ALABAMA
INTERNET PRESCRIBING
In April 2000, the Board promulgated an Administrative Rule concerning having physical contact with a patient before prescribing to the patient. All licensed physicians in Alabama should be aware that the Board has determined that it is usually inappropriate to prescribe drugs to an individual whom the prescriber has not personally examined, and prescribing to an individual whom the physician has never met based on a series of questions, as is common in Internet prescribing, is inappropriate and unprofessional. The text of the Rule is as follows:
540-X-9-.11 Contact with Patients before Prescribing
It is the position of the Alabama State Board of Medical Examiners that prescribing drugs to an individual the prescriber has not personally examined is usually inappropriate. Before prescribing a drug, a physician should make an informed medical judgment based on the circumstances of the situation and on his or her training and experience. Ordinarily, this will require that the physician personally perform an appropriate history and physical examination, make a diagnosis, and formulate a therapeutic plan, a part of which might be a prescription. This process must be documented appropriately.
Prescribing for a patient whom the physician has not personally examined may be suitable under certain circumstances. These may include, but not be limited to, admission orders for a patient newly admitted to a health care facility, prescribing for a patient of another physician for whom the prescriber is taking call, or continuing medication on a short-term basis for a new patient prior to the patient’s first appointment. Established patients may not require a new history and phys-cal examination for each new prescription, depending on good medical practice.
It is the position of the Board that prescribing drugs to individuals the physician has never met based solely on answers to a set of questions, as is common in Internet or toll-free telephone prescribing, is inappropriate and unprofessional.
Reprinted from the Spring 2003 issue of the Alabama Board of Medical Examiners Newsletter.
CALIFORNIA
ENHANCED ONLINE PROFESSIONAL LICENSING
As part of California’s eGovernment initiative, the Medical Board has been participating in a pilot program for Online Professional Licensing. In early February 2003, the online system was unavailable while it was upgraded to include many recommended enhancements. When the system was reactivated, some users were able to access it; however, problems were identified that severely impacted the renewal process.
As a result of those system problems, the Online Professional Licensing system was deactivated, preventing physicians from renewing their licenses via the Internet. System enhancements have been completed and online licensing is once again available to licensees and applicants who wish to submit their fees by credit card.
Reprinted from the April 2003 issue of the Action Report, published by the Medical Board of California.
COLORADO
THE BOARD HAS ADOPTED NEW RULES
Presented here is an abbreviated version of newly adopted rules. To view the rules in their entirety, visit the Colorado Board of Medical Examiners Web site at www.dora.state.co.us/medical, or call the Board office at (303) 894-7690.
RULE 800
Delegation and supervision of medical services to unlicensed health care providers pursuant to § 12-36-106(3)(l), C.R.S.
These rules apply to the delegation of services constituting the practice of medicine to a person who is not otherwise exempt pursuant to § 12-36-106, C.R.S. from holding a license to practice medicine. Therefore, these rules would not apply to any person who is otherwise exempt pursuant to § 12-36-106, C.R.S. from holding a license to practice medicine and who is practicing within the scope of practice specified by the person’s specific exemption under § 12-36-106. These rules also would not apply to a person performing services that do not constitute the practice of medicine as defined by the Medical Practice Act.
For example, a dentist practicing dentistry as defined by article 35 of title 12, C.R.S. would not be construed to be performing delegated medical services as set forth in § 12-36-106(3)(l) and would not be bound by these rules. Also by way of example, a registered or other nurse rendering nursing services or delegated medical functions pursuant to the Nurse Practice Act would not be bound by these rules.
These rules do not apply to the delegation of nursing tasks by a nurse in compliance with § 12-38-132 and the Board of Nursing Rules related to such delegation. 3. Section 12-36-106(3)(l), C.R.S. does not allow delegation of medical services to the following individuals:
Any person who is otherwise qualified to be licensed by the Board to practice medicine but who is not so licensed, including but not limited to any physician with an inactive, lapsed, revoked, restricted, suspended or surrendered license and any physician who meets all qualifications for licensure but who is not licensed in Colorado.
Any person who is otherwise qualified to be licensed by the Board as a physician assistant but who is not so licensed, including but not limited to any physician assistant with an inactive, lapsed, revoked, restricted, suspended or surrendered license and any physician assistant who meets all qualifications for licensure but who is not licensed in Colorado.
Any person who holds a physician training license pursuant to § 12-36-122, C.R.S.
Section 12-36-122(7)(c), C.R.S. provides in part that physician training licensees do not have the authority to delegate medical services to a person who is not licensed to practice medicine pursuant § 12-36-106(3)(l), C.R.S.
Section 12-36-106(3)(l), C.R.S. does not allow the delegation of medical services to an emergency medical technician (“EMT”) in a prehospital care environment acting beyond the EMT acts allowed. Instead, pursuant to Board Rule 500, a physician advisor of an EMT in a prehospital care environment must apply to the Board for a waiver to allow additional medical acts for the EMT under the physician advisor’s supervision in specific circumstances. In an office or hospital setting it is not necessary to apply for a waiver pursuant to Board rule 500 so long as the use of an EMT as a delegatee is in compliance with these rules.
Interpretation of § 12-36-106(3)(l), C.R.S.
Section 12-36-106(3)(l), C.R.S. provides that the Medical Practice Act does not require a license to practice medicine for the rendering of services, other than the prescribing of drugs, by persons qualified by experience, education, or training, under the personal and responsible direction and supervision of a person licensed under the laws of this state to practice medicine, but nothing in this exemption shall be deemed to extend or limit the scope of any license, and this exemption shall not apply to persons otherwise qualified to practice medicine but not licensed to so practice in this state.
The Board interprets the provisions of this statutory subsection as follows:
Services:
As provided by the Medical Practice Act, “services” generally include suggesting, recommending, prescribing, or administering any form of treatment, operation, or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition or defect of any person. The definition of medical services under the Medical Practice Act does not encompass the gathering of data. Medical services also do not include acting as an intermediary by communicating a physician’s message or order to another person.
Delegated services under § 12-36- 106(3)(l), C.R.S. cannot include the prescribing of drugs. The prescribing of drugs does not include the ordering a prescription refill by a delegatee pursuant to a written protocol-driven refill procedure developed by one or more supervising physician(s).
Delegated services must be consistent with the delegating physician’s education, training, experience and active practice. Delegated services must be the type that a reasonable and prudent physician would find within the scope of sound medical judgment to delegate; therefore, delegated services should be routine, technical services not requiring the special skills of a licensed physician. A physician may only delegate services that the physician is qualified and insured to perform and services that the physician has not been legally restricted from performing. Any services rendered by the delegatee will be held to the same standard that is applied to the delegating physician. Delegated services cannot be subsequently delegated to another party.
Qualified by education, training or experience:
It is the responsibility of the physician to ensure that the delegatee has the necessary education, training or experience to perform the delegated services. Upon request, the delegatee’s qualifications shall be documented in writing and provided to the Board. Such documentation may include, but not be limited to, copies of diplomas, certificates or professional degrees from bona fide training program(s) appropriate to the specific services delegated and/or documentation of direct observation of the repeated and successful performance of the delegated services and/or appropriate credentialing by a bona fide agency or institution.
Any person holding a license, certification or registration in a limited field of the healing arts may not perform medical services beyond the scope of that license, certification, or registration unless the person has additional education, training or experience qualifying the person to perform the medical service in question and the delegation of the medical service is in compliance with these rules.
Personal and responsible direction and supervision:
One or more physicians shall have explicitly agreed, although not necessarily in writing, to provide the necessary direction and supervision of the delegatee(s). The delegating physician is accountable for the acts of the delegatee.
The direction and supervision shall be sufficient to limit the need for the exercise of the judgment required of a physician and to provide ongoing inspection, evaluation, advice and control. The physician must make decisions as to the necessity, type, effectiveness and method of treatment and must devote sufficient time to on-the-spot inspection to determine that the physician’s directions are regularly being followed.
Delegated services should be provided in the context of an appropriate physician/patient relationship. Ongoing care of a particular patient without direct physician involvement is inappropriate.
It is the responsibility of the delegating physician to provide personal and responsible direction and supervision that is consistent with generally accepted standards of medical practice.
Generally, personal and responsible direction and supervision requires that a delegating physician should be on the premises and readily available.
Where a delegatee is operating pursuant to specific and detailed written protocols and where adequate written emergency protocols are in place, the presence of the delegating physician on the premises may not be necessary. However, a delegating physician must be available to attend the patient in person within thirty (30) minutes.
A delegating physician shall assure that there is a timely chart note for all patient contacts.
Identification of authority to act:
The delegating physician should provide information to patients regarding delegatees in the physician’s practice.
Unlicensed practice of medicine:
Pursuant to § 12-36-106(2), C.R.S., any person who performs any of the acts constituting the practice of medicine as defined by § 12-36-106(1), C.R.S. and who is not licensed by the Board to practice medicine or exempt from licensure requirements by some provision of § 12-36-106 shall be deemed to be practicing medicine without a license. Such person may be held criminally liable pursuant to § 12-36-129(1), C.R.S. and/or may be the subject of injunctive proceedings by the Board in the name of the people of the state of Colorado pursuant to § 12-36-132, C.R.S.
Unprofessional conduct:
It shall be unprofessional conduct pursuant to § 12-36-117(1)(u), C.R.S. for any licensee to delegate medical services or to have performed delegated medical services pursuant to § 12-36-106(3)(l), C.R.S. without complying with the provisions of these Rules.
It shall also be unprofessional conduct pursuant to § 12-36-117(1)(u), C.R.S. for any person who is not licensed by this Board but who applies for licensure by this Board to have performed delegated medical services or to have delegated medical services pursuant to § 12-36-106(3)(l), C.R.S. without complying with the provisions of these Rules.
Rule 120 has been revised and Rule 410 adopted, both changing the way a licensee will provide proof of continued competency when wishing to reinstate or reactivate a license to an active status.
RULE 120
Requirements:
To demonstrate continued competency for purposes of complying with section 12-36-116(1)(d), 12-36- 123(2)(b) or 12-36-137(5), C.R.S., an applicant must (a) submit to the Board a personalized competency evaluation report prepared by a program approved by the Board and (b) complete any training or education recommended by the program as a result of the evaluation prior to obtaining a license. In the discretion of the Board, the physician may be able to receive a limited license prior to completing the training or education recommended by the program for the purpose of facilitating the completion of such training or education. All expenses resulting from the evaluation and/or any recommended education or training are the responsibility of the applicant and not of the Board.
RULE 410
Requirements:
To demonstrate continued competency for purposes of complying with sections 12-36-116(1)(d), 12-36-123(2)(b), or 12-36-137(5), C.R.S., a physician assistant must either:
submit proof satisfactory to the Board of continuous active medical practice in another jurisdiction for the two years prior to application in Colorado; or
submit to the Board the following:
proof satisfactory to the Board that the physician assistant has been out of practice for less than four years and has engaged in continuous active medical practice for a substantial portion of two of the preceding four years;
proof of current certification by the National Commission on Certification of Physician Assistants, Inc., (“NCCPA”)
proof of 100 hours of continuing medical education within the past two years, including 25 hours of category I continuing medical education in the past twelve months; and
a written plan documenting the nature, extent, and duration of supervision that will be provided by the supervising physician to the physician assistant as the physician assistant makes the transition back into clinical practice; or
for those physician assistants who have been out of practice for four or more years,
submit to the Board a personalized competency evaluation report prepared by a program approved by the Board, and
complete any training or education recommended by the program as a result of the evaluation prior to obtaining a license.
In the discretion of the Board, the physician assistant may be able to receive a limited license prior to completing the training or education recommended by the program for the purpose of facilitating the completion of such training or education. All expenses resulting from the evaluation and/or any recommended education or training are the responsibility of the physician assistant and not of the Board.
Reprinted from the Volume 11 Number 1, February 2003 issue of The Examiner, published by the Colorado Board of Medical Examiners.
TEXAS
UPDATE ON 78TH LEGISLATIVE SESSION’S IMPACT ON TSBME
Senate Bill 104, passed unanimously by both the Texas House of Representative and the Senate, will strengthen regulation of the practice of medicine in Texas. The bill, effective September 1, was introduced by Sen Jane Nelson (R-Flower Mound) and sponsored in the House by Rep Ray Allen (R-Grand Prairie). The legislation encompasses both licensure and enforcement and adds new reporting requirements. Provisions include the following:
Licensure:
Major issues are the biennial registration process, a new $80 license surcharge and many minor changes involving rules and processes.
Physician Profile:
The physician profile is expanded to include a description of settled/paid malpractice claims and removes all 10-year limits on reporting criminal and disciplinary history. The profile format must make information easily available to the public.
Enforcement:
Major issues are implementation of the expert panel for standard of care cases, adoption of a schedule of disciplinary sanctions, new temporary restriction/suspension provisions, a 180-day deadline to schedule informal settlement conferences, and changes to reporting and investigations regarding medical malpractice claims. There are numerous changes to rules and processes regarding investigations and complaints.
Reporting requirements:
The statute adds a new report of investigations pending over one-year old and a statistical report of all complaints by category and dispositions. TSBME will no longer be required to report all open complaints to health care entities and will now report only those pending complaints assigned for legal action. The Texas Workers Compensation Commission is required to report physician offenses to TSBME.
Malpractice reporting:
The current requirement for an insurer to provide TSBME all “notice of claim letters” is revised to require only reports of settlements and expert witness reports filed. TSBME will be required to investigate the medical competency of physicians against whom three or more expert reports have been filed in three separate lawsuits within five years.
With passage of SB 104, TSBME was also appropriated $6,522,730 for enforcement for the biennium and an additional 20 staff positions. You may access the full text of SB 104 by at www.capitol.state.tx.us. After Governor Rick Perry signed the bill on June 10, Board President Lee S. Anderson, MD, said, “We are now ready to move forward with new language, new funding and new resolve.”
Reprinted from the Texas State Board of Medical Examiners Web site.
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