The Office of the General Counsel assists licensees, the public, and other stakeholders with answers to frequently asked questions (FAQs) about TMB laws and rules.
Click on the tabs below for more information about supervision and delegation requirements, corporate practice of medicine, pain management clinic registration, and telemedicine.
- Supervision & Delegation
- Corporate Practice of Medicine
- Pain Management Clinic Registration
- Medical Records
- HB 810 – Stem Cells
Yes, the physician’s name, address and telephone number are required to be included on the prescription drug order. If the prescription is for a controlled substance, the physician’s DEA number is also required to be included on the prescription. SB 406 did not change the requirements for what needs to be included on a prescription drug order.
Is there still a ratio for the number of APRNs or PAs to whom a physician may delegate prescriptive authority?
The answer to the question depends on the practice setting. In facility-based hospital practices and in practices that serve medically underserved populations, there are no limitations. In all other practice settings, one physician may delegate to no more than seven full time equivalent APRNs and PAs (1:7 FTEs).
Is there a waiver if a physician wants to delegate prescriptive authority to more than seven full time equivalent APRNs and PAs?
No, the waiver process no longer exists. A physician may only delegate prescriptive authority to more than seven full time equivalent APRNs and PAs in facility based hospital practices and in practices that serve medically underserved populations. In all other settings and practice scenarios, the 1:7 FTE ratios applies.
There is no limit to the number of physicians who may delegate prescriptive authority to an APRN or PA provided all requirements for such delegation are met.
No. The old site-based prescriptive authority system is no longer in effect.
Texas is one of just a few states that use the term “dangerous drugs.” The Dangerous Drug Act defines a dangerous drug as a device or drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty Groups 1 through 4 of Chapter 481, Health and Safety Code (Texas Controlled Substances Act). The term includes a device or drug that bears, or is required to bear, the legend: “Caution: federal law prohibits dispensing without prescription” or “Rx only” or another legend that complies with federal law. Many other states use the term “legend drugs.”
Yes. SB 406 clarified that it is necessary to have prescriptive authority to order these devices. In the past, it was not clear to DME suppliers that APRNs and PAs had this authority. The changes to the law as a result of the passage of SB 406 clearly indicate that APRNs and PAs may order or prescribe this equipment provided all requirements for delegation of prescriptive authority are met.
Do I have to produce my prescriptive authority agreement or facility-based protocol if a licensing board asks to see it?
Yes. You are required to provide a copy of the prescriptive authority agreement to the board that requested it within three business days. Although SB 406 did not specifically note that facility-based protocols must also be submitted within this time frame, each licensing board has the authority to request this information. Failure to provide the requested information could result in disciplinary action against the professional license.
A medication order is an order for administration of a drug or device to a patient in a hospital for administration while the patient is in the hospital or for emergency use on the patient’s release from the hospital, as defined by §551.003, Occupations Code and §481.002, Health and Safety Code. A prescription is an order to dispense a drug or device to a patient for self-administration as defined by §551.003, Occupations Code.
SB 406 eliminated site based prescriptive authority. The law is silent regarding the practice location of the physician and its proximity to the practice site of the APRN or PA. That said, there has been no change in the law that requires that a physician must provide adequate supervision of delegates. In any given case, the distance between a physician’s primary practice and the practice site at which the physician’s delegates provide medical services may be an important factor in determining the quality of the physician’s supervision.
All prescriptive delegation requires adequate supervision under the Medical Practice Act. As such, a physician delegating to an APRN or PA must adequately supervise those individuals. An individual physician may serve in both the supervising and delegating role and does not need to be physically present at all times to be considered to have adequate supervision.
PRESCRIPTIVE AUTHORITY AGREEMENTS
Do I have to disclose information regarding investigations and discipline? If so, to whom must this information be disclosed
Yes. Prior to signing a prescriptive authority agreement, you must disclose to the other party/parties to the prescriptive authority agreement if you have been disciplined in the past. This includes disciplinary action taken by licensing boards in other states. Once you are a party to a prescriptive authority agreement, you are required to immediately notify the other party/parties to the agreement if you receive notice that you are the subject of an investigation.
What constitutes a license that is in good standing for purposes of entering a prescriptive authority agreement?
An APRN or PA may enter into a prescriptive authority agreement unless his/her license is revoked, suspended, delinquent, inactive, has been voluntarily surrendered, or is subject to a disciplinary order that specifically prohibits entering into a prescriptive authority agreement. If the Texas Board of Nursing or Texas Medical Board limits an APRN’s or PA’s authority to order or prescribe drugs or devices, the licensee may enter into a prescriptive authority agreement and order or prescribe drugs and devices only to the extent permitted by the board order.
A physician may not may enter into a prescriptive authority agreement if the physician’s license has been revoked, suspended, is delinquent, is inactive, has been voluntarily surrendered, or is subject to a disciplinary order that restricts his or her practice.
Prescriptive authority agreements must include the following elements:
- Name, address, and all professional license numbers of all parties to the agreement;
- State the nature of the practice, practice location or practice settings;
- Identify the types of categories or drugs or devices that may be prescribed OR the types or categories of drugs or devices that may not be prescribed;
- Provide a general plan for addressing consultations and referrals;
- Provide a plan for addressing patient emergencies;
- State the general process for communication and sharing information related to the care and treatment of patients; and
- Describe a quality assurance and improvement plan and how it will be implemented. The plan must include plans for chart reviews and periodic face to face meetings.
The law does not provide a specific number or percentage of charts that must be reviewed. Rather, the law provides that the number of charts to be reviewed is determined by the parties to the prescriptive authority agreement. The number may vary from one practice setting to another. Factors such as the length of time the APRN or PA has been in practice, the length of time the physician and APRN or PA have practiced together, whether the parties to the prescriptive authority agreement practice together in the same practice setting, and the complexity of patient care needs should be given consideration when making this determination. That said, there has been no change in the law that requires that a physician must provide adequate supervision of delegates. In any given case, the number or percentage of charts reviewed may be an important factor in determining the quality of the physician’s supervision.
The meetings must occur at least monthly until the third anniversary of the date the agreement is executed. However, if the APRN or PA was in a prescriptive authority agreement with required physician supervision for at least five of the last seven years, face to face meetings must occur at least monthly until the first anniversary of the date the agreement is signed. Once the required period of time for monthly face to face meetings has been completed, the parties to the prescriptive agreement must have face to face meetings at least quarterly with monthly meetings held between the quarterly meetings via remote electronic communication systems such as videoconferencing technology or the internet. If for any reason the APRN’s or PA’s delegating physician changes, face to face meetings will be required at least monthly as indicated.
Is credit given for time practiced in a supervised prescriptive authority arrangement prior to November 1, 2013?
The calculation under Chapter 157, Texas Occupations Code, of the amount of time an APRN or PA has practiced under the delegated prescriptive authority of a physician under a prescriptive authority agreement shall include the amount of time the APRN or PA practiced under the delegated prescriptive authority of that same physician prior to November 1, 2013. You must be practicing with the same physician you practiced with prior to November 1, 2013 in order to get credit under this provision.
Can we skip doing face to face meetings if the physician and APRN or PA practices together at the same location?
No. You must have the face to face meetings as part of your quality assurance and improvement plan.
What if an alternate physician is involved in delegation of prescriptive authority on a temporary basis?
The prescriptive authority agreement designates who may serve as an alternate physician if alternate physician supervision will be utilized. If an alternate physician(s) will participate in the quality assurance and improvement meetings with the APRN or PA, this information must be included in the prescriptive authority agreement.
APRNs and PAs are required to have delegated authority to provide medical aspects of patient care. Historically, this delegation has occurred through a protocol or other written authorization. Rather than have two documents, this delegation can now be included in a prescriptive authority agreement if both parties agree to do so.
Yes as agreed to by the parties to the prescriptive authority agreement. The requirements for monthly and quarterly meetings are the minimum requirements specified in Texas law. You may meet more frequently than required by law. You may not meet less frequently than what is required by law. An APRN or PA should meet the requirements of the prescriptive authority agreement which may have more frequent meetings required.
FACILITY BASED PRACTICES
No. Free standing clinics, centers or other medical practices that are owned or operated by or associated with a hospital or long term care facility that are not physically located within the hospital or long term care facility are not considered facility based practices. Prescriptive authority agreements are required in these settings.
A physician may delegate prescriptive authority via facility based protocol at no more than one licensed hospital or no more than two long term care facilities.
In a long term care facility based practice, delegation is by the medical director.
Is a prescriptive authority agreement required in a hospital or long term care facility-based practice?
Although it is possible to use a prescriptive authority agreement in a hospital or long term care facility based practice, it is not required. You may continue to practice under protocols in these settings. APRNs and PAs must exercise prescriptive authority under one of these delegation mechanisms.
In a hospital facility based practice, the delegating physician may be the medical director, the chief of medical staff, the chair of the credentialing committee, a department chair, or a physician who consents to the request of the medical director or chief of the medical staff to delegate.
May a physician delegate the selection or administration of anesthesia or the care of an anesthetized patient to a certified nurse anesthetist (CRNA)?
Yes, 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 to administer an anesthetic or anesthesia-related serviced ordered by the physician. Tex. Occupations Code §157.058(a).
APRNs or PAs may prescribe schedule II drugs in the following situations:
(1) in a hospital facility-based practice, in accordance with policies approved by the hospital's medical staff or a committee of the hospital's medical staff as provided by the hospital's bylaws to ensure patient safety and as part of care provided to a patient who:
(A) has been admitted to the hospital for an intended length of stay of 24 hours or greater; or
(B) is receiving services in the emergency department of the hospital; or
(2) as part of the plan of care for the treatment of a person who has executed a written certification of a terminal illness, has elected to receive hospice care, and is receiving hospice treatment from a qualified hospice provider.
Can schedule II authority be delegated in a free standing emergency department that is affiliated with a hospital?
No. A free standing emergency department is not located within the hospital anddoes not qualify as an eligible site for delegation of schedule II authority. The physician may only delegate authority to prescribe controlled substances in schedules III through V in this setting. Authority to prescribe dangerous drugs, nonprescription drugs and devices may be delegated in any setting.
Yes. Nothing changed for delegation of prescriptive authority for controlled substances in schedules III through V.
DELEGATION OF ANESTHESIA TO MIDLEVEL PROVIDERS
Is a physician’s delegation order to a CRNA for anesthetic or anesthesia-related services required to specify a drug, dose or administration technique?
No, Tex. Occ. Code §157.058(b) does not require that a physician’s delegation order specify a drug dose or administration technique. The Medical Practice Act provides physicians broad latitude in determining the acts and authority which they wish to delegate. However, there needs to be a discussion and consultation between the delegating physician and the certified nurse anesthetist on how a specific administration of an anesthetic may affect the medical management of the patient during the anesthetic.
The authority to delegate is found in Chapter 157 of the Texas Occupations Code, and Title 22 of the Texas Administrative Code, Section 193. A physician is allowed to delegate certain duties to a qualified and properly trained person acting under the physician’s supervision:
1) if in the opinion of the delegating physician the act can be properly and safely performed by the person to whom the medical act is delegated;
2) the act is performed in its customary manner; and
3) the performance of the act by the delegate is not in violation of any other statute.
It is clear that AAs can be delegated certain tasks under Chapter 157. The question is the extent allowable of such delegation. The key provision that needs to be examined is likely “not in violation of any other statute.”
Although Nursing Act describes what a CRNA can do in regard to anesthesia, there is overlap of regulation of CRNAs between the Medical Board and Nursing Board. CRNAs are subject to physician delegation and supervision under the Medical Practice Act. The delegating physician can limit what a CRNA is allowed to under a Prescriptive Authority Agreement (PAA) or Standing Order, despite what may be allowed under Nursing Board rules and regulations.
The supervising physician remains responsible for the actions of delegates, both CRNAs and AAs. The level of supervision required for any AA or CRNA (or any delegated provider) is determined based on training, knowledge, experience as determined by the physician. However, AAs and CRNAs cannot practice independently and require physician/anesthesiologist delegation and supervision. Additionally, a hospital or facility can set their own standards, policies, etc. related to delegation and supervision as long as it does not violate Chapter 157 or board rules. Although AAs most commonly work under an anesthesiologist physician, any physician may supervise and delegate; however, the standard of care must be met and the delegating physician remains responsible for the actions of delegates.
One difference between an AA and CRNA is the ability to order and prescribe dangerous and controlled substances to patients for anesthesia and anesthesia-related services. Under Chapter 157.058 a CRNA pursuant to the physician’s order and in accordance with facility policies or by-laws may select, obtain, and administer those drugs appropriate to accomplish the order. The physician’s order for anesthesia or anesthesia-related services is not required to specify a drug, dose, or administration technique.
As previously stated, the Nursing Act describes what a CRNA can do in regard to anesthesia. However, the delegating physician or facility can limit what a CRNA is allowed to under a PAA or Standing Order, despite what may be allowed under Nursing Board rules and regulations.
While AAs are not allowed to select drugs, determine dose, or administration technique for anesthesia or anesthesia-related services without specification by the supervising physician through an order, they perform many of the other same key duties performed by CRNAs. These duties include conducting preoperative physical exams, administering medications, evaluating and responding to life-threatening situations, setting up external and internal monitors, and implementing general and site-specific anesthetic techniques.
Another area of concern relates to handing-off patient care from CRNAs to AAs. RNs have the authority to delegate certain nursing tasks to unlicensed individuals; however, a CRNA and AA do not have any specific delegation authority concerning anesthesia tasks. A physician has the authority to delegate the process of anesthesia-related patient care, including the transfer or hand-off of care from a CRNA to an AA through an order (standing or patient-specific) or protocol. A CRNA or AA cannot set-up or independently delegate a hand-off or step-down process.
While the Nursing Act places responsibility for patient hand-off on a CRNA, if the physician orders a hand-off process from CRNA to AA, and this is memorialized in orders, protocols, etc., then the CRNA does not have the authority to determine the AA is not competent. The reason is that the physician has already made the determination of competency under Chapter 157.001.
Because the CRNA’s authority also arises through the delegating physician, and is not independent of that physician, a CRNA cannot override a physician Order related to this hand-off scenario. If this hand-off became an issue the CRNA would have a defense (absolute) because the physician has already determined the competency of the AA to accept this patient.
May a physician delegate the selection or administration of anesthesia or the care of an anesthetized patient to a certified nurse anesthetist (CRNA)?
Yes, 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 to administer an anesthetic or anesthesia-related serviced ordered by the physician. Tex. Occupations Code §157.058(a).
No, Texas Attorney General Opinion JC-0117 found that the Medical Practice Act does not, as a matter of law, require a physician to directly supervise a CRNA to whom the administration of an anesthetic task has been delegated. However, a physician may choose to directly supervise a CRNA if they wish. A task is considered anything that is not directly related to the medical management of the patient while under an anesthetic.
The administration of an anesthetic is the practice of medicine that can be delegated by a physician. While a physician may delegate the administration of the anesthetic, the mid-level provider is still under the supervision of the physician. This supervision does not require physical presence of a physician at all times during the procedure. However, even when delegating certain duties, the physician remains ultimately responsible for the medical management of the patient.
For example, placement of an epidural and administration of the medication may be delegated. However, the medical management of the patient is still the responsibility of the physician. As such, if there are any changes in the patient’s medical status while those delegated tasks are being performed, then that physician is responsible and must respond accordingly.
Are physicians potentially subject to discipline for violations of the standard of care by CRNAs to whom they have delegated the selection or administration of anesthesia or the care anesthetized patient?
Yes. Although physicians are not directly required to directly supervise CRNA’s for delegated tasks, they nonetheless remain subject to liability for violations of the standard of care by CRNAs if those violations indicate that the physician failed to properly supervise the CRNA. The degree to which a physician is required to actively supervise a CRNA during the performance of a task in anesthesia services is left to the “physician’s professional judgement in light of other relevant federal and state laws, facility policies, medical staff bylaws, and ethical standards. “ (Texas Attorney General Opinion No. JC-0117). However, physician supervision during the medical management of a patient while undergoing an anesthetic does require supervision as this is specifically the practice of medicine.
Is a CRNA under a valid delegation order, subject to discipline by the Texas Medical Board under the Medical Practice Act for a violation of the standard of care in the selection and administration or anesthesia or the care of an anesthetized patient?
No, while the selection and administration of anesthesia is a medical act, if such an act was validly delegated to a CNRA by a physician, the act is considered to be within the practice of nursing and governed by the Nursing Practice Act. Any discipline for a violation of the standard of care by a CRNA would be carried out by the Texas Board of Nursing under the authority of the Nursing Practice Act. Ultimate responsibility and accountability for the medical management of a patient under anesthesia remains with the supervising physician who may be subject to discipline for improper delegation or supervision.
No, neither the Medical Practice Act, nor the Nursing Practice Act, authorize independent practice by a CRNA. Since the selection and administration of anesthesia is a medical act, CRNAs must be properly delegated this act and practice under the supervision of a physician. CRNA’s administering anesthesia without proper delegation and supervision from a physician would be liable for the unlicensed practice of medicine.
The corporate practice of medicine is a legal doctrine, which generally prohibits corporations, entities or individuals (i.e. non-physicians) from practicing medicine.
A general summary of the corporate practice of medicine doctrine is that it prohibits physicians from entering into partnerships, employee relationships, fee splitting, or other situations with non-physicians where the physician's practice of medicine is in any way controlled or directed by, or fees shared with a non-physician. Generally, physicians may enter into independent contractor arrangements with non-physicians. However, whether an independent contractor situation exists is a question of law and attendant facts.
Section 165.156 of the Medical Practice Act makes it unlawful for any individual, partnership, trust, association or corporation by use of any letters, words, or terms, as an affix on stationery or advertisements or in any other manner, to indicate the individual, partnership, trust, association or corporation is entitled to practice medicine if the individual or entity is not licensed to do so.
Section 164.052(a)(13) of the Medical Practice Act authorizes disciplinary action against any licensee for impersonation of a licensed practitioner or permitting another to use his license to practice medicine. Section 164.052(a)(17) authorizes disciplinary action against a practitioner for aiding or abetting, directly or indirectly, the practice of medicine by non-licensed individuals or entities.
Beginning in 2011, the Texas Legislature enacted laws authorizing certain types of hospitals and specific hospital districts to directly hire physicians.
Because of the highly technical aspects of this doctrine, a physician should consult with private counsel regarding any actual or contemplated arrangement. Please be advised that the Board staff is not authorized to provide private legal advice.
The following case law/legal authority may be helpful in the analysis and are available from any local law library or private counsel:
a. Garcia v. Texas State Board of Medical Examiners, 384 F.Supp. 434 (W.D. Texas 1974);
b. F.W.B. Rockett v. Texas State Board of Medical Examiners, 287 S.W.2d 190 (Tex. Civ.App.- San Antonio 1956, writ ref'd n.r.e.);
c. Watt v. Texas State Board of Medical Examiners, 303 S.W.2d 884 (Tex. Civ. App.- Dallas 1957, writ ref'd n.r.e.);
d. Flynn Brothers, Inc. v. First Medical Associates, 715 S.W.2d 782 (Tex. Civ. App.- Dallas 1986, writ ref'd n.r.e.)
e. Woodson v. Scott & White Hospital, 186 S.W.2d 720 (Tex. App. 1945, writ ref'd w.o.m.)
f. Tex. Atty. Gen. Op. JM-1042 (1989)
g. Tex. Atty. Gen. Op. WW-278 (1957).
h. Tex. Atty. Gen. Op. JM 369 (1985)
i. Tex. Atty. Gen. Op. DM-138 (1992)
j. Tex. Atty. Gen. Op. M-551 (1970)
k. The Medical Practice Act, Texas Occupations Code Annotated, Title 3, Subtitle B as amended, section 162.001.
l. The Medical Practice Act, Texas Occupations Code Annotated, Title 3, Subtitle B as amended, section 162.001.
m. The Medical Practice Act, Texas Occupations Code Annotated, Title 3, Subtitle B as amended, 151.055.
n. Occupations Code, section 102.001.
A pain management clinic is defined in statute and rule as a publicly or privately owned facility for which a majority of patients are issued on a monthly basis, a prescription for opioids, benzodiazepines, barbiturates, or carisoprodol, but not including suboxone.
The physician owner/operator of a pain management clinic must register with the TMB. Certificates, once issued, are not transferable or assignable. Only the primary physician owner is required to register with the board if there is more than one physician owner of the clinic. Each clinic requires a separate certificate.
At this time there is no charge to register a pain management clinic.
Certificates will be valid for two years. Registration forms will be mailed 60-90 days prior to the expiration date of a certificate. Certificate holders shall have a 180-day grace period from the expiration date to renew the certificate, however, the owner or operator of the clinic may not continue to operate the clinic while the permit is expired. Certificates must be timely renewed. If a certificate is not renewed before the expiration of the grace period, the certificate will be automatically cancelled and the owner or operator of the clinic must reapply for original certification.
A name change or change of address for a registered pain management clinic must be submitted in writing (by mail or fax) to the address below. Texas Medical Board P.O. Box 2029 MC 240 Austin, TX 78768 (fax) 512-463-9416 Pain management clinic certificates are non-transferable by statute, and as such any name change or change of address request should include ownership documentation (SOS filing, DBA, Tax ID information, etc.) to verify that the clinic is the same business with the same primary owner that was approved for the initial certification. Once that information is received and verified, we will be able to update the location of your pain management clinic and issue an updated certificate to you.
A pain management clinic may not operate in Texas unless the clinic is owned and operated by a medical director who: • is a physician who practices in Texas • has an unrestricted medical license • holds a certificate of registration for that pain management clinic In addition, the owner/operator of a pain management clinic, an employee of the clinic, or a person with whom a clinic contracts for services may not: • have been denied, by any jurisdiction, a license issued by the Drug Enforcement Agency or a state public safety agency under which the person may prescribe, dispense, administer, supply, or sell a controlled substance; • have held a license issued by the Drug Enforcement Agency or a state public safety agency in any jurisdiction, under which the person may prescribe, dispense, administer, supply, or sell a controlled substance, that has been restricted; or • have been subject to disciplinary action by any licensing entity for conduct that was a result of inappropriately prescribing, dispensing, administering, supplying, or selling a controlled substance A pain management clinic may not be owned wholly or partly by a person who has been convicted of, pled nolo contendere to, or received deferred adjudication for: • an offense that constitutes a felony; or • an offense that constitutes a misdemeanor, the facts of which relate to the distribution of illegal prescription drugs or a controlled substance as defined by Texas Occupations Code Annotated §551.003(11) The medical director of a pain management clinic must operate the clinic in compliance with Drug Prevention and Control Act, 21 U.S.C.A. 801 et.seq. and the Texas Controlled Substances Act, Chapter 481 of the Texas Health and Safety Code, relating to the prescribing and dispensing of controlled substances. The medical director of a pain management clinic must, on an annual basis, ensure that all personnel: • are properly licensed, if applicable, • are trained including 10 hours of continuing medical education related to pain management, and • are qualified for employment.
Regulations regarding the registration and operation of pain management clinics do not apply to the following settings:
- a medical or dental school or an outpatient clinics associated with a medical or dental school;
- a hospital, including any outpatient facility or clinic of a hospital;
- a hospice established under 40 TAC §97.403 (relating to Standards Specific to Agencies Licensed to Provide Hospice Services) or defined by 42 CFR §418.3;
- a facility maintained or operated by this state;
- a clinic maintained or operated by the United States;
- a nonprofit health organization certified by the board under Chapter 177 of this title (relating to Certification of Non-Profit Health Organizations);
- a clinic owned or operated by a physician who treats patients within the physician's area of specialty who personally uses other forms or treatment, including surgery, with the issuance of a prescription for a majority of the patients; or
- a clinic owned or operated by an advanced practice nurse licensed in this state who treats patients in the nurse's area of specialty and personally uses other forms of treatment with the issuance of a prescription for a majority of the patients.
Note: The TMB cannot give legal advice. Please consult an attorney if you have questions regarding whether or not your clinic meets one of the exemptions listed above. However, the Board does have inspection authority, and owners of clinics that have not been properly registered can be investigated.
Per Board Rule 195.4(e), the medical director or owner/operator of the pain management clinic, must on annual basis, ensure all personnel are properly licensed and, if applicable, have the requisite training to include 10 hours of continuing medical education (CME) annually in the area of pain management. This CME requirement applies to all personnel providing medical services to the patients (including, but not limited to: PAs, x-ray techs, phlebotomists, RNs, MAs, etc.). Office staff, such as managers, janitors, etc. who do not provide medical services, would not be required to meet the CME requirement, but would need to be listed in response to a pain clinic audit which requires listing all clinic personnel for that clinic. Documentation of the completed CME course shall be required to be made available upon request by Board Staff, including, but not limited to, during an on-site audit of the clinic, or during the certificate renewal process. The Board does have the authority to conduct audits and inspections at clinics to ensure compliance with all requirements and regulations pertaining to registered pain clinics, including audits of CME training as required.
Does my continuing education documentation need to be sent in with my pain management registration forms?
Documentation of CME courses shall be made available to the Board upon request but should not be mailed with the registration. CME audits will be conducted to assure compliance.
165.1(a) (10) now requires the following:
"All non-biographical populated fields, contained in a patient's electronic medical record, must contain accurate data and information pertaining to the patient based on actual findings, assessments, evaluations, diagnostics or assessments as documented by the physician."
Non-biographical data/information is data that will typically change from visit to visit. For example, many EMR systems bring forward from the previous encounter non-biographical information such as symptoms, diagnosis, vitals, lab levels, history, previous treatments etc... However, because symptoms often resolve between encounters (as result of treatment), diagnoses may no longer be active or present (because of previous treatments), and vitals fluctuate, such data fields should not contain inaccurate, non-current, or irrelevant data that is not pertinent to the present illness/issue. Such information may be part of the patient’s history, but should not be reflected as current/present unless such symptoms/diagnoses are ongoing. Such information may become part of the patient’s historical data/information contained in the electronic medical record. Non-biographical information/data contained in a medical record for each encounter should be based on actual assessment, evaluations or other diagnostics that are documented by the physician.
Also see: EMR Position Statement
*Telemedicine FAQs being revised following enactment of SB 1107.
In Texas, telemedicine involves a health care provider’s medical care delivered to patients physically located at sites other than where the provider is located, with the use of technology that allows the provider to communicate with and see and hear the patients in “real” time.
A physician; physician assistant or advanced practice nurse who is supervised by and has delegated authority from a physician may treat a patient using telemedicine. Such a provider is referred to under the rules as a “distant site provider.” All distant site providers must be licensed to practice in Texas.
What requirements must be met in order for a distant site provider to provide medical care via telemedicine?
In order to provide medical care via telemedicine, a distant site provider must in all cases establish a physician-patient relationship, which at a minimum includes:
- establishing that the person requesting the treatment is in fact who the person claims to be;
- establishing a diagnosis through the use of acceptable medical practices, including documenting and performing patient history, mental status examination, appropriate diagnostic and laboratory testing, and for medical care other than mental health services, a physical examination;
- discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options; and
- ensuring the availability of the distant site provider or coverage of the patient for appropriate follow-up care.
In addition, the care must be provided at an appropriate location and—unless an exception applies—include the presence of qualified staff (also referred to as “patient site presenters”) to assist in the evaluation of the patient. Treatment and consultation recommendations made via telemedicine are held to the same standards of acceptable medical practices as those made in the traditional in-person clinical settings.
If a patient is being seen for the very first time by a distant site provider, or is presenting with a new condition, telemedicine may only be used at a location that has qualified staff present and sufficient technology and medical equipment to allow the distant site provider to conduct an adequate physical evaluation. Such a location is referred to under the Board rules as an “established medical site.”
If not at an established medical site, a distant site provider will be permitted to provide medical care using telemedicine, contingent upon the following requirements being met:
- Follow up care for an established patient’s previously diagnosed condition. The provider will be allowed to provide telemedicine care to a patient at a site other than an established medical site, contingent upon the provider having previously diagnosed the condition either through an in-person evaluation (meaning, while at the same physical location as the patient) or an evaluation conducted at an established medical site.
- Referral by a physician who completed a proper evaluation. The provider will be allowed to provide telemedicine care to a patient at a site other than an established medical site, contingent upon the patient having received an evaluation either in-person or at an established medical site by another physician who referred the patient to the provider for additional care.
- Established patient with new condition advised to seek appropriate follow up care. The provider will be allowed to provide telemedicine care for an established patient’s new condition at a site other than an established medical site, if the distant site provider advises the patient to see a physician (either at an established medical site or in-person) within 72 hours if the symptoms do not resolve, and provides no additional care for such symptoms if the patient is not seen by such a physician.
In order for a location to qualify as an established medical site, the key criteria are the availability and presence of:
- qualified staff, also referred to as “patient site presenters,” who are health care professionals licensed or certified in Texas, such as a nurse, emergency medical technician (EMT), or pharmacist;
- sufficient technology and medical equipment to allow for an adequate physical evaluation, as appropriate for the patient’s presenting complaint; and
- sufficient size to accommodate patient privacy and to enable the presentation of the patient to the provider.
Contingent upon the locations meeting the above criteria, they could include a nurse’s station in a public or private school, volunteer fire department, Emergency Medical Services station, oil rig, Mental Health and Mental Retardation Centers (MHMRs), Community Centers, pharmacy, or even a patient’s home.
In the case of a patient’s home, the rules further specify that a patient site presenter must use ”sufficient communication and remote medical diagnostic technology” to allow the provider to “carry out an adequate physical examination appropriate for the patient’s presenting condition while seeing and hearing the patient in real time.”
A person that is licensed or certified in Texas to perform health care services or a qualified mental health professional-community services may act as a patient site presenter. The patient site presenter may be delegated only tasks and activities within the scope of his or her licensure or certification. Patient site presenters assist in the interaction between the patient and the provider, who is located at a distant site. If only mental health services are being provided to the patient, a patient site presenter may not be required unless the patient poses a danger to himself or others.
Are patient site presenters always required to be present during patient visits, in order for a physician to treat a patient via telemedicine?
No. It will depend on the nature of the services provided and conditions being treated. If the only services being provided relate to mental health services (not including behavioral health emergencies), or to follow up on evaluation or treatment of a previously diagnosed condition, it is at the discretion of the distant site provider whether the presence of a patient site presenter is necessary.
Does a distant site provider have to see a patient in person, prior to providing treatment using telemedicine?
No. What is required is that either the provider conduct a “face-to-face” evaluation via telemedicine at an established medical site (see discussion above for basic requirements related to an established medical site) prior to providing such ongoing care, or provide treatment for a patient referred by another physician who completed a “face-to-face” evaluation via telemedicine at an established medical site.
A “face-to-face” evaluation is defined under the rules as including an evaluation performed by a distant site provider for a patient who is located at a different location qualifying as an established medical site.
An in-person evaluation is one that is conducted by the provider for a patient located in the same physical location as the provider.
May a distant site provider make an initial diagnosis for a new patient via telemedicine at the patient’s home?
Yes, on the condition that the provider establish a defined physician-patient relationship, utilize the presence of a patient site presenter during the interaction (except for mental health services not including behavioral health emergencies), and ensure that the patient site presenter has sufficient communication and remote medical diagnostic technology to allow the distant site provider to carry out an adequate physical examination appropriate for the patient’s presenting condition while seeing and hearing the patient in real time.
For mental health services to be provided via telemedicine, must a distant site provider conduct a physical examination?
No. For mental health services to be provided, a distant site provider must, however, conduct a face-to-face visit and ensure that a defined physician-patient relationship is established, which includes documenting and performing patient history, mental status examination, and appropriate diagnostic and laboratory testing.
The Texas Medical Board (TMB) recently passed the final rules mandated by HB 810 (Charlies Law). HB 810 allows the use of investigational stem cell treatment. The responsibility for writing the rules to implement this law was given to TMB and Health and Human Services Commission (HHSC). HHSC delegated its responsibility for the rule writing process to the Department of State Health Services (DSHS).
There is confusion over TMB’s authority to approve the use of investigational stem cell treatment. The primary purpose of this FAQ is to clarify TMB’s authority related to investigational stem cell treatment. TMB does not have any approval authority over when investigational stem cell treatment be can used. Additionally, HB 810 does not provide for any waiver or exemption from its requirements.
TMB rules relate to two primary aspects of HB 810. TMB has the authority to ensure that investigational stem cell treatment is administered by a certified physician and that proper consent and records are maintained. TMB is authorized to adopt rules related to institutional review boards overseeing investigational stem cell treatment. This authority includes receiving annual reports containing certain required data elements regarding investigational stem cell treatment research.
Per HB 810, DSHS is responsible for writing the rules to identify or define terminal illness and severe chronic diseases eligible to be considered for investigational stem cell treatment. As of publication of this FAQ, TMB has adopted rules as authorized by HB 810, which will become effective in July 2018. DSHS has not yet completed the rulemaking process to identify or define the medical conditions eligible for investigational stem cell treatment.
HB 810 does not provide TMB authority to approve or authorize any individual medical treatment. Medical treatment and decision making are within the discretion of the practitioner and patient.
HB 810 does not allow TMB to take action against a physician solely for recommending use of investigational stem cell treatment.
TMB is a complaint-driven agency. This means that if an individual receives investigational stem cell treatment, and TMB receives a written complaint about this treatment (or any other treatment) it may have an obligation to investigate. TMB‘s investigations involve examination of: documentation; proper informed consent; appropriateness/reasonableness of the treatment for the patient’s medical condition; and compliance with applicable laws and standard of care.