2005 Texas Occupations Code CHAPTER 151. GENERAL PROVISIONS

OCCUPATIONS CODE

SUBTITLE B. PHYSICIANS

CHAPTER 151. GENERAL PROVISIONS

SUBCHAPTER A. GENERAL PROVISIONS


	§ 151.001. SHORT TITLE.  This subtitle may be cited as the 
Medical Practice Act.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.                    


	§ 151.002. DEFINITIONS.  (a) In this subtitle:                              
		(1)  "Board" means the Texas Medical Board.                                   
		(2)  "Continuing threat to the public welfare" means a 
real danger to the health of a physician's patients or to the public 
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, hospital district, hospital 
authority, or other health care facility, that:
				(i)  provides or pays for 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 and professional 
conduct 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:
			(A)  an employee or agent of the committee, 
including an assistant, investigator, intervenor, attorney, and 
any other person or organization that serves the committee;  and
			(B)  the governing body of a public hospital owned 
or operated by a governmental entity, the governing body of a 
hospital authority created under Chapter 262 or 264, Health and 
Safety Code, and the governing body of a hospital district created 
under Article IX, Texas Constitution, but only:
				(i)  in relation to the governing body's 
evaluation of the competence of a physician or the quality of 
medical and health care services provided by the public hospital, 
hospital authority, or hospital district;  and
				(ii)  to the extent that the evaluation 
under Subparagraph (i) involves discussions or records that 
specifically or necessarily identify an individual patient or 
physician.
		(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.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.  Amended 
by Acts 2001, 77th Leg., ch. 1420, § 14.021(a), eff. Sept. 1, 
2001;  Acts 2003, 78th Leg., ch. 202, § 1, eff. June 10, 2003;  
Acts 2005, 79th Leg., ch. 269, § 1.01, eff. Sept. 1, 2005.


	§ 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.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.                    


	§ 151.004. APPLICATION OF SUNSET ACT.  The Texas Medical 
Board 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 and Chapters 204, 205, and 
206 expire September 1, 2017.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.  Amended 
by Acts 2005, 79th Leg., ch. 269, § 1.02, eff. Sept. 1, 2005.


	§ 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.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.                    

SUBCHAPTER B. APPLICATION AND CONSTRUCTION OF SUBTITLE


	§ 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.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.                    


	§ 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.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.                    


	§ 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.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.                    


	§ 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.            

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.                    


	§ 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.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.                    


	§ 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;
		(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;  or                           
		(4)  a physician located in another jurisdiction of a 
state having borders contiguous with the borders of this state who 
is the treating physician of a patient and orders home health or 
hospice services for a resident of this state to be delivered by a 
home and community support services agency licensed in this state.

Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.  Amended 
by Acts 2001, 77th Leg., ch. 1420, § 14.022(a), eff. Sept. 1, 
2001.