Sec. 162.003. REFUSAL TO CERTIFY; REVOCATION

CHAPTER 162. REGULATION BY BOARD OF CERTAIN NONPROFIT

HEALTH CORPORATIONS

Sec. 162.001.  CERTIFICATION BY BOARD. (a) The board by rule shall certify a health organization that:

(1)  applies for certification on a form approved by the board; and

(2)  presents proof satisfactory to the board that the organization meets the requirements of Subsection (b) or (c).

(b)  The board shall approve and certify a health organization that:

(1)  is a nonprofit corporation under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) organized to:

(A)  conduct scientific research and research projects in the public interest in the field of medical science, medical economics, public health, sociology, or a related area;

(B)  support medical education in medical schools through grants and scholarships;

(C)  improve and develop the capabilities of individuals and institutions studying, teaching, and practicing medicine;

(D)  deliver health care to the public; or

(E)  instruct the general public in medical science, public health, and hygiene and provide related instruction useful to individuals and beneficial to the community;

(2)  is organized and incorporated solely by persons licensed by the board; and

(3)  has as its directors and trustees persons who are:

(A)  licensed by the board; and

(B)  actively engaged in the practice of medicine.

(c)  The board shall certify a health organization to contract with or employ physicians licensed by the board if the organization:

(1)  is a nonprofit corporation under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) and Section 501(c)(3), Internal Revenue Code of 1986 (26 U.S.C. Sec. 501(c)(3)); and

(2)  is organized and operated as:

(A)  a migrant, community, or homeless health center under the authority of and in compliance with 42 U.S.C. Section 254b or 254c; or

(B)  a federally qualified health center under 42 U.S.C. Section 1396d(l)(2)(B). (V.A.C.S. Art. 4495b, Secs. 5.01(a), (b).)

Sec. 162.002.  LIMITATION ON PHYSICIAN FEES. A physician who provides professional medical services for a health organization certified under Section 162.001(c) shall provide those services free of charge, or at a reduced fee commensurate with the patient's ability to pay, in compliance with 42 U.S.C. Section 254b or 254c. (V.A.C.S. Art. 4495b, Sec. 5.01(c).)

Sec. 162.003.  REFUSAL TO CERTIFY; REVOCATION. On a determination that a health organization is established, organized, or operated in violation of or with the intent to violate this subtitle, the board:

(1)  may refuse to certify the health organization on application for certification by the organization under Section 162.001; and

(2)  shall revoke a certification made under Section 162.001 to that organization. (V.A.C.S. Art. 4495b, Secs. 5.01(d), (e).)

CHAPTER 163. DISTRICT REVIEW COMMITTEES

Sec. 163.001. DEFINITIONS

Sec. 163.002. DESIGNATION OF DISTRICTS

Sec. 163.003. COMMITTEE

Sec. 163.004. BOARD RULES REGARDING COMMITTEES

Sec. 163.005. COMMITTEE AUTHORITY LIMITED

CHAPTER 163. DISTRICT REVIEW COMMITTEES

Sec. 163.001.  DEFINITIONS. In this chapter:

(1)  "Committee" means a district review committee.

(2)  "District" means a district established under Section 163.002. (V.A.C.S. Art. 4495b, Sec. 5.03(a).)

Sec. 163.002.  DESIGNATION OF DISTRICTS. (a) The board shall designate:

(1)  the number of districts; and

(2)  the geographic area of a district composed of various counties.

(b)  The board may revise, as it considers appropriate and after a public hearing, the number of districts and the designation of the counties located in a district.

(c)  If the number of districts or a county's designation in a district is revised, the board shall follow the same procedure that applied to the initial designation. (V.A.C.S. Art. 4495b, Sec. 5.03(b).)

Sec. 163.003.  COMMITTEE. (a) A committee consists of five members appointed by the governor, as follows:

(1)  three physician members who are doctors of medicine (M.D.);

(2)  one physician member who is a doctor of osteopathic medicine (D.O.); and

(3)  one public member.

(b)  A member must:

(1)  have resided in the district for longer than three years before the date of the appointment; and

(2)  meet the qualifications for:

(A)  physician members of the board under Section 152.002, if the member is a physician member; or

(B)  public members of the board under Section 152.002, if the member is a public member.

(c)  A member of the committee serves a six-year term.

(d)  If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired term.

(e)  A member of the committee is entitled to receive a per diem for actual duty in the same manner provided for board members.

(f)  A member of a committee is subject to law and the rules of the board as if the committee member were a member of the board, except that a committee member is not subject to Chapter 572, Government Code. (V.A.C.S. Art. 4495b, Secs. 5.03(c), (d), (e), (f), (g).)

Sec. 163.004.  BOARD RULES REGARDING COMMITTEES. The board may adopt rules reasonably necessary to implement this chapter relating to:

(1)  per diem and expenses of committee members;

(2)  matters to be heard or considered by a committee;

(3)  the conduct of committee hearings;

(4)  the authority the board may delegate to a committee; and

(5)  other matters regarding the actions, duties, and responsibilities of a committee. (V.A.C.S. Art. 4495b, Sec. 5.03(h).)

Sec. 163.005.  COMMITTEE AUTHORITY LIMITED. A committee may not finally dispose of a complaint against a person licensed by the board or issue a final order or rule. The board shall finally dispose of each complaint against a person licensed by the board and has the sole authority to issue final orders and rules. (V.A.C.S. Art. 4495b, Sec. 5.03(i).)

CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 164.001. DISCIPLINARY AUTHORITY OF BOARD; METHODS

OF DISCIPLINE

Sec. 164.002. BOARD DISPOSITION OF COMPLAINTS, CONTESTED

CASES, AND OTHER MATTERS

Sec. 164.003. INFORMAL PROCEEDINGS

Sec. 164.004. COMPLIANCE WITH DUE PROCESS REQUIREMENTS

Sec. 164.005. INITIATION OF CHARGES; FORMAL COMPLAINT

Sec. 164.006. SERVICE OF NOTICE

Sec. 164.007. ADMINISTRATIVE HEARINGS; CONFIDENTIALITY

ISSUES

Sec. 164.008. RIGHT TO COUNSEL

Sec. 164.009. JUDICIAL REVIEW

Sec. 164.010. MONITORING OF LICENSE HOLDER

Sec. 164.011. LICENSE STATUS PENDING APPEAL

[Sections 164.012-164.050 reserved for expansion]

SUBCHAPTER B. LICENSE DENIAL AND DISCIPLINARY ACTIONS

Sec. 164.051. GROUNDS FOR DENIAL OR DISCIPLINARY ACTION

Sec. 164.052. PROHIBITED PRACTICES BY PHYSICIAN OR LICENSE

APPLICANT

Sec. 164.053. UNPROFESSIONAL OR DISHONORABLE CONDUCT

Sec. 164.054. ADDITIONAL REQUIREMENTS REGARDING DRUG

RECORDS

Sec. 164.055. PROHIBITED ACTS REGARDING ABORTION

Sec. 164.056. PHYSICAL OR MENTAL EXAMINATION; HEARING

Sec. 164.057. REQUIRED SUSPENSION OR REVOCATION OF LICENSE

FOR CERTAIN FELONY OFFENSES

Sec. 164.058. REQUIRED SUSPENSION OF LICENSE OF INCARCERATED

PHYSICIAN

Sec. 164.059. TEMPORARY SUSPENSION

Sec. 164.060. REPORT OF BOARD ACTIONS

Sec. 164.061. SURRENDER OF LICENSE

[Sections 164.062-164.100 reserved for expansion]

SUBCHAPTER C. PROBATION OF LICENSE

Sec. 164.101. PROBATION

Sec. 164.102. PERSONS INELIGIBLE FOR PROBATION

Sec. 164.103. RESCISSION OF PROBATION

[Sections 164.104-164.150 reserved for expansion]

SUBCHAPTER D. LICENSE REINSTATEMENT

Sec. 164.151. APPLICATION FOR LICENSE REINSTATEMENT

Sec. 164.152. APPLICATION PERIOD

Sec. 164.153. CERTAIN PERSONS INELIGIBLE FOR REINSTATEMENT

Sec. 164.154. EFFECT OF LICENSE REINSTATEMENT ON CERTAIN

PROSECUTIONS OR PENALTIES

[Sections 164.155-164.200 reserved for expansion]

SUBCHAPTER E. OTHER ACTIONS

Sec. 164.201. REVIEW BY BOARD IF THREE OR MORE MALPRACTICE

CLAIMS

Sec. 164.202. REHABILITATION ORDER

Sec. 164.203. EFFECT OF REHABILITATION ORDER

Sec. 164.204. AUDIT OF REHABILITATION ORDER

CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 164.001.  DISCIPLINARY AUTHORITY OF BOARD; METHODS OF DISCIPLINE. (a) Except for good cause shown, the board, on determining a violation of this subtitle or a board rule or for any cause for which the board may refuse to admit a person to its examination or to issue or renew a license, including an initial conviction or the initial finding of the trier of fact of guilt of a felony or misdemeanor involving moral turpitude, shall:

(1)  revoke or suspend a license;

(2)  place on probation a person whose license is suspended; or

(3)  reprimand a license holder.

(b)  Except as otherwise provided by Sections 164.057 and 164.058, the board, on determining that a person committed an act described by Sections 164.051 through 164.054, shall enter an order to:

(1)  deny the person's application for a license or other authorization to practice medicine;

(2)  administer a public reprimand;

(3)  suspend, limit, or restrict the person's license or other authorization to practice medicine, including:

(A)  limiting the practice of the person to or excluding one or more specified activities of medicine; or

(B)  stipulating periodic board review;

(4)  revoke the person's license or other authorization to practice medicine;

(5)  require the person to submit to care, counseling, or treatment of physicians designated by the board as a condition for:

(A)  the issuance or renewal of a license or other authorization to practice medicine; or

(B)  continued practice under a license;

(6)  require the person to participate in an educational or counseling program prescribed by the board;

(7)  require the person to practice under the direction of a physician designated by the board for a specified period;

(8)  require the person to perform public service considered appropriate by the board; or

(9)  assess an administrative penalty against the person as provided by Section 165.001.

(c)  Notwithstanding Subsection (b), the board shall revoke, suspend, or deny a physician's license if the board determines that, through the practice of medicine, the physician poses a continuing threat to the public welfare.

(d)  In addition to any other disciplinary action authorized by this section, the board may issue a written reprimand to a license holder who violates this subtitle or require that a license holder who violates this subtitle participate in continuing education programs. The board shall specify the continuing education programs to be attended and the number of hours that must be completed by the license holder to fulfill the requirements of this subsection.

(e)  For any sanction imposed under this chapter as the result of a hearing conducted by the State Office of Administrative Hearings, that office shall use the schedule of sanctions adopted by board rule. (V.A.C.S. Art. 4495b, Secs. 4.01(a), 4.12(a), (b), (c), (e).)

Sec. 164.002.  BOARD DISPOSITION OF COMPLAINTS, CONTESTED CASES, AND OTHER MATTERS. (a)  Unless precluded by law, the board may dispose of any complaint or matter relating to this subtitle or of any contested case by a stipulation, agreed settlement, or consent order.

(b)  The board shall dispose of a complaint, contested case, or other matter in writing. If appropriate, the affected physician shall sign the writing.

(c)  An agreed disposition is a disciplinary order for purposes of reporting under this subtitle and of administrative hearings and proceedings by state and federal regulatory agencies regarding the practice of medicine. An agreed disposition is public information.

(d)  In civil litigation, an agreed disposition is a settlement agreement under Rule 408, Texas Rules of Evidence. This subsection does not apply to a license holder who has previously entered into an agreed disposition with the board of a different disciplinary matter or whose license the board is seeking to revoke. (V.A.C.S. Art. 4495b, Secs. 4.02(h), (i).)

Sec. 164.003.  INFORMAL PROCEEDINGS. (a)  The board by rule shall adopt procedures governing:

(1)  informal disposition of a contested case under Section 2001.056, Government Code; and

(2)  informal proceedings held in compliance with Section 2001.054, Government Code.

(b)  Rules adopted under this section must require that:

(1)  the complainant and the license holder be provided an opportunity to be heard;

(2)  the board's legal counsel or a representative of the attorney general be present to advise the board or the board's staff; and

(3)  a member of the board's staff at the meeting present to the board's representative the facts the staff reasonably believes it could prove by competent evidence or qualified witnesses at a hearing.

(c)  An affected physician is entitled to:

(1)  reply to the staff's presentation; and

(2)  present the facts the physician reasonably believes the physician could prove by competent evidence or qualified witnesses at a hearing.

(d)  After ample time is given for the presentations, the board representative shall recommend that the investigation be closed or shall attempt to mediate the disputed matters and make a recommendation regarding the disposition of the case in the absence of a hearing under applicable law concerning contested cases. (V.A.C.S. Art. 4495b, Sec. 4.025.)

Sec. 164.004.  COMPLIANCE WITH DUE PROCESS REQUIREMENTS. (a)  Except in the case of a suspension under Section 164.059 or under the terms of an agreement between the board and a license holder, a revocation, suspension, involuntary modification, or other disciplinary action relating to a license is not effective unless, before board proceedings are instituted:

(1)  the board gives notice, in a manner consistent with the notice requirements under Section 154.053, to the affected license holder of the facts or conduct alleged to warrant the intended action; and

(2)  the license holder is given an opportunity to show compliance with all requirements of law for the retention of the license, at the license holder's option, either in writing or through personal appearance at an informal meeting with one or more representatives of the board.

(b)  If the license holder chooses to personally appear and an informal meeting is held, the board's staff and the board's representatives are subject to the ex parte provisions of Chapter 2001, Government Code, with regard to contacts with board members and administrative law judges concerning the case. (V.A.C.S. Art. 4495b, Secs. 4.02(m), (n).)

Sec. 164.005.  INITIATION OF CHARGES; FORMAL COMPLAINT. (a)  In this section, "formal complaint" means a written statement made by a credible person under oath that is filed and presented by a board representative charging a person with having committed an act that, if proven, could affect the legal rights or privileges of a license holder or other person under the board's jurisdiction.

(b)  Unless otherwise specified, a proceeding under this subtitle or other applicable law and a charge against a license holder may be instituted by an authorized representative of the board.

(c)  A charge must be in the form of a written affidavit that:

(1)  is filed with the board's records custodian or assistant records custodian; and

(2)  details the nature of the charge as required by this subtitle or other applicable law.

(d)  The board president or a designee shall ensure a copy of the charges is served on the respondent or the respondent's counsel of record.

(e)  The president or designee shall notify the State Office of Administrative Hearings of a formal complaint.

(f)  A formal complaint must allege with reasonable certainty each specific act relied on by the board to constitute a violation of a specific statute or rule. The formal complaint must be specific enough to:

(1)  enable a person of common understanding to know what is meant by the formal complaint; and

(2)  give the person who is the subject of the formal complaint notice of each particular act alleged to be a violation of a specific statute or rule.

(g)  The board shall adopt rules to promote discovery by each party to a contested case. (V.A.C.S. Art. 4495b, Sec. 4.03.)

Sec. 164.006.  SERVICE OF NOTICE. (a) Service of process to notify the respondent of a hearing about the charges against the person must be served in accordance with Chapter 2001, Government Code.

(b)  If service described by Subsection (a) is impossible or cannot be effected, the board shall publish once a week for two successive weeks a notice of the hearing in a newspaper published in the county of the last known place of practice in this state of the person, if known.

(c)  If the license holder is not currently practicing in this state as evidenced by information in the board files, or if the last county of practice is unknown, the notice shall be published in a newspaper in Travis County.

(d)  If publication of notice is used, the date of hearing may not be earlier than the 10th day after the date of the last publication. (V.A.C.S. Art. 4495b, Sec. 4.04.)

Sec. 164.007.  ADMINISTRATIVE HEARINGS; CONFIDENTIALITY ISSUES. (a)  The board by rule shall adopt procedures governing formal disposition of a contested case under Chapter 2001, Government Code. A formal hearing shall be conducted by an administrative law judge employed by the State Office of Administrative Hearings. After receiving the administrative law judge's findings of fact and conclusions of law, the board shall determine the charges on the merits.

(b)  Notwithstanding this subtitle or other law, the board may employ, retain, and compensate:

(1)  attorneys, consultants, and other professionals as necessary and appropriate to serve as board consultants or special counsel to prosecute complaints filed with the board on behalf of the hearings division and investigating division; and

(2)  court reporters and other staff necessary to prepare for or represent the board in the hearings authorized by this section.

(c)  Each complaint, adverse report, investigation file, other investigation report, and other investigative information in the possession of or received or gathered by the board or its employees or agents relating to a license holder, an application for license, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or its employees or agents involved in discipline of a license holder.

(d)  Not later than the 30th day after the date of receipt of a written request from a license holder who is the subject of a formal complaint initiated and filed under Section 164.005 or from the license holder's counsel of record, and subject to any other privilege or restriction set forth by rule, statute, or legal precedent, and unless good cause is shown for delay, the board shall provide the license holder with access to all information in its possession that the board intends to offer into evidence in presenting its case in chief at the contested hearing on the complaint. The board is not required to provide:

(1)  a board investigative report or memorandum;

(2)  the identity of a nontestifying complainant; or

(3)  attorney-client communications, attorney work product, or other materials covered by a privilege recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence.

(e)  Furnishing information under Subsection (d) does not constitute a waiver of privilege or confidentiality under this subtitle or other applicable law.

(f)  Investigative information in the possession of the board or an employee or agent relating to discipline of a license holder may be disclosed to:

(1)  the appropriate licensing authority of:

(A)  another state; or

(B)  a territory or country in which the license holder is licensed or has applied for a license; or

(2)  a medical peer review committee reviewing an application for privileges or the qualifications of the license holder with respect to retaining privileges.

(g)  If investigative information in the possession of the board or its employees or agents indicates that a crime may have been committed, the board shall report the information to the appropriate law enforcement agency.

(h)  The board shall cooperate with and assist a law enforcement agency conducting a criminal investigation of a license holder by providing information that is relevant to the criminal investigation to the investigating agency. Information disclosed by the board to an investigative agency remains confidential and may not be disclosed by the investigating agency except as necessary to further the investigation. (V.A.C.S. Art. 4495b, Secs. 4.05(a), (b), (c) (part).)

Sec. 164.008.  RIGHT TO COUNSEL. In a hearing involving a disciplinary action under this subtitle, the respondent is entitled to appear personally, by counsel, or both. (V.A.C.S. Art. 4495b, Sec. 4.06.)

Sec. 164.009.  JUDICIAL REVIEW. A person whose license to practice medicine has been revoked or who is subject to other disciplinary action by the board may appeal to a Travis County district court not later than the 30th day after the date the board decision is final. (V.A.C.S. Art. 4495b, Sec. 4.09.)

Sec. 164.010.  MONITORING OF LICENSE HOLDER. (a) The board by rule shall develop a system to monitor compliance with the requirements of this subtitle of license holders who are the subject of disciplinary action.

(b)  Rules adopted under this section must include procedures to:

(1)  monitor for compliance a license holder ordered by the board to perform certain acts; and

(2)  identify and monitor license holders who are the subject of disciplinary action and who present a continuing threat to the public welfare through the practice of medicine. (V.A.C.S. Art. 4495b, Sec. 4.11(a).)

Sec. 164.011.  LICENSE STATUS PENDING APPEAL. (a)  The board's decision on a disciplinary matter may not be enjoined or stayed except on application to the appropriate court after notice to the board.

(b)  A person may not practice medicine or deliver health care services in violation of a disciplinary order or action of the board while an appeal is pending unless the order or action is stayed by the appropriate court.

(c)  A stay may not be granted if the license holder's continued practice presents a danger to the public. A stay may not be granted for a term that exceeds 120 days. (V.A.C.S. Art. 4495b, Sec. 4.08.)

[Sections 164.012-164.050 reserved for expansion]

SUBCHAPTER B. LICENSE DENIAL AND DISCIPLINARY ACTIONS

Sec. 164.051.  GROUNDS FOR DENIAL OR DISCIPLINARY ACTION. (a)  The board may refuse to admit a person to its examination or refuse to issue a license to practice medicine and may take disciplinary action against a person if the person:

(1)  commits an act prohibited under Section 164.052;

(2)  is convicted of:

(A)  a felony; or

(B)  a misdemeanor involving moral turpitude;

(3)  commits or attempts to commit a direct or indirect violation of a rule adopted under this subtitle, either as a principal, accessory, or accomplice;

(4)  is unable to practice medicine with reasonable skill and safety to patients because of:

(A)  illness;

(B)  drunkenness;

(C)  excessive use of drugs, narcotics, chemicals, or another substance; or

(D)  a mental or physical condition;

(5)  is found by a court judgment to be of unsound mind;

(6)  fails to practice medicine in an acceptable professional manner consistent with public health and welfare;

(7)  is removed, suspended, or is subject to disciplinary action taken by the person's peers in a local, regional, state, or national professional medical association or society, or is disciplined by a licensed hospital or medical staff of a hospital, including removal, suspension, limitation of hospital privileges, or other disciplinary action, if the board finds that the action:

(A)  was based on unprofessional conduct or professional incompetence that was likely to harm the public; and

(B)  was appropriate and reasonably supported by evidence submitted to the board;

(8)  is subject to repeated or recurring meritorious health care liability claims that in the board's opinion evidence professional incompetence likely to injure the public; or

(9)  holds a license to practice medicine subject to disciplinary action by another state, or subject to disciplinary action by the uniformed services of the United States, based on acts by the person that are prohibited under Section 164.052 or are similar to acts described by this subsection.

(b)  Action taken by a professional medical association, society, or hospital medical staff under Subsection (a)(7) does not constitute state action.

(c)  A certified copy of the record of another state that takes action described by Subsection (a)(9) is conclusive evidence of that action. (V.A.C.S. Art. 4495b, Sec. 3.08 (part).)

Sec. 164.052.  PROHIBITED PRACTICES BY PHYSICIAN OR LICENSE APPLICANT. (a)  A physician or an applicant for a license to practice medicine commits a prohibited practice if that person:

(1)  submits to the board a false or misleading statement, document, or certificate in an application for a license;

(2)  presents to the board a license, certificate, or diploma that was illegally or fraudulently obtained;

(3)  commits fraud or deception in taking or passing an examination;

(4)  uses alcohol or drugs in an intemperate manner that, in the board's opinion, could endanger a patient's life;

(5)  commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053, or injure the public;

(6)  uses an advertising statement that is false, misleading, or deceptive;

(7)  advertises professional superiority or the performance of professional service in a superior manner if that advertising is not readily subject to verification;

(8)  purchases, sells, barters, or uses, or offers to purchase, sell, barter, or use, a medical degree, license, certificate, or diploma, or a transcript of a license, certificate, or diploma in or incident to an application to the board for a license to practice medicine;

(9)  alters, with fraudulent intent, a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma;

(10)  uses a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma that has been:

(A)  fraudulently purchased or issued;

(B)  counterfeited; or

(C)  materially altered;

(11)  impersonates or acts as proxy for another person in an examination required by this subtitle for a medical license;

(12)  engages in conduct that subverts or attempts to subvert an examination process required by this subtitle for a medical license;

(13)  impersonates a physician or permits another to use the person's license or certificate to practice medicine in this state;

(14)  directly or indirectly employs a person whose license to practice medicine has been suspended, canceled, or revoked;

(15)  associates in the practice of medicine with a person:

(A)  whose license to practice medicine has been suspended, canceled, or revoked; or

(B)  who has been convicted of the unlawful practice of medicine in this state or elsewhere;

(16)  performs or procures a criminal abortion, aids or abets in the procuring of a criminal abortion, attempts to perform or procure a criminal abortion, or attempts to aid or abet the performance or procurement of a criminal abortion; or

(17)  directly or indirectly aids or abets the practice of medicine by a person, partnership, association, or corporation that is not licensed to practice medicine by the board.

(b)  For purposes of Subsection (a)(12), conduct that subverts or attempts to subvert the medical licensing examination process includes, as prescribed by board rules, conduct that violates:

(1)  the security of the examination materials;

(2)  the standard of test administration; or

(3)  the accreditation process. (V.A.C.S. Art. 4495b, Sec. 3.08 (part).)

Sec. 164.053.  UNPROFESSIONAL OR DISHONORABLE CONDUCT. (a)  For purposes of Section 164.052(a)(5), unprofessional or dishonorable conduct likely to deceive or defraud the public includes conduct in which a physician:

(1)  commits an act that violates the laws of this state if the act is connected with the physician's practice of medicine;

(2)  fails to keep complete and accurate records of purchases and disposals of:

(A)  drugs listed in Chapter 481, Health and Safety Code; or

(B)  controlled substances scheduled in the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);

(3)  writes prescriptions for or dispenses to a person who:

(A)  is known to be an abuser of narcotic drugs, controlled substances, or dangerous drugs; or

(B)  the physician should have known was an abuser of narcotic drugs, controlled substances, or dangerous drugs;

(4)  writes false or fictitious prescriptions for:

(A)  dangerous drugs as defined by Chapter 483, Health and Safety Code; or

(B)  controlled substances scheduled in Chapter 481, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);

(5)  prescribes or administers a drug or treatment that is nontherapeutic in nature or nontherapeutic in the manner the drug or treatment is administered or prescribed;

(6)  prescribes, administers, or dispenses in a manner inconsistent with public health and welfare:

(A)  dangerous drugs as defined by Chapter 483, Health and Safety Code; or

(B)  controlled substances scheduled in Chapter 481, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);

(7)  persistently or flagrantly overcharges or overtreats patients;

(8)  fails to supervise adequately the activities of those acting under the supervision of the physician; or

(9)  delegates professional medical responsibility or acts to a person if the delegating physician knows or has reason to know that the person is not qualified by training, experience, or licensure to perform the responsibility or acts.

(b)  A complaint, indictment, or conviction of a violation of law is not necessary for the enforcement of Subsection (a)(1). Proof of the commission of the act while in the practice of medicine or under the guise of the practice of medicine is sufficient for the board's action.

(c)  Subsection (a)(3) does not apply to a person the physician is treating for:

(1)  the person's use of narcotics after the physician notifies the board in writing of the name and address of the person being treated; or

(2)  intractable pain under the Intractable Pain Treatment Act (Article 4495c, Revised Statutes). (V.A.C.S. Art. 4495b, Sec. 3.08(4) (part).)

Sec. 164.054.  ADDITIONAL REQUIREMENTS REGARDING DRUG RECORDS. (a) Each physician shall keep a record of the physician's purchase and disposal of drugs and controlled substances described by Section 164.053(a)(2) that includes:

(1)  the date of purchase and the date of the sale or disposal of the drugs and controlled substances by the physician;

(2)  the name and address of the person receiving the drugs or controlled substances; and

(3)  the reason for the disposing or dispensing of the drugs or controlled substances to the person.

(b)  Failure to keep the records required by this section for a reasonable time constitutes grounds for revoking, canceling, suspending, or placing on probation the physician's license.

(c)  The board or its representative may enter and inspect a physician's place of practice during reasonable business hours to:

(1)  verify the accuracy of the records; and

(2)  perform an inventory of the prescription drugs on hand. (V.A.C.S. Art. 4495b, Sec. 3.08(4) (part).)

Sec. 164.055.  PROHIBITED ACTS REGARDING ABORTION. (a) The board may take an appropriate disciplinary action against a physician who violates Section 170.002, Health and Safety Code. The board may refuse to admit to examination or refuse to issue a license or renewal license to a person who violates that section.

(b)  The sanctions provided by Subsection (a) are in addition to any other grounds for refusal to admit persons to examination under this subtitle or to issue a license or renew a license to practice medicine under this subtitle. The criminal penalties provided by Section 165.152 do not apply to a violation of Section 170.002, Health and Safety Code. (V.A.C.S. Art. 4495b, Secs. 4.011(c), (e).)

Sec. 164.056.  PHYSICAL OR MENTAL EXAMINATION; HEARING. (a) In enforcing Section 164.051(a)(4), the board, on probable cause, shall request the affected physician to submit to a mental or physical examination by physicians designated by the board.

(b)  If the affected physician refuses to submit to the examination, the board shall issue an order requiring the physician to show cause why the physician should not be required to submit to the examination and shall schedule a hearing on the order not later than the 30th day after the date on which notice is served on the physician. The physician shall be notified by either personal service or certified mail with return receipt requested.

(c)  At the hearing, the physician and the physician's attorney are entitled to present testimony and other evidence showing that the physician should not be required to submit to the examination. After a hearing, the board shall issue an order either requiring the physician to submit to the examination or withdrawing the request for examination. (V.A.C.S. Art. 4495b, Sec. 3.08(16) (part).)

Sec. 164.057.  REQUIRED SUSPENSION OR REVOCATION OF LICENSE FOR CERTAIN FELONY OFFENSES. (a) The board shall suspend a physician's license on proof that the physician has been initially convicted of a felony or subject to an initial finding by the trier of fact of guilt of a felony under:

(1)  Chapter 481 or 483, Health and Safety Code;

(2)  Section 485.033, Health and Safety Code; or

(3)  the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.).

(b)  On final conviction for a felony described by Subsection (a), the board shall revoke the physician's license. (V.A.C.S. Art. 4495b, Sec. 4.01(b).)

Sec. 164.058.  REQUIRED SUSPENSION OF LICENSE OF INCARCERATED PHYSICIAN. Regardless of the offense, the board shall suspend the license of a physician serving a prison term in a state or federal penitentiary during the term of the incarceration. (V.A.C.S. Art. 4495b, Sec. 4.01(c).)

Sec. 164.059.  TEMPORARY SUSPENSION. (a) The president of the board, with board approval, shall appoint a three-member disciplinary panel consisting of board members to determine whether a person's license to practice medicine should be temporarily suspended.

(b)  If the disciplinary panel determines from the evidence or information presented to the panel that a person licensed to practice medicine would, by the person's continuation in practice, constitute a continuing threat to the public welfare, the disciplinary panel shall temporarily suspend the license of that person.

(c)  A license may be suspended under this section without notice or hearing on the complaint if:

(1)  institution of proceedings for a hearing before the board is initiated simultaneously with the temporary suspension; and

(2)  a hearing is held under Chapter 2001, Government Code, and this subtitle as soon as possible.

(d)  Notwithstanding Chapter 551, Government Code, the disciplinary panel may hold a meeting by telephone conference call if immediate action is required and convening of the panel at one location is inconvenient for any member of the disciplinary panel. (V.A.C.S. Art. 4495b, Sec. 4.13.)

Sec. 164.060.  REPORT OF BOARD ACTIONS. (a) Not later than the first working day after the date a board order is issued taking disciplinary action against a physician, the board shall report the action to the appropriate health care facilities and hospitals, if known by the board.

(b)  Not later than the 30th day after the date the board takes disciplinary action against a physician, the board shall report that action, in writing, to:

(1)  the appropriate health care facilities and hospitals, if not previously notified in writing;

(2)  professional societies of physicians in this state;

(3)  the entity responsible for the administration of Medicare and Medicaid in this state;

(4)  the United States Secretary of Health and Human Services or the secretary's designee; and

(5)  the complainant.

(c)  If the board, during its review of a complaint against a physician, discovers an act or omission that may constitute a felony, a misdemeanor involving moral turpitude, a violation of state or federal narcotics or controlled substance laws, or an offense involving fraud or abuse under the Medicare or Medicaid programs, the board shall immediately report that act or omission to the appropriate prosecuting authority.

(d)  Notwithstanding Subsection (c), the board may exercise discretion in the case of an impaired physician who is actively participating in board-approved or sanctioned care, counseling, or treatment. (V.A.C.S. Art. 4495b, Sec. 4.14.)

Sec. 164.061.  SURRENDER OF LICENSE. (a) The board may accept the voluntary surrender of a license.

(b)  A surrendered license may not be returned unless the board determines, under board rules, that the license holder is competent to resume practice. (V.A.C.S. Art. 4495b, Sec. 4.05(d).)

[Sections 164.062-164.100 reserved for expansion]

SUBCHAPTER C. PROBATION OF LICENSE

Sec. 164.101.  PROBATION. (a) The board on majority vote may probate an order canceling, revoking, or suspending a license or imposing any other method of discipline if the probationer conforms to each order, condition, and rule the board establishes as a term of probation.

(b)  At the time probation is granted the board shall establish the term of the probationary period.

(c)  If a license suspension is probated, the board may require the license holder to:

(1)  report regularly to the board on matters that are the basis of the probation;

(2)  limit practice to the areas prescribed by the board; or

(3)  continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in the areas that are the basis of the probation. (V.A.C.S. Art. 4495b, Secs. 4.11(b) (part), 4.12(d).)

Sec. 164.102.  PERSONS INELIGIBLE FOR PROBATION. (a) The board may not grant probation to a physician who constitutes, through the practice of medicine, a continuing threat to the public welfare.

(b)  Except on an express determination, based on substantial evidence, that granting probation is in the best interests of the public and of the person whose license has been suspended, revoked, or canceled, the board may not grant probation to a person whose license has been canceled, revoked, or suspended because of a felony conviction under:

(1)  Chapter 481 or 483, Health and Safety Code;

(2)  Section 485.033, Health and Safety Code; or

(3)  the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.). (V.A.C.S. Art. 4495b, Sec. 4.11(b) (part).)

Sec. 164.103.  RESCISSION OF PROBATION. (a) At any time during a probation term, on a showing of adequate grounds, the board may hold a hearing and, on proof of a violation of the probation order, may:

(1)  rescind the probation and enforce the board's original order; and

(2)  impose any disciplinary action permitted under Section 164.001 in addition to or instead of enforcing the original order.

(b)  The board shall revoke or suspend a probationer's license if the board determines that the probationer constitutes, through the practice of medicine, a continuing threat to the public welfare.

(c)  A hearing to rescind probation is subject to the requirements established under this chapter for other charges. (V.A.C.S. Art. 4495b, Secs. 4.11(c), (d).)

[Sections 164.104-164.150 reserved for expansion]

SUBCHAPTER D. LICENSE REINSTATEMENT

Sec. 164.151.  APPLICATION FOR LICENSE REINSTATEMENT. (a) On application, the board may reissue a license to practice medicine to a person whose license has been canceled, revoked, or suspended.

(b)  The application must be:

(1)  accompanied by the fees set by the board; and

(2)  made in the manner and form and under the conditions required by the board.

(c)  In addition to the other requirements imposed under this subchapter, to be eligible for reinstatement or reissuance of a license an applicant must prove that the reinstatement or reissuance is in the best interests of:

(1)  the public; and

(2)  the person whose license has been canceled, revoked, or suspended.

(d)  A decision by the board to deny an application to reinstate or reissue a license is subject to judicial review in the manner provided by Section 164.009. (V.A.C.S. Art. 4495b, Secs. 4.10(a) (part), (b), (c).)

Sec. 164.152.  APPLICATION PERIOD. (a) A person may not apply for reinstatement of a license that was revoked before the first anniversary of the date on which the revocation was issued or became final.

(b)  If the board denies the application for reinstatement, the applicant may not reapply more frequently than annually. (V.A.C.S. Art. 4495b, Sec. 4.10(a) (part).)

Sec. 164.153.  CERTAIN PERSONS INELIGIBLE FOR REINSTATEMENT. Except on an express determination based on substantial evidence contained in an investigative report indicating that reinstatement or reissue of the license is in the best interests of the public and of the person whose license has been canceled, revoked, or suspended, the board may not reinstate or reissue a license to a person whose license has been canceled, revoked, or suspended because of a felony conviction under:

(1)  Chapter 481 or 483, Health and Safety Code;

(2)  Section 485.033, Health and Safety Code; or

(3)  the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.). (V.A.C.S. Art. 4495b, Sec. 4.10(a) (part).)

Sec.  164.154.  EFFECT OF LICENSE REINSTATEMENT ON CERTAIN PROSECUTIONS OR PENALTIES. If a physician has had charges filed against the physician during a period in which the physician's license was not in force or was suspended, revoked, or canceled, or if penalties have been incurred by the physician during that period, the reinstatement of the physician's license does not abate the prosecution or penalties. (V.A.C.S. Art. 4495b, Sec. 3.07(h).)

[Sections 164.155-164.200 reserved for expansion]

SUBCHAPTER E. OTHER ACTIONS

Sec. 164.201.  REVIEW BY BOARD IF THREE OR MORE MALPRACTICE CLAIMS. The board shall review information relating to a physician against whom three or more malpractice claims have been reported under Subchapter B, Chapter 154, within a five-year period in the same manner as if a complaint against the physician had been made to the board under Section 154.051. (V.A.C.S. Art. 4495b, Sec. 5.05(f).)

Sec. 164.202.  REHABILITATION ORDER. The board, through an agreed order or after a contested proceeding, may impose a nondisciplinary rehabilitation order on an applicant, as a prerequisite for issuing a license, or on a license holder, based on:

(1)  intemperate use of drugs or alcohol directly resulting from habituation or addiction caused by medical care or treatment provided by a physician;

(2)  self-reported intemperate use of drugs or alcohol during the five years preceding the report that could adversely affect the reporter's ability to practice medicine safely, if the reporting individual has not previously been the subject of a substance abuse-related order of the board;

(3)  a judgment by a court that the applicant or license holder is of unsound mind;

(4)  a determination of impairment based on a mental or physical examination offered to establish the impairment in an evidentiary hearing before the board in which the applicant or license holder was provided an opportunity to respond; or

(5)  an admission by the applicant or license holder indicating that the applicant or license holder suffers from a potentially dangerous limitation or an inability to practice medicine with reasonable skill and safety by reason of illness or as a result of any physical or mental condition. (V.A.C.S. Art. 4495b, Sec. 3.081(a).)

Sec. 164.203.  EFFECT OF REHABILITATION ORDER. (a) A rehabilitation order imposed under Section 164.202 is a nondisciplinary private order. If entered by agreement, the order is:

(1)  an agreed disposition or settlement agreement for purposes of civil litigation as provided under Section 164.002; and

(2)  exempt from Chapter 552, Government Code.

(b)  A rehabilitation order imposed under Section 164.202 must contain findings of fact and conclusions of law. The order may impose a revocation, cancellation, suspension, period of probation or restriction, or any other term authorized by Section 164.001 or agreed to by the board and the person subject to the order.

(c)  A violation of a rehabilitation order may result in disciplinary action under this subtitle or under the terms of the agreed order. A violation of a rehabilitation order is grounds for disciplinary action based on:

(1)  unprofessional or dishonorable conduct; or

(2)  any provision of this subtitle that applies to the conduct that resulted in the violation.

(d)  A violation of a rehabilitation order is grounds for temporary suspension of the person's license under Section 164.059. This section does not prevent or limit the authority of the board to take action to temporarily suspend a license under that section. (V.A.C.S. Art. 4495b, Secs. 3.081(b), (c), (d), (e).)

Sec. 164.204.  AUDIT OF REHABILITATION ORDER. (a) The board shall maintain a rehabilitation order imposed under Section 164.202 in a confidential file. The file is subject to an independent audit by the state auditor or a private auditor with whom the board contracts to perform the audit to ensure that only qualified license holders are subject to rehabilitation orders.

(b)  An audit may be performed at any time at the direction of the board. The board shall ensure that an audit is performed at least once in each three-year period.

(c)  The audit results are public information and shall be reported in a manner that maintains the anonymity of each license holder who is subject to a rehabilitation order. (V.A.C.S. Art. 4495b, Sec. 3.081(f).)

CHAPTER 165. PENALTIES

SUBCHAPTER A. ADMINISTRATIVE PENALTIES

Sec. 165.001. IMPOSITION OF ADMINISTRATIVE PENALTY

Sec. 165.002. PROCEDURE

Sec. 165.003. AMOUNT OF PENALTY

Sec. 165.004. NOTICE OF VIOLATION AND PENALTY

Sec. 165.005. OPTIONS FOLLOWING DECISION: PAY OR APPEAL

Sec. 165.006. COLLECTION OF PENALTY

Sec. 165.007. DETERMINATION BY COURT

Sec. 165.008. REMITTANCE OF PENALTY AND INTEREST

[Sections 165.009-165.050 reserved for expansion]

SUBCHAPTER B. INJUNCTIVE RELIEF

Sec. 165.051. INJUNCTION AUTHORITY

[Sections 165.052-165.100 reserved for expansion]

SUBCHAPTER C. CIVIL PENALTIES

Sec. 165.101. CIVIL PENALTY

Sec. 165.102. LIMITATION ON CIVIL PENALTY

Sec. 165.103. RECOVERY OF EXPENSES BY ATTORNEY GENERAL;

DEPOSIT

[Sections 165.104-165.150 reserved for expansion]

SUBCHAPTER D. CRIMINAL PENALTIES

Sec. 165.151. GENERAL CRIMINAL PENALTY

Sec. 165.152. PRACTICING MEDICINE IN VIOLATION OF SUBTITLE

Sec. 165.153. CRIMINAL PENALTIES FOR ADDITIONAL HARM

Sec. 165.154. TAMPERING WITH GOVERNMENTAL RECORD; PERJURY

OFFENSES

Sec. 165.155. SOLICITATION OF PATIENTS; PENALTY

Sec. 165.156. MISREPRESENTATION REGARDING ENTITLEMENT TO

PRACTICE MEDICINE

Sec. 165.157. DUTY TO ASSIST IN CERTAIN PROSECUTIONS

Sec. 165.158. UNAUTHORIZED RELEASE OF CONFIDENTIAL

INFORMATION

Sec. 165.159. PRACTICING MEDICINE WITHOUT REGISTRATION

Sec. 165.160. EFFECT ON CRIMINAL PROSECUTION

CHAPTER 165. PENALTIES

SUBCHAPTER A. ADMINISTRATIVE PENALTIES

Sec. 165.001.  IMPOSITION OF ADMINISTRATIVE PENALTY. The board by order may impose an administrative penalty against a person licensed or regulated under this subtitle who violates this subtitle or a rule or order adopted under this subtitle. (V.A.C.S. Art. 4495b, Sec. 4.125(a).)

Sec. 165.002.  PROCEDURE. (a) The board by rule shall prescribe the procedure by which it may impose an administrative penalty.

(b)  A proceeding under this section is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4495b, Secs. 4.125(d), (e).)

Sec. 165.003.  AMOUNT OF PENALTY. (a)  The amount of an administrative penalty may not exceed $5,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

(b)  The amount of the penalty shall be based on:

(1)  the seriousness of the violation, including:

(A)  the nature, circumstances, extent, and gravity of any prohibited act; and

(B)  the hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2)  the economic harm to property or the environment caused by the violation;

(3)  the history of previous violations;

(4)  the amount necessary to deter a future violation;

(5)  efforts to correct the violation; and

(6)  any other matter that justice may require. (V.A.C.S. Art. 4495b, Secs. 4.125(b), (c).)

Sec. 165.004.  NOTICE OF VIOLATION AND PENALTY. (a)  If the board by order determines that a violation has occurred and imposes an administrative penalty, the board shall notify the affected person of the board's order.

(b)  The notice must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4495b, Sec. 4.125(f).)

Sec. 165.005.  OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a)  Not later than the 30th day after the date the board's order imposing the administrative penalty is final, the person shall:

(1)  pay the penalty;

(2)  pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or

(3)  without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.

(b)  Within the 30-day period, a person who acts under Subsection (a)(3) may:

(1)  stay enforcement of the penalty by:

(A)  paying the penalty to the court for placement in an escrow account; or

(B)  giving to the court a supersedeas bond approved by the court for the amount of the penalty and that is effective until all judicial review of the board's order is final; or

(2)  request the court to stay enforcement of the penalty by:

(A)  filing with the court an affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and

(B)  giving a copy of the affidavit to the executive director by certified mail.

(c)  If the executive director receives a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.

(d)  The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4495b, Secs. 4.125(g), (h), (i).)

Sec. 165.006.  COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4495b, Sec. 4.125(j).)

Sec. 165.007.  DETERMINATION BY COURT. (a)  If on appeal the court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.

(b)  If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4495b, Sec. 4.125(k).)

Sec. 165.008.  REMITTANCE OF PENALTY AND INTEREST. (a)  If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:

(1)  order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or

(2)  order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.

(b)  The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest is paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4495b, Sec. 4.125(l).)

[Sections 165.009-165.050 reserved for expansion]

SUBCHAPTER B. INJUNCTIVE RELIEF

Sec. 165.051.  INJUNCTION AUTHORITY. In addition to any other action authorized by law, the board may institute an action in its own name to enjoin a violation of this subtitle. (V.A.C.S. Art. 4495b, Sec. 2.09(j).)

[Sections 165.052-165.100 reserved for expansion]

SUBCHAPTER C. CIVIL PENALTIES

Sec. 165.101.  CIVIL PENALTY. (a) If it appears that a person is in violation of or is threatening to violate this subtitle or a rule or order adopted by the board, the attorney general may institute an action for a civil penalty of $1,000 for each violation.

(b)  Each day a violation continues constitutes a separate violation.

(c)  An action filed under this section must be filed in a district court in Travis County or the county in which the violation occurred. (V.A.C.S. Art. 4495b, Secs. 4.126(a), (b).)

Sec. 165.102.  LIMITATION ON CIVIL PENALTY. The attorney general may not institute an action for a civil penalty against a person described by Section 151.053 or 151.054 if the person is not in violation of or threatening to violate this subtitle or a rule or order adopted by the board. (V.A.C.S. Art. 4495b, Sec. 4.126(e).)

Sec. 165.103.  RECOVERY OF EXPENSES BY ATTORNEY GENERAL; DEPOSIT. (a) The attorney general may recover reasonable expenses incurred in obtaining a civil penalty under this subchapter, including:

(1)  court costs;

(2)  reasonable attorney's fees;

(3)  investigative costs;

(4)  witness fees; and

(5)  deposition expenses.

(b)  A civil penalty recovered by the attorney general under this subchapter shall be deposited in the general revenue fund. (V.A.C.S. Art. 4495b, Secs. 4.126(c), (d).)

[Sections 165.104-165.150 reserved for expansion]

SUBCHAPTER D. CRIMINAL PENALTIES

Sec. 165.151.  GENERAL CRIMINAL PENALTY. (a) A person commits an offense if the person violates this subtitle or a rule of the board.

(b)  If another penalty is not specified for the offense, an offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 4495b, Sec. 3.07(g).)

Sec. 165.152.  PRACTICING MEDICINE IN VIOLATION OF SUBTITLE. (a) A person commits an offense if the person practices medicine in this state in violation of this subtitle.

(b)  Each day a violation continues constitutes a separate offense.

(c)  An offense under Subsection (a) is a Class A misdemeanor, except that if it is shown in the trial of the offense that the defendant has previously been convicted under Subsection (a), the offense is a felony of the third degree.

(d)  On final conviction of an offense under this section, a person forfeits all rights and privileges conferred by virtue of a license issued under this subtitle. (V.A.C.S. Art. 4495b, Sec. 3.07(a) (part).)

Sec. 165.153.  CRIMINAL PENALTIES FOR ADDITIONAL HARM. (a) A person commits an offense if the person practices medicine without a license or permit and causes another person:

(1)  physical or psychological harm; or

(2)  financial harm.

(b)  An offense under Subsection (a)(1) is a felony of the third degree.

(c)  An offense under Subsection (a)(2) is a state jail felony. (V.A.C.S. Art. 4495b, Sec. 3.07(a) (part).)

Sec. 165.154.  TAMPERING WITH GOVERNMENTAL RECORD; PERJURY OFFENSES. (a) A person commits an offense if the person makes a false statement:

(1)  in the person's application for a license; or

(2)  under oath to obtain a license or to secure the registration of a license to practice medicine.

(b)  An offense under this section:

(1)  constitutes tampering with a governmental record or perjury as provided by the Penal Code; and

(2)  shall be punished on conviction as provided by that code. (V.A.C.S. Art. 4495b, Sec. 3.07(b).)

Sec. 165.155.  SOLICITATION OF PATIENTS; PENALTY. (a) A physician commits an offense if the physician employs or agrees to employ, pays or promises to pay, or rewards or promises to reward any person, firm, association, partnership, or corporation for securing or soliciting a patient or patronage.

(b)  Each payment, reward, or fee or agreement to pay or accept a reward or fee constitutes a separate offense.

(c)  A physician commits an offense if the physician accepts or agrees to accept a payment or other thing of value for securing or soliciting patronage for another physician.

(d)  This section does not prohibit advertising except that which:

(1)  is false, misleading, or deceptive; or

(2)  advertises professional superiority or the performance of professional service in a superior manner and which is not readily subject to verification.

(e)  An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 4495b, Sec. 3.07(c).)

Sec. 165.156.  MISREPRESENTATION REGARDING ENTITLEMENT TO PRACTICE MEDICINE. A person, partnership, trust, association, or corporation commits an offense if the person, partnership, trust, association, or corporation, through the use of any letters, words, or terms affixed on stationery or on advertisements, or in any other manner, indicates that the person, partnership, trust, association, or corporation is entitled to practice medicine if the person, partnership, trust, association, or corporation is not licensed to do so. (V.A.C.S. Art. 4495b, Sec. 3.07(e).)

Sec. 165.157.  DUTY TO ASSIST IN CERTAIN PROSECUTIONS. (a) The board and the board's employees shall assist the local prosecuting officers of each county in the enforcement of:

(1)  state laws prohibiting the unlawful practice of medicine;

(2)  this subtitle; and

(3)  other matters.

(b)  Except as otherwise provided by law, a prosecution is subject to the direction and control of the prosecuting officers. This subtitle does not deprive those officers of any authority vested by law. (V.A.C.S. Art. 4495b, Sec. 2.09(l) (part).)

Sec. 165.158.  UNAUTHORIZED RELEASE OF CONFIDENTIAL INFORMATION. (a) A person commits an offense if the person unlawfully discloses confidential information described by Section 160.006 that is possessed by the board.

(b)  An offense under this section is a Class A misdemeanor. (V.A.C.S. Art. 4495b, Sec. 5.06(s)(4).)

Sec. 165.159.  PRACTICING MEDICINE WITHOUT REGISTRATION. (a) A person commits an offense if the person practices medicine without complying with the registration requirements imposed by this subtitle.

(b)  An offense under Subsection (a) constitutes the offense of practicing medicine without a license. (V.A.C.S. Art. 4495b, Sec. 3.07(d).)

Sec. 165.160.  EFFECT ON CRIMINAL PROSECUTION. This subtitle does not bar a criminal prosecution for a violation of this subtitle or a rule adopted under this subtitle. (V.A.C.S. Art. 4495b, Sec. 4.07.)

[Chapters 166-200 reserved for expansion]

SUBTITLE C. OTHER PROFESSIONS PERFORMING

MEDICAL PROCEDURES

CHAPTER 201. CHIROPRACTORS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 201.001. DEFINITIONS

Sec. 201.002. PRACTICE OF CHIROPRACTIC

Sec. 201.003. APPLICATIONS AND EXEMPTIONS

Sec. 201.004. APPLICATION OF SUNSET ACT

[Sections 201.005-201.050 reserved for expansion]

SUBCHAPTER B. TEXAS BOARD OF CHIROPRACTIC EXAMINERS

Sec. 201.051. BOARD; MEMBERSHIP

Sec. 201.052. MEMBERSHIP ELIGIBILITY

Sec. 201.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS

Sec. 201.054. TERMS; VACANCY

Sec. 201.055. OFFICERS

Sec. 201.056. GROUNDS FOR REMOVAL

Sec. 201.057. PER DIEM; REIMBURSEMENT

Sec. 201.058. MEETINGS

Sec. 201.059. ADVISORY COMMISSION

Sec. 201.060. BOARD SEAL

[Sections 201.061-201.100 reserved for expansion]

SUBCHAPTER C. BOARD PERSONNEL

Sec. 201.101. DIVISION OF RESPONSIBILITIES

Sec. 201.102. QUALIFICATIONS AND STANDARDS OF CONDUCT

INFORMATION

Sec. 201.103. CAREER LADDER PROGRAM; PERFORMANCE

EVALUATIONS

Sec. 201.104. EQUAL EMPLOYMENT OPPORTUNITY; REPORT

[Sections 201.105-201.150 reserved for expansion]

SUBCHAPTER D. BOARD POWERS AND DUTIES

Sec. 201.151. GENERAL POWERS AND DUTIES

Sec. 201.152. RULES

Sec. 201.153. FEES

Sec. 201.154. CERTIFICATION FOR MANIPULATION UNDER

ANESTHESIA PROHIBITED

Sec. 201.155. RULES RESTRICTING ADVERTISING OR COMPETITIVE

BIDDING

Sec. 201.156. BOARD DUTIES REGARDING COMPLAINTS

Sec. 201.157. IMMUNITY

Sec. 201.158. BOARD COMMITTEES

Sec. 201.159. RECORDS

Sec. 201.160. PAYMENT OF BONDS AND OTHER EXPENSES

Sec. 201.161. APPROPRIATION FROM STATE TREASURY PROHIBITED

Sec. 201.162. ANNUAL REPORT

[Sections 201.163-201.200 reserved for expansion]

SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT

PROCEDURES

Sec. 201.201. PUBLIC INTEREST INFORMATION

Sec. 201.202. PUBLIC PARTICIPATION

Sec. 201.203. COMPLAINTS

Sec. 201.204. RECORDS OF COMPLAINTS

Sec. 201.205. GENERAL RULES REGARDING COMPLAINT INVESTIGATION

AND DISPOSITION

[Sections 201.206-201.250 reserved for expansion]

SUBCHAPTER F. PEER REVIEW COMMITTEES

Sec. 201.251. APPOINTMENT OF PEER REVIEW COMMITTEES

Sec. 201.252. COMMITTEE MEMBER ELIGIBILITY

Sec. 201.253. EXECUTIVE PEER REVIEW COMMITTEE

Sec. 201.254. DUTIES OF PEER REVIEW COMMITTEE

Sec. 201.255. REQUEST FOR INFORMATION

[Sections 201.256-201.300 reserved for expansion]

SUBCHAPTER G. LICENSE REQUIREMENTS

Sec. 201.301. LICENSE REQUIRED

Sec. 201.302. LICENSING EXAMINATION APPLICATION

Sec. 201.303. EDUCATIONAL REQUIREMENTS

Sec. 201.304. EXAMINATION REQUIREMENTS

Sec. 201.305. EXAMINATION PROCEDURE

Sec. 201.306. EXAMINATION RESULTS

Sec. 201.307. REEXAMINATION

Sec. 201.308. TEMPORARY LICENSE

Sec. 201.309. PROVISIONAL LICENSE

Sec. 201.310. ISSUANCE OF LICENSE TO PROVISIONAL LICENSE

HOLDER

Sec. 201.311. INACTIVE STATUS

Sec. 201.312. ACCREDITATION OF FACILITIES

[Sections 201.313-201.350 reserved for expansion]

SUBCHAPTER H. ANNUAL REGISTRATION AND LICENSE RENEWAL

Sec. 201.351. ANNUAL REGISTRATION

Sec. 201.352. APPLICATION FOR ANNUAL REGISTRATION

Sec. 201.353. LICENSE EXPIRATION DATE

Sec. 201.354. LICENSE RENEWAL

Sec. 201.355. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE

PRACTITIONER

Sec. 201.356. CONTINUING EDUCATION

[Sections 201.357-201.400 reserved for expansion]

SUBCHAPTER I. PATIENT CONFIDENTIALITY

Sec. 201.401. DEFINITION OF PATIENT

Sec. 201.402. PATIENT CONFIDENTIALITY

Sec. 201.403. EXCEPTIONS TO CONFIDENTIALITY FOR ADMINISTRATIVE

PROCEDURE

Sec. 201.404. EXCEPTIONS TO CONFIDENTIALITY FOR OTHER

CIRCUMSTANCES

Sec. 201.405. CONSENT FOR RELEASE

[Sections 201.406-201.450 reserved for expansion]

SUBCHAPTER J. REQUIREMENTS REGARDING USE OF CHIROPRACTIC

ASSISTANTS AND TECHNOLOGY

Sec. 201.451. DELEGATION TO ASSISTANTS

Sec. 201.452. USE OF X-RAY

[Sections 201.453-201.500 reserved for expansion]

SUBCHAPTER K. DISCIPLINARY PROCEDURES

Sec. 201.501. DISCIPLINARY POWERS OF BOARD

Sec. 201.502. GROUNDS FOR REFUSAL, REVOCATION, OR SUSPENSION

OF LICENSE

Sec. 201.503. SCHEDULE OF SANCTIONS

Sec. 201.504. INFORMAL PROCEEDINGS

Sec. 201.505. HEARINGS

Sec. 201.506. ENFORCEMENT COMMITTEE

Sec. 201.507. TEMPORARY LICENSE SUSPENSION

Sec. 201.508. POWERS OF DISTRICT COURTS; DUTIES OF DISTRICT

AND COUNTY ATTORNEYS

Sec. 201.509. REPRESENTATION BY ATTORNEY GENERAL

Sec. 201.510. RIGHT TO APPEAL

Sec. 201.511. REISSUANCE OF LICENSE

[Sections 201.512-201.550 reserved for expansion]

SUBCHAPTER L. ADMINISTRATIVE PENALTY

Sec. 201.551. IMPOSITION OF ADMINISTRATIVE PENALTY

Sec. 201.552. AMOUNT OF PENALTY

Sec. 201.553. ENFORCEMENT COMMITTEE RECOMMENDATIONS

Sec. 201.554. PENALTY TO BE PAID OR HEARING REQUESTED

Sec. 201.555. HEARING ON ENFORCEMENT COMMITTEE

RECOMMENDATIONS

Sec. 201.556. DECISION BY BOARD

Sec. 201.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL

Sec. 201.558. COLLECTION OF PENALTY

Sec. 201.559. DETERMINATION BY COURT

Sec. 201.560. REMITTANCE OF PENALTY AND INTEREST

Sec. 201.561. ADMINISTRATIVE PROCEDURE

[Sections 201.562-201.600 reserved for expansion]

SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 201.601. INJUNCTIVE RELIEF

Sec. 201.602. MONITORING LICENSE HOLDER

Sec. 201.603. CIVIL PENALTY

Sec. 201.604. GENERAL CRIMINAL PENALTY

Sec. 201.605. CRIMINAL PENALTY: PRACTICE WITHOUT LICENSE

CHAPTER 201. CHIROPRACTORS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 201.001.  DEFINITIONS. In this chapter:

(1)  "Board" means the Texas Board of Chiropractic Examiners.

(2)  "Chiropractor" means a person licensed to practice chiropractic by the board. (V.A.C.S. Art. 4512b, Sec. 3(a) (part); Art. 4512b(1), Sec. 1.)

Sec. 201.002.  PRACTICE OF CHIROPRACTIC. (a)  In this section, "incisive or surgical procedure" includes making an incision into any tissue, cavity, or organ by any person or implement. The term does not include the use of a needle for the purpose of drawing blood for diagnostic testing.

(b)  A person practices chiropractic under this chapter if the person:

(1)  uses objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body;

(2)  performs nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex or the biomechanics of the musculoskeletal system;

(3)  represents to the public that the person is a chiropractor; or

(4)  uses the term "chiropractor," "chiropractic," "doctor of chiropractic," "D.C.," or any derivative of those terms or initials in connection with the person's name.

(c)  The practice of chiropractic does not include:

(1)  incisive or surgical procedures;

(2)  the prescription of controlled substances, dangerous drugs, or any other drug that requires a prescription; or

(3)  the use of x-ray therapy or therapy that exposes the body to radioactive materials. (V.A.C.S. Art. 4512b, Secs. 1(a), 13a.)

Sec. 201.003.  APPLICATIONS AND EXEMPTIONS. (a) This chapter does not apply to a registered nurse licensed under Chapter 301, a vocational nurse licensed under Chapter 302, a person who provides spinal screening services as authorized by Chapter 37, Health and Safety Code, a physical therapist licensed under Chapter 453, or a massage therapist or a massage therapy instructor qualified and registered under Chapter 455 if:

(1)  the person does not represent to the public that the person is a chiropractor or use the term "chiropractor," "chiropractic," "doctor of chiropractic," "D.C.," or any derivative of those terms or initials in connection with the person's name or practice; and

(2)  the person practices strictly within the scope of the license or registration held in compliance with all laws relating to the license and registration.

(b)  This chapter does not limit or affect the rights and powers of a physician licensed in this state to practice medicine.

(c)  This section does not affect or prevent a student enrolled in a college of chiropractic in this state from engaging in all phases of clinical practice if the practice is:

(1)  part of the curriculum; and

(2)  conducted under the supervision of a licensed chiropractor or a licensed physician. (V.A.C.S. Art. 4512b, Secs. 5a(b), 13.)

Sec. 201.004.  APPLICATION OF SUNSET ACT. The Texas Board of Chiropractic Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4512b, Sec. 3(i).)

[Sections 201.005-201.050 reserved for expansion]

SUBCHAPTER B. TEXAS BOARD OF CHIROPRACTIC EXAMINERS

Sec. 201.051.  BOARD; MEMBERSHIP. (a) The Texas Board of Chiropractic Examiners consists of nine members appointed by the governor with the advice and consent of the senate as follows:

(1)  six chiropractors who are reputable practicing chiropractors and who have resided in this state for at least five years preceding appointment; and

(2)  three members who represent the public.

(b)  Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4512b, Secs. 3(a) (part), (b) (part).)

Sec. 201.052.  MEMBERSHIP ELIGIBILITY. (a) A person is not eligible to serve as a member of the board if the person:

(1)  is a member of the faculty or board of trustees of a chiropractic school;

(2)  is a stockholder in a chiropractic school or college; or

(3)  has a financial interest in a chiropractic school or college.

(b)  A person is not eligible for appointment as a public member of the board if the person or the person's spouse:

(1)  is registered, certified, or licensed by an occupational regulatory agency in the field of health care;

(2)  is employed by or participates in the management of a business entity or other organization regulated by or receiving funds from the board;

(3)  owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the board; or

(4)  uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4512b, Secs. 3(a) (part), (b) (part), (c) (part).)

Sec. 201.053.  MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b)  An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member or employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(c)  A person who is the spouse of, or who is related within the first degree by affinity or within the first degree by consanguinity to, an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member or employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(d)  A person may not serve as a member of the board or act as the general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the board. (V.A.C.S. Art. 4512b, Secs. 3(d), (e), (f), (g).)

Sec. 201.054.  TERMS; VACANCY. (a) Members of the board are appointed for staggered six-year terms. The terms of one-third of the members expire on February 1 of each odd-numbered year.

(b)  A person may not be appointed to serve more than two terms.

(c)  If a vacancy occurs because of the death or resignation of a board member, the governor shall appoint a replacement to fill the unexpired term. (V.A.C.S. Art. 4512b, Sec. 3(h) (part).)

Sec. 201.055.  OFFICERS. (a) The governor shall designate a chiropractic member of the board as the board's president. The president serves in that capacity at the will of the governor.

(b)  The board shall elect one of its members as vice president and one of its members as secretary-treasurer at the first board meeting after the biennial appointment of board members.

(c)  The secretary-treasurer shall file a surety bond in favor of the board in the amount of not less than $5,000 conditioned on the faithful discharge of the secretary-treasurer's duties. (V.A.C.S. Art. 4512b, Secs. 3(h) (part), 4(a) (part).)

Sec. 201.056.  GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:

(1)  does not have at the time of appointment the qualifications required by Sections 201.051 and 201.052(b);

(2)  does not maintain during service on the board the qualifications required by Sections 201.051 and 201.052(b);

(3)  violates a prohibition established by Section 201.053;

(4)  cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5)  is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the board.

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

(c)  If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the governor and the attorney general that a potential ground for removal exists. (V.A.C.S. Art. 4512b, Sec. 3b.)

Sec. 201.057.  PER DIEM; REIMBURSEMENT. (a) A board member is entitled to a per diem as set by the General Appropriations Act for each day the member engages in the business of the board.

(b)  A member may not receive reimbursement for travel expenses, including expenses for meals and lodging, other than transportation expenses as provided by the General Appropriations Act. (V.A.C.S. Art. 4512b, Sec. 11(c).)

Sec. 201.058.  MEETINGS. (a) The board shall hold regular meetings to examine applicants and transact business at least twice each year at the times and places determined by the board.

(b)  A special meeting may be held at the call of three board members. (V.A.C.S. Art. 4512b, Sec. 4(a) (part).)

Sec. 201.059.  ADVISORY COMMISSION. (a) An advisory commission to advise the board consists of:

(1)  three chiropractors appointed by the board;

(2)  two chiropractors licensed in this state and appointed by the board from a list submitted by the president or governing body of each chiropractic college;

(3)  two physicians licensed and appointed by the Texas State Board of Medical Examiners;

(4)  one registered nurse licensed and appointed by the Board of Nurse Examiners; and

(5)  one pharmacist licensed and appointed by the Texas State Board of Pharmacy.

(b)  The advisory commission shall advise the board on scientific and technical matters regarding new and experimental diagnostic and treatment practices, procedures, or instruments that are within the meaning of practicing chiropractic under Section 201.002.

(c)  Each member of the advisory commission serves at the will of the authority that appointed the member to the advisory commission.

(d)  The presiding officer of the advisory commission shall be selected from among the three members of the commission appointed by the board.

(e)  A member of the advisory commission serves without compensation. Each member is entitled to reimbursement for actual expenses incurred in carrying out the member's official duties, subject to the approval of the presiding officer of the advisory commission. (V.A.C.S. Art. 4512b, Sec. 12b.)

Sec. 201.060.  BOARD SEAL. The seal of the board consists of a five-point star with the words, "The State of Texas," and the words, "Texas Board of Chiropractic Examiners," around the margin. (V.A.C.S. Art. 4512b, Sec. 22.)

[Sections 201.061-201.100 reserved for expansion]

SUBCHAPTER C. BOARD PERSONNEL

Sec. 201.101.  DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4512b, Sec. 3d.)

Sec. 201.102.  QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide as often as necessary to its members and employees information regarding their:

(1)  qualifications for office or employment under this chapter; and

(2)  responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4512b, Sec. 3c(b).)

Sec. 201.103.  CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting.

(b)  The executive director or the executive director's designee shall develop a system of annual performance evaluations. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4512b, Secs. 4(e), (f).)

Sec. 201.104.  EQUAL EMPLOYMENT OPPORTUNITY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:

(1)  personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel, that are in compliance with Chapter 21, Labor Code;

(2)  a comprehensive analysis of the board workforce that meets federal and state guidelines;

(3)  procedures by which a determination can be made of the significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and

(4)  reasonable methods to appropriately address those areas of significant underuse.

(b)  A policy statement prepared under Subsection (a) must be:

(1)  prepared to cover an annual period;

(2)  updated annually;

(3)  reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and

(4)  filed with the governor.

(c)  The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports made to the legislature. (V.A.C.S. Art. 4512b, Sec. 4c.)

[Sections 201.105-201.150 reserved for expansion]

SUBCHAPTER D. BOARD POWERS AND DUTIES

Sec. 201.151.  GENERAL POWERS AND DUTIES. The board shall administer the purposes of and enforce this chapter. (V.A.C.S. Art. 4512b, Sec. 3(a) (part).)

Sec. 201.152.  RULES. (a) The board may adopt rules and bylaws:

(1)  necessary to:

(A)  perform the board's duties; and

(B)  regulate the practice of chiropractic; and

(2)  relating to the board's proceedings and the board's examination of an applicant for a license to practice chiropractic.

(b)  The board shall adopt rules for the enforcement of this chapter. The board shall issue all opinions based on a vote of a majority of the board at a regular or special meeting. The issuance of a disciplinary action or disciplinary order of the board is not limited by this subsection. (V.A.C.S. Art. 4512b, Secs. 4(a) (part), (c); 4a (part).)

Sec. 201.153.  FEES. (a)  The board by rule shall set fees in amounts reasonable and necessary to cover the costs of administering this chapter. The board may not set a fee in an amount that is less than the amount of that fee on September 1, 1993.

(b)  Each of the following fees imposed under Subsection (a) is increased by $200:

(1)  the fee for an annual renewal of a license;

(2)  the fee for a provisional license;

(3)  the fee for an examination; and

(4)  the fee for a reexamination.

(c)  For each $200 fee increase collected under Subsection (b), $50 shall be deposited in the foundation school fund and $150 shall be deposited in the general revenue fund. (V.A.C.S. Art. 4512b, Secs. 2(a) (part), 11(b), 11B(a), (b) (part).)

Sec. 201.154.  CERTIFICATION FOR MANIPULATION UNDER ANESTHESIA PROHIBITED. Notwithstanding any other provision of this chapter, the board may not adopt a process to certify chiropractors to perform manipulation under anesthesia. (V.A.C.S. Art. 4512b, Sec. 13b(a).)

Sec. 201.155.  RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by that person.

(b)  The board may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:

(1)  restricts the use of any advertising medium;

(2)  restricts the person's personal appearance or use of the person's voice in an advertisement;

(3)  relates to the size or duration of an advertisement by the person; or

(4)  restricts the use of a trade name in advertising by the person. (V.A.C.S. Art. 4512b, Sec. 17b.)

Sec. 201.156.  BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:

(1)  adopt a form to standardize information concerning complaints made to the board; and

(2)  prescribe information to be provided to a person when the person files a complaint with the board.

(b)  The board shall provide reasonable assistance to a person who wishes to file a complaint with the board.

(c)  The board by rule shall adopt procedures concerning:

(1)  the retention of information files on license holders; and

(2)  the expunction of files on license holders, including complaints, adverse reports, and other investigative information on license holders. (V.A.C.S. Art. 4512b, Secs. 14(l), (m); 14c.1(c), (d), (e).)

Sec. 201.157.  IMMUNITY. In the absence of fraud, conspiracy, or malice, a member or employee of the board, a witness called to testify by the board, or a consultant or hearing officer is not liable in a civil action for any alleged injury, wrong, loss, or damage for any investigation, report, recommendation, statement, evaluation, finding, order, or award made in the course of performing the person's official duties. (V.A.C.S. Art. 4512b(2).)

Sec. 201.158.  BOARD COMMITTEES. (a) The board may appoint committees from its own members.

(b)  A committee appointed from the members of the board shall:

(1)  consider matters referred to the committee relating to the enforcement of this chapter and the rules adopted by the board; and

(2)  make recommendations to the board.

(c)  The board may delegate to a committee of the board an authority granted to the board under Section 201.505(c). (V.A.C.S. Art. 4512b, Secs. 4a (part), 4b (part).)

Sec. 201.159.  RECORDS. (a)  The board shall preserve a record of its proceedings in a register that contains:

(1)  the name, age, place, and duration of residence of each applicant for a license;

(2)  the amount of time spent by the applicant in the study of chiropractic in respective chiropractic schools; and

(3)  other information the board desires to record.

(b)  The register shall show whether an applicant was rejected or licensed.

(c)  On May 1 of each year, the secretary-treasurer of the board shall send an official copy of the register to the secretary of state to be kept as a permanent record.

(d)  The information recorded in the register is prima facie evidence of the matters contained in the register. A certified copy of the register with the seal of the board or the seal of the secretary of state is admissible as evidence in any court of this state. (V.A.C.S. Art. 4512b, Sec. 5.)

Sec. 201.160.  PAYMENT OF BONDS AND OTHER EXPENSES. The board shall pay the following expenses:

(1)  the premium of a bond required by the board of an officer or employee of the board; and

(2)  the necessary expenses of an employee of the board incurred in the performance of the employee's duties. (V.A.C.S. Art. 4512b, Sec. 11(d).)

Sec. 201.161.  APPROPRIATION FROM STATE TREASURY PROHIBITED. The legislature may not appropriate money, other than fees, from the state treasury for an expenditure made necessary by this chapter. (V.A.C.S. Art. 4512b, Sec. 2(a) (part).)

Sec. 201.162.  ANNUAL REPORT. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.

(b)  The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4512b, Sec. 4(d).)

[Sections 201.163-201.200 reserved for expansion]

SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT

PROCEDURES

Sec. 201.201.  PUBLIC INTEREST INFORMATION. (a)  The board shall prepare information of public interest describing the functions of the board and the procedures by which complaints are filed with and resolved by the board.

(b)  The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4512b, Sec. 3a(a).)

Sec. 201.202.  PUBLIC PARTICIPATION. (a) The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the board's jurisdiction.

(b)  The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4512b, Secs. 4d(a), (b) (part).)

Sec. 201.203.  COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:

(1)  on each registration form, application, or written contract for services of a person regulated by the board; or

(2)  on a sign prominently displayed in the place of business of each person regulated by the board.

(b)  The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4512b, Secs. 3a(b), (c).)

Sec. 201.204.  RECORDS OF COMPLAINTS. (a)  The board shall keep an information file about each complaint filed with the board. The board's information file must be kept current and contain a record for each complaint of:

(1)  each person contacted in relation to the complaint;

(2)  a summary of findings made at each step of the complaint process;

(3)  an explanation of the legal basis and reason for a complaint that is dismissed;

(4)  the schedule required under Section 201.205 and a notification of any change in the schedule; and

(5)  other relevant information.

(b)  Except as provided by Subsection (c), if a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation.

(c)  If a written complaint that the board has authority to resolve is referred to the enforcement committee, the board at least semiannually and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4512b, Secs. 14(f), (g); 14c.1(a), (b); 14c.2(b) (part).)

Sec. 201.205.  GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a)  The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this section must:

(1)  distinguish between categories of complaints;

(2)  ensure that a complaint is not dismissed without appropriate consideration;

(3)  require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the complaint;

(4)  ensure that the person who filed the complaint has the opportunity to explain the allegations made in the complaint; and

(5)  prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.

(b)  The board shall:

(1)  dispose of a complaint in a timely manner; and

(2)  establish a schedule for conducting each phase of the complaint process that is under the control of the board not later than the 30th day after the date the board receives the complaint.

(c)  The board shall notify the parties to the complaint of the projected time requirements for pursuing the complaint.

(d)  The board shall notify the parties to the complaint of any change in the schedule not later than the seventh day after the date the change is made.

(e)  The executive director shall notify the board of a complaint that is unresolved after the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4512b, Sec. 14c.2.)

[Sections 201.206-201.250 reserved for expansion]

SUBCHAPTER F. PEER REVIEW COMMITTEES

Sec. 201.251.  APPOINTMENT OF PEER REVIEW COMMITTEES. The board shall appoint local chiropractic peer review committees. The board shall appoint the members of the peer review committee from a list of nominees submitted by the local chiropractic association to conduct peer review procedures. (V.A.C.S. Art. 4512b(1), Secs. 2(a), (c) (part); 3(c) (part).)

Sec. 201.252.  COMMITTEE MEMBER ELIGIBILITY. (a) Only a chiropractor who has completed a program of peer review training approved by the board is eligible to serve on a chiropractic peer review committee.

(b)  A member of a local peer review committee may not be a consultant to or an employee of any company or carrier of health care insurance.

(c)  The board shall establish requirements for peer review training programs that do not discriminate against any chiropractor. (V.A.C.S. Art. 4512b, Sec. 17a(b); Art. 4512b(1), Secs. 2(c) (part), 3(c) (part), 5 (part).)

Sec. 201.253.  EXECUTIVE PEER REVIEW COMMITTEE. (a)  The board shall appoint an executive chiropractic peer review committee to direct the activities of the local committees. The executive peer review committee consists of six volunteer members. The executive peer review committee shall elect a presiding officer from its members.

(b)  The executive peer review committee shall conduct hearings relating to disputes referred by a local peer review committee and shall make its recommendations based solely on evidence presented in the hearings.

(c)  A member of an executive peer review committee may not be a consultant to or an employee of any company or carrier of health care insurance. (V.A.C.S. Art. 4512b(1), Secs. 2(b), 3(b), 5 (part).)

Sec. 201.254.  DUTIES OF PEER REVIEW COMMITTEE. (a)  Each local chiropractic peer review committee shall:

(1)  review and evaluate chiropractic treatment and services in disputes involving a chiropractor and a patient or a person obligated to pay a fee for chiropractic services or treatment; and

(2)  mediate in a dispute involving a chiropractor and a patient or person obligated to pay a fee for chiropractic services or treatment.

(b)  Each local peer review committee shall report its findings and recommendations to the executive chiropractic peer review committee. A local peer review committee shall refer a dispute that is not resolved at the local level to the executive peer review committee.

(c)  In the absence of fraud, conspiracy, or malice, a member of a peer review committee is not liable in a civil action for a finding, evaluation, recommendation, or other action made or taken by the member as a member of the committee or by the committee. The immunity granted by this subsection does not limit the operation of federal or state antitrust laws as applied to the conduct of a local or executive peer review committee that involves price fixing or any other unreasonable restraint of trade.

(d)  A member of a peer review committee may not participate in committee deliberations or other activities involving chiropractic services or treatment rendered or performed by the member.

(e)  Except for the express immunity provided by Subsection (c), this section does not deprive any person of a right or remedy, legal or equitable. (V.A.C.S. Art. 4512b(1), Secs. 3(a), 4, 5 (part), 6.)

Sec. 201.255.  REQUEST FOR INFORMATION. The board may request from a chiropractic peer review committee information pertaining to actions taken by the peer review committee. (V.A.C.S. Art. 4512b, Sec. 17a(a).)

[Sections 201.256-201.300 reserved for expansion]

SUBCHAPTER G. LICENSE REQUIREMENTS

Sec. 201.301.  LICENSE REQUIRED. A person may not practice chiropractic unless the person holds a license issued by the board. (V.A.C.S. Art. 4512b, Sec. 5a(a).)

Sec. 201.302.  LICENSING EXAMINATION APPLICATION. (a) An applicant for a license by examination must present satisfactory evidence to the board that the applicant:

(1)  is at least 18 years of age;

(2)  is of good moral character;

(3)  has completed 60 semester hours of college courses at a school other than a chiropractic school; and

(4)  is either a graduate or a final semester student of a bona fide reputable chiropractic school.

(b)  An application for examination must be:

(1)  made in writing;

(2)  verified by affidavit;

(3)  filed with the secretary-treasurer of the board on a form prescribed by the board; and

(4)  accompanied by a fee.

(c)  Each applicant shall be given reasonable notice of the time and place of the examination. (V.A.C.S. Art. 4512b, Sec. 10(a) (part).)

Sec. 201.303.  EDUCATIONAL REQUIREMENTS. (a) To comply with the requirements of Section 201.302(a)(3), the applicant must submit to the board a transcript of credits that certifies that the applicant has satisfactorily completed 60 or more semester hours of college credits at a college or university that issues credits accepted by The University of Texas at Austin for a bachelor of arts or bachelor of science degree.

(b)  The credits required under Subsection (a) include the satisfactory completion of courses in anatomy, physiology, chemistry, bacteriology, pathology, hygiene, and public health. In this subsection, "satisfactory completion" means an average of 75 percent or better in each course.

(c)  The board may charge a fee of not more than $50 for verifying that the applicant has satisfied the requirements of this section.

(d)  A bona fide reputable chiropractic school that satisfies Section 201.302(a)(4) is one that:

(1)  has entrance requirements and a course of instruction as high as those of a better class of chiropractic schools in the United States;

(2)  maintains a resident course of instruction equivalent to:

(A)  not less than four terms of eight months each; or

(B)  not less than the number of semester hours required by The University of Texas for a bachelor of arts or bachelor of science degree;

(3)  provides a course of instruction in the fundamental subjects listed in Section 201.305(b); and

(4)  has the necessary teaching staff and facilities for proper instruction in all of the fundamental subjects listed in Section 201.305(b). (V.A.C.S. Art. 4512b, Secs. 10(a) (part), (d) (part).)

Sec. 201.304.  EXAMINATION REQUIREMENTS. (a) To receive a license, an applicant for a license by examination must pass:

(1)  the required and optional parts of the examination given by the National Board of Chiropractic Examiners, including the written clinical competency examination, under conditions established by board rule;

(2)  a practical examination given by the board; and

(3)  a written examination testing the applicant's knowledge and understanding of the laws relating to the practice of chiropractic in this state.

(b)  The board shall periodically determine whether applicants who hold National Board of Chiropractic Examiners certificates have been adequately examined. If the board determines that those applicants have not been adequately examined, the board shall require those applicants to submit to an additional examination prepared by the board.

(c)  The board may give an examination during the applicant's last semester of college if the board receives evidence indicating the applicant has satisfactory grades. Immediately after the applicant graduates from chiropractic college, the applicant must forward to the board evidence of satisfactory completion of the applicant's course of study. (V.A.C.S. Art. 4512b, Secs. 10(a) (part), (b), (g).)

Sec. 201.305.  EXAMINATION PROCEDURE. (a) Each examination for a license to practice chiropractic shall be conducted in writing in the English language and in a fair and impartial manner.

(b)  Examinations shall be conducted on practical and theoretical chiropractic and in the subjects of anatomy-histology, chemistry, bacteriology, physiology, symptomatology, pathology and analysis of the human spine, and hygiene and public health. Each applicant examined at the same time shall be given identical questions.

(c)  The board shall have the examination validated by an independent testing entity. The board may use an examination purchased from a national testing center only if the national testing center has the examination validated by an independent testing professional.

(d)  Applicants may be known to the examiners only by numbers, without a name or another method of identification on examination papers by which members of the board could identify an applicant, until after the general averages of the applicants' numbers in the class are determined and the licenses are granted or refused. (V.A.C.S. Art. 4512b, Sec. 12 (part).)

Sec. 201.306.  EXAMINATION RESULTS. (a) The board shall notify each applicant of the results of the examination not later than the 30th day after the date the licensing examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify the applicant of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.

(b)  If the notice of the examination results graded or reviewed by a national testing service will be delayed longer than 90 days after the examination date, the board shall notify the applicant of the reason for the delay before the 90th day.

(c)  If requested in writing by a person who fails an examination, the board shall provide to the person an analysis of the person's performance on the examination.

(d)  An applicant shall be granted a license to practice chiropractic if the applicant scores an average grade of at least 75 percent in each subject on the examination.

(e)  All questions and answers, with the grades attached, authenticated by the signature of the examiner, shall be preserved in the executive office of the board for at least one year.

(f)  Each license shall be attested by the seal of the board and signed by all members of the board or a quorum of the board. (V.A.C.S. Art. 4512b, Secs. 10(e), (f); 12 (part).)

Sec. 201.307.  REEXAMINATION. (a) An applicant who fails to pass the required examination may take another examination on subjects required in the original examination as prescribed by the board.

(b)  The board by rule shall establish the number of times and the conditions under which an applicant may retake an examination. The board may require an applicant to fulfill additional educational requirements.

(c)  If the applicant makes satisfactory grades in the subjects prescribed and taken on reexamination, the board shall grant to the applicant a license to practice chiropractic.

(d)  The board shall determine the grade to be given an applicant on the answers turned in on the subjects of complete and partial examination.

(e)  The board's decision under this section is final. (V.A.C.S. Art. 4512b, Sec. 10(c).)

Sec. 201.308.  TEMPORARY LICENSE. (a)  The board by rule may provide for the issuance of a temporary license.

(b)  The board by rule shall provide a time limit for the period a temporary license is valid. (V.A.C.S. Art. 4512b, Sec. 8e.)

Sec. 201.309.  PROVISIONAL LICENSE. (a) A person may apply for a provisional license to practice chiropractic by paying a fee and filing a written application with the board on a form prescribed by the board.

(b)  An applicant for a provisional license must:

(1)  be licensed in good standing to practice chiropractic for at least two years in another state or foreign country that:

(A)  has licensing requirements substantially equivalent to the requirements of this chapter; and

(B)  maintains professional standards considered by the board to be equivalent to the standards provided by this chapter;

(2)  have passed a national or other examination recognized by the board relating to the practice of chiropractic; and

(3)  be sponsored by a person licensed by the board under this chapter with whom the provisional license holder may practice chiropractic.

(c)  An applicant is not required to comply with Subsection (b)(3) if the board determines that compliance constitutes a hardship to the applicant.

(d)  An applicant for a provisional license must provide with the application:

(1)  a license or a certified copy of a license issued to the applicant after examination to practice chiropractic in another state or foreign country; and

(2)  an affidavit of the president or secretary of the board of chiropractic examiners that issued the license, or of a chiropractic registration officer of the other state or foreign country, stating that:

(A)  the accompanying license has not been canceled or revoked; and

(B)  the statements or qualifications contained in the application for a chiropractic license in this state are true.

(e)  As a part of the application, the applicant shall subscribe to an oath in writing before an officer authorized by law to administer oaths stating that:

(1)  the license under which the applicant practiced chiropractic in another jurisdiction was in full force and not suspended or canceled at the time the person moved from the area;

(2)  the applicant is the person to whom the license was issued;

(3)  a proceeding has not been instituted against the applicant for the cancellation of the license; and

(4)  a proceeding is not pending against the applicant in any state or federal court for an offense that would constitute a felony in this state.

(f)  A provisional license is valid until the date the board approves or denies the provisional license holder's application for a license under Section 201.310. (V.A.C.S. Art. 4512b, Secs. 9(a), (b), (c) (part).)

Sec. 201.310.  ISSUANCE OF LICENSE TO PROVISIONAL LICENSE HOLDER. (a) The board shall issue a license to the holder of a provisional license if:

(1)  the applicant passes the part of the examination under Section 201.304 that relates to the applicant's knowledge and understanding of the laws relating to the practice of chiropractic in this state;

(2)  the board verifies that the applicant has met the academic and experience requirements for a license under this chapter; and

(3)  the applicant satisfies any other license requirements under this chapter.

(b)  The board must complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. The board may extend the 180-day limit if the results of an examination have not been received by the board. (V.A.C.S. Art. 4512b, Secs. 9(c) (part), (d).)

Sec. 201.311.  INACTIVE STATUS. (a) The board by rule shall adopt a system by which a license holder may place the license on inactive status. A license holder must apply for inactive status, on a form prescribed by the board, before the expiration date of the license.

(b)  A license holder whose license is on inactive status:

(1)  is not required to pay license renewal fees; and

(2)  may not perform an activity regulated under this chapter.

(c)  A license holder whose license is on inactive status may return to active practice by notifying the board in writing. The board shall remove the license holder's license from inactive status after the holder pays an administrative fee and complies with any educational or other requirements established by board rules.

(d)  The board by rule shall establish a rule setting a limit on the time a license holder's license may remain on inactive status. (V.A.C.S. Art. 4512b, Sec. 8d.)

Sec. 201.312.  ACCREDITATION OF FACILITIES. (a) The board by rule shall adopt requirements for licensing and regulating chiropractic facilities as necessary to protect the public health, safety, and welfare.

(b)  The rules adopted under this section must:

(1)  specify the licensing requirements for a chiropractic facility;

(2)  prescribe the structure of the facility licensing program; and

(3)  provide for the issuance of only one facility license to an owner of a chiropractic facility without regard to the number of chiropractic facilities owned by the owner. (V.A.C.S. Art. 4512b, Sec. 12a.)

[Sections 201.313-201.350 reserved for expansion]

SUBCHAPTER H. ANNUAL REGISTRATION AND LICENSE RENEWAL

Sec. 201.351.  ANNUAL REGISTRATION. A chiropractor may not practice chiropractic in this state unless the chiropractor annually registers with the board not later than January 1 of each year. (V.A.C.S. Art. 4512b, Sec. 8 (part).)

Sec. 201.352.  APPLICATION FOR ANNUAL REGISTRATION. (a)  A person required to register shall:

(1)  file annually with the board a written application for registration; and

(2)  pay, with the application, an annual registration fee to the board.

(b)  The application must include:

(1)  the person's full name, age, post office address, and place of residence;

(2)  each place where the person is engaged in the practice of chiropractic;

(3)  the college of chiropractic from which the person graduated; and

(4)  the number and date of the person's license.

(c)  On receipt of the application and registration fee, the board shall determine whether the applicant is licensed to practice chiropractic in this state based on the records of the board or other sources the board considers reliable.

(d)  If the board determines that the applicant is licensed to practice chiropractic in this state, the board shall issue an annual registration receipt certifying that the applicant has filed an application and paid the registration fee.

(e)  The registration receipt is not evidence in a prosecution for the unlawful practice of chiropractic under Section 201.605 that the person is lawfully entitled to practice chiropractic. (V.A.C.S. Art. 4512b, Sec. 8 (part).)

Sec. 201.353.  LICENSE EXPIRATION DATE. (a) The board by rule may adopt a system under which licenses expire on various dates during the year.

(b)  For a year in which the license expiration date is changed, license fees payable on January 1 shall be prorated on a monthly basis so that each license holder pays only the portion of the fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 4512b, Sec. 8c.)

Sec. 201.354.  LICENSE RENEWAL. (a) A person may renew an unexpired license by paying the required renewal fee to the board before the expiration date of the license.

(b)  At least 30 days before the expiration of a person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the board's records.

(c)  The annual renewal fee applies to each person licensed by the board, even if the person is not practicing chiropractic in this state.

(d)  A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and an additional fee equal to one-half of the examination fee for the license. If a person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board all unpaid renewal fees and an additional fee equal to the examination fee for the license.

(e)  Except as provided by Section 201.355, a person may not renew a license that has been expired for one year or more. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.

(f)  A person who practices chiropractic without an annual renewal receipt for the current year practices chiropractic without a license. (V.A.C.S. Art. 4512b, Secs. 8a(a), (b), (c), (d), (e) (part), (f); 8b(a) (part).)

Sec. 201.355.  RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.

(b)  The person must pay to the board a fee that is equal to the amount of the examination fee for the license. (V.A.C.S. Art. 4512b, Sec. 8a(e) (part).)

Sec. 201.356.  CONTINUING EDUCATION. (a)  The board by rule shall:

(1)  assess the continuing education needs of license holders;

(2)  adopt requirements for mandatory continuing education for license holders in subjects relating to the practice of chiropractic;

(3)  establish a minimum number of hours of continuing education required to renew a license; and

(4)  develop a process to evaluate and approve continuing education courses.

(b)  The board may require license holders to attend continuing education courses specified by the board. The board shall adopt a procedure to assess a license holder's participation and performance in continuing education programs.

(c)  The board shall identify the key factors for the competent performance by a license holder of the license holder's professional duties.

(d)  The board shall notify license holders of approved continuing education courses at least annually. (V.A.C.S. Art. 4512b, Secs. 8b(b), (c), (d).)

[Sections 201.357-201.400 reserved for expansion]

SUBCHAPTER I. PATIENT CONFIDENTIALITY

Sec. 201.401.  DEFINITION OF PATIENT. In this subchapter, "patient" means any person who consults or is seen by a chiropractor to receive chiropractic care. (V.A.C.S. Art. 4512b, Sec. 1b(l).)

Sec. 201.402.  PATIENT CONFIDENTIALITY. (a)  Communications between a chiropractor and a patient relating to or in connection with any professional services provided by a chiropractor to the patient are confidential and privileged and may not be disclosed except as provided by this subchapter.

(b)  Records of the identity, diagnosis, evaluation, or treatment of a patient by a chiropractor that are created or maintained by a chiropractor are confidential and privileged and may not be disclosed except as provided by this subchapter.

(c)  A person who receives information from the confidential communications or records, excluding a person listed in Section 201.404(a) who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

(d)  The prohibitions of this section apply to confidential communications or records concerning any patient regardless of when the patient received the services of a chiropractor.

(e)  The privilege of confidentiality may be claimed by the patient or chiropractor acting on the patient's behalf. The authority of a chiropractor to claim the privilege of confidentiality on behalf of a patient is presumed in the absence of evidence to the contrary. (V.A.C.S. Art. 4512b, Secs. 1b(a), (b), (c), (d), (e), (f).)

Sec. 201.403.  EXCEPTIONS TO CONFIDENTIALITY FOR ADMINISTRATIVE PROCEDURE. (a) Section 201.402 does not apply in a court or administrative proceeding:

(1)  brought by a patient against a chiropractor, including:

(A)  a malpractice proceeding; and

(B)  any criminal or license revocation proceeding in which the patient is a complaining witness and disclosure is relevant to the claims or defense of the chiropractor;

(2)  in which the patient or a person authorized to act on the patient's behalf submits a written consent to the release of confidential information, as provided by Section 201.405;

(3)  brought to substantiate and collect on a claim for chiropractic services rendered to the patient;

(4)  brought by the patient or a person on the patient's behalf who is attempting to recover monetary damages for any physical or mental condition, including death of the patient;

(5)  brought in connection with a disciplinary investigation of a chiropractor under this chapter, except as provided by Subsection (b);

(6)  brought in connection with a criminal investigation of a chiropractor if the board is participating or assisting in the investigation or proceeding by providing certain records obtained from the chiropractor, except as provided by Subsection (c); and

(7)  brought in connection with a criminal prosecution in which the patient is a victim, witness, or defendant except as provided by Subsection (d).

(b)  The board shall protect the identity of any patient whose chiropractic records are examined in connection with an investigation or proceeding described by Subsection (a)(5), excluding patients described by Subsection (a)(1) and patients who have submitted written consent to the release of their chiropractic records as provided by Section 201.405.

(c)  The board shall protect the identity of any patient whose records are provided in connection with an investigation or proceeding described by Subsection (a)(6), excluding patients described by Subsection (a)(1) and patients who have submitted written consent to the release of their chiropractic records as provided by Section 201.405. The board does not authorize the release of any confidential information for the purpose of instigating or substantiating criminal charges against a patient.

(d)  In a proceeding described by Subsection (a)(7), records or communications are not discoverable until the court in which the prosecution is pending makes an in camera determination of relevancy. A determination of relevancy by a court under this subsection is not a determination of the admissibility of any record or communication.

(e)  Information is discoverable in a court or administrative proceeding in this state if the court or administrative body has jurisdiction over the subject matter of the proceeding. (V.A.C.S. Art. 4512b, Sec. 1b(g).)

Sec. 201.404.  EXCEPTIONS TO CONFIDENTIALITY FOR OTHER CIRCUMSTANCES. (a)  In circumstances other than court or administrative proceedings, exceptions to Section 201.402 exist only for:

(1)  a governmental agency, if the disclosure is required or permitted by law except as provided by Subsection (b);

(2)  medical or law enforcement personnel, if the chiropractor determines that a probability of imminent physical injury to the patient, the chiropractor, or others exists or a probability of immediate mental or emotional injury to the patient exists;

(3)  qualified personnel for the purpose of management audits, financial audits, program evaluations, or research, under the conditions provided by Subsection (c);

(4)  those parts of the records reflecting charges and specific services performed, if necessary to collect fees for services provided by a chiropractor, a professional association, or another entity qualified to render or arrange for services;

(5)  any person who possesses a written consent described by Section 201.405;

(6)  an individual, corporation, or governmental agency involved in paying or collecting fees for services performed by a chiropractor;

(7)  another chiropractor or personnel under the direction of the chiropractor who participate in the diagnosis, evaluation, or treatment of the patient; or

(8)  an official legislative inquiry of state hospitals or state schools under the conditions provided under Subsection (d).

(b)  A governmental agency shall protect the identity of any patient whose chiropractic records are examined under Subsection (a)(1).

(c)  Personnel described by Subsection (a)(3) may not directly or indirectly identify a patient in any report of research, audit, or evaluation or otherwise disclose a patient's identity in any manner.

(d)  Information released under Subsection (a)(8) may not include:

(1)  information or records that identify a patient or client for any purpose without proper consent given by the patient; and

(2)  records that were not created by the state hospital or school or its employees. (V.A.C.S. Art. 4512b, Sec. 1b(h).)

Sec. 201.405.  CONSENT FOR RELEASE. (a) In this section, "chiropractic records" means any record relating to the history, diagnosis, treatment, or prognosis of a patient.

(b)  Consent for the release of confidential information must be in writing and signed by:

(1)  the patient;

(2)  a parent or legal guardian if the patient is a minor;

(3)  a legal guardian if the patient has been adjudicated incompetent to manage the patient's personal affairs;

(4)  an attorney ad litem appointed for the patient, as authorized by:

(A)  Subtitle B, Title 6, Health and Safety Code;

(B)  Subtitle C, D, or E, Title 7, Health and Safety Code;

(C)  Chapter XIII, Texas Probate Code;

(D)  Chapter 107, Family Code; or

(E)  another applicable provision; or

(5)  a personal representative if the patient is deceased.

(c)  The written consent must specify:

(1)  the information records covered by the release;

(2)  the reason or purpose for the release; and

(3)  the person to whom the information is to be released.

(d)  The patient or the person authorized to consent to disclosure under this section may withdraw consent to the release of any information. Withdrawal of consent does not affect any information disclosed before written notice of the withdrawal.

(e)  A person who receives information made confidential by this chapter may disclose the information to another only to the extent that disclosure is consistent with the authorized purposes for which consent to release the information was obtained.

(f)  A chiropractor shall furnish copies of chiropractic records or a summary or narrative of the records requested under a written consent for release of the information. The chiropractor shall furnish the information within a reasonable time. The patient or a person acting on the patient's behalf shall pay a reasonable fee for the information provided by the chiropractor. The chiropractor may delete confidential information about another person who has not consented to the release.

(g)  A chiropractor who determines that access to information requested under Subsection (f) would be harmful to the physical, mental, or emotional health of the patient may refuse to release the information requested under this section. (V.A.C.S. Art. 4512b, Secs. 1b(j), (k).)

[Sections 201.406-201.450 reserved for expansion]

SUBCHAPTER J. REQUIREMENTS REGARDING USE OF CHIROPRACTIC

ASSISTANTS AND TECHNOLOGY

Sec. 201.451.  DELEGATION TO ASSISTANTS. (a)  The board by rule shall establish guidelines relating to the tasks and procedures that a chiropractor may delegate to an assistant.

(b)  A chiropractor who delegates a task or procedure under this section retains full responsibility for the task or procedure. (V.A.C.S. Art. 4512b, Sec. 6.)

Sec. 201.452.  USE OF X-RAY. (a) The board may require evidence of proper training and safety in the use of analytical and diagnostic x-ray in conformity with:

(1)  Chapter 401, Health and Safety Code; and

(2)  rules of the Texas Radiation Control Agency and the Texas Department of Health.

(b)  This section does not modify or amend:

(1)  Section 201.002 by enlarging the scope of the practice of chiropractic or the acts that a chiropractor is authorized to perform; or

(2)  Chapter 151.

(c)  The board shall implement any federal and state requirements relating to radiologic training of the employees of a chiropractor. (V.A.C.S. Art. 4512b, Sec. 14b.)

[Sections 201.453-201.500 reserved for expansion]

SUBCHAPTER K. DISCIPLINARY PROCEDURES

Sec. 201.501.  DISCIPLINARY POWERS OF BOARD. (a) On a determination that a person has violated this chapter or a rule adopted by the board under this chapter, the board:

(1)  shall revoke or suspend the person's license, place on probation a person whose license has been suspended, or reprimand a license holder; or

(2)  may impose an administrative penalty.

(b)  If a license suspension is probated, the board may require the license holder to:

(1)  report regularly to the board on matters that are the basis of the probation;

(2)  limit practice to the areas prescribed by the board; or

(3)  continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation.

(c)  In addition to other disciplinary actions authorized by this chapter, the board may require a license holder who violates this chapter to participate in a continuing education program. The board shall specify the continuing education programs that the license holder may attend and the number of hours that the license holder must complete.

(d)  Disciplinary proceedings of the board are governed by Chapter 2001, Government Code. (V.A.C.S. Art. 4512b, Secs. 14(a), (c), (k).)

Sec. 201.502.  GROUNDS FOR REFUSAL, REVOCATION, OR SUSPENSION OF LICENSE. (a) The board may refuse to admit a person to examinations and may revoke or suspend a license or place a license holder on probation for a period determined by the board for:

(1)  violating this chapter or a rule adopted under this chapter;

(2)  engaging in deception or fraud in the practice of chiropractic;

(3)  presenting to the board or using a license, certificate, or diploma that was illegally or fraudulently obtained;

(4)  presenting to the board an untrue statement or a document or testimony that was illegally used to pass the examination;

(5)  being convicted of a crime involving moral turpitude or a felony;

(6)  procuring or assisting in the procuring of an abortion;

(7)  engaging in grossly unprofessional conduct or dishonorable conduct of a character likely to deceive or defraud the public;

(8)  having a habit of intemperance or drug addiction or another habit that, in the opinion of the board, endangers the life of a patient;

(9)  using an advertising statement that tends to mislead or deceive the public;

(10)  directly or indirectly employing or associating with a person who, in the course of the person's employment, commits an act constituting the practice of chiropractic when the person is not licensed to practice chiropractic;

(11)  advertising professional superiority, or advertising the performance of professional services in a superior manner;

(12)  purchasing, selling, bartering, using, or offering to purchase, sell, barter, or use a chiropractic degree, license, certificate, or diploma or transcript of a license, certificate, or diploma in or relating to an application to the board for a license to practice chiropractic;

(13)  altering with fraudulent intent a chiropractic license, certificate, or diploma or transcript of a chiropractic license, certificate, or diploma;

(14)  impersonating or acting as proxy for another in an examination required by this chapter for a chiropractic license;

(15)  impersonating a licensed chiropractor;

(16)  allowing one's chiropractic license to be used by another person to practice chiropractic;

(17)  being proved insane by a person having authority to make that determination;

(18)  failing to use proper diligence in the practice of chiropractic or using gross inefficiency in the practice of chiropractic;

(19)  failing to clearly differentiate a chiropractic office or clinic from another business or enterprise;

(20)  personally soliciting a patient or causing a patient to be solicited by the use of a case history of another patient of another chiropractor;

(21)  using for the purpose of soliciting patients an accident report prepared by a peace officer in a manner prohibited by Section 38.12, Penal Code; or

(22)  advertising using the term "physician" or "chiropractic physician" or any combination or derivation of the term "physician."

(b)  Notwithstanding Subsection (a)(22), the term "chiropractic physician" may be used for the express purpose of filing a claim for necessary services within the definition of chiropractic under this chapter if the billing for the services has universally applied, predetermined coding or description requirements that are a prerequisite to appropriate reimbursement. (V.A.C.S. Art. 4512b, Sec. 14a (part).)

Sec. 201.503.  SCHEDULE OF SANCTIONS. (a)  The board by rule shall adopt a schedule of the maximum amount of sanctions that may be assessed against a license holder for each category of violation of this chapter. In establishing the schedule of sanctions or in imposing the amount of an administrative penalty under this chapter, the board shall consider:

(1)  the seriousness of the violation, including the nature, circumstances, extent, or gravity of any prohibited acts and the hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2)  the economic harm to property or the environment caused by the violation;

(3)  the history of previous violations;

(4)  the amount necessary to deter a future violation;

(5)  efforts to correct the violation; and

(6)  any other matter that justice may require.

(b)  The State Office of Administrative Hearings shall use the schedule of sanctions for any sanction imposed as the result of a hearing conducted by that office. (V.A.C.S. Art. 4512b, Secs. 14(d), (e).)

Sec. 201.504.  INFORMAL PROCEEDINGS. (a)  The board by rule shall adopt procedures governing:

(1)  informal disposition of a contested case under Section 2001.056, Government Code; and

(2)  an informal proceeding held in compliance with Section 2001.054, Government Code.

(b)  Rules adopted under Subsection (a) must:

(1)  provide the complainant and the license holder an opportunity to be heard; and

(2)  require the presence of a representative of the attorney general or the board's legal counsel to advise the board or the board's employees. (V.A.C.S. Art. 4512b, Sec. 14d.)

Sec. 201.505.  HEARINGS. (a)  A person is entitled to a hearing before the board if the board proposes to:

(1)  refuse the person's application for a license;

(2)  suspend or revoke the person's license; or

(3)  place on probation or reprimand the person.

(b)  The board is not bound by strict rules of evidence or procedure in conducting its proceedings and hearings, but the board must base its determination on sufficient legal evidence.

(c)  The board may:

(1)  issue subpoenas and subpoenas duces tecum to compel the attendance of witnesses and the production of books, records, and other documents;

(2)  administer oaths; and

(3)  take testimony concerning all matters within its jurisdiction. (V.A.C.S. Art. 4512b, Secs. 4b (part); 14(j).)

Sec. 201.506.  ENFORCEMENT COMMITTEE. (a)  The board shall appoint an enforcement committee to:

(1)  oversee and conduct the investigation of complaints filed with the board under this chapter; and

(2)  perform other enforcement duties as directed by the board.

(b)  The enforcement committee consists of three board members. Two members must be chiropractors, and one member must be a representative of the public.

(c)  The attorney general shall provide legal counsel to the enforcement committee concerning enforcement matters, including the investigation and disposition of complaints. (V.A.C.S. Art. 4512b, Sec. 14c.)

Sec. 201.507.  TEMPORARY LICENSE SUSPENSION. (a)  The enforcement committee may temporarily suspend the license of a license holder on an emergency basis if the enforcement committee determines from the evidence or information presented to the committee that the continued practice of chiropractic by the license holder constitutes a continuing or imminent threat to the public welfare.

(b)  The board by rule shall adopt procedures for the temporary suspension of a license under this section.

(c)  A license temporarily suspended under this section may be suspended without notice or hearing if, at the time the suspension is ordered, a hearing on whether disciplinary proceedings under this chapter should be initiated against the license holder is scheduled to be held not later than the 14th day after the date of the suspension.

(d)  A second hearing on the suspended license shall be held not later than the 60th day after the date the suspension is ordered. If the second hearing is not held in the time required by this subsection, the suspended license is automatically reinstated.

(e)  A temporary suspension may also be ordered on a vote of two-thirds of the board. (V.A.C.S. Art. 4512b, Sec. 19b.)

Sec. 201.508.  POWERS OF DISTRICT COURTS; DUTIES OF DISTRICT AND COUNTY ATTORNEYS. (a)  A district court may revoke or suspend a chiropractor's license on proof of a violation of the law relating to the practice of chiropractic.

(b)  On the request of the board, a district or county attorney shall represent the state by filing and prosecuting a judicial proceeding for the revocation, cancellation, or suspension of the chiropractor's license.

(c)  The district or county attorney may institute the judicial proceeding by filing a petition that:

(1)  is in writing;

(2)  states the grounds for prosecution; and

(3)  is signed officially by the prosecuting officer.

(d)  Citation must be issued in the name of the state in the manner and form as in other cases and shall be served on the defendant, who is required to answer within the time and manner provided by law in civil cases.

(e)  If a chiropractor, after proper citation, is found guilty or fails to appear and deny the charge, the court shall:

(1)  enter an order to suspend or revoke the chiropractor's license; and

(2)  give proper judgment for costs. (V.A.C.S. Art. 4512b, Secs. 15 (part), 16.)

Sec. 201.509.  REPRESENTATION BY ATTORNEY GENERAL. (a)  The board may apply to the attorney general for representation by stating that the board previously requested the representation of a district or county attorney under Section 201.508 and the district or county attorney failed to prosecute or proceed against the person accused of violating this chapter.

(b)  The attorney general shall institute a civil or criminal proceeding against the person in the county of the person's residence. (V.A.C.S. Art. 4512b, Sec. 17.)

Sec. 201.510.  RIGHT TO APPEAL. (a)  A person whose license to practice chiropractic has been revoked or suspended or against whom the board has imposed an administrative penalty may appeal to a district court in the county where the person resides.

(b)  The decision of the board may not be enjoined or stayed unless the person appeals the board's decision as provided by Subsection (a) and provides notices to the board. (V.A.C.S. Art. 4512b, Sec. 14(h).)

Sec. 201.511.  REISSUANCE OF LICENSE. (a) On application, the board may reissue a license to practice chiropractic to a person whose license has been canceled or suspended.

(b)  An applicant whose license has been canceled or revoked:

(1)  may not apply for reissuance before the first anniversary of the date the license was canceled or revoked; and

(2)  must apply for reissuance in the manner and form required by the board. (V.A.C.S. Art. 4512b, Sec. 14(i).)

[Sections 201.512-201.550 reserved for expansion]

SUBCHAPTER L. ADMINISTRATIVE PENALTY

Sec. 201.551.  IMPOSITION OF ADMINISTRATIVE PENALTY. The board may impose an administrative penalty on a person licensed or regulated under this chapter if the person violates this chapter or a rule or order adopted under this chapter. (V.A.C.S. Art. 4512b, Sec. 19a(a) (part).)

Sec. 201.552.  AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $1,000.

(b)  Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. (V.A.C.S. Art. 4512b, Sec. 19a(a) (part).)

Sec. 201.553.  ENFORCEMENT COMMITTEE RECOMMENDATIONS. (a) On a determination by the enforcement committee that a violation of this chapter or a rule or order adopted under this chapter occurred, the committee may issue a report to the board stating:

(1)  the facts on which the determination is based; and

(2)  the enforcement committee's recommendation on the imposition of the administrative penalty, including a recommendation on the amount of the penalty.

(b)  Not later than the 14th day after the date the report is issued, the executive director shall give written notice of the violation by certified mail to the person on whom the penalty may be imposed.

(c)  The notice issued under this section must:

(1)  include a brief summary of the alleged violation;

(2)  state the amount of the recommended penalty; and

(3)  inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4512b, Secs. 14e(a), (b).)

Sec. 201.554.  PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date a person receives the notice under Section 201.553, the person may:

(1)  accept in writing the enforcement committee's determination and recommended administrative penalty; or

(2)  make a written request for a hearing on that determination.

(b)  If the person accepts the enforcement committee's determination, the board by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Art. 4512b, Secs. 14e(c), (d).)

Sec. 201.555.  HEARING ON ENFORCEMENT COMMITTEE RECOMMENDATIONS. (a) If the person requests a hearing or fails to respond timely to the notice, the executive director shall set a hearing and give notice of the hearing to the person.

(b)  A hearing set by the executive director under Subsection (a) shall be held by an administrative law judge of the State Office of Administrative Hearings.

(c)  The administrative law judge shall:

(1)  make findings of fact and conclusions of law; and

(2)  promptly issue to the board a proposal for a decision as to the occurrence of the violation and the amount of a proposed administrative penalty. (V.A.C.S. Art. 4512b, Sec. 14e(e) (part).)

Sec. 201.556.  DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for a decision, the board by order may determine that:

(1)  a violation has occurred and impose an administrative penalty; or

(2)  a violation did not occur.

(b)  The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4512b, Secs. 14e(e) (part), (f).)

Sec. 201.557.  OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall:

(1)  pay the administrative penalty;

(2)  pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or

(3)  without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.

(b)  Within the 30-day period, a person who acts under Subsection (a)(3) may:

(1)  stay enforcement of the penalty by:

(A)  paying the penalty to the court for placement in an escrow account; or

(B)  giving to the court a supersedeas bond that is approved by the court and that:

(i)  is for the amount of the penalty; and

(ii)  is effective until judicial review of the board's order is final; or

(2)  request the court to stay enforcement of the penalty by:

(A)  filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and

(B)  giving a copy of the affidavit to the executive director by certified mail.

(c)  If the executive director receives a copy of an affidavit under Subsection (b)(2), the director may, at the direction of the enforcement committee, file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.

(d)  The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and stay the enforcement of the penalty on finding that the alleged facts are true. The person who files the affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4512b, Secs. 14e(g), (h), (i).)

Sec. 201.558.  COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may, at the direction of the enforcement committee, refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4512b, Sec. 14e(j).)

Sec. 201.559.  DETERMINATION BY COURT. (a) If a court sustains the finding that a violation occurred after the court reviews the order of the board imposing an administrative penalty, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced penalty.

(b)  If the court does not sustain the finding that a violation occurred, the court shall order that an administrative penalty is not owed. (V.A.C.S Art. 4512b, Sec. 19a(c).)

Sec. 201.560.  REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:

(1)  order the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or

(2)  order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.

(b)  The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4512b, Sec. 19a(d).)

Sec. 201.561.  ADMINISTRATIVE PROCEDURE. All proceedings under this subchapter are subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4512b, Sec. 19a(f).)

[Sections 201.562-201.600 reserved for expansion]

SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 201.601.  INJUNCTIVE RELIEF. (a) The board may institute in the board's name an action to restrain a violation of this chapter. An action under this subsection is in addition to any other action authorized by law.

(b)  The state may sue for an injunction to restrain the practice of chiropractic in violation of this chapter.

(c)  The state shall be represented in suits for injunction by:

(1)  the attorney general;

(2)  the district attorney of the district in which the defendant resides; or

(3)  the county attorney of the county in which the defendant resides.

(d)  A suit for injunction under Subsection (b) may not be filed before the final conviction for a violation of this chapter of the party sought to be enjoined.

(e)  The state is not required to show that a person is personally injured by the defendant's unlawful practice of chiropractic.

(f)  A court may not grant a temporary or permanent injunction until a hearing of the complaint on its merits. A court may not issue an injunction or restraining order until the final trial and final judgment on the merits of the suit.

(g)  If the defendant is shown to have been unlawfully practicing chiropractic or to have been about to unlawfully practice chiropractic, the court shall perpetually enjoin the defendant from practicing chiropractic in the manner that was the subject of the suit.

(h)  A defendant who disobeys the injunction is subject to the penalties provided by law for the violation of an injunction. The remedy by injunction is in addition to a criminal prosecution.

(i)  A suit for injunction under this section shall be advanced for trial on the docket of the trial court and advanced and tried in the appellate courts in the same manner as other suits for injunction. (V.A.C.S. Art. 4512b, Secs. 4b (part); 18.)

Sec. 201.602.  MONITORING LICENSE HOLDER. The board by rule shall develop a system for monitoring compliance with the requirements of this chapter of a license holder who is the subject of disciplinary action. Rules adopted under this section must include procedures to:

(1)  monitor for compliance a license holder who is ordered by the board to perform certain acts; and

(2)  identify and monitor each license holder who is the subject of disciplinary action and who presents a continuing threat to the public welfare through the practice of chiropractic. (V.A.C.S. Art. 4512b, Sec. 14(b).)

Sec. 201.603.  CIVIL PENALTY. (a) A person who violates this chapter or a rule adopted by the board under this chapter is liable to the state for a civil penalty of $1,000 for each day of violation.

(b)  At the request of the board, the attorney general shall bring an action to recover a civil penalty authorized by this section. (V.A.C.S. Art. 4512b, Sec. 19a(b).)

Sec. 201.604.  GENERAL CRIMINAL PENALTY. Except as provided by Section 201.605, a person commits an offense if the person violates this chapter. An offense under this section is a misdemeanor punishable by a fine of not less than $50 or more than $500 or by confinement in the county jail for not more than 30 days. (V.A.C.S. Art. 4512b, Secs. 5a(c) (part), 19.)

Sec. 201.605.  CRIMINAL PENALTY: PRACTICE WITHOUT LICENSE. (a) A person commits an offense if the person violates Section 201.301.

(b)  Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.

(c)  If it is shown on the trial of the offense that the defendant has been previously convicted under Subsection (a), the offense is a felony of the third degree.

(d)  Each day of violation constitutes a separate offense. (V.A.C.S. Art. 4512b, Sec. 5a(c) (part).)

CHAPTER 202. PODIATRISTS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 202.001. DEFINITIONS

Sec. 202.002. APPLICATION OF SUNSET ACT

Sec. 202.003. APPLICATION OF CHAPTER

[Sections 202.004-202.050 reserved for expansion]

SUBCHAPTER B. TEXAS STATE BOARD OF PODIATRIC MEDICAL EXAMINERS

Sec. 202.051. BOARD MEMBERSHIP

Sec. 202.052. OATH OF OFFICE

Sec. 202.053. PUBLIC MEMBER ELIGIBILITY

Sec. 202.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS

Sec. 202.055. TERMS

Sec. 202.056. GROUNDS FOR REMOVAL

Sec. 202.057. PER DIEM; REIMBURSEMENT

Sec. 202.058. OFFICERS

Sec. 202.059. MEETINGS

Sec. 202.060. LOCATION OF OFFICES

Sec. 202.061. TRAINING

[Sections 202.062-202.100 reserved for expansion]

SUBCHAPTER C. BOARD PERSONNEL

Sec. 202.101. DIVISION OF RESPONSIBILITIES

Sec. 202.102. QUALIFICATIONS AND STANDARDS OF CONDUCT

Sec. 202.103. CAREER LADDER PROGRAM; PERFORMANCE

EVALUATIONS

Sec. 202.104. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT

[Sections 202.105-202.150 reserved for expansion]

SUBCHAPTER D. BOARD POWERS AND DUTIES

Sec. 202.151. GENERAL RULEMAKING AUTHORITY

Sec. 202.152. RULES REGARDING ADVERTISING AND COMPETITIVE

BIDDING

Sec. 202.153. FEES

Sec. 202.154. COMMITTEES

Sec. 202.155. CONTRACTS WITH OTHER STATE AGENCIES

Sec. 202.156. BOARD RECORDS

Sec. 202.157. BOARD PROCEEDINGS

Sec. 202.158. BOARD DUTIES REGARDING COMPLAINTS

Sec. 202.159. ANNUAL REPORT REGARDING FUNDS

[Sections 202.160-202.200 reserved for expansion]

SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT

PROCEDURES

Sec. 202.201. PUBLIC INTEREST INFORMATION

Sec. 202.202. COMPLAINTS

Sec. 202.203. COMPLAINT RECORDS

Sec. 202.204. GENERAL RULES REGARDING COMPLAINT INVESTIGATION

AND DISPOSITION

Sec. 202.205. PUBLIC PARTICIPATION

[Sections 202.206-202.250 reserved for expansion]

SUBCHAPTER F. LICENSE REQUIREMENTS

Sec. 202.251. LICENSE REQUIRED

Sec. 202.252. LICENSE APPLICATION

Sec. 202.253. GROUNDS FOR DENIAL OF LICENSE

Sec. 202.254. EXAMINATION

Sec. 202.255. EXAMINATION RESULTS

Sec. 202.256. REEXAMINATION

Sec. 202.257. ISSUANCE OF LICENSE

Sec. 202.258. REFUSAL OF ADMITTANCE TO EXAMINATION

Sec. 202.259. TEMPORARY LICENSE

Sec. 202.260. PROVISIONAL LICENSE

Sec. 202.261. LIMITED LICENSE FOR PODIATRY FACULTY MEMBERS

Sec. 202.262. DISPLAY OF LICENSE

Sec. 202.263. ISSUANCE OF DUPLICATE OR AMENDED LICENSE

Sec. 202.264. INACTIVE STATUS

[Sections 202.265-202.300 reserved for expansion]

SUBCHAPTER G. LICENSE RENEWAL

Sec. 202.301. ANNUAL LICENSE RENEWAL

Sec. 202.302. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE

PRACTITIONER

Sec. 202.303. PRACTICE WITHOUT RENEWING LICENSE

Sec. 202.304. RENEWAL AFTER MILITARY SERVICE

Sec. 202.305. CONTINUING EDUCATION

[Sections 202.306-202.350 reserved for expansion]

SUBCHAPTER H. PRACTICE BY LICENSE HOLDER

Sec. 202.351. PODIATRY SERVICES FOR CERTAIN HEALTH

ORGANIZATIONS

Sec. 202.352. BOARD APPROVAL OF NAMES UNDER WHICH PODIATRIST

MAY PRACTICE

Sec. 202.353. MALPRACTICE CLAIM REPORTS

[Sections 202.354-202.400 reserved for expansion]

SUBCHAPTER I. PRIVILEGE AND CONFIDENTIALITY REQUIREMENTS

Sec. 202.401. DEFINITIONS

Sec. 202.402. SCOPE OF PRIVILEGE

Sec. 202.403. CLAIM OF PRIVILEGE

Sec. 202.404. EXCEPTIONS TO PRIVILEGE AND CONFIDENTIALITY

IN CERTAIN PROCEEDINGS

Sec. 202.405. OTHER EXCEPTIONS TO PRIVILEGE AND

CONFIDENTIALITY REQUIREMENTS

Sec. 202.406. CONSENT FOR RELEASE OF CONFIDENTIAL

INFORMATION

Sec. 202.407. DISCLOSURE OF RELEASED INFORMATION

[Sections 202.408-202.450 reserved for expansion]

SUBCHAPTER J. PEER REVIEW

Sec. 202.451. DEFINITIONS

Sec. 202.452. DISCLOSURE OF COMMUNICATIONS MADE TO PEER

REVIEW COMMITTEE

Sec. 202.453. INFORMATION PROVIDED TO AFFECTED PODIATRIST

Sec. 202.454. CONFIDENTIALITY REQUIREMENTS

Sec. 202.455. PRIVILEGE OF CONFIDENTIALITY; WAIVER

Sec. 202.456. IMMUNITY

Sec. 202.457. CLAIMS FOR DEFENSE COSTS

[Sections 202.458-202.500 reserved for expansion]

SUBCHAPTER K. DISCIPLINARY ACTIONS AND PROCEDURES

Sec. 202.501. BOARD DISCIPLINARY POWERS; ADMINISTRATIVE

PROCEDURE

Sec. 202.502. REVOCATION AND SUSPENSION OF LICENSE FOR

DRUG-RELATED FELONY CONVICTION

Sec. 202.503. PROBATION; HEARING

Sec. 202.504. REISSUANCE OF LICENSE

Sec. 202.505. REEXAMINATION IF LICENSE SUSPENDED OR

REVOKED

Sec. 202.506. APPLICATION TO CERTAIN DRUG OFFENSES

Sec. 202.507. SUBPOENA AUTHORITY

Sec. 202.508. INFORMAL PROCEEDINGS

Sec. 202.509. DISCLOSURE OF INVESTIGATIVE INFORMATION

[Sections 202.510-202.550 reserved for expansion]

SUBCHAPTER L. ADMINISTRATIVE PENALTY

Sec. 202.551. IMPOSITION OF PENALTY

Sec. 202.552. AMOUNT OF PENALTY

Sec. 202.553. REPORT AND NOTICE OF VIOLATION AND PENALTY

Sec. 202.554. PENALTY TO BE PAID OR HEARING REQUESTED

Sec. 202.555. HEARING

Sec. 202.556. DECISION BY BOARD

Sec. 202.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL

Sec. 202.558. COLLECTION OF PENALTY

Sec. 202.559. DETERMINATION BY COURT

Sec. 202.560. REMITTANCE OF PENALTY AND INTEREST

Sec. 202.561. ADMINISTRATIVE PROCEDURE

[Sections 202.562-202.600 reserved for expansion]

SUBCHAPTER M. OTHER PENALTIES AND

ENFORCEMENT PROVISIONS

Sec. 202.601. INJUNCTION

Sec. 202.602. MONITORING OF LICENSE HOLDER

Sec. 202.603. PROSECUTION OF VIOLATION

Sec. 202.604. CIVIL PENALTY: USE OF TRADE NAME;

INJUNCTION

Sec. 202.605. GENERAL CRIMINAL PENALTY: PRACTICING

WITHOUT LICENSE

Sec. 202.606. CRIMINAL PENALTY: AMPUTATION OF FOOT

CHAPTER 202. PODIATRISTS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 202.001.  DEFINITIONS. (a) In this chapter:

(1)  "Board" means the Texas State Board of Podiatric Medical Examiners.

(2)  "Executive director" means the employee of the board who manages the board's day-to-day operations.

(3)  "Podiatrist" means a person who:

(A)  is licensed under this chapter to practice podiatry and who directly or indirectly charges money or other compensation for podiatric services; or

(B)  publicly professes or claims to be a podiatrist, foot specialist, or doctor or uses any title, degree, letter, syllable, or word that would lead the public to believe that the person is a practitioner authorized to practice or assume the duties incident to the practice of podiatry.

(4)  "Podiatry" means the treatment of or offer to treat any disease, disorder, physical injury, deformity, or ailment of the human foot by any system or method. The term includes podiatric medicine.

(b)  In the laws of this state:

(1)  "chiropody" means podiatry; and

(2)  "chiropodist" means podiatrist. (V.A.C.S. Arts. 4567, 4567a.)

Sec. 202.002.  APPLICATION OF SUNSET ACT. The Texas State Board of Podiatric Medical Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished September 1, 2005. (V.A.C.S. Art. 4568b.)

Sec. 202.003.  APPLICATION OF CHAPTER. (a) This chapter does not apply to:

(1)  a physician licensed by the Texas State Board of Medical Examiners;

(2)  a surgeon of the United States Army, United States Navy, or United States Public Health Service, when performing that person's official duties; or

(3)  a bona fide member of an established church in ministering or offering to minister to the sick or suffering by prayer, as set forth in the principles, tenets, or teachings of the church of which the person is a bona fide member.

(b)  This chapter does not prohibit the recommendation, advertising, or sale of corrective shoes, arch supports or similar mechanical appliances, or foot remedies by a manufacturer, wholesaler, or retail dealer. (V.A.C.S. Arts. 4567d, 4575.)

[Sections 202.004-202.050 reserved for expansion]

SUBCHAPTER B. TEXAS STATE BOARD OF PODIATRIC MEDICAL EXAMINERS

Sec. 202.051.  BOARD MEMBERSHIP. (a)  The Texas State Board of Podiatric Medical Examiners consists of nine members appointed by the governor as follows:

(1)  six members who are reputable practicing podiatrists who have resided in this state and have been actively engaged in the practice of podiatry for the five years preceding appointment; and

(2)  three members who represent the public.

(b)  Appointments to the board shall be made without regard to the race, color, disability, sex, religion, or national origin of the appointees. (V.A.C.S. Art. 4568, Subsec. (a) (part).)

Sec. 202.052.  OATH OF OFFICE. Before entering office, a board member shall qualify for office by filing with the secretary of state the constitutional oath taken by the board member. (V.A.C.S. Art. 4568, Subsec. (g) (part).)

Sec. 202.053.  PUBLIC MEMBER ELIGIBILITY. A person is not eligible for appointment as a public member of the board if the person or the person's spouse:

(1)  is registered, certified, or licensed by an occupational regulatory agency in the field of health care;

(2)  is employed by or participates in the management of a business entity or other organization regulated by the board or receiving funds from the board;

(3)  owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by the board or receiving funds from the board; or

(4)  uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4568, Subsec. (b).)

Sec. 202.054.  MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b)  An officer, employee, or paid consultant of a Texas trade association in the health care industry may not be a member of the board and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(c)  A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the health care industry may not be a board member and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(d)  A person may not serve as a board member or act as the general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the board. (V.A.C.S. Art. 4568, Subsecs. (c), (d).)

Sec. 202.055.  TERMS. Members of the board serve staggered six-year terms. At the expiration of the term of each member, the governor shall appoint a successor. (V.A.C.S. Art. 4568, Subsec. (g) (part).)

Sec. 202.056.  GROUNDS FOR REMOVAL. (a)  It is a ground for removal from the board that a member:

(1)  does not have at the time of appointment the qualifications required by Section 202.051 or 202.053;

(2)  does not maintain during service on the board the qualifications required by Section 202.051 or 202.053;

(3)  violates a prohibition established by Section 202.054;

(4)  cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5)  is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by a majority vote of the board.

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

(c)  If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the president of the board of the potential ground. The president shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4568, Subsecs. (e), (f).)

Sec. 202.057.  PER DIEM; REIMBURSEMENT. (a) Each board member is entitled to a per diem as set by legislative appropriation for each day the member engages in the business of the board.

(b)  A member may not receive reimbursement for travel expenses, including expenses for meals and lodging, other than transportation expenses. A member is entitled to reimbursement for transportation expenses as prescribed by the General Appropriations Act.

(c)  The secretary of the board is entitled to reimbursement for the secretary's necessary expenses incurred in the performance of services for the board. (V.A.C.S. Art. 4574, Subsec. (d).)

Sec. 202.058.  OFFICERS. At the first regular scheduled meeting of each biennium, the board shall elect from its members a president, vice president, and secretary. (V.A.C.S. Art. 4568, Subsec. (g) (part).)

Sec. 202.059.  MEETINGS. (a) The board shall hold regular meetings at least twice a year and special meetings as necessary. The board shall hold the meetings at times and places the board considers most convenient for applicants for license examinations.

(b)  A special meeting shall be held on the call of the president or on the request of a majority of board members.

(c)  If a quorum is not present on the day of a meeting, the members present may adjourn from day to day until a quorum is present. (V.A.C.S. Art. 4568, Subsec. (h) (part).)

Sec. 202.060.  LOCATION OF OFFICES. The board shall maintain offices in Austin. (V.A.C.S. Art. 4568, Subsec. (k).)

Sec. 202.061.  TRAINING. If another state agency is given authority to establish training requirements for the board, each board member shall comply with those training requirements. (V.A.C.S. Art. 4568d, Subsec. (a).)

[Sections 202.062-202.100 reserved for expansion]

SUBCHAPTER C. BOARD PERSONNEL

Sec. 202.101.  DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4568, Subsec. (p).)

Sec. 202.102.  QUALIFICATIONS AND STANDARDS OF CONDUCT. The board shall provide, as often as necessary, to its members and employees information regarding their:

(1)  qualifications for office or employment under this chapter; and

(2)  responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4568d, Subsec. (b).)

Sec. 202.103.  CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency posting of all non-entry-level positions concurrently with any public posting.

(b)  The executive director or the executive director's designee shall develop a system of annual performance evaluations based on measurable job tasks. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4568, Subsecs. (n), (o).)

Sec. 202.104.  EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to assure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:

(1)  personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel, that are in compliance with Chapter 21, Labor Code;

(2)  a comprehensive analysis of the board workforce that meets federal and state guidelines;

(3)  procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and

(4)  reasonable methods to appropriately address those areas of underuse.

(b)  A policy statement prepared under Subsection (a) must:

(1)  cover an annual period;

(2)  be updated annually;

(3)  be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and

(4)  be filed with the governor.

(c)  The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports to the legislature. (V.A.C.S. Art. 4568c.)

[Sections 202.105-202.150 reserved for expansion]

SUBCHAPTER D. BOARD POWERS AND DUTIES

Sec. 202.151.  GENERAL RULEMAKING AUTHORITY. The board shall adopt reasonable or necessary rules and bylaws consistent with the law regulating the practice of podiatry, the law of this state, and the law of the United States to govern:

(1)  its proceedings and activities;

(2)  the regulation of the practice of podiatry; and

(3)  the enforcement of the law regulating the practice of podiatry. (V.A.C.S. Art. 4568, Subsec. (j) (part).)

Sec. 202.152.  RULES REGARDING ADVERTISING AND COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by the person.

(b)  The board may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:

(1)  restricts the person's use of any medium for advertising;

(2)  restricts the person's personal appearance or use of the person's voice in an advertisement;

(3)  relates to the size or duration of an advertisement by the person; or

(4)  restricts the person's advertisement under a trade name. (V.A.C.S. Art. 4575b.)

Sec. 202.153.  FEES. (a) The board by rule shall establish fees in amounts reasonable and necessary to cover the cost of administering this chapter. The board may not set a fee that existed on September 1, 1993, in an amount less than the amount of that fee on that date.

(b)  The board may not maintain unnecessary fund balances, and fee amounts shall be established in accordance with this requirement. (V.A.C.S. Arts. 4571, Sec. 1(a) (part); 4574, Subsecs. (a), (c).)

Sec. 202.154.  COMMITTEES. The board may appoint committees from its own membership. The duties of a committee are to:

(1)  consider matters relating to the enforcement of the law regulating the practice of podiatry and the rules adopted in accordance with that law as referred to the committee; and

(2)  make recommendations to the board with respect to the enforcement of those matters. (V.A.C.S. Art. 4568, Subsec. (j) (part).)

Sec. 202.155.  CONTRACTS WITH OTHER STATE AGENCIES. The board may contract with the Texas State Board of Medical Examiners or any other appropriate state agency to provide some or all of the services necessary to carry out the board's activities. (V.A.C.S. Art. 4568, Subsec. (j) (part).)

Sec. 202.156.  BOARD RECORDS. (a)  The board shall keep correct records of the board's proceedings and of all money received or spent by the board. The records shall be open to public inspection at all reasonable times. The records must include:

(1)  a record of proceedings relating to the examination of license applicants;

(2)  a record of proceedings relating to the issuance, renewal, or refusal of a license, including information on whether an application was rejected or granted;

(3)  the name, age, and known place of residence of each applicant for a license or license renewal;

(4)  the name and location of the college of podiatry from which each license applicant holds credentials and the time devoted by the applicant to the study and practice of podiatry; and

(5)  any other information the board desires to record.

(b)  Each license and annual renewal certificate issued by the board must be numbered and recorded in a book kept by the board.

(c)  Information in a record is prima facie evidence of each matter contained in the record.

(d)  A certified copy of a record, under the hand and seal of the custodian of records of the board, is admissible as evidence in all courts. (V.A.C.S. Art. 4568, Subsec. (j) (part).)

Sec. 202.157.  BOARD PROCEEDINGS. (a) The board is not bound by the strict rules of procedure or by the laws of evidence in the conduct of its proceedings, but a board determination must be founded on legal evidence sufficient to sustain it.

(b)  Each order of the board is prima facie valid. (V.A.C.S. Arts. 4568, Subsec. (j) (part); 4570, Subsec. (f).)

Sec. 202.158.  BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:

(1)  adopt a form to standardize information concerning complaints made to the board; and

(2)  prescribe information to be provided to a person when the person files a complaint with the board.

(b)  The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4573c, Subsecs. (b), (c).)

Sec. 202.159.  ANNUAL REPORT REGARDING FUNDS. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.

(b)  The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4568, Subsec. (m).)

[Sections 202.160-202.200 reserved for expansion]

SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT

PROCEDURES

Sec. 202.201.  PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of public interest describing the functions of the board and the board's procedures by which complaints are filed with and resolved by the board.

(b)  The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4575c, Subsec. (a).)

Sec. 202.202.  COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notification:

(1)  on each registration form, application, brochure, or written contract for services of a person regulated under this chapter;

(2)  on a sign prominently displayed in the place of business of each person regulated by the board; or

(3)  in a bill for service provided by a person regulated by the board.

(b)  The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4575c, Subsecs. (b), (c).)

Sec. 202.203.  COMPLAINT RECORDS. (a) The board shall keep an information file about each complaint filed with the board. The information file must be kept current and contain a record for each complaint of:

(1)  each person contacted in relation to the complaint;

(2)  a summary of findings made at each step of the complaint process;

(3)  an explanation of the legal basis and reason for a complaint that is dismissed;

(4)  the schedule established for the complaint under Section 202.204 and a notation of a change in the schedule; and

(5)  other relevant information.

(b)  If a written complaint is filed with the board, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notification would jeopardize an undercover investigation. (V.A.C.S. Arts. 4573, Subsec. (a); 4573c(a), (e) (part).)

Sec. 202.204.  GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this subsection must:

(1)  distinguish between categories of complaints;

(2)  ensure that complaints are not dismissed without appropriate consideration;

(3)  require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;

(4)  ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and

(5)  prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.

(b)  The board shall:

(1)  dispose of all complaints in a timely manner; and

(2)  establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.

(c)  The board shall notify each party of the projected time requirements for the complaint. The board shall notify each party to the complaint of the change in the schedule not later than the seventh day after the date the change is made.

(d)  The executive director shall notify the board of a complaint that is not resolved within the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4573c(d), (e) (part), (f).)

Sec. 202.205.  PUBLIC PARTICIPATION. (a) The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the board's jurisdiction.

(b)  The board shall prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the board's programs. (V.A.C.S. Art. 4568, Subsecs. (q) (part), (r).)

[Sections 202.206-202.250 reserved for expansion]

SUBCHAPTER F. LICENSE REQUIREMENTS

Sec. 202.251.  LICENSE REQUIRED. A person may not practice podiatry or hold the person out as a podiatrist unless the person is licensed under this chapter. (V.A.C.S. Art. 4567b (part).)

Sec. 202.252.  LICENSE APPLICATION. (a) A person who desires to practice podiatry in this state shall apply in writing to the board for a license on a form prescribed by the board.

(b)  The applicant shall submit any information reasonably required by the board, including evidence satisfactory to the board that the applicant:

(1)  is at least 21 years of age;

(2)  is of good moral character;

(3)  has completed at least 90 semester hours of college courses acceptable at the time of completion for credit toward a bachelor's degree at The University of Texas;

(4)  is a graduate of a reputable school of podiatry or chiropody; and

(5)  has successfully completed any other course of training reasonably required by board rule relating to the safe care and treatment of patients.

(c)  The applicant shall verify by affidavit the information submitted in the application.

(d)  The applicant shall establish that the applicant graduated from a reputable school of podiatry or chiropody by furnishing a diploma from that school.

(e)  All educational attainments or credits for evaluation under this chapter must be completed within the United States. The board may not accept educational credits attained in a foreign country that are not acceptable to The University of Texas for credit toward a bachelor's degree.

(f)  For purposes of this section, a podiatry or chiropody school is reputable if:

(1)  the course of instruction consists of four terms of approximately eight months each, or the substantial equivalent; and

(2)  the school is approved by the board. (V.A.C.S. Art. 4570, Subsecs. (a), (b), (c).)

Sec. 202.253.  GROUNDS FOR DENIAL OF LICENSE. (a) The board may refuse to admit a person to an examination, and may refuse to issue a license to practice podiatry to a person, for:

(1)  presenting to the board a license, certificate, or diploma that was illegally or fraudulently obtained or engaging in fraud or deception in passing the examination;

(2)  being convicted of:

(A)  a felony;

(B)  a crime that involves moral turpitude; or

(C)  an offense under Section 202.606;

(3)  engaging in habits of intemperance or drug addiction that in the board's opinion would endanger the health, well-being, or welfare of patients;

(4)  engaging in grossly unprofessional or dishonorable conduct of a character that in the board's opinion is likely to deceive or defraud the public;

(5)  directly or indirectly violating or attempting to violate this chapter or a rule adopted under this chapter as a principal, accessory, or accomplice;

(6)  using any advertising statement of a character tending to mislead or deceive the public;

(7)  advertising professional superiority or the performance of professional service in a superior manner;

(8)  purchasing, selling, bartering, or using or offering to purchase, sell, barter, or use a podiatry degree, license, certificate, diploma, or a transcript of a license, certificate, or diploma, in or incident to an application to the board for a license to practice podiatry;

(9)  altering, with fraudulent intent, a podiatry license, certificate, diploma, or a transcript of a podiatry license, certificate, or diploma;

(10)  using a podiatry license, certificate, or diploma, or a transcript of a podiatry license, certificate, or diploma, that has been fraudulently purchased, issued, counterfeited, or materially altered;

(11)  impersonating, or acting as proxy for, another person in a podiatry license examination;

(12)  impersonating a license holder, or permitting another person to use the license holder's license to practice podiatry in this state, to treat or offer to treat, by any method, conditions and ailments of human feet;

(13)  directly or indirectly employing a person whose license to practice podiatry has been suspended or associating in the practice of podiatry with a person whose license to practice podiatry has been suspended or who has been convicted of the unlawful practice of podiatry in this state or elsewhere;

(14)  wilfully making in the application for a license to practice podiatry a material misrepresentation or material untrue statement;

(15)  being unable to practice podiatry with reasonable skill and safety to a patient because of age, illness, drunkenness, or excessive use of drugs, narcotics, chemicals, or other substances or as a result of a mental or physical condition;

(16)  failing to practice podiatry in an acceptable manner consistent with public health and welfare;

(17)  being removed, suspended, or disciplined in another manner by the podiatrist's peers in a professional podiatry association or society, whether local, regional, state, or national in scope, or being disciplined by a licensed hospital or the medical staff of a hospital, including removal, suspension, limitation of hospital privileges, or other disciplinary action, if the board determines that the action was:

(A)  based on unprofessional conduct or professional incompetence likely to harm the public; and

(B)  appropriate and reasonably supported by evidence submitted to the association, society, hospital, or medical staff; or

(18)  having repeated or recurring meritorious health care liability claims filed against the podiatrist that in the board's opinion are evidence of professional incompetence likely to injure the public.

(b)  In enforcing Subsection (a)(15), the board, on probable cause, shall request the affected podiatrist to submit to a mental or physical examination by a physician designated by the board. If the podiatrist refuses to submit to the examination, the board shall issue an order requiring the podiatrist to show cause why the podiatrist will not submit to the examination and shall schedule a hearing on the order not later than the 30th day after the date notice is served on the podiatrist. The podiatrist shall be notified by either personal service or certified mail with return receipt requested.

(c)  At the hearing, the podiatrist and the podiatrist's attorney may present testimony and other evidence to show why the podiatrist should not be required to submit to the examination. After a complete hearing, the board shall issue an order either requiring the podiatrist to submit to the examination or withdrawing the request for examination. (V.A.C.S. Art. 4570, Subsec. (d).)

Sec. 202.254.  EXAMINATION. (a) Except as provided by Section 202.261, each applicant for a license to practice podiatry in this state must pass an examination approved by the board. Each applicant shall pay to the board an examination fee at least 15 days before the date of the scheduled examination.

(b)  The board may adopt and enforce rules of procedure for administering this section. A public board member may not participate in any part of the examination process for applicants for a license issued by the board that requires knowledge of the practice of podiatry.

(c)  The license examination must consist of a written and practical component. The board shall determine the passing score for the examination using accepted criterion-referenced methods. The board shall have the examination validated by an independent testing professional.

(d)  The examination must cover the subjects of anatomy, chemistry, dermatology, diagnosis, pharmacology, pathology, physiology, microbiology, orthopedics, and podiatry, as related to ailments of the human foot.

(e)  The board shall determine the credit to be given on the examination answers. The discretion of the board on the examination is final. (V.A.C.S. Arts. 4568, Subsec. (a) (part); 4569(a), (b), (c), (d), (e), (f).)

Sec. 202.255.  EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date a licensing examination is administered under this chapter. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.

(b)  If the notice of examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.

(c)  If requested in writing by a person who fails the examination, the board shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Arts. 4569(i), (k).)

Sec. 202.256.  REEXAMINATION. (a) An applicant who fails an examination and is refused a license based on that failure may retake the examination. The applicant must pay the regular examination fee for any reexamination.

(b)  Each reexamination must cover each subject tested in Section 202.254(d). (V.A.C.S. Arts. 4569(g), (h).)

Sec. 202.257.  ISSUANCE OF LICENSE. The board shall issue a license to each applicant who possesses the qualifications required for a license and passes the examination. (V.A.C.S. Art. 4569(c) (part).)

Sec. 202.258.  REFUSAL OF ADMITTANCE TO EXAMINATION. An applicant who is refused admittance to examination may try the issue in a district court in Travis County. (V.A.C.S. Art. 4570, Subsec. (e).)

Sec. 202.259.  TEMPORARY LICENSE. (a) The board by rule may adopt a procedure for the issuance of a temporary license to an applicant other than an applicant for a provisional license under Section 202.260.

(b)  Rules adopted under this section must establish:

(1)  the criteria for issuance of a temporary license; and

(2)  a maximum period during which a temporary license is valid. (V.A.C.S. Art. 4571b.)

Sec. 202.260.  PROVISIONAL LICENSE. (a) On application, the board shall grant a provisional license to practice podiatry to an applicant who:

(1)  is licensed in good standing as a podiatrist in another state that has licensing requirements that are substantially equivalent to the requirements of this chapter;

(2)  has passed a national or other examination recognized by the board relating to the practice of podiatry; and

(3)  is sponsored by a person licensed under this chapter with whom the provisional license holder may practice under this section.

(b)  The board may excuse an applicant for a provisional license from the requirement of Subsection (a)(3)  if the board determines that compliance with that subsection constitutes a hardship to the applicant.

(c)  A provisional license is valid until the date the board approves or denies the provisional license holder's application for a license. The board shall issue a license under this chapter to the holder of a provisional license under this section if:

(1)  the provisional license holder passes the examination required by Section 202.254;

(2)  the board verifies that the provisional license holder has the academic and experience requirements for a license under this chapter; and

(3)  the provisional license holder satisfies any other license requirements under this chapter.

(d)  The board shall complete the processing of a provisional license holder's application for a license not later than the 180th day after the date the provisional license is issued. The board may extend that deadline to allow for the receipt of pending examination results. (V.A.C.S. Art. 4571a.)

Sec. 202.261.  LIMITED LICENSE FOR PODIATRY FACULTY MEMBERS. (a) The board may issue a license to practice podiatry without administering the examination under Section 202.254 to a podiatrist who:

(1)  at the time of applying for a license has accepted an appointment or is serving as a full-time member of the faculty of an educational institution in this state offering an approved or accredited course of study or training leading to a degree in podiatry;

(2)  is licensed to practice podiatry in another state that has licensing requirements substantially equivalent to those established by this state; and

(3)  otherwise satisfies the requirements of Section 202.252.

(b)  For purposes of Subsection (a)(1), a course of study, training, or education is considered to be approved or accredited if it is approved or accredited by the board as constituting a reputable course of study, training, or education. In deciding whether to approve or accredit a course of study, training, or education, the board shall consider whether the course is approved or accredited by the Council on Podiatric Medical Education of the American Podiatric Medical Association or its successor organization.

(c)  Except for the examination requirement, an applicant for a license under this section must comply with all application, license, and license renewal requirements relating to podiatry and is subject to all laws relating to the practice of podiatry.

(d)  A license issued under this section permits the practice of podiatry only for purposes of instruction in the educational institution.

(e)  A license issued under this section terminates when the faculty appointment of a podiatrist licensed under this section is terminated. This section does not:

(1)  prohibit the podiatrist from applying for and obtaining a license; or

(2)  affect a license obtained by the podiatrist by complying with Section 202.254 and other applicable laws relating to the practice of podiatry. (V.A.C.S. Art. 4569a.)

Sec. 202.262.  DISPLAY OF LICENSE. (a) A person licensed under this chapter must conspicuously display both the license and an annual renewal certificate for the current year of practice at the location where the person practices.

(b)  The person shall exhibit the license and renewal certificate to a board representative on the representative's official request for examination or inspection. (V.A.C.S. Art. 4571, Sec. 5.)

Sec. 202.263.  ISSUANCE OF DUPLICATE OR AMENDED LICENSE. (a) If a license issued by the board is lost, destroyed, or stolen from the person to whom it was issued, the license holder shall report the fact to the board in an affidavit. The affidavit must include detailed information as to the loss, destruction, or theft, giving dates, place, and circumstances.

(b)  A license holder may apply to the board for an amended license because of a lawful change in the person's name or degree designation or for any other lawful and sufficient reason. The license holder must state the reasons that the issuance of an amended license is requested.

(c)  The board shall issue a duplicate or amended license on application by a license holder and payment of a fee set by the board for the duplicate or amended license. The board may not issue a duplicate or amended license unless:

(1)  the license holder submits sufficient evidence to prove the license has been lost, destroyed, or stolen or establishes the lawful reason that an amended license should be issued; and

(2)  the board's records show a license had been issued and was in effect at the time of the loss, destruction, or theft or on the date of the request for an amended license.

(d)  If an amended license is issued, the license holder shall return the original license to the board. (V.A.C.S. Art. 4571, Sec. 4.)

Sec. 202.264.  INACTIVE STATUS. The board by rule may provide for the license of a person under this chapter to be placed on inactive status. Rules adopted under this section must include a time limit for a license to remain on inactive status. (V.A.C.S. Art. 4571, Sec. 7.)

[Sections 202.265-202.300 reserved for expansion]

SUBCHAPTER G. LICENSE RENEWAL

Sec. 202.301.  ANNUAL LICENSE RENEWAL. (a) The board by rule may adopt a system under which licenses expire on various dates during the year, and the dates for sending notice that payment is due and dates of suspension, revocation, and assessment of a penalty for nonpayment shall be adjusted accordingly. For the year in which the license renewal date is changed, license fees payable on November 1 shall be prorated on a monthly basis so that each license holder shall pay only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable.

(b)  At least 30 days before the expiration of a person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the board's records.

(c)  A person may renew the person's unexpired license by paying the required renewal fee to the board before the expiration date of the license.

(d)  A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee equal to half of the amount charged for examination for the license. If a license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board all unpaid renewal fees and a fee equal to the amount charged for examination for the license.

(e)  If a person's license has been expired for one year or longer, the person may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4571, Secs. 1(a) (part), (d), (e), (f), (g), (h) (part), (i).)

Sec. 202.302.  RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date the person applied for renewal.

(b)  The person must pay to the board a fee equal to the amount charged for examination for the license. (V.A.C.S. Art. 4571, Sec. 1(h) (part).)

Sec. 202.303.  PRACTICE WITHOUT RENEWING LICENSE. A person who practices podiatry without an annual renewal certificate for the current year is considered to be practicing without a license and is subject to all the penalties of the practice of podiatry without a license. (V.A.C.S. Art. 4571, Sec. 2.)

Sec. 202.304.  RENEWAL AFTER MILITARY SERVICE. (a) Except as provided by Subsection (c), this section applies to a podiatrist whose license has been suspended or revoked, or whose annual renewal certificate has expired, while the podiatrist has been:

(1)  engaged in federal service or on active duty with:

(A)  the United States Army;

(B)  the United States Navy;

(C)  the United States Marine Corps;

(D)  the United States Coast Guard; or

(E)  the United States Air Force;

(2)  called into service or training of the United States; or

(3)  in training or education under the supervision of the United States before induction into military service.

(b)  A podiatrist subject to this section may renew the podiatrist's license without paying a renewal fee for the expired license or passing an examination if, not later than the first anniversary of the date of the termination of service, training, or education described by Subsection (a), other than by dishonorable discharge, the podiatrist furnishes to the board an affidavit stating that the podiatrist has been so engaged and that the service, training, or education has terminated.

(c)  This section does not apply to a podiatrist whose license is revoked under Section 202.502. (V.A.C.S. Art. 4571, Sec. 6.)

Sec. 202.305.  CONTINUING EDUCATION. (a) The board shall develop a mandatory continuing education program. In developing its program, the board shall:

(1)  establish by rule the minimum hours of continuing education required for license renewal;

(2)  identify the key factors that lead to the competent performance of professional duties;

(3)  develop a process to evaluate and approve continuing education courses; and

(4)  develop a process to assess the participation and performance of license holders in continuing education courses to enable the board to evaluate the overall effectiveness of the program.

(b)  The board may assess the continuing education needs of a license holder and require the license holder to attend continuing education courses specified by the board. (V.A.C.S. Art. 4571, Sec. 1(c).)

[Sections 202.306-202.350 reserved for expansion]

SUBCHAPTER H. PRACTICE BY LICENSE HOLDER

Sec. 202.351.  PODIATRY SERVICES FOR CERTAIN HEALTH ORGANIZATIONS. A licensed podiatrist may contract with a health organization approved by the Texas State Board of Medical Examiners under Chapter 162 to provide podiatry services for the health organization. (V.A.C.S. Art. 4576.)

Sec. 202.352.  BOARD APPROVAL OF NAMES UNDER WHICH PODIATRIST MAY PRACTICE. (a) The board may adopt rules establishing standards or guidelines for the name, including a trade name or assumed name, under which a podiatrist may conduct a practice in this state. In its rules, the board may also establish procedures to review and make determinations approving or disapproving a specific name submitted to the board by one or more podiatrists desiring to practice under a particular name.

(b)  The authority granted to the board by this section includes any form of business organization under which a podiatrist conducts a practice, including:

(1)  a sole proprietorship;

(2)  an association;

(3)  a partnership;

(4)  a professional corporation;

(5)  a clinic;

(6)  a health maintenance organization; and

(7)  a group practice with a practitioner of another branch of the healing art.

(c)  A podiatrist may not practice podiatry in this state under any name, including a trade name or assumed name, unless the name is in compliance with the applicable rules adopted or determinations made under this section. (V.A.C.S. Art. 4568a, Subsecs. (a), (b), (c).)

Sec. 202.353.  MALPRACTICE CLAIM REPORTS. (a) An insurer who delivers or issues for delivery in this state professional liability insurance coverage to a podiatrist who practices in this state shall furnish to the board the information specified in Subsection (b) relating to:

(1)  a notice of claim letter or a complaint filed against the insured in a court, if the notice of claim letter or the complaint seeks the recovery of damages based on the insured's conduct in providing or failing to provide medical or health care services; or

(2)  a settlement of a claim or other legal action made by the insurer on behalf of the insured.

(b)  The insurer shall furnish the following information not later than the 30th day after the date the insurer receives the notice of claim letter or complaint against the insured:

(1)  the name of the insured;

(2)  the number of the insured's license to practice podiatry in this state;

(3)  the insured's insurance policy number; and

(4)  a copy of the notice of claim letter or complaint.

(c)  If a podiatrist who practices in this state is not covered by professional liability insurance or is insured by an insurer who is not authorized to write professional liability insurance for podiatrists in this state, the affected podiatrist shall submit information to the board relating to any malpractice action brought against that podiatrist. The podiatrist shall submit the information as required by rules adopted by the board under Subsections (d)-(f).

(d)  In consultation with the commissioner of insurance, the board shall adopt rules for reporting the information required under Subsections (a)  and (b)  and any additional information required by the board.

(e)  The board shall consider other claim reports required under state or federal law in determining:

(1)  any additional information to be reported;

(2)  the form of the report; and

(3)  reasonable reporting intervals.

(f)  The board may require additional information, including:

(1)  the date of a judgment, dismissal, or settlement of a malpractice action;

(2)  whether an appeal has been taken and the identity of the party appealing; and

(3)  the amount of any judgment or settlement.

(g)  An insurer, an agent or employee of the insurer, a board member, or an employee or representative of the board is not liable or subject to a cause of action for an action taken as required under this section.

(h)  A report or information submitted to the board under this section or the fact that a report or information has been submitted may not be offered in evidence or in any manner used in the trial of an action brought against a podiatrist based on the podiatrist's conduct in providing or failing to provide medical or health care services.

(i)  The board shall review the information relating to a podiatrist against whom three or more malpractice claims have been reported during any five-year period in the same manner as if a complaint against that podiatrist had been made to the board under Subchapter E.

(j)  The commissioner of insurance may impose the sanctions authorized by Section 7, Article 1.10, Insurance Code, against an insurer subject to this section who fails to report as prescribed by this section. (V.A.C.S. Art. 4573b.)

[Sections 202.354-202.400 reserved for expansion]

SUBCHAPTER I. PRIVILEGE AND CONFIDENTIALITY REQUIREMENTS

Sec. 202.401.  DEFINITIONS. In this subchapter:

(1)  "Patient" means a person who consults or is seen by a podiatrist to receive podiatric care.

(2)  "Podiatric record" means a record relating to the history, diagnosis, treatment, or prognosis of a patient. (V.A.C.S. Art. 4575d, Sec. 1.)

Sec. 202.402.  SCOPE OF PRIVILEGE. (a) A communication that relates to or is in connection with professional services provided by a podiatrist for a patient is confidential and privileged and may not be disclosed except as provided by this subchapter.

(b)  Records of the identity, diagnosis, evaluation, or treatment of a patient by a podiatrist that are created or maintained by a podiatrist are confidential and privileged and may not be disclosed except as provided by this subchapter.

(c)  A person who receives information from confidential communications or podiatric records, other than a person listed under Section 202.405 or 202.406 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

(d)  The prohibitions of this section continue to apply to confidential communications or records concerning a patient without regard to when the patient received the services of a podiatrist. (V.A.C.S. Art. 4575d, Sec. 2.)

Sec. 202.403.  CLAIM OF PRIVILEGE. (a) The privilege of confidentiality under this subchapter may be claimed by the patient or by a podiatrist acting on the patient's behalf.

(b)  A podiatrist may claim the privilege of confidentiality only on behalf of the podiatrist's patient. The authority to claim the privilege is presumed in the absence of evidence to the contrary. (V.A.C.S. Art. 4575d, Sec. 3.)

Sec. 202.404.  EXCEPTIONS TO PRIVILEGE AND CONFIDENTIALITY IN CERTAIN PROCEEDINGS. (a) The privilege and confidentiality requirements under this subchapter do not apply in a court or administrative proceeding if:

(1)  the proceeding is brought by a patient against a podiatrist, including a malpractice proceeding, a criminal proceeding, or a license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claims or defense of a podiatrist;

(2)  a patient or a person authorized to act on the patient's behalf submits written consent to the release of confidential information, as provided by Section 202.406; or

(3)  the purpose of the proceeding is to substantiate and collect on a claim for podiatric services provided to a patient.

(b)  The privilege and confidentiality requirements under this subchapter do not apply in a civil litigation or administrative proceeding brought by a patient or a person authorized to act on the patient's behalf if the plaintiff is attempting to recover monetary damages for a physical or mental condition, including the patient's death. Information that is otherwise confidential under this subchapter is discoverable in a court or administrative proceeding in this state if the information is relevant to the proceeding and the court or administrative body has jurisdiction over the subject matter under the applicable rules of procedure specified for that matter.

(c)  The privilege and confidentiality requirements under this subchapter do not apply in a disciplinary investigation or proceeding against a podiatrist conducted under this chapter.

(d)  The privilege and confidentiality requirements under this subchapter do not apply in a criminal investigation of or criminal proceeding against a podiatrist in which the board is participating or assisting by providing certain records obtained from the podiatrist. This subsection does not authorize the release of any confidential information to instigate or substantiate criminal charges against a patient.

(e)  The board shall protect the identity of a patient whose podiatric records are examined or provided under Subsection (c) or (d), other than a patient who:

(1)  is covered under Subsection (a)(1); or

(2)  has submitted written consent to the release of the patient's podiatric records as provided by Section 202.406.

(f)  The privilege and confidentiality requirements under this subchapter do not apply in a criminal prosecution in which the patient is a victim, witness, or defendant. Records or communications are not discoverable under this subsection until the court in which the prosecution is pending makes an in camera determination as to the relevancy of the records or communications or part of the records or communications. The court's determination does not constitute a determination as to the admissibility of the records or communications or part of the records or communications. (V.A.C.S. Art. 4575d, Sec. 4.)

Sec. 202.405.  OTHER EXCEPTIONS TO PRIVILEGE AND CONFIDENTIALITY REQUIREMENTS. (a) The privilege and confidentiality requirements of this subchapter do not apply to, and a podiatrist may disclose information made confidential under this subchapter to:

(1)  a government agency, if:

(A)  the disclosure is required or permitted by law; and

(B)  the agency protects the identity of a patient whose podiatric records are examined;

(2)  medical or law enforcement personnel, if the podiatrist determines that there is a probability of:

(A)  imminent physical injury to the patient, the podiatrist, or another person; or

(B)  immediate mental or emotional injury to the patient;

(3)  qualified personnel for a management audit, financial audit, program evaluation, or research;

(4)  a person who presents the written consent of the patient or a person authorized to act on the patient's behalf for the release of confidential information, as provided by Section 202.406;

(5)  an individual, corporation, or governmental entity involved in the payment or collection of fees for services provided by a podiatrist; or

(6)  another podiatrist and a person under the direction of the podiatrist who is participating in the diagnosis, evaluation, or treatment of the patient.

(b)  A person who receives information under Subsection (a)(3) may not directly or indirectly identify the patient in any report of the research, audit, or evaluation or otherwise disclose the patient's identity.

(c)  Records reflecting charges and specific services provided may be disclosed only when necessary to collect fees for services provided by a podiatrist, professional association, or another entity qualified to provide or arrange for services.

(d)  Records created by a state hospital, a state school, or an employee of the state hospital or state school that are otherwise confidential under this subchapter may be disclosed in an official legislative inquiry regarding the state hospital or state school. Information or records that identify a patient or client may not be released for any purpose unless proper consent to the release is given by the patient. (V.A.C.S. Art. 4575d, Sec. 5.)

Sec. 202.406.  CONSENT FOR RELEASE OF CONFIDENTIAL INFORMATION. (a) Consent for the release of information made confidential under this subchapter must be made in writing and signed by:

(1)  the patient;

(2)  the patient's parent or legal guardian if the patient is a minor;

(3)  a legal guardian if the patient has been adjudicated incompetent to manage the patient's personal affairs;

(4)  an attorney ad litem appointed for the patient, as authorized by:

(A)  Subtitle B, Title 6, Health and Safety Code;

(B)  Subtitle C, D, or E, Title 7, Health and Safety Code;

(C)  Chapter XIII, Texas Probate Code;

(D)  Chapter 107, Family Code; or

(E)  another applicable law; or

(5)  the patient's personal representative if the patient is deceased.

(b)  The written consent required under this section must specify:

(1)  the information and records covered by the release;

(2)  the reason or purpose for the release; and

(3)  the person to whom the information is to be released.

(c)  A patient or other person authorized to consent may withdraw consent to the release of any information. Withdrawal of consent does not affect information disclosed before the written notice of the withdrawal.

(d)  A podiatrist shall furnish copies of podiatric records requested or a summary or narrative of the records under a written consent for release of the information as provided by this section unless the podiatrist determines that access to the information would be harmful to the physical, mental, or emotional health of the patient. The podiatrist may delete confidential information about another person who has not consented to the release.

(e)  The podiatrist shall furnish the information within a reasonable period of time. The patient or another person acting on the patient's behalf shall pay a reasonable fee charged by the podiatrist for furnishing the information. (V.A.C.S. Art. 4575d, Secs. 6, 8.)

Sec. 202.407.  DISCLOSURE OF RELEASED INFORMATION. A person who receives information made confidential by this subchapter may disclose the information to another person only to the extent consistent with the authorized purposes for which consent to release the information was obtained. (V.A.C.S. Art. 4575d, Sec. 7.)

[Sections 202.408-202.450 reserved for expansion]

SUBCHAPTER J. PEER REVIEW

Sec. 202.451.  DEFINITIONS. In this subchapter:

(1)  "Podiatric medical society or association" means a membership organization of podiatrists:

(A)  incorporated under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes); or

(B)  exempt from the payment of federal income taxes under Section 501(a) of the Internal Revenue Code of 1986 and its subsequent amendments by being listed as an exempt entity under Section 501(c) of that code.

(2)  "Podiatric peer review committee" means the podiatric peer review, judicial, or grievance committee of a podiatric medical society or association that is authorized to evaluate the quality of podiatry services or the competence of a podiatrist. A committee includes the members, employees, and agents of the committee. (V.A.C.S. Art. 4573f, Sec. 1.)

Sec. 202.452.  DISCLOSURE OF COMMUNICATIONS MADE TO PEER REVIEW COMMITTEE. (a) Written or oral communications made to a podiatric peer review committee and the records and proceedings of a peer review committee may be disclosed to:

(1)  another podiatric peer review committee;

(2)  an appropriate state or federal agency;

(3)  a national accreditation body; or

(4)  the board or the state board of registration or licensing of podiatrists in another state.

(b)  The disclosure of confidential podiatric peer review committee information to the affected podiatrist that is relevant to the matter under review by the committee does not constitute a waiver of the confidentiality provisions of this subchapter. (V.A.C.S. Art. 4573f, Secs. 4, 5(a).)

Sec. 202.453.  INFORMATION PROVIDED TO AFFECTED PODIATRIST. A podiatric peer review committee that takes action that could result in censure or suspension, restriction, limitation, or revocation of a license by the board or a denial of a podiatrist's membership or privileges in a health care entity shall provide the affected podiatrist a written copy of the committee's recommendation and a copy of the final decision, including a statement of the basis for the decision. (V.A.C.S. Art. 4573f, Sec. 5(b).)

Sec. 202.454.  CONFIDENTIALITY REQUIREMENTS. (a) Except as otherwise provided by this subchapter, the proceedings and records of a podiatric peer review committee are confidential and all communications made to a podiatric peer review committee are privileged.

(b)  If a court makes a preliminary finding that the proceedings, records, or communications of a podiatric peer review committee are relevant to an anticompetitive action or to an action brought under federal civil rights laws, the proceedings, records, or communications are not considered to be confidential to the extent the proceedings, records, or communications are determined to be relevant to that action. (V.A.C.S. Art. 4573f, Sec. 3.)

Sec. 202.455.  PRIVILEGE OF CONFIDENTIALITY; WAIVER. (a) The records or determinations of a podiatric peer review committee or communications made to a committee are not subject to subpoena or discovery and are not admissible as evidence in a civil or administrative proceeding unless disclosure is required or authorized by law. A committee may in writing waive the privilege of confidentiality.

(b)  The evidentiary privilege under this subchapter may be invoked by any person in a civil or administrative proceeding unless the person has secured a waiver of the privilege executed in writing by the chairman, vice chairman, or secretary of the affected podiatric peer review committee.

(c)  If a podiatric peer review committee, a person participating in peer review, or an organization named as a defendant in a civil action filed as a result of participating in peer review is permitted to use confidential information in the defendant's defense or in a claim or suit under Section 202.457, the plaintiff in that proceeding also may disclose the records or determinations of a peer review committee or communications made to a peer review committee to rebut the defendant.

(d)  A person who seeks access to privileged information must plead and prove waiver of the privilege.

(e)  A member, employee, or agent of a podiatric peer review committee who provides access to otherwise privileged communications or records in cooperation with a law enforcement authority in a criminal investigation does not waive a privilege established under this subchapter.

(f)  The disclosure of documents or information under a subpoena issued by the board does not constitute a waiver of the confidentiality privilege associated with a podiatric peer review committee proceeding. (V.A.C.S. Art. 4573f, Secs. 6, 7(b).)

Sec. 202.456.  IMMUNITY. (a) Except for an action involving fraud, conspiracy, or malice, a podiatric peer review committee is immune from liability and may not be subject to a suit for damages for any act arising from the performance of the committee's duties in:

(1)  investigating a disagreement or complaint;

(2)  holding a hearing to determine facts; or

(3)  making an evaluation, recommendation, decision, or award involving:

(A)  a podiatrist who is a member of the podiatric medical society or association; or

(B)  another podiatrist, podiatric patient, or third party who requests the services of the committee.

(b)  A person, including a health care entity or podiatric peer review committee, that participates in podiatric peer review activity or furnishes records, information, or assistance to a podiatric peer review committee or to the board is immune from civil liability arising from those acts if the person acted in good faith and without malice. (V.A.C.S. Art. 4573f, Secs. 2, 8.)

Sec. 202.457.  CLAIMS FOR DEFENSE COSTS. A podiatric peer review committee, a person participating in peer review, or another entity named as a defendant in a civil action filed as a result of the defendant's participation in peer review may file a counterclaim in the pending action or may prove a cause of action in a subsequent suit to recover defense costs, including court costs, attorney's fees, and damages incurred as a result of the civil action, if the plaintiff's original suit is determined to be frivolous or to have been brought in bad faith. (V.A.C.S. Art. 4573f, Sec. 9.)

[Sections 202.458-202.500 reserved for expansion]

SUBCHAPTER K. DISCIPLINARY ACTIONS AND PROCEDURES

Sec. 202.501.  BOARD DISCIPLINARY POWERS; ADMINISTRATIVE PROCEDURE. (a) The board shall revoke or suspend a license, place on probation a person whose license has been suspended, or reprimand a license holder for violating the law regulating the practice of podiatry or a rule adopted by the board.

(b)  If a license suspension is probated, the board may require the license holder to:

(1)  report regularly to the board on matters that are the basis of the probation;

(2)  limit the license holder's practice to the areas prescribed by the board; or

(3)  continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation.

(c)  Proceedings for the suspension or revocation of a license under this section are subject to Chapter 2001, Government Code.

(d)  A person whose license to practice podiatry has been revoked or suspended by order of the board may appeal the action to a district court in Travis County. The board's decision may not be enjoined or stayed except on application to the district court after notice to the board. (V.A.C.S. Art. 4573, Subsecs. (b), (c), (d), (e) (part).)

Sec. 202.502.  REVOCATION AND SUSPENSION OF LICENSE FOR DRUG-RELATED FELONY CONVICTION. (a) The board shall suspend a person's license after an administrative hearing conducted in accordance with Chapter 2001, Government Code, in which the board determines that the license holder has been convicted of a felony under Chapter 481 or 483, Health and Safety Code, or Section 485.033, Health and Safety Code.

(b)  On the person's final conviction, the board shall revoke the person's license.

(c)  The board may not reinstate or reissue a license to a person whose license is suspended or revoked under this section except on an express determination based on substantial evidence contained in an investigative report indicating that the reinstatement or reissuance of the license is in the best interests of the public and of the person whose license has been suspended or revoked. (V.A.C.S. Art. 4573a.)

Sec. 202.503.  PROBATION; HEARING. (a)  The board, on majority vote, may probate an order revoking or suspending a podiatrist's license conditioned on the podiatrist conforming to any order or rule the board adopts as the condition of probation. The board, at the time of probation, shall set the term of the probationary period.

(b)  At any time while the podiatrist remains on probation, the board may hold a hearing to determine whether the podiatrist has violated the conditions of the probation. On a board determination that the conditions of the probation have been violated, the board may rescind the probation and enforce the board's original action in revoking or suspending the podiatrist's license.

(c)  The president of the board shall call the hearing under Subsection (b) to rescind the probation. The president shall order the issuance of notice setting the time and place for the hearing and containing the charges or complaints against the podiatrist. The notice shall be served on the podiatrist or the podiatrist's counsel and on any person complaining about the podiatrist or that person's counsel at least 10 days before the date set for the hearing. If personal service is impossible or cannot be effected, the provisions for service instead of personal service under Chapter 2001, Government Code, apply.

(d)  The podiatrist and any person complaining about the podiatrist may appear at the hearing either personally or by counsel, or both, to produce witnesses or evidence, to cross-examine witnesses, and to have subpoenas issued by the board. The board may also issue subpoenas on its own motion. The subpoenas of the board may be enforced through any district court with jurisdiction and venue in the county where the hearing is held.

(e)  The board shall determine the charges on their merits. The order revoking or rescinding the probation is not subject to review or appeal. (V.A.C.S. Art. 4573, Subsecs. (f), (g).)

Sec. 202.504.  REISSUANCE OF LICENSE. (a) On application, the board may reissue a license to practice podiatry to a person whose license has been revoked or suspended.

(b)  A person whose license has been revoked may not apply for a reissued license before the first anniversary of the date of the revocation. The person shall apply for the license in the manner and form required by the board. (V.A.C.S. Art. 4573, Subsec. (i).)

Sec. 202.505.  REEXAMINATION IF LICENSE SUSPENDED OR REVOKED. The board may refuse to reinstate a license or to issue a new license until a podiatrist has passed the regular license examination if the board suspended or revoked the license for:

(1)  failure to satisfy continuing education requirements under Section 202.305; or

(2)  nonpayment of the annual license renewal fee. (V.A.C.S. Art. 4571, Sec. 3.)

Sec. 202.506.  APPLICATION TO CERTAIN DRUG OFFENSES. A person convicted of a felony under Chapter 481 or 483, Health and Safety Code, or Section 485.033, Health and Safety Code, is not eligible for:

(1)  probation of a license suspension or revocation under Section 202.503; or

(2)  reissuance of a license under Section 202.504. (V.A.C.S. Art. 4573, Subsec. (h).)

Sec. 202.507.  SUBPOENA AUTHORITY. (a)  The board may request and, if necessary, compel by subpoena:

(1)  the attendance or examination under oath of witnesses; and

(2)  the production of books, accounts, records, papers, correspondence, documents, and other evidence relevant to the investigation of an alleged violation of this chapter.

(b)  If a person fails to comply with a subpoena issued under this section, the board, through the attorney general, may file suit to enforce the subpoena in a district court in Travis County or in a county in which a hearing conducted by the board may be held. If the court finds that good cause existed for the issuance of the subpoena, the court shall order compliance with the subpoena. Failure to obey the court order is punishable by the court as contempt.

(c)  Failure to comply with a subpoena constitutes grounds for disciplinary action against the person, including a facility, by the board. (V.A.C.S. Arts. 4568, Subsec. (j) (part); 4573f, Secs. 7(a), (c).)

Sec. 202.508.  INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:

(1)  informal disposition of a contested case under Section 2001.056, Government Code; and

(2)  informal proceedings held in compliance with Section 2001.054, Government Code.

(b)  Rules adopted under this section must:

(1)  provide the complainant and the license holder an opportunity to be heard; and

(2)  require the presence of a representative of the office of the attorney general or the board's legal counsel to advise the board or the board's employees. (V.A.C.S. Art. 4573d.)

Sec. 202.509.  DISCLOSURE OF INVESTIGATIVE INFORMATION. (a) A complaint, report, investigation file, or other investigative information in the possession of or received or gathered by the board or an employee or agent of the board that relates to a license holder, a license application, or a criminal investigation or proceeding is privileged, confidential, and not subject to discovery, subpoena, or any other legal method of compelling release.

(b)  Subject to any other privilege or restriction established by law, not later than the 30th day after the date the board receives a written request from a license holder, or the license holder's attorney, who is the subject of a formal complaint, the board shall provide the license holder with access to all information in the board's possession that the board intends to offer into evidence at the contested case hearing on the complaint. The board may provide access to the information to the license holder after the 30th day after the date the board receives a request only on a showing of good cause.

(c)  The board is not required under Subsection (b) to provide access to the board's investigative reports or memoranda, release the identity of a complainant who will not testify at the hearing, or release information that is an attorney's work product or protected by the attorney-client privilege or another privilege recognized by the Texas Rules of Civil Procedure or Texas Rules of Evidence. The furnishing of information under Subsection (b) does not constitute a waiver of any privilege or confidentiality provision under law.

(d)  Investigative information in the board's possession that relates to a disciplinary action regarding a license holder may be disclosed to:

(1)  a licensing agency regulating the practice of podiatry in another state or country in which the license holder is also licensed or has applied for a license; or

(2)  a peer review committee reviewing a license holder's application for privileges or the license holder's qualifications with regard to retaining the privileges.

(e)  The board shall report to the appropriate law enforcement agency information obtained by the board in the course of an investigation that indicates that a crime may have been committed. The board shall cooperate and assist a law enforcement agency conducting a criminal investigation of a license holder by providing relevant information to the agency. Information provided to a law enforcement agency by the board is confidential and may not be disclosed except as necessary to conduct the investigation.

(f)  The board shall provide information to a health care entity on the written request of the entity concerning:

(1)  a complaint filed against a license holder that was resolved after an investigation by the board or resolved by an agreed settlement; and

(2)  the basis for and status of an active investigation concerning a license holder. (V.A.C.S. Art. 4573, Subsecs. (j), (k), (l), (m), (n).)

[Sections 202.510-202.550 reserved for expansion]

SUBCHAPTER L. ADMINISTRATIVE PENALTY

Sec. 202.551.  IMPOSITION OF PENALTY. The board may impose an administrative penalty against a person licensed or regulated under this chapter who violates this chapter or a rule or order adopted under this chapter. (V.A.C.S. Art. 4567e, Subsec. (a).)

Sec. 202.552.  AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $2,500. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

(b)  The amount of the penalty shall be based on:

(1)  the seriousness of the violation, including:

(A)  the nature, circumstances, extent, and gravity of any prohibited acts; and

(B)  the hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2)  the economic harm to property or the environment caused by the violation;

(3)  the history of previous violations;

(4)  the amount necessary to deter future violations;

(5)  efforts made to correct the violation; and

(6)  any other matter that justice may require. (V.A.C.S. Art. 4567e, Subsecs. (b), (c).)

Sec. 202.553.  REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) The executive director, on determining that a violation has occurred, may issue to the board a report that states the facts on which the determination is based and the executive director's recommendation on the imposition of an administrative penalty, including a recommendation on the amount of the penalty.

(b)  Not later than the 14th day after the date the report is issued, the executive director shall give written notice of the report to the person. The notice may be given by certified mail. The notice must:

(1)  include a brief summary of the alleged violation;

(2)  state the amount of the recommended penalty; and

(3)  inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4567e, Subsecs. (d), (e).)

Sec. 202.554.  PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice under Section 202.553, the person may:

(1)  accept in writing the executive director's determination and recommended administrative penalty; or

(2)  make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both.

(b)  If the person accepts the executive director's determination and recommended penalty, the board by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Art. 4567e, Subsecs. (f), (g).)

Sec. 202.555.  HEARING. (a) If the person requests a hearing or fails to respond timely to the notice, the executive director shall:

(1)  set a hearing; and

(2)  give notice of the hearing to the person.

(b)  A hearing set under Subsection (a) shall be held by an administrative law judge of the State Office of Administrative Hearings.

(c)  The administrative law judge shall:

(1)  make findings of fact and conclusions of law; and

(2)  promptly issue to the board a proposal for a decision about the occurrence of the violation and the amount of a proposed administrative penalty. (V.A.C.S. Art. 4567e, Subsec. (h) (part).)

Sec. 202.556.  DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for a decision, the board by order may determine that:

(1)  a violation has occurred and impose an administrative penalty; or

(2)  a violation did not occur.

(b)  The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4567e, Subsecs. (h) (part), (i).)

Sec. 202.557.  OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order is final, the person shall:

(1)  pay the administrative penalty;

(2)  pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or

(3)  without paying the amount of the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.

(b)  Not later than the 30th day after the date the order is final, a person who acts under Subsection (a)(3) may:

(1)  stay enforcement of the penalty by:

(A)  paying the penalty to the court for placement in an escrow account; or

(B)  giving to the court a supersedeas bond that:

(i)  is for the amount of the penalty; and

(ii)  is effective until judicial review of the board's order is final; or

(2)  request the court to stay enforcement of the penalty by:

(A)  filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and

(B)  giving a copy of the affidavit to the executive director by certified mail.

(c)  If the executive director receives a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.

(d)  The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4567e, Subsecs. (j), (k), (l).)

Sec. 202.558.  COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4567e, Subsec. (m).)

Sec. 202.559.  DETERMINATION BY COURT. (a) If the court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced amount of the penalty.

(b)  If the court does not sustain the determination that a violation occurred, the court shall order that an administrative penalty is not owed. (V.A.C.S. Art. 4567e, Subsec. (o).)

Sec. 202.560.  REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after judgment becomes final:

(1)  order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or

(2)  order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.

(b)  The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4567e, Subsec. (p).)

Sec. 202.561.  ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4567e, Subsec. (r).)

[Sections 202.562-202.600 reserved for expansion]

SUBCHAPTER M. OTHER PENALTIES AND

ENFORCEMENT PROVISIONS

Sec. 202.601.  INJUNCTION. (a)  In addition to any other action, proceeding, or remedy authorized by law, the board may institute an action in its own name to enjoin the violation of a law regulating the practice of podiatry or a rule adopted under this chapter. The court may grant a temporary injunction in the action.

(b)  The attorney general or a district or county attorney shall represent the board in an action under this section. (V.A.C.S. Art. 4568, Subsec. (j) (part); Art. 4575a.)

Sec. 202.602.  MONITORING OF LICENSE HOLDER. The board by rule shall develop a system to monitor a podiatrist's compliance with this chapter. The system must include:

(1)  procedures for determining whether a podiatrist is in compliance with an order issued by the board; and

(2)  a method of identifying and monitoring each podiatrist who represents a risk to the public. (V.A.C.S. Art. 4573e.)

Sec. 202.603.  PROSECUTION OF VIOLATION. The board shall take action to ensure the prosecution of each person who violates this chapter and may incur reasonably necessary related expenses. (V.A.C.S. Art. 4568, Subsec. (j) (part).)

Sec. 202.604.  CIVIL PENALTY: USE OF TRADE NAME; INJUNCTION. (a) A person who violates Section 202.352 or a rule adopted or a determination made by the board under that section is subject to a civil penalty of not less than $50 or more than $500 for each day of violation.

(b)  If it appears that a person has violated or is violating Section 202.352 or a rule adopted or determination made by the board under that section, the board may institute a civil action in district court for:

(1)  injunctive relief to restrain the person from continuing the violation;

(2)  the assessment and recovery of a civil penalty under Subsection (a); or

(3)  both injunctive relief and the civil penalty.

(c)  At the request of the board, the attorney general shall institute and conduct the action in the name of the state. (V.A.C.S. Art. 4568a, Subsecs. (d), (e).)

Sec. 202.605.  GENERAL CRIMINAL PENALTY: PRACTICING WITHOUT LICENSE. (a) A person commits an offense if the person professes to be a podiatrist or practices or assumes the duties incident to the practice of podiatry without holding a license to practice podiatry.

(b)  An offense under this section is punishable by:

(1)  a fine of not less than $50 or more than $500;

(2)  confinement in the county jail for not less than 30 days or more than six months; or

(3)  both the fine and confinement. (V.A.C.S. Art. 4567b (part).)

Sec. 202.606.  CRIMINAL PENALTY: AMPUTATION OF FOOT. (a) A podiatrist commits an offense if the podiatrist amputates a human foot.

(b)  An offense under this section is punishable by:

(1)  a fine of not less than $100 or more than $500;

(2)  confinement in the county jail for not less than 30 days or more than six months; or

(3)  both the fine and confinement. (V.A.C.S. Art. 4567c.)

CHAPTER 203. MIDWIVES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 203.001. SHORT TITLE

Sec. 203.002. DEFINITIONS

Sec. 203.003. FINDINGS

Sec. 203.004. APPLICABILITY

Sec. 203.005. EFFECT ON LOCAL ORDINANCES

Sec. 203.006. APPLICATION OF SUNSET ACT

[Sections 203.007-203.050 reserved for expansion]

SUBCHAPTER B. MIDWIFERY BOARD

Sec. 203.051. MIDWIFERY BOARD

Sec. 203.052. APPOINTMENT OF MIDWIFERY BOARD

Sec. 203.053. ELIGIBILITY OF PUBLIC MEMBERS

Sec. 203.054. MEMBERSHIP AND EMPLOYEE RESTRICTIONS

Sec. 203.055. TERMS

Sec. 203.056. OFFICERS

Sec. 203.057. GROUNDS FOR REMOVAL

Sec. 203.058. COMPENSATION; REIMBURSEMENT

Sec. 203.059. MEETINGS

[Sections 203.060-203.100 reserved for expansion]

SUBCHAPTER C. PROGRAM COORDINATOR AND PERSONNEL

Sec. 203.101. PROGRAM COORDINATOR

Sec. 203.102. DUTIES OF PROGRAM COORDINATOR

Sec. 203.103. DIVISION OF RESPONSIBILITIES

Sec. 203.104. EQUAL EMPLOYMENT OPPORTUNITY POLICY;

REPORT

[Sections 203.105-203.150 reserved for expansion]

SUBCHAPTER D. POWERS AND DUTIES OF MIDWIFERY BOARD,

BOARD, AND DEPARTMENT

Sec. 203.151. RULEMAKING AUTHORITY OF MIDWIFERY BOARD

Sec. 203.152. FEES

Sec. 203.153. MANUALS

Sec. 203.154. ANNUAL REPORT; REPORTS ON MIDWIFERY

Sec. 203.155. COMPLAINT PROCEDURE AND INVESTIGATION

Sec. 203.156. DUTIES OF BOARD AND DEPARTMENT

Sec. 203.157. ROSTER; NOTICE TO COUNTY OFFICIALS

[Sections 203.158-203.200 reserved for expansion]

SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT

PROCEDURES

Sec. 203.201. PUBLIC INTEREST INFORMATION

Sec. 203.202. COMPLAINTS

Sec. 203.203. PUBLIC PARTICIPATION

[Sections 203.204-203.250 reserved for expansion]

SUBCHAPTER F. DOCUMENTATION REQUIREMENTS

Sec. 203.251. DOCUMENTATION REQUIRED

Sec. 203.252. INITIAL DOCUMENTATION

Sec. 203.253. DOCUMENTATION APPLICATION

Sec. 203.254. BASIC MIDWIFERY EDUCATION

Sec. 203.255. EXAMINATION

Sec. 203.256. TRAINING IN NEWBORN SCREENING AND BASIC LIFE

SUPPORT CARDIOPULMONARY RESUSCITATION

[Sections 203.257-203.300 reserved for expansion]

SUBCHAPTER G. DOCUMENTATION RENEWAL

Sec. 203.301. APPLICATION FOR DOCUMENTATION RENEWAL

Sec. 203.302. LATE APPLICATION FOR RENEWAL

Sec. 203.303. STAGGERED RENEWAL DATES

Sec. 203.304. CONTINUING MIDWIFERY EDUCATION

Sec. 203.305. REQUIRED ATTENDANCE AT SPECIFIC MIDWIFERY

EDUCATION COURSES

[Sections 203.306-203.350 reserved for expansion]

SUBCHAPTER H. PRACTICE BY MIDWIFE

Sec. 203.351. INFORMED CHOICE AND DISCLOSURE REQUIREMENTS

Sec. 203.352. PRENATAL AND CERTAIN MEDICAL CARE ENCOURAGED

Sec. 203.353. PREVENTION OF OPHTHALMIA NEONATORUM

Sec. 203.354. NEWBORN SCREENING

Sec. 203.355. SUPPORT SERVICES

Sec. 203.356. IMMUNITY

Sec. 203.357. ADDITIONAL INFORMATION REQUIRED

[Sections 203.358-203.400 reserved for expansion]

SUBCHAPTER I. PROHIBITED PRACTICES AND GROUNDS FOR

DISCIPLINARY ACTION

Sec. 203.401. PROHIBITED PRACTICES

Sec. 203.402. PROHIBITED REPRESENTATION

Sec. 203.403. PROHIBITED USE OF TITLE

Sec. 203.404. GROUNDS FOR DISCIPLINARY ACTION

[Sections 203.405-203.450 reserved for expansion]

SUBCHAPTER J. ADMINISTRATIVE PENALTY

Sec. 203.451. IMPOSITION OF ADMINISTRATIVE PENALTY

Sec. 203.452. AMOUNT OF ADMINISTRATIVE PENALTY

Sec. 203.453. NOTICE OF VIOLATION AND PENALTY

Sec. 203.454. PENALTY TO BE PAID OR HEARING REQUESTED

Sec. 203.455. HEARING

Sec. 203.456. DECISION BY MIDWIFERY BOARD

Sec. 203.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL

Sec. 203.458. COLLECTION OF PENALTY

Sec. 203.459. DETERMINATION BY COURT

Sec. 203.460. REMITTANCE OF PENALTY AND INTEREST

Sec. 203.461. ADMINISTRATIVE PROCEDURE

[Sections 203.462-203.500 reserved for expansion]

SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 203.501. CIVIL PENALTY

Sec. 203.502. INJUNCTIONS

Sec. 203.503. VENUE

Sec. 203.504. CRIMINAL PENALTY

CHAPTER 203. MIDWIVES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 203.001.  SHORT TITLE. This chapter may be cited as the Texas Midwifery Act. (V.A.C.S. Art. 4512i, Sec. 1(a).)

Sec. 203.002.  DEFINITIONS. In this chapter:

(1)  "Board" means the Texas Board of Health.

(2)  "Certified nurse-midwife" means a person who is:

(A)  a registered nurse under Chapter 301;

(B)  recognized as an advanced nurse practitioner by the Board of Nurse Examiners; and

(C)  certified by the American College of Nurse-Midwives.

(3)  "Commissioner" means the commissioner of public health.

(4)  "Department" means the Texas Department of Health.

(5)  "Local health department" means a department of health created by the governing body of a municipality or a county under Section 121.031, Health and Safety Code.

(6)  "Midwife" means a person who practices midwifery and has met the documentation requirements established by this chapter and midwifery board rules.

(7)  "Midwifery" means the practice of:

(A)  providing the necessary supervision, care, and advice to a woman during normal pregnancy, labor, and the postpartum period;

(B)  conducting a normal delivery of a child; and

(C)  providing normal newborn care.

(8)  "Newborn" means an infant from birth through the first six weeks of life.

(9)  "Normal" means, as applied to pregnancy, labor, delivery, the postpartum period, and the newborn period, and as defined by midwifery board rule, circumstances under which a midwife has determined that a client is at a low risk of developing complications.

(10)  "Postpartum period" means the first six weeks after a woman has given birth. (V.A.C.S. Art. 4512i, Secs. 1(c)(1), (2), (4), (5), (6), (7), (9), (11), (12), (13).)

Sec. 203.003.  FINDINGS. The legislature finds:

(1)  a parent has the responsibility and right to give birth where and with whom the parent chooses;

(2)  childbirth is a natural process of the human body and not a disease; and

(3)  midwifery has been practiced in this state since the days of the Republic. (V.A.C.S. Art. 4512i, Sec. 1(b).) Sec. 203.004.  APPLICABILITY. This chapter does not apply to:

(1)  a certified nurse-midwife, a physician, or another health care professional licensed by the state and operating within the scope of the person's license;

(2)  a natural childbirth trainer; or

(3)  a person other than a midwife who assists childbirth in an emergency. (V.A.C.S. Art. 4512i, Sec. 2.)

Sec. 203.005.  EFFECT ON LOCAL ORDINANCES. This chapter does not prohibit a municipality from adopting a local ordinance or rule to regulate the practice of midwifery in the municipality if the ordinance or rule is compatible with and at least as strict as this chapter and board rules. (V.A.C.S. Art. 4512i, Sec. 19.)

Sec. 203.006.  APPLICATION OF SUNSET ACT. The midwifery board is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the midwifery board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4512i, Sec. 3A.)

[Sections 203.007-203.050 reserved for expansion]

SUBCHAPTER B. MIDWIFERY BOARD

Sec. 203.051.  MIDWIFERY BOARD. The board shall appoint a midwifery board that reports directly to the board. (V.A.C.S. Art. 4512i, Sec. 3(a).)

Sec. 203.052.  APPOINTMENT OF MIDWIFERY BOARD. (a)  The midwifery board consists of nine members appointed as follows:

(1)  three midwife members each of whom has at least three years' experience in the practice of midwifery and not more than one of whom is a licensed health care professional;

(2)  one certified nurse-midwife member;

(3)  one physician member who is certified by a national professional organization of physicians that certifies obstetricians and gynecologists;

(4)  one physician member who is certified by a national professional organization of physicians that certifies family practitioners or pediatricians; and

(5)  three members who represent the public and who are not practicing or trained in a health care profession, one of whom is a parent with at least one child born with the assistance of a midwife.

(b)  Appointments to the midwifery board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4512i, Secs. 3(b), (d).)

Sec. 203.053.  ELIGIBILITY OF PUBLIC MEMBERS. A person is not eligible for appointment as a public member of the midwifery board if the person or the person's spouse:

(1)  is registered, certified, or licensed by an occupational regulatory agency in the field of midwifery;

(2)  is employed by or participates in the management of a business entity or other organization regulated by the midwifery board or receiving funds from the midwifery board;

(3)  owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the midwifery board; or

(4)  uses or receives a substantial amount of tangible goods, services, or funds from the midwifery board, other than compensation or reimbursement authorized by law for midwifery board membership, attendance, or expenses. (V.A.C.S. Art. 4512i, Sec. 3(c).)

Sec. 203.054.  MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a)  In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b)  An officer, employee, or paid consultant of a Texas trade association in the field of midwifery may not be a midwifery board member or an employee of the midwifery board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(c)  A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of midwifery may not be a midwifery board member and may not be an employee of the midwifery board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(d)  A person may not serve as a midwifery board member or act as the general counsel to the midwifery board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the midwifery board. (V.A.C.S. Art. 4512i, Secs. 3B, 3C.)

Sec. 203.055.  TERMS. Members of the midwifery board serve for staggered terms of six years. The terms of three members expire on January 31 of each odd-numbered year. (V.A.C.S. Art. 4512i, Sec. 4.)

Sec. 203.056.  OFFICERS. The midwifery board shall elect one of the public members of the midwifery board as presiding officer and one of the other members of the midwifery board as vice presiding officer. (V.A.C.S. Art. 4512i, Sec. 5(a).)

Sec. 203.057.  GROUNDS FOR REMOVAL. (a)  It is a ground for removal from the midwifery board that a member:

(1)  does not have at the time of appointment the qualifications required by Section 203.052;

(2)  does not maintain during service on the midwifery board the qualifications required by Section 203.052;

(3)  violates a prohibition established by Section 203.053 or 203.054;

(4)  cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5)  is absent from more than half of the regularly scheduled midwifery board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the midwifery board.

(b)  The validity of an action of the midwifery board is not affected by the fact that it is taken when a ground for removal of a midwifery board member exists.

(c)  If the program coordinator has knowledge that a potential ground for removal exists, the program coordinator shall notify the presiding officer of the midwifery board of the ground. The program coordinator and presiding officer of the midwifery board shall then notify the board that a potential ground for removal exists. (V.A.C.S. Art. 4512i, Sec. 3D.)

Sec. 203.058.  COMPENSATION; REIMBURSEMENT. A member may not receive compensation for service on the midwifery board. Each member is entitled to receive $50 for each meeting the member attends and the per diem and travel allowance authorized for state employees. (V.A.C.S. Art. 4512i, Sec. 6.)

Sec. 203.059.  MEETINGS. (a)  The midwifery board shall meet at least semiannually.

(b)  The midwifery board shall meet at other times at the call of the midwifery board or the board. (V.A.C.S. Art. 4512i, Sec. 5(c).)

[Sections 203.060-203.100 reserved for expansion]

SUBCHAPTER C. PROGRAM COORDINATOR AND PERSONNEL

Sec. 203.101.  PROGRAM COORDINATOR. The department shall, with the approval of the board and after consultation with the midwifery board, employ a coordinator for the midwifery program and the staff necessary to administer the program. (V.A.C.S. Art. 4512i, Sec. 7(a) (part).)

Sec. 203.102.  DUTIES OF PROGRAM COORDINATOR. The program coordinator shall supervise the staff in the performance of administrative duties, including:

(1)  keeping the minutes of midwifery board meetings; and

(2)  maintaining:

(A)  records about basic midwifery education courses and continuing midwifery education courses;

(B)  a roster of midwives documented under Section 203.251; and

(C)  a record of each person who receives documentation under this chapter. (V.A.C.S. Art. 4512i, Sec. 7(a) (part).)

Sec. 203.103.  DIVISION OF RESPONSIBILITIES. The midwifery board shall develop and implement policies that clearly define the respective responsibilities of the midwifery board and the staff of the midwifery board. (V.A.C.S. Art. 4512i, Sec. 8G.)

Sec. 203.104.  EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The program coordinator or the program coordinator's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:

(1)  personnel policies, including policies related to recruitment, evaluation, selection, application, training, and promotion of personnel that are in compliance with Chapter 21, Labor Code;

(2)  a comprehensive analysis of the midwifery board workforce that meets federal and state guidelines;

(3)  procedures by which a determination can be made of significant underuse in the midwifery board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and

(4)  reasonable methods to appropriately address those areas of underuse.

(b)  A policy statement prepared under Subsection (a) must:

(1)  cover an annual period;

(2)  be updated annually;

(3)  be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and

(4)  be filed with the governor.

(c)  The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of another biennial report made to the legislature. (V.A.C.S. Art. 4512i, Sec. 8E.)

[Sections 203.105-203.150 reserved for expansion]

SUBCHAPTER D. POWERS AND DUTIES OF MIDWIFERY BOARD,

BOARD, AND DEPARTMENT

Sec. 203.151.  RULEMAKING AUTHORITY OF MIDWIFERY BOARD. (a)  Subject to the approval of the board, the midwifery board shall:

(1)  adopt substantive and procedural rules necessary for the documentation of midwives;

(2)  adopt rules prescribing the standards for the practice of midwifery in this state, including standards for:

(A)  the delineation of findings that preclude a woman or newborn from being classified as having a normal pregnancy, labor, delivery, postpartum period, or newborn period; and

(B)  administration of oxygen by a midwife to a mother or newborn;

(3)  adopt rules prescribing:

(A)  the type of courses and number of hours required to meet the basic midwifery education course and continuing midwifery education course requirements; and

(B)  minimum standards for the approval and revocation of approval of:

(i)  basic midwifery education courses and continuing midwifery education courses; and

(ii)  instructors or facilities used in basic midwifery education courses and continuing midwifery education courses;

(4)  adopt rules prescribing a procedure for reporting and processing complaints relating to the practice of midwifery in this state;

(5)  adopt and implement substantive and procedural rules as necessary to discipline midwives determined to be in violation of this chapter or otherwise a threat to the public health and safety;

(6)  adopt rules as necessary to establish eligibility for reciprocity for initial documentation under this chapter; and

(7)  adopt other rules necessary to implement a duty imposed on the board or the department under this chapter.

(b)  The rules adopted under Subsection (a)(5) must include rules relating to:

(1)  warnings provided to midwives for a violation of this chapter or rules adopted under this chapter;

(2)  agreed orders for additional education by midwives;

(3)  recommendations or requirements for medical or psychological treatment, including treatment related to substance abuse by a midwife; and

(4)  restrictions on the practice of a midwife, including practice limitations and the suspension and revocation of documentation, and placement of a midwife on probation. (V.A.C.S. Art. 4512i, Secs. 8A(b) (part), (e).)

Sec. 203.152.  FEES. (a) Subject to the approval of the board, the midwifery board by rule shall establish reasonable and necessary fees that, in the aggregate, produce sufficient revenue to cover the costs of administering this chapter.

(b)  The midwifery board may not set a fee for an amount less than the amount of that fee on September 1, 1993. (V.A.C.S. Art. 4512i, Sec. 8A(d) (part).)

Sec. 203.153.  MANUALS. (a)  Subject to the approval of the board, the midwifery board shall issue basic information manuals for the practice of midwifery. The midwifery board shall approve the basic information manuals and instructor manuals that may be used in basic midwifery education courses.

(b)  The department shall provide the manuals to each documented midwife and to any other person on request.

(c)  A basic information manual must include information about:

(1)  the knowledge necessary to practice as a midwife;

(2)  the basic education and continuing education requirements for a midwife;

(3)  the legal requirements and procedures relating to midwifery;

(4)  the standards of practice as a midwife; and

(5)  other information or procedures required by the midwifery board or the board.

(d)  The department may charge a fee for each manual not to exceed $10. The department shall make the manual available in English and Spanish. (V.A.C.S. Art. 4512i, Secs. 8 (part), 9.)

Sec. 203.154.  ANNUAL REPORT; REPORTS ON MIDWIFERY. (a)  The department shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and distributed by the midwifery board during the preceding fiscal year.

(b)  The report under Subsection (a) must be in the form and reported in the time provided by the General Appropriations Act.

(c)  Subject to the approval of the board, the midwifery board shall prepare and publish reports on the practice of midwifery in this state, including statistical reporting of infant fetal morbidity and mortality. (V.A.C.S. Art. 4512i, Secs. 8A(b) (part), 8C.)

Sec. 203.155.  COMPLAINT PROCEDURE AND INVESTIGATION. (a) The midwifery board shall adopt rules concerning the investigation of a complaint filed with the midwifery board.

(b)  The rules adopted under Subsection (a) must:

(1)  distinguish among categories of complaints;

(2)  ensure that a person who files a complaint has an opportunity to explain the allegations made in the complaint; and

(3)  provide for the release of any relevant midwifery or medical record to the midwifery board, without the necessity of consent by the midwife's client, as necessary to conduct an investigation of a complaint.

(c)  The midwifery board by rule shall:

(1)  adopt a form to standardize information concerning complaints made to the midwifery board; and

(2)  prescribe information to be provided to a person when the person files a complaint with the midwifery board.

(d)  The midwifery board shall provide reasonable assistance to a person who wishes to file a complaint with the midwifery board. (V.A.C.S. Art. 4512i, Secs. 18C(b), (c); 18D.)

Sec. 203.156.  DUTIES OF BOARD AND DEPARTMENT. (a)  The board shall review and act on materials submitted by the midwifery board for approval not later than the 60th day after the date the materials are submitted.

(b)  The department, with the recommendation of the midwifery board, shall:

(1)  implement rules governing:

(A)  basic midwifery education courses and continuing midwifery education courses; and

(B)  approval of instructors or facilities used in offering basic midwifery education courses and continuing midwifery education courses;

(2)  prepare and distribute basic midwifery information and instructor manuals; and

(3)  enter into agreements necessary to carry out this chapter.

(c)  The department shall:

(1)  establish a program for documentation as a midwife as prescribed by board rules;

(2)  pay the salaries of the program coordinator and any additional staff the department determines to be necessary; and

(3)  provide office space and supplies for the program coordinator and other staff. (V.A.C.S. Art. 4512i, Secs. 7(b); 8A(a), (c); 13(a).)

Sec. 203.157.  ROSTER; NOTICE TO COUNTY OFFICIALS. (a) The department shall maintain a roster of each person documented as a midwife in this state.

(b)  The roster shall contain for each person the information required on the documentation form under this chapter and other information the department determines necessary to accurately identify each documented midwife. The information is public information as defined by Chapter 552, Government Code.

(c)  The department shall provide each county clerk and each local registrar of births in a county with the name of each midwife practicing in the county. (V.A.C.S. Art. 4512i, Secs. 13(c), 15.)

[Sections 203.158-203.200 reserved for expansion]

SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT

PROCEDURES

Sec. 203.201.  PUBLIC INTEREST INFORMATION. (a)  The midwifery board shall prepare information of public interest describing the functions of the midwifery board and the procedures by which complaints are filed with and resolved by the midwifery board.

(b)  The midwifery board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4512i, Sec. 8D(a).)

Sec. 203.202.  COMPLAINTS. (a)  The midwifery board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the midwifery board for the purpose of directing complaints to the midwifery board. The midwifery board may provide for that notice:

(1)  on each registration form, application, or disclosure and informed consent form of a person regulated by the midwifery board;

(2)  on a sign prominently displayed in the place of business of each person regulated by the midwifery board; or

(3)  in a bill for service provided by a person regulated by the midwifery board.

(b)  The midwifery board shall list with its regular telephone number the toll-free telephone number established under other state law that may be called to present a complaint about a health professional.

(c)  The midwifery board shall keep an information file about each complaint filed with the midwifery board.

(d)  The midwifery board's information file shall be kept current and contain a record for each complaint of:

(1)  each person contacted in relation to the complaint;

(2)  a summary of findings made at each step of the complaint process; and

(3)  other relevant information. (V.A.C.S. Art. 4512i, Secs. 8D(b), (c); 18C(a).)

Sec. 203.203.  PUBLIC PARTICIPATION. (a) The midwifery board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the midwifery board and to speak on any issue under the midwifery board's jurisdiction.

(b)  The midwifery board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the midwifery board's programs. (V.A.C.S. Art. 4512i, Secs. 8F, 8H (part).)

[Sections 203.204-203.250 reserved for expansion]

SUBCHAPTER F. DOCUMENTATION REQUIREMENTS

Sec. 203.251.  DOCUMENTATION REQUIRED. (a) A person may not practice midwifery unless the person holds a documentation letter issued under this chapter.

(b)  The department shall provide a documentation letter to each person who fulfills documentation requirements. (V.A.C.S. Art. 4512i, Sec. 12; New.)

Sec. 203.252.  INITIAL DOCUMENTATION. (a) At the time of initial documentation, an applicant for documentation must provide the program coordinator with documentary evidence that the person has:

(1)  satisfied each requirement for basic midwifery education; and

(2)  passed the comprehensive midwifery examination.

(b)  The initial documentation must be issued before the midwife begins to practice midwifery and may be issued at any time during the year.

(c)  The term of the initial documentation begins on the date the requirements are met and extends through December 31 of the year in which initial documentation is issued. (V.A.C.S. Art. 4512i, Secs. 10(b), 13(d) (part).)

Sec. 203.253.  DOCUMENTATION APPLICATION. A person who practices midwifery must apply to the department to be documented as a midwife. The application must:

(1)  be accompanied by a nonrefundable application fee; and

(2)  include information required by board rules. (V.A.C.S. Art. 4512i, Sec. 13(b) (part).)

Sec. 203.254.  BASIC MIDWIFERY EDUCATION. Subject to the approval of the board, the midwifery board shall establish requirements for basic midwifery education. (V.A.C.S. Art. 4512i, Sec. 8 (part).)

Sec. 203.255.  EXAMINATION. (a) The midwifery board, with the approval of the board, shall:

(1)  adopt a comprehensive midwifery examination for persons regulated under this chapter that must be passed before initial documentation; and

(2)  establish eligibility requirements for persons taking a comprehensive midwifery examination.

(b)  The midwifery board shall have an independent testing professional validate any written portion of the examination. (V.A.C.S. Art. 4512i, Secs. 8 (part), 11.)

Sec. 203.256.  TRAINING IN NEWBORN SCREENING AND BASIC LIFE SUPPORT CARDIOPULMONARY RESUSCITATION. A person who practices midwifery in this state must provide the program coordinator with satisfactory evidence that the person:

(1)  is trained to perform the newborn screening tests under Section 203.354 or has made arrangements for the performance of those tests; and

(2)  holds:

(A)  a current certificate issued by the American Heart Association in basic life support cardiopulmonary resuscitation; or

(B)  another form of certification acceptable to the department that demonstrates proficiency in basic life support cardiopulmonary resuscitation for adults and children. (V.A.C.S. Art. 4512i, Sec. 10(a).)

[Sections 203.257-203.300 reserved for expansion]

SUBCHAPTER G. DOCUMENTATION RENEWAL

Sec. 203.301.  APPLICATION FOR DOCUMENTATION RENEWAL. An applicant for renewal of documentation must apply annually as provided in Section 203.253. (V.A.C.S. Art. 4512i, Sec. 13(b) (part).)

Sec. 203.302.  LATE APPLICATION FOR RENEWAL. (a)  The department may accept an application for documentation renewal that is filed not later than the expiration date of a grace period established by board rule. The grace period may not exceed the 60th day after the expiration date of a person's documentation.

(b)  The department may charge a late filing fee that must be paid in addition to the application fee. (V.A.C.S. Art. 4512i, Sec. 13(e).)

Sec. 203.303.  STAGGERED RENEWAL DATES. (a) The midwifery board by rule may adopt a system under which documentations expire on various dates during the year.

(b)  For the year in which the documentation expiration date is changed, documentation fees payable on the original expiration date shall be prorated on a monthly basis so that each documented midwife pays only that portion of the documentation fee that is allocable to the number of months during which the documentation is valid.

(c)  On renewal of the documentation on the new expiration date, the total documentation renewal fee is payable. (V.A.C.S. Art. 4512i, Sec. 13(d) (part).)

Sec. 203.304.  CONTINUING MIDWIFERY EDUCATION. (a) Subject to the approval of the board, the midwifery board shall establish requirements for continuing midwifery education, including a minimum number of hours of continuing education required to renew a documentation under this chapter.

(b)  On renewal of the documentation, a midwife must provide the program coordinator with evidence, acceptable under board rules, of completion of continuing midwifery education as prescribed by the midwifery board.

(c)  The midwifery board by rule shall develop a process to evaluate and approve continuing education courses. (V.A.C.S. Art. 4512i, Secs. 8 (part), 10(c) (part).)

Sec. 203.305.  REQUIRED ATTENDANCE AT SPECIFIC MIDWIFERY EDUCATION COURSES. The midwifery board may assess the continuing education needs of documented midwives and may require documented midwives to attend continuing midwifery education courses specified by the midwifery board. (V.A.C.S. Art. 4512i, Sec. 10(c) (part).)

[Sections 203.306-203.350 reserved for expansion]

SUBCHAPTER H. PRACTICE BY MIDWIFE

Sec. 203.351.  INFORMED CHOICE AND DISCLOSURE REQUIREMENTS. (a) A midwife shall disclose in oral and written form to a prospective client the limitations of the skills and practices of a midwife.

(b)  The midwifery board shall prescribe the form of the informed choice and disclosure statement required to be used by a midwife under this chapter. The form must include:

(1)  statistics of the midwife's experience as a midwife;

(2)  the date the midwife's documentation expires;

(3)  the date the midwife's cardiopulmonary resuscitation certification expires;

(4)  the midwife's compliance with continuing education requirements;

(5)  a description of medical backup arrangements; and

(6)  the legal responsibilities of a midwife, including statements concerning newborn blood screening, ophthalmia neonatorum prevention, and prohibited acts under Sections 203.401-203.403.

(c)  The informed choice statement must include a statement that state law requires a newborn child to be tested for certain heritable diseases and hypothyroidism. The midwife shall disclose to a client whether the midwife is approved to collect blood specimens to be used to perform the tests. If the midwife is not approved to collect the blood specimens, the disclosure must inform the client of the midwife's duty to refer the client to an appropriate health care facility or physician for the collection of the specimens.

(d)  The disclosure of legal requirements required by this section may not exceed 500 words and must be in English and Spanish.

(e)  A midwife shall disclose to a prospective or actual client the procedure for reporting complaints to the department. (V.A.C.S. Art. 4512i, Secs. 16(a), (b), (c), (d), (g).)

Sec. 203.352.  PRENATAL AND CERTAIN MEDICAL CARE ENCOURAGED. A midwife shall encourage a client to seek:

(1)  prenatal care; and

(2)  medical care through consultation or referral, as specified by midwifery board rules, if the midwife determines that the pregnancy, labor, delivery, postpartum period, or newborn period of a woman or newborn may not be classified as normal for purposes of this chapter. (V.A.C.S. Art. 4512i, Secs. 16(e), (f).)

Sec. 203.353.  PREVENTION OF OPHTHALMIA NEONATORUM. Unless the newborn child is immediately transferred to a hospital because of an emergency, a midwife who attends the birth of the child shall comply with Section 81.091, Health and Safety Code. (V.A.C.S. Art. 4512i, Sec. 16A.)

Sec. 203.354.  NEWBORN SCREENING. (a) Each midwife who attends the birth of a child shall cause the newborn screening tests to be performed on blood specimens taken from the child as required by Chapter 33, Health and Safety Code.

(b)  A midwife may collect blood specimens for the newborn screening tests if the midwife has been approved by the department to collect the specimen. The board shall adopt rules establishing the standards for approval. The standards must recognize completion of a course of instruction that includes the blood specimen collection procedure or verification by appropriately trained health care providers that the midwife has been instructed in the blood collection procedures.

(c)  A midwife who is not approved to collect blood specimens for newborn screening tests shall refer a client and her newborn to an appropriate health care facility or physician for the collection of the blood specimen and submission of the specimen to the department.

(d)  If the midwife has been approved by the department to collect blood specimens under this section, the collection by the midwife of blood specimens for the required newborn screening tests does not constitute the practice of medicine as defined by Subtitle B. (V.A.C.S. Art. 4512i, Sec. 8B.)

Sec. 203.355.  SUPPORT SERVICES. (a) In this section:

(1)  "Clinical services" include prenatal, postpartum, child health, and family planning services.

(2)  "Local health unit" means a division of a municipal or county government that provides limited public health services under Section 121.004, Health and Safety Code.

(3)  "Public health district" means a district created under Subchapter E, Chapter 121, Health and Safety Code.

(b)  The department and a local health department, a public health district, or a local health unit shall provide clinical and laboratory support services to a pregnant woman or a newborn who is a client of a midwife if the midwife is required to provide the services under this chapter.

(c)  The laboratory services must include the performance of the standard serological tests for syphilis and the collection of blood specimens for newborn screening tests for phenylketonuria, hypothyroidism, and other heritable diseases as required by law.

(d)  The provider may charge a reasonable fee for the services. A person may not be denied the services because of inability to pay.

(e)  If available, appropriately trained personnel from local health departments, public health districts, and local health units shall instruct documented midwives in the approved techniques for collecting blood specimens to be used to perform newborn screening tests. (V.A.C.S. Art. 4512i, Secs. 1(c)(10), (14); 19A(a), (b).)

Sec. 203.356.  IMMUNITY. (a) A physician, a registered nurse, or other person who, on the order of a physician, instructs a midwife in the approved techniques for collecting blood specimens to be used for newborn screening tests is immune from liability arising out of the failure or refusal of the midwife to:

(1)  collect the specimens in the approved manner; or

(2)  submit the specimens to the department in a timely manner.

(b)  A physician who issues an order directing or instructing a midwife is immune from liability arising out of the failure or refusal of the midwife to comply with the order if, before the issuance of the order, the midwife provided the physician with evidence satisfactory to the board of compliance with this chapter. (V.A.C.S. Art. 4512i, Secs. 19A(c), (d).)

Sec. 203.357.  ADDITIONAL INFORMATION REQUIRED. (a) The midwifery board may require information in addition to that required by Section 203.253 if it determines the additional information is necessary and appropriate to ascertain the nature and extent of midwifery in this state. The midwifery board may not require information regarding any act that is prohibited under this chapter.

(b)  With the approval of the midwifery board, the department shall prescribe forms for the additional information and shall distribute those forms directly to each midwife. Each midwife must complete and return the forms to the department as requested.

(c)  Information received under this section may not be made public in a manner that discloses the identity of any person to whom the information relates. The information is not public information as defined by Chapter 552, Government Code. (V.A.C.S. Art. 4512i, Sec. 14.)

[Sections 203.358-203.400 reserved for expansion]

SUBCHAPTER I. PROHIBITED PRACTICES AND GROUNDS FOR

DISCIPLINARY ACTION

Sec. 203.401.  PROHIBITED PRACTICES. A midwife may not:

(1)  provide midwifery care in violation of midwifery board rule, except in an emergency that poses an immediate threat to the life of a woman or newborn;

(2)  administer a prescription drug to a client other than:

(A)  a drug administered under the supervision of a licensed physician in accordance with state law;

(B)  prophylaxis approved by the board to prevent ophthalmia neonatorum; or

(C)  oxygen administered in accordance with midwifery board rule;

(3)  use forceps or a surgical instrument for a procedure other than cutting the umbilical cord or providing emergency first aid during delivery;

(4)  remove placenta by invasive techniques;

(5)  use a mechanical device or medicine to advance or retard labor or delivery; or

(6)  make on a birth certificate a false statement or false record in violation of Section 195.003, Health and Safety Code. (V.A.C.S. Art. 4512i, Sec. 17(a) (part).)

Sec. 203.402.  PROHIBITED REPRESENTATION. A midwife may not:

(1)  except as provided by Section 203.403, use in connection with the midwife's name a title, abbreviation, or designation tending to imply that the midwife is a "registered" or "certified" midwife as opposed to one who is documented under this chapter;

(2)  advertise or represent that the midwife is a physician or a graduate of a medical school unless the midwife is licensed to practice medicine by the Texas State Board of Medical Examiners;

(3)  use advertising or an identification statement that is false, misleading, or deceptive; or

(4)  except as authorized by rules adopted by the Board of Nurse Examiners and the Board of Vocational Nurse Examiners, use in combination with the term "midwife" the term "nurse" or another title, initial, or designation that implies that the midwife is licensed as a registered nurse or licensed vocational nurse. (V.A.C.S. Art. 4512i, Sec. 17(a) (part).)

Sec. 203.403.  PROHIBITED USE OF TITLE. (a)  A midwife certified by the North American Registry of Midwives who uses "certified" as part of the midwife's title in an identification statement or advertisement must include in the statement or advertisement a statement that the midwife is certified by the North American Registry of Midwives.

(b)  A midwife may not use an identification statement or advertisement that would lead a reasonable person to believe that the midwife is certified by a governmental entity. (V.A.C.S. Art. 4512i, Sec. 17(b).)

Sec. 203.404.  GROUNDS FOR DISCIPLINARY ACTION. (a)  The midwifery board may discipline a documented midwife and may refuse to issue a letter of documentation to an applicant who:

(1)  violates this chapter or a rule adopted under this chapter;

(2)  submits false or misleading information to the midwifery board, the board, or the department;

(3)  is convicted of a misdemeanor involving moral turpitude or a felony;

(4)  uses alcohol or drugs intemperately;

(5)  engages in unprofessional or dishonorable conduct that may reasonably be determined to deceive or defraud the public;

(6)  is unable to practice midwifery with reasonable skill and safety because of illness, disability, or psychological impairment;

(7)  is determined by a court judgment to be mentally impaired;

(8)  submits a birth or death certificate known by the person to be false or fraudulent or engages in another act that violates Title 3, Health and Safety Code, or a rule adopted under that title;

(9)  violates Chapter 244, Health and Safety Code, or a rule adopted under that chapter; or

(10)  fails to practice midwifery in a manner consistent with the public health and safety.

(b)  The midwifery board may discipline a documented midwife and may refuse to issue a letter of documentation to an applicant for a disciplinary action taken by another jurisdiction that affects the person's authority to practice midwifery, including a suspension, a revocation, or another action. (V.A.C.S. Art. 4512i, Sec. 17A.)

[Sections 203.405-203.450 reserved for expansion]

SUBCHAPTER J. ADMINISTRATIVE PENALTY

Sec. 203.451.  IMPOSITION OF ADMINISTRATIVE PENALTY. The midwifery board may impose an administrative penalty on a person who violates this chapter or a rule adopted under this chapter. (V.A.C.S. Art. 4512i, Sec. 18E(a).)

Sec. 203.452.  AMOUNT OF ADMINISTRATIVE PENALTY. (a) The amount of the administrative penalty may not exceed $1,000 for each violation. Each day a violation continues is a separate violation.

(b)  The amount shall be based on:

(1)  the seriousness of the violation;

(2)  the history of previous violations;

(3)  the amount necessary to deter a future violation;

(4)  efforts made to correct the violation; and

(5)  any other matter that justice may require. (V.A.C.S. Art. 4512i, Secs. 18E(b), (c).)

Sec. 203.453.  NOTICE OF VIOLATION AND PENALTY. (a)  If, after investigation of a possible violation and the facts surrounding that possible violation, the midwifery board or its designee determines that a violation has occurred, the midwifery board or its designee shall give written notice of the violation to the person alleged to have committed the violation.

(b)  The notice must:

(1)  include a brief summary of the alleged violation;

(2)  state the amount of the proposed administrative penalty; and

(3)  inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4512i, Sec. 18E(e).)

Sec. 203.454.  PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice under Section 203.453, the person may:

(1)  accept the midwifery board or its designee's determination and the proposed administrative penalty; or

(2)  make a written request for a hearing on that determination.

(b)  If the person accepts the midwifery board or its designee's determination, the midwifery board by order shall approve the determination and require the person to pay the proposed penalty. (V.A.C.S. Art. 4512i, Secs. 18E(f), (g).)

Sec. 203.455.  HEARING. (a) If the person timely requests a hearing, the midwifery board or its designee shall set a hearing and give written notice of the hearing to the person. The midwifery board or its designee may employ a hearings examiner for this purpose.

(b)  The hearings examiner shall make findings of fact and conclusions of law and promptly issue to the midwifery board a proposal for decision as to the occurrence of the violation and the amount of the proposed administrative penalty. (V.A.C.S. Art. 4512i, Secs. 18E(h), (i).)

Sec. 203.456.  DECISION BY MIDWIFERY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the midwifery board by order may determine that:

(1)  a violation has occurred and impose an administrative penalty; or

(2)  a violation did not occur.

(b)  The midwifery board shall give notice of the midwifery board's order to the person. The notice must include:

(1)  separate statements of the findings of fact and conclusions of law;

(2)  the amount of any penalty assessed; and

(3)  a statement of the right of the person to judicial review of the midwifery board's order. (V.A.C.S. Art. 4512i, Secs. 18E(j), (k).)

Sec. 203.457.  OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the midwifery board's order becomes final, the person shall:

(1)  pay the administrative penalty;

(2)  pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or

(3)  without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.

(b)  Within the 30-day period, a person who acts under Subsection (a)(3) may:

(1)  stay enforcement of the penalty by:

(A)  paying the penalty to the court for placement in an escrow account; or

(B)  giving to the court a supersedeas bond that is approved by the court and that:

(i)  is for the amount of the penalty; and

(ii)  is effective until judicial review of the order is final; or

(2)  request the court to stay enforcement of the penalty by:

(A)  filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and

(B)  giving a copy of the affidavit to the midwifery board by certified mail.

(c)  If the midwifery board receives a copy of an affidavit under Subsection (b)(2), the midwifery board may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.

(d)  The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4512i, Secs. 18E(l), (m), (n).)

Sec. 203.458.  COLLECTION OF PENALTY. (a) If the person on whom the administrative penalty is imposed does not comply with Section 203.457, the penalty may be collected.

(b)  The midwifery board may assess reasonable expenses and costs against a person in an administrative hearing if, as a result of the hearing, an administrative penalty is assessed against the person. The person shall pay expenses and costs assessed under this subsection not later than the 30th day after the date the order of the midwifery board requiring the payment of expenses and costs is final. The midwifery board may refer the matter to the attorney general for collection of the expenses and costs.

(c)  If the attorney general brings an action against a person to enforce an administrative penalty assessed under this chapter and the person is found liable for an administrative penalty, the attorney general may recover, on behalf of the attorney general, the midwifery board, and the department, reasonable expenses and costs.

(d)  In this section, reasonable expenses and costs includes expenses incurred by the department, the midwifery board, and the attorney general in the investigation, initiation, or prosecution of an action, including reasonable investigative costs, court costs, attorney's fees, witness fees, and deposition expenses.

(e)  Costs and expenses collected under this section shall be deposited in the state treasury to the credit of a special account that may be appropriated only to the department. Section 403.095, Government Code, does not apply to the account. (V.A.C.S. Art. 4512i, Secs. 18E(o), (t), (u), (v), (w).)

Sec. 203.459.  DETERMINATION BY COURT. (a) If a court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.

(b)  If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4512i, Sec. 18E(q).)

Sec. 203.460.  REMITTANCE OF PENALTY AND INTEREST. (a)  If, after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall:

(1)  order the midwifery board to remit to the person the appropriate amount, plus accrued interest, if the person paid the penalty; or

(2)  order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.

(b)  The interest paid under Subsection (a)(1) is accrued at the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4512i, Sec. 18E(r).)

Sec. 203.461.  ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter to impose an administrative penalty is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4512i, Sec. 18E(d).)

[Sections 203.462-203.500 reserved for expansion]

SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 203.501.  CIVIL PENALTY. (a) A person is liable for a civil penalty if the person is required to be documented under this chapter and the person knowingly or intentionally practices midwifery:

(1)  without documentation or while the documentation is suspended or revoked; or

(2)  in violation of a midwifery board order.

(b)  A civil penalty under this section may not exceed $250 for each violation. Each day of violation may constitute a separate violation for purposes of penalty assessment. In determining the amount of the penalty, the court shall consider:

(1)  the person's history of previous violations;

(2)  the seriousness of the violation;

(3)  any hazard to the health and safety of the public; and

(4)  the demonstrated good faith of the person charged. (V.A.C.S. Art. 4512i, Secs. 18B(a) (part), (b), (c).)

Sec. 203.502.  INJUNCTIONS. (a) In this section, "health authority" means a physician who administers state and local laws regulating public health under Chapter 121, Health and Safety Code.

(b)  If the commissioner or a health authority determines that a person has violated this chapter and that the violation creates an immediate threat to the health and safety of the public, the commissioner or the health authority, with the concurrence of the commissioner, may request the attorney general or a district, county, or city attorney to bring an action in a district court for a restraining order to restrain the violation.

(c)  If a person has violated this chapter, the commissioner or a health authority, with the concurrence of the commissioner, may bring an action in a district court for an injunction to prohibit the person from continuing the violation. (V.A.C.S. Art. 4512i, Secs. 1(c)(8), 18A(a), (b).)

Sec. 203.503.  VENUE. (a)  Venue for a civil action brought under Section 203.451 or 203.452 is in the county in which the defendant resides or in the county in which the violation occurred.

(b)  Venue for the civil action may be changed only after a good faith effort has been made to address the violation in the county in which venue is proper. (V.A.C.S. Art. 4512i, Secs. 18A(d), 18B(d).)

Sec. 203.504.  CRIMINAL PENALTY. (a)  A person commits an offense if the person is required to be documented under this chapter and the person knowingly practices midwifery without documentation.

(b)  An offense under this section is a Class C misdemeanor. (V.A.C.S. Art. 4512i, Secs. 18(a), (b).)

CHAPTER 204. PHYSICIAN ASSISTANTS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 204.001. SHORT TITLE

Sec. 204.002. DEFINITIONS

Sec. 204.003. APPLICABILITY

Sec. 204.004. APPLICATION OF SUNSET ACT

[Sections 204.005-204.050 reserved for expansion]

SUBCHAPTER B. TEXAS STATE BOARD OF PHYSICIAN

ASSISTANT EXAMINERS

Sec. 204.051. TEXAS STATE BOARD OF PHYSICIAN ASSISTANT

EXAMINERS

Sec. 204.052. APPOINTMENT OF BOARD

Sec. 204.053. MEMBERSHIP ELIGIBILITY AND RESTRICTIONS

Sec. 204.054. TERMS; VACANCIES

Sec. 204.055. OFFICERS

Sec. 204.056. GROUNDS FOR REMOVAL

Sec. 204.057. PER DIEM

Sec. 204.058. OPEN MEETINGS; ADMINISTRATIVE PROCEDURE LAW

[Sections 204.059-204.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES OF PHYSICIAN ASSISTANT BOARD

AND MEDICAL BOARD

Sec. 204.101. GENERAL POWERS AND DUTIES OF BOARD

Sec. 204.102. POWERS AND DUTIES OF MEDICAL BOARD RELATING TO

PHYSICIAN ASSISTANTS

Sec. 204.103. FEES

Sec. 204.104. RURAL PHYSICIAN ASSISTANT LOAN REIMBURSEMENT

PROGRAM

[Sections 204.105-204.150 reserved for expansion]

SUBCHAPTER D. LICENSE REQUIREMENTS, EXEMPTIONS, AND RENEWAL

Sec. 204.151. LICENSE REQUIRED

Sec. 204.152. ISSUANCE OF LICENSE

Sec. 204.153. ELIGIBILITY REQUIREMENTS

Sec. 204.154. EXEMPTIONS FROM LICENSING REQUIREMENT FOR

CERTAIN PHYSICIAN ASSISTANTS

Sec. 204.155. TEMPORARY LICENSE

Sec. 204.156. LICENSE RENEWAL

Sec. 204.157. INACTIVE STATUS

[Sections 204.158-204.200 reserved for expansion]

SUBCHAPTER E. PRACTICE BY LICENSE HOLDER

Sec. 204.201. NOTICE OF INTENT TO PRACTICE

Sec. 204.202. SCOPE OF PRACTICE

Sec. 204.203. IDENTIFICATION REQUIREMENTS

Sec. 204.204. SUPERVISION REQUIREMENTS

Sec. 204.205. REQUIREMENTS FOR SUPERVISING PHYSICIAN

Sec. 204.206. ESTABLISHMENT OF CERTAIN FUNCTIONS AND

STANDARDS

Sec. 204.207. ASSUMPTION OF PROFESSIONAL LIABILITY

Sec. 204.208. DUTY TO REPORT; MEDICAL PEER REVIEW

[Sections 204.209-204.250 reserved for expansion]

SUBCHAPTER F. COMPLAINTS AND INVESTIGATIVE INFORMATION

Sec. 204.251. COMPLAINT INFORMATION AND STATUS

Sec. 204.252. LICENSE HOLDER ACCESS TO COMPLAINT

INFORMATION

Sec. 204.253. HEALTH CARE ENTITY REQUEST FOR INFORMATION

Sec. 204.254. CONFIDENTIALITY OF INVESTIGATIVE INFORMATION

Sec. 204.255. PERMITTED DISCLOSURE OF INVESTIGATIVE

INFORMATION

[Sections 204.256-204.300 reserved for expansion]

SUBCHAPTER G. DISCIPLINARY PROCEEDINGS

Sec. 204.301. DISCIPLINARY AUTHORITY OF BOARD

Sec. 204.302. CONDUCT RELATED TO FRAUD OR MISREPRESENTATION

Sec. 204.303. CONDUCT RELATED TO VIOLATION OF LAW

Sec. 204.304. CONDUCT INDICATING LACK OF FITNESS

Sec. 204.305. REHABILITATION ORDER

Sec. 204.306. EFFECT OF REHABILITATION ORDER

Sec. 204.307. AUDIT OF REHABILITATION ORDER

Sec. 204.308. SUBPOENA

Sec. 204.309. PROTECTION OF PATIENT IDENTITY

[Sections 204.310-204.350 reserved for expansion]

SUBCHAPTER H. PENALTIES

Sec. 204.351. ADMINISTRATIVE PENALTY

Sec. 204.352. CRIMINAL PENALTY

CHAPTER 204. PHYSICIAN ASSISTANTS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 204.001.  SHORT TITLE. This chapter may be cited as the Physician Assistant Licensing Act. (V.A.C.S. Art. 4495b-1, Sec. 1(a).)

Sec. 204.002.  DEFINITIONS. In this chapter:

(1)  "Medical board" means the Texas State Board of Medical Examiners.

(2)  "Physician assistant board" means the Texas State Board of Physician Assistant Examiners. (V.A.C.S. Art. 4495b-1, Secs. 2(1), (2).)

Sec. 204.003.  APPLICABILITY. (a) A person is not required to hold a license issued under this chapter to practice as:

(1)  a technician, assistant, or employee of a physician who performs delegated tasks but does not act as a physician assistant or represent that the person is a physician assistant; or

(2)  any other licensed health care worker acting within the scope of that person's license if the person:

(A)  does not use the title "physician assistant" or the initials "P.A."; or

(B)  is not represented or designated as a physician assistant.

(b)  This chapter does not limit the employment arrangement of a physician assistant licensed under this chapter. (V.A.C.S. Art. 4495b-1, Secs. 11 (part), 16.)

Sec. 204.004.  APPLICATION OF SUNSET ACT. The Texas State Board of Physician Assistant Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4495b-1, Sec. 4(k).)

[Sections 204.005-204.050 reserved for expansion]

SUBCHAPTER B. TEXAS STATE BOARD OF

PHYSICIAN ASSISTANT EXAMINERS

Sec. 204.051.  TEXAS STATE BOARD OF PHYSICIAN ASSISTANT EXAMINERS. The Texas State Board of Physician Assistant Examiners is an advisory board to the Texas State Board of Medical Examiners. (V.A.C.S. Art. 4495b-1, Sec. 4(a).)

Sec. 204.052.  APPOINTMENT OF BOARD. The physician assistant board consists of nine members appointed by the governor as follows:

(1)  three practicing physician assistant members who each have at least five years of clinical experience as a physician assistant;

(2)  three physician members who are licensed in this state and who supervise physician assistants; and

(3)  three public members who are not licensed as a physician or physician assistant. (V.A.C.S. Art. 4495b-1, Sec. 4(b).)

Sec. 204.053.  MEMBERSHIP ELIGIBILITY AND RESTRICTIONS. (a) A person is not eligible for appointment as a public member of the physician assistant board if the person or the person's spouse:

(1)  is licensed by an occupational regulatory agency in the field of health care; or

(2)  is employed by or participates in the management of a business entity or other organization that provides health care services or that sells, manufactures, or distributes health care supplies or equipment.

(b)  A person may not serve as a member of the physician assistant board if the person is required to register as a lobbyist under Chapter 305, Government Code. (V.A.C.S. Art. 4495b-1, Secs. 4(c), (f).)

Sec. 204.054.  TERMS; VACANCIES. (a) Members of the physician assistant board are appointed for staggered six-year terms. The terms of three members expire on February 1 of each odd-numbered year.

(b)  A member may not serve more than:

(1)  two consecutive full terms; or

(2)  a total of three full terms.

(c)  If a vacancy occurs during a member's term, the governor shall appoint a new member to fill the unexpired term. (V.A.C.S. Art. 4495b-1, Secs. 4(i), (j).)

Sec. 204.055.  OFFICERS. The physician assistant board shall select from its membership a presiding officer and a secretary to serve one-year terms. (V.A.C.S. Art. 4495b-1, Sec. 4(l).)

Sec. 204.056.  GROUNDS FOR REMOVAL. (a) It is a ground for removal from the physician assistant board that a member:

(1)  does not have at the time of appointment the qualifications required by this subchapter for appointment to the board;

(2)  does not maintain during the service on the board the qualifications required by this subchapter for appointment to the board; or

(3)  fails to attend at least one-half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year.

(b)  The validity of an action of the physician assistant board is not affected by the fact that it is taken when a ground for removal of a board member exists. (V.A.C.S. Art. 4495b-1, Secs. 4(e), (g).)

Sec. 204.057.  PER DIEM. A member of the physician assistant board is entitled to receive a per diem as set by legislative appropriation for each day that the member engages in the business of the board. If the General Appropriations Act does not prescribe the amount of the per diem, the per diem is equal to a member's actual expenses for meals, lodging, and transportation plus $100. (V.A.C.S. Art. 4495b-1, Sec. 4(d).)

Sec. 204.058.  OPEN MEETINGS; ADMINISTRATIVE PROCEDURE LAW. Except as otherwise provided by this chapter, the physician assistant board is subject to Chapters 551 and 2001, Government Code. (V.A.C.S. Art. 4495b-1, Sec. 4(h).)

[Sections 204.059-204.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES OF PHYSICIAN ASSISTANT BOARD

AND MEDICAL BOARD

Sec. 204.101.  GENERAL POWERS AND DUTIES OF BOARD. The physician assistant board shall:

(1)  adopt rules that are reasonable and necessary for the performance of the physician assistant board's duties under this chapter, as provided by Chapter 2001, Government Code, including rules to establish:

(A)  licensing and other fees;

(B)  license renewal dates; and

(C)  procedures for disciplinary actions;

(2)  review and approve or reject each application for the issuance or renewal of a license;

(3)  issue each license;

(4)  deny, suspend, or revoke a license or otherwise discipline a license holder; and

(5)  take any action necessary to carry out the functions and duties of the physician assistant board under this chapter. (V.A.C.S. Art. 4495b-1, Secs. 5 (part), 23(a).)

Sec. 204.102.  POWERS AND DUTIES OF MEDICAL BOARD RELATING TO PHYSICIAN ASSISTANTS. (a) The medical board shall adopt rules consistent with this chapter to regulate physician assistants and physicians who supervise physician assistants.

(b)  The medical board, by a majority vote, shall approve or reject each rule adopted by the physician assistant board. If approved, the rule may take effect. If the rule is rejected, the medical board shall return the rule to the physician assistant board for revision. (V.A.C.S. Art. 4495b, Sec. 5.02; Art. 4495b-1, Sec. 23(b).)

Sec. 204.103.  FEES. The physician assistant board shall establish and collect fees in amounts that are reasonable and necessary to cover the cost of administering this chapter. (V.A.C.S. Art. 4495b-1, Secs. 5 (part), 6.)

Sec. 204.104.  RURAL PHYSICIAN ASSISTANT LOAN REIMBURSEMENT PROGRAM. (a) A program shall be established to provide student loan reimbursement for graduates of physician assistant training programs from any state who practice in rural health professional shortage areas and medically underserved areas identified by the Texas Department of Health. The physician assistant board shall fund the program by designating annually a portion of the revenue generated under this chapter from physician assistant licensing fees.

(b)  The Center for Rural Health Initiatives shall establish policies for and adopt rules to administer the loan program.

(c)  The physician assistant board shall authorize and the medical board shall transfer annually the funds designated under Subsection (a) to the Center for Rural Health Initiatives to administer the loan program. (V.A.C.S. Art. 4495b-1, Sec. 24.)

[Sections 204.105-204.150 reserved for expansion]

SUBCHAPTER D. LICENSE REQUIREMENTS, EXEMPTIONS,

AND RENEWAL

Sec. 204.151.  LICENSE REQUIRED. A person may not practice as a physician assistant in this state unless the person holds a physician assistant license issued under this chapter. (V.A.C.S. Art. 4495b-1, Sec. 3.)

Sec. 204.152.  ISSUANCE OF LICENSE. The physician assistant board shall issue a license to an applicant who:

(1)  meets the eligibility requirements of Section 204.153;

(2)  submits an application on a form prescribed by the board;

(3)  pays the required application fee;

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

(5)  submits to the board any other information the board considers necessary to evaluate the applicant's qualifications. (V.A.C.S. Art. 4495b-1, Sec. 7 (part).)

Sec. 204.153.  ELIGIBILITY REQUIREMENTS. (a) To be eligible for a license under this chapter, an applicant must:

(1)  successfully complete an educational program for physician assistants or surgeon assistants accredited by the Committee on Allied Health Education and Accreditation or by that committee's predecessor or successor entities;

(2)  pass the Physician Assistant National Certifying Examination administered by the National Commission on Certification of Physician Assistants;

(3)  hold a certificate issued by the National Commission on Certification of Physician Assistants;

(4)  be of good moral character; and

(5)  meet any other requirement established by board rule.

(b)  In addition to the requirements of Subsection (a), an applicant is not eligible for a license, unless the physician assistant board takes the fact into consideration in determining whether to issue the license, if the applicant:

(1)  has been issued a license, certificate, or registration as a physician assistant in this state or from a licensing authority in another state that is revoked or suspended; or

(2)  is subject to probation or other disciplinary action for cause resulting from the applicant's acts as a physician assistant. (V.A.C.S. Art. 4495b-1, Secs. 2(3), 7 (part).)

Sec. 204.154.  EXEMPTIONS FROM LICENSING REQUIREMENT FOR CERTAIN PHYSICIAN ASSISTANTS. A person is not required to hold a license issued under this chapter to practice as:

(1)  a physician assistant student enrolled in a physician assistant or surgeon assistant educational program accredited by the Committee on Allied Health Education and Accreditation of the American Medical Association or by successor entities as approved and designated by physician assistant board rule; or

(2)  a physician assistant employed in the service of the federal government while performing duties related to that employment. (V.A.C.S. Art. 4495b-1, Sec. 11 (part).)

Sec. 204.155.  TEMPORARY LICENSE. (a) The physician assistant board may issue a temporary license to an applicant who:

(1)  meets all the qualifications for a license under this chapter but is waiting for the license to be issued at the next scheduled meeting of the board;

(2)  seeks to temporarily substitute for a licensed physician assistant during the license holder's absence, if the applicant:

(A)  is licensed or registered in good standing in another state;

(B)  submits an application on a form prescribed by the board; and

(C)  pays the appropriate fee prescribed by the board; or

(3)  has graduated from an educational program for physician assistants or surgeon assistants described by Section 204.153(a)(1) not later than six months before applying for a temporary license and is waiting for examination results from the National Commission on Certification of Physician Assistants.

(b)  A temporary license is valid for 100 days after the date issued and may be extended for not more than an additional 30 days after the expiration date of the initial temporary license. (V.A.C.S. Art. 4495b-1, Sec. 8.)

Sec. 204.156.  LICENSE RENEWAL. On notification from the physician assistant board, a person who holds a license under this chapter may renew the license by:

(1)  paying the required renewal fee;

(2)  submitting the appropriate form; and

(3)  meeting any other requirement established by board rule. (V.A.C.S. Art. 4495b-1, Sec. 10.)

Sec. 204.157.  INACTIVE STATUS. (a) A person licensed under this chapter may place the person's license on inactive status by applying to the physician assistant board. A person whose license is on inactive status is excused from paying renewal fees for the license.

(b)  The holder of a license on inactive status may not practice as a physician assistant. A violation of this subsection is considered to be practicing without a license.

(c)  A person whose license is on inactive status under this section may return the person's license to active status by:

(1)  applying to the physician assistant board; and

(2)  satisfying the requirements of Section 204.156. (V.A.C.S. Art. 4495b-1, Sec. 9.)

[Sections 204.158-204.200 reserved for expansion]

SUBCHAPTER E. PRACTICE BY LICENSE HOLDER

Sec. 204.201.  NOTICE OF INTENT TO PRACTICE. (a) Before beginning practice, each physician assistant licensed under this chapter shall submit on a form prescribed by the physician assistant board notice of the license holder's intent to practice. The notice must include:

(1)  the name, business address, license number, and telephone number of the physician assistant; and

(2)  the name, business address, Texas license number, and telephone number of the physician assistant's supervising physician.

(b)  A physician assistant shall notify the physician assistant board of any change in, or addition to, the person acting as a supervising physician for the physician assistant not later than the 30th day after the date the change or addition occurs. (V.A.C.S. Art. 4495b-1, Sec. 15.)

Sec. 204.202.  SCOPE OF PRACTICE. (a) The practice of a physician assistant includes providing medical services delegated by a supervising physician that are within the education, training, and experience of the physician assistant.

(b)  Medical services provided by a physician assistant may include:

(1)  obtaining patient histories and performing physical examinations;

(2)  ordering or performing diagnostic and therapeutic procedures;

(3)  formulating a working diagnosis;

(4)  developing and implementing a treatment plan;

(5)  monitoring the effectiveness of therapeutic interventions;

(6)  assisting at surgery;

(7)  offering counseling and education to meet patient needs;

(8)  requesting, receiving, and signing for the receipt of pharmaceutical sample prescription medications and distributing the samples to patients in a specific practice setting in which the physician assistant is authorized to prescribe pharmaceutical medications and sign prescription drug orders as provided by Section 157.052, 157.053, or 157.054, or as otherwise authorized by physician assistant board rule;

(9)  signing or completing a prescription as provided by Subchapter B, Chapter 157; and

(10)  making appropriate referrals.

(c)  The activities listed by Subsection (b) may be performed in any place authorized by a supervising physician, including a clinic, hospital, ambulatory surgical center, patient home, nursing home, or other institutional setting. (V.A.C.S. Art. 4495b-1, Sec. 12.)

Sec. 204.203.  IDENTIFICATION REQUIREMENTS. A physician assistant shall:

(1)  keep the physician assistant's license available for inspection at the physician assistant's primary place of business; and

(2)  when engaged in the physician assistant's professional activities, wear a name tag identifying the license holder as a physician assistant. (V.A.C.S. Art. 4495b-1, Sec. 22.)

Sec. 204.204.  SUPERVISION REQUIREMENTS. (a) A physician assistant shall be supervised by a supervising physician. A physician assistant may have more than one supervising physician. The supervising physician oversees the activities of, and accepts responsibility for, medical services provided by the physician assistant.

(b)  Supervision of a physician assistant by a supervising physician must be continuous. The supervision does not require the constant physical presence of the supervising physician where physician assistant services are being performed, but, if a supervising physician is not present, the supervising physician and the physician assistant must be, or must be able to easily be, in contact with one another by radio, telephone, or another telecommunication device. (V.A.C.S. Art. 4495b-1, Secs. 2(6), 13(a), (c).)

Sec. 204.205.  REQUIREMENTS FOR SUPERVISING PHYSICIAN. A supervising physician must:

(1)  hold an unrestricted and active license as a physician in this state;

(2)  notify the medical board of the physician's intent to supervise a physician assistant;

(3)  submit to the medical board a statement that the physician will:

(A)  supervise the physician assistant according to medical board rule; and

(B)  retain professional and legal responsibility for the care provided by the physician assistant; and

(4)  receive approval from the medical board to supervise the physician assistant. (V.A.C.S. Art. 4495b-1, Secs. 2(4), 14.)

Sec. 204.206.  ESTABLISHMENT OF CERTAIN FUNCTIONS AND STANDARDS. Each physician assistant and the physician assistant's supervising physician shall ensure that:

(1)  the physician assistant's scope of function is identified;

(2)  delegation of medical tasks is appropriate to the physician assistant's level of competence;

(3)  the relationship between the physician assistant and the supervising physician and the access of the physician assistant to the supervising physician are defined; and

(4)  a process is established for evaluating the physician assistant's performance. (V.A.C.S. Art. 4495b-1, Sec. 13(b).)

Sec. 204.207.  ASSUMPTION OF PROFESSIONAL LIABILITY. (a) Each supervising physician retains legal responsibility for a physician assistant's patient care activities, including the provision of care and treatment to a patient in a health care facility.

(b)  If a physician assistant is employed by an entity, including a health care facility, the entity shares the legal responsibility for the physician assistant's acts or omissions with the physician assistant's supervising physician. (V.A.C.S. Art. 4495b-1, Sec. 17.)

Sec. 204.208.  DUTY TO REPORT; MEDICAL PEER REVIEW. (a) A medical peer review committee in this state, physician assistant, physician assistant student, or physician lawfully practicing medicine in this state shall report relevant information to the physician assistant board related to the acts of a physician assistant in this state if, in the person's opinion, a physician assistant poses a continuing threat to the public welfare through practice as a physician assistant. The duty to report under this section may not be nullified through contract.

(b)  Sections 160.002, 160.003, 160.006, 160.007(d), 160.009, 160.013, and 160.014 apply to medical peer review relating to the practice of a physician assistant.

(c)  A person, including a health care entity or medical peer review committee, that without malice furnishes records, information, or assistance to the physician assistant board is immune from any civil liability arising from that act. (V.A.C.S. Art. 4495b, Secs. 5.06(b) (part), (d) (part), (f) (part), (i) (part), (k) (part), (r) (part), (s) (part); Art. 4495b-1, Sec. 28.)

[Sections 204.209-204.250 reserved for expansion]

SUBCHAPTER F. COMPLAINTS AND INVESTIGATIVE INFORMATION

Sec. 204.251.  COMPLAINT INFORMATION AND STATUS. (a) The physician assistant board shall keep information on file about each complaint filed with the board.

(b)  If a written complaint is filed with the physician assistant board relating to a person licensed by the board, the board, as often as quarterly and until final determination of the action to be taken on the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an active investigation. (V.A.C.S. Art. 4495b-1, Sec. 25(e).)

Sec. 204.252.  LICENSE HOLDER ACCESS TO COMPLAINT INFORMATION. (a) The physician assistant board shall provide a license holder who is the subject of a formal complaint filed under this chapter with access to all information in its possession that the board intends to offer into evidence in presenting its case in chief at the contested hearing on the complaint, subject to any other privilege or restriction established by rule, statute, or legal precedent. The board shall provide the information not later than the 30th day after receipt of a written request from the license holder or the license holder's counsel, unless good cause is shown for delay.

(b)  Notwithstanding Subsection (a), the board is not required to provide:

(1)  board investigative reports;

(2)  investigative memoranda;

(3)  the identity of a nontestifying complainant;

(4)  attorney-client communications;

(5)  attorney work product; or

(6)  other material covered by a privilege recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence.

(c)  The provision of information does not constitute a waiver of privilege or confidentiality under this chapter or other law. (V.A.C.S. Art. 4495b-1, Sec. 25(b).)

Sec. 204.253.  HEALTH CARE ENTITY REQUEST FOR INFORMATION. On the written request of a health care entity, the physician assistant board shall provide to the entity:

(1)  information about a complaint filed against a license holder that was resolved after investigation by:

(A)  a disciplinary order of the board; or

(B)  an agreed settlement; and

(2)  the basis of and current status of any complaint under active investigation. (V.A.C.S. Art. 4495b-1, Sec. 25(d).)

Sec. 204.254.  CONFIDENTIALITY OF INVESTIGATIVE INFORMATION. A complaint, adverse report, investigation file, other report, or other investigative information in the possession of or received or gathered by the physician assistant board or a board employee or agent relating to a license holder, a license application, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to any person other than the board or a board employee or agent involved in license holder discipline. (V.A.C.S. Art. 4495b-1, Sec. 25(a).)

Sec. 204.255.  PERMITTED DISCLOSURE OF INVESTIGATIVE INFORMATION. (a)  Investigative information in the possession of a physician assistant board employee or agent that relates to the discipline of a license holder may be disclosed to:

(1)  a licensing authority in another state or country in which the license holder is licensed or has applied for a license; or

(2)  a peer review committee reviewing:

(A)  an application for privileges; or

(B)  the qualifications of the license holder with respect to retaining privileges.

(b)  If investigative information in the possession of the physician assistant board or a board employee or agent indicates that a crime may have been committed, the board shall report the information to the proper law enforcement agency. The board shall cooperate with and assist each law enforcement agency conducting a criminal investigation of a license holder by providing information relevant to the investigation. Confidential information disclosed by the board to a law enforcement agency under this subsection remains confidential and may not be disclosed by the law enforcement agency except as necessary to further the investigation. (V.A.C.S. Art. 4495b-1, Sec. 25(c).)

[Sections 204.256-204.300 reserved for expansion]

SUBCHAPTER G. DISCIPLINARY PROCEEDINGS

Sec. 204.301.  DISCIPLINARY AUTHORITY OF BOARD. (a) Except as provided by Section 204.305, on a determination that an applicant or license holder committed an act described in Section 204.302, 204.303, or 204.304, the physician assistant board by order shall take any of the following actions:

(1)  deny the person's license application or revoke the person's license or other authorization;

(2)  require the person to submit to the care, counseling, or treatment of a health care practitioner designated by the physician assistant board;

(3)  stay enforcement of an order and place the person on probation;

(4)  require the person to complete additional training;

(5)  suspend, limit, or restrict the person's license, including:

(A)  limiting the practice of the person to, or excluding from the practice, one or more specified activities of the practice as a physician assistant; or

(B)  stipulating periodic physician assistant board review;

(6)  assess an administrative penalty against the person under Section 204.351;

(7)  order the person to perform public service; or

(8)  administer a public reprimand.

(b)  If the physician assistant board stays enforcement of an order and places a person on probation, the board retains the right to vacate the probationary stay and enforce the original order for noncompliance with the terms of probation or impose any other remedial measure or sanction authorized by this section.

(c)  The physician assistant board may restore or reissue a license or remove any disciplinary or corrective measure that the board has imposed. (V.A.C.S. Art. 4495b-1, Sec. 19.)

Sec. 204.302.  CONDUCT RELATED TO FRAUD OR MISREPRESENTATION. The physician assistant board may take action under Section 204.301 against an applicant or license holder who:

(1)  fraudulently or deceptively obtains or attempts to obtain a license;

(2)  fraudulently or deceptively uses a license;

(3)  falsely represents that the person is a physician;

(4)  acts in an unprofessional or dishonorable manner that is likely to deceive, defraud, or injure the public;

(5)  fraudulently alters a physician assistant license, certificate, or diploma;

(6)  uses a physician assistant license, certificate, or diploma that has been fraudulently purchased, issued, or counterfeited or that has been materially altered;

(7)  directly or indirectly aids or abets a person not licensed to practice as a physician assistant in practicing as a physician assistant; or

(8)  unlawfully advertises in a false, misleading, or deceptive manner, as described by Section 101.201. (V.A.C.S. Art. 4495b-1, Sec. 18 (part).)

Sec. 204.303.  CONDUCT RELATED TO VIOLATION OF LAW. (a) The physician assistant board may take action under Section 204.301 against an applicant or license holder who:

(1)  violates this chapter or a rule adopted under this chapter;

(2)  is convicted of a felony, placed on deferred adjudication, or placed in a pretrial diversion program;

(3)  violates state law if the violation is connected with practice as a physician assistant;

(4)  fails to keep complete and accurate records of the purchase and disposal of drugs as required by Chapter 483, Health and Safety Code, or any subsequent rules; or

(5)  writes a false or fictitious prescription for a dangerous drug as defined by Chapter 483, Health and Safety Code.

(b)  A complaint, indictment, or conviction of a law violation is not necessary for the physician assistant board to act under Subsection (a)(3). Proof of the commission of the act while in practice as a physician assistant or under the guise of practice as a physician assistant is sufficient for action by the physician assistant board.

(c)  A failure to keep the records described under Subsection (a)(4) for a reasonable time is grounds for disciplinary action against a physician assistant. The physician assistant board or its representative may enter and inspect a physician assistant's place or places of practice during reasonable business hours to:

(1)  verify the correctness of the records; and

(2)  inventory the drugs on hand. (V.A.C.S. Art. 4495b-1, Sec. 18 (part).)

Sec. 204.304.  CONDUCT INDICATING LACK OF FITNESS. (a) The physician assistant board may take action under Section 204.301 against an applicant or license holder who:

(1)  habitually uses drugs or intoxicating liquors to the extent that, in the board's opinion, the person cannot safely perform as a physician assistant;

(2)  has been adjudicated as mentally incompetent;

(3)  has a mental or physical condition that renders the person unable to safely perform as a physician assistant;

(4)  has committed an act of moral turpitude;

(5)  has failed to practice as a physician assistant in an acceptable manner consistent with public health and welfare;

(6)  has had the person's license to practice as a physician assistant suspended, revoked, or restricted;

(7)  has had other disciplinary action taken by another state or by the uniformed services of the United States regarding practice as a physician assistant;

(8)  prescribes, dispenses, or administers a drug or treatment that is nontherapeutic in nature or nontherapeutic in the manner the drug or treatment is prescribed, dispensed, or administered;

(9)  is removed or suspended from, or has had disciplinary action taken by the person's peers in, any professional association or society, or is being disciplined by a licensed hospital or medical staff of a hospital, including removal, suspension, limitation of privileges, or other disciplinary action, if the reason for the discipline, in the board's opinion, is unprofessional conduct or professional incompetence likely to harm the public;

(10)  has repeated or recurring meritorious health care liability claims that, in the board's opinion, are evidence of professional incompetence likely to harm the public; or

(11)  sexually abuses or exploits another person through the license holder's practice as a physician assistant.

(b)  A certified copy of the record of the state or uniformed services of the United States taking an action described by Subsection (a)(7) is conclusive evidence of the action.

(c)  An action described by Subsection (a)(9) does not constitute state action on the part of the association, society, or hospital medical staff. (V.A.C.S. Art. 4495b-1, Sec. 18 (part).)

Sec. 204.305.  REHABILITATION ORDER. The physician assistant board, through an agreed order or after a contested proceeding, may impose a rehabilitation order on an applicant, as a prerequisite for issuing a license, or on a license holder based on:

(1)  the person's intemperate use of drugs or alcohol directly resulting from habituation or addiction caused by medical care or treatment provided by a physician;

(2)  the person's intemperate use of drugs or alcohol during the five years preceding the date of the report that could adversely affect the person's ability to safely practice as a physician assistant, if the person:

(A)  reported the use; and

(B)  has not previously been the subject of a substance abuse related order of the board;

(3)  a judgment by a court that the person is of unsound mind; or

(4)  the results of a mental or physical examination, or an admission by the person, indicating that the person suffers from a potentially dangerous limitation or an inability to practice as a physician assistant with reasonable skill and safety because of illness or any other physical or mental condition. (V.A.C.S. Art. 4495b-1, Sec. 20(a).)

Sec. 204.306.  EFFECT OF REHABILITATION ORDER. (a) A rehabilitation order imposed under Section 204.305 is a nondisciplinary private order. If entered by agreement, the order is an agreed disposition or settlement agreement for purposes of civil litigation and is exempt from Chapter 552, Government Code.

(b)  The rehabilitation order must contain findings of fact and conclusions of law. The order may impose a revocation, suspension, period of probation or restriction, or any other term authorized by this chapter or agreed to by the board and the person subject to the order.

(c)  A violation of a rehabilitation order may result in disciplinary action under the provisions of this chapter relating to contested matters or under the terms of the agreed order.

(d)  A violation of a rehabilitation order is grounds for disciplinary action based on:

(1)  unprofessional or dishonorable conduct; or

(2)  any provision of this chapter that applies to the conduct that resulted in the violation. (V.A.C.S. Art. 4495b-1, Secs. 20(b), (c), (d).)

Sec. 204.307.  AUDIT OF REHABILITATION ORDER. (a) The physician assistant board shall keep a rehabilitation order imposed under Section 204.305 in a confidential file. The file is subject to an independent audit by a state auditor or private auditor with whom the physician assistant board contracts to perform the audit to ensure that only qualified license holders are subject to rehabilitation orders.

(b)  An audit may be performed at any time at the direction of the physician assistant board. The board shall ensure that an audit is performed at least once in each three-year period.

(c)  The audit results are a matter of public record and shall be reported in a manner that maintains the confidentiality of each license holder who is subject to a rehabilitation order. (V.A.C.S. Art. 4495b-1, Sec. 20(e).)

Sec. 204.308.  SUBPOENA. (a) The executive director or the secretary-treasurer of the medical board may issue a subpoena or subpoena duces tecum for the physician assistant board to:

(1)  conduct an investigation or a contested proceeding related to:

(A)  alleged misconduct by a physician assistant;

(B)  an alleged violation of this chapter or other law related to practice as a physician assistant; or

(C)  the provision of health care under this chapter;

(2)  issue, suspend, restrict, or revoke a license under this chapter; or

(3)  deny or grant an application for a license under this chapter.

(b)  Failure to timely comply with a subpoena issued under this section is a ground for:

(1)  disciplinary action by the physician assistant board or another licensing or regulatory agency with jurisdiction over the person subject to the subpoena; and

(2)  denial of a license application. (V.A.C.S. Art. 4495b-1, Sec. 27.)

Sec. 204.309.  PROTECTION OF PATIENT IDENTITY. In a disciplinary investigation or proceeding conducted under this chapter, the physician assistant board shall protect the identity of each patient whose medical records are examined and used in a public proceeding unless the patient:

(1)  testifies in the public proceeding; or

(2)  submits a written release in regard to the patient's records or identity. (V.A.C.S. Art. 4495b-1, Sec. 26.)

[Sections 204.310-204.350 reserved for expansion]

SUBCHAPTER H. PENALTIES

Sec. 204.351.  ADMINISTRATIVE PENALTY. (a)  The physician assistant board by order may impose an administrative penalty against a person licensed under this chapter who violates this chapter or a rule or order adopted under this chapter.

(b)  The penalty may be in an amount not to exceed $5,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

(c)  The physician assistant board shall base the amount of the penalty on:

(1)  the severity of patient harm;

(2)  the severity of economic harm to any person;

(3)  the severity of any environmental harm;

(4)  increased potential for harm to the public;

(5)  any attempted concealment of misconduct;

(6)  any premeditated or intentional misconduct;

(7)  the motive for the violation;

(8)  prior misconduct of a similar or related nature;

(9)  the license holder's disciplinary history;

(10)  prior written warnings or written admonishments from any government agency or official regarding statutes or regulations relating to the misconduct;

(11)  violation of a board order;

(12)  failure to implement remedial measures to correct or mitigate harm from the misconduct;

(13)  lack of rehabilitative potential or likelihood of future misconduct of a similar nature;

(14)  relevant circumstances increasing the seriousness of the misconduct; and

(15)  any other matter that justice may require.

(d)  The physician assistant board by rule shall prescribe the procedure by which it may impose an administrative penalty. A proceeding under this section is subject to Chapter 2001, Government Code.

(e)  If the physician assistant board by order determines that a violation has occurred and imposes an administrative penalty, the board shall give notice to the person of the board's order. The notice must include a statement of the person's right to judicial review of the order. (V.A.C.S. Art. 4495b-1, Sec. 19.125.)

Sec. 204.352.  CRIMINAL PENALTY. (a) A person commits an offense if, without holding a license issued under this chapter, the person:

(1)  holds the person out as a physician assistant;

(2)  uses any combination or abbreviation of the term "physician assistant" to indicate or imply that the person is a physician assistant; or

(3)  acts as a physician assistant.

(b)  An offense under this section is a felony of the third degree. (V.A.C.S. Art. 4495b-1, Sec. 21.)

CHAPTER 205. ACUPUNCTURE

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 205.001. DEFINITIONS

Sec. 205.002. APPLICATION OF SUNSET ACT

Sec. 205.003. EXEMPTION; LIMITATION

[Sections 205.004-205.050 reserved for expansion]

SUBCHAPTER B. TEXAS STATE BOARD OF ACUPUNCTURE EXAMINERS

Sec. 205.051. BOARD; MEMBERSHIP

Sec. 205.052. PUBLIC MEMBER ELIGIBILITY

Sec. 205.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS

Sec. 205.054. TERMS; VACANCIES

Sec. 205.055. PRESIDING OFFICER

Sec. 205.056. GROUNDS FOR REMOVAL

Sec. 205.057. TRAINING

Sec. 205.058. QUALIFICATIONS AND STANDARDS OF CONDUCT

INFORMATION

Sec. 205.059. COMPENSATION; PER DIEM

Sec. 205.060. APPLICATION OF OPEN MEETINGS, OPEN RECORDS, AND

ADMINISTRATIVE PROCEDURE LAWS

[Sections 205.061-205.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES OF ACUPUNCTURE BOARD AND

MEDICAL BOARD

Sec. 205.101. GENERAL POWERS AND DUTIES OF ACUPUNCTURE

BOARD

Sec. 205.102. ASSISTANCE BY MEDICAL BOARD

Sec. 205.103. FEES

Sec. 205.104. RULES RESTRICTING ADVERTISING OR COMPETITIVE

BIDDING

Sec. 205.105. ANNUAL REPORT

[Sections 205.106-205.150 reserved for expansion]

SUBCHAPTER D. PUBLIC ACCESS AND INFORMATION

AND COMPLAINT PROCEDURES

Sec. 205.151. PUBLIC INTEREST INFORMATION

Sec. 205.152. COMPLAINTS

Sec. 205.153. PUBLIC PARTICIPATION

[Sections 205.154-205.200 reserved for expansion]

SUBCHAPTER E. LICENSE REQUIREMENTS

Sec. 205.201. LICENSE REQUIRED

Sec. 205.202. ISSUANCE OF LICENSE

Sec. 205.203. LICENSE EXAMINATION

Sec. 205.204. APPLICATION FOR EXAMINATION

Sec. 205.205. EXAMINATION RESULTS

Sec. 205.206. ACUPUNCTURE SCHOOLS

Sec. 205.207. RECIPROCAL LICENSE

Sec. 205.208. TEMPORARY LICENSE

[Sections 205.209-205.250 reserved for expansion]

SUBCHAPTER F. LICENSE RENEWAL

Sec. 205.251. ANNUAL RENEWAL REQUIRED

Sec. 205.252. NOTICE OF LICENSE EXPIRATION

Sec. 205.253. PROCEDURE FOR RENEWAL

Sec. 205.254. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE

PRACTITIONER

[Sections 205.255-205.300 reserved for expansion]

SUBCHAPTER G. PRACTICE BY LICENSE HOLDER

Sec. 205.301. REFERRAL BY OTHER HEALTH CARE PRACTITIONER

REQUIRED

Sec. 205.302. AUTHORIZED PRACTICE WITHOUT REFERRAL

Sec. 205.303. ACUDETOX SPECIALIST

Sec. 205.304. PROFESSIONAL REVIEW ACTION

Sec. 205.305. LICENSE HOLDER INFORMATION

[Sections 205.306-205.350 reserved for expansion]

SUBCHAPTER H. DISCIPLINARY PROCEDURES

Sec. 205.351. GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY

ACTION

Sec. 205.352. DISCIPLINARY POWERS OF BOARD

Sec. 205.353. DISCIPLINARY POWERS OF ACUPUNCTURE BOARD

Sec. 205.354. RULES FOR DISCIPLINARY PROCEEDINGS

Sec. 205.355. REQUIRED DISCIPLINARY ACTION FOR FAILURE TO

OBTAIN REFERRAL

Sec. 205.356. REHABILITATION ORDER

Sec. 205.357. EFFECT OF REHABILITATION ORDER

Sec. 205.358. AUDIT OF REHABILITATION ORDER

Sec. 205.359. SUBPOENA

[Sections 205.360-205.400 reserved for expansion]

SUBCHAPTER I. PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 205.401. CRIMINAL PENALTY

Sec. 205.402. INJUNCTIVE RELIEF; CIVIL PENALTY

CHAPTER 205. ACUPUNCTURE

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 205.001.  DEFINITIONS. In this chapter:

(1)  "Acudetox specialist" means a person certified under Section 205.303.

(2)  "Acupuncture" means:

(A)  the nonsurgical, nonincisive insertion of an acupuncture needle and the application of moxibustion to specific areas of the human body as a primary mode of therapy to treat and mitigate a human condition; and

(B)  the administration of thermal or electrical treatments or the recommendation of dietary guidelines, energy flow exercise, or dietary or herbal supplements in conjunction with the treatment described by Paragraph (A).

(3)  "Acupuncture board" means the Texas State Board of Acupuncture Examiners.

(4)  "Acupuncturist" means a person who practices acupuncture.

(5)  "Chiropractor" means a person licensed to practice chiropractic by the Texas Board of Chiropractic Examiners.

(6)  "Executive director" means the executive director of the Texas State Board of Medical Examiners.

(7)  "Medical board" means the Texas State Board of Medical Examiners.

(8)  "Physician" means a person licensed to practice medicine by the Texas State Board of Medical Examiners. (V.A.C.S. Art. 4495b, Secs. 6.02(1) (part), (2), (3), (4), (5), (6), (7), (8).)

Sec. 205.002.  APPLICATION OF SUNSET ACT. The Texas State Board of Acupuncture Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4495b, Sec. 6.04(l).)

Sec. 205.003.  EXEMPTION; LIMITATION. (a) This chapter does not apply to a health care professional licensed under another statute of this state and acting within the scope of the license.

(b)  This chapter does not:

(1)  limit the practice of medicine by a physician;

(2)  permit the unauthorized practice of medicine; or

(3)  permit a person to dispense, administer, or supply a controlled substance, narcotic, or dangerous drug unless the person is authorized by other law to do so. (V.A.C.S. Art. 4495b, Sec. 6.03.)

[Sections 205.004-205.050 reserved for expansion]

SUBCHAPTER B. TEXAS STATE BOARD OF ACUPUNCTURE EXAMINERS

Sec. 205.051.  BOARD; MEMBERSHIP. (a) The Texas State Board of Acupuncture Examiners consists of nine members appointed by the governor as follows:

(1)  four acupuncturist members who have at least five years of experience in the practice of acupuncture in this state and who are not physicians;

(2)  two physician members experienced in the practice of acupuncture; and

(3)  three members of the general public who are not licensed or trained in a health care profession.

(b)  Appointments to the acupuncture board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4495b, Secs. 6.04(a), (k).)

Sec. 205.052.  PUBLIC MEMBER ELIGIBILITY. A person is not eligible for appointment as a public member of the acupuncture board if the person or the person's spouse:

(1)  is registered, certified, or licensed by an occupational regulatory agency in the field of health care;

(2)  is employed by or participates in the management of a business entity or other organization regulated by the medical board or receiving funds from the medical board or acupuncture board;

(3)  owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by the medical board or acupuncture board or receiving funds from the medical board; or

(4)  uses or receives a substantial amount of tangible goods, services, or funds from the medical board or acupuncture board, other than compensation or reimbursement authorized by law for acupuncture board membership, attendance, or expenses. (V.A.C.S. Art. 4495b, Sec. 6.04(g), as amended Acts 75th Leg., R.S., Ch. 1170.)

Sec. 205.053.  MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a)  In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b)  An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member of the acupuncture board or an employee of the medical board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(c)  A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member of the acupuncture board and may not be an employee of the medical board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(d)  A person may not serve on the acupuncture board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the medical board or acupuncture board. (V.A.C.S. Art. 4495b, Secs. 6.04(b), (h), (i), (j).)

Sec. 205.054.  TERMS; VACANCIES. (a) Members of the acupuncture board serve staggered six-year terms. The terms of three members expire on January 31 of each odd-numbered year.

(b)  A vacancy on the acupuncture board shall be filled by appointment of the governor. (V.A.C.S. Art. 4495b, Secs. 6.04(c), (e).)

Sec. 205.055.  PRESIDING OFFICER. The governor shall designate a member of the acupuncture board as presiding officer. The presiding officer serves in that capacity at the will of the governor. (V.A.C.S. Art. 4495b, Sec. 6.04(d).)

Sec. 205.056.  GROUNDS FOR REMOVAL. (a) It is a ground for removal from the acupuncture board that a member:

(1)  does not have at the time of appointment the qualifications required by Sections 205.051 and 205.052;

(2)  does not maintain during service on the acupuncture board the qualifications required by Sections 205.051 and 205.052;

(3)  violates a prohibition established by Section 205.053;

(4)  cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5)  is absent from more than half of the regularly scheduled acupuncture board meetings that the member is eligible to attend during a calendar year.

(b)  The validity of an action of the acupuncture board is not affected by the fact that it is taken when a ground for removal of an acupuncture board member exists.

(c)  If the executive director has knowledge that a potential ground for removal of an acupuncture board member exists, the executive director shall notify the presiding officer of the acupuncture board of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest officer of the acupuncture board, who shall notify the governor and the attorney general that a potential ground for removal exists. (V.A.C.S. Art. 4495b, Secs. 6.041(a), (b), (c).)

Sec. 205.057.  TRAINING. (a) To be eligible to take office as a member of the acupuncture board, a person appointed to the acupuncture board must complete at least one course of a training program that complies with this section.

(b)  The training program must provide information to the person regarding:

(1)  this chapter and the acupuncture board;

(2)  the programs operated by the acupuncture board;

(3)  the role and functions of the acupuncture board;

(4)  the rules of the acupuncture board, with an emphasis on the rules that relate to disciplinary and investigatory authority;

(5)  the current budget for the acupuncture board;

(6)  the results of the most recent formal audit of the acupuncture board;

(7)  the requirements of the:

(A)  open meetings law, Chapter 551, Government Code;

(B)  open records law, Chapter 552, Government Code; and

(C)  administrative procedure law, Chapter 2001, Government Code;

(8)  the requirements of the conflict of interest laws and other laws relating to public officials; and

(9)  any applicable ethics policies adopted by the medical board or the Texas Ethics Commission.

(c)  A person appointed to the acupuncture board is entitled to reimbursement for travel expenses incurred in attending the training program, as provided by the General Appropriations Act and as if the person were a member of the acupuncture board. (V.A.C.S. Art. 4495b, Sec. 6.042.)

Sec. 205.058.  QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The executive director or the executive director's designee shall provide, as often as necessary, to members of the acupuncture board information regarding their:

(1)  qualifications for office under this chapter; and

(2)  responsibilities under applicable laws relating to standards of conduct for state officers. (V.A.C.S. Art. 4495b, Sec. 6.041(d).)

Sec. 205.059.  COMPENSATION; PER DIEM. An acupuncture board member may not receive compensation for service on the acupuncture board but is entitled to receive a per diem as set by legislative appropriation for transportation and related expenses incurred for each day that the member engages in the acupuncture board's business. (V.A.C.S. Art. 4495b, Sec. 6.04(f).)

Sec. 205.060.  APPLICATION OF OPEN MEETINGS, OPEN RECORDS, AND ADMINISTRATIVE PROCEDURE LAWS. Except as provided by this chapter, the acupuncture board is subject to Chapters 551, 552, and 2001, Government Code. (V.A.C.S. Art. 4495b, Sec. 6.04(g), as amended Acts 75th Leg., R.S., Ch. 694.)

[Sections 205.061-205.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES OF ACUPUNCTURE BOARD AND

MEDICAL BOARD

Sec. 205.101.  GENERAL POWERS AND DUTIES OF ACUPUNCTURE BOARD. (a) Subject to the advice and approval of the medical board, the acupuncture board shall:

(1)  establish qualifications for an acupuncturist to practice in this state;

(2)  establish minimum education and training requirements necessary for the acupuncture board to recommend that the medical board issue a license to practice acupuncture;

(3)  administer an examination that is validated by independent testing professionals for a license to practice acupuncture;

(4)  develop requirements for licensure by endorsement of other states;

(5)  prescribe the application form for a license to practice acupuncture;

(6)  make recommendations on applications for licenses to practice acupuncture;

(7)  establish the requirements for a tutorial program for acupuncture students who have completed at least 48 semester hours of college; and

(8)  recommend additional rules as are necessary to administer and enforce this chapter.

(b)  The acupuncture board does not have independent rulemaking authority. (V.A.C.S. Art. 4495b, Secs. 6.05(a) (part), (c).)

Sec. 205.102.  ASSISTANCE BY MEDICAL BOARD. (a) The medical board shall provide administrative and clerical employees as necessary to enable the acupuncture board to administer this chapter.

(b)  Subject to the advice and approval of the medical board, the acupuncture board shall develop and implement policies that clearly separate the policy-making responsibilities of the acupuncture board and the management responsibilities of the executive director and the staff of the medical board. (V.A.C.S. Art. 4495b, Secs. 6.05(a) (part), 6.08.)

Sec. 205.103.  FEES. The medical board shall set and collect fees in amounts that are reasonable and necessary to cover the costs of administering and enforcing this chapter without the use of any other funds generated by the medical board. (V.A.C.S. Art. 4495b, Sec. 6.09(a).)

Sec. 205.104.  RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The medical board may not adopt rules under this chapter restricting advertising or competitive bidding by a license holder except to prohibit false, misleading, or deceptive practices.

(b)  In its rules to prohibit false, misleading, or deceptive practices, the medical board may not include a rule that:

(1)  restricts the use of any medium for advertising;

(2)  restricts the use of a license holder's personal appearance or voice in an advertisement;

(3)  relates to the size or duration of an advertisement by the license holder; or

(4)  restricts the license holder's advertisement under a trade name. (V.A.C.S. Art. 4495b, Sec. 6.085.)

Sec. 205.105.  ANNUAL REPORT. (a) The medical board shall prepare annually a complete and detailed written report accounting for all funds received and disbursed by the medical board under this chapter during the preceding fiscal year.

(b)  The annual report must meet the reporting requirements applicable to financial reporting provided in the General Appropriations Act. (V.A.C.S. Art. 4495b, Sec. 6.09(d).)

[Sections 205.106-205.150 reserved for expansion]

SUBCHAPTER D. PUBLIC ACCESS AND INFORMATION

AND COMPLAINT PROCEDURES

Sec. 205.151.  PUBLIC INTEREST INFORMATION. (a) The acupuncture board shall prepare information of public interest describing the functions of the acupuncture board and the procedures by which complaints are filed with and resolved by the acupuncture board.

(b)  The acupuncture board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4495b, Sec. 6.051(a).)

Sec. 205.152.  COMPLAINTS. (a) The acupuncture board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the acupuncture board for the purpose of directing a complaint to the acupuncture board. The acupuncture board may provide for that notification:

(1)  on each registration form, application, or written contract for services of a person regulated under this chapter;

(2)  on a sign prominently displayed in the place of business of each person regulated under this chapter; or

(3)  in a bill for service provided by a person regulated under this chapter.

(b)  The acupuncture board shall keep information about each complaint filed with the acupuncture board. The information shall include:

(1)  the date the complaint is received;

(2)  the name of the complainant;

(3)  the subject matter of the complaint;

(4)  a record of all persons contacted in relation to the complaint;

(5)  a summary of the results of the review or investigation of the complaint; and

(6)  for a complaint for which the acupuncture board took no action, an explanation of the reason the complaint was closed without action.

(c)  The acupuncture board shall keep a file about each written complaint filed with the acupuncture board that the acupuncture board has authority to resolve. The acupuncture board shall provide to the person filing the complaint and each person who is the subject of the complaint the acupuncture board's policies and procedures pertaining to complaint investigation and resolution.

(d)  The acupuncture board, at least quarterly and until final disposition of the complaint, shall notify the person filing the complaint and each person who is the subject of the complaint of the status of the complaint unless the notice would jeopardize an investigation. (V.A.C.S. Art. 4495b, Secs. 6.051(b), (c), (d).)

Sec. 205.153.  PUBLIC PARTICIPATION. (a)  Subject to the advice and approval of the medical board, the acupuncture board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the acupuncture board and to speak on any issue under the acupuncture board's jurisdiction.

(b)  The executive director shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the acupuncture board's programs and services. (V.A.C.S. Art. 4495b, Secs. 6.05(a) (part), (b) (part).)

[Sections 205.154-205.200 reserved for expansion]

SUBCHAPTER E. LICENSE REQUIREMENTS

Sec. 205.201.  LICENSE REQUIRED. Except as provided by Section 205.303, a person may not practice acupuncture in this state unless the person holds a license to practice acupuncture issued by the medical board under this chapter. (V.A.C.S. Art. 4495b, Sec. 6.06.)

Sec. 205.202.  ISSUANCE OF LICENSE. After consulting the acupuncture board, the medical board shall issue a license to practice acupuncture in this state to a person who meets the requirements of this chapter and the rules adopted under this chapter. (V.A.C.S. Art. 4495b, Sec. 6.10(a).)

Sec. 205.203.  LICENSE EXAMINATION. (a) An applicant for a license to practice acupuncture must pass an examination approved by the acupuncture board.

(b)  To be eligible for the examination, an applicant must:

(1)  be at least 21 years of age;

(2)  have completed at least 48 semester hours of college courses, including basic science courses as determined by the acupuncture board; and

(3)  be a graduate of an acupuncture school with entrance requirements and a course of instruction that meet standards set under Section 205.206.

(c)  The examination shall be conducted on practical and theoretical acupuncture and other subjects required by the acupuncture board.

(d)  The examination may be in writing, by a practical demonstration of the applicant's skill, or both, as required by the acupuncture board.

(e)  The medical board shall notify each applicant of the time and place of the examination. (V.A.C.S. Art. 4495b, Secs. 6.07(a), (b), (e), (g), (h).)

Sec. 205.204.  APPLICATION FOR EXAMINATION. An application for examination must be:

(1)  in writing on a form prescribed by the acupuncture board;

(2)  verified by affidavit;

(3)  filed with the executive director; and

(4)  accompanied by a fee in an amount set by the medical board. (V.A.C.S. Art. 4495b, Sec. 6.07(f).)

Sec. 205.205.  EXAMINATION RESULTS. (a) Not later than the 30th day after the date a licensing examination is administered under this chapter, the acupuncture board shall notify each examinee of the results of the examination. If an examination is graded or reviewed by a national testing service, the acupuncture board shall notify examinees of the results of the examination not later than the 14th day after the date the acupuncture board receives the results from the testing service.

(b)  If the notice of examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the acupuncture board shall notify the examinee of the reason for the delay before the 90th day. The acupuncture board may require a testing service to notify examinees of the results of an examination.

(c)  If requested in writing by a person who fails a licensing examination administered under this chapter, the acupuncture board shall furnish the person with an analysis of the person's performance on the examination if an analysis is available from the national testing service. (V.A.C.S. Art. 4495b, Sec. 6.071.)

Sec. 205.206.  ACUPUNCTURE SCHOOLS. (a) A reputable acupuncture school, in addition to meeting standards set by the acupuncture board, must:

(1)  maintain a resident course of instruction equivalent to not less than six terms of four months each for a total of not less than 1,800 instructional hours;

(2)  provide supervised patient treatment for at least two terms of the resident course of instruction;

(3)  maintain a course of instruction in anatomy-histology, bacteriology, physiology, symptomatology, pathology, meridian and point locations, hygiene, and public health; and

(4)  have the necessary teaching force and facilities for proper instruction in required subjects.

(b)  In establishing standards for the entrance requirements and course of instruction of an acupuncture school, the acupuncture board may consider the standards set by the National Accreditation Commission for Schools and Colleges of Acupuncture and Oriental Medicine. (V.A.C.S. Art. 4495b, Secs. 6.07(c), (d).)

Sec. 205.207.  RECIPROCAL LICENSE. The medical board may waive any license requirement for an applicant after reviewing the applicant's credentials and determining that the applicant holds a license from another state that has license requirements substantially equivalent to those of this state. (V.A.C.S. Art. 4495b, Sec. 6.10(b).)

Sec. 205.208.  TEMPORARY LICENSE. (a) The acupuncture board may, through the executive director, issue a temporary license to practice acupuncture to an applicant who:

(1)  submits an application on a form prescribed by the acupuncture board;

(2)  has passed a national or other examination recognized by the acupuncture board relating to the practice of acupuncture;

(3)  pays the appropriate fee;

(4)  if licensed in another state, is in good standing as an acupuncturist; and

(5)  meets all the qualifications for a license under this chapter but is waiting for the next scheduled meeting of the medical board for the license to be issued.

(b)  A temporary license is valid for 100 days after the date issued and may be extended only for another 30 days after the date the initial temporary license expires. (V.A.C.S. Art. 4495b, Sec. 6.075.)

[Sections 205.209-205.250 reserved for expansion]

SUBCHAPTER F. LICENSE RENEWAL

Sec. 205.251.  ANNUAL RENEWAL REQUIRED. (a) The medical board by rule shall provide for the annual renewal of a license to practice acupuncture.

(b)  The medical board by rule may adopt a system under which licenses expire on various dates during the year. For the year in which the license expiration date is changed, license fees shall be prorated on a monthly basis so that each license holder pays only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable. (V.A.C.S. Art. 4495b, Secs. 6.10(c), (j).)

Sec. 205.252.  NOTICE OF LICENSE EXPIRATION. Not later than the 30th day before the expiration date of a person's license, the medical board shall send written notice of the impending license expiration to the person at the person's last known address according to the records of the medical board. (V.A.C.S. Art. 4495b, Sec. 6.10(i).)

Sec. 205.253.  PROCEDURE FOR RENEWAL. (a) A person who is otherwise eligible to renew a license may renew an unexpired license by paying the required renewal fee to the medical board before the expiration date of the license. A person whose license has expired may not engage in activities that require a license until the license has been renewed under this section or Section 205.254.

(b)  If the person's license has been expired for 90 days or less, the person may renew the license by paying to the medical board a fee in an amount equal to one and one-half times the required renewal fee.

(c)  If the person's license has been expired for longer than 90 days but less than one year, the person may renew the license by paying to the medical board a fee in an amount equal to two times the required renewal fee.

(d)  If the person's license has been expired for one year or longer, the person may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (V.A.C.S. Art. 4495b, Secs. 6.10(d), (e), (f), (g).)

Sec. 205.254.  RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a)  The medical board may renew without reexamination the license of a person who was licensed to practice acupuncture in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.

(b)  The person must pay to the medical board a fee in an amount equal to two times the required renewal fee for the license. (V.A.C.S. Art. 4495b, Sec. 6.10(h).)

[Sections 205.255-205.300 reserved for expansion]

SUBCHAPTER G. PRACTICE BY LICENSE HOLDER

Sec. 205.301.  REFERRAL BY OTHER HEALTH CARE PRACTITIONER REQUIRED. (a) A license holder may perform acupuncture on a person only if the person was:

(1)  evaluated by a physician or dentist, as appropriate, for the condition being treated within six months before the date acupuncture is performed; or

(2)  referred by a chiropractor within 30 days before the date acupuncture is performed.

(b)  A license holder acting under Subsection (a)(1) must obtain reasonable documentation that the required evaluation has taken place. If the license holder is unable to determine that an evaluation has taken place, the license holder must obtain a written statement signed by the person on a form prescribed by the acupuncture board that states the person has been evaluated by a physician or dentist within the prescribed time. The form must contain a clear statement that the person should be evaluated by a physician or dentist for the condition being treated by the license holder.

(c)  A license holder acting under Subsection (a)(2) shall refer the person to a physician after performing acupuncture 20 times or for 30 days, whichever occurs first, if substantial improvement does not occur in the person's condition for which the referral was made.

(d)  The medical board, with advice from the acupuncture board, by rule may modify:

(1)  the scope of the evaluation under Subsection (a)(1);

(2)  the period during which treatment must begin under Subsection (a)(1) or (2); or

(3)  the number of treatments or days before referral to a physician is required under Subsection (c). (V.A.C.S. Art. 4495b, Secs. 6.115(a) (part), (b), (c), (d), (e).)

Sec. 205.302.  AUTHORIZED PRACTICE WITHOUT REFERRAL. Notwithstanding Section 205.301, a license holder may, without a referral from a physician, dentist, or chiropractor, perform acupuncture on a person for:

(1)  smoking addiction;

(2)  weight loss; or

(3)  substance abuse, to the extent permitted by medical board rule adopted with advice from the acupuncture board. (V.A.C.S. Art. 4495b, Sec. 6.115(f).)

Sec. 205.303.  ACUDETOX SPECIALIST. (a) The medical board may certify a person as an acudetox specialist under this section if the person:

(1)  provides to the medical board documentation that the person:

(A)  is a certified social worker, licensed professional counselor, licensed psychologist, licensed chemical dependency counselor, or licensed registered nurse; and

(B)  has successfully completed a training program in acupuncture detoxification that meets guidelines approved by the medical board; and

(2)  pays a certification fee in an amount set by the medical board.

(b)  An acudetox specialist may practice acupuncture only:

(1)  to the extent allowed by rules adopted by the medical board for the treatment of alcoholism, substance abuse, or chemical dependency; and

(2)  under the supervision of a licensed acupuncturist or physician.

(c)  A program that includes the services of an acudetox specialist shall:

(1)  notify each participant in the program of the qualifications of the acudetox specialist and of the procedure for registering a complaint regarding the acudetox specialist with the medical board; and

(2)  keep a record of each client's name, the date the client received the acudetox specialist's services, and the name, signature, and certification number of the acudetox specialist.

(d)  The medical board may annually renew the certification of an acudetox specialist under this section if the person:

(1)  provides to the medical board documentation that:

(A)  the certification or license required under Subsection (a)(1)(A) is in effect; and

(B)  the person has successfully met continuing education requirements established by the medical board under Subsection (e); and

(2)  pays a certification renewal fee in an amount set by the medical board.

(e)  The medical board shall establish continuing education requirements for an acudetox specialist that, at a minimum, include six hours of education in the practice of acupuncture and a course in either clean needle technique or universal infection control precaution procedures. (V.A.C.S. Art. 4495b, Sec. 6.02(1) (part); Sec. 6.118, as added Acts 75th Leg., R.S., Ch. 626.)

Sec. 205.304.  PROFESSIONAL REVIEW ACTION. Sections 160.002, 160.003, 160.006, 160.007(d), 160.013, and 160.014 apply to professional review actions relating to the practice of acupuncture by an acupuncturist or acupuncturist student. (V.A.C.S. Art. 4495b, Secs. 5.06(b) (part), (d) (part), (f) (part), (i) (part), (r) (part), (s) (part).)

Sec. 205.305.  LICENSE HOLDER INFORMATION. (a) Each license holder shall file with the acupuncture board:

(1)  the license holder's mailing address;

(2)  the address of the license holder's residence;

(3)  the mailing address of each office of the license holder; and

(4)  the address for the location of each office of the license holder that has an address different from the office's mailing address.

(b)  A license holder shall:

(1)  notify the acupuncture board of a change of the license holder's residence or business address; and

(2)  provide the acupuncture board with the license holder's new address not later than the 30th day after the date the address change occurs. (V.A.C.S. Art. 4495b, Sec. 6.101.)

[Sections 205.306-205.350 reserved for expansion]

SUBCHAPTER H. DISCIPLINARY PROCEDURES

Sec. 205.351.  GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY ACTION. (a) A license to practice acupuncture may be denied or, after notice and hearing, a license holder may be subject to disciplinary action under Section 205.352 if the license applicant or license holder:

(1)  intemperately uses drugs or intoxicating liquors to an extent that, in the opinion of the board, could endanger the lives of patients;

(2)  obtains or attempts to obtain a license by fraud or deception;

(3)  has been adjudged mentally incompetent by a court;

(4)  has a mental or physical condition that renders the person unable to perform safely as an acupuncturist;

(5)  fails to practice acupuncture in an acceptable manner consistent with public health and welfare;

(6)  violates this chapter or a rule adopted under this chapter;

(7)  has been convicted of a crime involving moral turpitude or a felony or is the subject of deferred adjudication or pretrial diversion for such an offense;

(8)  holds the person out as a physician or surgeon or any combination or derivative of those terms unless the person is also licensed by the medical board as a physician or surgeon;

(9)  fraudulently or deceptively uses a license;

(10)  engages in unprofessional or dishonorable conduct that is likely to deceive, defraud, or injure a member of the public;

(11)  commits an act in violation of state law if the act is connected with the person's practice as an acupuncturist;

(12)  fails to adequately supervise the activities of a person acting under the supervision of the license holder;

(13)  directly or indirectly aids or abets the practice of acupuncture by any person not licensed to practice acupuncture by the acupuncture board;

(14)  is unable to practice acupuncture with reasonable skill and with safety to patients because of illness, drunkenness, or excessive use of drugs, narcotics, chemicals, or any other type of material or because of any mental or physical condition;

(15)  is the subject of repeated or recurring meritorious health-care liability claims that in the opinion of the acupuncture board evidence professional incompetence likely to injure the public;

(16)  has had a license to practice acupuncture suspended, revoked, or restricted by another state or has been subject to other disciplinary action by another state or by the uniformed services of the United States regarding practice as an acupuncturist; or

(17)  sexually abuses or exploits another person through the license holder's practice as an acupuncturist.

(b)  If the medical board proposes to suspend, revoke, or refuse to renew a person's license, the person is entitled to a hearing conducted by the State Office of Administrative Hearings.

(c)  A complaint, indictment, or conviction of a violation of law is not necessary for an action under Subsection (a)(11). Proof of the commission of the act while in the practice of acupuncture or under the guise of the practice of acupuncture is sufficient for action by the medical board.

(d)  A certified copy of the record of the state or uniformed services of the United States taking an action is conclusive evidence of the action for purposes of Subsection (a)(16). (V.A.C.S. Art. 4495b, Sec. 6.11(a), as amended Acts 75th Leg., R.S., Ch. 694; Sec. 6.11(a), as amended Acts 75th Leg., R.S., Ch. 1170; Secs. 6.11(b), (c); Sec. 6.117 (part).)

Sec. 205.352.  DISCIPLINARY POWERS OF BOARD. On finding that grounds exist to deny a license or take disciplinary action against a license holder, the board by order may:

(1)  deny the person's application for a license or certificate to practice acupuncture or revoke the person's license or certificate to practice acupuncture;

(2)  require the person to submit to the care, counseling, or treatment of a health care practitioner designated by the board as a condition for the issuance, continuance, or renewal of a license or certificate to practice acupuncture;

(3)  require the person to participate in a program of education or counseling prescribed by the board;

(4)  suspend, limit, or restrict the person's license or certificate to practice acupuncture, including limiting the practice of the person to, or excluding from the practice, one or more specified activities of acupuncture or stipulating periodic review by the board;

(5)  require the person to practice under the direction of an acupuncturist designated by the board for a specified period of time;

(6)  assess an administrative penalty against the person as provided by Chapter 165;

(7)  require the person to perform public service considered appropriate by the board; or

(8)  administer a public reprimand. (V.A.C.S. Art. 4495b, Sec. 6.11(h).)

Sec. 205.353.  DISCIPLINARY POWERS OF ACUPUNCTURE BOARD. (a)  On finding that a person licensed under this chapter has committed an offense described in Section 205.351, the acupuncture board may:

(1)  require the person to submit to the care, counseling, or treatment of a health care practitioner designated by the acupuncture board;

(2)  stay enforcement of an order and place the person on probation with the acupuncture board retaining the right to vacate the probationary stay and enforce the original order for noncompliance with the terms of probation or impose any other remedial measure or sanction authorized by this section;

(3)  order the person to perform public service;

(4)  limit the person's practice to the areas prescribed by the acupuncture board;

(5)  require the person to report regularly to the acupuncture board on matters that are the basis of the probation; or

(6)  require the person to continue or review professional education until the person attains a degree of skill satisfactory to the acupuncture board in those areas that are the basis of the probation under Subdivision (2).

(b)  The acupuncture board may restore or reissue a license or remove any disciplinary or corrective measure that the acupuncture board has imposed under this section. (V.A.C.S. Art. 4495b, Sec. 6.116.)

Sec. 205.354.  RULES FOR DISCIPLINARY PROCEEDINGS. Rules of practice adopted by the medical board under Section 2001.004, Government Code, applicable to the proceedings for a disciplinary action may not conflict with rules adopted by the State Office of Administrative Hearings. (V.A.C.S. Art. 4495b, Sec. 6.117 (part).)

Sec. 205.355.  REQUIRED DISCIPLINARY ACTION FOR FAILURE TO OBTAIN REFERRAL. Except as provided by Section 205.301(a)(2), a license to practice acupuncture shall be denied or, after notice and hearing, revoked if the applicant or license holder violates Section 205.301(a)(1). (V.A.C.S. Art. 4495b, Sec. 6.115(a) (part).)

Sec. 205.356.  REHABILITATION ORDER. The acupuncture board, through an agreed order or after a contested proceeding, may impose a nondisciplinary rehabilitation order on an applicant, as a prerequisite for issuing a license, or on a license holder based on:

(1)  the person's intemperate use of drugs or alcohol directly resulting from habituation or addiction caused by medical care or treatment provided by a physician;

(2)  the person's intemperate use of drugs or alcohol during the five years preceding the date of the report that could adversely affect the person's ability to safely practice as an acupuncturist, if the person:

(A)  reported the use; and

(B)  has not previously been the subject of a substance abuse related order of the acupuncture board;

(3)  a judgment by a court that the person is of unsound mind; or

(4)  the results of a mental or physical examination, or an admission by the person, indicating that the person suffers from a potentially dangerous limitation or an inability to practice as an acupuncturist with reasonable skill and safety by reason of illness or as a result of any physical or mental condition. (V.A.C.S. Art. 4495b, Sec. 6.118(a), as added Acts 75th Leg., R.S., Ch. 1170.)

Sec. 205.357.  EFFECT OF REHABILITATION ORDER. (a)  A rehabilitation order imposed under Section 205.356 is a nondisciplinary private order. If entered by agreement, the order is an agreed disposition or settlement agreement for purposes of civil litigation and is exempt from the open records law.

(b)  A rehabilitation order imposed under Section 205.356 must contain findings of fact and conclusions of law. The order may impose a revocation, cancellation, suspension, period of probation or restriction, or any other term authorized by this chapter or agreed to by the acupuncture board and the person subject to the order.

(c)  A violation of a rehabilitation order may result in disciplinary action under the provisions of this chapter for contested matters or the terms of the agreed order.

(d)  A violation of a rehabilitation order is grounds for disciplinary action based on:

(1)  unprofessional or dishonorable conduct; or

(2)  any provision of this chapter that applies to the conduct resulting in the violation. (V.A.C.S. Art. 4495b, Secs. 6.118(b), (c), (d), as added Acts 75th Leg., R.S., Ch. 1170.)

Sec. 205.358.  AUDIT OF REHABILITATION ORDER. (a)  The acupuncture board shall keep rehabilitation orders imposed under Section 205.356 in a confidential file. The file is subject to an independent audit to ensure that only qualified license holders are subject to rehabilitation orders. The audit shall be conducted by a state auditor or private auditor with whom the acupuncture board contracts to perform the audit.

(b)  An audit may be performed at any time at the direction of the acupuncture board. The acupuncture board shall ensure that an audit is performed at least once in each three-year period.

(c)  The audit results are a matter of public record and shall be reported in a manner that maintains the confidentiality of each license holder who is subject to a rehabilitation order. (V.A.C.S. Art. 4495b, Sec. 6.118(e), as added Acts 75th Leg., R.S., Ch. 1170.)

Sec. 205.359.  SUBPOENA. (a)  On behalf of the acupuncture board, the executive director of the medical board or the presiding officer of the acupuncture board may issue a subpoena or subpoena duces tecum:

(1)  for purposes of an investigation or contested proceeding related to:

(A)  alleged misconduct by an acupuncturist; or

(B)  an alleged violation of this chapter or other law related to practice as an acupuncturist or to the provision of health care under the authority of this chapter; and

(2)  to determine whether to:

(A)  issue, suspend, restrict, revoke, or cancel a license authorized by this chapter; or

(B)  deny or grant an application for a license under this chapter.

(b)  Failure to timely comply with a subpoena issued under this section is a ground for:

(1)  disciplinary action by the acupuncture board or any other licensing or regulatory agency with jurisdiction over the individual or entity subject to the subpoena; and

(2)  denial of a license application. (V.A.C.S. Art. 4495b, Sec. 6.125.)

[Sections 205.360-205.400 reserved for expansion]

SUBCHAPTER I. PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 205.401.  CRIMINAL PENALTY. (a)  Except as provided by Section 205.303, a person commits an offense if the person practices acupuncture in this state without a license issued under this chapter.

(b)  Each day a person practices acupuncture in violation of Subsection (a) constitutes a separate offense.

(c)  An offense under Subsection (a) is a felony of the third degree. (V.A.C.S. Art. 4495b, Sec. 6.12.)

Sec. 205.402.  INJUNCTIVE RELIEF; CIVIL PENALTY. (a)  The medical board, the attorney general, or a district or county attorney may bring a civil action to compel compliance with this chapter or to enforce a rule adopted under this chapter.

(b)  In addition to injunctive relief or any other remedy provided by law, a person who violates this chapter or a rule adopted under this chapter is liable to the state for a civil penalty in an amount not to exceed $2,000 for each violation.

(c)  Each day a violation continues or occurs is a separate violation for purposes of imposing a civil penalty.

(d)  The attorney general, at the request of the medical board or on the attorney general's own initiative, may bring a civil action to collect a civil penalty. (V.A.C.S. Art. 4495b, Secs. 6.13(a), (b) (part).)

[Chapters 206-250 reserved for expansion]

SUBTITLE D. DENTISTRY

CHAPTER 251. GENERAL PROVISIONS RELATING TO

PRACTICE OF DENTISTRY

Sec. 251.001. SHORT TITLE

Sec. 251.002. DEFINITIONS

Sec. 251.003. PRACTICE OF DENTISTRY

Sec. 251.004. EXEMPTION FROM PRACTICE OF DENTISTRY

Sec. 251.005. APPLICATION OF SUNSET ACT

CHAPTER 251. GENERAL PROVISIONS RELATING TO

PRACTICE OF DENTISTRY

Sec. 251.001.  SHORT TITLE. This subtitle may be cited as the Dental Practice Act. (V.A.C.S. Art. 4543, Sec. 1.)

Sec. 251.002.  DEFINITIONS. In this subtitle:

(1)  "Board" means the State Board of Dental Examiners.

(2)  "Executive director" means the executive director of the board. (New.)

Sec. 251.003.  PRACTICE OF DENTISTRY. (a) For purposes of this subtitle, a person practices dentistry if the person:

(1)  represents to the public that the person is a dentist or dental surgeon or uses or permits to be used for the person or another person the title of "Doctor," "Dr.," "Doctor of Dental Surgery," "D.D.S.," "Doctor of Dental Medicine," "D.M.D.," or another description, including the use of the terms "denturist" or "denturism," that, directly or indirectly, represents that the person is able to:

(A)  diagnose, treat, or remove stains or concretions from human teeth; or

(B)  provide surgical and adjunctive treatment for a disease, pain, injury, deficiency, deformity, or physical condition of the human teeth, oral cavity, alveolar process, gums, jaws, or directly related and adjacent masticatory structures;

(2)  performs or offers to perform by any means the:

(A)  cleaning of human teeth;

(B)  removal of stains, concretions, or deposits from teeth in the human mouth; or

(C)  diagnosis, treatment, operation, or prescription for a disease, pain, injury, deficiency, deformity, or physical condition of the human teeth, oral cavity, alveolar process, gums, or jaws;

(3)  prescribes, makes, or causes to be made or offers to prescribe, make, or cause to be made by any means an impression of any portion of the human mouth, teeth, gums, or jaws:

(A)  to diagnose, prescribe, or treat, or aid in the diagnosis, prescription, or treatment, of a physical condition of the human mouth, teeth, gums, or jaws; or

(B)  to construct or aid in the construction of a dental appliance, denture, dental bridge, false teeth, dental plate of false teeth, or another substitute for human teeth;

(4)  owns, maintains, or operates an office or place of business in which the person employs or engages under any type of contract another person to practice dentistry;

(5)  fits, adjusts, repairs, or substitutes or offers to fit, adjust, repair, or substitute in the human mouth or directly related and adjacent masticatory structures a dental appliance, structure, prosthesis, or denture;

(6)  aids in the fitting, adjusting, repairing, or substituting or causes to be fitted, adjusted, repaired, or substituted in the human mouth or directly related and adjacent masticatory structures a dental appliance, structure, prosthesis, or denture;

(7)  without a written prescription or work order signed by a dentist legally practicing dentistry in this state or in the jurisdiction in which the dentist maintains the dentist's office:

(A)  makes, processes, reproduces, repairs, or relines a full or partial denture, fixed or removable dental bridge or appliance, dental plate of false teeth, artificial dental restoration, or a substitute or corrective device or appliance for the human teeth, gums, jaws, mouth, alveolar process, or any part for another; or

(B)  offers, undertakes, aids, abets, or causes another person to engage in an activity described by Paragraph (A);

(8)  directly or indirectly offers, undertakes, or causes another to perform for any person an act, service, or part of an act or service in the practice of dentistry, including:

(A)  inducing, administering, prescribing, or dispensing anesthesia or an anesthetic drug, medicine, or an agent in any way related to the practice of dentistry;

(B)  permitting or allowing another to use the person's license or certificate to practice dentistry in this state; or

(C)  aiding or abetting the practice of dentistry by a person not licensed by the board to practice dentistry;

(9)  controls, influences, attempts to control or influence, or otherwise interferes with the exercise of a dentist's independent professional judgment regarding the diagnosis or treatment of a dental disease, disorder, or physical condition; or

(10)  represents that the person is a denturist or uses another title that is intended to convey to the public that the services offered by the person are included within the practice of dentistry.

(b)  The practice of dentistry under Subsection (a)(9) does not:

(1)  require an entity to pay for services that are not provided for in an agreement; or

(2)  exempt a dentist who is a member of a hospital staff from following hospital bylaws, medical staff bylaws, or established policies approved by the governing board and the medical and dental staff of the hospital.

(c)  In this subtitle, the practice of the dental specialty of oral and maxillofacial surgery includes the diagnosis of and the surgical and adjunctive treatment of diseases, injuries, and defects involving the functional and aesthetic aspects of the hard and soft tissues of the oral and maxillofacial region. (V.A.C.S. Arts. 4548b, 4551a (part).)

Sec. 251.004.  EXEMPTION FROM PRACTICE OF DENTISTRY. A person does not practice dentistry as provided by Section 251.003 if the person is:

(1)  a faculty member of a reputable dental or dental hygiene school in which the member performs services for the sole benefit of the school;

(2)  a student of a reputable dental school who performs the student's operations without pay, except for actual cost of materials, in the presence of and under the direct personal supervision of a demonstrator or teacher who is a faculty member of a reputable dental school;

(3)  a person:

(A)  who performs laboratory work only on inert matter; and

(B)  who does not solicit or obtain work by any means from a person who is not a licensed dentist engaged in the practice of dentistry and does not act as the agent or solicitor of, and does not have any interest in, a dental office or practice or the receipts of a dental office or practice;

(4)  a physician licensed in this state who does not represent that the person is practicing dentistry, including a physician who extracts teeth or applies pain relief in the regular practice of the physician's profession;

(5)  a dental hygienist:

(A)  who is authorized to practice dental hygiene in this state; and

(B)  who practices dental hygiene in strict conformity with the state law regulating the practice of dental hygiene;

(6)  a person who is a member of an established church and practices healing by prayer only;

(7)  an employee of a licensed dentist in this state who makes dental x-rays in the dental office under the supervision of the dentist;

(8)  a Dental Health Service Corporation chartered under Section A(1), Article 2.01, Texas Non-Profit Corporation Act (Article 1396-2.01, Vernon's Texas Civil Statutes);

(9)  a dental intern or dental resident as defined and regulated by board rules;

(10)  a student:

(A)  who is in a dental hygiene program accredited by the Commission on Dental Accreditation of the American Dental Association and operated at an accredited institution of higher education;

(B)  who practices dental hygiene without pay under the general supervision of a dentist and under the supervision of a demonstrator or teacher who is a faculty member of the program:

(i)  in a clinic operated for the sole benefit of the program's institution of higher education; or

(ii)  in a clinic operated by a government or nonprofit organization that serves underserved populations as determined by board rule; and

(C)  who practices in strict conformity with state law regulating the practice of dental hygiene;

(11)  a dental assistant who performs duties permitted under Chapter 265, in strict conformity with state law; or

(12)  a dentist licensed by another state or a foreign country who performs a clinical procedure only as a demonstration for professional and technical education purposes, if the dentist first obtains from the board a temporary license for that purpose. (V.A.C.S. Arts. 4548 (part), 4551b.)

Sec. 251.005.  APPLICATION OF SUNSET ACT. The State Board of Dental Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished September 1, 2005. (V.A.C.S. Art. 4543b.)

CHAPTER 252. STATE BOARD OF DENTAL EXAMINERS

Sec. 252.001. BOARD MEMBERSHIP

Sec. 252.002. MEMBER ELIGIBILITY

Sec. 252.003. MEMBERSHIP AND EMPLOYEE RESTRICTIONS

Sec. 252.004. TERMS OF OFFICE

Sec. 252.005. PRIVILEGES OF OFFICE

Sec. 252.006. OFFICERS

Sec. 252.007. GROUNDS FOR REMOVAL

Sec. 252.008. PER DIEM; REIMBURSEMENT

Sec. 252.009. MEETINGS

Sec. 252.010. BOARD MEMBER TRAINING

Sec. 252.011. OATH OF OFFICE

CHAPTER 252. STATE BOARD OF DENTAL EXAMINERS

Sec. 252.001.  BOARD MEMBERSHIP. (a)  The State Board of Dental Examiners consists of 18 members appointed by the governor with the advice and consent of the senate as follows:

(1)  10 reputable dentist members who reside in this state and have been actively engaged in the practice of dentistry for at least the five years preceding appointment;

(2)  two reputable dental hygienist members who reside in this state and have been actively engaged in the practice of dental hygiene for at least the five years preceding appointment; and

(3)  six members who represent the public.

(b)  Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.

(c)  In making an appointment under this section, the governor shall attempt to appoint members of different minority groups, including females, African Americans, Hispanic Americans, Native Americans, and Asian Americans. (V.A.C.S. Art. 4543a, Secs. 1(a)(1) (part), (b); Sec. 2 (part).)

Sec. 252.002.  MEMBER ELIGIBILITY. (a) A person is not eligible for appointment as a member if:

(1)  the person's license to practice dentistry or dental hygiene has been revoked by the board for a violation of a statute of this state relating to the practice of dentistry or dental hygiene and the revocation is not overturned by final order of a court; or

(2)  the person is an adverse party in civil litigation against the board.

(b)  A person is not eligible for appointment as a dentist or dental hygienist member of the board if the person:

(1)  is a member of the faculty of a dental or dental hygiene school or of the dental or dental hygiene department of a medical school; or

(2)  has a financial interest in any dental, dental hygiene, or medical school.

(c)  A person is not eligible for appointment as a dental hygienist member of the board if the person is licensed to practice dentistry in this state.

(d)  A person is not eligible for appointment as a public member of the board if the person or the person's spouse:

(1)  is registered, certified, or licensed by an occupational regulatory agency in the field of health care;

(2)  is employed by or participates in the management of a business entity or other organization regulated by or receiving funds from the board;

(3)  owns or controls or has, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the board;

(4)  uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses; or

(5)  is employed by a board member. (V.A.C.S. Art. 4543a, Secs. 1(a)(1) (part), (2).)

Sec. 252.003.  MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b)  An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member or employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(c)  A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a board member and may not be a board employee who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(d)  A person may not serve as a member of the board or act as general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the board. (V.A.C.S. Art. 4543a, Sec. 3.)

Sec. 252.004.  TERMS OF OFFICE. (a)  Members of the board serve staggered six-year terms. The terms of one-third of the members expire February 1 of each odd-numbered year.

(b)  A member may serve only one six-year term. (V.A.C.S. Art. 4543a, Sec. 2 (part).)

Sec. 252.005.  PRIVILEGES OF OFFICE. Members of the board have full and identical privileges, except that only dentist members may participate in the decision to pass or fail an applicant for a license to practice dentistry during the clinical portion of the board examinations. (V.A.C.S. Art. 4543a, Sec. 1(c).)

Sec. 252.006.  OFFICERS. (a)  The board shall elect from its members for one-year terms a president and a secretary.

(b)  The president must be a dentist. (V.A.C.S. Art. 4543a, Sec. 2 (part).)

Sec. 252.007.  GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member:

(1)  does not have at the time of appointment the qualifications required by Sections 252.001 and 252.002;

(2)  does not maintain during the service on the board the qualifications required by Sections 252.001 and 252.002;

(3)  violates a prohibition established by Section 252.003;

(4)  cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5)  is absent from more than half of the regularly scheduled board meetings the member is eligible to attend during a calendar year.

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

(c)  If the executive director or any board member has knowledge that a potential ground for removal exists, the executive director or board member shall notify the board of the ground. The board shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4543a, Sec. 4.)

Sec. 252.008.  PER DIEM; REIMBURSEMENT. (a)  Each board member is entitled to a per diem set by legislative appropriation for each day the member engages in board business.

(b)  A board member may receive reimbursement for travel expenses, including expenses for meals and lodging, incurred in performing an official duty as prescribed by the General Appropriations Act. (V.A.C.S. Art. 4551, Subsec. (a).)

Sec. 252.009.  MEETINGS. (a)  The board shall hold meetings at least twice a year at times and places the board determines are most convenient for applicants for examination.

(b)  Notice of the meeting shall be published in a newspaper selected by the board. (V.A.C.S. Art. 4543a, Sec. 2 (part).)

Sec. 252.010.  BOARD MEMBER TRAINING. (a)  Before a board member may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of a training program established under this section.

(b)  A training program shall provide information to a participant regarding:

(1)  this subtitle;

(2)  the programs operated by the board;

(3)  the role and functions of the board;

(4)  the rules of the board with an emphasis on the rules that relate to disciplinary and investigatory authority;

(5)  the current budget for the board;

(6)  the results of the most recent formal audit of the board;

(7)  the requirements of Chapters 551, 552, and 2001, Government Code;

(8)  the requirements of the conflict of interest laws and other laws relating to public officials; and

(9)  any applicable ethics policies adopted by the board or the Texas Ethics Commission.

(c)  In developing the training program, the board shall consult with the governor's office and the Texas Ethics Commission.

(d)  If another state agency or entity is given authority to establish board member training requirements, the board shall allow that training instead of developing its own program. (V.A.C.S. Art. 4543a, Secs. 5(a), 6.)

Sec. 252.011.  OATH OF OFFICE. Before assuming the duties of office, each board member shall file with the secretary of state a copy of the constitutional oath of office taken by the member. (V.A.C.S. Art. 4543a, Sec. 2 (part).)

CHAPTER 253. EXECUTIVE DIRECTOR AND PERSONNEL

Sec. 253.001. EXECUTIVE DIRECTOR

Sec. 253.002. SURETY BOND

Sec. 253.003. PERSONNEL

Sec. 253.004. DIVISION OF RESPONSIBILITIES

Sec. 253.005. QUALIFICATIONS AND STANDARDS OF CONDUCT

INFORMATION

Sec. 253.006. CAREER LADDER PROGRAM; PERFORMANCE

EVALUATIONS

Sec. 253.007. EQUAL OPPORTUNITY POLICY; REPORT

CHAPTER 253. EXECUTIVE DIRECTOR AND PERSONNEL

Sec. 253.001.  EXECUTIVE DIRECTOR. (a)  The board may employ an executive director to assist the board in performing its duties.

(b)  The board shall set the executive director's salary. (V.A.C.S. Art. 4550a, Sec. 4(a) (part).)

Sec. 253.002.  SURETY BOND. (a)  The executive director shall execute and file a surety bond in an amount of not less than $5,000.

(b)  The bond must be conditioned on:

(1)  the faithful performance of the executive director's duties; and

(2)  the safekeeping and proper disbursement of all funds received by the executive director. (V.A.C.S. Art. 4550a, Sec. 4(a) (part).)

Sec. 253.003.  PERSONNEL. (a)  The executive director, with the board's consent, may employ an assistant executive director to perform the executive director's duties when the executive director is absent or unable to act.

(b)  The board may employ:

(1)  clerks, advisors, consultants, hygienists, or examiners to assist the board in performing its duties; and

(2)  other persons determined necessary:

(A)  to assist the local prosecuting officers of a county in the enforcement of state laws prohibiting the unlawful practice of dentistry; and

(B)  to carry out other purposes for which funds are appropriated.

(c)  The board shall employ other employees as needed to assist the executive director in performing the executive director's duties and in carrying out the purposes of this subtitle.

(d)  A person assisting a local prosecuting officer under this section is subject to the direction and control of the prosecuting officer. This subsection does not change the authority granted by law to the prosecuting officer. (V.A.C.S. Art. 4547a; Art. 4550a, Secs. 3(d) (part), 4(a) (part).)

Sec. 253.004.  DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly define the responsibilities of the board and the staff of the board. (V.A.C.S. Art. 4550a, Sec. 4(g).)

Sec. 253.005.  QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding:

(1)  qualifications for office or employment under this subtitle; and

(2)  responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4543a, Sec. 5(b).)

Sec. 253.006.  CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a)  The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require the intra-agency postings of all nonentry level positions concurrently with any public posting.

(b)  The executive director or the executive director's designee shall develop a system of annual performance evaluations. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4550a, Secs. 4(b), (c).)

Sec. 253.007.  EQUAL OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:

(1)  personnel policies, including policies relating to recruitment, evaluation, selection, appointment, training, and promotion of personnel that are in compliance with requirements of Chapter 21, Labor Code;

(2)  a comprehensive analysis of the board workforce that meets federal and state guidelines;

(3)  procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and

(4)  reasonable methods to appropriately address those areas of significant underuse.

(b)  A policy statement prepared under Subsection (a) must:

(1)  cover an annual period;

(2)  be updated annually;

(3)  be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and

(4)  be filed with the governor.

(c)  The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as a part of other biennial reports made to the legislature. (V.A.C.S. Art. 4550a, Secs. 4(d), (e), (f).)

CHAPTER 254. BOARD POWERS AND DUTIES

Sec. 254.001. GENERAL RULEMAKING AUTHORITY

Sec. 254.002. RULES REGARDING ADVERTISING AND COMPETITIVE

BIDDING

Sec. 254.003. RULES REGARDING INFECTION CONTROL

Sec. 254.004. FEES

Sec. 254.005. SIGNATURE AND SEAL ON LICENSE REQUIRED

Sec. 254.006. BOARD RECORDS AND CONFIDENTIALITY OF RECORDS

Sec. 254.007. RECORDS REGARDING PERSONS AUTHORIZED TO

PRACTICE

Sec. 254.008. CIVIL LIABILITY

Sec. 254.009. ASSISTANCE OF PROSECUTOR

Sec. 254.010. MONITORING OF LICENSE HOLDER

Sec. 254.011. IMPLEMENTATION OF FEDERAL LAW RELATING TO

RADIOLOGIC PROCEDURES

Sec. 254.012. ANNUAL REPORT

CHAPTER 254. BOARD POWERS AND DUTIES

Sec. 254.001.  GENERAL RULEMAKING AUTHORITY. (a) The board may adopt and enforce rules necessary to:

(1)  perform its duties; and

(2)  ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety.

(b)  The board may adopt rules governing:

(1)  the board's proceedings; and

(2)  the examination of applicants for a license to practice dentistry. (V.A.C.S. Art. 4543a, Sec. 2 (part); Art. 4551d, Subsec. (a).)

Sec. 254.002.  RULES REGARDING ADVERTISING AND COMPETITIVE BIDDING. (a)  Except as provided by Section 259.005, the board may not adopt rules restricting advertising or competitive bidding except to prohibit false, misleading, and deceptive practices by the license holder.

(b)  The board may adopt and enforce reasonable restrictions to regulate advertising relating to the practice of dentistry by a person engaged in the practice of dentistry as provided by Section 259.005.

(c)  The board may not include in the board's rules to prohibit false, misleading, or deceptive advertising under Subsection (a) a rule that:

(1)  restricts the use of any advertising medium;

(2)  restricts a person's personal appearance or use of the person's voice in an advertisement;

(3)  relates to the size or duration of a person's advertisement; or

(4)  restricts the person's advertisement under a trade name, except the board may require that a trade name advertisement include the name of each dental owner of the practice. (V.A.C.S. Art. 4548f, Secs. 1(a) (part), (b), (c) (part).)

Sec. 254.003.  RULES REGARDING INFECTION CONTROL. The board shall investigate infection control in the dental profession and may adopt and enforce rules to control the spread of infection in the practice of dentistry as necessary to protect the public health and safety. (V.A.C.S. Art. 4551d, Subsec. (c).)

Sec. 254.004.  FEES. (a) The board shall establish reasonable and necessary fees so that the fees, in the aggregate, produce sufficient revenue to cover the cost of administering this subtitle.

(b)  The amount of the dental examination fee and dentist annual renewal fee is the amount set by the board under Subsection (a) and an additional charge of $200. Of each fee increase collected under this subsection, $50 shall be deposited to the credit of the foundation school fund and $150 shall be deposited to the credit of the general revenue fund. (V.A.C.S. Art. 4550c, Subsecs. (a), (b) (part); Art. 4551, Subsec. (b).)

Sec. 254.005.  SIGNATURE AND SEAL ON LICENSE REQUIRED. A license issued to a dentist must be signed by each board member and imprinted with the board's seal. (V.A.C.S. Art. 4548a (part).)

Sec. 254.006.  BOARD RECORDS AND CONFIDENTIALITY OF RECORDS. (a) Except as provided by this section, the investigation files and other records of the board are public records and open to inspection at reasonable times.

(b)  Investigation files and other records are confidential and shall be divulged only to the persons investigated at the completion of the investigation. The board may share investigation files and other records with another state regulatory agency or federal law enforcement agency during a joint investigation or in determining the feasibility of conducting an investigation. (V.A.C.S. Art. 4550, Sec. 2.)

Sec. 254.007.  RECORDS REGARDING PERSONS AUTHORIZED TO PRACTICE. (a) The board shall keep records of the name, residence, and place of business of each person authorized under this subtitle to practice dentistry, dental hygiene, or another profession or business under the board's jurisdiction as provided by law.

(b)  The board shall collect annually from each licensed dentist the dentist's name, age, practice locations, hours worked each week, weeks worked each year, and number and type of auxiliaries employed.

(c)  The information collected under Subsection (b) shall be compiled in report form by practice composition and by county reflecting the overall full-time equivalency tabulations as defined by the federal Department of Health and Human Services. (V.A.C.S. Art. 4550, Sec. 1 (part); Art. 4551l.)

Sec. 254.008.  CIVIL LIABILITY. (a) In the absence of fraud, conspiracy, or malice, a member or employee of the board, a witness called to testify by the board, or a consultant or hearing officer appointed by the board is not liable or subject to suit in a civil action for any damage caused by the person for an investigation, report, recommendation, statement, evaluation, finding, order, or award made in the performance of the person's official duties.

(b)  The purpose of this section is to protect the persons designated by Subsection (a) from being harassed and threatened with legal action while performing official duties. (V.A.C.S. Art. 4551j.)

Sec. 254.009.  ASSISTANCE OF PROSECUTOR. (a) The board shall aid in the enforcement of state law regulating the practice of dentistry.

(b)  A board member may present to a prosecuting officer a complaint relating to a violation of state law regulating the practice of dentistry.

(c)  The board and its members, officers, counsel, and agents may assist the prosecuting officer in the trial of a case involving an alleged violation of state law. (V.A.C.S. Art. 4544a, Sec. 1.)

Sec. 254.010.  MONITORING OF LICENSE HOLDER. (a) The board by rule shall develop a system to monitor a license holder's compliance with this subtitle.

(b)  Rules adopted under this section must include procedures to:

(1)  monitor for compliance a license holder who is ordered by the board to perform a certain act; and

(2)  identify and monitor each license holder who represents a risk to the public. (V.A.C.S. Art. 4548h, Sec. 1(k).)

Sec. 254.011.  IMPLEMENTATION OF FEDERAL LAW RELATING TO RADIOLOGIC PROCEDURES. If an employee of a dentist is required under federal law to receive minimum training and achieve minimum performance standards relating to radiologic procedures and techniques, the board shall implement the federal requirements relating to the employee. (V.A.C.S. Art. 4544a, Sec. 2.)

Sec. 254.012.  ANNUAL REPORT. (a) The board shall file annually with the governor and with the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.

(b)  The annual report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4550a, Sec. 3(c).)

CHAPTER 255. PUBLIC INTEREST INFORMATION AND

COMPLAINT PROCEDURES

Sec. 255.001. PUBLIC INTEREST INFORMATION

Sec. 255.002. COMPLAINTS

Sec. 255.003. ASSISTANCE WITH COMPLAINT

Sec. 255.004. RECORDS OF COMPLAINTS

Sec. 255.005. NOTIFICATION OF COMPLAINT STATUS

Sec. 255.006. GENERAL RULES REGARDING COMPLAINT

INVESTIGATION AND DISPOSITION

Sec. 255.007. NOTICE TO BOARD CONCERNING COMPLAINTS

Sec. 255.008. PUBLIC PARTICIPATION

CHAPTER 255. PUBLIC INTEREST INFORMATION AND

COMPLAINT PROCEDURES

Sec. 255.001.  PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of public interest describing the functions of the board and procedures by which complaints are filed with and resolved by the board.

(b)  The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4549b, Subsec. (a).)

Sec. 255.002.  COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:

(1)  on each registration form, application, brochure, or written contract for services of a person regulated under this subtitle;

(2)  on a sign prominently displayed in the place of business of each person regulated under this subtitle; or

(3)  in a bill for service provided by a person regulated under this subtitle.

(b)  The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4549b, Subsecs. (b), (c).)

Sec. 255.003.  ASSISTANCE WITH COMPLAINT. The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4548h, Sec. 1(d).)

Sec. 255.004.  RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board.

(b)  The information file must be kept current and contain a record for each complaint of:

(1)  each person contacted in relation to the complaint;

(2)  a summary of findings made at each step of the complaint process;

(3)  an explanation of the legal basis and reason that a complaint is dismissed;

(4)  the schedule for disposing of the complaint as required by Section 255.006 and a notation of any change in the schedule; and

(5)  other relevant information. (V.A.C.S. Art. 4548h, Secs. 1(a), (g) (part).)

Sec. 255.005.  NOTIFICATION OF COMPLAINT STATUS. If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4548h, Sec. 1(b).)

Sec. 255.006.  GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) A complaint received under this chapter must be filed with and reviewed by the board to determine jurisdiction. If the board has jurisdiction, the board shall investigate the complaint to determine the facts concerning the complaint.

(b)  The board may not consider a complaint that is filed with the board after the fourth anniversary of the date:

(1)  the act that is the basis of the complaint occurred; or

(2)  the complainant discovered, or in the exercise of reasonable diligence should have discovered, the occurrence of the act that is the basis of the complaint.

(c)  The board by rule shall:

(1)  adopt a form to standardize information concerning complaints filed with the board; and

(2)  prescribe information to be provided to a person when the person files a complaint with the board.

(d)  The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this subsection must:

(1)  distinguish between categories of complaints;

(2)  ensure that a complaint is not dismissed without appropriate consideration;

(3)  require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;

(4)  ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and

(5)  require that investigators used by the board be state employees.

(e)  The board shall:

(1)  dispose of each complaint in a timely manner; and

(2)  establish a schedule for conducting each phase of a complaint that is under the control of the board. (V.A.C.S. Art. 4548h, Secs. 1(c), (e), (f), (g) (part), (l).)

Sec. 255.007.  NOTICE TO BOARD CONCERNING COMPLAINTS. (a) The executive director shall notify the board of a complaint that is unresolved after the second anniversary of the date the complaint is filed.

(b)  The executive director shall explain to the board the reasons that the complaint has not been resolved. The executive director shall periodically provide the notice and explanation required by this section at regularly scheduled board meetings. (V.A.C.S. Art. 4548h, Sec. 1(h).)

Sec. 255.008.  PUBLIC PARTICIPATION. (a) The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the board's jurisdiction.

(b)  The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs. (V.A.C.S. Art. 4550a, Secs. 4(h) (part), (i).)

CHAPTER 256. LICENSING OF DENTISTS AND DENTAL HYGIENISTS

SUBCHAPTER A. ISSUANCE OF LICENSE TO PRACTICE DENTISTRY

Sec. 256.001. LICENSE REQUIRED

Sec. 256.002. MINIMUM QUALIFICATIONS OF DENTAL APPLICANT

Sec. 256.003. EXAMINATION

Sec. 256.004. LICENSING OF FOREIGN GRADUATES AND GRADUATES

OF NONACCREDITED DENTAL SCHOOLS

Sec. 256.005. EXAMINATION RESULTS

Sec. 256.006. REEXAMINATION

[Sections 256.007-256.050 reserved for expansion]

SUBCHAPTER B. ISSUANCE OF LICENSE TO DENTAL HYGIENIST

Sec. 256.051. DEFINITION

Sec. 256.052. LICENSE REQUIRED

Sec. 256.053. ELIGIBILITY FOR LICENSE

Sec. 256.054. APPLICATION FOR EXAMINATION

Sec. 256.055. LICENSE EXAMINATION

Sec. 256.056. EXAMINATION RESULTS

Sec. 256.057. REEXAMINATION

Sec. 256.058. ISSUANCE OF LICENSE

[Sections 256.059-256.100 reserved for expansion]

SUBCHAPTER C. GENERAL LICENSE PROVISIONS

Sec. 256.101. RECIPROCAL LICENSE

Sec. 256.102. RETIRED STATUS

Sec. 256.103. DISPLAY OF DENTIST'S LICENSE

Sec. 256.104. DUPLICATE LICENSE

Sec. 256.105. NOTIFICATION OF CHANGE OF INFORMATION

CHAPTER 256. LICENSING OF DENTISTS AND DENTAL HYGIENISTS

SUBCHAPTER A. ISSUANCE OF LICENSE TO PRACTICE DENTISTRY

Sec. 256.001.  LICENSE REQUIRED. A person may not practice or offer to practice dentistry or dental surgery or represent that the person practices dentistry unless the person holds a license issued by the board. (V.A.C.S. Arts. 4548 (part), 4548a (part).)

Sec. 256.002.  MINIMUM QUALIFICATIONS OF DENTAL APPLICANT. (a) An applicant for a license to practice dentistry must:

(1)  be at least 21 years of age;

(2)  present evidence of good moral character; and

(3)  present proof of:

(A)  graduation from a dental school accredited by the Commission on Dental Accreditation of the American Dental Association; or

(B)  graduation from a dental school that is not accredited by the commission and successful completion of training in an American Dental Association approved specialty in an education program accredited by the commission that consists of at least two years of training as specified by the Council on Dental Education.

(b)  The board shall grant a dental license to an applicant who:

(1)  meets the qualifications of this section;

(2)  pays an examination fee set by the board; and

(3)  satisfactorily passes the examination required by the board. (V.A.C.S. Art. 4544, Sec. 1(a) (part); Art. 4545.)

Sec. 256.003.  EXAMINATION. (a) The board shall provide for the examination of an applicant for a dental license.

(b)  The examination must consist of subjects and operations relating to dentistry, including:

(1)  anatomy;

(2)  physiology;

(3)  anaesthesia;

(4)  biochemistry;

(5)  dental materials;

(6)  diagnosis;

(7)  treatment planning;

(8)  ethics;

(9)  jurisprudence;

(10)  hygiene;

(11)  pharmacology;

(12)  operative dentistry;

(13)  oral surgery;

(14)  orthodontia;

(15)  periodontia;

(16)  prosthetic dentistry;

(17)  pathology;

(18)  microbiology; and

(19)  any other subject regularly taught in reputable dental schools that the board may require.

(c)  The board shall contract with an independent or regional testing service for any required clinical examination. If the board uses a regional testing service, the board may contract for or otherwise use licensed dentists to provide assistance to the regional testing service.

(d)  The board shall have the written portion of the examination validated by an independent testing professional. (V.A.C.S. Art. 4544, Sec. 1(a) (part).)

Sec. 256.004.  LICENSING OF FOREIGN GRADUATES AND GRADUATES OF NONACCREDITED DENTAL SCHOOLS. The board by rule may provide for the procedures, fees, and requirements for graduates of foreign or nonaccredited dental schools to become licensed to practice dentistry. (V.A.C.S. Art. 4544, Sec. 2.)

Sec. 256.005.  EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date the examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify examinees of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.

(b)  If the notice of the examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify the examinee of the reason for the delay before the 90th day.

(c)  If requested in writing by a person who fails the examination, the board shall provide to the person an analysis of the person's performance on the examination as prescribed by board rule. (V.A.C.S. Art. 4544, Secs. 3, 4.)

Sec. 256.006.  REEXAMINATION. (a) The board by rule shall establish the conditions under which and the number of times an applicant may retake an examination.

(b)  The board may require an applicant who fails the examination to meet additional education requirements. (V.A.C.S. Art. 4544, Sec. 1(b).)

[Sections 256.007-256.050 reserved for expansion]

SUBCHAPTER B. ISSUANCE OF LICENSE TO DENTAL HYGIENIST

Sec. 256.051.  DEFINITION. In this chapter, "dental hygienist" means a person who practices dental hygiene under a license issued under this chapter. (V.A.C.S. Art. 4551e, Sec. 1 (part).)

Sec. 256.052.  LICENSE REQUIRED. A person may not practice or offer to practice dental hygiene in this state unless the person is licensed under this chapter. (V.A.C.S. Art. 4551e, Sec. 13 (part).)

Sec. 256.053.  ELIGIBILITY FOR LICENSE. To qualify for a license, an applicant must be:

(1)  at least 18 years of age;

(2)  a graduate of an accredited high school or hold a certificate of high school equivalency; and

(3)  a graduate of a recognized school of dentistry or dental hygiene accredited by the Commission on Dental Accreditation of the American Dental Association and approved by the board. (V.A.C.S. Art. 4551e, Sec. 2.)

Sec. 256.054.  APPLICATION FOR EXAMINATION. To take the examination under Section 256.055, an applicant must:

(1)  submit an application on a form prescribed by the board;

(2)  pay the fee set by the board;

(3)  attach to the application:

(A)  proof of current certification in cardiopulmonary resuscitation approved by the American Heart Association or American Red Cross; or

(B)  if the applicant is not physically able to comply with the certification requirements of Paragraph (A), a written statement describing the person's physical incapacity executed by a licensed physician or an instructor in cardiopulmonary resuscitation approved by the American Heart Association or American Red Cross; and

(4)  provide any other information the board requires to determine the applicant's qualifications. (V.A.C.S. Art. 4551e, Sec. 5(a) (part).)

Sec. 256.055.  LICENSE EXAMINATION. (a) The board shall provide for the examination of an applicant for a dental hygienist license.

(b)  The examination must include subjects and operations relating to dentistry and dental hygiene, including:

(1)  anatomy;

(2)  pharmacology;

(3)  x-ray;

(4)  ethics;

(5)  jurisprudence;

(6)  hygiene; and

(7)  any other subject regularly taught in reputable schools of dentistry and dental hygiene that the board may require.

(c)  The board shall contract with an independent or regional testing service for any required clinical examination. If the board uses a regional testing service, the board may contract for or otherwise use licensed dental hygienists to provide assistance to the regional testing service.

(d)  The board shall have the written portion of the examination validated by an independent testing professional. (V.A.C.S. Art. 4551e, Sec. 5(a) (part).)

Sec. 256.056.  EXAMINATION RESULTS. The board shall notify each examinee of the results of the examination within a reasonable time after the date of the examination. (V.A.C.S. Art. 4551e, Sec. 5(a) (part).)

Sec. 256.057.  REEXAMINATION. (a) The board by rule shall establish the conditions under which and the number of times an applicant may retake an examination.

(b)  The board may require an applicant who fails the examination to meet additional education requirements set by the board. (V.A.C.S. Art. 4551e, Sec. 5(b).)

Sec. 256.058.  ISSUANCE OF LICENSE. The board shall issue a license to practice dental hygiene to an applicant who has passed all phases of the examination. (V.A.C.S. Art. 4551e, Sec. 5(a) (part).)

[Sections 256.059-256.100 reserved for expansion]

SUBCHAPTER C. GENERAL LICENSE PROVISIONS

Sec. 256.101.  RECIPROCAL LICENSE. (a) The board shall issue a license to practice dentistry or dental hygiene to a reputable dentist or dental hygienist who:

(1)  pays the fee set by the board;

(2)  is licensed in good standing as a dentist or dental hygienist in another state that has licensing requirements substantially equivalent to the requirements of this subtitle;

(3)  has not been the subject of a final disciplinary action and is not the subject of a pending disciplinary action in any jurisdiction in which the dentist or dental hygienist is or has been licensed;

(4)  has graduated from a dental or dental hygiene school accredited by the Commission on Dental Accreditation of the American Dental Association and approved by the board under board rule;

(5)  has passed a national or other examination relating to dentistry or dental hygiene and recognized by the board;

(6)  has passed the board's jurisprudence examination;

(7)  has submitted documentation of current cardiopulmonary resuscitation certification;

(8)  has practiced dentistry or dental hygiene:

(A)  for at least the five years preceding the date of application for a license under this section; or

(B)  as a dental educator at a dental school or dental hygiene school accredited by the Commission on Dental Accreditation of the American Dental Association for at least the five years preceding the date of application for a license under this section;

(9)  has been endorsed by the board of dentistry in the jurisdiction in which the applicant practices at the time of application; and

(10)  meets any additional criteria established by board rule.

(b)  If the board does not complete the processing of an application under this section before the 181st day after the date all documentation and examination results required by this section have been received, the board shall issue a license to the applicant. (V.A.C.S. Art. 4545a, Sec. 1.)

Sec. 256.102.  RETIRED STATUS. (a) The board by rule may allow a license holder to place the person's license on retired status. A license holder must apply to the board for retired status, on a form prescribed by the board, before the expiration date of the person's license.

(b)  In determining whether to grant retired status, the board shall consider the age, years of practice, and the status of the license holder at the time of the application.

(c)  A license holder on retired status:

(1)  is not required to pay license renewal fees; and

(2)  may not perform any activity regulated under this subtitle.

(d)  To reinstate a license placed on retired status, the license holder must submit a written request for reinstatement to the board. The board may return the license to active status and issue a renewal license if the license holder complies with any education or other requirement established by board rule and pays the renewal fee in effect at the time of the requested reinstatement.

(e)  The board may charge a reasonable administrative fee to cover the cost of research and the preparation of documentation for the board's consideration of a request for reinstatement of a license on retired status. (V.A.C.S. Art. 4550a, Sec. 2A.)

Sec. 256.103.  DISPLAY OF DENTIST'S LICENSE. (a) A licensed dentist shall display the dentist's license issued by the board in the dentist's office in the patient's plain view.

(b)  A licensed dentist may not operate on a patient's mouth or treat lesions of the mouth or teeth unless the dentist displays the dentist's license. (V.A.C.S. Art. 4548d.)

Sec. 256.104.  DUPLICATE LICENSE. (a) The board may issue a duplicate license to a person whose license is lost or destroyed if the person:

(1)  pays a reasonable fee; and

(2)  presents to the board an application for a duplicate license, including an affidavit explaining the loss or destruction and stating that the person is the same person originally granted the license.

(b)  If board records do not show that the person was previously licensed, the board may refuse to issue a duplicate license. (V.A.C.S. Art. 4547.)

Sec. 256.105.  NOTIFICATION OF CHANGE OF INFORMATION. (a) Each dentist, dental hygienist, dental laboratory, and dental technician licensed or registered with the board shall timely notify the board of:

(1)  any change of address of the person's place of business; and

(2)  any change of employers for the dentist, dental hygienist, dental laboratory, or dental technician, and any change of owners for the dental laboratory.

(b)  Notification under Subsection (a) is timely if the board receives the notice not later than the 60th day after the date the change occurs. (V.A.C.S. Art. 4550, Sec. 1 (part).)

CHAPTER 257. LICENSE RENEWAL

Sec. 257.001. LICENSE EXPIRATION

Sec. 257.002. LICENSE RENEWAL

Sec. 257.003. RENEWAL OF EXPIRED LICENSE BY

OUT-OF-STATE PRACTITIONER

Sec. 257.004. CARDIOPULMONARY RESUSCITATION CERTIFICATION

REQUIREMENTS FOR DENTAL HYGIENISTS

Sec. 257.005. CONTINUING EDUCATION FOR DENTIST AND DENTAL

HYGIENIST

CHAPTER 257. LICENSE RENEWAL

Sec. 257.001.  LICENSE EXPIRATION. (a) The board by rule may adopt a system under which licenses expire on various dates during the year.

(b)  Dates of license suspension and reinstatement after failure to pay the license fee shall be adjusted accordingly.

(c)  For the year in which the expiration date is changed, license fees payable on or before March 1 shall be prorated on a monthly basis so that each license holder pays only that portion of the fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license fee is payable. (V.A.C.S. Art. 4550a, Sec. 2(h); Art. 4550b.)

Sec. 257.002.  LICENSE RENEWAL. (a) A person required to hold a license as a practitioner under this subtitle who fails or refuses to apply for renewal of a license and pay the required fee on or before the specified date of each calendar year is:

(1)  suspended from practice; and

(2)  subject to the penalties imposed by law on any person unlawfully engaging in a practice regulated under this subtitle.

(b)  A person may renew an unexpired license by paying to the board the required renewal fee before the expiration of the license.

(c)  A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee that is equal to half of the amount of the license examination fee. A person whose license has been expired for more than 90 days but less than one year may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the amount of the license examination fee.

(d)  Except as provided by Section 256.102 or Section 257.003, a person whose license has been expired for one year or longer may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.

(e)  Not later than the 30th day before the expiration date of a person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the board's records.

(f)  The requirements prescribed by this section relating to the payment of annual license fees and penalties for the failure to timely renew a license do not apply to license holders who are on active duty with the armed forces of the United States and are not engaged in private or civilian practice. (V.A.C.S. Art. 4550a, Secs. 2(a), (b), (c), (d), (e) (part), (f), (g).)

Sec. 257.003.  RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. The board by rule may provide for renewal of an expired license without reexamination for a person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date the person applied for renewal. The person must pay to the board a fee that is equal to the amount of the license examination fee. (V.A.C.S. Art. 4550a, Sec. 2(e) (part).)

Sec. 257.004.  CARDIOPULMONARY RESUSCITATION CERTIFICATION REQUIREMENTS FOR DENTAL HYGIENISTS. (a) A person holding a dental hygienist license must attach to the person's renewal application:

(1)  proof of current certification in cardiopulmonary resuscitation approved by the American Heart Association or American Red Cross; or

(2)  if the person is not physically able to comply with the certification requirements of Subdivision (1), a written statement describing the person's physical incapacity executed by a licensed physician or an instructor in cardiopulmonary resuscitation approved by the American Heart Association or American Red Cross.

(b)  A dental hygienist licensed by the board who resides in a country other than the United States on the renewal date of the person's license is exempt from the requirements of Subsection (a) if the person submits proof of foreign residence with the person's renewal application. (V.A.C.S. Art. 4550a, Sec. 1 (part).)

Sec. 257.005.  CONTINUING EDUCATION FOR DENTIST AND DENTAL HYGIENIST. (a) The board shall develop a mandatory continuing education program for licensed dentists and dental hygienists. The board by rule shall require a license holder to complete at least 36 hours of continuing education in each three-year period to maintain the person's license.

(b)  The board may:

(1)  assess the continuing education needs of license holders; and

(2)  require license holders to attend continuing education courses specified by the board.

(c)  The board by rule shall:

(1)  identify the key factors required for competent performance of professional duties under this subtitle;

(2)  develop a process to evaluate and approve continuing education courses; and

(3)  develop a process to assess a license holder's participation and performance in continuing education courses to evaluate the overall effectiveness of the program. (V.A.C.S. Art. 4544, Sec. 5; Art. 4551e, Sec. 5A.)

CHAPTER 258. PRACTICE BY DENTIST

SUBCHAPTER A. DELEGATION BY DENTIST

Sec. 258.001. IMPERMISSIBLE DELEGATIONS

Sec. 258.002. DELEGATION TO DENTAL ASSISTANT

Sec. 258.003. RESPONSIBILITY OF DELEGATING DENTIST

[Sections 258.004-258.050 reserved for expansion]

SUBCHAPTER B. GENERAL PRACTICE PROVISIONS

Sec. 258.051. DENTIST RECORDS

Sec. 258.052. CASE HISTORIES AND PHYSICAL EVALUATIONS

Sec. 258.053. USE OF CERTAIN DRUGS

Sec. 258.054. USE OF X-RAY EQUIPMENT

CHAPTER 258. PRACTICE BY DENTIST

SUBCHAPTER A. DELEGATION BY DENTIST

Sec. 258.001.  IMPERMISSIBLE DELEGATIONS. A dentist may not delegate:

(1)  an act to an individual who, by board order, is prohibited from performing the act;

(2)  any of the following acts to a person not licensed as a dentist or dental hygienist:

(A)  the removal of calculus, deposits, or accretions from the natural and restored surfaces of exposed human teeth and restorations in the human mouth;

(B)  root planing or the smoothing and polishing of roughened root surfaces or exposed human teeth; or

(C)  any other act the delegation of which is prohibited by board rule;

(3)  any of the following acts to a person not licensed as a dentist:

(A)  comprehensive examination or diagnosis and treatment planning;

(B)  a surgical or cutting procedure on hard or soft tissue;

(C)  the prescription of a drug, medication, or work authorization;

(D)  the taking of an impression for a final restoration, appliance, or prosthesis;

(E)  the making of an intraoral occlusal adjustment;

(F)  direct pulp capping, pulpotomy, or any other endodontic procedure;

(G)  the final placement and intraoral adjustment of a fixed or removable appliance; or

(H)  the placement of any final restoration; or

(4)  the authority to an individual to administer a local anesthetic agent, inhalation sedative agent, parenteral sedative agent, or general anesthetic agent if the individual is not licensed as:

(A)  a dentist with a permit issued by the board for the procedure being performed, if a permit is required;

(B)  a certified registered nurse anesthetist licensed by the Board of Nurse Examiners, only if the delegating dentist holds a permit issued by the board for the procedure being performed, if a permit is required; or

(C)  a physician anesthesiologist licensed by the Texas State Board of Medical Examiners. (V.A.C.S. Art. 4551e-1, Subsec. (b) (part).)

Sec. 258.002.  DELEGATION TO DENTAL ASSISTANT. (a) A licensed dentist may delegate to a qualified and trained dental assistant acting under the dentist's direct supervision any dental act that a reasonable and prudent dentist would find is within the scope of sound dental judgment to delegate if:

(1)  in the opinion of the delegating dentist, the act:

(A)  can be properly and safely performed by the person to whom the dental act is delegated; and

(B)  is performed in a customary manner and is not in violation of this subtitle or any other statute; and

(2)  the person to whom the dental act is delegated does not represent to the public that the person is authorized to practice dentistry.

(b)  The board by rule shall establish guidelines regarding the types of dental acts that may be properly or safely delegated by a dentist, including a determination of which delegated dental acts, if any, require competency testing before a person may perform the act. (V.A.C.S. Art. 4551e-1, Subsecs. (b) (part), (d).)

Sec. 258.003.  RESPONSIBILITY OF DELEGATING DENTIST. A delegating dentist is responsible for a dental act performed by the person to whom the dentist delegates the act. (V.A.C.S. Art. 4551e-1, Subsec. (c).)

[Sections 258.004-258.050 reserved for expansion]

SUBCHAPTER B. GENERAL PRACTICE PROVISIONS

Sec. 258.051.  DENTIST RECORDS. (a) The records of a diagnosis made and treatment performed for and on a dental patient are the property of the dentist performing the dental service.

(b)  A dentist's records may not be sold, pledged as collateral, or transferred to any person other than the patient unless:

(1)  the other person is a dentist licensed by the board; and

(2)  the transfer is made in compliance with board rules.

(c)  This section does not prevent the voluntary submission of records to an insurance company to determine benefits. (V.A.C.S. Art. 4549-2.)

Sec. 258.052.  CASE HISTORIES AND PHYSICAL EVALUATIONS. (a) A dentist may take a complete case history and perform a complete physical evaluation that may be used to admit a patient to a hospital for the practice of dentistry if the activity is necessary in the exercise of due care in the practice of dentistry.

(b)  A dentist is not automatically entitled to membership on a hospital's medical staff or to exercise clinical privileges at a hospital solely because the dentist is licensed in this state or because the dentist is authorized to take a case history and perform a physical evaluation.

(c)  A dentist may not be denied membership on a hospital's medical staff or the right to the exercise of clinical privileges at a hospital solely because the person is a dentist rather than a physician. (V.A.C.S. Art. 4551k.)

Sec. 258.053.  USE OF CERTAIN DRUGS. (a) In this section, "narcotic drugs," "dangerous drugs," and "controlled substances" have the meanings defined or recognized by federal law or the law of this state.

(b)  A dentist may not:

(1)  prescribe, provide, obtain, order, administer, possess, dispense, give, or deliver to or for any person a narcotic drug, dangerous drug, or controlled substance:

(A)  that is not necessary or required; or

(B)  the use or possession of which would promote addiction to the drug or substance; or

(2)  aid, abet, or cause another person to engage in an action described by Subdivision (1). (V.A.C.S. Art. 4551h.)

Sec. 258.054.  USE OF X-RAY EQUIPMENT. (a) A dentist may authorize a qualified person to perform beam calibration and characterization, quality assurance, instrument specification, acceptance testing, shielding design, or protection analysis on radiation-emitting equipment or radiopharmaceuticals for a procedure that involves the diagnosis or treatment of disease or another dental condition in humans.

(b)  A dentist's authorization and the performance of authorized activities by a qualified person does not constitute the practice of medical physics under Chapter 602. (V.A.C.S. Art. 4551o.)

CHAPTER 259. PROHIBITED OR RESTRICTED COMMERCIAL OR

PROFESSIONAL ACTIVITIES

Sec. 259.001. FALSE STATEMENTS TO PATIENTS

Sec. 259.002. NOTIFICATION OF QUALIFICATIONS

Sec. 259.003. USE OF TRADE NAME

Sec. 259.004. DUTIES OF DENTIST IN CERTAIN EMPLOYMENT OR

CONTRACTUAL ARRANGEMENTS

Sec. 259.005. AUTHORIZED ADVERTISING RESTRICTIONS

Sec. 259.006. UNLAWFUL ADVERTISING IN GENERAL

Sec. 259.007. UNLAWFUL ADVERTISING: OUT-OF-STATE

PROVIDER

Sec. 259.008. UNPROFESSIONAL CONDUCT

CHAPTER 259. PROHIBITED OR RESTRICTED COMMERCIAL OR

PROFESSIONAL ACTIVITIES

Sec. 259.001.  FALSE STATEMENTS TO PATIENTS. A dentist may not, in the practice of dentistry, make a misrepresentation or a false or misleading statement to a patient or prospective patient. (V.A.C.S. Art. 4549a (part).)

Sec. 259.002.  NOTIFICATION OF QUALIFICATIONS. Each dental office shall post at or near the entrance of the office the name of, each degree received by, and each school attended by each dentist practicing in the office. (V.A.C.S. Art. 4549a (part).)

Sec. 259.003.  USE OF TRADE NAME. (a)  A person may use a corporation, company, association, or trade name.

(b)  An advertisement under a corporation, company, association, or trade name must include prominently the name of at least one dentist practicing under the name.

(c)  A person using a business or trade name described by Subsection (b) shall file with the board a list of each dentist who practices under that name and a list of each trade name used if that name is different from the name described by Subsection (b).

(d)  If information provided under Subsection (c) changes, the person must file updated information with the board not later than the 30th day after the date of the change. (V.A.C.S. Art. 4548e (part).)

Sec. 259.004.  DUTIES OF DENTIST IN CERTAIN EMPLOYMENT OR CONTRACTUAL ARRANGEMENTS. (a)  A person providing dental services under an agreement that allows another person to control or influence any aspect of the delivery of dental services, including a business or professional aspect, shall report to the board on request and in accordance with board rules:

(1)  information concerning the agreement;

(2)  the manner in which patients are billed;

(3)  the manner in which the dental service provider is paid and any information provided to patients concerning payment agreements; and

(4)  information concerning the service provider agreement provided to shareholders of organizations contracting with a dental service provider.

(b)  A person who practices dentistry and has another dentist practicing with or under the person is responsible for all professional acts performed under the name of the person, regardless of whether the dentist has an ownership interest or an employment or contractual relationship. This section does not affect an individual license holder's responsibilities and rights under this subtitle.

(c)  A statute relating to the practice of dentistry in this state may not be construed to prohibit a licensed dentist from maintaining more than one office in this state if the dentist:

(1)  assumes full legal responsibility and liability for the dental services provided in each office; and

(2)  complies with the requirements prescribed by board rules. (V.A.C.S. Art. 4548k.)

Sec. 259.005.  AUTHORIZED ADVERTISING RESTRICTIONS. Board rules adopted under Section 254.002 to regulate advertising may include restrictions that prohibit communications to the public that:

(1)  are false, misleading, or deceptive;

(2)  state an opinion regarding the quality of dental services;

(3)  appeal to an individual's anxiety in an excessive or unfair way;

(4)  intimidate or exert undue pressure or undue influence over a prospective patient;

(5)  create unjustified expectations concerning the potential result of a dental treatment;

(6)  refer to benefits or other attributes of dental procedures or products that involve significant risks without including realistic assessments of the safety and efficacy of those procedures or products;

(7)  contain statistical data, representations, or other information that is not susceptible to reasonable verification by the public;

(8)  refer to a fee for dental services without disclosing that additional fees may be involved in individual cases, if the possibility of additional fees may be reasonably predicted;

(9)  offer a discount for dental services without disclosing the total fee to which the discount will apply; or

(10)  fail to make truthful disclosure of the source and authorship of any message published under a dentist's byline. (V.A.C.S. Art. 4548f, Sec. 1(c) (part).)

Sec. 259.006.  UNLAWFUL ADVERTISING IN GENERAL. (a)  A person may not engage in false, misleading, or deceptive advertising in connection with the practice of dentistry.

(b)  A person regulated by the board may not engage in advertising that does not comply with the reasonable restrictions adopted by the board under Section 259.005.

(c)  For the first violation of the board's advertising restrictions, a person may not be prosecuted under this subtitle before the 31st day after the date the person has been given notice by certified or registered mail, return receipt requested, of the alleged violation. The notice must:

(1)  include a copy of the applicable portions of this subtitle and all board rules relating to advertising;

(2)  describe the alleged unlawful advertising;

(3)  identify the board restriction violated; and

(4)  include a statement informing the person that the person has 30 days from the date of the notice to cure the violation.

(d)  A person may be prosecuted if the violation is not cured within the prescribed time.

(e)  Subsection (c) does not apply to a subsequent violation of the board's advertising restrictions.

(f)  This section does not authorize the board to discipline a dentist for an act of an advertising agent that results in a communication to the public that violates the restrictions adopted by the board under Section 259.005 if the advertisement does not specify the name of the dentist or the name under which the dentist practices unless:

(1)  the advertising agent is owned or controlled by the dentist;

(2)  the dentist provided to the advertising agent for distribution to the public any information that does not comply with the board's restrictions; or

(3)  the content of the advertising is determined by the dentist.

(g)  The board may bring an action in district court to enjoin an advertising agent from using any advertisement, marketing scheme, or practice that violates the restrictions adopted by the board under Section 259.005. Notwithstanding any other provision of this subtitle, an injunction under this section is the board's sole remedy against an advertising or marketing agent for a violation of this section.

(h)  The remedies provided in this section are in addition to the procedures and remedies provided for in Subchapter E, Chapter 17, Business & Commerce Code. (V.A.C.S. Art. 4548f, Secs. 1(a) (part), (d), (e), (f), (g).)

Sec. 259.007.  UNLAWFUL ADVERTISING: OUT-OF-STATE PROVIDER. A person who is not domiciled and located in this state and subject to the laws of this state may not advertise or cause or permit to be advertised, published, directly or indirectly, printed, or circulated in this state a notice, statement, or offer of any service, drug, or fee relating to the practice of dentistry, unless the advertising conspicuously discloses that the person is not licensed to practice dentistry in this state. (V.A.C.S. Art. 4548f, Sec. 2.)

Sec. 259.008.  UNPROFESSIONAL CONDUCT. A person may not directly or indirectly engage in unprofessional conduct relating to dentistry, including:

(1)  obtaining a fee by fraud or misrepresentation;

(2)  verbally soliciting dental business if the solicitation is:

(A)  directed to an individual or a group of less than five individuals; and

(B)  made for the primary purpose of attracting the individual or the group to a particular dental practice;

(3)  employing, directly or indirectly, or permitting an unlicensed person to perform dental services on a person, except as authorized by law;

(4)  claiming or circulating a statement of:

(A)  professional superiority; or

(B)  performance of professional services in a superior manner;

(5)  forging, altering, or changing a legal document relating to the practice of dentistry, including a diploma, license, registration certificate, or transcript;

(6)  being a party to or benefiting from the forgery, alteration, or changing of a legal document relating to the practice of dentistry;

(7)  making a false statement or misusing a legal document relating to the practice of dentistry;

(8)  accepting employment as a dentist under a false, misleading, or deceptive referral scheme;

(9)  advertising the performance of dental work without pain or discomfort to the patient; or

(10)  advertising a prediction of future satisfaction or success of a dental service. (V.A.C.S. Art. 4548g.)

CHAPTER 260. OPERATION OF CERTAIN DENTAL PRACTICES

Sec. 260.001. EMPLOYMENT BY ESTATE OF DENTIST OR PERSON ACTING

FOR MENTALLY INCOMPETENT DENTIST

Sec. 260.002. EMPLOYMENT BY CERTAIN NONPROFIT HEALTH

ORGANIZATIONS

Sec. 260.003. EMPLOYMENT BY ORGANIZATIONS SERVING UNDERSERVED

POPULATIONS

Sec. 260.004. EMPLOYMENT BY GOVERNMENTAL ENTITY

CHAPTER 260. OPERATION OF CERTAIN DENTAL PRACTICES

Sec. 260.001.  EMPLOYMENT BY ESTATE OF DENTIST OR PERSON ACTING FOR MENTALLY INCOMPETENT DENTIST. (a) This subtitle does not prevent a person who is the administrator or executor of the estate of a dentist or a person who is legally authorized to act for a dentist adjudicated to be mentally incompetent from employing a licensed dentist to:

(1)  carry on the deceased or mentally incompetent dentist's practice for a reasonable period, as determined by the board; or

(2)  conclude the affairs of the practice, including the sale of any assets.

(b)  This subtitle does not prevent a licensed dentist from working for a person described by Subsection (a) during the administration of the estate or the period of incompetency. (V.A.C.S. Art. 4551m.)

Sec. 260.002.  EMPLOYMENT BY CERTAIN NONPROFIT HEALTH ORGANIZATIONS. (a) The board shall, on a form and under rules adopted by the board, approve and certify a health organization to contract with or employ dentists licensed by the board if the organization, in its application to the board, presents satisfactory proof to the board that the organization:

(1)  is a nonprofit corporation under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) and Section 501(c)(3), Internal Revenue Code of 1986 (26 U.S.C. Section 501); and

(2)  is organized and operated as:

(A)  a migrant, community, or homeless health center under 42 U.S.C. Section 254b or 254c; or

(B)  a federally qualified health center under 42 U.S.C. Section 1396d(l)(2)(B).

(b)  A dentist providing dental services under Subsection (a) shall provide those services free of charge or at a reduced fee equal to the patient's ability to pay in strict compliance with 42 U.S.C. Section 254b or 254c.

(c)  The board may refuse to approve or certify a health organization that applies to the board under this section if the board determines that the nonprofit corporation is established, organized, or operated in violation of or with the intent to circumvent this section. (V.A.C.S. Art. 4551n, Sec. 1.)

Sec. 260.003.  EMPLOYMENT BY ORGANIZATIONS SERVING UNDERSERVED POPULATIONS. A dentist licensed by the board may be employed by or contract with an organization if:

(1)  the organization is a nonprofit corporation under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) and Section 501(c)(3), Internal Revenue Code of 1986 (26 U.S.C. Section 501); and

(2)  the organization is:

(A)  approved by the board as an organization that provides services to underserved populations for no fee or a reduced fee; or

(B)  a clinic that provides dental services primarily to individuals who have acquired immune deficiency syndrome or the human immunodeficiency virus. (V.A.C.S. Art. 4551n, Sec. 3.)

Sec. 260.004.  EMPLOYMENT BY GOVERNMENTAL ENTITY. A dentist licensed by the board may be employed by or contract with a governmental entity that provides dental services under federal or state law. (V.A.C.S. Art. 4551n, Sec. 2.)

CHAPTER 261. CONFIDENTIALITY AND IMMUNITY OF DENTAL PEER

REVIEW COMMITTEE

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 261.001. DEFINITIONS

[Sections 261.002-261.050 reserved for expansion]

SUBCHAPTER B. CONFIDENTIALITY AND DISCLOSURE

OF INFORMATION

Sec. 261.051. CONFIDENTIALITY OF PROCEEDINGS

Sec. 261.052. DISCLOSURE OF INFORMATION

Sec. 261.053. DISCLOSURE TO AFFECTED DENTIST

Sec. 261.054. COMMITTEE'S EVIDENTIARY PRIVILEGE

Sec. 261.055. COMPLIANCE WITH BOARD SUBPOENAS

[Sections 261.056-261.100 reserved for expansion]

SUBCHAPTER C. CIVIL LIABILITY

Sec. 261.101. COMMITTEE IMMUNITY FROM SUIT

Sec. 261.102. COMMITTEE PARTICIPANTS' IMMUNITY FROM SUIT

Sec. 261.103. IMMUNITY FROM SUIT

Sec. 261.104. COUNTERCLAIM FOR FRIVOLOUS SUIT

CHAPTER 261. CONFIDENTIALITY AND IMMUNITY OF DENTAL PEER

REVIEW COMMITTEE

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 261.001.  DEFINITIONS. In this chapter:

(1)  "Dental association" means an organization that is composed of members who are dentists and incorporated under the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) or exempt from the payment of federal income taxes under Section 501(a) of the Internal Revenue Code of 1986 as an organization described by Section 501(c) of the Internal Revenue Code of 1986.

(2)  "Dental peer review committee" means a peer review, judicial, or grievance committee of a dental association authorized to evaluate the quality of dental services or the competence of dentists. The term includes a member, employee, assistant, investigator, attorney, or other agent serving the committee. (V.A.C.S. Art. 4551i, Secs. 1, 2.)

[Sections 261.002-261.050 reserved for expansion]

SUBCHAPTER B. CONFIDENTIALITY AND

DISCLOSURE OF INFORMATION

Sec. 261.051.  CONFIDENTIALITY OF PROCEEDINGS. (a) Except as otherwise provided by this chapter:

(1)  a dental peer review committee's proceedings and records are confidential; and

(2)  communications made to a dental peer review committee are privileged.

(b)  If a court makes a preliminary finding that the proceedings or records of or the communications made to a dental peer review committee are relevant to an anticompetitive action or an action brought under federal civil rights provisions (42 U.S.C. Section 1983), the proceedings, records, or communications are not confidential to the extent they are relevant to the action. (V.A.C.S. Art. 4551i, Sec. 4.)

Sec. 261.052.  DISCLOSURE OF INFORMATION. Communications made to a dental peer review committee and the records and proceedings of the committee may be disclosed to:

(1)  another dental peer review committee;

(2)  an appropriate state or federal agency;

(3)  a national accreditation body; or

(4)  the registration or licensing entity in any state. (V.A.C.S. Art. 4551i, Sec. 5.)

Sec. 261.053.  DISCLOSURE TO AFFECTED DENTIST. (a) Disclosure to the affected dentist of confidential peer review committee information pertinent to the matter under review does not waive the confidentiality provisions of this chapter.

(b)  If a dental peer review committee takes action that may result in censure or a license suspension, restriction, limitation, or revocation by the board or in the denial of membership or privileges in a health care entity, the committee shall give the affected dentist:

(1)  a written copy of the recommendation of the committee; and

(2)  a copy of the final decision, including a statement of the basis for the decision. (V.A.C.S. Art. 4551i, Sec. 6.)

Sec. 261.054.  COMMITTEE'S EVIDENTIARY PRIVILEGE. (a) Unless disclosure is required or authorized by law, records or determinations of or communications to a dental peer review committee are not subject to subpoena or discovery and are not admissible as evidence in a civil judicial or administrative proceeding unless the committee executes in writing a waiver of the confidentiality privilege.

(b)  The evidentiary privilege created by this chapter may be invoked by any person in any civil judicial or administrative proceeding unless the person has secured a waiver of the privilege executed in writing by the presiding officer, assistant presiding officer, or secretary of the affected dental peer review committee.

(c)  If a dental peer review committee or a person participating in peer review named as a defendant in a civil action filed as a result of participation in peer review may use otherwise confidential information in the person's defense or in a claim or suit under Section 261.104, the plaintiff in the proceeding may disclose the records or determinations of a peer review committee or communications made to a peer review committee in rebuttal to information supplied by the defendant.

(d)  A person seeking access to privileged information must plead and prove waiver of the privilege.

(e)  A member, employee, or agent of a dental peer review committee who provides access to privileged communications or records in cooperation with a law enforcement authority in a criminal investigation is not considered to have waived a privilege established under this chapter. (V.A.C.S. Art. 4551i, Sec. 7.)

Sec. 261.055.  COMPLIANCE WITH BOARD SUBPOENAS. (a) A person, including the governing body and medical staff of a health care entity, shall comply with a subpoena for a document or information issued by the board as authorized by law.

(b)  The disclosure of a document or information under a board subpoena does not constitute a waiver of the privilege established under this chapter.

(c)  Failure to comply with a board subpoena constitutes grounds for disciplinary action against the facility or individual by the appropriate licensing board. (V.A.C.S. Art. 4551i, Sec. 8.)

[Sections 261.056-261.100 reserved for expansion]

SUBCHAPTER C. CIVIL LIABILITY

Sec. 261.101.  COMMITTEE IMMUNITY FROM SUIT. (a) In the absence of fraud, conspiracy, or malice, a dental peer review committee is not subject to a suit for damages arising from investigating a disagreement or complaint, holding a hearing to determine facts, or making an evaluation, recommendation, decision, or award involving a dentist who is a member of a dental association or another dentist, a dental patient, or a third party requesting the committee's services.

(b)  The purpose of this section is to protect a dental peer review committee from being harassed and threatened with legal action in performing official duties. (V.A.C.S. Art. 4551i, Sec. 3.)

Sec. 261.102.  COMMITTEE PARTICIPANTS' IMMUNITY FROM SUIT. A cause of action does not accrue against a member, agent, or employee of a dental peer review committee for an act, statement, determination, or recommendation made or an act reported, without malice, in the course of peer review under this chapter. (V.A.C.S. Art. 4551i, Sec. 9.)

Sec. 261.103.  IMMUNITY FROM SUIT. A person is immune from civil liability if:

(1)  the person reports or furnishes information to a dental peer review committee or the board in good faith;

(2)  the person:

(A)  is a member, employee, or agent of the board, of a dental peer review committee, or of a dental organization committee or a dental organization who takes an action or makes a recommendation within the scope of the functions of a peer review program; and

(B)  acts without malice and in the reasonable belief that the action or recommendation is warranted by the facts known to the person; or

(3)  the person, including a health care entity or dental peer review committee, without malice participates in a dental peer review activity or furnishes a record, information, or assistance to a dental peer review committee or the board. (V.A.C.S. Art. 4551i, Secs. 10, 12.)

Sec. 261.104.  COUNTERCLAIM FOR FRIVOLOUS SUIT. A dental peer review committee, a person participating in peer review, or any other person named as a defendant in a civil action filed as a result of participation in peer review may file a counterclaim in a pending action or may prove a cause of action in a subsequent suit to recover defense costs, including court costs, attorney's fees, and damages incurred as a result of the civil action, if the plaintiff's original suit is determined:

(1)  to be frivolous; or

(2)  to have been brought in bad faith. (V.A.C.S. Art. 4551i, Sec. 11.)

CHAPTER 262. REGULATION OF DENTAL HYGIENISTS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 262.001. DEFINITIONS

Sec. 262.002. PRACTICE OF DENTAL HYGIENE

Sec. 262.003. EXEMPTIONS

[Sections 262.004-262.050 reserved for expansion]

SUBCHAPTER B. DENTAL HYGIENE ADVISORY COMMITTEE

Sec. 262.051. DENTAL HYGIENE ADVISORY COMMITTEE

Sec. 262.052. ADVISORY COMMITTEE MEMBERSHIP

Sec. 262.053. MEMBERSHIP RESTRICTION

Sec. 262.054. TERMS

Sec. 262.055. PRESIDING OFFICER

Sec. 262.056. PER DIEM; REIMBURSEMENT

[Sections 262.057-262.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES OF BOARD RELATING TO

DENTAL HYGIENISTS

Sec. 262.101. BOARD POWERS AND DUTIES

Sec. 262.102. RULEMAKING AUTHORITY OF BOARD

Sec. 262.103. NOTICE OF MEETINGS

[Sections 262.104-262.150 reserved for expansion]

SUBCHAPTER D. PRACTICE BY LICENSE HOLDER

Sec. 262.151. DELEGATION OF DUTIES BY DENTIST

Sec. 262.152. PERFORMANCE OF DELEGATED DUTIES

[Sections 262.153-262.200 reserved for expansion]

SUBCHAPTER E. PROHIBITED PRACTICES; CIVIL LIABILITY;

PENALTIES

Sec. 262.201. PROHIBITED PRACTICE

Sec. 262.202. CIVIL LIABILITY

Sec. 262.203. CRIMINAL PENALTY

CHAPTER 262. REGULATION OF DENTAL HYGIENISTS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 262.001.  DEFINITIONS. In this chapter:

(1)  "Advisory committee" means the Dental Hygiene Advisory Committee.

(2)  "Dental hygienist" means a person who practices dental hygiene under a license issued by the board under Chapter 256. (V.A.C.S. Art. 4551e, Sec. 1 (part); New.)

Sec. 262.002.  PRACTICE OF DENTAL HYGIENE. (a) A person practices dental hygiene if the person:

(1)  removes accumulated matter, tartar, deposits, accretions, or stains, other than mottled enamel stains, from the natural and restored surface of exposed human teeth and restorations in the human mouth;

(2)  smoothes roughened root surfaces;

(3)  polishes exposed human teeth, restorations in the human mouth, or roughened root surfaces;

(4)  topically applies drugs to the surface tissues of the human mouth or the exposed surface of human teeth;

(5)  makes dental x-rays; and

(6)  performs any other service, task, or procedure prescribed by board rule.

(b)  A person legally practicing dental hygiene does not violate state law regulating the practice of dentistry. (V.A.C.S. Art. 4551e, Secs. 1 (part), 16.)

Sec. 262.003.  EXEMPTIONS. This chapter does not apply to:

(1)  a licensed dentist practicing dentistry in this state, except as provided by Subchapter D;

(2)  a physician authorized to practice medicine in this state; or

(3)  an employee of a licensed dentist who makes dental x-rays in the office of and under the supervision of a dentist practicing dentistry in this state. (V.A.C.S. Art. 4551e, Sec. 15.)

[Sections 262.004-262.050 reserved for expansion]

SUBCHAPTER B. DENTAL HYGIENE ADVISORY COMMITTEE

Sec. 262.051.  DENTAL HYGIENE ADVISORY COMMITTEE. The advisory committee shall advise the board on matters relating to dental hygiene. (V.A.C.S. Art. 4551e, Sec. 4A(c) (part).)

Sec. 262.052.  ADVISORY COMMITTEE MEMBERSHIP. The advisory committee consists of six members as follows:

(1)  three dental hygienist members appointed by the governor;

(2)  one dentist member appointed by the board; and

(3)  two members who represent the public appointed by the governor. (V.A.C.S. Art. 4551e, Sec. 4A(b)(1).)

Sec. 262.053.  MEMBERSHIP RESTRICTION. A person is not eligible for appointment as a member of the advisory committee if the person is a member of the board. (V.A.C.S. Art. 4551e, Sec. 4A(b)(4).)

Sec. 262.054.  TERMS. Members of the advisory committee serve staggered six-year terms with the terms of one-third of the members expiring on February 1 of each odd-numbered year. (V.A.C.S. Art. 4551e, Sec. 4A(b)(2).)

Sec. 262.055.  PRESIDING OFFICER. The advisory committee shall elect a presiding officer from its members to serve a one-year term. (V.A.C.S. Art. 4551e, Sec. 4A(b)(3).)

Sec. 262.056.  PER DIEM; REIMBURSEMENT. (a) An advisory committee member is entitled to:

(1)  the per diem set by the General Appropriations Act for each day the member engages in committee business; and

(2)  transportation expenses as provided by the General Appropriations Act.

(b)  An advisory committee member is not entitled to reimbursement for travel expenses except as provided by Subsection (a)(2). (V.A.C.S. Art. 4551e, Sec. 4A(d).)

[Sections 262.057-262.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES OF BOARD RELATING TO

DENTAL HYGIENISTS

Sec. 262.101.  BOARD POWERS AND DUTIES. The board shall:

(1)  administer this chapter; and

(2)  regulate all matters concerning dental hygienists and the practice of dental hygiene. (V.A.C.S. Art. 4551e, Sec. 4 (part).)

Sec. 262.102.  RULEMAKING AUTHORITY OF BOARD. (a) The board shall adopt and enforce rules that are necessary and advisable to carry out the purposes of and to enforce this chapter, including rules relating to professional conduct for dental hygienists.

(b)  As necessary to protect public health and safety, the board may adopt and enforce a rule to establish the number of dental hygienists a dentist may employ.

(c)  The board may not adopt a rule relating to the practice of dental hygiene before the 31st day after the date the proposed rule is submitted to the advisory committee for review and comment. (V.A.C.S. Art. 4551e, Secs. 4 (part), 4A(c) (part); Art. 4551e-1, Subsec. (g).)

Sec. 262.103.  NOTICE OF MEETINGS. To ensure that the advisory committee properly exercises its advisory powers, the board shall provide the advisory committee with timely notice of each board meeting and a copy of the minutes of each meeting. (V.A.C.S. Art. 4551e, Sec. 4A(c) (part).)

[Sections 262.104-262.150 reserved for expansion]

SUBCHAPTER D. PRACTICE BY LICENSE HOLDER

Sec. 262.151.  DELEGATION OF DUTIES BY DENTIST. (a) A licensed dentist may delegate orally or in writing a service, task, or procedure to a dental hygienist who is under the supervision and responsibility of the dentist, if:

(1)  the dental hygienist is licensed to perform the service, task, or procedure;

(2)  the supervising dentist examines the patient:

(A)  at the time the service, task, or procedure is performed by the dental hygienist; or

(B)  during the 12 calendar months preceding the date of performance of the service, task, or procedure by the dental hygienist; and

(3)  the dental hygienist does not:

(A)  diagnose a dental disease or ailment;

(B)  prescribe a treatment or a regimen;

(C)  prescribe, order, or dispense medication; or

(D)  perform any procedure that is irreversible or involves the intentional cutting of soft or hard tissue by any means.

(b)  A licensed dentist may delegate to a dental hygienist any act that a dentist may delegate to a dental assistant.

(c)  A dentist is not required to be on the premises when the dental hygienist performs a delegated act.

(d)  This chapter does not prevent a dentist from authorizing a dental hygienist employed by the dentist to:

(1)  instruct and educate a patient in proper oral hygiene; or

(2)  provide to a patient a medication ordered by the dentist.

(e)  This chapter does not prevent a dental hygienist from incidentally removing cementum during root planing. (V.A.C.S. Art. 4551e, Sec. 3(a); Art. 4551e-1, Subsec. (f).)

Sec. 262.152.  PERFORMANCE OF DELEGATED DUTIES. (a) A dental hygienist shall practice dental hygiene:

(1)  in a supervising dentist's dental office; or

(2)  in an alternate setting, including a nursing home or the patient's home, under the supervision of a supervising dentist.

(b)  A dental hygienist who practices dental hygiene under Subsection (a)(1) must be employed by a supervising dentist who is licensed by the board.

(c)  This section does not apply if the dental hygienist is employed by a school, hospital, state institution, public health clinic, or other institution that has been approved by the board as a proper location for the performance of a dental procedure. (V.A.C.S. Art. 4551e, Sec. 3(b) (part).)

[Sections 262.153-262.200 reserved for expansion]

SUBCHAPTER E. PROHIBITED PRACTICES; CIVIL LIABILITY;

PENALTIES

Sec. 262.201.  PROHIBITED PRACTICE. A dental hygienist may not practice or offer to practice dental hygiene under a name other than the name appearing on the person's license. (V.A.C.S. Art. 4551e, Sec. 13 (part).)

Sec. 262.202.  CIVIL LIABILITY. A dental hygienist who administers to a person cardiopulmonary resuscitation or other emergency care in an emergency situation is not liable to the person for damages unless the emergency care is performed in a wilfully or wantonly negligent manner. (V.A.C.S. Art. 4551e, Sec. 6.)

Sec. 262.203.  CRIMINAL PENALTY. (a) A person commits an offense if the person violates a provision of this chapter or Chapter 256 relating to the regulation of dental hygienists.

(b)  An offense under Subsection (a) is punishable by:

(1)  a fine of not less than $100 or more than $1,000;

(2)  confinement in jail for not less than one month or more than one year; or

(3)  both the fine and confinement.

(c)  Each day of a violation under this section is a separate offense. (V.A.C.S. Art. 4551e, Sec. 18.)

CHAPTER 263. LICENSE DENIAL AND DISCIPLINARY PROCEEDINGS

Sec. 263.001. GROUNDS FOR REFUSAL TO EXAMINE OR

ISSUE LICENSE

Sec. 263.002. GROUNDS FOR DISCIPLINARY ACTION IN GENERAL

Sec. 263.003. HEARING

Sec. 263.004. TEMPORARY SUSPENSION IN EMERGENCY

Sec. 263.005. PROBATION

Sec. 263.006. SUSPENSION OR REVOCATION REQUIRED FOR

CERTAIN DRUG OFFENSES

Sec. 263.007. INFORMAL PROCEEDING

Sec. 263.008. SUBPOENA

Sec. 263.009. APPEAL

CHAPTER 263. LICENSE DENIAL AND DISCIPLINARY PROCEEDINGS

Sec. 263.001.  GROUNDS FOR REFUSAL TO EXAMINE OR ISSUE LICENSE. The board may refuse to examine a person or to issue a dental license or a dental hygienist license to a person if the person:

(1)  presents to the board fraudulent or false evidence of the person's qualification for examination or license;

(2)  is guilty of any illegality, fraud, or deception during the examination or the process to secure a license;

(3)  is habitually intoxicated or is addicted to drugs;

(4)  commits a dishonest or illegal practice in or connected to dentistry or dental hygiene;

(5)  is convicted of a felony under a federal law or law of this state; or

(6)  is found to have violated a law of this state relating to the practice of dentistry within the 12 months preceding the date the person filed an application for a license to practice dentistry or dental hygiene. (V.A.C.S. Art. 4549, Sec. 1.)

Sec. 263.002.  GROUNDS FOR DISCIPLINARY ACTION IN GENERAL. (a) The board, after notice and hearing, may reprimand a person who holds a license issued under this subtitle, impose a fine on a person licensed under this subtitle, impose an administrative penalty under Subchapter A, Chapter 264, on a person who holds a license under this subtitle, place on probation with conditions a person whose license has been suspended, or revoke or suspend a person's license issued under this subtitle if the person:

(1)  is adjudged under the law to be insane;

(2)  is convicted of a misdemeanor involving fraud or a felony under federal law or the law of any state;

(3)  practices dentistry or dental hygiene in a manner that constitutes dishonorable conduct, malpractice, or gross incompetency;

(4)  fails to treat a patient according to the standard of care in the practice of dentistry or dental hygiene;

(5)  engages in deception or misrepresentation in soliciting or obtaining patronage;

(6)  obtains a license by fraud or misrepresentation;

(7)  is habitually intoxicated or addicted to drugs;

(8)  holds a dental license and employs, permits, or has employed or permitted a person not licensed to practice dentistry to practice dentistry in an office of the dentist that is under the dentist's control or management;

(9)  fails to use proper diligence in the person's practice or fails to safeguard the person's patients against avoidable infections;

(10)  violates or refuses to comply with a law relating to the regulation of dentists or dental hygienists;

(11)  is physically or mentally incapable of practicing in a manner that is safe for the person's dental patients;

(12)  is negligent in performing dental services and that negligence causes injury or damage to a dental patient;

(13)  holds a license or certificate to practice dentistry or dental hygiene in another state and that state, based on an act by the person that is the same as an act described in this section:

(A)  reprimands the person;

(B)  suspends or revokes the person's license or certificate or places the person on probation; or

(C)  imposes another restriction on the person's practice; or

(14)  knowingly provides or agrees to provide dental care in a manner that violates a federal or state law that:

(A)  regulates a plan to provide, arrange for, pay for, or reimburse any part of the cost of dental care services; or

(B)  regulates the business of insurance.

(b)  If a person holds a license to practice dentistry or dental hygiene, the board may reprimand or impose a fine on the person, place the person's license on probation, or suspend or revoke the person's license under Subsection (a)(10) only if a majority of the board determines that the person has committed an act described by Subsection (a)(10). (V.A.C.S. Art. 4548h, Sec. 2(a) (part); Art. 4549, Sec. 2.)

Sec. 263.003.  HEARING. A person licensed under this subtitle is entitled to a hearing under Chapter 2001, Government Code, if the board proposes to:

(1)  refuse to examine the person;

(2)  reprimand or impose a fine on the person;

(3)  place the person on probation after the person's license has been suspended; or

(4)  suspend or revoke the license of the person. (V.A.C.S. Art. 4548h, Sec. 2(a) (part); Art.  4549, Secs. 3(a), (b) (part).)

Sec. 263.004.  TEMPORARY SUSPENSION IN EMERGENCY. (a) If the board or an executive committee of the board determines from the evidence or information presented that the continued practice by a person licensed under this subtitle would constitute a clear, imminent, or continuing threat to a person's physical health or well-being, the board or the executive committee shall temporarily suspend the person's license.

(b)  The board may temporarily suspend a license under this section without notice or hearing if at the time of the temporary suspension the board or the executive committee requests the State Office of Administrative Hearings to set a date for a hearing on the temporary suspension.

(c)  The State Office of Administrative Hearings shall hold a hearing not later than the 14th day after the date the license is suspended unless the license holder requests a continuance. The State Office of Administrative Hearings shall hold a second hearing on the suspension not later than the 60th day after:

(1)  the date the license is temporarily suspended; or

(2)  the date specified in the continuance requested by the license holder.

(d)  If the State Office of Administrative Hearings does not hold a hearing within the time provided by Subsection (c), the suspended license is automatically reinstated. (V.A.C.S. Art. 4548h, Sec. 2(d).)

Sec. 263.005.  PROBATION. If a license suspension is probated, the board may require the license holder to:

(1)  report regularly to the board on matters that are the basis of the probation;

(2)  limit practice to the areas prescribed by the board; or

(3)  continue or review professional education until the license holder attains a degree of skill satisfactory to the board in the areas that are the basis of the probation. (V.A.C.S. Art. 4548h, Sec. 2(c).)

Sec. 263.006.  SUSPENSION OR REVOCATION REQUIRED FOR CERTAIN DRUG OFFENSES. (a) The board shall suspend a license holder's license issued under this subtitle if it is determined at an administrative hearing that the person has been convicted of a felony under Chapter 481 or 483, Health and Safety Code, or Section 485.033, Health and Safety Code.

(b)  The board shall revoke the person's license on the person's final conviction.

(c)  The board may not reinstate or reissue a license suspended or revoked under this section unless an express determination is made that the reinstatement or reissuance of the license is in the best interests of the public and the person whose license was suspended or revoked. The board must base that determination on substantial evidence contained in an investigative report. (V.A.C.S. Art. 4549-1 (part).)

Sec. 263.007.  INFORMAL PROCEEDING. (a) The board by rule shall adopt procedures governing:

(1)  informal disposition of a contested case under Section 2001.056, Government Code; and

(2)  an informal proceeding held in compliance with Section 2001.054, Government Code.

(b)  Rules adopted under this section must:

(1)  provide the complainant, if applicable and permitted by law, an opportunity to be heard;

(2)  provide the license holder an opportunity to be heard; and

(3)  require the presence of a member of the board's legal staff, if the board has a legal staff, or, if the board does not have a legal staff, an attorney from the attorney general's office to advise the board or the board's employees. (V.A.C.S. Art. 4548h, Secs. 1(i), (j).)

Sec. 263.008.  SUBPOENA. (a)  The board may request the attorney general to file suit against a person who fails to comply with a subpoena issued by the board to enforce the subpoena. The suit must be filed in a Travis County district court or in a district court in the county in which a hearing conducted by the board may be held.

(b)  The court on finding that good cause exists for the issuance of the subpoena shall order the person to comply with the subpoena. (V.A.C.S. Art. 4549-1.1 (part).)

Sec. 263.009.  APPEAL. A person aggrieved by a decision of the board under this chapter is entitled to appeal as provided by Chapter 2001, Government Code. (V.A.C.S. Art. 4548h, Sec. 3(a); Art. 4549, Sec. 3(b) (part).)

CHAPTER 264. PENALTIES AND ENFORCEMENT PROVISIONS

SUBCHAPTER A. ADMINISTRATIVE PENALTY

Sec. 264.001. IMPOSITION OF PENALTY

Sec. 264.002. AMOUNT OF PENALTY

Sec. 264.003. REPORT AND NOTICE OF VIOLATION AND PENALTY

Sec. 264.004. PENALTY TO BE PAID OR HEARING REQUESTED

Sec. 264.005. HEARING

Sec. 264.006. DECISION BY BOARD

Sec. 264.007. OPTIONS FOLLOWING DECISION: PAY OR APPEAL

Sec. 264.008. COLLECTION OF PENALTY

Sec. 264.009. DETERMINATION BY COURT

Sec. 264.010. REMITTANCE OF PENALTY AND INTEREST

Sec. 264.011. INFORMAL ASSESSMENT OF ADMINISTRATIVE PENALTY

Sec. 264.012. ADMINISTRATIVE PROCEDURE

[Sections 264.013-264.050 reserved for expansion]

SUBCHAPTER B. INJUNCTION

Sec. 264.051. INJUNCTION

Sec. 264.052. REPRESENTATION OF STATE

Sec. 264.053. REMEDIES CUMULATIVE

[Sections 264.054-264.100 reserved for expansion]

SUBCHAPTER C. CIVIL PENALTY

Sec. 264.101. CIVIL PENALTY

Sec. 264.102. COLLECTION OF CIVIL PENALTY

[Sections 264.103-264.150 reserved for expansion]

SUBCHAPTER D. CRIMINAL PENALTY

Sec. 264.151. CRIMINAL PENALTY

CHAPTER 264. PENALTIES AND ENFORCEMENT PROVISIONS

SUBCHAPTER A. ADMINISTRATIVE PENALTY

Sec. 264.001.  IMPOSITION OF PENALTY. The board may impose an administrative penalty on a person licensed or regulated under this subtitle who violates this subtitle or a rule or order adopted under this subtitle. (V.A.C.S. Art. 4548j, Subsec. (a).)

Sec. 264.002.  AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $5,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

(b)  The executive director or a board subcommittee, of which, at least one member is a public member of the board, shall determine the amount of the penalty based on a standardized penalty schedule. The board by rule shall develop the schedule based on:

(1)  the seriousness of the violation, including:

(A)  the nature, circumstances, extent, and gravity of the violation; and

(B)  the hazard or potential hazard created to the health, safety, or welfare of the public;

(2)  the economic damage to property or the environment caused by the violation;

(3)  the history of previous violations;

(4)  the amount necessary to deter a future violation;

(5)  efforts made to correct the violation; and

(6)  any other matter that justice may require. (V.A.C.S. Art. 4548j, Subsecs. (b), (c).)

Sec. 264.003.  REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If the executive director or a board subcommittee determines that a violation has occurred, the executive director or board subcommittee may issue to the board a report stating:

(1)  the facts on which the determination is based; and

(2)  the recommendation of the executive director or the subcommittee on the imposition of the administrative penalty, including a recommendation on the amount of the penalty.

(b)  Not later than the 14th day after the date the report is approved by the board, the executive director shall give written notice of the report to the person on whom the penalty may be imposed. The notice may be given by certified mail. The notice must:

(1)  include a notice of each alleged violation;

(2)  state the amount of the recommended penalty; and

(3)  inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4548j, Subsecs. (d), (e).)

Sec. 264.004.  PENALTY TO BE PAID OR HEARING REQUESTED. (a)  Not later than the 20th day after the date the person receives the notice, the person may:

(1)  accept, in writing, the executive director's or subcommittee's determination and recommended administrative penalty; or

(2)  make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both.

(b)  If the person accepts the determination and recommended penalty, the board by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Art. 4548j, Subsecs. (f), (g).)

Sec. 264.005.  HEARING. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the executive director shall set a hearing and give notice of the hearing to the person.

(b)  An administrative law judge of the State Office of Administrative Hearings shall hold the hearing.

(c)  The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the board a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 4548j, Subsec. (h) (part).)

Sec. 264.006.  DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the board by order may determine that:

(1)  a violation occurred and impose an administrative penalty; or

(2)  a violation did not occur.

(b)  The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4548j, Subsecs. (h) (part), (i).)

Sec. 264.007.  OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall:

(1)  pay the administrative penalty;

(2)  pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or

(3)  without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.

(b)  Within the 30-day period, a person who acts under Subsection (a)(3) may:

(1)  stay enforcement of the penalty by:

(A)  paying the penalty to the court for placement in an escrow account; or

(B)  giving to the court a supersedeas bond that is approved by the court and that is:

(i)  for the amount of the penalty; and

(ii)  effective until judicial review of the board's order is final; or

(2)  request the court to stay enforcement of the penalty by:

(A)  filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and

(B)  giving a copy of the affidavit to the executive director by certified mail.

(c)  On receipt of a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.

(d)  The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4548j, Subsecs. (j), (k), (l).)

Sec. 264.008.  COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4548j, Subsec. (m).)

Sec. 264.009.  DETERMINATION BY COURT. (a)  If the court sustains the determination that a violation has occurred after the court reviews the board's order imposing an administrative penalty, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced penalty.

(b)  If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4548j, Subsec. (o).)

Sec. 264.010.  REMITTANCE OF PENALTY AND INTEREST. (a)  If after judicial review, the penalty is reduced or not upheld by the court, the court shall, after the judgment becomes final:

(1)  order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or

(2)  order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.

(b)  The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest is paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4548j, Subsec. (p).)

Sec. 264.011.  INFORMAL ASSESSMENT OF ADMINISTRATIVE PENALTY. This subchapter does not prevent the board from assessing an administrative penalty using an informal proceeding under Section 263.003. (V.A.C.S. Art. 4548j, Subsec. (s).)

Sec. 264.012.  ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4548j, Subsec. (r).)

[Sections 264.013-264.050 reserved for expansion]

SUBCHAPTER B. INJUNCTION

Sec. 264.051.  INJUNCTION. (a) The state shall file suit for injunction against a person who practices or intends to practice dentistry in violation of state law. The suit shall be filed in the county in which the defendant practices or intends to practice dentistry.

(b)  The state is not required to demonstrate that any person was injured by the alleged prohibited practice.

(c)  If the defendant is found to have been unlawfully practicing dentistry or to be about to provide services in a manner that is the unlawful practice of dentistry, the court shall permanently enjoin the defendant from practicing dentistry in violation of law. (V.A.C.S. Art. 4551c (part).)

Sec. 264.052.  REPRESENTATION OF STATE. The attorney general or the district attorney or county attorney of the county in which the unlawful acts occurred shall represent the state in a suit under this subchapter. (V.A.C.S. Art. 4551c (part).)

Sec. 264.053.  REMEDIES CUMULATIVE. The remedy provided by this subchapter is in addition to criminal prosecution and cumulative of other remedies provided to prevent the unlawful practice of dentistry. (V.A.C.S. Art. 4551c (part).)

[Sections 264.054-264.100 reserved for expansion]

SUBCHAPTER C. CIVIL PENALTY

Sec. 264.101.  CIVIL PENALTY. (a) A person who violates a provision of this subtitle is liable to the state for a civil penalty in an amount not to exceed $5,000.

(b)  Each day a violation continues or occurs is a separate violation for the purpose of imposing the civil penalty. (V.A.C.S. Art. 4548i, Subsec. (b) (part).)

Sec. 264.102.  COLLECTION OF CIVIL PENALTY. At the board's request, the attorney general or the district attorney or county attorney of the county in which the violation is alleged to have occurred shall file suit to collect the civil penalty. (V.A.C.S. Art. 4548i, Subsec. (b) (part).)

[Sections 264.103-264.150 reserved for expansion]

SUBCHAPTER D. CRIMINAL PENALTY

Sec. 264.151.  CRIMINAL PENALTY. (a)  A person commits an offense if the person violates this subtitle.

(b)  An offense under this section is a Class A misdemeanor.

(c)  A violation under this section does not include a violation to which Section 262.203 applies.

(d)  If it is shown at the trial of an offense under this section that the defendant was previously convicted under this section or if the offense involves practicing without an appropriate board license, the offense is a felony of the third degree.

(e)  Each day of a violation is a separate offense. (V.A.C.S. Art. 4548i, Subsec. (a).)

CHAPTER 265. REGULATION OF DENTAL ASSISTANTS

Sec. 265.001. REGISTRATION

Sec. 265.002. SUPERVISION, DIRECTION, AND RESPONSIBILITY

Sec. 265.003. PERMITTED DUTIES

CHAPTER 265. REGULATION OF DENTAL ASSISTANTS

Sec. 265.001.  REGISTRATION. The board may adopt and enforce rules requiring the registration of dental assistants as necessary to protect the public health and safety. (V.A.C.S. Art. 4551e-1, Subsec. (e).)

Sec. 265.002.  SUPERVISION, DIRECTION, AND RESPONSIBILITY. In this subtitle, a dental assistant is under the direct supervision, direction, and responsibility of a dentist if the dentist:

(1)  employs the dental assistant or is in charge of the dental assistant; and

(2)  is physically present in the dental office when the dental assistant performs a delegated dental act. (V.A.C.S. Art. 4551e-1, Subsec. (a) (part).)

Sec. 265.003.  PERMITTED DUTIES. A dental assistant who is not professionally licensed may:

(1)  be employed by and work in the office of a licensed and practicing dentist; and

(2)  perform one or more delegated dental acts under the direct supervision, direction, and responsibility of the dentist. (V.A.C.S. Art. 4551e-1, Subsec. (a) (part).)

CHAPTER 266. REGULATION OF DENTAL LABORATORIES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 266.001. DEFINITIONS

Sec. 266.002. EXEMPTIONS

[Sections 266.003-266.050 reserved for expansion]

SUBCHAPTER B. DENTAL LABORATORY CERTIFICATION COUNCIL

Sec. 266.051. APPOINTMENT OF COUNCIL; MEMBERSHIP

Sec. 266.052. MEMBER ELIGIBILITY

Sec. 266.053. TERMS

Sec. 266.054. PRESIDENT

Sec. 266.055. PER DIEM

Sec. 266.056. MEETINGS

Sec. 266.057. CIVIL LIABILITY

[Sections 266.058-266.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES OF COUNCIL

AND BOARD

Sec. 266.101. COUNCIL POWERS AND DUTIES

Sec. 266.102. BOARD POWERS AND DUTIES

[Sections 266.103-266.150 reserved for expansion]

SUBCHAPTER D. CERTIFICATION, REGISTRATION, AND RENEWAL

REQUIREMENTS

Sec. 266.151. REGISTRATION REQUIRED

Sec. 266.152. CERTIFIED DENTAL TECHNICIAN

Sec. 266.153. APPLICATION FOR REGISTRATION

Sec. 266.154. REGISTRATION RENEWAL

[Sections 266.155-266.200 reserved for expansion]

SUBCHAPTER E. PRACTICE BY REGISTRATION HOLDER

Sec. 266.201. PRESCRIPTION REQUIRED

Sec. 266.202. RELIANCE ON PRESCRIPTION

Sec. 266.203. TRANSPORTATION OF DENTAL MATERIAL PERMITTED

[Sections 266.204-266.250 reserved for expansion]

SUBCHAPTER F. DISCIPLINARY ACTIONS

Sec. 266.251. GROUNDS FOR DISCIPLINARY ACTION

Sec. 266.252. PROCEDURES FOR DISCIPLINARY ACTION

[Sections 266.253-266.300 reserved for expansion]

SUBCHAPTER G. PROHIBITED PRACTICES, ENFORCEMENT, AND

PENALTIES

Sec. 266.301. DENTAL PROSTHETIC APPLIANCE

Sec. 266.302. INJUNCTION

Sec. 266.303. CRIMINAL PENALTIES

CHAPTER 266. REGULATION OF DENTAL LABORATORIES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 266.001.  DEFINITIONS. In this chapter:

(1)  "Council" means the Dental Laboratory Certification Council.

(2)  "Dental laboratory" means a place in which a person performs or offers to perform a dental laboratory service.

(3)  "Dental laboratory service" means:

(A)  the making, assembly, processing, production, repair, relining, or adjustment of a prosthetic or orthodontic dental appliance, a full or partial denture, a fixed or removable dental bridge, a dental plate of false teeth, an artificial restoration, or a substitute or corrective device for any part of the human teeth, gums, jaws, or alveolar process; or

(B)  the fitting of a dental appliance, a denture, a bridge, a plate, false teeth, an artificial restoration, or a substitute or corrective device for the human teeth, gums, or jaws to or on a dental model, impression, or cast of any part of the human teeth, gums, jaws, or alveolar process.

(4)  "Dental technician" means a person who performs, offers to perform, or aids, abets, or causes another to perform or offer to perform a dental laboratory service. (V.A.C.S. Art. 4551f, Secs. (1), (2); New.)

Sec. 266.002.  EXEMPTIONS. This chapter does not apply to:

(1)  a student enrolled in a program of a school of dentistry; or

(2)  a licensed dentist engaged in the practice of dentistry in this state who performs a dental laboratory service for compensation or an employee of the dentist or of the professional corporation or partnership in which the dentist is an officer, partner, or employee if the service is performed:

(A)  for a patient of the dentist or of the professional corporation or partnership in which the dentist is an officer, partner, or employee; and

(B)  on the premises in which the dentist practices dentistry. (V.A.C.S. Art. 4551f, Secs. (5)(a), (b).)

[Sections 266.003-266.050 reserved for expansion]

SUBCHAPTER B. DENTAL LABORATORY CERTIFICATION COUNCIL

Sec. 266.051.  APPOINTMENT OF COUNCIL; MEMBERSHIP. The Dental Laboratory Certification Council consists of three members appointed by the board. (V.A.C.S. Art. 4551f, Sec. (9)(a) (part).)

Sec. 266.052.  MEMBER ELIGIBILITY. (a) A person is eligible for appointment to the council if the person:

(1)  is a dental technician who is certified as described by Section 266.152(a); and

(2)  is an owner, manager, or employee of a dental laboratory registered with the board.

(b)  A person is not eligible for appointment to the council if the person or the person's spouse is:

(1)  licensed by the board to practice dentistry;

(2)  a board employee; or

(3)  an employee of a dentist licensed by the board. (V.A.C.S. Art. 4551f, Sec. (9)(a) (part).)

Sec. 266.053.  TERMS. (a) Council members serve two-year terms.

(b)  A member may not serve more than four terms. (V.A.C.S. Art. 4551f, Sec. (9)(b).)

Sec. 266.054.  PRESIDENT. The council shall elect from its members a presiding officer to serve a one-year term. (V.A.C.S. Art. 4551f, Sec. (9)(c) (part).)

Sec. 266.055.  PER DIEM. A council member is entitled to the per diem set for members of state boards and commissions by the General Appropriations Act. (V.A.C.S. Art. 4551f, Sec. (9)(c) (part).)

Sec. 266.056.  MEETINGS. The council:

(1)  shall meet at least once each year; and

(2)  may meet at other times at the call of the presiding officer of the council if the presiding officer of the board approves. (V.A.C.S. Art. 4551f, Sec. (9)(c) (part).)

Sec. 266.057.  CIVIL LIABILITY. A member of the council is not liable in a civil action for an act performed in good faith while performing duties as a council member. (V.A.C.S. Art. 4551f, Sec. (9)(f).)

[Sections 266.058-266.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES OF COUNCIL

AND BOARD

Sec. 266.101.  COUNCIL POWERS AND DUTIES. (a) The council shall review each application for registration or renewal of registration to determine if the applicant meets the requirements of this chapter. The council shall provide to the board a list of applicants eligible for registration.

(b)  The council may:

(1)  recommend to the board rules relating to dental laboratories; and

(2)  perform additional duties as requested by the board.

(c)  The council may not exercise rulemaking authority. (V.A.C.S. Art. 4551f, Secs. (9)(d) (part), (e).)

Sec. 266.102.  BOARD POWERS AND DUTIES. (a) The board shall:

(1)  not later than the 30th day after the date the board receives a recommended rule from the council, consider the rule under the process prescribed by Chapter 2001, Government Code; and

(2)  provide to the council the board's reasons if the board amends or rejects the proposed rule.

(b)  The board may adopt rules regarding dental laboratories in only the following areas:

(1)  processing registration applications;

(2)  prescribing:

(A)  requirements for registration;

(B)  the form and content of registration applications and other forms required to administer this chapter;

(C)  procedures for renewal of certificates of registration; and

(D)  fees necessary to administer this chapter;

(3)  monitoring records necessary to administer this chapter;

(4)  establishing continuing education requirements for dental technicians employed by dental laboratories, including prescribing the content of continuing education courses; and

(5)  regulating:

(A)  infection control;

(B)  shade-taking procedures authorized by a prescription from a licensed dentist;

(C)  computer-imaging procedures for an oral cavity authorized by a prescription from a licensed dentist;

(D)  referral of dental prescriptions to out-of-state laboratories to be filled; and

(E)  the transportation and manufacture of dental prosthetic devices or other dental work performed by a dental laboratory located in another state or a foreign country for use in this state.

(c)  In prescribing the content of continuing education courses under Subsection (b)(4), the board shall require the course content to be at least as comprehensive as a course approved by a nationally recognized board of certification for dental technology.

(d)  The board shall allow the council to review and comment on a proposed rule under Subsection (b) for 30 days following the date the rule is proposed by the board.

(e)  The board shall provide annually to each dentist licensed in this state a list of dental laboratories registered under this chapter. The list must include the expiration date of each laboratory's registration certificate. (V.A.C.S. Art. 4551f, Secs. (8)(b), (c), (e), (f), (9)(d) (part).)

[Sections 266.103-266.150 reserved for expansion]

SUBCHAPTER D. CERTIFICATION, REGISTRATION,

AND RENEWAL REQUIREMENTS

Sec. 266.151.  REGISTRATION REQUIRED. (a) In this section, "person" means an individual or a private legal entity, including a corporation, association, or partnership.

(b)  A person may not operate or offer to operate a dental laboratory or provide or offer to provide dental laboratory services unless the person holds a registration certificate issued under this chapter. (V.A.C.S. Art. 4551f, Secs. (7)(a), (c).)

Sec. 266.152.  CERTIFIED DENTAL TECHNICIAN. (a)  A dental laboratory must have at least one dental technician working on the laboratory's premises who is certified by a nationally recognized board of certification for dental technology.

(b)  A dental laboratory is exempt from Subsection (a) if the laboratory is:

(1)  owned by a licensed dentist engaged in the practice of dentistry in this state or by a professional corporation or partnership in which that dentist is an officer, partner, or employee; and

(2)  located on the premises within which the dentist practices dentistry.

(c)  The exemption under Subsection (b) does not apply to a dental laboratory if the laboratory employs three or more dental technicians.

(d)  The owner of a dental laboratory registered with the board on September 1, 1987, is exempt from Subsection (a) if:

(1)  the laboratory has been continuously registered with the board since that date, and all registration fees have been paid;

(2)  the beneficial ownership of at least 51 percent of the laboratory has not been transferred; and

(3)  the owner is employed on the laboratory's premises for not less than 30 hours each week. (V.A.C.S. Art. 4551f, Secs. (6)(a) (part), (d), (e).)

Sec. 266.153.  APPLICATION FOR REGISTRATION. (a) An owner or manager of a dental laboratory shall annually:

(1)  apply to the board for the registration of each dental laboratory doing business in this state to which the owner or manager is connected or in which the owner or manager has an interest; and

(2)  pay the application fee set by the board.

(b)  The application must include:

(1)  evidence satisfactory to the board that the dental laboratory meets the requirements prescribed by Section 266.152(a), if applicable;

(2)  the name and address of each dental technician employed by the dental laboratory; and

(3)  any other information required by the board.

(c)  The board may issue a certificate of registration only to a dental laboratory that complies with the requirements of this section. (V.A.C.S. Art. 4551f, Secs. (6)(a) (part), (9)(d) (part).)

Sec. 266.154.  REGISTRATION RENEWAL. (a) An applicant for renewal of a dental laboratory registration must provide evidence satisfactory to the board that at least one employee who works on the dental laboratory's premises:

(1)  has completed at least 12 hours of continuing education during the previous registration period; or

(2)  is certified as required by Section 266.152(a), if applicable.

(b)  An owner or manager of a dental laboratory may renew an unexpired registration certificate for a dental laboratory if the owner or manager:

(1)  pays the required renewal fee to the board on or before the expiration date; and

(2)  complies with any other renewal requirements.

(c)  If the owner or manager of a dental laboratory fails to renew the dental laboratory's registration and pay the annual renewal fee before the date the registration expires, the board shall suspend the registration certificate of the laboratory.

(d)  An owner or manager of a dental laboratory whose registration certificate has been expired for 90 days or less may renew the registration certificate if the person pays to the board the required renewal fee and a fee equal to one-half of the amount of the renewal fee. If the registration certificate has been expired for more than 90 days but less than two years, the owner or manager may renew the certificate by paying to the board all unpaid renewal fees and a fee equal to the amount of the initial registration fee.

(e)  An owner or manager of a dental laboratory may not renew a registration certificate that has been expired for two years or more. The owner or manager may obtain a new certificate by complying with the requirements for obtaining an original certificate. (V.A.C.S. Art. 4551f, Secs. (6)(b), (c).)

[Sections 266.155-266.200 reserved for expansion]

SUBCHAPTER E. PRACTICE BY REGISTRATION HOLDER

Sec. 266.201.  PRESCRIPTION REQUIRED. (a) A dentist who orders a dental laboratory service shall prepare and deliver to the dental laboratory a prescription or work order for the service to be performed.

(b)  The prescription or work order must contain:

(1)  the signature and Texas dental license number of the dentist;

(2)  the date the prescription or work order is signed;

(3)  the patient's name and address; and

(4)  a description of the dental laboratory service ordered.

(c)  A dentist shall keep a copy of each prescription or work order at the dentist's office in a separate file for two years for inspection by the board's officers, agents, or employees.

(d)  A dentist shall label as provided by board rule a removable dental prosthesis fabricated in this state by the dentist or by a person under a prescription or work order prepared by the dentist. (V.A.C.S. Art. 4551f, Sec. (3)(a) (part); Art. 4551g.)

Sec. 266.202.  RELIANCE ON PRESCRIPTION. (a) The owner, manager, or employee of a dental laboratory or a dental technician may not perform or aid or abet another person in performing a dental laboratory service unless:

(1)  the service was ordered by and any resulting item will be delivered to:

(A)  a dentist engaged in the practice of dentistry in this state or in a jurisdiction in which the dentist maintains a dental office and engages in the practice of dentistry; or

(B)  an employee of the dentist, if the service is performed for and on behalf of the dentist; and

(2)  the dental laboratory receives a prescription or work order for the service in accordance with Section 266.201.

(b)  If a dental laboratory receives a prescription or work order for dental laboratory services and refers the work to another laboratory, the referral must be accompanied by a written statement that the prescription or work order is on file with the original laboratory.

(c)  A dental laboratory owner or manager shall maintain on the premises of a dental laboratory as a part of the laboratory's records a record of each prescription or work order completed at the dental laboratory until the second anniversary of the date the prescription or work order is furnished. The owner or manager shall also maintain the record in an alphabetized file in a separate place.

(d)  The premises of a dental laboratory, the records of a dental laboratory or a dental technician employed by the dental laboratory pertaining to dental prescriptions or work orders, and records relating to the referral of work to a dental technician or the owner or manager of a dental laboratory shall be open and available for inspection by a member, officer, employee, investigator, or agent of the board during regular office hours. (V.A.C.S. Art. 4551f, Secs. (3)(a) (part), (b), (c).)

Sec. 266.203.  TRANSPORTATION OF DENTAL MATERIAL PERMITTED. This chapter does not prohibit a person who is subject to and complies with this chapter from using the United States mail, a railway express agency, Western Union, or a messenger or common or contract carrier to handle, accept from, or transport or deliver to a dentist or dental laboratory an item in any form or state of completion on which a dental laboratory service will be or has been offered or ordered to be performed. (V.A.C.S. Art. 4551f, Sec. (4).)

[Sections 266.204-266.250 reserved for expansion]

SUBCHAPTER F. DISCIPLINARY ACTIONS

Sec. 266.251.  GROUNDS FOR DISCIPLINARY ACTION. (a)  The board may refuse to issue a registration certificate, may impose a fine on a person who holds a registration certificate, may suspend or revoke a person's registration certificate, or may probate any portion of the suspension if, after a hearing, the board determines that the applicant or certificate holder has:

(1)  violated or aided another person in violating a law regulating the practice of dentistry; or

(2)  required or allowed a person under the direction or control of the person to violate a law regulating the practice of dentistry.

(b)  In this section, an applicant for or holder of a registration certificate includes a person who has at least a 20 percent ownership interest in or is the general partner or managing partner in a dental laboratory that is registered under this chapter or for which an application for registration has been filed. (V.A.C.S. Art. 4551f, Secs. (8)(a) (part), (g).)

Sec. 266.252.  PROCEDURES FOR DISCIPLINARY ACTION. The board shall follow the procedures under Chapter 263 in a complaint or disciplinary action under this chapter. (V.A.C.S. Art. 4551f, Sec. (8)(a) (part).)

[Sections 266.253-266.300 reserved for expansion]

SUBCHAPTER G. PROHIBITED PRACTICES, ENFORCEMENT, AND

PENALTIES

Sec. 266.301.  DENTAL PROSTHETIC APPLIANCE. (a) In this section, "person" means an individual or a private legal entity, including a corporation, association, or partnership.

(b)  A person may not fill a prescription to prepare or repair a dental prosthetic appliance that is to be delivered to a dental patient by a licensed dentist unless the person is a dental laboratory or dental technician.

(c)  A dental laboratory that prepares or repairs a dental prosthetic appliance for a dentist shall provide to the dentist in writing at the time of the delivery the dental laboratory's assigned registration number and the expiration date of the dental laboratory's registration certificate.

(d)  A dentist may not knowingly prescribe, order, or receive a dental prosthetic appliance that is to be prepared or has been prepared by an unregistered dental laboratory. (V.A.C.S. Art. 4551f, Secs. (7)(a), (b), (d), (e).)

Sec. 266.302.  INJUNCTION. The board may apply for a restraining order or injunction to enforce this chapter or a board rule adopted under this chapter. (V.A.C.S. Art. 4551f, Sec. (8)(d).)

Sec. 266.303.  CRIMINAL PENALTIES. (a)  A person commits an offense if the person:

(1)  is a dentist and provides a dental laboratory service without being exempt under Section 266.002(2); or

(2)  violates Section 266.151 or 266.301.

(b)  An offense for a violation of Section 266.151 or Section 266.301(b) is a felony of the third degree.

(c)  An offense for a violation of Section 266.301(c) or (d) is a Class C misdemeanor. If it is shown on the trial of an offense under this section that the defendant has previously been convicted for an offense under this subsection, the offense is a Class A misdemeanor. (V.A.C.S. Art. 4551f, Secs. (7)(f), (g).)

[Chapters 267-300 reserved for expansion]

SUBTITLE E. REGULATION OF NURSING

CHAPTER 301. REGISTERED NURSES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 301.001. SHORT TITLE

Sec. 301.002. DEFINITIONS

Sec. 301.003. APPLICATION OF SUNSET ACT

Sec. 301.004. APPLICATION OF CHAPTER

[Sections 301.005-301.050 reserved for expansion]

SUBCHAPTER B. BOARD OF NURSE EXAMINERS

Sec. 301.051. BOARD MEMBERSHIP

Sec. 301.052. MEMBER ELIGIBILITY

Sec. 301.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS

Sec. 301.054. TERMS

Sec. 301.055. GROUNDS FOR REMOVAL

Sec. 301.056. PER DIEM; REIMBURSEMENT

Sec. 301.057. OFFICERS

Sec. 301.058. MEETINGS

Sec. 301.059. TRAINING

[Sections 301.060-301.100 reserved for expansion]

SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL

Sec. 301.101. EXECUTIVE DIRECTOR

Sec. 301.102. SURETY BOND

Sec. 301.103. PUBLIC RECORDS; REGISTRY

Sec. 301.104. PERSONNEL; EMPLOYMENT PRACTICES

Sec. 301.105. DIVISION OF RESPONSIBILITIES

Sec. 301.106. QUALIFICATIONS AND STANDARDS OF CONDUCT

INFORMATION

Sec. 301.107. CAREER LADDER PROGRAM; PERFORMANCE

EVALUATIONS

Sec. 301.108. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT

[Sections 301.109-301.150 reserved for expansion]

SUBCHAPTER D. GENERAL POWERS AND DUTIES OF BOARD

Sec. 301.151. GENERAL RULEMAKING AUTHORITY

Sec. 301.152. RULES REGARDING SPECIALIZED TRAINING

Sec. 301.153. RULES REGARDING ADVERTISING AND COMPETITIVE

BIDDING

Sec. 301.154. RULES REGARDING DELEGATION OF CERTAIN MEDICAL

ACTS

Sec. 301.155. FEES

Sec. 301.156. GIFTS AND GRANTS

Sec. 301.157. PROGRAMS OF STUDY AND ACCREDITATION

Sec. 301.158. DISSEMINATION OF INFORMATION

Sec. 301.159. BOARD DUTIES REGARDING COMPLAINTS

Sec. 301.160. PILOT PROGRAMS

Sec. 301.161. ENFORCEMENT

Sec. 301.162. LEGAL COUNSEL

Sec. 301.163. RECORD OF PROCEEDINGS; REPORT

Sec. 301.164. ASSISTANCE OF PROSECUTOR

Sec. 301.165. ANNUAL REPORT

[Sections 301.166-301.200 reserved for expansion]

SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND

COMPLAINT PROCEDURES

Sec. 301.201. PUBLIC INTEREST INFORMATION

Sec. 301.202. COMPLAINTS

Sec. 301.203. RECORDS OF COMPLAINTS

Sec. 301.204. GENERAL RULES REGARDING COMPLAINT INVESTIGATION

AND DISPOSITION

Sec. 301.205. PUBLIC PARTICIPATION

[Sections 301.206-301.250 reserved for expansion]

SUBCHAPTER F. LICENSE REQUIREMENTS

Sec. 301.251. LICENSE REQUIRED

Sec. 301.252. LICENSE APPLICATION

Sec. 301.253. EXAMINATION

Sec. 301.254. EXAMINATION RESULTS

Sec. 301.255. REEXAMINATION

Sec. 301.256. ISSUANCE OF LICENSE

Sec. 301.257. DECLARATORY ORDER OF LICENSE ELIGIBILITY

Sec. 301.258. TEMPORARY PERMIT

Sec. 301.259. RECIPROCAL LICENSE BY ENDORSEMENT FOR CERTAIN

FOREIGN APPLICANTS

Sec. 301.260. TEMPORARY LICENSE BY ENDORSEMENT

Sec. 301.261. INACTIVE STATUS

[Sections 301.262-301.300 reserved for expansion]

SUBCHAPTER G. LICENSE RENEWAL

Sec. 301.301. LICENSE RENEWAL

Sec. 301.302. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE

PRACTITIONER

Sec. 301.303. CONTINUING EDUCATION

[Sections 301.304-301.350 reserved for expansion]

SUBCHAPTER H. PRACTICE BY LICENSE HOLDER

Sec. 301.351. DESIGNATIONS

Sec. 301.352. PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN

CONDUCT

[Sections 301.353-301.400 reserved for expansion]

SUBCHAPTER I. DUTY TO REPORT VIOLATION

Sec. 301.401. GROUNDS FOR REPORTING REGISTERED NURSE

Sec. 301.402. DUTY OF REGISTERED NURSE TO REPORT

Sec. 301.403. DUTY OF PEER REVIEW COMMITTEE TO REPORT

Sec. 301.404. DUTY OF NURSING EDUCATIONAL PROGRAM TO

REPORT

Sec. 301.405. DUTY OF PERSON EMPLOYING REGISTERED NURSE TO

REPORT

Sec. 301.406. DUTY OF CERTAIN PROFESSIONAL ASSOCIATIONS AND

ORGANIZATIONS TO REPORT

Sec. 301.407. DUTY OF STATE AGENCY TO REPORT

Sec. 301.408. DUTY OF PROFESSIONAL LIABILITY INSURER TO

REPORT

Sec. 301.409. DUTY OF PROSECUTING ATTORNEY TO REPORT

Sec. 301.410. REPORT REGARDING IMPAIRMENT BY CHEMICAL

DEPENDENCY OR MENTAL ILLNESS

Sec. 301.411. EFFECT OF FAILURE TO REPORT

Sec. 301.412. REPORTING IMMUNITY

Sec. 301.413. RETALIATORY ACTION

Sec. 301.414. NOTICE AND REVIEW OF REPORT

Sec. 301.415. REBUTTAL STATEMENT

Sec. 301.416. INVESTIGATION

Sec. 301.417. CONFIDENTIALITY REQUIREMENTS; DISCLOSURE OF

INFORMATION

Sec. 301.418. DISCLOSURE OF CHARGES OR DISCIPLINARY ACTION

Sec. 301.419. GENERAL PROVISIONS REGARDING DUTY TO REPORT;

MINOR INCIDENTS

[Sections 301.420-301.450 reserved for expansion]

SUBCHAPTER J. PROHIBITED PRACTICES AND DISCIPLINARY ACTIONS

Sec. 301.451. CERTAIN PROHIBITED PRACTICES

Sec. 301.452. GROUNDS FOR DISCIPLINARY ACTION

Sec. 301.453. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF

DISCIPLINE

Sec. 301.454. NOTICE AND HEARING

Sec. 301.455. TEMPORARY LICENSE SUSPENSION

Sec. 301.456. EVIDENCE

Sec. 301.457. COMPLAINT AND INVESTIGATION

Sec. 301.458. INITIATION OF FORMAL CHARGES; DISCOVERY

Sec. 301.459. FORMAL HEARING

Sec. 301.460. ACCESS TO INFORMATION

Sec. 301.461. ASSESSMENT OF COSTS

Sec. 301.462. VOLUNTARY SURRENDER OF LICENSE

Sec. 301.463. AGREED DISPOSITION

Sec. 301.464. INFORMAL PROCEEDINGS

Sec. 301.465. SUBPOENAS; REQUEST FOR INFORMATION

Sec. 301.466. CONFIDENTIALITY

Sec. 301.467. REINSTATEMENT

Sec. 301.468. PROBATION

Sec. 301.469. NOTICE OF FINAL ACTION

[Sections 301.470-301.500 reserved for expansion]

SUBCHAPTER K. ADMINISTRATIVE PENALTY

Sec. 301.501. IMPOSITION OF PENALTY

Sec. 301.502. AMOUNT OF PENALTY

Sec. 301.503. REPORT AND NOTICE OF VIOLATION AND PENALTY

Sec. 301.504. PENALTY TO BE PAID OR HEARING REQUESTED

Sec. 301.505. HEARING

Sec. 301.506. DECISION BY BOARD

Sec. 301.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL

Sec. 301.508. COLLECTION OF PENALTY

Sec. 301.509. DETERMINATION BY COURT

Sec. 301.510. REMITTANCE OF PENALTY AND INTEREST

Sec. 301.511. ADMINISTRATIVE PROCEDURE

[Sections 301.512-301.550 reserved for expansion]

SUBCHAPTER L. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 301.551. INJUNCTION

Sec. 301.552. MONITORING OF LICENSE HOLDER

Sec. 301.553. CIVIL PENALTY

Sec. 301.554. CRIMINAL PENALTY

Sec. 301.555. APPEAL

CHAPTER 301. REGISTERED NURSES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 301.001.  SHORT TITLE. This chapter may be cited as the Nursing Practice Act. (V.A.C.S. Art. 4514, Sec. 7.)

Sec. 301.002.  DEFINITIONS. In this chapter:

(1)  "Board" means the Board of Nurse Examiners.

(2)  "Professional nursing" means the performance for compensation of an act that requires substantial specialized judgment and skill, the proper performance of which is based on knowledge and application of the principles of biological, physical, and social science as acquired by a completed course in an approved school of professional nursing. The term does not include acts of medical diagnosis or prescription of therapeutic or corrective measures. Professional nursing involves:

(A)  the observation, assessment, intervention, evaluation, rehabilitation, care and counsel, or health teachings of a person who is ill, injured, infirm, or experiencing a change in normal health processes;

(B)  the maintenance of health or prevention of illness;

(C)  the administration of a medication or treatment as ordered by a physician, podiatrist, or dentist;

(D)  the supervision or teaching of nursing;

(E)  the administration, supervision, and evaluation of nursing practices, policies, and procedures;

(F)  the requesting, receiving, signing for, and distribution of prescription drug samples to patients at sites in which a registered nurse is authorized to sign prescription drug orders as provided by Subchapter B, Chapter 157; and

(G)  the performance of an act delegated by a physician under Section 157.052, 157.053, 157.054, 157.058, or 157.059. (V.A.C.S. Art. 4518, Sec. 5 (part); New.)

Sec. 301.003.  APPLICATION OF SUNSET ACT. The Board of Nurse Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished September 1, 2005. (V.A.C.S. Art. 4513a.)

Sec. 301.004.  APPLICATION OF CHAPTER. (a) This chapter does not apply to:

(1)  gratuitous nursing care of the sick that is provided by a friend;

(2)  nursing care by a licensed vocational nurse licensed under Chapter 302;

(3)  nursing care provided during a disaster under the state emergency management plan adopted under Section 418.042, Government Code, if the person providing the care does not hold the person out as a registered or professional nurse unless the person is licensed in another state;

(4)  nursing care in which treatment is solely by prayer or spiritual means;

(5)  an act performed by a person under the control or supervision or at the instruction of a person licensed by the Texas State Board of Medical Examiners;

(6)  an act performed by a person licensed by another state agency if the act is authorized by the statute under which the person is licensed;

(7)  the practice of nursing that is incidental to a program of study by a student enrolled in a board-accredited nursing education program leading to an initial license as a professional nurse; or

(8)  the practice of nursing by a registered nurse licensed in another state who is in this state on a nonroutine basis for a period not to exceed 72 hours to:

(A)  provide care to a patient being transported into, out of, or through this state;

(B)  provide professional nursing consulting services; or

(C)  attend or present a continuing nursing education program.

(b)  This chapter does not authorize the practice of medicine as defined by Chapter 151. (V.A.C.S. Art. 4518, Sec. 6 (part); Art. 4528.)

[Sections 301.005-301.050 reserved for expansion]

SUBCHAPTER B. BOARD OF NURSE EXAMINERS

Sec. 301.051.  BOARD MEMBERSHIP. (a) The Board of Nurse Examiners consists of nine members appointed by the governor with the advice and consent of the senate as follows:

(1)  six registered nurse members, including:

(A)  a nurse faculty member of a school of nursing offering the baccalaureate degree program;

(B)  a nurse faculty member of a school of nursing offering the associate degree program; and

(C)  a nurse faculty member of a graduate school of nursing preparing advanced practice nurses; and

(2)  three members who represent the public.

(b)  Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (V.A.C.S. Art. 4513, Sec. 1 (part).)

Sec. 301.052.  MEMBER ELIGIBILITY. (a) A person is not eligible for appointment as a registered nurse member of the board unless the person has engaged in the nursing profession for at least three of the five years preceding the date of appointment.

(b)  A person is not eligible for appointment as a public member of the board if the person or the person's spouse:

(1)  is licensed by an occupational regulatory agency in the field of health care;

(2)  is employed by or participates in the management of a business entity or other organization that:

(A)  provides health care services; or

(B)  sells, manufactures, or distributes health care supplies or equipment;

(3)  owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization that:

(A)  provides health care services; or

(B)  sells, manufactures, or distributes health care supplies or equipment; or

(4)  uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4513, Secs. 2(a) (part), (b).)

Sec. 301.053.  MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b)  An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a member of the board and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(c)  A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a member of the board and may not be an employee of the board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group A17, of the position classification salary schedule.

(d)  A person may not serve as a board member or act as the general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the board's operation. (V.A.C.S. Art. 4513, Secs. 3, 4.)

Sec. 301.054.  TERMS. Members of the board serve staggered six-year terms, with the terms of one member who is a practicing registered nurse, one member who is a registered nurse engaged in nurse education, and one member who is a representative of the public expiring on January 31 of each odd-numbered year. (V.A.C.S. Art. 4513, Sec. 2(a) (part).)

Sec. 301.055.  GROUNDS FOR REMOVAL. (a)  It is a ground for removal from the board that a member:

(1)  does not have at the time of appointment the qualifications required by Section 301.051(a);

(2)  does not maintain during service on the board the qualifications required by Section 301.051(a);

(3)  violates a prohibition established by Section 301.053;

(4)  cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5)  is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the board.

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

(c)  If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the board of the potential ground. The presiding officer shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4513, Sec. 5.)

Sec. 301.056.  PER DIEM; REIMBURSEMENT. (a) Each board member is entitled to receive a per diem as set by the General Appropriations Act for each day the member engages in the business of the board.

(b)  A board member is not entitled to reimbursement for travel expenses, including expenses for meals and lodging, other than transportation expenses. A member is entitled to reimbursement for transportation expenses as provided by the General Appropriations Act. (V.A.C.S. Art. 4515 (part).)

Sec. 301.057.  OFFICERS. (a) The governor shall designate a member of the board as presiding officer to serve in that capacity at the pleasure of the governor.

(b)  The board shall elect other officers from its members. (V.A.C.S. Art. 4514, Sec. 1 (part).)

Sec. 301.058.  MEETINGS. The presiding officer shall call a special board meeting on the written request of at least two board members. (V.A.C.S. Art. 4514, Sec. 1 (part).)

Sec. 301.059.  TRAINING. (a) Before a board member may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of a training program established by the board under this section.

(b)  The training program shall provide information to a participant regarding:

(1)  this chapter;

(2)  the programs operated by the board;

(3)  the role and functions of the board;

(4)  the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;

(5)  the current budget for the board;

(6)  the results of the most recent formal audit of the board;

(7)  the requirements of Chapters 551, 552, 2001, and 2002, Government Code;

(8)  the requirements of the conflict of interest laws and other laws relating to public officials; and

(9)  any applicable ethics policies adopted by the board or the Texas Ethics Commission.

(c)  In developing the training program, the board shall consult with the governor's office, the attorney general's office, and the Texas Ethics Commission.

(d)  If another state agency or entity is given the authority to establish the training requirements for board members, the board shall allow that training instead of developing its own program. (V.A.C.S. Art. 4513, Sec. 14.)

[Sections 301.060-301.100 reserved for expansion]

SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL

Sec. 301.101.  EXECUTIVE DIRECTOR. (a) The board shall employ an executive director. The executive director may not be a member of the board.

(b)  Under the direction of the board, the executive director shall perform the duties required by this chapter or designated by the board. (V.A.C.S. Art. 4517 (part).)

Sec. 301.102.  SURETY BOND. (a) The executive director shall execute on employment a $1,000 bond payable to the governor.

(b)  The bond must be:

(1)  conditioned on the executive director's faithful performance of the duties of the office, including the duty to account for funds that come into the executive director's possession in the capacity of executive director;

(2)  signed by two or more sufficient sureties or by a surety company authorized to do business in this state; and

(3)  approved by the board's presiding officer. (V.A.C.S. Art. 4517 (part).)

Sec. 301.103.  PUBLIC RECORDS; REGISTRY. (a) The executive director shall keep:

(1)  a record of each meeting of the board; and

(2)  a registry of the name of each nurse registered under this chapter.

(b)  Information maintained under this section is open to public inspection at all times. (V.A.C.S. Art. 4514, Sec. 3 (part).)

Sec. 301.104.  PERSONNEL; EMPLOYMENT PRACTICES. The board shall employ persons as necessary to carry on the work of the board. (V.A.C.S. Art. 4517 (part).)

Sec. 301.105.  DIVISION OF RESPONSIBILITIES. (a) The board shall develop and implement policies that clearly define the respective responsibilities of the board and the staff of the board.

(b)  The board shall determine the salaries and compensation to be paid to employees and persons retained by the board. (V.A.C.S. Art. 4513, Sec. 7; Art. 4515 (part).)

Sec. 301.106.  QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:

(1)  qualifications for office or employment under this chapter; and

(2)  responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4513, Sec. 6.)

Sec. 301.107.  CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency posting of all nonentry level positions concurrently with any public posting.

(b)  The executive director or the executive director's designee shall develop a system of annual performance evaluations based on measurable job tasks. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4513, Sec. 9.)

Sec. 301.108.  EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:

(1)  personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel that are in compliance with the requirements of Chapter 21, Labor Code;

(2)  a comprehensive analysis of the board workforce that meets federal and state guidelines;

(3)  procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and

(4)  reasonable methods to appropriately address those areas of underuse.

(b)  A policy statement prepared under Subsection (a) must:

(1)  cover an annual period;

(2)  be updated annually;

(3)  be reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and

(4)  be filed with the governor.

(c)  The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports to the legislature. (V.A.C.S. Art. 4513, Sec. 10.)

[Sections 301.109-301.150 reserved for expansion]

SUBCHAPTER D. GENERAL POWERS AND DUTIES OF BOARD

Sec. 301.151.  GENERAL RULEMAKING AUTHORITY. The board may adopt and enforce rules consistent with this chapter and necessary to:

(1)  perform its duties and conduct proceedings before the board;

(2)  regulate the practice of professional nursing;

(3)  establish standards of professional conduct for license holders under this chapter; and

(4)  determine whether an act constitutes the practice of professional nursing. (V.A.C.S. Art. 4514, Sec. 1 (part).)

Sec. 301.152.  RULES REGARDING SPECIALIZED TRAINING. (a) In this section, "advanced practice nurse" means a registered nurse approved by the board to practice as an advanced practice nurse on the basis of completion of an advanced educational program. The term includes a nurse practitioner, nurse midwife, nurse anesthetist, and clinical nurse specialist. The term is synonymous with "advanced nurse practitioner."

(b)  The board shall adopt rules to:

(1)  establish:

(A)  any specialized education or training, including pharmacology, that a registered nurse must have to carry out a prescription drug order under Section 157.052; and

(B)  a system for assigning an identification number to a registered nurse who provides the board with evidence of completing the specialized education and training requirement under Subdivision (1)(A);

(2)  approve a registered nurse as an advanced practice nurse; and

(3)  initially approve and biennially renew an advanced practice nurse's authority to carry out or sign a prescription drug order under Chapter 157.

(c)  At a minimum, the rules adopted under Subsection (b)(3) must:

(1)  require completion of pharmacology and related pathology education for initial approval;

(2)  require continuing education in clinical pharmacology and related pathology in addition to any continuing education otherwise required under Section 301.303; and

(3)  provide for the issuance of a prescription authorization number to an advanced practice nurse approved under this section. (V.A.C.S. Art. 4514, Secs. 6, 8; Art. 4518, Sec. 5 (part).)

Sec. 301.153.  RULES REGARDING ADVERTISING AND COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person except to prohibit false, misleading, or deceptive practices by the person.

(b)  The board may not include in its rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that:

(1)  restricts the person's use of any medium for advertising;

(2)  restricts the person's personal appearance or use of the person's voice in an advertisement;

(3)  relates to the size or duration of an advertisement by the person; or

(4)  restricts the use of a trade name in advertising by the person. (V.A.C.S. Art. 4514, Sec. 2.)

Sec. 301.154.  RULES REGARDING DELEGATION OF CERTAIN MEDICAL ACTS. (a) The board may recommend to the Texas State Board of Medical Examiners the adoption of rules relating to the delegation by physicians of medical acts to registered nurses licensed by the board. In making a recommendation, the board may distinguish between nurses on the basis of special training and education.

(b)  A recommendation under Subsection (a) shall be treated in the same manner as a petition for the adoption of a rule by an interested party under Chapter 2001, Government Code.

(c)  The board in recommending a rule and the Texas State Board of Medical Examiners in acting on a recommended rule shall, to the extent allowable under state and federal statutes, rules, and regulations, act to enable the state to obtain its fair share of the federal funds available for the delivery of health care in this state. (V.A.C.S. Art. 4514, Sec. 5.)

Sec. 301.155.  FEES. (a) The board by rule shall establish fees in amounts reasonable and necessary to cover the costs of administering this chapter. The board may not set a fee that existed on September 1, 1993, in an amount less than the amount of that fee on that date.

(b)  The board may adopt a fee in an amount necessary for a periodic newsletter to produce and disseminate to license holders the information required under Section 301.158. (V.A.C.S. Art. 4527, Secs. 1, 3, as added Acts 73rd Leg., R.S., Ch. 840.)

Sec. 301.156.  GIFTS AND GRANTS. The board may receive gifts, grants, or other funds or assets. (V.A.C.S. Art. 4527, Sec. 2.)

Sec. 301.157.  PROGRAMS OF STUDY AND ACCREDITATION. (a) The board shall prescribe three programs of study to prepare registered nurses as follows:

(1)  a baccalaureate degree program that is conducted by an educational unit in nursing that is a part of a senior college or university and that leads to a baccalaureate degree in nursing;

(2)  an associate degree program that is conducted by an educational unit in nursing within the structure of a college or a university and that leads to an associate degree in nursing; and

(3)  a diploma program that is conducted by a single-purpose school, usually under the control of a hospital, and that leads to a diploma in nursing.

(b)  The board shall:

(1)  prescribe and publish the minimum requirements and standards for a course of study in each program that prepares professional nurses;

(2)  prescribe other rules as necessary to conduct accredited schools of nursing and educational programs for the preparation of professional nurses;

(3)  accredit schools of nursing and educational programs that meet the board's requirements; and

(4)  deny or withdraw accreditation from a school of nursing or educational program that fails to meet the prescribed course of study or other standard.

(c)  The board may not require a program that is composed of less than two academic years or more than four calendar years.

(d)  A person may not be certified as a graduate of any school of nursing or educational program unless the person has completed the requirements of the prescribed course of study, including clinical practice, of an accredited school of nursing or educational program.

(e)  The board shall give each person, including an organization, affected by an order or decision of the board under this section reasonable notice of not less than 20 days and an opportunity to appear and be heard regarding the order or decision. The board shall hear each protest or complaint from a person affected by a rule or decision regarding:

(1)  the inadequacy or unreasonableness of any rule or order the board adopts; or

(2)  the injustice of any order or decision of the board.

(f)  Not later than the 30th day after the date an order is entered and approved by the board, a person is entitled to bring an action against the board in a district court of Travis County to have the rule or order vacated or modified, if that person:

(1)  is affected by the order or decision;

(2)  is dissatisfied with any rule or order of the board; and

(3)  sets forth in a petition the principal grounds of objection to the rule or order.

(g)  An appeal under this section shall be tried de novo as if it were an appeal from a justice court to a county court. (V.A.C.S. Art. 4513, Sec. 1 (part); Art. 4518, Secs. 1, 2.)

Sec. 301.158.  DISSEMINATION OF INFORMATION. The board shall disseminate, at least twice a year and at other times the board determines necessary, information that is of significant interest to professional nurses and employers of professional nurses in this state, including summaries of final disciplinary action taken against registered nurses by the board since its last dissemination of information. (V.A.C.S. Art. 4525a, Sec. 16(a).)

Sec. 301.159.  BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:

(1)  adopt a form to standardize information concerning complaints made to the board; and

(2)  prescribe information to be provided to a person when the person files a complaint with the board.

(b)  The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4524A, Subsecs. (c), (d).)

Sec. 301.160.  PILOT PROGRAMS. (a) In this section:

(1)  "Proactive nursing peer review" means peer review that is not initiated to determine culpability with respect to a particular incident.

(2)  "Targeted continuing nursing education" means continuing education focusing on a skill that would likely benefit a significant proportion of registered nurses in a particular practice area.

(b)  The board may develop pilot programs to evaluate the effectiveness of mechanisms, including proactive nursing peer review and targeted continuing nursing education, for maintenance of the clinical competency of a registered nurse in the nurse's area of practice and the understanding by registered nurses of the laws, including regulations, governing the practice of professional nursing.

(c)  A pilot program under Subsection (b) must be designed to test the effectiveness of a variety of mechanisms in a variety of practice settings.

(d)  The board may approve a pilot program under Subsection (b) that is to be conducted by a person other than the board.

(e)  The board may spend funds to develop or fund a pilot program and may contract with, make grants to, or make other arrangements with an agency, professional association, institution, individual, or other person to implement this section.

(f)  In developing, administering, approving, and funding a pilot program, the board shall consult with:

(1)  the Competency Advisory Committee on matters relating to ensuring the maintenance of continued competency of registered nurses; and

(2)  the Laws and Regulations Advisory Committee on matters relating to ensuring that registered nurses understand the laws, including regulations, governing the practice of professional nursing.

(g)  The Competency Advisory Committee is appointed by the board and consists of the following members:

(1)  a representative from the Texas Nurses Association;

(2)  a representative from the Texas Nurses Foundation;

(3)  a representative from the Texas Organization of Nurse Executives;

(4)  a registered nurse representative from the Texas Hospital Association;

(5)  a registered nurse representative from the Texas Health Care Association;

(6)  a registered nurse representative from the Texas Association of Homes and Services for the Aging;

(7)  a registered nurse representative from the Texas Association for Home Care;

(8)  a professional nursing educator;

(9)  a representative from the Consumers Union;

(10)  a representative from the Texas Department of Mental Health and Mental Retardation; and

(11)  any other person appointed by the board.

(h)  The Laws and Regulations Advisory Committee is appointed by the board and consists of the following members:

(1)  a representative of the Texas Nurses Association;

(2)  a representative of the Texas League for Nursing;

(3)  a representative of the Texas Chapter of the American Association of Nurse Attorneys;

(4)  a representative of the Texas Organization of Baccalaureate and Graduate Nursing Educators;

(5)  a representative of the Texas Organization for Associate Degree Nursing;

(6)  a representative of the Texas Organization of Nurse Executives;

(7)  a representative of the American Association of Retired Persons;

(8)  a registered nurse researcher; and

(9)  any other person appointed by the board.

(i)  Except as provided by this subsection, in developing or approving a pilot program under this section the board may exempt the program from rules adopted under this chapter. Subchapter I and Chapter 303 apply to pilot programs, except that Sections 303.002(e), 303.003, and 303.008(b) do not apply to a pilot program using proactive peer review. The board may establish alternative criteria for nursing peer review committees conducting proactive peer review.

(j)  The board shall issue an annual report regarding any pilot programs developed or approved and a status report on those programs, including preliminary or final findings concerning their effectiveness. The board shall mail the report to statewide associations of registered nurses, registered nurse educators, and employers of registered nurses that request a copy. The board shall issue a final report not later than September 1, 2000. (V.A.C.S. Art. 4518, Sec. 8.)

Sec. 301.161.  ENFORCEMENT. (a) The board shall aid in the enforcement of this chapter.

(b)  The board may:

(1)  issue a subpoena;

(2)  compel the attendance of a witness;

(3)  administer an oath to a person giving testimony at hearings; and

(4)  cause the prosecution of each person violating this chapter.

(c)  The attorney general shall provide legal assistance necessary to enforce this chapter. This subsection does not relieve a local prosecuting officer of any duty under the law. (V.A.C.S. Art. 4525, Subsec. (e) (part).)

Sec. 301.162.  LEGAL COUNSEL. The board may retain legal counsel to represent the board if first:

(1)  the board requests the attorney general to represent the board; and

(2)  the attorney general certifies to the board that the attorney general cannot provide those services. (V.A.C.S. Art. 4525, Subsec. (e) (part).)

Sec. 301.163.  RECORD OF PROCEEDINGS; REPORT. The board shall keep a record of its proceedings under this chapter and make an annual report to the governor. (V.A.C.S. Art. 4525, Subsec. (e) (part).)

Sec. 301.164.  ASSISTANCE OF PROSECUTOR. A board member may present to a prosecuting officer a complaint relating to a violation of this chapter. The board, through its members, officers, counsel, or agents, shall assist in the trial of a case involving an alleged violation of this chapter, subject to the control of the prosecuting officers. (V.A.C.S. Art. 4514, Sec. 3 (part); Art. 4525, Subsec. (e) (part).)

Sec. 301.165.  ANNUAL REPORT. (a) The board shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding fiscal year.

(b)  The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4513, Sec. 8.)

[Sections 301.166-301.200 reserved for expansion]

SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND

COMPLAINT PROCEDURES

Sec. 301.201.  PUBLIC INTEREST INFORMATION. (a)  The board shall prepare information of public interest describing the functions of the board and the procedures by which complaints are filed with and resolved by the board.

(b)  The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4513, Sec. 11(a).)

Sec. 301.202.  COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:

(1)  on each registration form, application, or written contract for services of a person regulated by the board;

(2)  on a sign prominently displayed in the place of business of each person regulated by the board; or

(3)  in a bill for service provided by a person regulated by the board.

(b)  The board shall enter into a memorandum of understanding with each state agency that licenses health care facilities or agencies to coordinate the notification requirement under Subsection (a) with notification requirements that may be imposed on the health care facility or agency by that state agency.

(c)  The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4513, Secs. 11(b), (c), (d).)

Sec. 301.203.  RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board. The information file must be kept current and must contain a record for each complaint of:

(1)  each person contacted in relation to the complaint;

(2)  a summary of findings made at each step of the complaint process;

(3)  an explanation of the legal basis and reason for a complaint that is dismissed;

(4)  the schedule required under Section 301.204 and a notation of any change in the schedule; and

(5)  other relevant information.

(b)  If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4524A, Subsecs. (a), (b); Art. 4524B, Subsec. (b) (part).)

Sec. 301.204.  GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board. The rules adopted under this subsection must:

(1)  distinguish between categories of complaints;

(2)  ensure that complaints are not dismissed without appropriate consideration;

(3)  require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;

(4)  ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and

(5)  prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator.

(b)  The board shall:

(1)  dispose of all complaints in a timely manner; and

(2)  establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.

(c)  The board shall notify the parties of the projected time requirements for pursuing the complaint.

(d)  The board shall notify the parties to the complaint of any change in the schedule not later than the seventh day after the date the change is made.

(e)  The executive director of the board shall notify the board of a complaint that is unresolved after the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4524B, Subsecs. (a), (b) (part), (c).)

Sec. 301.205.  PUBLIC PARTICIPATION. (a) The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the board's jurisdiction.

(b)  The board shall prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the board's programs. (V.A.C.S. Art. 4513, Secs. 12, 13 (part).)

[Sections 301.206-301.250 reserved for expansion]

SUBCHAPTER F. LICENSE REQUIREMENTS

Sec. 301.251.  LICENSE REQUIRED. (a) A person may not practice or offer to practice professional nursing in this state unless the person is licensed as provided by this chapter.

(b)  Unless the person holds a license under this chapter, a person may not use, in connection with the person's name:

(1)  the title "Registered Nurse," "Professional Nurse," or "Graduate Nurse";

(2)  the abbreviation "R.N."; or

(3)  any other designation tending to imply that the person is a licensed registered nurse. (V.A.C.S. Art. 4518, Sec. 4; Art. 4527a, Sec. 3.)

Sec. 301.252.  LICENSE APPLICATION. Each applicant for a registered nurse license must submit to the board a sworn application that demonstrates the applicant's qualifications under this chapter, accompanied by evidence that the applicant has:

(1)  good professional character; and

(2)  successfully completed an accredited program of professional nursing education. (V.A.C.S. Art. 4518, Sec. 3 (part).)

Sec. 301.253.  EXAMINATION. (a) Except as provided by Section 301.452, an applicant is entitled to take the examination prescribed by the board if:

(1)  the board determines that the applicant meets the qualifications required by Section 301.252; and

(2)  the applicant pays the fees required by the board.

(b)  The board shall give the examination in various cities throughout the state.

(c)  The examination shall be designed to determine the fitness of the applicant to practice professional nursing.

(d)  The board shall determine the criteria that determine a passing score on the examination. The criteria may not exceed those required by the majority of the states.

(e)  A written examination prepared, approved, or offered by the board, including a standardized national examination, must be validated by an independent testing professional. (V.A.C.S. Art. 4518, Sec. 3 (part); Art. 4519, Subsecs. (a), (b) (part).)

Sec. 301.254.  EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date the examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.

(b)  If the notice of the examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.

(c)  If requested in writing by a person who fails an examination, the board shall provide to the person an analysis of the person's performance on the examination. (V.A.C.S. Art. 4519, Subsec. (b) (part).)

Sec. 301.255.  REEXAMINATION. The board by rule shall establish conditions under which an applicant who fails an examination may retake the examination. For an applicant who fails the examination two or more times, the board may:

(1)  require the applicant to fulfill additional educational requirements; or

(2)  deny the applicant the opportunity to retake the examination. (V.A.C.S. Art. 4519, Subsec. (c).)

Sec. 301.256.  ISSUANCE OF LICENSE. If the results of an examination taken under Section 301.253 or 301.255 satisfy the criteria established by the board under that section, the board shall issue to the applicant a license to practice professional nursing in this state. The license must be signed by the board's presiding officer and the executive director and attested by the board's seal. (V.A.C.S. Art. 4518, Sec. 3 (part); Art. 4519, Subsec. (b) (part).)

Sec. 301.257.  DECLARATORY ORDER OF LICENSE ELIGIBILITY. (a) A person may petition the board for a declaratory order as to the person's eligibility for a license under this chapter if the person:

(1)  is enrolled or planning to enroll in an educational program that prepares a person for an initial license as a registered nurse; and

(2)  has reason to believe that the person is ineligible for the license.

(b)  The petition must state the basis for the person's potential ineligibility.

(c)  The board has the same powers to investigate the petition and the person's eligibility that it has to investigate a person applying for a license.

(d)  The petitioner or the board may amend the petition to include additional grounds for potential ineligibility at any time before a final determination is made.

(e)  If the board proposes to find that the petitioner is ineligible for a license, the petitioner is entitled to a hearing before the State Office of Administrative Hearings.

(f)  The board's order must set out each basis for potential ineligibility and the board's determination as to eligibility. In the absence of new evidence known to but not disclosed by the petitioner or not reasonably available to the board at the time the order is issued, the board's ruling on the petition determines the person's eligibility with respect to the grounds for potential ineligibility set out in the order.

(g)  The board may require an individual accepted for enrollment or enrolled in an educational program preparing a student for initial licensure as a registered nurse to submit information to the board to permit the board to determine whether the person is aware of the conditions that may disqualify the person from licensure as a registered nurse on graduation and of the person's right to petition the board for a declaratory order under this section. Instead of requiring the person to submit the information, the board may require the educational program to collect and submit the information on each person accepted for enrollment or enrolled in the program.

(h)  The information required under Subsection (g) must be submitted in a form approved by the board.

(i)  If, as a result of information provided under Subsection (g), the board determines that a person may not be eligible for a license on graduation, the board shall notify the educational program of its determination. (V.A.C.S. Art. 4519a.)

Sec. 301.258.  TEMPORARY PERMIT. (a) Pending the results of a licensing examination, the board may issue to an applicant who is a graduate of an approved educational program a permit to practice professional nursing under the direct supervision of a registered nurse.

(b)  The board may not issue a permit under this section to an applicant who has previously failed an examination administered by the board or another state.

(c)  A permit issued under Subsection (a) expires on the date of receipt of:

(1)  a permanent license; or

(2)  a notice from the board that the permit holder has failed the examination.

(d)  The board may issue a temporary permit to practice professional nursing for the limited purpose of allowing a nurse to satisfy a requirement imposed by the board necessary for:

(1)  renewal of an expired license;

(2)  reactivation of an inactive license; or

(3)  reissuance of a suspended, revoked, or surrendered license.

(e)  A permit issued under Subsection (d) expires on the earlier of:

(1)  the date of receipt of a permanent license; or

(2)  six months after the date the permit is issued.

(f)  A person who holds a temporary permit issued under this section is considered to be a licensed registered nurse for all purposes except to the extent of any stipulation or limitation on practice imposed by the board as a condition of issuing the permit. (V.A.C.S. Art. 4523.)

Sec. 301.259.  RECIPROCAL LICENSE BY ENDORSEMENT FOR CERTAIN FOREIGN APPLICANTS. On payment of a fee established by the board, the board may issue a license to practice as a registered nurse in this state by endorsement without examination to an applicant who holds a registration certificate as a registered nurse issued by a territory or possession of the United States or a foreign country if the board determines that the issuing agency of the territory or possession of the United States or foreign country required in its examination the same general degree of fitness required by this state. (V.A.C.S. Art. 4521, Subsec. (d).)

Sec. 301.260.  TEMPORARY LICENSE BY ENDORSEMENT. (a) An applicant for a license under this chapter who is licensed as a registered nurse by another state may qualify for a temporary license by endorsement to practice as a registered nurse by submitting to the board:

(1)  an endorsement fee as determined by the board and a completed sworn application in the form prescribed by the board;

(2)  evidence that the person possessed, at the time of initial licensing as a registered nurse, the other qualifications necessary at that time to have been eligible for licensing in this state; and

(3)  proof of initial licensing by examination and proof that the license and any other license issued to the applicant by another state have not been suspended, revoked, canceled, surrendered, or otherwise restricted.

(b)  A holder of a temporary license under this section is entitled to receive a permanent license if the applicant:

(1)  verifies the applicant's academic and professional credentials; and

(2)  satisfies any other requirement established by statute.

(c)  The board shall grant or deny an application for a permanent license not later than the 180th day after the date the board receives all required forms or information. The board may extend that deadline to allow for the receipt and tabulation of examination results. (V.A.C.S. Art. 4521, Subsecs. (a), (b), (c).)

Sec. 301.261.  INACTIVE STATUS. (a) The board may place on inactive status the license of a person under this chapter who is not actively engaged in the practice of professional nursing if the person submits a written request to the board in the form and manner determined by the board. The inactive status begins on the expiration date of the person's license.

(b)  The board shall maintain a list of each person whose license is on inactive status.

(c)  A person whose license is on inactive status may not perform any professional nursing service or work.

(d)  The board shall remove a person's license from inactive status if the person:

(1)  requests that the board remove the person's license from inactive status;

(2)  pays each appropriate fee; and

(3)  meets the requirements determined by the board.

(e)  The board by rule shall permit a person whose license is on inactive status and who is 65 years or older to use the title "Registered Nurse Retired" or "R.N. Retired." (V.A.C.S. Art. 4526b.)

[Sections 301.262-301.300 reserved for expansion]

SUBCHAPTER G. LICENSE RENEWAL

Sec. 301.301.  LICENSE RENEWAL. (a) The board by rule may adopt a system under which licenses expire on various dates during the year.

(b)  A person may renew an unexpired license issued under this chapter on payment of the required renewal fee and compliance with any other renewal requirements adopted by the board.

(c)  A person whose license has been expired for 90 days or less may renew the license by paying to the board the required renewal fee and a fee that is equal to one-half the amount charged for examination for the license. If a license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board all unpaid renewal fees and a fee that is equal to the amount charged for examination for the license.

(d)  The board by rule shall set a length of time beyond which an expired license may not be renewed. The board by rule may establish additional requirements that apply to the renewal of a license that has been expired for more than one year but less than the time limit set by the board beyond which a license may not be renewed. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.

(e)  At least 30 days before the expiration of the person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the records of the board.

(f)  A registered nurse who practices professional nursing after the expiration of the nurse's license is an illegal practitioner whose license may be revoked or suspended. (V.A.C.S. Art. 4526 (part); New.)

Sec. 301.302.  RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a)  The board may renew without examination the expired license of a person who was licensed to practice professional nursing in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.

(b)  The person must pay to the board a fee that is equal to the amount of the initial fee for the license and the renewal fee. (V.A.C.S. Art. 4526 (part).)

Sec. 301.303.  CONTINUING EDUCATION. (a)  The board may recognize, prepare, or implement continuing education programs for license holders under this chapter and may require participation in continuing education programs as a condition of renewal of a license.

(b)  The board may not require participation in more than a total of 20 hours of continuing education in a two-year licensing period and may not require that more than 10 hours of the continuing education consist of classroom instruction in approved programs. The remaining hours of continuing education may consist of any combination of:

(1)  classroom instruction;

(2)  institutional-based instruction; or

(3)  individualized study.

(c)  If the board requires participation in continuing education programs as a condition of license renewal, the board by rule shall establish a system for the approval of programs and providers of continuing education.

(d)  In adopting rules under Subsection (c), the board shall consider, but is not obligated to approve:

(1)  a program or provider approved or accredited through the Board of Accreditation of the American Nurses' Association or the National Federation of Specialty Nursing Organizations; and

(2)  a nurse in-service program offered by a hospital that is:

(A)  accredited by the Joint Commission on Accreditation of Healthcare Organizations;

(B)  certified by Medicare; or

(C)  maintained or operated by the federal government or the state.

(e)  The board may adopt other rules as necessary to implement this section.

(f)  The board may assess each program and provider under this section a fee in an amount that is reasonable and necessary to defray the costs incurred in approving programs and providers. (V.A.C.S. Art. 4518, Secs. 7(a), (b), (c) (part), (d).)

[Sections 301.304-301.350 reserved for expansion]

SUBCHAPTER H. PRACTICE BY LICENSE HOLDER

Sec. 301.351.  DESIGNATIONS. (a)  A person who holds a license under this chapter:

(1)  is referred to as a registered nurse; and

(2)  may use the abbreviation "R.N."

(b)  While on duty providing direct care to a patient, each licensed registered nurse shall wear an insignia identifying the nurse as a registered nurse. (V.A.C.S. Art. 4522.)

Sec. 301.352.  PROTECTION FOR REFUSAL TO ENGAGE IN CERTAIN CONDUCT. (a)  A person may not suspend, terminate, or otherwise discipline or discriminate against a registered nurse who refuses to engage in an act or omission relating to patient care that would constitute grounds for reporting the nurse to the board under Subchapter I if the nurse notifies the person at the time of the refusal that the reason for refusing is that the act or omission:

(1)  constitutes grounds for reporting the nurse to the board; or

(2)  is a violation of this chapter or a rule of the board.

(b)  An act by a person under Subsection (a) does not constitute a violation of this section if a nursing peer review committee under Chapter 303 determines:

(1)  that the act or omission the nurse refused to engage in was not conduct reportable to the board under Section 301.403; or

(2)  that:

(A)  the act or omission in which the nurse refused to engage was conduct reportable to the board; and

(B)  the person:

(i)  rescinds any disciplinary or discriminatory action taken against the nurse;

(ii)  compensates the nurse for lost wages; and

(iii)  restores to the nurse any lost benefits.

(c)  A registered nurse's rights under this section may not be nullified by a contract.

(d)  An appropriate licensing agency may take action against a person who violates this section. (V.A.C.S. Art. 4525d, Subsecs. (a), (b), (c) (part), (d).)

[Sections 301.353-301.400 reserved for expansion]

SUBCHAPTER I. DUTY TO REPORT VIOLATION

Sec. 301.401.  GROUNDS FOR REPORTING REGISTERED NURSE. The following are grounds for reporting a registered nurse under Section 301.402, 301.403, 301.405, or 301.407:

(1)  unnecessary or likely exposure by the registered nurse of a patient or other person to a risk of harm;

(2)  unprofessional conduct by the registered nurse;

(3)  failure by the registered nurse to adequately care for a patient;

(4)  failure by the registered nurse to conform to the minimum standards of acceptable professional nursing practice; or

(5)  impairment or likely impairment of the registered nurse's practice by chemical dependency. (V.A.C.S. Art. 4525a, Secs. 1(a) (part), 1A (part), 2(a) (part), (b) (part), (c) (part), 4 (part).)

Sec. 301.402.  DUTY OF REGISTERED NURSE TO REPORT. (a) In this section:

(1)  "Professional nursing educational program" means a board-accredited educational program leading to initial licensure as a registered nurse.

(2)  "Professional nursing student" means an individual who is enrolled in a professional nursing educational program.

(b)  A registered nurse shall report to the board in the manner prescribed under Subsection (d) if the nurse has reasonable cause to suspect that:

(1)  another registered nurse is subject to a ground for reporting under Section 301.401; or

(2)  the ability of a professional nursing student to perform the services of the nursing profession would be, or would reasonably be expected to be, impaired by chemical dependency.

(c)  In a written, signed report to the appropriate licensing board, a registered nurse may report a licensed health care practitioner, agency, or facility that the nurse has reasonable cause to believe has exposed a patient to substantial risk of harm as a result of failing to provide patient care that conforms to the minimum standards of acceptable and prevailing professional practice.

(d)  A report by a registered nurse under Subsection (b) must:

(1)  be written and signed; and

(2)  include the identity of the registered nurse or student and any additional information required by the board.

(e)  A registered nurse may make a report required under Subsection (b)(2) to the professional nursing educational program in which the student is enrolled instead of reporting to the board. (V.A.C.S. Art. 4525a, Secs. 1(a) (part), 1B(a) (part), (b), (c), 7.)

Sec. 301.403.  DUTY OF PEER REVIEW COMMITTEE TO REPORT. A professional nursing peer review committee operating under Chapter 303 that has a ground for reporting a registered nurse under Section 301.401 shall file with the board a written, signed report that includes:

(1)  the identity of the nurse;

(2)  a description of any corrective action taken against the nurse;

(3)  a statement whether the professional nursing peer review committee recommends that the board take formal disciplinary action against the nurse; and

(4)  any additional information the board requires. (V.A.C.S. Art. 4525a, Sec. 1A (part).)

Sec. 301.404.  DUTY OF NURSING EDUCATIONAL PROGRAM TO REPORT. (a)  In this section, "professional nursing educational program" and "professional nursing student" have the meanings assigned by Section 301.402(a).

(b)  A professional nursing educational program that has reasonable cause to suspect that the ability of a professional nursing student to perform the services of the nursing profession would be, or would reasonably be expected to be, impaired by chemical dependency shall file with the board a written, signed report that includes the identity of the student and any additional information the board requires. (V.A.C.S. Art. 4525a, Secs. 1B(a) (part), (c).)

Sec. 301.405.  DUTY OF PERSON EMPLOYING REGISTERED NURSE TO REPORT. (a) This section applies only to a person who employs, hires, or contracts for the services of a registered nurse, including:

(1)  a health care facility, including a hospital, health science center, nursing home, or home health agency;

(2)  a state agency;

(3)  a political subdivision;

(4)  a school of professional nursing; and

(5)  a temporary nursing service.

(b)  A person that terminates, suspends for more than seven days, or takes other substantive disciplinary action, as defined by the board, against a registered nurse because a ground under Section 301.401 exists to report the nurse shall report in writing to the board the identity of the nurse and any additional information the board requires.

(c)  Each person subject to this section that regularly employs, hires, or otherwise contracts for the services of 10 or more registered nurses shall develop a written plan for identifying and reporting a registered nurse in its service against whom a ground under Section 301.401 exists. The plan must include an appropriate process for the review by a professional nursing peer review committee established and operated under Chapter 303 of any incident reportable under this section and for the affected nurse to submit rebuttal information to that committee. Review by the committee is only advisory.

(d)  The review by the peer review committee must include a determination as to whether a ground under Section 301.401 exists to report the registered nurse undergoing review. The peer review committee's determination must be included in the report made to the board under Subsection (b).

(e)  The requirement that a report to the board be reviewed by a professional nursing peer review committee:

(1)  applies only to a required report; and

(2)  does not subject a person's administrative decision to discipline a registered nurse to the peer review process or prevent a person from taking disciplinary action before review by the peer review committee is conducted.

(f)  The board shall enter into memoranda of understanding with each state agency that licenses, registers, or certifies a health care facility or agency or surveys that facility or agency with respect to professional nursing care as to how that state agency can promote compliance with Subsection (c). (V.A.C.S. Art. 4525a, Secs. 2(a) (part), (b) (part), (c) (part).)

Sec. 301.406.  DUTY OF CERTAIN PROFESSIONAL ASSOCIATIONS AND ORGANIZATIONS TO REPORT. A professional association of registered nurses or an organization that conducts a certification or accreditation program for registered nurses and that expels, decertifies, or takes any other substantive disciplinary action, as defined by the board, against a registered nurse as a result of the nurse's failure to conform to the minimum standards of acceptable professional nursing practice shall report in writing to the board the identity of the nurse and any additional information the board requires. (V.A.C.S. Art. 4525a, Sec. 3.)

Sec. 301.407.  DUTY OF STATE AGENCY TO REPORT. (a) This section applies only to a state agency that:

(1)  licenses, registers, or certifies:

(A)  a hospital;

(B)  a nursing home;

(C)  a health science center;

(D)  a home health agency; or

(E)  another health care facility or agency; or

(2)  surveys a facility or agency listed in Subdivision (1) regarding the quality of professional nursing care provided by the facility or agency.

(b)  Unless expressly prohibited by state or federal law, a state agency that has reason to believe a ground for reporting a registered nurse exists under Section 301.401 shall report in writing to the board the identity of that registered nurse. (V.A.C.S. Art. 4525a, Sec. 4 (part).)

Sec. 301.408.  DUTY OF PROFESSIONAL LIABILITY INSURER TO REPORT. (a)  Each insurer that provides to a registered nurse professional liability insurance that covers claims arising from providing or failing to provide professional nursing care shall submit to the board the report or data required by this section at the time prescribed.

(b)  The report or data must be provided for:

(1)  a complaint filed in court against a registered nurse that seeks damages related to the nurse's conduct in providing or failing to provide professional nursing care; and

(2)  a settlement of a claim or lawsuit made on behalf of a nurse.

(c)  Not later than the 30th day after the date the insurer receives a complaint subject to Subsection (b), the insurer shall provide to the board:

(1)  the name of the registered nurse against whom the claim is filed;

(2)  the policy number;

(3)  the policy limits;

(4)  a copy of the petition;

(5)  a copy of the answer; and

(6)  other relevant information known by the insurer, as required by the board.

(d)  Not later than the 30th day after the date of a judgment, dismissal, or settlement of a suit involving an insured registered nurse or settlement of a claim on behalf of the nurse without the filing of a lawsuit, the insurer shall provide to the board information regarding the date of the judgment, dismissal, or settlement and, if appropriate:

(1)  whether an appeal has been taken from the judgment and by which party;

(2)  the amount of the settlement or judgment against the nurse; and

(3)  other relevant information known by the insurer, as required by the board.

(e)  A registered nurse shall report the information required to be reported under this section if the nurse is named as a defendant in a claim arising from providing or failing to provide professional nursing care and the nurse:

(1)  does not carry or is not covered by professional liability insurance; or

(2)  is insured by a nonadmitted carrier. (V.A.C.S. Art. 4525a, Sec. 5.)

Sec. 301.409.  DUTY OF PROSECUTING ATTORNEY TO REPORT. (a) The attorney representing the state shall cause the clerk of the court of record in which the conviction, adjudication, or finding is entered to prepare and forward to the board a certified true and correct abstract of the court record of the case not later than the 30th day after the date:

(1)  a person known to be a registered nurse who is licensed, otherwise lawfully practicing in this state, or applying to be licensed to practice is convicted of:

(A)  a felony;

(B)  a misdemeanor involving moral turpitude;

(C)  a violation of a state or federal narcotics or controlled substance law; or

(D)  an offense involving fraud or abuse under the Medicare or Medicaid program; or

(2)  a court finds that a registered nurse is mentally ill or mentally incompetent.

(b)  A prosecuting attorney shall comply with Subsection (a) even if the conviction, adjudication, or finding is entered, withheld, or appealed under the laws of this state.

(c)  The abstract required under Subsection (a) must include:

(1)  the name and address of the nurse or applicant;

(2)  a description of the nature of the offense committed, if any;

(3)  the sentence, if any; and

(4)  the judgment of the court.

(d)  The board shall prepare the form of the abstract and distribute a copy to each district attorney and county attorney in this state with appropriate instructions for preparation and filing. (V.A.C.S. Art. 4525a, Sec. 6.)

Sec. 301.410.  REPORT REGARDING IMPAIRMENT BY CHEMICAL DEPENDENCY OR MENTAL ILLNESS. A person who is required to report a registered nurse under this subchapter because the nurse is impaired or suspected of being impaired by chemical dependency or mental illness may report to a peer assistance program approved by the board under Chapter 467, Health and Safety Code, instead of reporting to the board or requesting review by a professional nursing peer review committee. (V.A.C.S. Art. 4525a, Sec. 8.)

Sec. 301.411.  EFFECT OF FAILURE TO REPORT. (a) A person is not liable in a civil action for failure to file a report required by this subchapter.

(b)  The appropriate state licensing agency may take action against a person regulated by the agency for a failure to report as required by this subchapter. (V.A.C.S. Art. 4525a, Sec. 9.)

Sec. 301.412.  REPORTING IMMUNITY. A person who, without malice, makes a report required or authorized, or reasonably believed to be required or authorized, under this subchapter:

(1)  is immune from civil liability; and

(2)  may not be subjected to other retaliatory action as a result of making the report. (V.A.C.S. Art. 4525a, Sec. 10(a).)

Sec. 301.413.  RETALIATORY ACTION. (a) A person named as a defendant in a civil action or subjected to other retaliatory action as a result of filing a report required, authorized, or reasonably believed to be required or authorized under this subchapter may file a counterclaim in the pending action or prove a cause of action in a subsequent suit to recover defense costs, including reasonable attorney's fees and actual and punitive damages, if the suit or retaliatory action is determined to be frivolous, unreasonable, or taken in bad faith.

(b)  A person may not suspend or terminate the employment of, or otherwise discipline or discriminate against, a person who reports, without malice, under this subchapter.

(c)  A person who reports under this subchapter has a cause of action against a person who violates Subsection (b), and may recover:

(1)  the greater of:

(A)  actual damages, including damages for mental anguish even if no other injury is shown; or

(B)  $1,000;

(2)  exemplary damages;

(3)  court costs; and

(4)  reasonable attorney's fees.

(d)  In addition to the amount recovered under Subsection (c), a person whose employment is suspended or terminated in violation of this section is entitled to:

(1)  reinstatement in the employee's former position or severance pay in an amount equal to three months of the employee's most recent salary; and

(2)  compensation for wages lost during the period of suspension or termination.

(e)  A person who brings an action under this section has the burden of proof. It is a rebuttable presumption that the person's employment was suspended or terminated for reporting under this subchapter if:

(1)  the person was suspended or terminated within 60 days after the date the report was made; and

(2)  the board or a court determines that the report that is the subject of the cause of action was:

(A)  authorized or required under Section 301.402, 301.403, 301.405, 301.406, 301.407, 301.408, 301.409, or 301.410; and

(B)  made without malice.

(f)  An action under this section may be brought in a district court of the county in which:

(1)  the plaintiff resides;

(2)  the plaintiff was employed by the defendant; or

(3)  the defendant conducts business. (V.A.C.S. Art. 4525a, Secs. 10(b), 11.)

Sec. 301.414.  NOTICE AND REVIEW OF REPORT. (a) The board shall notify each registered nurse who is reported to the board under Section 301.402, 301.403, 301.405, 301.406, 301.407, 301.408, or 301.409 of the filing of the report unless the notification would jeopardize an active investigation.

(b)  The registered nurse or the nurse's authorized representative is entitled on request to review any report submitted to the board under a section specified under Subsection (a) unless doing so would jeopardize an active investigation. The board may not reveal the identity of the person making or signing the report. (V.A.C.S. Art. 4525a, Secs. 12(a), (b).)

Sec. 301.415.  REBUTTAL STATEMENT. (a) A registered nurse who is entitled to receive notice under Section 301.414 or the authorized representative of the nurse may file with the board a statement of reasonable length containing the nurse's rebuttal of any information in the report to the board.

(b)  The statement made under Subsection (a) must accompany the part of the report being rebutted.

(c)  In investigating the report, the board shall:

(1)  review the statement made under Subsection (a); and

(2)  evaluate each reason asserted by the nurse to justify the nurse's conduct. (V.A.C.S. Art. 4525a, Sec. 12(c).)

Sec. 301.416.  INVESTIGATION. (a) Except as provided by Subsections (b) and (c), a report under this subchapter shall be treated as a complaint under Section 301.457.

(b)  If the board determines that the reported conduct does not indicate that the continued practice of professional nursing by the nurse poses a risk of harm to a client or other person, the board, with the written consent of the nurse and the person making the report, may elect not to proceed with an investigation or to file formal charges. The board shall:

(1)  maintain a record of the report; and

(2)  investigate the report if it receives two or more reports involving separate incidents regarding the nurse in any five-year period.

(c)  The board is not required to investigate a report filed by an insurer under Section 301.408, but shall:

(1)  maintain a record of the report; and

(2)  investigate the report if it receives two or more reports involving separate incidents regarding the nurse in any five-year period. (V.A.C.S. Art. 4525a, Sec. 12A.)

Sec. 301.417.  CONFIDENTIALITY REQUIREMENTS; DISCLOSURE OF INFORMATION. (a) A report required or authorized under this subchapter and the identity of the person making the report are confidential and may not be disclosed except as provided by this section and Section 301.414.

(b)  The board may use the information in connection with an investigation or disciplinary action against a license holder or in the subsequent trial or appeal of a board action or order. The board may disclose the information to:

(1)  a licensing or disciplinary authority of another jurisdiction;

(2)  a peer assistance program approved by the board under Chapter 467, Health and Safety Code; or

(3)  a person engaged in bona fide research or another educational purpose if all information identifying any specific individual is first deleted.

(c)  On the request of a person required to report under Section 301.405, the board shall provide to the person information about:

(1)  each allegation contained in the report;

(2)  the determination of a peer review committee; and

(3)  the status of the board's investigation.

(d)  In addition to the other authorizations of this section, the information may be disclosed in:

(1)  a civil action in which a reporting person is named as a defendant as a result of making the report; or

(2)  the prosecution of a cause of action based on a claim that the reporting person was subject to retaliatory action as a result of making the report. (V.A.C.S. Art. 4525a, Sec. 14.)

Sec. 301.418.  DISCLOSURE OF CHARGES OR DISCIPLINARY ACTION. (a) This subchapter does not prevent disclosure under Section 301.466 of formal charges filed by the board or a final disciplinary action taken by the board as a result, in whole or in part, of submission of a report under this subchapter.

(b)  A report or information submitted as required or authorized by this subchapter arising out of the provision or failure to provide professional nursing services may not be made available in a liability action for:

(1)  discovery;

(2)  court subpoena; or

(3)  introduction into evidence.

(c)  A person is not prevented from taking disciplinary action against a registered nurse by:

(1)  the filing of a report under this subchapter with the board;

(2)  an investigation by the board; or

(3)  the disposition of a matter by the board. (V.A.C.S. Art. 4525a, Secs. 15(a), (b).)

Sec. 301.419.  GENERAL PROVISIONS REGARDING DUTY TO REPORT; MINOR INCIDENTS. (a) In this section, "minor incident" means conduct that does not indicate that the continuing practice of professional nursing by an affected nurse poses a risk of harm to a client or other person.

(b)  The board shall adopt rules governing reporting required under this subchapter to minimize:

(1)  unnecessary duplicative reporting; and

(2)  the reporting of a minor incident.

(c)  If the board determines that a report submitted under this subchapter is without merit, the board shall expunge the report from the registered nurse's file.

(d)  The board shall inform, in the manner the board determines appropriate, registered nurses, facilities, agencies, and other persons of their duty to report under this subchapter.

(e)  The reporting required under this subchapter does not constitute state action on behalf of the person reporting.

(f)  The duty to report or any other requirement of this subchapter may not be nullified by a contract. (V.A.C.S. Art. 4525a, Secs. 1(b), 6A, 13, 15(c), (d), 16(b).)

[Sections 301.420-301.450 reserved for expansion]

SUBCHAPTER J. PROHIBITED PRACTICES AND DISCIPLINARY ACTIONS

Sec. 301.451.  CERTAIN PROHIBITED PRACTICES. A person may not:

(1)  sell, fraudulently obtain, or fraudulently furnish a nursing diploma, license, renewal license, or record;

(2)  assist another person in selling, fraudulently obtaining, or fraudulently furnishing a nursing diploma, license, renewal license, or record;

(3)  practice professional nursing under a diploma, license, or record that was:

(A)  obtained unlawfully or fraudulently; or

(B)  signed or issued unlawfully or under false representation; or

(4)  practice professional nursing in a period in which the person's license is suspended or revoked. (V.A.C.S. Art. 4527a, Secs. 1, 2, 4.)

Sec. 301.452.  GROUNDS FOR DISCIPLINARY ACTION. (a) In this section, "intemperate use" includes practicing professional nursing or being on duty or on call while under the influence of alcohol or drugs.

(b)  A person is subject to denial of a license or to disciplinary action under this subchapter for:

(1)  a violation of this chapter or a rule or order issued under this chapter;

(2)  fraud or deceit in procuring or attempting to procure a license to practice professional nursing;

(3)  a conviction for a felony or for a misdemeanor involving moral turpitude;

(4)  conduct that results in the revocation of probation imposed because of conviction for a felony or for a misdemeanor involving moral turpitude;

(5)  use of a nursing license, diploma, or permit, or the transcript of such a document, that has been fraudulently purchased, issued, counterfeited, or materially altered;

(6)  impersonating or acting as a proxy for another person in the licensing examination required under Section 301.253 or 301.255;

(7)  directly or indirectly aiding or abetting an unlicensed person in connection with the unauthorized practice of professional nursing;

(8)  revocation, suspension, or denial of, or any other action relating to, the person's license to practice nursing in another jurisdiction;

(9)  intemperate use of alcohol or drugs that the board determines endangers or could endanger a patient;

(10)  unprofessional or dishonorable conduct that, in the board's opinion, is likely to deceive, defraud, or injure a patient or the public;

(11)  adjudication of mental incompetency;

(12)  lack of fitness to practice because of a mental or physical health condition that could result in injury to a patient or the public; or

(13)  failure to care adequately for a patient or to conform to the minimum standards of acceptable professional nursing practice in a manner that, in the board's opinion, exposes a patient or other person unnecessarily to risk of harm.

(c)  The board may refuse to admit a person to a licensing examination for a ground described under Subsection (b). (V.A.C.S. Art. 4525, Subsecs. (a) (part), as amended Acts 73rd Leg., R.S., Ch. 436, (a) (part), as amended Acts 73rd Leg., R.S., Ch. 840, (b), as amended Acts 73rd Leg., R.S., Ch. 840.)

Sec. 301.453.  DISCIPLINARY AUTHORITY OF BOARD; METHODS OF DISCIPLINE. (a) If the board determines that a person has committed an act listed in Section 301.452(b), the board shall enter an order imposing one or more of the following:

(1)  denial of the person's application for a license, license renewal, or temporary permit;

(2)  issuance of a written warning;

(3)  administration of a public reprimand;

(4)  limitation or restriction of the person's license, including:

(A)  limiting to or excluding from the person's practice one or more specified activities of professional nursing; or

(B)  stipulating periodic board review;

(5)  suspension of the person's license for a period not to exceed five years;

(6)  revocation of the person's license; or

(7)  assessment of a fine.

(b)  In addition to or instead of an action under Subsection (a), the board, by order, may require the person to:

(1)  submit to care, counseling, or treatment by a health provider designated by the board as a condition for the issuance or renewal of a license;

(2)  participate in a program of education or counseling prescribed by the board;

(3)  practice for a specified period under the direction of a registered nurse designated by the board; or

(4)  perform public service the board considers appropriate.

(c)  The board may probate any penalty imposed on a registered nurse and may accept the voluntary surrender of a license. The board may not reinstate a surrendered license unless it determines that the person is competent to resume practice.

(d)  If the board suspends, revokes, or accepts surrender of a license, the board may impose conditions for reinstatement that the person must satisfy before the board may issue an unrestricted license. (V.A.C.S. Art. 4525, Subsec. (a) (part), as amended Acts 73rd Leg., R.S., Ch. 436; Art. 4525.1, Subsecs. (a), (b), (c), (d).)

Sec. 301.454.  NOTICE AND HEARING. (a)  Except in the case of a temporary suspension authorized under Section 301.455 or an action taken in accordance with an agreement between the board and a license holder, the board may not initiate a disciplinary action relating to a license unless:

(1)  the board has served notice to the license holder of the facts or conduct alleged to warrant the intended action; and

(2)  the license holder has been given an opportunity, in writing or through an informal meeting, to show compliance with all requirements of law for the retention of the license.

(b)  If an informal meeting is held, a board member, staff member, or board representative who attends the meeting is considered to have participated in the hearing of the case for the purposes of ex parte communications under Section 2001.061, Government Code.

(c)  A person is entitled to a hearing conducted by the State Office of Administrative Hearings if the board proposes to:

(1)  refuse to admit the person to examination;

(2)  refuse to issue a license or temporary permit;

(3)  refuse to renew a license; or

(4)  suspend or revoke the person's license or permit.

(d)  The State Office of Administrative Hearings shall use the schedule of sanctions adopted by the board for any sanction imposed as the result of a hearing conducted by that office.

(e)  Notwithstanding Subsection (a), a person is not entitled to a hearing on a refusal to renew a license if the person:

(1)  fails to submit a renewal application; or

(2)  submits an application that:

(A)  is incomplete;

(B)  shows on its face that the person does not meet the renewal requirements; or

(C)  is not accompanied by the correct fee. (V.A.C.S. Art. 4525, Subsecs. (a) (part), as amended Acts 73rd Leg., R.S., Ch. 840,(a-1), (b) (part), as amended Acts 73rd Leg., R.S., Ch. 436, (k); Art. 4525.1, Subsec. (e); Art. 4525.4.)

Sec. 301.455.  TEMPORARY LICENSE SUSPENSION. (a)  The license of a registered nurse shall be temporarily suspended on a determination by a majority of the board or a three-member committee of board members designated by the board that, from the evidence or information presented, the continued practice of the registered nurse would constitute a continuing and imminent threat to the public welfare.

(b)  A license may be temporarily suspended under this section without notice or hearing on the complaint if:

(1)  institution of proceedings for a hearing before the State Office of Administrative Hearings is initiated simultaneously with the temporary suspension; and

(2)  a hearing is held as soon as possible under this chapter and Chapter 2001, Government Code.

(c)  The State Office of Administrative Hearings shall hold a preliminary hearing not later than the 14th day after the date of the temporary suspension to determine whether probable cause exists that a continuing and imminent threat to the public welfare exists.

(d)  A final hearing on the matter shall be held not later than the 61st day after the date of the temporary suspension. (V.A.C.S. Art. 4525e.)

Sec. 301.456.  EVIDENCE. A certified copy of the order of the license denial, suspension, or revocation or other action under Section 301.452(b)(8) is conclusive evidence of that action. (V.A.C.S. Art. 4525, Subsecs. (a) (part), as amended Acts 73rd Leg., R.S., Ch. 436, (b) (part), as amended Acts 73rd Leg., R.S., Ch. 840.)

Sec. 301.457.  COMPLAINT AND INVESTIGATION. (a)  The board or any person may initiate a proceeding under this subchapter by filing with the board a complaint against a registered nurse. The complaint must be in writing and signed by the complainant.

(b)  Except as otherwise provided by this section, the board or a person authorized by the board shall conduct each investigation. Each complaint against a registered nurse that requires a determination of professional nursing competency shall be reviewed by a board member, consultant, or employee with a professional nursing background the board considers sufficient.

(c)  On the filing of a complaint, the board:

(1)  may conduct a preliminary investigation into the identity of the registered nurse named or described in the complaint;

(2)  shall make a timely and appropriate preliminary investigation of the complaint; and

(3)  may issue a warning or reprimand to the registered nurse.

(d)  After any preliminary investigation to determine the identity of the subject of the complaint, unless it would jeopardize an investigation, the board shall notify the registered nurse that a complaint has been filed and the nature of the complaint. If the investigation reveals probable cause to take further disciplinary action, the board shall either attempt an informal disposition of the complaint or file a formal charge against the registered nurse stating the provision of this chapter or board rule that is alleged to have been violated and a brief description of each act or omission that constitutes the violation.

(e)  The board shall conduct an investigation of the complaint to determine:

(1)  whether the registered nurse's continued practice of professional nursing poses a risk of harm to clients or other persons; and

(2)  whether probable cause exists that a registered nurse committed an act listed in Section 301.452(b) or that violates other law. (V.A.C.S. Art. 4525, Subsec. (b) (part), as amended Acts 73rd Leg., R.S., Ch. 436; Art. 4525.2; Art. 4525.5(a) (part).)

Sec. 301.458.  INITIATION OF FORMAL CHARGES; DISCOVERY. (a) Unless there is an agreed disposition of the complaint under Section 301.463, and if probable cause is found under Section 301.457(e)(2), the board or the board's authorized representative shall initiate proceedings by filing formal charges against the registered nurse.

(b)  A formal charge must:

(1)  be written;

(2)  be specific enough to enable a person of common understanding to know what is meant by the formal charge; and

(3)  contain a degree of certainty that gives the person who is the subject of the formal charge notice of each particular act alleged to violate a specific statute, board rule, or board order.

(c)  A copy of the formal charge shall be served on the registered nurse or the nurse's counsel of record.

(d)  The board shall adopt reasonable rules to promote discovery by each party to a contested case. (V.A.C.S. Art. 4525.5, Subsecs. (a) (part), (b), (c).)

Sec. 301.459.  FORMAL HEARING. (a) The board by rule shall adopt procedures under Chapter 2001, Government Code, governing formal disposition of a contested case. The State Office of Administrative Hearings shall conduct a formal hearing.

(b)  In any hearing under this section, a registered nurse is entitled to appear in person or by counsel. (V.A.C.S. Art. 4525.6, Subsecs. (a), (c).)

Sec. 301.460.  ACCESS TO INFORMATION. (a) Except for good cause shown for delay and subject to any other privilege or restriction set forth by statute, rule, or legal precedent, the board shall, not later than the 30th day after the date the board receives a written request from a license holder who is the subject of a formal charge filed under Section 301.458 or from the license holder's counsel of record, provide the license holder with access to:

(1)  all known exculpatory information in the board's possession; and

(2)  information in the board's possession that the board intends to offer into evidence in presenting its case in chief at the contested hearing on the complaint.

(b)  The board is not required to provide:

(1)  board investigative reports or investigative memoranda;

(2)  the identity of nontestifying complainants;

(3)  attorney-client communications;

(4)  attorney work product; or

(5)  other materials covered by a privilege as recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence.

(c)  The provision of information under Subsection (a) does not constitute a waiver of privilege or confidentiality under this chapter or other applicable law. (V.A.C.S. Art. 4525.6, Subsec. (b).)

Sec. 301.461.  ASSESSMENT OF COSTS. The board may assess a person who is found to have violated this chapter the administrative costs of conducting a hearing to determine the violation. (V.A.C.S. Art. 4525, Subsec. (b) (part), as amended Acts 73rd Leg., R.S., Ch. 436.)

Sec. 301.462.  VOLUNTARY SURRENDER OF LICENSE. The board may revoke a registered nurse's license without formal charges, notice, or opportunity of hearing if the nurse voluntarily surrenders the nurse's license to the board and executes a sworn statement that the nurse does not desire to be licensed. (V.A.C.S. Art. 4525, Subsec. (b) (part), as amended Acts 73rd Leg., R.S., Ch. 436.)

Sec. 301.463.  AGREED DISPOSITION. (a) Unless precluded by this chapter or other law, the board may dispose of a complaint by:

(1)  stipulation;

(2)  agreed settlement;

(3)  agreed order; or

(4)  dismissal.

(b)  An agreed disposition of a complaint is considered to be a disciplinary order for purposes of reporting under this chapter and an administrative hearing and proceeding by a state or federal regulatory agency regarding the practice of professional nursing.

(c)  An agreed order is a public record.

(d)  In civil or criminal litigation an agreed disposition is a settlement agreement under Rule 408, Texas Rules of Evidence. (V.A.C.S. Art. 4525.3, Subsecs. (a), (b).)

Sec. 301.464.  INFORMAL PROCEEDINGS. (a) The board by rule shall adopt procedures governing:

(1)  informal disposition of a contested case under Section 2001.056, Government Code; and

(2)  an informal proceeding held in compliance with Section 2001.054, Government Code.

(b)  Rules adopted under this section must:

(1)  provide the complainant and the license holder an opportunity to be heard; and

(2)  require the presence of a representative of the board's legal staff or of the attorney general to advise the board or the board's employees. (V.A.C.S. Art. 4524C.)

Sec. 301.465.  SUBPOENAS; REQUEST FOR INFORMATION. (a) The board may request issuance of a subpoena to be served in any manner authorized by law, including personal service by a board investigator and service by certified mail.

(b)  Each person shall respond promptly and fully to a request for information by the board or to a subpoena issued by the board. A request or subpoena may not be refused, denied, or resisted unless the request or subpoena calls for information within the attorney-client privilege. No other privilege applies to a board proceeding.

(c)  The board may pay a reasonable fee for photocopies subpoenaed at the board's request. The amount paid may not exceed the amount the board charges for copies of its records.

(d)  The board shall protect, to the extent possible, the identity of each patient named in information received by the board. (V.A.C.S. Art. 4525, Subsec. (f).)

Sec. 301.466.  CONFIDENTIALITY. (a) A complaint and investigation concerning a registered nurse under this subchapter and all information and material compiled by the board in connection with the complaint and investigation are:

(1)  confidential and not subject to disclosure under Chapter 552, Government Code; and

(2)  not subject to disclosure, discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or a board employee or agent involved in license holder discipline.

(b)  Notwithstanding Subsection (a), information regarding a complaint and an investigation may be disclosed to:

(1)  a person involved with the board in a disciplinary action against the nurse;

(2)  a professional nursing licensing or disciplinary board in another jurisdiction;

(3)  a peer assistance program approved by the board under Chapter 467, Health and Safety Code;

(4)  a law enforcement agency; or

(5)  a person engaged in bona fide research, if all information identifying a specific individual has been deleted.

(c)  The filing of formal charges against a registered nurse by the board, the nature of those charges, disciplinary proceedings of the board, and final disciplinary actions, including warnings and reprimands, by the board are not confidential and are subject to disclosure in accordance with Chapter 552, Government Code. (V.A.C.S. Art. 4525, Subsecs. (g), (h).)

Sec. 301.467.  REINSTATEMENT. (a) On application, the board may reinstate a license to practice professional nursing to a person whose license has been revoked, suspended, or surrendered.

(b)  An application to reinstate a revoked license:

(1)  may not be made before the first anniversary of the date of the revocation; and

(2)  must be made in the manner and form the board requires.

(c)  If the board denies an application for reinstatement, it may set a reasonable waiting period before the applicant may reapply for reinstatement. (V.A.C.S. Art. 4525, Subsec. (c)(2).)

Sec. 301.468.  PROBATION. (a) The board may determine that an order denying a license application or suspending a license be probated. A person subject to a probation order shall conform to each condition the board sets as the terms of probation, including a condition:

(1)  limiting the practice of the person to, or excluding, one or more specified activities of professional nursing; or

(2)  requiring the person to submit to supervision, care, counseling, or treatment by a practitioner designated by the board.

(b)  At the time the probation is granted, the board shall establish the term of the probationary period.

(c)  At any time while the person remains subject to the probation order, the board may hold a hearing and rescind the probation and enforce the board's original action in denying or suspending the license. The hearing shall be called by the presiding officer of the board, who shall issue a notice to be served on the person or the person's counsel not later than the 20th day before the date scheduled for the hearing that:

(1)  sets the time and place for the hearing; and

(2)  contains the charges or complaints against the probationer.

(d)  Notice under Subsection (c) is sufficient if sent by registered or certified mail to the affected person at the person's most recent address as shown in the board's records. (V.A.C.S. Art. 4525, Subsec. (d).)

Sec. 301.469.  NOTICE OF FINAL ACTION. If the board takes a final disciplinary action, including a warning or reprimand, against a registered nurse under this subchapter, the board shall immediately send a copy of the board's final order to the nurse and to the last known employer of the nurse. (V.A.C.S. Art. 4525, Subsec. (i).)

[Sections 301.470-301.500 reserved for expansion]

SUBCHAPTER K. ADMINISTRATIVE PENALTY

Sec. 301.501.  IMPOSITION OF PENALTY. The board may impose an administrative penalty on a person licensed or regulated under this chapter who violates this chapter or a rule or order adopted under this chapter. (V.A.C.S. Art. 4527d, Subsec. (a).)

Sec. 301.502.  AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $2,500 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

(b)  The amount of the penalty shall be based on:

(1)  the seriousness of the violation, including:

(A)  the nature, circumstances, extent, and gravity of any prohibited acts; and

(B)  the hazard or potential hazard created to the health, safety, or economic welfare of the public;

(2)  the economic harm to property or the environment caused by the violation;

(3)  the history of previous violations;

(4)  the amount necessary to deter a future violation;

(5)  efforts made to correct the violation; and

(6)  any other matter that justice may require. (V.A.C.S. Art. 4527d, Subsecs. (b), (c).)

Sec. 301.503.  REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If the executive director determines that a violation has occurred, the executive director shall issue to the board a report stating:

(1)  the facts on which the determination is based; and

(2)  the director's recommendation on the imposition of the administrative penalty, including a recommendation on the amount of the penalty.

(b)  Not later than the 14th day after the date the report is issued, the executive director shall give written notice of the report to the person on whom the penalty may be imposed. The notice may be given by certified mail. The notice must:

(1)  include a brief summary of the alleged violation;

(2)  state the amount of the recommended penalty; and

(3)  inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both. (V.A.C.S. Art. 4527d, Subsecs. (d), (e).)

Sec. 301.504.  PENALTY TO BE PAID OR HEARING REQUESTED. (a)  Not later than the 20th day after the date the person receives the notice, the person may:

(1)  accept the executive director's determination and recommended administrative penalty in writing; or

(2)  make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both.

(b)  If the person accepts the executive director's determination and recommended penalty, the board by order shall approve the determination and impose the recommended penalty. (V.A.C.S. Art. 4527d, Subsecs. (f), (g).)

Sec. 301.505.  HEARING. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the executive director shall set a hearing and give notice of the hearing to the person.

(b)  An administrative law judge of the State Office of Administrative Hearings shall hold the hearing.

(c)  The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the board a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty. (V.A.C.S. Art. 4527d, Subsec. (h) (part).)

Sec. 301.506.  DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the board by order may:

(1)  find that a violation occurred and impose an administrative penalty; or

(2)  find that a violation did not occur.

(b)  The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order. (V.A.C.S. Art. 4527d, Subsecs. (h) (part), (i).)

Sec. 301.507.  OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall:

(1)  pay the administrative penalty;

(2)  pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or

(3)  without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.

(b)  Within the 30-day period, a person who acts under Subsection (a)(3) may:

(1)  stay enforcement of the penalty by:

(A)  paying the penalty to the court for placement in an escrow account; or

(B)  giving to the court a supersedeas bond that is approved by the court and that:

(i)  is for the amount of the penalty; and

(ii)  is effective until judicial review of the board's order is final; or

(2)  request the court to stay enforcement of the penalty by:

(A)  filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and

(B)  giving a copy of the affidavit to the executive director by certified mail.

(c)  If the executive director receives a copy of an affidavit under Subsection (b)(2), the executive director may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.

(d)  The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (V.A.C.S. Art. 4527d, Subsecs. (j), (k), (l).)

Sec. 301.508.  COLLECTION OF PENALTY. If the person does not pay the penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the penalty. (V.A.C.S. Art. 4527d, Subsec. (m).)

Sec. 301.509.  DETERMINATION BY COURT. (a)  If a court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.

(b)  If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed. (V.A.C.S. Art. 4527d, Subsec. (o).)

Sec. 301.510.  REMITTANCE OF PENALTY AND INTEREST. (a)  If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:

(1)  order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or

(2)  order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.

(b)  The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (V.A.C.S. Art. 4527d, Subsec. (p).)

Sec. 301.511.  ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is subject to Chapter 2001, Government Code. (V.A.C.S. Art. 4527d, Subsec. (r).)

[Sections 301.512-301.550 reserved for expansion]

SUBCHAPTER L. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 301.551.  INJUNCTION. (a) In addition to any other action authorized by law, the board may institute an action in its name to enjoin a violation of this chapter or a board rule.

(b)  To obtain an injunction under this section, it is not necessary to allege or prove that:

(1)  an adequate remedy at law does not exist; or

(2)  substantial or irreparable damage would result from the continued violation.

(c)  Notwithstanding Subsection (b), in a proceeding for an injunction under Subsection (a), the defendant may assert and prove as a complete defense to the action that the board's actions or proceedings were:

(1)  arbitrary or capricious;

(2)  contrary to legal requirements; or

(3)  conducted without due process of law.

(d)  Either party to an action under Subsection (a) may appeal. The board is not required to give an appeal bond in a cause arising under this section. (V.A.C.S. Art. 4527c.)

Sec. 301.552.  MONITORING OF LICENSE HOLDER. The board by rule shall develop a system for monitoring the compliance of license holders with the requirements of this chapter. Rules adopted under this section must include procedures to:

(1)  monitor for compliance a license holder who is ordered by the board to perform certain acts; and

(2)  identify and monitor each license holder who represents a risk to the public. (V.A.C.S. Art. 4524D.)

Sec. 301.553.  CIVIL PENALTY. (a) A person who violates Section 301.451 or Section 301.251 is liable to the state for a civil penalty not to exceed $1,000 a day.

(b)  The civil penalty may be collected in a suit initiated by the board. (V.A.C.S. Art. 4527b, Subsec. (b).)

Sec. 301.554.  CRIMINAL PENALTY. (a) A person commits an offense if the person violates Section 301.451 or Section 301.251.

(b)  An offense under Subsection (a) is a Class A misdemeanor, except that if it is shown on the trial of the offense that the defendant has been previously convicted under Subsection (a), the offense is a felony of the third degree.

(c)  Each day of violation constitutes a separate offense.

(d)  On final conviction of an offense under Subsection (a), the defendant forfeits all rights and privileges conferred by a license issued under this chapter. (V.A.C.S. Art. 4527b, Subsec. (a).)

Sec. 301.555.  APPEAL. (a) A person against whom the board has taken adverse action under this chapter may appeal to a district court in the county of the person's residence or in Travis County.

(b)  The board's decision may not be enjoined or stayed except on application to the district court after notice to the board. (V.A.C.S. Art. 4525, Subsec. (c)(1).)

CHAPTER 302. LICENSED VOCATIONAL NURSES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 302.001. DEFINITIONS

Sec. 302.002. APPLICATION OF SUNSET ACT

Sec. 302.003. APPLICATION OF CHAPTER

[Sections 302.004-302.050 reserved for expansion]

SUBCHAPTER B. BOARD OF LICENSED VOCATIONAL NURSE EXAMINERS

Sec. 302.051. BOARD MEMBERSHIP; ELIGIBILITY

Sec. 302.052. PUBLIC MEMBER ELIGIBILITY

Sec. 302.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS

Sec. 302.054. TERMS; VACANCY

Sec. 302.055. GROUNDS FOR REMOVAL

Sec. 302.056. PER DIEM; REIMBURSEMENT

Sec. 302.057. OFFICERS

Sec. 302.058. MEETINGS; ANNUAL MEETING

Sec. 302.059. TRAINING

[Sections 302.060-302.100 reserved for expansion]

SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL

Sec. 302.101. EXECUTIVE DIRECTOR

Sec. 302.102. DIRECTOR OF EDUCATION

Sec. 302.103. PERSONNEL

Sec. 302.104. QUALIFICATIONS AND STANDARDS OF CONDUCT

INFORMATION

Sec. 302.105. CAREER LADDER PROGRAM; PERFORMANCE

EVALUATIONS

Sec. 302.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT

[Sections 302.107-302.150 reserved for expansion]

SUBCHAPTER D. GENERAL POWERS AND DUTIES OF BOARD

Sec. 302.151. GENERAL POWERS AND DUTIES OF BOARD; RULEMAKING

AUTHORITY

Sec. 302.152. RULES REGARDING ADVERTISING AND COMPETITIVE

BIDDING

Sec. 302.153. FEES

Sec. 302.154. OCCUPATIONAL TAX AND FEE EXEMPTION

Sec. 302.155. DISSEMINATION OF INFORMATION

Sec. 302.156. BOARD DUTIES REGARDING COMPLAINTS

Sec. 302.157. LEGAL COUNSEL

Sec. 302.158. ANNUAL REPORT

[Sections 302.159-302.200 reserved for expansion]

SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND

COMPLAINT PROCEDURES

Sec. 302.201. PUBLIC INTEREST INFORMATION

Sec. 302.202. COMPLAINTS

Sec. 302.203. RECORDS OF COMPLAINTS

Sec. 302.204. GENERAL RULES REGARDING COMPLAINT

INVESTIGATION

Sec. 302.205. DISPOSITION OF COMPLAINTS

Sec. 302.206. PUBLIC PARTICIPATION

[Sections 302.207-302.250 reserved for expansion]

SUBCHAPTER F. PROGRAM APPROVAL

Sec. 302.251. DEFINITION

Sec. 302.252. APPLICATION

Sec. 302.253. ADDITIONAL APPROVAL REQUIREMENTS FOR

HOSPITALS

Sec. 302.254. SURVEY; PLACEMENT ON LIST OF INSTITUTIONS

Sec. 302.255. DUTIES OF DIRECTOR OF EDUCATION; VISIT AND

SURVEY

Sec. 302.256. PERIODIC SURVEY OF PROGRAMS; FEE

[Sections 302.257-302.300 reserved for expansion]

SUBCHAPTER G. LICENSE REQUIREMENTS

Sec. 302.301. LICENSE REQUIRED

Sec. 302.302. LICENSE APPLICATION

Sec. 302.303. ALTERNATIVE EDUCATIONAL REQUIREMENTS

Sec. 302.304. TRAINING IN OTHER JURISDICTIONS

Sec. 302.305. EXAMINATION

Sec. 302.306. EXAMINATION RESULTS

Sec. 302.307. TEMPORARY PERMIT

Sec. 302.308. TEMPORARY LICENSE BY ENDORSEMENT

Sec. 302.309. RULES FOR TRANSPORTING PATIENTS

Sec. 302.310. INACTIVE STATUS

Sec. 302.311. INSIGNIA

[Sections 302.312-302.350 reserved for expansion]

SUBCHAPTER H. LICENSE RENEWAL

Sec. 302.351. LICENSE RENEWAL

Sec. 302.352. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE

PRACTITIONER

Sec. 302.353. CONTINUING EDUCATION

[Sections 302.354-302.400 reserved for expansion]

SUBCHAPTER I. PROHIBITED PRACTICES AND DISCIPLINARY ACTIONS

Sec. 302.401. CERTAIN PROHIBITED PRACTICES

Sec. 302.402. GROUNDS FOR DISCIPLINARY ACTION

Sec. 302.403. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF

DISCIPLINE

Sec. 302.404. HEARING

Sec. 302.405. SUBPOENA AND OTHER PROCEDURAL POWERS

Sec. 302.406. REQUEST FOR INFORMATION; SUBPOENA

Sec. 302.407. TEMPORARY SUSPENSION OF LICENSE

Sec. 302.408. SCHEDULE OF SANCTIONS

Sec. 302.409. APPEAL

Sec. 302.410. VOLUNTARY SURRENDER OF LICENSE

Sec. 302.411. INFORMAL PROCEEDINGS

[Sections 302.412-302.450 reserved for expansion]

SUBCHAPTER J. ADMINISTRATIVE PENALTY

Sec. 302.451. IMPOSITION OF PENALTY

Sec. 302.452. AMOUNT OF PENALTY

Sec. 302.453. REPORT AND NOTICE OF VIOLATION AND

PENALTY

Sec. 302.454. PENALTY TO BE PAID OR HEARING REQUESTED

Sec. 302.455. HEARING

Sec. 302.456. DECISION BY BOARD

Sec. 302.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL

Sec. 302.458. DETERMINATION BY A COURT

Sec. 302.459. REMITTANCE OF PENALTY AND INTEREST

Sec. 302.460. COLLECTION OF PENALTY

Sec. 302.461. ADMINISTRATIVE PROCEDURE

Sec. 302.462. DEPOSIT OF PENALTY

[Sections 302.463-302.500 reserved for expansion]

SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 302.501. INJUNCTIONS

Sec. 302.502. MONITORING OF LICENSED VOCATIONAL NURSES

Sec. 302.503. CIVIL PENALTY

Sec. 302.504. CRIMINAL PENALTY

CHAPTER 302. LICENSED VOCATIONAL NURSES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 302.001.  DEFINITIONS. In this chapter:

(1)  "Board" means the Board of Vocational Nurse Examiners.

(2)  "Licensed practical nurse" means the title used in other states for a nurse with licensure requirements similar to those for a licensed vocational nurse. The term is synonymous with "practical nurse."

(3)  "Licensed vocational nurse" means a person licensed under this chapter.

(4)  "Nursing" means attending to or caring for a person's illness or health for compensation.

(5)  "Vocational nursing" means nursing that generally requires experience and education in biological, physical, and social sciences sufficient to qualify as a licensed vocational nurse. (V.A.C.S. Art. 4528c, Sec. 1.)

Sec. 302.002.  APPLICATION OF SUNSET ACT. The Board of Vocational Nurse Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2005. (V.A.C.S. Art. 4528c, Sec. 5(k).)

Sec. 302.003.  APPLICATION OF CHAPTER. This chapter does not apply to:

(1)  nursing of the sick provided without charge by a friend or family member; or

(2)  a person who does not:

(A)  represent to the public that the person is a licensed vocational nurse; or

(B)  use the abbreviation "L.V.N." (V.A.C.S. Art. 4528c, Sec. 3.)

[Sections 302.004-302.050 reserved for expansion]

SUBCHAPTER B. BOARD OF LICENSED VOCATIONAL NURSE EXAMINERS

Sec. 302.051.  BOARD MEMBERSHIP; ELIGIBILITY. (a) The Board of Vocational Nurse Examiners consists of 15 members appointed by the governor with the advice and consent of the senate as follows:

(1)  seven licensed vocational nurse members who:

(A)  are graduates of approved schools of vocational nursing;

(B)  have actively engaged in the practice of vocational nursing for the five years preceding appointment; and

(C)  are not licensed physicians, registered nurses, or hospital administrators;

(2)  one registered nurse member licensed by the Board of Nurse Examiners who:

(A)  is actively engaged in a teaching, administrative, or supervisory capacity in a vocational nursing educational program; and

(B)  is not a licensed physician, licensed vocational nurse, or hospital administrator;

(3)  one physician member licensed by the Texas State Board of Medical Examiners who:

(A)  has actively engaged in the practice of medicine for the five years preceding appointment; and

(B)  is not a registered nurse, licensed vocational nurse, or hospital administrator;

(4)  one hospital administrator member who:

(A)  has actively engaged in hospital administration for a period of five years; and

(B)  is not a licensed physician, registered nurse, or licensed vocational nurse; and

(5)  five members who represent the public.

(b)  Appointments to the board shall be made without regard to the race, color, disability, sex, religion, or national origin of the appointee.

(c)  Each appointee shall qualify by taking the constitutional oath of office not later than the 15th day after the date of appointment. (V.A.C.S. Art. 4528c, Secs. 5(a) (part), (b) (part).)

Sec. 302.052.  PUBLIC MEMBER ELIGIBILITY. A person is not eligible for appointment to the board as a public member if the person or the person's spouse:

(1)  is registered, certified, or licensed by an occupational regulatory agency in the field of health care;

(2)  is employed by or participates in the management of a business entity or other organization regulated by the board or receiving funds from the board;

(3)  owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by the board or receiving funds from the board; or

(4)  uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses. (V.A.C.S. Art. 4528c, Sec. 5(a) (part).)

Sec. 302.053.  MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a)  In this section, "Texas trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b)  An officer, employee, or paid consultant of a Texas trade association in the field of health care may not be a board member.

(c)  A person who is the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of health care may not be a board member.

(d)  A person may not serve as a member of the board or act as general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the board's operation. (V.A.C.S. Art. 4528c, Secs. 5(c), (d).)

Sec. 302.054.  TERMS; VACANCY. (a) Board members serve staggered six-year terms.

(b)  A member may not immediately succeed the member's term in office.

(c)  If a vacancy occurs on the board, the governor shall appoint a member to fill the vacant office for the remainder of the unexpired term not later than the 60th day after the date the vacancy occurs. (V.A.C.S. Art. 4528c, Sec. 5(b) (part).)

Sec. 302.055.  GROUNDS FOR REMOVAL. (a)  It is a ground for removal from the board that a member:

(1)  does not have at the time of appointment the qualifications required by Section 302.051 or 302.052;

(2)  does not maintain during service on the board the qualifications required by Section 302.051 or 302.052;

(3)  violates a prohibition established by Section 302.053;

(4)  cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or

(5)  is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year, unless the absence is excused by majority vote of the board.

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

(c)  If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the president of the board of the potential ground. The president shall then notify the governor that a potential ground for removal exists. (V.A.C.S. Art. 4528c, Sec. 5(e).)

Sec. 302.056.  PER DIEM; REIMBURSEMENT. (a) Each board member is entitled to receive a per diem as set by the General Appropriations Act for each day the member engages in the business of the board.

(b)  A board member may not receive reimbursement for travel expenses, including expenses for meals and lodging, other than transportation expenses. A member is entitled to reimbursement for transportation expenses as provided by the General Appropriations Act. (V.A.C.S. Art. 4528c, Sec. 5(h) (part).)

Sec. 302.057.  OFFICERS. (a) The governor shall designate a board member as the president of the board to serve in that capacity at the will of the governor.

(b)  The board shall elect a vice president and secretary-treasurer annually.

(c)  The secretary-treasurer shall keep:

(1)  minutes of each board meeting;

(2)  a register of the names of all nurses licensed under this chapter; and

(3)  records of fees received and disbursements.

(d)  The secretary-treasurer shall be bonded by the board in an amount recommended by the state auditor. (V.A.C.S. Art. 4528c, Sec. 5(f) (part).)

Sec. 302.058.  MEETINGS; ANNUAL MEETING. (a) The board shall hold a regular meeting at least twice each year. One regular meeting must be designated as an annual meeting. At the annual meeting, officers shall be elected and auditors' reports shall be read.

(b)  The board shall hold a special meeting at the request of five board members or the call of the president.

(c)  If a quorum does not exist on the day appointed for a board meeting, the members present may adjourn from day to day for a period not to exceed three days until a quorum exists. (V.A.C.S. Art. 4528c, Sec. 5(h) (part).)

Sec. 302.059.  TRAINING. (a) Before a board member may assume the member's duties, the member must complete at least one course of a training program established by the board under this section.

(b)  The training program shall provide information to the member regarding:

(1)  this chapter;

(2)  the programs operated by the board;

(3)  the role and functions of the board;

(4)  the rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;

(5)  the current budget for the board;

(6)  the results of the most recent formal audit of the board;

(7)  the requirements of Chapters 551, 552, 2001, and 2002, Government Code;

(8)  the requirements of the conflict of interest laws and other laws relating to public officials; and

(9)  any applicable ethics policies adopted by the board or the Texas Ethics Commission.

(c)  In developing the training program, the board shall consult with the governor's office, the attorney general's office, and the Texas Ethics Commission.

(d)  If another state agency or entity is given the authority to establish the training requirements for board members, the board shall allow that training instead of developing its own program. (V.A.C.S. Art. 4528c, Sec. 5(r).)

[Sections 302.060-302.100 reserved for expansion]

SUBCHAPTER C. EXECUTIVE DIRECTOR AND PERSONNEL

Sec. 302.101.  EXECUTIVE DIRECTOR. The board shall employ an executive director who is not a board member to perform the board's administrative functions. (V.A.C.S. Art. 4528c, Sec. 5(f) (part).)

Sec. 302.102.  DIRECTOR OF EDUCATION. The board shall employ a full-time director of education who:

(1)  is a licensed vocational nurse or a registered nurse; and

(2)  has taught nursing for at least five years in:

(A)  an accredited school of nursing; or

(B)  an approved vocational nursing program. (V.A.C.S. Art. 4528c, Sec. 5(g) (part).)

Sec. 302.103.  PERSONNEL. The board shall employ other persons that the board considers necessary to carry out this chapter. (V.A.C.S. Art. 4528c, Sec. 5(f) (part).)

Sec. 302.104.  QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide, as often as necessary, to its members and employees information regarding their:

(1)  qualifications for office or employment under this chapter; and

(2)  responsibilities under applicable laws relating to standards of conduct for state officers or employees. (V.A.C.S. Art. 4528c, Sec. 5(s).)

Sec. 302.105.  CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program must require intra-agency posting of all nonentry level positions concurrently with any public posting.

(b)  The executive director or the executive director's designee shall develop a system of annual performance evaluations that are based on measurable job tasks. All merit pay for board employees must be based on the system established under this subsection. (V.A.C.S. Art. 4528c, Sec. 5(m).)

Sec. 302.106.  EQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include:

(1)  personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel that are in compliance with the requirements of Chapter 21, Labor Code;

(2)  a comprehensive analysis of the board workforce that meets federal and state guidelines;

(3)  procedures by which a determination can be made of significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and

(4)  reasonable methods to appropriately address those areas of underuse.

(b)  A policy statement prepared under Subsection (a) must:

(1)  cover an annual period;

(2)  be updated annually;

(3)  be reviewed by the Texas Commission on Human Rights for compliance with Subsection (a)(1); and

(4)  be filed with the governor.

(c)  The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports to the legislature. (V.A.C.S. Art. 4528c, Sec. 5(n).)

[Sections 302.107-302.150 reserved for expansion]

SUBCHAPTER D. GENERAL POWERS AND DUTIES OF BOARD

Sec. 302.151.  GENERAL POWERS AND DUTIES OF BOARD; RULEMAKING AUTHORITY. (a) The board shall enforce this chapter.

(b)  The board may adopt rules as necessary to govern its proceedings and to implement the purposes of this chapter. (V.A.C.S. Art. 4528c, Secs. 5(f) (part), (j) (part).)

Sec. 302.152.  RULES REGARDING ADVERTISING AND COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a license holder under this chapter except to prohibit false, misleading, or deceptive practices by the license holder.

(b)  The board may not include in its rules to prohibit false, misleading, or deceptive practices by a license holder a rule that:

(1)  restricts the license holder's use of any medium for advertising;

(2)  restricts the license holder's personal appearance or use of the person's voice in an advertisement;

(3)  relates to the size or duration of an advertisement used by the license holder; or

(4)  restricts the use of a trade name in advertising by the license holder. (V.A.C.S. Art. 4528c, Sec. 5(i).)

Sec. 302.153.  FEES. (a) The board by rule shall establish reasonable and necessary fees that in the aggregate produce revenue sufficient to cover the cost of administering this chapter. The board may not establish a fee that was assessed on September 1, 1993, in an amount less than the amount of that fee on that date.

(b)  The board may not maintain unnecessary fund balances, and fee amounts shall be established in accordance with this requirement.

(c)  All expenses under this chapter shall be paid from fees collected by the board under this chapter. (V.A.C.S. Art. 4528c, Secs. 9(a) (part), (b).)

Sec. 302.154.  OCCUPATIONAL TAX AND FEE EXEMPTION. A licensed vocational nurse organization that operates a nonprofit registry to enroll members to provide nursing to the public is not liable for the payment of an occupation tax or license fee imposed under any law unless the licensed vocational nurse registry is specifically named in the law. (V.A.C.S. Art. 4528c, Sec. 4.)

Sec. 302.155.  DISSEMINATION OF INFORMATION. The board shall disseminate, at least twice a year and at other times the board determines necessary, information that is of significant interest to licensed vocational nurses and employers of licensed vocational nurses in this state, including summaries of final disciplinary action taken by the board against licensed vocational nurses since the previous dissemination of information. (V.A.C.S. Art. 4528c, Sec. 5(u).)

Sec. 302.156.  BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall:

(1)  adopt a form to standardize information concerning complaints made to the board; and

(2)  prescribe information to be provided to a person when the person files a complaint with the board.

(b)  The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (V.A.C.S. Art. 4528c, Secs. 10A(c), (d).)

Sec. 302.157.  LEGAL COUNSEL. The board may retain outside legal counsel to represent the board if first:

(1)  the board requests the attorney general to represent the board; and

(2)  the attorney general certifies to the board that the attorney general cannot provide those services. (V.A.C.S. Art. 4528c, Sec. 5(j) (part).)

Sec. 302.158.  ANNUAL REPORT. (a) The board shall file with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the board during the preceding year.

(b)  The report must be in the form and reported in the time provided by the General Appropriations Act. (V.A.C.S. Art. 4528c, Sec. 9(c).)

[Sections 302.159-302.200 reserved for expansion]

SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND

COMPLAINT PROCEDURES

Sec. 302.201.  PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of public interest describing the functions of the board and the board's procedures by which complaints are filed with and resolved by the board.

(b)  The board shall make the information available to the public and appropriate state agencies. (V.A.C.S. Art. 4528c, Sec. 5(o)(1).)

Sec. 302.202.  COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:

(1)  on each registration form, application, or written contract for services of a person regulated by the board;

(2)  on a sign prominently displayed in the place of business of each person regulated by the board; or

(3)  in a bill for service provided by a person regulated by the board.

(b)  The board shall enter into memoranda of understanding with each state agency that licenses health care facilities or agencies to coordinate the notification requirements under Subsection (a) with notification requirements that may be imposed on the health care facility or agency by any other state agency.

(c)  The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional. (V.A.C.S. Art. 4528c, Secs. 5(o)(2), (3), (4).)

Sec. 302.203.  RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board relating to a license holder. The information file must be kept current and must contain a record for each complaint of:

(1)  each person contacted in relation to the complaint;

(2)  a summary of findings made at each step of the complaint process;

(3)  an explanation of the legal basis and reason for a complaint that is dismissed;

(4)  the schedule required under Section 302.205(a) and a notation about any change in that schedule; and

(5)  other relevant information.

(b)  If a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (V.A.C.S. Art. 4528c, Secs. 10(f); 10A(a), (b); 10B(b) (part).)

Sec. 302.204.  GENERAL RULES REGARDING COMPLAINT INVESTIGATION. (a) The board shall adopt rules concerning the investigation of a complaint filed with the board.

(b)  The rules adopted under this section must:

(1)  distinguish between categories of complaints;

(2)  ensure that complaints are not dismissed without appropriate consideration;

(3)  require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the dismissed complaint;

(4)  ensure that the person who filed the complaint has an opportunity to explain the allegations made in the complaint; and

(5)  prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator. (V.A.C.S. Art. 4528c, Sec. 10B(a).)

Sec. 302.205.  DISPOSITION OF COMPLAINTS. (a) The board shall:

(1)  dispose of all complaints in a timely manner; and

(2)  establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the board receives the complaint.

(b)  Each party shall be notified of the projected schedule for the complaint. Each party to the complaint must be notified of any change in the schedule not later than the seventh day after the date the change is made.

(c)  The executive director shall notify the board of a complaint that is not resolved within the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint. (V.A.C.S. Art. 4528c, Secs. 10B(b) (part), (c).)

Sec. 302.206.  PUBLIC PARTICIPATION. (a) The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the board's jurisdiction.

(b)  The board shall prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the board's programs. (V.A.C.S. Art. 4528c, Secs. 5(p), (q) (part).)

[Sections 302.207-302.250 reserved for expansion]

SUBCHAPTER F. PROGRAM APPROVAL

Sec. 302.251.  DEFINITION. In this subchapter, "institution" includes a school or hospital in which a vocational nurse education program is located. (New.)

Sec. 302.252.  APPLICATION. (a)  To operate an approved vocational nurse education program under board rules, an institution must apply to the board.

(b)  The application must be accompanied by:

(1)  evidence that the institution is prepared to give a vocational nurse education program of not less than 12 months; and

(2)  the required fee. (V.A.C.S. Art. 4528c, Sec. 12(b) (part).)

Sec. 302.253.  ADDITIONAL APPROVAL REQUIREMENTS FOR HOSPITALS. A hospital may operate an approved vocational nurse education program if the hospital:

(1)  is in regular use for patients;

(2)  has a registered nurse in charge of nursing;

(3)  has a staff that consists of at least one physician licensed by the Texas State Board of Medical Examiners; and

(4)  meets board requirements for vocational nurse education. (V.A.C.S. Art. 4528c, Sec. 12(a).)

Sec. 302.254.  SURVEY; PLACEMENT ON LIST OF INSTITUTIONS. (a)  On receipt of an application under Section 302.252, a qualified representative of the board shall survey the applicant.

(b)  If in the opinion of the board, an institution meets the requirements for an approved vocational nurse education program, the institution shall be placed on a list of institutions offering approved programs for educating vocational nurses. (V.A.C.S. Art. 4528c, Sec. 12(b) (part).)

Sec. 302.255.  DUTIES OF DIRECTOR OF EDUCATION; VISIT AND SURVEY. (a) The director of education shall visit and survey each vocational nursing institution to determine whether the board's minimum requirements for vocational nurse education programs are being met.

(b)  The board shall prescribe the methods and rules for conducting the survey and methods of reporting. (V.A.C.S. Art. 4528c, Sec. 5(g) (part).)

Sec. 302.256.  PERIODIC SURVEY OF PROGRAMS; FEE. (a) The board periodically shall survey each vocational nurse education program offered in this state. A written report of the survey must be submitted to the board.

(b)  If the board determines as a result of the survey that a vocational nursing institution does not maintain the standards required by law and board rules, the board shall:

(1)  immediately notify the institution operating the program; and

(2)  require the institution to comply with the standards within a reasonable time established by the board and stated in the notice.

(c)  If the institution does not comply with the standards as required in the notice under Subsection (b), the board shall remove the institution from the list of institutions offering approved vocational nursing programs.

(d)  The board by rule may establish a separate fee for the survey of approved programs. (V.A.C.S. Art. 4528c, Secs. 5(g) (part), 12(b) (part).)

[Sections 302.257-302.300 reserved for expansion]

SUBCHAPTER G. LICENSE REQUIREMENTS

Sec. 302.301.  LICENSE REQUIRED. A person may not use the designation "Licensed Vocational Nurse" or the abbreviation "L.V.N." unless the person holds a license under this chapter. (V.A.C.S. Art. 4528c, Sec. 2(a).)

Sec. 302.302.  LICENSE APPLICATION. Each applicant for a vocational nurse license must submit to the board an application on a form furnished by the board that contains satisfactory sworn evidence that the applicant:

(1)  holds a high school diploma issued by an accredited secondary school or equivalent educational credentials; and

(2)  has completed a vocational nurse education program in an institution that is approved by the board or another state. (V.A.C.S. Art. 4528c, Sec. 6(a) (part).)

Sec. 302.303.  ALTERNATIVE EDUCATIONAL REQUIREMENTS. (a) The board may waive the requirement of Section 302.302(2) if the applicant provides satisfactory sworn evidence that the applicant has completed an acceptable level of education in:

(1)  a nursing school approved by the Board of Nurse Examiners; or

(2)  a school of professional nurse education located in another state or a foreign country.

(b)  The board by rule shall determine acceptable levels of education. (V.A.C.S. Art. 4528c, Sec. 6(b) (part).)

Sec. 302.304.  TRAINING IN OTHER JURISDICTIONS. An applicant who received training in another state or a foreign country must provide evidence satisfactory to the board that the education received is equivalent to that required for licensure as a vocational nurse in this state. (V.A.C.S. Art. 4528c, Sec. 6(b) (part).)

Sec. 302.305.  EXAMINATION. (a) Except as provided by Section 302.308, an applicant must pass an examination to be licensed as a licensed vocational nurse.

(b)  At least twice each year, the board shall hold examinations in various cities in this state for qualified applicants under this chapter.

(c)  An examination may be held under the supervision of a board member or another person the board specifies.

(d)  The board shall have the written portion of the examination, if any, validated by an independent testing professional. (V.A.C.S. Art. 4528c, Secs. 5(h) (part), 6(a) (part), (b) (part).)

Sec. 302.306.  EXAMINATION RESULTS. (a) The board shall notify each examinee of the results of the examination not later than the 30th day after the date a licensing examination is administered. If an examination is graded or reviewed by a national testing service, the board shall notify each examinee of the results of the examination not later than the 14th day after the date the board receives the results from the testing service.

(b)  If the notice of the examination graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the board shall notify each examinee of the reason for the delay before the 90th day.

(c)  If requested in writing by a person who fails an examination, the board shall provide to the person:

(1)  an analysis of the person's performance on the examination; or

(2)  other information the board has available to it after the tests are graded. (V.A.C.S. Art. 4528c, Sec. 6(c).)

Sec. 302.307.  TEMPORARY PERMIT. (a) Pending the results of a licensing examination, the board may issue to an applicant a temporary permit to practice vocational nursing under the direct supervision of a licensed vocational nurse, licensed registered nurse, or licensed physician if the applicant has:

(1)  graduated from an approved education program in vocational nursing in this state or another state; or

(2)  completed successfully an acceptable level of education in a professional nursing program in this state or another state.

(b)  A temporary permit expires on the date:

(1)  the applicant receives a permanent license from the board; or

(2)  a failing examination result for the applicant is reported to the board.

(c)  The board may not issue a temporary permit to an applicant who has previously failed an examination administered by the board or by another state. (V.A.C.S. Art. 4528c, Sec. 6(d).)

Sec. 302.308.  TEMPORARY LICENSE BY ENDORSEMENT. (a) An applicant for a license under this chapter may qualify for a temporary license by endorsement to practice as a licensed vocational nurse by submitting to the board:

(1)  an application fee and a completed sworn application in the form prescribed by the board;

(2)  evidence that the person possessed, at the time of initial licensing as a licensed vocational nurse, the qualifications necessary to have been eligible for licensing at that time in this state; and

(3)  proof of initial licensing by examination and proof that the license and any other license issued to the applicant by another state have not been suspended, revoked, canceled, surrendered, or otherwise restricted.

(b)  A holder of a temporary license under this section is entitled to receive a permanent license if the applicant:

(1)  verifies the applicant's academic and professional credentials; and

(2)  satisfies any other requirement established by statute.

(c)  The board shall grant or deny an application for a permanent license not later than the 180th day after the date the board receives all required forms or information. The board may extend the deadline to allow for the receipt and tabulation of examination results.

(d)  The board shall specify training, education, or examination requirements that an applicant may complete instead of the requirements of Subsection (a)(2). (V.A.C.S. Art. 4528c, Secs. 7(a), (b), (c), (d).)

Sec. 302.309.  RULES FOR TRANSPORTING PATIENTS. The board shall adopt rules to address the practice of vocational nursing in this state by a vocational nurse who:

(1)  holds a license issued by another state; and

(2)  is in this state on a nonroutine basis for a period not to exceed five days or 120 hours to provide care to a patient who is being transported into, out of, or through this state. (V.A.C.S. Art. 4528c, Sec. 7(e).)

Sec. 302.310.  INACTIVE STATUS. (a) The board may place on inactive status the license of a person who is not actively engaged in the practice of vocational nursing if the person submits a written request to the board in the manner determined by the board. The inactive status begins on the expiration date of the person's license.

(b)  The board shall maintain a list of each person whose license is on inactive status.

(c)  A person whose license is on inactive status may not