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Health (2)
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1505179
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Health (2)
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Theodore C. Marrs Files (Ford Administration)
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The original documents are located in Box 9, folder "Health (2)" of the Theodore C. Marrs
Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 9 of the Theodore C. Marrs Files
at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
Call JackMacdomet
d do not
Know how
FORD & QERALD LIBRARY
all this
inter-relater-
-
if it does.
4th
HEALTH.
OF
EDUCATION: PATIES
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
OFFICE OF THE SECRETARY
U.S.A.
WASHINGTON, D.C. 20201
call Fele
JUN 30 1975
MEMORANDUM FOR THE HONORABLE THEODORE C. MARRS
Attached is a brochure that was used to announce a series of workshops
sponsored by the Social Security Administration on Hospital Prospective
Payment. The focus of the workshops was on issues essentially unique
to acute care institutions. Because of the emphasis placed on hospital
reimbursement, nursing homes were not included in the mailing distribution.
Mailings were made to the Governors of the States, their respective
commissioners of insurance and health, and, where in existence, the States'
health rate regulatory authority. Also included were State and local
hospital associations, the American Hospital Association, Association
for Private Hospitals, Blue Cross-Blue Shield Plans, and organizations
representing commercial insurance companies. Since prospective reimburse-
ment for long-term care was not addressed at these conferences, no repeat
conferences are necessary. We do regret that any commitments made in
Mr. Seidman's May 13 letter were not honored.
To date, budgetary and personnel constraints have limited the section 222
activities in the long-term care area. Staff is presently engaged in
the development of a Request for Proposal (RFP) dealing with prospective
rate systems for nursing homes. The RFP will solicit developmental cost
studies in three areas: (1) routine services, (2) ancillary services,
and (3) return on equity capital and risk.
It is anticipated that the results of the proposed developmental cost
studies will provide the answers to those research issues which must be
resolved prior to implementing prospective reimbursement systems in
nursing homes on an experimental basis.
Mr. MacDonald's National Council on Health Care Services, the American
Health Care Association, and other allied nursing home provider
organizations are on the distribution list for the pending RFP.
FORD i GERALD LIBRARY
2
Attached please find a draft response to Mr. MacDonald.
David any H. Lissy
Executive Secretary
to the Department
Enclosures
he approvity have no record 01 the
reduing a apr of
Seidman letter of may 13.
my
DRAFT
Dear Mr. MacDonald:
In response to your telegram of June 2, 1975, I would like to assure
you that the four workshops on prospective reimbursement were designed
to address issues related to rate setting in the hospital industry.
For this reason, only those organizations directly involved in hospital
reimbursement were forwarded invitations. Approximately 800 invitations
were mailed. Included on this distribution list were the Governors of
each of the States, their respective commissioners of insurance and health,
States' health care rate regulatory authorities, State and local hospital
associations, the American Hospital Association, the Association for
Private Hospitals, Blue Cross-Blue Shield Plans, and organizations
representing commercial insurance carriers. We do regret any concern
that may have resulted from apparent misunderstandings about the focus
of these conferences.
I have contacted the office in the Department of Health, Education, and
Welfare responsible for section 222 activities (Office of Research and
Statistics of the Social Security Administration) and been informed that
they have been constrained by manpower and budget restrictions that have
limited their efforts in the long-term care area. They are, however,
2
planning to issue a Request for Proposal within the next few months
that will solicit developmental cost studies in three areas: (1) routine
services, (2) ancillary services, and (3) return on equity capital and
risk.
It is anticipated that the results of the proposed developmental cost
studies will provide the answers to those research issues which must be
resolved prior to implementing prospective reimbursement systems in
nursing homes on an experimental basis. A significant issue that will
not be addressed in these studies is quality of care. The measurement
of health care status in nursing homes will be separately addressed in
other DHEW evaluations of patient assessment instruments.
Please be assured that you are on the distribution list for this
Request for Proposal. If you would like further information on these
activities, please feel free to contact Dr. Clifton Gaus at Room 915,
Universal North Building, 1875 Connecticut Avenue, NW., Washington,
D.C. 20009.
Kaple, 2-Q-2 East, Baltimore, SSA-IRE-434, 130-48543
INSURANCE OF EDUCATION
HEALTH.
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
OFFICE OF THE SECRETARY
U.S.A.
WASHINGTON, D.C. 20201
JUN 30 1975
LIBRARY GERALD
MEMORANDUM FOR THE HONORABLE THEODORE c. MARRS
Attached is a brochure that was used to announce a series of workshops
sponsored by the Social Security Administration on Hospital Prospective
Payment. The focus of the workshops was on issues essentially unique
to acute care institutions. Because of the emphasis placed on hospital
reimbursement, nursing homes were not included in the mailing distribution.
Mailings were made to the Governors of the States, their respective
commissioners of insurance and health, and, where in existence, the States'
health rate regulatory authority. Also included were State and local
hospital associations, the American Hospital Association, Association
for Private Hospitals, Blue Cross-Blue Shield Plans, and organizations
representing commercial insurance expanies. Since prospective reimburse-
ment for long-term care was not addressed at these conferences, no repeat
conferences are necessary. We do regret that any commitments made in
Mr. Seidman's May 13 letter were not honored.
To date, budgetary and personnel constraints have limited the section 222
activities in the long-term care area. Staff is presently engaged in
the development of a Request for Proposal (RFP) dealing with prospective
rate systems for nursing homes. The RFP will solicit developmental cost
studies in three areas: (1) routine services, (2) ancillary services,
and (3) return on equity capital and risk.
It is anticipated that the results of the proposed developmental cost
studies will provide the answers to those research issues which must be
resolved prior to implementing prospective reimbursement systems in
nursing homes on an experimental basis.
Mr. MacDonald's National Council on Health Care Services, the American
Health Care Association, and other allied mursing home provider
organizations are on the distribution list for the pending RFP.
2
Attached please find a draft response to Mr. MacDonald.
7s7 David H. Mssy
David H. Lissy
Executive Secretary
to the Department
Enclosures
DRAFT
Dear Mr. MaeDonald:
In response to your telegram of June 2, 1975, I would like to assure
you that the four workshops on prospective reimbursement were designed
to address issues related to rate setting in the hospital industry.
For this reason, only those organizations directly involved in hospital
reimbursement were forwarded invitations. Approximately 800 invitations
were mailed. Included on this distribution list were the Governors of
each of the States, their respective commissioners of insurance and health,
States' health care rate regulatory authorities, State and local hospital
associations, the American Hospital Association, the Association for
Private Hospitals, Blue Cross-Blue Shield Plans, and organizations
representing commercial insurance carriers. We do regret any concern
that may have resulted from apparent misunderstandings about the focus
of these conferences.
I have contacted the office in the Department of Health, Education, and
Welfare responsible for section 222 activities (Office of Research and
Statistics of the Social Security Administration) and been informed that
they have been constrained by manpower and budget restrictions that have
limited their efforts in the long-term care area. They are, however,
2
planning to issue a Request for Proposal within the next few months
that will solicit developmental cost studies in three areas: (1) routine
services, (2) ancillary services, and (3) return on equity capital and
risk.
It is anticipated that the results of the proposed developmental cost
studies will provide the answers to those research issues which must be
resolved prior to implementing prospective reimbursement systems in
nursing homes on an experimental basis. A significant issue that will
not be addressed in these studies is quality of care. The measurement
of health care status in nursing homes will be separately addressed in
other DHEW evaluations of patient assessment instruments.
Please be assured that you are on the distribution list for this
Request for Proposal. If you would like further information on these
activities, please feel free to contact Dr. Clifton Gaus at Room 915,
Universal North Building, 1875 Connecticut Avenue, NW., Washington,
D.C. 20009.
Kaple, 2-0-2 East, Baltimore, BSA-IRE-434, 130-48543
HEALTH.
OF
EDUCATION
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
OFFICE OF THE SECRETARY
U.S.A.
WASHINGTON, D.C. 20201
JUN 30 1975
MEMORANDUM FOR THE HONORABLE THEODORE C. MARRS
Attached is a brochure that was used to announce a series of workshops
sponsored by the Social Security Administration on Hospital Prospective
Payment. The focus of the workshops was on issues essentially unique
to acute care institutions. Because of the emphasis placed on hospital
reimbursement, nursing homes were not included in the mailing distribution.
Mailings were made to the Governors of the States, their respective
commissioners of insurance and health, and, where in existence, the States'
health rate regulatory authority. Also included were State and local
hospital associations, the American Hospital Association, Association
for Private Hospitals, Blue Cross-Blue Shield Plans, and organizations
representing commercial insurance qempanies. Since prospective reimburse-
ment for long-term care was not addressed at these conferences, no repeat
conferences are necessary. We do regret that any commitments made in
Mr. Seidman's May 13 letter were not honored.
To date, budgetary and personnel constraints have limited the section 222
activities in the long-term care area. Staff is presently engaged in
the development of a Request for Propesal (RFP) dealing with prospective
rate systems for nursing homes. The RFP will solicit developmental cost
studies in three areas: (1) reutine services, (2) ancillary services,
and (3) return on equity capital and risk.
It is anticipated that the results of the proposed developmental cost
studies will provide the answers to those research issues which must be
resolved prior to implementing prospective reimbursement systems in
nursing homes on an experimental basis.
Mr. MacDonald's National Council on Health Care Services, the American
Health Care Association, and other allied mursing home provider
organizations are on the distribution list for the pending RFP.
2
Attached please find a draft response to Mr. MacDonald.
7s7 David H. Lissy
David H. Lissy
Executive Secretary
to the Department
Enclosures
DRAFT
Dear Mr. MacDonald:
In response to your telegram of June 2, 1975, I would like to assure
you that the four workshops on prospective reimbursement were designed
to address issues related to rate setting in the hospital industry.
For this reason, only those organisations directly involved in hospital
reimbursement were forwarded invitations. Approximately 800 invitations
were mailed. Included on this distribution list were the Governors of
each of the States, their respective commissioners of insurance and health,
States' health care rate regulatory authorities, State and local hospital
associations, the American Hospital Association, the Association for
Private Hospitals, Blue Cross-Blue Shield Plans, and organizations
representing commercial insurance carriers. We do regret any concern
that may have resulted from apparent misunderstandings about the focus
of these conferences.
I have contacted the office in the Department of Health, Education, and
Welfare responsible for section 222 activities (Office of Research and
Statistics of the Social Security Administration) and been informed that
they have been constrained by manpower and budget restrictions that have
limited their efforts in the long-term care area. They are, however,
2
planning to issue a Request for Proposal within the next few months
that will solicit developmental cost studies in three areas: (1) routine
services, (2) ancillary services, and (3) return on equity capital and
risk.
It is anticipated that the results of the proposed developmental cost
studies will provide the answers to those research issues which must be
resolved prior to implementing prospective reimbursement systems in
nursing homes on an experimental basis. A significant issue that will
not be addressed in these studies is quality of care. The measurement
of health care status in nursing homes will be separately addressed in
other DHEW evaluations of patient assessment instruments.
Please be assured that you are on the distribution list for this
Request for Proposal. If you would like further information on these
activities, please feel free to contact Dr. Clifton Gaus at Room 915,
Universal North Building, 1875 Connecticut Avenue, NW., Washington,
D.C. 20009.
Kaple, 2-Q-2 East, Baltimore, SSA-IRE-434, 130-48543
THE WHITE HOUSE OFFICE
REFERRAL
To:
SECRETARY OF HEALTH, EDUCATION Date: June 3, 1975
ACTION REQUESTED
Draft reply for:
FORD i LIBRARY
President's signature.
Undersigned's signature.
NOTE
Memorandum for use as enclosure to
reply.
Prompt action is essential.
If more than 72 hours' delay is encountered,
Direct reply.
please telephone the undersigned immediately,
Furnish information copy.
Code 1450.
Suitable acknowledgment or other
appropriate handling.
Basic correspondence should be returned when
Furnish copy of reply, if any.
draft reply, memorandum, or comment is re-
quested.
For your information.
For comment.
REMARKS: I would appreciate detailed information in regard to the referenced
meetings. It appears from here that this organization should be laed
in
such meetings. Is a repeat needed?
Description:
Letter: X Telegram: Other:
DIV. OF PUBLIC INQUIRIE
OFFICE OF PUBLIC AFFAIR
JUN 16 2 55 PM 2 55 PM "
To: Dr. Theodore C. Marrs
From: National Council of Health Care Services
Date: June 2, 1975
Subject: HEW Conferences on Prospective Reimbursement
TRACER
43231
By direction of the President:
Therson C. Woors
Theodore C. Marrs
Special Assistant to the President
SPECIAL
7506100109
DEPARTMENT OF
remain with correspondence)
HEALTH, EDUCATION, AND WELFARE
HEW 94
western union
Telegram
LLD031
WAB090(1208) (2-019019E153)PD 06/02/75 1208
ICS IPMMTZZ CSP
2027854754 TDMT WASHINGTON DC 137 06-02 1208P EST
PMS DOCTOR TED MARRS WUX
103 OLD EXECUTIVE OFFICE BLDG
1975JUN-2 1975 -2 pll 45
WASHINGTON DC
DEAR TED. I HAVE JUST BEEN INFORMED THAT HEW HAS ALREADY HELD THE
FOUR CONFERENCES ON PROSPECTIVE REIMBURSEMENT. MR W SEIDMAN IN HIS
LETTER TO ME ON MAY 13 STATED THAT OUR FOUR GROUPS NCHCS AHA FAH
AHCA WOULD BE INVITED TO PARTICIPATE IN THE CONFERENCES. WE DID NOT
RECEIVE ANY INVITATIONS AND THEREFORE WERE UNABLE TO PARTICIPATE IN
THE SESSIONS. I AM GREATLY DISTURBED WITH THIS TURN OF EVENTS. AS
YOU KNOW WE HAVE ATTEMPTED TO DEVELOP DEMONSTRATION PROSPECTIVE
REIMBURSEMENT PROJECTS AS PRESCRIBED BY SECTION 222 OF PUBLIC LAW
92603. THESE EFFORTS HAVE APPARENTLY FALLEN ON DEAF EARS WITHIN THE
RESPONSIBLE AGENCY IN HEW. I AM SURE THAT THIS IS NOT AND HAS NOT
SF-1201 (R5-69)
ШО
western union
Telegram
-
WAB090-2
1975 JUN-2 PH 1:45
BEEN THE INTENT OF SECRETARY WEINBERGER NOR THE ADMINISTRATION. YOUR
ASSISTANCE IN THIS MATTER IS APPRECIATED
JACK A MACDONALD EXECUTIVE VICE PRESIDENT NATIONAL COUNCIL
OF HEALTH CARE SERVICES
NNNN
SO:S M9 S-HUC
SF-1201 (R5-69)
SSA WORKSHOP
c/o InterStudy
123 East Grant Street
Minneapolis MN 55403
W P
HOSPITAL PROSPECTIVE PAYMENT: ISSUES and EXPERIENCES
HOSPITAL ISSUES ECTIVE and
A Series of Workshops Sponsored
by the Social Security Administration
and InterStudy
DATES:
Boston - May 2, 1975
San Francisco - - May 9, 1975
Chicago - - May 16, 1975
New Orleans - May 23, 1975
BOSTON
SAN FRANCISCO
APPLICATION FORM
Friday, May 2, 1975
Friday, May 9, 1975
I AM INTERESTED IN PARTICIPATING IN
Statler Hilton
Miyako Hotel
A PROSPECTIVE PAYMENT WORKSHOP.
Park Square at Arlington
Japan Center
MY 1ST AND 2ND CHOICES ARE IN-
$26 Single $36 Double
1625 Post Street
DICATED BELOW.
$25 Single $34 Double
1ST
2ND
CHOICE
CHOICE
CHICAGO
NEW ORLEANS
Boston
May 2, 1975
Friday, May 16, 1975
O'Hare Inn
Friday, May 23, 1975
San Francisco May 9, 1975
Le Downtowner
Mannheim and
Du Vieux Carre
Higgins Roads
Chicago
May 16, 1975
Des Plaines, III,
541 Rue Bourbon
$26 Single $32 Double
$22 Single $30 Double
New Orleans May 23, 1975
There is no enrollment fee, but application
Applicant's
must be made and confirmed in advance
Name
The workshop will last one day, beginning
Title
with registration at 8:45 a.m., and ending
Organization
at 4:30 p.m.
Name
A luncheon and coffeebreaks will be provided
Address
Participants will be responsible for their own
City, State,
transportation and hotel costs
Zip
InterStudy will arrange for participants'
Phone No.
hotel reservations, if requested on the
application form
If My Application Is Accepted:
Workshop size will be limited to approxi-
I Will Make My Own Hotel Reservations.
mately 50, to maximize participation by all
attending
I Would Like InterStudy To Reserve
A Hotel Room For Me.
Enrollment is not guaranteed; participants
For 1 Night
will be selected to ensure diversity of views
(Date)
and experience
For 2 Nights
Participants will be notified of their acceptance
(Date)
by April 10, 1975
Application forms must be received by
(Signature)
InterStudy no later than March 31, 1975
AHS-22046
HOSPITAL
PROSPECTIVE PAYMENT
ISSUES and EXPERIENCES
A Workshop Jointly Sponsored by The Social Security Administration and InterStudy
THIS WORKSHOP WILL PROVIDE A FORUM FOR PARTICIPANTS
TO OPENLY DISCUSS IDEAS, EXCHANGE INFORMATION, AND
CONSIDER THE PROS AND CONS OF PROSPECTIVE PAYMENT
SYSTEMS
TOPICS
THE POTENTIAL ROLE OF PROSPECTIVE PAYMENT IN
NATIONAL HEALTH POLICY
ISSUES FUNDAMENTAL TO THE DETERMINATION OF
PROSPECTIVE RATES
WORKSHOP
THE PROS AND CONS OF VARIOUS PROSPECTIVE
PAYMENT SYSTEMS
ORGANIZATIONAL MODELS UTILIZED IN THE ADMIN-
ISTRATION OF PROSPECTIVE PAYMENT SYSTEMS
THE USE OF FORMULAS IN PROSPECTIVE RATE
DETERMINATION
THE ROLE OF THE SOCIAL SECURITY ADMINISTRATION
IN PROSPECTIVE RATE DETERMINATION
DATA AND INFORMATION SYSTEMS REQUIRED TO
SUPPORT PROSPECTIVE PAYMENT SYSTEMS
DISCUSSION
LEADERS
SPEAKERS AND GROUP DISCUSSION LEADERS WILL
BE INDIVIDUALS FROM:
THE SOCIAL SECURITY ADMINISTRATION
INTERSTUDY
VARIOUS ORGANIZATIONS CONDUCTING RE-
OPERATING PROSPECTIVE
SEARCH RELATED TO PROSPECTIVE PAYMENT
PAYMENT PLANS
FIRST CLASS
PERMIT
NO. 10019
Minneapolis MN
BUSINESS REPLY MAIL
Postage will be paid by
SSA - Prospective Payment Workshop
c/o InterStudy
123 East Grant Street
Minneapolis MN 55403
THE WHITE HOUSE
WASHINGTON
DATE: 6-2
TO:
F. DEBACA
PAM POWELL
JEFF EVES
STAN SCOTT
VIRGINIA KNAUER
WAYNE VALIS
PAT LINDH
JOHN VICKERMAN
TED MARRS
DON WEBSTER
FROM: WILLIAM J. BAROODY, JR.
FOR YOUR INFORMATION
FOR APPROPRIATE ACTION
FOR YOUR COMMENTS/
RECOMMENDATIONS
OTHER:
St. Ignatius Manor, Inc.
S. 1009 Mill Street
Phone (509) 397-3446
Colfax, Washington 99111
26 May 1975
Mr. William J. Baroody, Jr.
Special Assistant to the President
The White House
Washington, D. C. 20500
Dear Mr. Baroody:
I recently received a copy of Mr. Wiley Cittenden's letter
to you regarding the relationship of the administration and
the American Health Care Association. As the National Chair-
man for the Nursing Homes for Nixon-Agnew Committee. I am
amazed at the lack of understanding between the leaders of
our industry and the H. E. W. I feel our Association is
doing everything in its power to provide better care for our
patients. The automratic incompetence of the bureaucrats
must be stopped if we are to achieve our goals. President
Ford must know now what is going on. I found him to be a
fair, sensible man when he was a Congressman. It's time
someone talked to him. If this situation continues, he
cannot expect support from us in his future plans. I
certainly will not help him or the Republican party.
Sincerely,
Roy McDonald
Mr. Roy J. McDonald
P.O. Box 680
Colfax, Washington 99111
99111
Mr. William J. Baroody, Jr.
Special Assistant to the President
The White House
Washington, D. C. 20500
national COUNCIL OF HeaLTH CARE SERVICES
May 1, 1975
Dr. Theodore Marrs
Special Assistant to the President
on Aging
103 Old Executive Office Building
The White House
Washington, D.C.
Dear Dr. Marrs:
Per our conversation of April 30, 1975, I am enclosing
a copy of the letter Mr. Seidman sent to Mr. McMahon
on April 11, 1975.
If I can be of any further assistance, please do not
hesitate to contact me.
Sincerely,
&
Jack A. MacDonald
Executive Vice President
Enclosure
Suite 402
1200 Fifteenth Street, N.W.
Washington, D.C. 20005
Tel. (202) 785-4754
'75
21
All
49
THE WHITE HCUSE
APR 29 1975
WASHINGTON
April 11, 1975
Dear Mr. McMahon:
The President has asked me to thank you for the letter of February 28
signed by yourself, Dr. Thomas G. Bell, and Messrs. Jack A.
MacDonald and Michael D. Bromberg, following up on our discussion
of February 6 about the impact of inflation on the health care field.
My thanks also for the copies you sent to Dr. Marrs and to me.
We are encouraged that segments of the health care industry have
taken positive steps to institute cost containment programs. Our
review of the post-control period (April 1974 to February 1975) sta-
tistics on trends in medical care prices indicates that further positive
actions to control costs will be required by all concerned parties.
During the 10 months since economic controls were lifted, the Con-
sumer Price Index (CPI) has increased 9.2% (11.2% annualized rate)
while medical prices have increased 12% (annualized rate of 14.5%).
For the same period, the composite hospital service charges index
increased 15%. Thus, while the health industry has made significant
strides toward cost containment, more effort will be needed to bring
health cost increases back into line with price increases in the geñ-
eral economy. You can be assured that the Federal Government will
continue to work with you in an effort to contain health costs.
Regarding the matter of prospective reimbursement, the Department
of Health, Education, and Welfare (DHEW) recognizes the important
potential of prospective reimbursement for cost containment and,
accordingly, has greatly expanded its experimental activities under
authority of Section 222 of Public Law 92-603. Thus far, priority in
prospective reimbursement has been placed on hospital reimburse-
ment. Projects are currently funded or being developed in eight
States. In addition, seven contractors are completing comprehensive
evaluations of the efficacy of prospective reimbursement systems
which have been established in the past without Federal assistance.
Also, there has been considerable activity within DHEW on the devel-
opment of prototype systems which can be tested to determine their
2
validity and effectiveness. It is anticipated that approximately eight
to ten new statewide prospective rate-setting systems could be
developed in carefully controlled experimental settings.
You might be interested to know that in addition to implementing
Section 222(a) of P.L. 92-603, the Department has undertaken a
number of activities authorized under part (b) of that Section. One
free-standing ambulatory surgical center was funded last year. We
are also funding six projects which will cover new benefits in long-
term care. These projects are designed to see if day care and home-
maker services are viable alternatives to institutionalization of elderly
persons. In addition, we are funding a study which will evaluate the
effectiveness of direct reimbursement for physician assistant services.
Furthermore, I am informed that DHEW plans a series of national
and regional conferences to disseminate information and stimulate
interest in all areas identified in Section 222 of P.L. 92-603 as suit-
able for research in the area of cost containment. The four confer-
ences on prospective reimbursement have already been announced and
invitations have been sent to your office. Conferences concerning
research into changes in benefits as authorized in part (b) will be
announced soon. We hope these conferences will attract members of
your organizations and institutions and will assist you in moving for-
ward with us in this important activity.
We are encouraged to find your organizations are so supportive of a
broadened experimental approach under Section 222. The Acting
Assistant Secretary for Health, Dr. Theodore Cooper, and the
Commissioner of the Social Security Administration, Mr. Bruce
Cardwell, would be pleased to meet with you to discuss in more
detail the scope of the Department's efforts and ways in which your
input can be assured.
L.W Sincerely, Sudman
L. William Seidman
Assistant to the President
for Economic Affairs
Mr. J. Alexander McMahon
President
Sorry This tools to
American Hospital Association
840 North Lake Shore Drive
Do long. Hope see
Chicago, Illinois 60611
you again Doon.
national COUNCIL OF HeaLTH CARE SERVICES
I PM ON, MAY
MOLOR
10 75
C
2
2
Dr. Theodore Marrs
1200 Fifteenth Street, N.W. Washington, D.C. D. C. 20005
Special Assistant to the
President on Aging
103 Old Executive Office Building
The White House
Washington, D.C.
naTIOnaL COUNCIL OF HeaLTH CaRe SERVICES
April 1, 1975
President Gerald R. Ford
The White House
Washington, D.C.
Dear President Ford:
We appreciated very much the opportunity to meet with Mr. William Seidman,
Dr. Theodore Marrs and other members of their staff to discuss matters of
mutual concern in connection with the health care industry in this country.
As was indicated at the time of our meeting, February 6, 1975, we are very
much concerned about the cost impact of several Federal regulations recently
promulgated pursuant to the Social Security Act. That concern has greatly
increased, not lessened, since the meeting.
Individual nursing homes are experiencing significant increases in their
operating costs as a result of the new regulations. We refer specifically
to the issuance of the following regulations: 20 CFR 405.1101 (f) Dietitian
Consultant; 20 CFR 405.1122 Medical Director; 20 CFR 405.1124 Nursing Services;
45 CFR 250.20 (a) (3) Discharge Planning; and 20 CFR 405.1137 Utilization Review.
It is our understanding that the preceding regulations were issued without a
financial impact statement, such as is now requested by your Executive Order
No. 11821, of the Department responsible for the promulgation of any Federal
regulations. We are also unaware of any subsequent review of the regulations
by the Council on Wage and Price Stability.
Mr. President, we strongly support efforts to improve the quality of patient
care in our nation's nursing homes. We have offered our assistance to the
Department of Health, Education and Welfare in the past and we now offer our
assistance to you in assuring that the nation's nursing home patients receive
quality care.
It should, however, be realized that this effort will not be without cost. We
simply suggest that, as you outlined in your Executive Order 11821, the Department
of Health, Education and Welfare should develop and publish cost data on
regulations prior to their implementation. To correct the lack of such a state-
ment for the above mentioned regulations, we respectfully request that such a
statement be prepared by the Department of Health, Education and Welfare as
expeditiously as possible. This process will now and in the future allow Congress,
Sonte
402
1200 atteenth Street, NW
Washington, 0 1: 20005
Tul. 002) 785 4754
President Ford
April 1, 1975
Page 2
State Legislatures, Consumers and Providers to make the appropriate financial
and administrative judgements necessary to continue their participation in
the Medicare and Medicaid programs. At the same time, it will hopefully
assist in a further reduction of the spiraling cost of nursing home care in
the country.
Mr. President, again we are not opposed to regulations which will improve the
quality of care received by our patients. We only ask that the responsible
Departments be aware of the costs of their regulations and provide the
appropriate means for their attainment.
We would appreciate the opportunity to work with your staff or with the Council
on Wage and Price Stability in developing additional information on this subject.
We pledge our full cooperation in this endeavor.
Thank you for your thoughtful consideration.
Respectfully,
Roger Roga C. Lipitz C. Lipity
President
National Council of Health Care Services
Wiley n. Crittenden, Jr.
Wiley M. Crittenden, Jr.
President
American Health Care Association
naTIOnaL COUNCIL OF HeaLTH CARE SERVICES
March 26, 1975
The Honorable Morris K. Udall
1424 Longworth House Office Building
Washington, D.C. 20515
Dear Mr. Udall:
The members of the National Council of Health Care Services read with extreme interest
your recent remarks before the American Association of Homes for the Aging on March 18.
The National Council represents more than 65,000 beds of the major proprietary multi-
facility health care firms. It is the only national association representing nursing
homes which requires that its member facilities be accredited or accreditable by the
"Accreditation Council for Long-Term Care Facilities" of the "Joint Commission on
Accreditation of Hospitals."
First, let me say that we sincerely appreciate your focusing attention on the health
care needs of our nation's elderly. As a presidential candidate, your attention can be
very constructive in the efforts to develop some positive solutions to the problems in
this vitally important segment of the health industry.
As you pointed out, the neglect of the elderly covers a broad spectrum of needs in addition
to health care. The list of needs begins with the basics of everyday life such as,
food, shelter, income and transportation. We need new, constructive and imaginative
programs which address themselves to all of these areas including health care. The
magnitude of such an endeavor will require the utilization of all our available resources
in a manner similar to our country's vigorous pursuit of energy conservation. For what
could be more important to this nation than the conservation of its greatest resource -
its people.
A decision to eliminate a primary resource, proprietary nursing homes, from participation
in this effort requires careful consideration and overwhelming evidence to sustain
such a decision. We respectfully submit that such evidence does not exist. There is
without question emotion in some quarters for that course of action, but not sustainable
facts. Emotion is not a sufficient reason to destroy an industry, nor to deny a service
to nearly one million elderly Americans who cannot wait until a replacement is found
and brought up to a performance level capable of handling their needs.
The differences between non-profit and proprietary facilities have been found to be fairly
insignificant. One of the nursing home industry's most persistent critics, Mrs. Mary
Adelaide Mendelson, in her book Tender Loving Greed, comments that "roughly 15 percent
of American nursing homes classed as non-profit are not significantly different from
their profit-making (proprietary) brethren." She discounts the differences further by
Suite 402
1200 Fifteenth Street, N.W.
Washington, D.C. 20005
Tel. (202) 785-4754
The Honorable Morris K. Udall
March 26, 1975
Page 2
citing a University of Minnesota study which concludes that "there are far greater
differences between good and bad non-profit homes on the one hand and between good and
bad proprietaries on the other than there are between the two categories."
Substantive studies conducted on the relationship between the quality of care provided
to nursing home patients and the type of ownership of a facility provide fairly conclusive
evidence.
Dr. Samuel Levey, Former Director of the Division of Nursing Home and Related Facilities,
Massachusetts Department of Public Health, and presently Professor and Chairman of the
Graduate Program of Health Care Administration at Mt. Sinai School of Medicine, New York
City, completed a comprehensive study of this relationship from which he reported "A
noteworthy finding was that non-profit facilities showed higher per diem costs but did
not show higher quality ratings. In 1969, the average per diem cost of the non-corporate
proprietary facility was $11.46, the corporation proprietary $13.52, and the charitable
corporation $16.59. Regression analysis, however, revealed no significant relationship
between type of ownership and quality of care." This conclusion by Dr. Levey and members
of his research team was reached after a detailed review of nursing homes in the State
of Massachusetts, which covered a period of years prior to and after the enactment of
the Medicare and Medicaid Programs.
Another significant study, "Analysis of Selected Characteristics of a Matched Sample of
Nonprofit and Proprietary Nursing Homes in the State of Washington," was conducted by
Sharon Winn, MPA of the Battelle Research Institute, Seattle, Washington. In summarizing
the study's findings, she concluded that "the evidence of this study does not support
those who would censure the quality of care in nursing homes solely on the basis of the
proprietary status of the facility." She reported specifically that there are "more
similarities than differences between proprietary and non-profit nursing homes."
Another study was conducted of nursing homes in the State of Minnesota, where similar
findings resulted as was mentioned earlier.
The association of the profit incentive with efficiencies in the delivery of service and
the inference that the efficiencies directly result in a reduction in the quality of
patient care, requires further consideration. This is an allegation often repeated,
which does not stand up under an objective review of the facts.
First, as the three studies mentioned above concluded, there is no significant difference
in the quality of care generally provided in facilities with the profit motive, when
compared to those without it.
Second, if there was an association between the profit motive and the reduction in quality,
you could reasonably expect that the total cost of care in the two types of facilities
would either be approximately the same or that the non-profit would be lower. This
would follow since today both must meet equal standards of care, facility construction,
and personnel, while the profit factor is eliminated from the non-profit facility's
total costs. This is simply not the case.
The Honorable Morris K. Udall
March 26, 1975
Page 3
Recently released data by the National Center for Health Statistics of the Department
of Health, Education and Welfare, states that the average proprietary cost of care is
$16.02 per patient day, while non-profit costs are running $17.33 per patient day -
a difference of $1.31. If you then multiply that difference by the number of resident
days (117 million) for non-proprietary facilities, the cost annually is approximately
$154,400,000. Since the government pays for approximately 26 percent of the care in
non-profit facilities, its share of the additional cost annually is approximately
$40.1 million. This is in effect a subsidy in addition to other benefits usually enjoyed
by non-profit facilities as a result of their tax exempt status.
The question, therefore, which might be justifiably asked is, if the quality and the
standards are substantially the same for both the non-profit and the proprietary
facilities, but the non-profit costs are higher, who is really "trading in the economics
of misery"?
In a recent editorial, Professor Peter F. Drucker of Claremont Graduate School of Social
Science stated that, "To earn enough to cover the genuine costs which only the so-called
profit can cover, is economic and social responsibility, indeed it is the specific social
and economic responsibility of business." He goes on to say, "It is not the business that
earns a profit adequate to its genuine costs of capital, to the risks of tomorrow and
to the needs of tomorrow's worker and pensioner, that "rips off" society. It is the
business that fails to do so." That business has to make up its losses, through
subsidies from the Government, a charitable organization or another third party, which
has been for the most part the government in the case of the nursing home industry.
2
Further evidence can be offered as to the acknowledged failings of non-profit facilities,
such as the numerous reports on St. Elizabeth's Mental Hospital in the District of
Columbia as well as the lack of significant differences in the quality of care between
facilities as a result of their ownership. However, further recriminatory statements
will only serve to further divide our industry, which badly needs to bind its wounds
and begin working together to solve the health needs of the nation's elderly. We would
hope that Congress will recognize this need for unity and refuse countenance to those
in the future, who dwell on their fellow professionals' alleged faults for personal gain.
Your leadership and that of your Congressional colleagues is needed to develop the
progressive and innovative programs needed by the nation's elderly.
In that vein, it should be noted that Senator Frank E. Moss as Chairman of the Senate
Subcommittee on Long-Term Care of the Senate Special Committee on Aging, has released
a series of reports and is presently introducing numerous pieces of legislation addressed
to the problems which he and his committee have found during their more than 10 years
of investigation. One bill which Senator Moss stated he will introduce, addresses a
key problem facing the industry today, that of payment for services rendered under the
Medicare and Medicaid programs. This is a major problem today for nursing home patients,
the public, government agencies, and the industry. The possible impact of a solution
to this problem should not be underestimated.
The Honorable Morris K. Udall
March 26, 1975
Page 4
Mr. Val Halamandaris, Associate Counsel to the Senate Special Committee on Aging, stated
in an interview in Modern Healthcare's March issue that in regard to the situation in
New York City, "the whole problem in New York is the reimbursement system." The present
Medicare and Medicaid payment systems have been documented in various studies as being
non-uniform; contradictory; unresponsive to patient needs; subject to manipulation by
various groups, including the Federal, State and local Government agencies; and most
importantly, an actual disincentive to a provider to offer good care. A solution is
needed which has incentives for providing good care, fiscal accountability, encourages
and recognizes efficiencies, penalizes wastefulness and abuses, and does not discriminate
against any facility because of its type of ownership.
The National Council believes that the penalities in any health care system must be
meaningful and appropriate. We do not in any way condone abuses of the system or most
importantly the patients. Those facilities whether they be nursing homes, hospitals,
or boarding homes, which engage in such practices must be censured and penalized.
Coupled with this solution of the payment mechanism must be a greater recognition in the
Social Security Act and in any national health insurance legislation of the actual needs
of the elderly. We have traditionally designed the system with its benefits first and
then attempted to fit the patient into it. That process must be reversed. The nature
and extent of services offered by the system should be determined first by the actual
needs of the beneficiary -- physical, mental, medical, and socioeconomic -- not the
requirements of the financial support mechanism.
If the various incentives under the payment system, mentioned earlier, are then tied
to assuring that the actual needs of the patient are met then you will see a tremendous
change in the quality of care in all health facilities, not just nursing homes. However,
so long as providers of services under Medicare and Medicaid must seek to fit their
patients into the present unresponsive eligibility and benefit criteria, we shall all
continue to have problems.
The industry itself has been responding in a positive and responsible manner to the many
diverse needs of its patients and members. The National Council is for example, developing
a new concept for the payment of services under the Medicare and Medicaid programs. We
would be happy to discuss this with you in detail upon its completion early this spring.
Several of the Council's member firms are developing data systems for assessing individual
patient and facility wide patient care. One firm is highly involved in the development
of out patient and day care services for the elderly. We have numerous other projects
underway which we would be happy to discuss further with you.
The American Health Care Association (formerly the American Nursing Home Association),
representing more than 7,500 non-profit and proprietary facilities is particularly
involved in the development of a completely new approach to delivery of long-term care
services. This concept, known as Chronicare, was first conceived by the Association in
The Honorable Morris K. Udall
March 26, 1975
Page 5
1970 and has been extensively analyzed by the Stanford Research Institute. Senator
Humbert H. Humphrey and Representative Harley O. Staggers have introduced legislation to
establish demonstration projects. The Chronicare concept has also found its way into
several other pieces of legislation including Representative Barber Conable's proposal
which you cited in your recent speech. I am sure that representatives of the American
Health Care Association would be most appreciative of the opportunity to discuss the
program with you.
The American Health Care Association has also developed extensive education programs and
materials, a Volunteer Service Corps similar to the one found in hospitals, conducted
extensive research in the area of fire safety from which they developed a Fire Safety Manual,
and under a HEW grant conducted an extensive educational effort of nursing home activity
directors. These are only a few of their extensive efforts to improve the quality of
patient care provided by their member facilities.
The American College of Nursing Home Administrators, representing more than 5,000 licensed
administrators, is actively developing extensive educational programs for nursing home
administrators on both a state and national level. The curricula of their seminars cover
every aspect of nursing home administration and management. In fact they are holding the
first North American Symposium on Long-Term Care Administration this summer in Toronto,
Canada, July 27-31, 1975.
In addition to the activities of the national organization, numerous state nursing home
associations are involved in Peer Review programs, educational efforts, and research
activities involving the further improvement of patient care.
In each of a the activities mentioned above, the various groups are working on behalf of
the entire industry, not just a segment of it. Those within the industry, who are
concerned about its future and most importantly the patients it serves, realize they
cannot afford to look only at their own particular segment. Rather everyone must concern
themselves with the plight and needs of the entire industry.
The National Council of Health Care Services in conclusion takes strong exception to any
attempt to segregate by ownership and thereby eliminate any portion of the industry
from the opportunity to participate in the Medicare and Medicaid programs.
It is interesting to note that during the hearings currently being conducted in New York
City by the Moreland Commission on the nursing homes there, Monsignor John Ahren of the
Catholic Charities of Archdiocese of New York on Monday stated that he did "not" nor
did those for whom he spoke "urge the priori exclusion of proprietary, public or voluntary
sponsor."
Again we appreciate your attention to the health care needs of our nation's elderly, it
is a needed and a worth-while effort and if we can be of assistance to you or your staff
in answering any questions, please let us know.
Yours very truly,
RogerC Lipts
Roger C. Lipitz
President
Ltr to A HA
I was most interested in your letter of February 28th
concerning efforts of institutional health provider associ-
ations to contain cost increases on a voluntary basis. As
you know, and as I have repeated in my own public statements,
I am personally opposed to wage-price controls and instead
favor the establishment of an economic climate in which
productivity is encouraged through normal market conditions.
The restraint evidenced by the health industry since
economic controls ended on April 30, 1974 is commendable
and I hope your associations will continue to urge restraint
in charge increases as well as expenditures so that we can
maintain a control-free economy.
Your suggestion for accelerated activity in developing
and testing prospective payment systems under the Medicare
program is one which I find promising. Since authority for
such increased experimentation exists under P.L. 92-603,
I have asked the Secretary of HEW to meet with your associa-
tions to discuss the suggested appointment of a task force
and what steps should be taken to assure an adequate level
of experimentation in this area.
avr Hugh Mac the fall
July 2, 1975
FORD i GERALD LIBRARY
Dr. T. C. Marrs
Special Assistant to the President for Human Resources
The White House
Washington, D. C.
Dear Ted and Annette:
How you folks manage to be so wonderfully gracious in the
face of such devastating daily schedules is amazing.
We all thank you for everything.
At long last I have a little hard copy, descriptive of our
projected goal (a global economic health system which uses our
finest technology and science for the benefit of people).
The enclosure is an early stage proposal which I hope you
will inspect and if worthy circulate among the several agencies
which have allied interests. Is there any room for this among
the Bicentennial Committee projects? We did the proposal in
response to a request by the U.N. for Habitat and for planning
with Cemsat and N.A.S.A.
Any corrections, deletions, or additions you advise will
be most helpful, I'm sure.
Affectionately always,
Hys
Hugh and Henrietta
HCM/t
PS.- 1 hage Dodaens can is better. Best wishes to
him Fronks. and his tride- Remailer to tell fores of
Sou at albergugue NM
Preliminary
Proposal For
A Real-Time
International Tele-Health
BEFORD a LIBRARY GERALD
System
for demonstration to
HABITAT
United Nations Conference on Human Settlements
* Submitted to: United Nations
Center for Economic and Social Information
Submitted by: Auburn University and Medical University of S.C.
Auburn, Alabama
Charleston, South Carolina
Rural Health Society, Canada and National University, Costa Rica
On behalf of: International Tele-Health Planning Group
*Also Submitted To: National Library of Medicine, Lister Hill National
Center for Biomedical Communications, for approval
for CTS Experimenters Project
Leurs Lewis J. Pinson, Juison Ph.D.
J. Dávid Irwin, Ph.D.
Chairman, Biomedical Group
Head, Electrical Engineering Dept.
Vincent S. Haneman, Jr., Ph.D. of
Chester C. Carroll
Chester C. Carroll, Ph.D.
Dean, School of Engineering
Vice-President for Research
Authorized Representative
William Mill Gord
Auburn University
202 Samford Hall
William M. McCord, M.D., Ph.D.
Auburn, Alabama 36830
President, Medical Univ. of S.C.
Telephone: 205/826-4784
Vince Coordinator Unin Moseley, Unily of M.D. Extramural Affairs anD
Hugh MacGuire, M.D., Adj. Professor
President of Rural Health Society
Medical University of South Carolina
Victoria B.C., Canada
Telephone (205) 277-1084
In Canada (604) 384-3712
I. INTRODUCTION AND PROPOSAL STATEMENT
The International Tele-Health Planning Group, a multi-national,
multi-university, multi-industry group, proposes operational demonstration
of a real-time, twenty-four hour a day, international tele-health appli-
cations system. The proposed system will utilize existing and available
satellite communications channels, ground station equipment, ground
communication links and physiological instrumentation. Technical feasi-
bility of such a system has been verified by numerous studies and by
limited demonstrations.
The International Tele-Health Planning Group, within its membership,
has brought together all elements essential to implementation of the
proposed tele-health system. The elements may be grouped into three
broad categories.
1. SERVICE - includes personnel, expertise and willingness to
provide necessary services and consultation as inputs to the tele-health
system.
2. TECHNOLOGY - includes feasibility and availability of hardware
and methods for a tele-health system.
3. APPLICATION - includes need for and ability to use the tele-
health system by personnel at remote sites.
The proposed system will be unique in providing around the clock
service and in tailoring the service to best fit the needs of those persons
responsible for rural health delivery at selected remote sites. The
demonstration system is designed to allow expansion in steps to the final
goal of a world wide, self-supporting tele-health system.
II. SYSTEM DESCRIPTION
Inadequate health care, particularly in rural areas is a problem
recognized by medical institutions, federal agencies and other interested
groups. A number of proposed systems and demonstrations by various
groups have shown technical feasibility and will evaluate specific facets
of tele-health care application.
The system proposed by the International Tele-Health Planning Group
is innovative and unique in the following ways:
Real-time, twenty-four hour a day service is to be provided
for medical emergency consultation and diagnosis.
The proposed system is fully supported by a major medical university
(Medical University of South Carolina). Additionally the Medical
University of South Carolina, thru the Health Communications
Network, has communication links with 23 hospitals throughout the
state of South Carolina.
Auburn University, thru its Department of Electrical Engineering,
has the expertise in communications theory, computer analysis and
computer data management to fully utilize the tele-health system
and provide improved service to its users. Additionally the
Department of Foreign Languages, the School of Veterinary Medicine
and the School of Agriculture will provide services to help
round-out the total tele-health service.
Emphasis is being placed on determination of specific user needs.
A symposium on rural health is planned by the International Tele-
Health Planning Group to learn what services are needed by personnel
in remote sites who are responsible for health care.
Thus the International Tele-Health Planning Group brings together a
set of skills uniquely encompassing the total health care concept along
with a proposed operational system which is technically feasible and
flexible to best meet user needs.
Additional clarification of areas of responsibility is given in the
following figures. Figure 1 shows a block diagram for the proposed
system. It consists of two urban centers, Auburn University and the
Medical University of South Carolina, serving two or three remote sites.
Location of these sites as well as details of the satellite system will
be coordinated with International Telecommunications Satellite Consortium
(INTELSAT). Major service categories are given for Auburn University
and the Medical University of South Carolina in the figure.
Four major program phases are envisioned as essential to the success-
ful operation of the proposed real-time tele-health application system.
PHASE 1: PLANNING EFFORT - Determine details of the specific system
to be demonstrated.
PHASE 2: IMPLEMENTATION - Based on results of the planning effort
establish ground stations, communications links; and initiate personnel
training, user protocol and an overall system operating plan.
PHASE 3: OPERATION - Provide necessary manpower to operate the tele-
health delivery system on a real-time, 24 hour a day basis.
PHASE 4: EVALUATION AND EXPANSION - Provide continuing evaluation
of the tele-health concept through all steps of the program.
The planning effort is first and essential to the other phases. For that
reason additional information of Phase 1 in the form of specific tasks is
given in Figure 2. Primary coordinating responsibility for each task
within the International Tele-Health Planning Group is also given. Results
of the planning effort would provide all information necessary for comple-
tion of Phases 2 and 3.
It is felt that results of the proposed system in conjunction with
improvements in satellite and ground station equipment, computer-aided
health care, and tele-health care economics will lead to a world-wide
international tele-health applications system such as shown in Figure 3.
The specific ground sites shown in the figure represent those for which
definite interest in the tele-health delivery concept has been expressed
to the International Tele-Health Planning Group.
Phase 4, a continuing effort thoughout the proposed program involves
evaluation of results and predicted economies to determine practicability
the dedicated system shown in Figure 3.
HEALTH COMMUNICATIONS NETWORK
23 Hospitals in South
Carolina
MEDICAL UNIVERSITY OF SOUTH
AUBURN UNIVERSITY
CAROLINA
engineering
coordination of medical
computer analysis
services
data handling
emergency service
veterinary medicine
medical education
languages
consulatation
agriculture
diagnosis
fisheries
pharmacology
SATELLITE SYSTEM
Two-way audio-video
data communications
links
*
REMOTE #1
*
REMOTE # 2
*
REMOTE # 3
*
Selection of remote sites and satellite system capability to be coordinated
WTON
national Telecommunications Satellite Consortium (INTELSAT)
FIGURE 1. Operational System Block Diagram
-- International Tele-Health
Applications System
FIGURE 2. PHASE I PLANNING EFFORT TASKS
ITPG - International Tele-Health Planning Group
ITPG
COORDINATED
TASK
COORDINATOR
WITH
1. Determine number and location
Auburn
INTELSAT
of ground stations, satellite
University
channel availability and band-
width. Consider present oper-
ational system and projected
future system.
2. Determine availability, cost
Auburn
Colorado Video
and capability of primary
University
General Electric
(antenna, transceivers, audio-
Scientific Atlanta
video circuits, etc.) and
University
Western Union
auxiliary (physiological moni-
of Texas,
ASDA, Ltd.
tors, x-ray, pre-processing,
Austin
Cable Video Comm.
etc.) ground station equipment.
INTELSAT
Other Industry
Sources
3. Determine specific areas of
Medical
Health
consultation for medical
Univeristy
Communication
service (emergency and con-
of South
Network of
sultation, diagnosis) in-
Carolina,
South Carolina
cluding scheduling, personnel,
protocol, priorities, etc.
Auburn
Personnel at
Determine similar information
University
Remote Sites
for other service areas
(veterinary medicine, agri-
culture, language, etc.).
4. Define back-up services
Medical
Health Comm.
from hospitals, other
Univeristy
Network
universities, etc.
of South
Carolina
University
of Alabama
Auburn
Univeristy
Tuskegee
Institute
Rural Health
Society
Other
Royal Jubilee
Hospital
FIGURE 2 (Cont'd) PLANNING EFFORT TASKS
ITPG
COORDINATED
TASK
COORDINATOR
WITH
5. Define system integration,
Auburn
INTELSAT
equipment operation, computer
University
control programming, data
Equipment
handling and system operational
manufacturers
procedure documentation.
6. Define necessary technical
Medical
Health Comm.
and medical training services
University
Network
to personnel at both remote
of South
Personnel
and urban ground station
Carolina
Remote site
sites.
Auburn
personnel
University
Urban site
personnel
7. Investigate improved data
Auburn
Remote sites
analysis, health care delivery
University
techniques utilizing advantages
Other ITPG
offered by the tele-health
Medical
members
system.
Univeristy
of South
Carolina
8. Seek funding support for the
Medical
All members
operational system; evaluate
University
of ITPG
success of the system; compare
of South
economies; and investigate
Carolina
National Library
feasibility, economy and
of Medicine
funding sources for a world-
Auburn
wide tele-health concept.
University
White House Office
of Human' Resources
University
of Alabama
INTELSAT
at Huntsville
UNITED NATIONS
Other agencies,
foundations or
groups.
9. Prepare a report fully docu-
Auburn
All related groups
menting results of the plan-
University
ning effort. This report will
serve as a system implementation
Medical Univ.
and user guide.
South Carolina
FIGURE 3. DEDICATED WORLD-WIDE TELE-HEALTH SYSTEM
MOBILE
HOSPITALS
PROGRAM
UNIVERSITIES
UNIT
DALHOUSIE UNIVERSITY
EXPANDED SERVICE CENTERS
Halifax, Nova Scotia
HEALTH COMMUNICATION
TUSKEGEE INSTITUTE
NETWORK
UNIVERSITY OF OTTAWA
Alabama
23 hospitals in S.C.
Canada
AUBURN UNIVERSITY
MEDICAL UNIVERSITY OF
ROYAL JUBILEE HOSPITAL
engineering
SOUTH CAROLINA
Victoria, B.C. Canada
veterinary medicine
linguistics
medical education
emergency service
agriculture
consultation
consultation
fisheries
emergency service
pharmacology
EXPANDED
DEDICATED TELE-HEALTH
SATELLITE SYSTEM
NATIONAL UNIVERSITY OF
QUEEN CHARLOTTE
AMAZON DEVELOPMENT
COSTA RICA
ISLANDS HOSPITAL
SUBSTATION, BRAZIL
remote site
remote site
remote site
GRENFEL MISSION
EXPANDED REMOTE CENTERS
Newfoundland
MOBILE
CLINIC
HEALTH
SATELLITE LINE
SUBSTATION
UNIT
GROUND LINK
TWO-WAY AUDIO, VIDEO DATA
COMMUNICATIONS LINKS
III. PHASE I BUDGET AND PERSONNEL
The attached budget shows typical expenditures for the Phase I
planning effort. The budget of $50,000 is for a three month effort with
documentation to be completed within thirty (30) days following the end
of the three month period.
Personnel in addition to those listed, within the International
Tele-Health Planning Group, will be available on salaried or consultant
basis to aid in achieving goals of the planning effort. Auburn University
will administer the planning effort for the International Tele-Health
Planning Group.
A start date of 1 August 1975 is proposed. Modifications to the
proposal are negotiable. Questions on the proposal should be directed to
Dr. Chester C. Carroll, authorized representative for Auburn University.
GERALD FORD LIBRAPY
PHASE I - PLANNING EFFORT TYPICAL BUDGET
(3 months)
1. Salaries and Wages
$21,034.00
A. Participating personnel:
a. Lewis J. Pinson, Ph.D, Asst. Prof., Project Leader, AU
b. Hugh C. MacGuire, M.D., Adj. Prof., Project Leader, AU
c. Vince Moseley, M.D, Director, Continuing Education, MUSC
d. J. David Irwin, Ph.D, Assoc. Prof. & Head, EE Dept., AU
e. Chester C. Carroll, Ph.D., Vice-Pres. for Research, AU
f. David L. Christensen, Ph.D., Research Associate, UAH
g. Martial A. Honnell, Professor, AU
h. H. Troy Nagle, Ph.D, Assoc. Professor, AU
i. Encel H. Dodge, Dir. of Contract & Grant Dev., AU
j. Allied Medical University of South Carolina Personnel
AU - Auburn University
MUSC - Medical University of South Carolina
UAH - University of Alabama at Huntsville
B. Secretarial
2,000.00
C. Graduate Research Assistants (Programming)
2,000.00
Sub-total
$25,034.00
2. Overhead (58% of 1.)
14,519.72
3. Employee Benefits (18% of 1A and 1B)
4,146.12
4. Materials, Supplies and Services
1,000.00
5. Computer (2 hrs @ 250.00)
500.00
6. Travel Expenses
2,500.00
7. Communications
300.16
8. Consultant
2,000.00
TOTAL
$50,000.00
H. WAYNE GILLIES
July 25, 1975
BERALE FORD LIBRARY +
Dear Ted,
Please find attached hereto a publication
which I have prepared for the physicians of
Texas. I thought it might be of interest to
you.
Kindest regards,
Wayn
Dr. Ted Marrs
Special Assistant to the President
of the United States
The White House
Washington, D.C. 20506
Texas Statutes Related To
The Practice Of Medicine:
the physician
and the law
H. WAYNE GILLIES :
ATTORNEY AT LAW
1609 NIELS ESPERSON BUILDING
HOUSTON, TEXAS 77002
Dr. Ted Marrs
Special Assistant to the
President of the United States
The White House
Washington, D.C. 20506
HERMANN HOSPITAL / TEXAS MEDICAL CENTER / 1203 ROSS STERLING AVENUE / HOUSTON, TEXAS 77025
DAN G. KADROVACH, FACHA
HOSPITAL DIRECTOR
FORD i LIBRARY 076830
April 28, 1975
Dear Doctor,
At my request, Mr. H. Wayne Gillies, Chairman of the Volunteer Profes-
sional Group in the Hermann Hospital Development Program, has prepared
the attached summary of Texas laws pertaining to the medical profession.
Too often, physicians face inordinate liabilities for having failed to
satisfy the statutory requirements placed on the medical profession by
the Legislature.
It is my hope that you will carefully read this presentation and that it
will be of lasting benefit to you.
I am sure you will join me in expressing appreciation publically to Mr.
Gillies for spending his valuable time in preparing this summary for the
Hermann Hospital Staff at no charge to the Hospital.
Sincerely,
Dan G. Kadravach
Dan G. Kadrovach, FACHA
Executive Director, Hermann Hospital
H. WAYNE GILLIES
ATTORNEY AT LAW
1609 NIELS ESPERSON BUILDING
HOUSTON, TEXAS 77002
(713) 229-8678
Mr. Dan G. Kadrovach
Director
Hermann Hospital
Texas Medical Center
1203 Ross Sterling
Houston, Texas 77025
Dear Mr. Kadrovach:
Pursuant to your request, I have prepared the attached
brief on the statutes of Texas pertaining to the prac-
tice of medicine. It is my hope that the physicians
reading this presentation will realize that potential
professional liability is greatly reduced by conform-
ing their practice to meeting basic statutory require-
ments of this State.
In my opinion, every effort should be made to reduce
the inordinate burden of litigation with which our phy-
sicians must daily live.
Chairman H. Yours Uayne Wayne sincerely, Gillies Geein
Volunteer Professional Group
Hermann Hospital
HWG/pf
attachment - as stated
TEXAS STATUTES RELATED TO THE PRACTICE
OF MEDICINE: THE PHYSICIAN AND THE LAW
TEXAS STATUTES RELATED TO THE PRACTICE OF MEDICINE:
THE PHYSICIAN AND THE LAW
INDEX
page
Introduction
1
I. Duties Imposed by Law
3
A. The Duty to Treat or To Examine
3
B. The Duty to Maintain Records
4
C. The Duty to Provide Information
5
1. Permissive Reporting: Response to Approved
Immunization Surveys.
5
2. Mandatory Reporting: About the Newly Born
7
3. Mandatory Reporting: About Child Abuse
8
4. Mandatory Reporting: About Disease.
9
a. In General
9
b. Veneral Disease
10
C. Tuberculosis.
11
5. Mandatory Reporting: About Gunshot Wounds
12
6. Mandatory Reporting: About Death
12
II. Liability and Avoidance of Liability
14
A. The Good Samaritan
14
B. Consent
15
1. By Minors
15
Index
ii
February 25, 1975
a. When the Parents Cannot be Found.
15
b. The Form and Content of the Consent
16
C. When the Minor's Consent is Sufficient.
17
d. Protecting the Child in an Emergency
19
2. Transplant Donors: The Texas Anatomical
Gift Act
20
a. Who May Consent
20
b. Who May Accept.
21
C. How Consent May be Given
21
d. Avoidance of Liability
22
e. Anatomical Gifts and Required Autopsies
23
3. Artificial Insemination
23
4. Autopsies and Dissection
24
a. Autopsies
24
b. Dissection
25
C. Commitment of the Mentally Ill
25
D. Liability for Transplants and Transfusions
26
E. Prohibited Practices
27
1. Abortion
27
2. Placement of Children
28
3. Abuse of Corpse
29
III. Regulation of the Practice of Medicine
30
A. Unlawful Practice
30
B. Identification of Systems of Healing.
31
Index
iii
February 25, 1975
C. Registration.
31
D. The Form of Practice
32
E. Attracting Patients
33
F. Collecting Fees
33
1. Examination of Rape Victims
34
2. Providing Necessary Medical Treatment
34
3. Fraudulent Conduct
34
G. Malpractice
35
IV. The Special Problem of Drugs and Controlled
Substances
36
A. The Regulatory Scheme
36
1. The Texas Food, Drug, and Cosmetic Act
36
2. The Dangerous Drug Act.
38
3. The Controlled Substance Act
39
B. The Distribution of Drugs
40
C. Drug Treatment Programs
40
1. Regulation of Drug Treatment Programs
40
2. Minor's Consent to Treatment
41
3. The Limited Physician-Patient Privilege
42
Conclusion
43
Footnotes
Appendix.
MEMORANDUM
TO: Dan G. Kadrovach, Director, Hermann Hospital
FROM: H. Wayne Gillies, Attorney at Law
DATE: February 25, 1975
RE: Texas Statutes Related to the Practice
of Medicine: The Physician and the Law
Often, those who are meant to be the beneficiaries of
various statutes find the laws, as written, are the greatest bar-
riers to their protection.
The practice of medicine and the importance it bears
to the functioning of modern society has made it the subject of
several legislative enactments.
The greatest difficulty encountered in preparing this
memorandum was that the Texas Statutes regulating the practice
of medicine are scattered throughout the statutes. There is no
one place to look to find out what the physician is required by
law to do. Thus, it is understandable that most physicians are
uncertain what their statutory duties are. Most publications
presented through the various medical journals, researched by me,
have not, through the years, presented a definitive compilation
of applicable statutes to the medical community.
Memorandum
-2-
February 25, 1975
The purpose of this memorandum is to attempt to provide
some framework to the laws as they now exist. It will be divid-
ed into four parts.
Part One will discuss duties imposed by law on the prac-
titioner. Part Two will deal generally with the liability of
the physician under various statutes. Part Three will note var-
ious regulatory statutes concerning the actual practice of medi-
cine. Finally, Part Four will be concerned with the special prob-
lem of drugs.
Two things should be kept in mind. First, the memor-
andum is concerned only with statutes. No attempt is made to ap-
ply case law. To do so would result in a book. Second, since
violation of a statute is often considered as negligence per se,
it is hoped that familiarity with statutory duties may enable
the practioner to avoid potential grounds for malpractice suits
against the physician, his clinic and/or the hospitals involved.
Finally, no attempt is made to evaluate the laws or to
pass judgment on them. That is left for the reader, who knows
infinitely more about the effect such statutes have on the prac-
tice of medicine than your writer.
Memorandum
-3-
February 25, 1975
I.
Duties Imposed by Law
There are some acts a doctor is required to do. You have
no choice. No discretion is allowed. Fortunately, the major-
ity of these laws are directed toward reporting information and
not toward treatment or examination. The duties may be divided
into three classes: (i) the duty to treat or to examine; (ii) the
duty to maintain records; and (iii) the duty to provide informa-
tion.
A. The Duty to Treat or to Examine
Three statutes require the physician to perform certain
examinations or treatment. All are directed toward preserv-
ing the well-being of the newborn.
The first time a pregnant woman comes into your office
for a visit or examination, you are required to make a pre-
natal examination for syphilis. 1 The law directs that the
blood sample be forwarded to an approved laboratory and
that you retain the results in your files for at least nine
months. If the woman changes doctors, you are required to
forward the results to her new physician. The new physici-
an need not make another examination. Violation of the law
may result in a misdemeanor conviction with a fine of $200
to $500. 2
Once the child is born, anyone attending the birth,
whether doctor, nurse, or midwife, must take action to pre-
Memorandum
-4- -
February 25, 1975
vent opthalmia neonatorium. 3 The statute directs the use
of prophylactic eyedrops of 1% silver nitrate solution, or
any other solution approved by the State Board of Health.
Failure to do so can result in a fine of not less than $10
or more than $100.
Finally, the physician or other person attending a new-
born baby is directed to subject the child to a phenylke-
tonuria test as approved by the State Board of Health. If
the test proves positive, the results must be reported to
the county health officer. Upon confirmation, the State
Board of Health and other cooperating agencies are direct-
ed to make services and facilities available to the family
4
and the physician to the extent they are needed.
If, however, the parents of the child object to adminis-
tration of the test on religious grounds, the physician is
not required to give the test over their objections. In
fact, the statute relieves the physician of liability and
responsibility when the parents or guardian refuse to give
5
permission or to consent to the test.
B. The Duty to Maintain Records
The State of Texas requires certain information and re-
cords be maintained by hospitals.
When a person is admitted or committed to any hospital
or other institution, whether public or private, the physi-
Memorandum
- -5-
February 25, 1975
cian in charge must specify for the record the nature of
the disease and where, in his opinion, it was contracted.
The information may be obtained from the patient where prac-
ticable; if not, from friends and relatives
6
In addition, the hospital superintendent, manager, or
director is required to keep records of all persons admit-
ted. 7
The reader should recall that results of prenatal sy-
philis examinations must be retained for nine months.
9
Other than the above statutes, there appear to be no
other mandatory record-keeping provisions, except in the
area of drugs (Part IV, infra.)
C. The Duty to Provide Information
The Texas scheme allows permissive reporting of cer-
tain types of information, and mandatory reporting of other
types.
The permissive reporting statutes generally protect
the physician from liability for limited disclosure, while
the mandatory reporting statutes impose penalties for fail-
ure to report.
1. Permissive Reporting: Response to Approved
Immunization Surveys
Any person, hospital, nursing, or rest home, sani-
torium, medical society, or other organization may res-
Memorandum
-6-
February 25, 1975
pond to requests for information relating to the treat-
ment of any person. 9
There are two limitations. First, the inquiry must
have been made by the State Department of Health, medi-
cal organization, hospital, or hospital committee.
Second, the purpose of the inquiry must be to gain in-
formation, either to study ways to reduce morbidity or
mortality, or to identify persons who may be in need
of immunization.
No liability of any kind or character can be im-
posed on the source of the information because the soli-
citing organization has published its findings in sum-
mary form.
10
Certain duties of non-disclosure are placed on the
gathering person or group.
Only summaries of the data may be used for general
publication. Unless the survey was conducted by the
State Board of Health for the purpose of identifying
persons in need of immunization, the identities of the
patients must be kept confidential. In addition, all
information furnished pursuant to the Act is declared
privileged. 11
The statute also protects the physician from li-
ability when he furnishes information to hospital, medi-
Memorandum
-7-
February 25, 1975
cal organization, or extended care facility committees,
either under state or federal law or under such organi-
zations' by-laws and rules, as long as the information
concerns a person he has treated or who is confined
in the particular facility.
Finally, immunization data forwarded to the State
Department of Health or to a study conducted under the
auspices of the State Department of Health may not be
used as evidence in any suit against the physician in-
volving an injury related to an individual's immuniza-
13
tion.
2. Mandatory Reporting: About the Newly Born
The attending physician is required to complete
and file a birth certificate within five days after
14
birth.
For still births, the person in charge of interment
or removal of the body is responsible for obtaining and
filing the certificate. 15 The physician is required to
certify the necessary death information and to state
whether or not a blood test for syphilis was made dur-
ing pregnancy. 16
Failure to perform the duties required by the Act
may result in a $5.00 to $50.00 fine for the first of-
fense, and a $10.00 to $100.00 fine and imprisonment
Memorandum
- -8-
February 25, 1975
in county jail for sixty days for each subsequent of-
17
fense.
Nurses also have a duty to report any eye inflam-
mation or redness of the eyelids they notice in a new-
born under their care. Reports must be made to local
health authorities, or if unavailable, to any reputable
physician, within twelve hours.
18
3. Mandatory Reporting: About Child Abuse
The Texas Family Code imposes a positive duty on
any person who suspects child abuse or neglect to re-
19
port.
Such reports may be non-accusatory, reflect-
ing the reporter's belief that a child has been or will
be abused or neglected. Reports may be made to the
county welfare unit, the agency responsible for juven-
iles, or to local or state law enforcement officials.
20
The law further provides oral reports shall be made
immediately upon discovery, and shall be followed by
a written report within five days. Anonymous reports,
while not encouraged, will be accepted. 21
As long as the person making such reports is not
motivated by bad faith or malice, the reporter is im-
mune from liability that might otherwise be incurred,
whether civil or criminal, and such immunity extends
to participation in any judicial proceeding resulting
Memorandum
-9-
February 25, 1975
from the report. 22
After the report has been received, the appropriate
county agency will conduct a full investigation and, if neces-
sary, will petition the courts to have the child removed from
his environment to a place of safety.
It should be emphasized that the policy of the chap-
ter is to obtain information about abused or neglected children
whose emotional health and welfare are in danger, so that appro-
priate steps may be taken to protect them. If you suspect child
abuse, you should report it.
4. Mandatory Reporting: About Disease
A. In General
If a physician suspects or knows that a patient
has any contagious disease, he is required to report
it in writing or by acknowledged telephone conversa-
tion to local health authorities. 23 If the disease
is of a pestilential nature, he must notify the Presi-
dent of the State Board of Health by phone or tele-
graph at state expense, and report any death immedi-
ately after it occurs. 24 For the purposes of the sec-
tion, contagious diseases include Asiatic cholera, bu-
bonic plague, typhus fever, yellow fever, leprosy,
smallpox, scarlet fever (scarlatina), diptheria (mem-
branous croup), epidemic cerebro-spinal meningitis,
Memorandum
-10-
February 25, 1975
denguetyphoid fever, epidemic dysentary, trachoma,
and anthrax.
25
Special provisions are made for certain disease,
such as venereal disease and tuberculosis.
B. Venereal Disease
Anyone who diagnoses a case of venereal disease
is required to report it immediately to the local health
officials. Such reports must include the name, address,
age, sex, race, and occupation of the diseased person.
26
Further, every physician or other person who examines
or treats a person with venereal disease has an affir-
mative duty to instruct such person in measures for
preventing the spread of the disease and of the neces-
sity of continuing treatment until cured.
27
If
the
physician suspects the person is not following his in-
structions, he has the affirmative duty to notify local
health officials.
28
The information so provided is in-
accessible to the public. 29 Willful violation of the
law results in forfeiture of the physician's license
and a $5.00-$50.00 fine.
30
Laboratories are required to report positive re-
sults to the Communicable Disease Services Station,
Texas State Department of Health, through the local
health officials.
31
Reports may be made on a weekly
Memorandum
-11-
February 25, 1975
basis, except for syphilis, which by law must be re-
32
ported within twenty-four hours.
In fact, the labora-
tory must report monthly before the fifth usual work-
ing day of the following month, even if there is noth-
ing to report. 33 Laboratory notifications are confi-
34
dential,
and no contact can be made with the patient
or potential contacts until the diagnosis has been re-
ported to the state by the physician.
35
C. Tuberculosis
There is also imposed upon the physician a duty to
report cases of tuberculosis to local health officials.
36
Such reports may be made in writing or by acknowledged
telephone communication, and should include age, sex,
race, occupation, date of onset of the disease, and
probable source of infection.
37
The physician also
has the positive duty to instruct the person of methods
to prevent the spread of the disease and of the neces-
sity of treatment until cured. 38 He also has the duty
to notify local health officials if he suspects the
patient is disobeying his instructions.
39
The reports of disease must be accompanied by a
copy of results of all pathological findings pertinent
to the disease.
40
Violation of the Tuberculosis Code can result in
Memorandum
-12-
February 25, 1975
a $50.00-$500.00 fine and/or thirty days imprison-
ment in the county jail.
5. Mandatory Reporting: About Gunshot Wounds
Here the law is very simple. If you treat a gunshot wound,
you have to report it to the local police authorities.
42
The
statute places the same duty on administrators or superinten-
dents of hospitals, sanitariums, or other institutions.
43
Willful failure to report bullet and gunshot wounds can result
in a misdemeanor conviction carrying a punishment of imprisonment
44
up to six months and a fine not to exceed $100.00.
6. Mandatory Reporting: About Death
The physician is not responsible for obtaining and filing the
death certificate. This duty falls upon the person in charge of
interment or of removal of the body from the district for dis-
position.
45
Such person is charged with obtaining the medical
certification from the attending physician at death.
46
However, if the attending physician is unable to certify the
cause of death with certainty, he has a duty to report that fact
to the Medical Examiner (in counties of over 500,000 persons
where established by commissioner's court) 47 to the
or local
justice of the peace.
48
Superintendents of institutions have a
similar duty, which may be fulfilled by reporting the death to
the medical examiner or the city or county police departments.
49
The medical examiner or justice of the peace is required to hold
Memorandum
-13-
February 25, 1975
an inquest.
50
Falsification of death information may result in a $5.00-
$50.00 fine and up to sixty days in the county jail.
51
Failure
to supply information, or provision of willfully false or fraudu-
lent information, can result in a one to two year trip to Hunts-
ville. 52
If an autopsy is required, consent must be obtained from a
person having chrge of the body of the deceased (See Part II,
infra) If the deceased is also a potential transplant donor,
a short-cut procedure may be utilized. Upon notification by the
administrator of the transplant facility, the medical examiner
or his deputy is required to hold an immediate inquest. 53 If
an
autopsy is necessary, the medical examiner or his deputy is au-
thorized to examine the organ to be transplanted. After exam-
ination, the organ may be immediately released to the transplant
54
team.
Finally, if the physician is directed to perform an autopsy,
reports must be filed with the office designated in the autopsy
55
order within thirty days.
If tests require more than thirty
days, the time period may be waived if the physician so certi-
56
fies when the report is filed.
Memorandum
-14-
February 25, 1975
II. Liability and Avoidance of Liability
Some Texas statutes specifically relieve the physician of
liability for his acts. Others impose civil and/or criminal
liability. Finally, others will condition avoidance of liabil-
ity on the performance of other acts, eg. obtaining a valid con-
sent.
The purpose of this section is not to set forth the de-
velopment of malpractice law as it has evolved in the courts.
Rather, its purpose is threefold: (1) to inform you of when you
may take action without fear of liability; (2) to inform you of
who may give consent in certain areas and what nature of con-
sent is required by statute before action may be taken; and (3)
to inform you of what you may not do.
A. The Good Samaritan
"Is there a doctor in the house?" In many an old mov-
ie, the familiar cry goes up when the hero has been shot
or the heroine has fainted. Nowadays, with the threat of
lawsuit always present, the noble practitioner might just
as well hide his caduceus and silently slip away--except
Texas law exempts him from liability in rendering emergen-
cy care in certain cases.
The law provides that no person shall be liable in civ-
il damages for administering emergency care in good faith
57
at the scene of the emergency.
The immunity is not com-
Memorandum
-15-
February 25, 1975
plete, however. The statute will not protect you if:
(1) your actions are willfully or wantonly negligent, or
(2) you perform such acts for renumeration or with the
58
expectation of renumeration.
Thus, as long as you are acting in good faith, and
realize you do so without hope of being paid, you should
be protected.
B. Consent
1. By Minors
The Texas Family Code in Chapter 34 attempts three
goals. First, it tells which persons may consent to
treatment of a minor. Second, it regulates the con-
sent form itself. Third, it provides for certain cir-
cumstances where the consent by the minor is sufficient.
a. When the Parents Cannot be Found
When the minor is accompanied by a parent or
guardian, the problem of consent to treatment is
not present. But when such persons are not with
the child, there is a danger that the adult who
accompanies the minor has no authority to autho-
rize medical treatment. The Code seeks to mini-
mize the problem. When the persons having the po-
wer to consent by law cannot be contacted, and such
persons have not given actual notice to the con-
Memorandum
-16-
February 25, 1975
trary, consent may be given by any one of the
following: (1) a grandparent; (2) an adult bro-
ther or sister; (3) an adult aunt or uncle; (4)
an educational institution in which the minor is
enrolled that has received a written power of
consent from the parent or guardian; (5) any adult
having care and control of the minor who has a
written power of consent from the parent or guard-
ian; and (6) any court having jurisdiction of the
59
child.
You must attempt contact with the parents or
guardian before consent may be obtained from one
of the persons listed above. And, if you have
actual knowledge that the parents or guardian
have completely reserved to themselves the right
to consent to treatment of the child, you may not
obtain consent from such other persons, even if
the parents cannot be contacted.
b. The Form and Content of the Consent
The Code also regulates the form and content
of the consent in such cases. The consent form
must contain the name of the minor, the name of
the parents or guardian, the name of the person
giving consent and his or her relation to the child,
Memorandum
-17-
February 25, 1975
the nature of the treatment to be given, and the
60
date treatment is to begin.
Consent by persons
other than the parents or guardians, as provided
in Tex. Fam. Code $35.01 (1975), must be in writ-
ing, signed by the person giving consent, and re-
turned to the doctor, hospital, or other medical
facility that administers the treatment.
61
C. When the Minor's Consent is Sufficient
There are certain instances where the minor
may consent to treatment. He or she may consent
to the furnishing of care by a hospital or of
medical, surgical, or dental care by a physician
if he or she is: (1) on active duty with the
armed services, or (2) living apart from his par-
ents, is over sixteen, and is managing his own
financial affairs.
62
He or she may also consent
to specific types of treatment. He or she may
consent to treatment of contagious or communicable
diseases which are of a type required to be re-
63
ported.
An unwed mother may consent to treat-
ment related to her pregnancy, but she may not
consent to abortion. 64 A minor may consent to
treatment for drug addiction, drug dependency, or
any other condition directly related to drug use,
65
Memorandum
-18-
February 25, 1975
if he is at least thirteen years of age or old-
66
er.
In addition, the statutes provide that a minor
eighteen years of age or older may consent to do-
nation of blood and the penetration of tissue
necessary to accomplish the donation, 67 provided
the blood bank operates under the supervision of a
licensed physician or a hospital licensed under the
Texas Hospital Licensing Law, if he receives no
renumeration or compensation for his donation. 68
However, the effect of the lowering of the age of
majority to age eighteen makes these provisions un-
clear in effect. If the person is eighteen or ol-
der, he would not now be a minor, and would seem to
be free of these requirements.
If the minor gives his consent under one of the
above noted statutes, such consent is not subject to
doctor's disaffirmance because of minority, 69 nor
is consent of the parents additionally required. 70
For added protection, the physician, dentist, hos-
pital, or medical facility may rely on a written
statement of the minor containing the grounds on
which the minor has the capacity to consent. 71
A
Texas licensed physician or dentist, or a hospital
Memorandum
-19-
February 25, 1975
or medical facility is liable only for his or its
own acts of negligence in treating minors under
situations where the minor gives his consent.
72
Should you discuss the minor's treatment with
his parents or guardian? The statute leaves it
up to you. You may advise them of the treatment
given or needed by the minor with or without his
consent to discuss it with them.
73
d. Protecting the Child in an Emergency
Special problems may be presented where a child
is in immediate danger of physical or emotional in-
jury, and no person can be found who may give con-
sent, or when such persons refuse to consent to
needed treatment. In such cases, a welfare depart-
ment official, law enforcement officer, or juvenile
probation officer may take possession of the child
and deliver him to the juvenile court.
74
From this
point on, the physician is involved only to the ex-
tent necessary to show the child is in danger.
You should simply be aware that a procedure is
available to obtain the necessary consent to treat
the child, and of who you need to contact.
The reader should also recall that a court hav-
ing jurisdiction over the child is authorized to
Memorandum
-20-
February 25, 1975
give consent or to authorize a temporary conser-
vator to give consent to treatment.
75
2. Transplant Donors: The Texas Anatomical Gift Act
76
a. Who May Consent
Any person possessing testmentary capacity may
make a gift of all or any part of his body. 77
If
a person dies without expressing consent to make
such a gift, others may in limited circumstances
make a gift of all or any part of the deceased's
body if the deceased has not expressed intentions
to the contrary. 78 In order, they are: (1) a spouse;
(2) an adult son or daughter; (3) either parent; (4)
an adult brother or sister; (5) a guardian; or (6)
any other person authorized or under an obligation
to dispose of the body. The order is precise. You
must ask the spouse first. If there is no spouse,
you must ask an adult son or daughter, etc. In
addition, if persons within a class designated by
the order of persons authorized to consent are in
disagreement, no valid gift may be given.
For example, if the adult son says yes, but the
spouse says no, no valid gift may be made 79
Or,
if the spouse is dead, and an adult daughter says
yes, and an adult son says no, no valid gift results.
80
Memorandum
-21-
February 25, 1975
b. Who May Accept
Any hospital, medical school, surgeon, or phy-
sician may accept an anatomical gift for purposes
81
of education or research.
Tissue banks and
storage facilities may also accept for the same
82
purposes and also for transplantation.
If an
individual is specified by a licensed physician as
being in need of therapy or transplantation, such
83
individual may accept an anatomical gift.
C. How Consent May be Given
Persons desiring to make anatomical gifts may
do so in their wills. The gift becomes effective
immediately upon death, and there is no necessity
for probate. Even if the will is later held inva-
lid, any person who has acted in good faith reli-
ance upon the will need not fear liability, for
84
the law provides that the gift remains effective.
The gift may also be made in a separate docu-
ment. To be valid, the document must be executed
85
by the donor and witnessed by two credible persons.
The person making the gift has a right to spec-
ify the donee. If at the time of death, the donee
is not available and the donor has not expressed an
intent to the contrary, the attending physician may
Memorandum
-22-
February 25, 1975
accept the gift as donee. If the person does not
specify a donee, the attending physician may ac-
cept as donee.
In the latter two instances (where the attend-
ing physician accepts as donee), the attending phy-
sician may not participate in the procedures for
removing the part or for transplantation.
86
Where persons other than the donor are making
the gift, such consent may be given either in a
document or any other recorded message, including
recorded telephonic communication.
87
Of course, the donor has the right to revoke,
88
and the donee has the right to accept or to reject
89
the gift.
The document of the gift may be retained on a card
in the possession of the donor, or may be given to
the donee, or may be kept on file by a hospital or
storage facility. 90 Any interested person may re-
quest another who has possession of the document of
gift to produce it for examination upon or after the
death of the donor.
91
d. Avoidance of Liability
To avoid liability, the time of death must be de-
termined by a physician who is not participating in
Memorandum
-23-
February 25, 1975
removal of the part or in the transplantation pro-
cedure.
92
As mentioned earlier, even if the document of
gift is otherwise held invalid, persons acting in
good faith reliance are relieved of liability.
Finally, the act generally relieves any per-
son acting in good faith and in accordance with the
law from liability for civil damages or criminal
prosecution. 93
e. Anatomical Gifts and Required Autopsies
The act is expressly made subject to the laws
regulating autopsies.
94
Fortunately, a short-cut
autopsy procedure has been provided for potential
95
transplant donors.
This point has already been
discussed. (Part I, supra)
3. Artificial Insemination
There have been cases where semen donors have been
held to be the legitimate father of the child. Some
cases have even held that the wife has committed adul-
tery authorizing divorce. Since such holdings tend to
discourage semen donors, Texas had passed a law to avoid
such results.
By law, the child born to an articifically insem-
inated woman is not the child of the donor unless the
Memorandum
-24-
February 25, 1975
donor is also the husband.
96
The husband must consent to A.I.D. in writing and
such writing must be acknowledged to make the child
the legitimate child of both husband and wife.
97
Thus, the donor is always protected. To protect
yourself from a lawsuit based on negligence for failure
to secure the husband's consent, thereby making the
child illegitimate, you should secure the husband's
consent in writing and have it acknowledged by a no-
tary public.
4. Autopsies and Dissection
a. Autopsies
A physician may obtain consent to an autopsy
sufficient to avoid liability. If the person is
married, consent must be given by a spouse. If the
spouse is not living, an adult child may consent.
If the child is underage, the child's guardian, or
if there is no guardian, the court having juris-
diction of the child may consent.
98
If the deceased is unmarried, or is married but
dies leaving no spouse or child, the person who
may consent, in order, are: (1) father; (2) mother;
(3) guardian; (4) next of kin; (5) any other per-
son assuming responsibility of the body.
99
Memorandum
-25-
February 25, 1975
The statute anticipates conflict. It pro-
vides that should two or more of the above listed
persons take possession of the body, consent of
one is sufficient. 100 For example, if the de-
ceased's parents take responsibility for burial,
and father says yes but mother says no, consent
is sufficient to perform the autopsy.
In the event you are ever placed in a position
where you are ordered by a justice of the peace to
perform an autopsy, as long as you act in good
faith, believing the order to be valid, you are
not liable in damages if it is later determined that
the order was invalid. 101
b. Dissection
For schools, colleges, and the like to dissect
bodies, they must obtain the consent of the Ana-
tomical Board. 102 If consent is validly obtained,
no criminal liability may be imposed for abuse of
103
corpse. (This Part, infra)
Records sufficient
to identify each body received must be maintained
and are subject to inspection.
C.
Commitment of the Mentally Ill
Should you certify a person as mentally ill or testify
at a commitment hearing to that effect, and you are wrong,
Memorandum
-26-
February 25, 1975
there is always the possiblity that the patient will at-
tempt to sue. As long as any person acts in good faith
and without negligence in the examination, certification,
apprehension, custody, transportation, detention, treatment,
or discharge of a patient, such person is released from
civil and criminal liability in performance of any act
104
authorized or required by the Mental Health Code.
D. Liability for Transplants and Transfusions
105
The statute
covering transplants and transfusions
is written in the broadest of language. Its purpose is to
limit legal liability arising from such procedures only to
106
instances of negligence.
Physicians, surgeons, hospitals, blood or tissue banks,
and donors are protected. The statute covers donations,
preparation, transplantations, and the like from one human
to another.
107
It also covers persons assisting or par-
108
ticipating.
One exception is carved out. If a blood bank purchases
blood with cash, and the blood contains harmful substances,
109
the immunity provided by the section is denied.
The
burden of proving the blood was not purchased is on the
110
bank.
However, blood banks may pay sellers of blood by check
if the check is sent or delivered within fifteen days after
Memorandum
-27-
February 25, 1975
the donation.
111
Thus, should the blood bank be sued, it will be re-
quired to prove that it did not pay cash for blood. Proof
of a cancelled check should be sufficient, but it is ad-
vised records reflecting the blood donor, method of pay-
ment, and date of payment be maintained.
E. Prohibited Practices
1. Abortion
Even after the Supreme Court's decision in Roe V.
112
Wade,
holding the Texas abortion statutes unconsti-
tutional, the State of Texas has maintained the statutes
on the books.
However, in light of the recent Edelin conviction
in Boston, it is fairly certain that the Supreme Court
once again will be faced with the abortion question.
Dr. Edelin performed an abortion on a female during the
latter part of the second trimester as authorized by
Roe. He was convicted of murder, even though legally
no person existed unless and until the fetus, once re-
moved from the womb, would be able to sustain life sep-
arate from the mother.
118
The Texas statutes
prohibit performing or fur-
nishing the means for performing an abortion, and also
114
prohibit any attempt to perform an abortion.
Pen-
Memorandum
-28-
February 25, 1975
alty is set at two to five years in the penitentiary.
Abortion is defined as destroying the life of the
fetus or embryo either in the womb or by premature
115
birth.
Thus, the Edelin case would fall squarely
under the Texas statute, had it not been struck down
by the Supreme Court.
If death of the mother results from the abortion,
it is murder.
116
If a child in the state of being
born which could have been born alive is destroyed
prior to actual birth, the punishment is set at five
years to life imprisonement
117
The only exception in the statutory scheme is to
save the life of the mother. 118
The Roe case struck down these statutes. But in
Boston, Dr. Edelin was convicted of murder, not for
performing an illegal abortion. Should his conviction
be upheld on appeal, it is fairly likely that the de-
cision will be used to establish a new class of murder.
It is advised utmost caution be exercised in the
performance of latter stage second trimester abortions.
2. Placement of Children
Texas law defines child placing activity as an ar-
arangement for placement of a child with a third party
not related to the child, or activity that aids or abets
Memorandum
-29-
February 25, 1975
119
such placement.
Child placing agency is defined
as any person, public or private association, or cor-
poration which assumes custody of a child under six-
120
teen with plans for the placement of the child.
When treating an unwed mother, it is possible you
might be asked to help her find a suitable home for
the expected child. You should realize thay if your
actions fall under either one of the above definitions,
you will be deemed to be conducting a child placement
agency, The penalty for doing so without a license
is a fine not to exceed $1,000.00 and/or imprisonment
in the county jail for up to one year. Each day of
121
violation is considered to be a separate offense.
3. Abuse of Corpse
As set forth above, permission must be obtained to
perform dissections. Otherwise a person commits a
Class A misdemeanor if he performs any of the follow-
ing acts without legal authorization: dissection; dis-
interment; removal; concealment; purchase; sale; or of-
122
fensive treatment.
Admittedly, the normal practitioner will probably
never face this problem.
Memorandum
-30-
February 25, 1975
III. Regulation of the Practice of Medicine
In addition to the various statutes controlling the way in
which you treat certain diseases, the State of Texas has felt it
necessary to regulate the practice of medicine itself. The fol-
lowing is a brief synopsis of the pertinent statutes,
A. Unlawful Practice
Perhaps the threshold question involved in most unlaw-
ful practice cases is whether or not a person is actually
"practicing medicine. " Texas defines practicing medicine
as professing publicly to be a physician or surgeon and
offering to treat or to actually be treating any disease,
disorder, deformity, injury, etc., by any system or method,
or to effect cures thereof, or to do such and charge for
123
services.
To practice medicine, you must have a valid certifi-
cate. Practicing medicine without one may result in a
$50.00-$500.00 fine and a visit of up to thirty days at the
124
county P-Farm.
In a way, the rather broad definition
of practicing medicine is good because it allows the State
125
to stop a lot of quackery.
But, also it may be overbroad.
A recent Attorney General's opinion 126 implies E.M.T.'s
might be practicing medicine if they provide care beyond the
normal scope of nursing even if they are directed by a phy-
sician by telephone or radio.
Memorandum
-31-
February 25, 1975
There are exceptions to the licensing requirement,
127
faith healers being the most notable.
Not even the
Texas Legislature has the audacity to try to license God
(not yet, at least).
B. Identification of Systems of Healing
The Texas regulating scheme has separate chapters for
the different forms of practicing medicine. Basically
each form has it own licensing board and statutes regula-
128
ting practice.
Each branch of medicine has its own de-
signation. You are required by law to use the abbreviation
for your particular branch of medicine in your professional
129
correspondence.
The appropriate designations are set
130
forth in the footnote.
C. Registration
The law also requires you to register with the District
Clerk's office in each county where you live or maintain an
131
office before you can practice.
Failure to register
consitutes prima facie evidence that you do not possess a
132
certificate to practice.
Practitioners and interns are also required to register
annually with the Texas State Board of Medical Examiners.
Physicians register when they are licensed to practice. In-
terns and residents are required to register as such within
thirty days after beginning service and to notify the Board
Memorandum
-32-
February 25, 1975
within thirty days after termination.
133
Failure to register and to pay the annual fee may re-
sult in a misdemeaner conviction carrying a $50.00-$500.00
fine and up to thirty days in county jail. Each day of
violation is a separate offense.
134
D. The Form of Practice
Medicine may well indeed be a noble profession, but
doctors, like everyone else, have to eat. Medicine is in
a sense, a business. The methods of practice that can be
used are like any other business, with one major exception.
Doctors may not use the corporate form to practice. The
law prohibits incorporation by those who engage in an ac-
tivity that requires a license to practice where such li-
cense cannot be issued to the corporation itself.
135
There is a device known as the professional corporation
that will allow persons to incorporate.
136
But while arch-
itects, lawyers, C.P.A.s, dentists, and veterinarians may
take advantage of the act, physicians and surgeons are ex-
pressly excluded from the use of the professional corpora-
tion.
137
You are allowed to use the professional association.
138
That act does not offer the advantages of insulation from
liability offered by the corporate form. The act express-
ly states that the association is jointly liable with the
Memorandum
-33-
February 25, 1975
negligent member.
139
However, it also excludes from lia-
bility the individual members, 140 and in this manner may
be more advantageous than the partnership.
E. Attracting Patients
You may not use any person, firm, association, partner-
ship, or corporation for securing or soliciting patients if
you do so by promising to employ, pay, or reward them for
that purpose. Neither may any person accept payment, fee,
reward, or anything of value for securing, soliciting, or
drumming up patients for you.
141
If you want patients, you
have to find them yourself. You cannot use others to find
them for you.
You may, however, insert advertisements in newspapers,
or use handbills and employ persons to distribute the hand-
bills.
142
The advertisement may contain statements about
your business and profession, and place of business. 143
This should not be construed as a comment on the ethics
of advertising by newspapers or handbills, but legally it
can be done.
F. Collecting Fees
No, this section is not going to arm you with the legal
ammunition to collect fees from recalcitrant patients. There
are two circumstances where you are entitled to fees for per-
forming services.
Memorandum
-34-
February 25, 1975
1. Examination of Rape Victims
If a law enforcement agency requests you to exa-
mine a victim of rape in order that it might use the
results in its investigation or prosecution, the agen-
cy, and not the victim, is responsible for paying
144
your fee.
The agency is not required to pay costs
145
of treatment for injuries.
2. Providing Necessary Medicial Treatment
The Texas Family Code imposes a duty to support the
minor children on both spouses. A husband has the duty
to support his wife, and the wife has a duty to support
her husband if he is unable to support himself.
146
Medical attention is considered a necessity.
147
Should you provide medical attention to one of those
persons to whom support is owed, you may look to the
person who owes the duty of support for payment.
148
3. Fraudulent Conduct
If you make untrue statements or representations
to procure and to withhold money or anything of value
from a patient, you may be suspended and have your li-
149
cense revoked.
For example, you may not demand your patient pay
you for the services of another physician when in fact
no other physician is used, and then refuse to return
Memorandum
-35-
February 25, 1975
his money on demand.
G. Malpractice
Okay. Not everybody's perfect. So you've screwed up
and are accused of malpractice. In such cases, the dis-
trict court is authorized to hear a petition seeking your
suspension or revocation of your license.
150
The statute is written broadly enough to cover fraudu-
lent or dishonorable conduct.
151
The statute is not mandatory, but the procedure is
available to remove those doctors who are not fit to prac-
tice from the profession.
Memorandum
-36-
February 25, 1975
IV. The Special Problem of Drugs and COntrolled Substances
This area has been isolated because it is the one area most
subject to legislative enactment. It is impossible to go into
great detail because of the number and complexity of the govern-
ing statutes.
Hopefully, three ojectives will be achieved. First, the
regulatory scheme will be examined in an effort to familiarize
the reader with the basics. Second, the problem of drug dis-
tribution will be discussed. Third, the impact of the statutes
on drug treatment programs will be noted.
A. The Regulatory Scheme
Three Acts form the basic framework for drug regulation
152
in Texas: The Texas Food, Drug, and Cosmetic Act,
The
Dangerous Drug Act, 153 and the Controlled Substances Act.
154
1. The Texas Food, Drug, and Cosmetic Act
The major portions of the Act are directed toward
the manufacture and sale of food, drugs, and cosmetics.
The portions directed at distribution affect pharma-
cists more than physicians.
Section 14 defines adulterated drugs, Section 15
defines misbranded drugs, and Section 16 deals with new
drugs.
Section 14 of the Act attempts to unsure that a
drug will be properly labelled--that the drug is what
Memorandum
-37-
February 25, 1975
it purports to be. The drug must be pure. It may
not consist of decomposed or defective materials, or
produced under conditions that might lead to contam-
155
ination.
Neither may it be placed in a container
which might make the contents injurious to health or
156
use a coloring not certified under the Federal Act.
The drug must also measure up in terms of quality as
listed in official compendiums, 157 or if not listed,
158
it must match its label.
Mixing and packing to re-
duce strength are similarly forbidden, except when
done by pharmacists compounding and dispensing phy-
159
sician's prescriptions.
Section 15 is directed at labeling by defining
misbranded drugs. A drug is misbranded if the label-
160
ing is false or misleading.
Packaged drugs must
have the name and place of business of the manufac-
161
turer, an accurate count or other measure of quantity.
If the Act requires statements, such as "Habit Forming,' "
162
the words must be prominently displayed.
As far as
the physician is concerned, drugs sold at retail only
under a doctor's prescription must be labeled with the
name and place of business of the seller, serial num-
ber and date of prescription, and the physician's
163
name.
Memorandum
-38-
February 25, 1975
Section 16 regulates new drugs. The thrust is
to prevent distribution of new drugs until they have
been adequately tested and approved. The section ex-
empts drugs intended solely for investigational use
by experts for the purpose of determining safety and
164
effectiveness of the drug.
(Otherwise, a physician
could be prosecuted for testing a drug for approval.)
2. The Dangerous Drug Act
The Dangerous Drug Act 165 is designed to regulate
the use of dangerous drugs as closely as possible with-
out impairing the therapeutic benefit to the public.
Drugs covered by the Act are set forth in the Appendix.
As with the Food, Drug, and Cosmetic Act, the em-
phasis is on controlling the points of distribution.
Practitioners, researchers, hospitals, and their
agents or employees are not covered by the section which
sets forth unlawful acts.
166
However, such persons
must make complete records of all tranquilizers, Phen-
dimetrazine and its salts, derivatives, or compounds,
and pentazocine, its salts, derivatives, and compounds.
167
The records must be maintained for two years and are
168
subject to inspection.
Violation of the Act's pro-
visions can result in a $1,000.00 fine and up to six
months in jail. Subsequent violations double both--a
Memorandum
-39-
February 25, 1975
$2,000.00 fine and up to a year in jail.
169
3. The Controlled Substances Act
The Controlled Substances Act
170
is the counter-
part to the Dangerous Drug Act. Its primary thrust is
toward drug abuse. Every person who manufactures, dis-
tributes, analyzes, or dispenses controlled substances
must possess a valid registration.
171
Controlled sub-
stances are classified according to the drug schedule
(See Appendix).
Practitioners may be licensed to dispense controlled
substances in Schedules II through V upon proper appli-
cation and payment of the fee.
172
Schedule II substances may not be dispensed with-
out a written prescription unless they are dispensed di-
rectly to the ultimate user by the physician.
173
Sche-
dule III and IV prescription drugs also require a writ-
ten prescription unless directly dispensed to the ulti-
mate user, and may not be refilled more than six months
after the date of the prescription nor may the prescrip-
tion be refilled more than five times.
174
In emergency situations, Schedule II drugs may be
dispensed on oral prescription.
175
Schedule II pre-
scriptions may not be refilled, nor may the original
prescription be filled two days after issuance.
176
Memorandum
-40-
February 25, 1975
B. The Distribution of Drugs
Many restrictions on distribution have already been
discussed in analyzing the regulatory scheme.
The main problem presented is that the physician, in
preparing and administering drugs to patients, crosses the
professional boundary between physicians and pharmacists.
The doctor would thus be practicing pharmacy without a li-
cense. To avoid this result, the Legislature expressly ex-
empts licensed practitioners from the provisions of the
pharmacist licensing laws.
177
To be exempt, the physician must supply the drugs to
the patient directly for treatment, He may not own a pharma-
cy or drug store that sells medicines.
C. Drug Treatment Programs
1. Regulation of Drug Maintenance Programs
It is unlawful to prescribe or administer synthetic
narcotic drugs for the purpose of treating drug depen-
dency without a permit issued by the State Department of
178
Health.
Physicians and institutions operating under the laws
of the state for the purpose of providing health ser-
vices may apply for a permit authorizing the prescrip-
tion and administration of synthetic drugs.
179
The Texas Department of Mental Health and Mental
Memorandum
-41-
February 25, 1975
Retardation has the responsibility to develop pro-
grams of drug treatment and maintenance through the
180
use of synthetic narcotics.
Failure to obtain a permit for such programs can
result in a misdemeanor conviction carrying a $3,000.00
181
fine and up to six months in county jail.
The State
Department of Health has the right to require reports
if it wishes, 182 and may make such investigations as
183
it deems necessary to insure compliance.
A House concurrent resolution 184 expresses the
Legislature's intent that the issuance of permits be
regulated by the State Department of Health in such a
way as to avoid "unnecessary concentration of permit
holders in any neighborhood or area, as well as to pre-
vent any unnecessary congregation of addicts, so that
the program does not result in any significant influx
of addicts to any residential neighborhood or area. "
What this means to the development of maintenance pro-
grams in the Medical Center area is left up to the
reader's own imagination.
2. Minor's Consent to Treatment
It has already been noted that minors thirteen years
old or older may consent to treatment for drug depen-
dency, addiction, or any other condition related to drug
Memorandum
-42-
February 25, 1975
use (Part II, supra) .
185
Parental permission is not
required. A legally qualified physician is express-
ly released from liability in examination and treat-
ment of the minor except for acts of negligence.
186
The reader is asked to refer to the section on
minor's consent for a more extensive examination of
the applicable law.
3. The Limited Physician--Patient Privilege
In order to facilitate participation in drug abuse
programs, in 1971 the Legislature granted a limited
physician--patient privilege in the treatment of drug
abuse. At common law, the physician--patient privilege
does not exist. Thus, it must be created by statute,
as has been done in this particular area. Communica-
tions to persons involved in the treatment or examina-
tion of drug abusers by a person who has voluntarily
submitted to treatment or examination is not admis-
187
sable.
Information obtained may be used for statistical
or research purposes if the patients' names are not
188
revealed.
Art. 4476-15
HEALTH-PUBLIC
Title 71
Nomenclature
Sec. 2.02. The controlled substances listed or to be listed in the
schedules in Schedules I, II, III, IV, and V and Penalty Groups 1, 2, 3,
and 4 are included by whatever official, common, usual, chemical, or
trade name they may be designated.
Schedule I
Sec. 2.03. (a) Schedule I shall initially consist of the controlled sub-
stances listed in this section.
(b) Any of the following opiates, including their isomers, esters,
ethers, salts, and salts of isomers, esters, and ethers, unless specifically
excepted, whenever the existence of these isomers, esters, ethers and salts
is possible within the specific chemical designation:
(1) Allylprodine;
(2) Benzethidine;
(3) Betaprodine;
(4) Clonitazene;
(5) Dextrorphan;
(6) Diampromide;
(7) Diethylthiambutene;
(8) Dimenoxadol;
(9) Dimethylthiambutene;
(10) Dioxaphetyl butyrate;
(11) Dipipanone;
(12) Ethylmethylthiambutene
(13) Etonitazene;
(14) Etoxeridine;
(15) Furethidine;
(16) Hydroxypethidine;
(17) Ketobemidone;
(18) Levophenacylmorphan;
(19) Meprodine;
(20) Methadol;
(21) Moramide;
(22) Morpheridine;
(23) Noracymethadol;
(24) Norlevorphanol;
(25) Normethadone;
(26) Norpipanone;
(27) Phenadoxone;
(28) Phenampromide;
(29) Phenomorphan;
(30) Phenoperidine;
(31) Piritramide;
(32) Proheptazine;
(33) Properidine;
(34) Propiram;
(35) Trimeperidine.
(c) Any of the following opium derivatives, their salts, isomers, and
salts of isomers, unless specifically excepted, whenever the existence of
these salts, isomers, and salts of isomers is possible within the specific
chemical designation:
(1) Acetorphine;
(2) Acetyldihydrocodeine;
(3) Benzylmorphine;
(4) Codeine methylbromide;
(5) Codeine-N-Oxide;
216
Title 71
HEALTH-PUBLIC
Art. 4476-15
(6) Cyprenorphine;
(7) Desomorphine;
(8) Dihydromorphine;
(9) Etorphine;
(10) Heroin;
(11) Hydromorphinol;
(12) Methyldesorphine;
(13) Methyldihydromorphine;
(14) Morphine methylbromide;
(15) Morphine methylsulfonate;
(16) Morphine-N-Oxide;
(17) Myrophine;
(18) Nicocodeine;
(19) Nicomorphine;
(20) Normorphine;
(21) Pholcodine;
(22) Thebacon.
(d) Any material, compound, mixture, or preparation which contains
any quantity of the following hallucinogenic substances, their salts,
isomers, and salts of isomers, unless specifically excepted, whenever the
existence of these salts, isomers, and salts of isomers is possible within
the specific chemical designation:
(1) 3,4-methylenedioxy amphetamine;
(2) 5-methoxy-3, 4-methylenedioxy amphetamine;
(3) 3,4,5-trimethoxy amphetamine;
(4) Bufotenine;
(5) Diethyltryptamine;
(6) Dimethyltryptamine;
(7) 4-methyl-2, 5-dimethoxyamphetamine;
(8) Ibogaine;
(9) Lysergic acid diethylamide;
(10) Marihuana;
(11) Mescaline;
(12) Peyote;
(13) N-ethyl-3-piperidyl benzilate;
(14) N-methyl-3-piperidy] benzilate;
(15) Psilocybin;
(16) Psilocyn;
(17) Tetrahydrocannabinols and synthetic equivalents of the sub-
stances contained in the plant, or in the resinous extractives
of cannabis, or synthetic substances, derivatives, and their
isomers with similar chemical structure and pharmacological
activity such as the following:
delta-1 cis or trans tetrahydrocannabinol, and their optical
isomers;
delta-6 cis or trans tetrahydrocannabinol, and their optical
isomers;
delta-3,4 cis or trans tetrahydrocannabinol, and its optical iso-
mers.
(Since nomenclature of these substances is not internationally standard-
ized, compounds of these structures, regardless of numerical designation
of atomic positions are covered.)
217
Art. 4476-15
HEALTH-PUBLIC
Title 71
Schedule II
Sec. 2.04. (a) Schedule II shall initially consist of the controlled sub-
stances listed in this section.
(b) Any of the following substances, except those narcotic drugs list-
ed in other schedules, however produced:
(1) Opium and opiate, and any salt, compound, derivative, or
preparation of opium or opiate, including the following:
(A) Raw opium;
(B) Opium extracts;
(C) Opium fluid extracts;
(D) Powdered opium;
(E) Granulated opium;
(F) Tincture of opium;
(G) Apomorphine;
(H) Codeine;
(I) Ethylmorphine;
(J) Hydrocodone;
(K) Hydromorphone;
(L) Metopon;
(M) Morphine;
(N) Oxycodone;
(0) Oxymorphone;
(P) Thebaine;
(2) Any salt, compound, isomer, derivative, or preparation there-
of which is chemically equivalent or identical with any of
the substances referred to in paragraph (1) of this subsec-
tion, but not including the isoquinoline alkaloids of opium;
(3) Opium poppy and poppy straw;
(4) Coca leaves and any salt, compound, derivative, or preparation
of coca leaves, and any salt, compound, derivative, or prepa-
ration thereof which is chemically equivalent or identical
with any of these substances, but not including decocainized
coca leaves or extractions which do not contain cocaine or
ecgonine.
(c) Any of the following opiates, including their isomers, esters,
ethers, salts, and salts of isomers, whenever the existence of these isomers,
esters, ethers, and salts is possible within the specific chemical designa-
tion:
(1) Alphaprodine;
(2) Anileridine;
(3) Bezitramide;
(4) Dihydrocodeine;
(5) Diphenoxylate;
(6) Fentanyl;
(7) Isomethadone;
(8) Levomethorphan;
(9) Levorphanol;
(10) Metazocine;
(11) Methadone;
(12) Methadone-Intermediate, 4-cyano-2-dimethylamino-4, 4-di-
phenyl butane;
(13) Moramide-Intermediate, 2-methyl-3-morpholino-1, 1-di-
phenyl-propane-carboxylic acid;
(14) Pethidine;
(15) Pethidine-Intermediate-A, 4-cyano-1-methyl-4-phenylpiperi-
dine;
(16) Pethidine-Intermediate-B, ethyl-4-phenylpiperidine-4-car-
boxylate;
218
Title 71
HEALTH-PUBLIC
Art. 4476-15
(17) Pethidine-Intermediate-C, 1-methyl-4-phenylpiperidine-4-
carboxylic acid;
(18) Phenazocine;
(19) Piminodine;
(20) Racemethorphan;
(21) Racemorphan.
(d) Unless listed in another schedule, any material, compound, mix-
ture, or preparation which contains any quantity of the following sub-
stances having a potential for abuse associated with a stimulant effect
on the central nervous system:
(1) amphetamine, its salts, optical isomers, and salts of its optical
isomers;
(2) methamphetamine, including its salts, isomers, and salts of
isomers;
(3) methylphenidate and its salts; and
(4) phenmetrazine and its salts.
(e). Methaqualone.
Schedule III
Sec. 2.05. (a) Schedule III shall initially consist of the controlled.
substances listed in this section.
(b) Unless listed in another schedule, any material, compound, mix-
ture, or preparation which contains any quantity of the following sub-
stances having a potential for abuse associated with a depressant effect
on the central nervous system:
(1) any substance which contains any quantity of a derivative of
barbituric acid, or any salt of a derivative of barbituric acid,
except those substances which are specifically listed in other
schedules;
(2) Chlorhexadol;
(3) Glutethimide;
(4) Lysergic acid;
(5) Lysergic acid amide;
(6) Methyprylon;
(7) Phencyclidine;
(8) Sulfondiethylmethane;
(9) Sulfonethylmethane;
(10) Sulfonmethane.
(c) Nalorphine.
(d) Any material, compound, mixture, or preparation containing limit-
ed quantities of any of the following narcotic drugs, or any salts thereof:
(1) not more than 1.8 grams of codeine, or any of its salts, per
100 milliliters or not more than 90 milligrams per dosage unit,
with an equal or greater quantity of an isoquinoline alkaloid
of opium;
(2) not more than 1.8 grams of codeine, or any of its salts, per
100 milliliters or not more than 90 milligrams per dosage unit,
with one or more active, nonnarcotic ingredients in recognized
therapeutic amounts;
(3) not more than 300 milligrams of dihydrocodeinone, or any of
its salts, per 100 milliliters or not more than 15 milligrams
per dosage unit, with a fourfold or greater quantity of an
isoquinoline alkaloid of opium;
(4) not more than 300 milligrams of dihydrocodeinone, or any of
its salts, per 100 milliliters or not more than 15 milligrams
per dosage unit, with one or more active, nonnarcotic ingre-
dients in recognized therapeutic amounts;
219
Art. 4476-15
HEALTH-PUBLIC
Title 71
(5) not more than 1.8 grams of dihydrocodeine, or any of its salts,
per 100 milliliters or not more than 90 milligrams per dosage
unit, with one or more active, nonnarcotic ingredients in
recognized therapeutic amounts;
(6) not more than 300 milligrams of ethylmorphine, or any of its
salts, per 100 milliliters or not more than 15 milligrams per
dosage unit, with one or more ingredients in recognized
therapeutic amounts;
(7) not more than 500 milligrams of opium per 100 milliliters or
per 100 grams, or not more than 25 milligrams per dosage
unit, with one or more active, nonnarcotic ingredients in
recognized therapeutic amounts;
(8) not more than 50 milligrams of morphine, or any of its salts,
per 100 milliliters or per 100 grams with one or more active,
nonnarcotic ingredients in recognized therapeutic amounts.
(e) Any compound, mixture, or preparation containing any stimulant
listed in Subsection (d) of Section 2.04 or depressant substance listed in
Subsection (b) of this section is excepted from the application of all or
any part of this Act if the compound, mixture, or preparation contains
one or more active medicinal ingredients not having a stimulant or de-
pressant effect on the central nervous system, and if the admixtures are
included therein in combinations, quantity, proportion, or concentration
that vitiate the potential for abuse of the substances which have a stimu-
lant or depressant effect on the central nervous system.
Schedule IV
Sec. 2.06. (a) Schedule IV shall initially consist of the controlled
substances listed in this section.
(b) Any material, compound, mixture, or preparation which contains
any quantity of the following substances having a potential for abuse
associated with a depressant effect on the central nervous system:
(1) Barbital;
(2) Chloral betaine;
(3) Chloral hydrate;
(4) Ethchlorvynol;
(5) Ethinamate;
(6) Methohexital;
(7) Meprobamate;
(8) Methylphenobarbital;
(9) Paraldehyde;
(10) Petrichloral;
(11) Phenobarbital.
(c) Any compound, mixture, or preparation containing any depressant
substance listed in Subsection (b) of this section is excepted from the
application of all or any part of this Act if the compound, mixture, or
preparation contains one or more active medicinal ingredients not having
a depressant effect on the central nervous system, and if the admixtures
are included therein in combinations, quantity, proportion, or concentra-
tion that vitiate the potential for abuse of the substances which have a
depressant effect on the central nervous system.
Schedule V
Sec. 2.07. (a) Schedule V shall initially consist of the controlled
substances listed in this section.
(b) Any compound, mixture, or preparation containing limited quan-
tities of any of the following narcotic drugs, which also contains one or
more nonnarcotic active medicinal ingredients in sufficient proportion to
220
Title 71
HEALTH-PUBLIC
Art. 4476-15
confer upon the compound, mixture, or preparation valuable medicinal
qualities other than those possessed by the narcotic drug alone:
(1) not more than 200 milligrams of codeine, or any of its salts,
per 100 milliliters or per 100 grams;
(2) not more than 100 milligrams of dihydrocodeine, or any of
its salts, per 100 milliliters or per 100 grams;
(3) not more than 100 milligrams of ethylmorphine, or any of its
salts, per 100 milliliters or per 100 grams;
(4) not more than 2.5 milligrams of diphenoxylate and not less
than 25 micrograms of atropine sulfate per dosage unit;
(5) not more than 15 milligrams of opium per 29.5729 milliliters
or per 28.35 grams.
Exclusion from Schedule
Sec. 2.08. A nonnarcotic substance is excluded from Schedules I
through V if the substance may lawfully be sold over the counter without
a prescription, under the Federal Food, Drug, and Cosmetic Act 1 and the
commissioner shall have no power to include a nonnarcotic substance in
Schedules I through V if the substance may lawfully be sold over-the-
counter without a prescription under the Federal Food, Drug, and Cosme-
tic Act.
1 21 U.S.C.A. I 301 et seq.
Authority to Control
Sec. 2.09. (a) The legislature, under the directions hereinafter ex-
pressed, delegates to the commissioner with approval of the State Board
of Health the power to add substances to, or delete or reschedule any
substance enumerated in, the schedules enumerated in Sections 2.03
through 2.07 of this Act. The commissioner may not add any substance
to the schedules if the substance has been deleted from the schedules by
the legislature, or sought to be added to the schedules by the legislature
but failed to pass when considered by a quorum of either house. The
commissioner shall have no authority to extend scheduling to distilled
spirits, wine, malt beverages, or tobacco.
(b) In making a determination regarding a substance, the commis-
sioner shall consider the following:
(1) the actual or relative potential for abuse;
(2) the scientific evidence of its pharmacological effect, if known ;
(3) the state of current scientific knowledge regarding the sub-
stance;
(4) the history and current pattern of abuse;
(5) the scope, duration, and significance of abuse;
(6) the risk to the public health;
(7) the potential of the substance to produce psychic or physio-
logical dependence liability; and
(8) whether the substance is an immediate precursor of a sub-
stance already controlled under this Act.
(c) After considering the factors enumerated in Subsection (b) of
this section, the commissioner shall make findings with respect thereto
and issue a rule controlling the substance if he finds the substance has a
potential for abuse.
(d) If the commissioner designates a substance as an immediate
precursor, substances which are precursors of the controlled precursor
shall not be subject to control solely because they are precursors of the
controlled precursor.
(e) If any substance is designated, rescheduled, or deleted as a con-
trolled substance under federal law and notice thereof is given to the
commissioner, the commissioner shall similarly control the substance
221
Art. 4476-15
HEALTH-PUBLIC
Title 71
under this Act after the expiration of 30 days from publication in the
Federal Register of a final order designating a substance as a controlled
substance or rescheduling or deleting a substance unless within that 30-
day period the commissioner objects to inclusion. In that case, the com-
missioner shall publish the reasons for objection and afford all interested
parties an opportunity to be heard. At the conclusion of the hearing,
the commissioner shall publish his decision, which shall be final unless
altered by statute. Upon publication of objection to inclusion, resched-
uling, or deleting, control as to that particular substance under this Act
is stayed until the commissioner publishes his decision.
(f) The commissioner, in making his decision as to which schedule a
controlled substance shall be assigned, shall perform the tests enumerated
in Sections 2.10 through 2.14.
(g) Within 10 days of any action taken pursuant to Subsection (a) of
this section, the commissioner shall provide written notice of such action
to the director and to each state licensing board having jurisdiction over
practitioners.
Schedule I Tests
Sec. 2.10. The commissioner shall place a substance in Schedule I
if he finds that:
(1) the substance has high potential for abuse; and
(2) the substance has no accepted medical use in treatment in the
United States or lacks accepted safety for use in treatment
under medical supervision.
Schedule II Tests
Sec. 2.11. The commissioner shall place a substance in Schedule II
if he finds that:
(1) the substance has high potential for abuse;
(2) the substance has currently accepted medical use in treatment
in the United States, or currently accepted medical use with
severe restrictions; and
(3) abuse of the substance may lead to severe psychological or
physical dependence.
Schedule III tests
Sec. 2.12. The commissioner shall place a substance in Schedule III
if he finds that:
(1) the substance has a potential for abuse less than the sub-
stances listed in Schedules I and II;
(2) the substance has currently accepted medical use in treat-
ment in the United States; and
(3) abuse of the substance may lead to moderate or low physical
dependence or high psychological dependence.
Schedule IV tests
Sec. 2.13. Thelcommissioner shall place a substance in Schedule IV
if he finds that:
(1) the substance has a low potential for abuse relative to sub-
stances in Schedule III;
(2) the substance has currently accepted medical use in treat-
ment in the United States; and
(3) abuse of the substance may lead to limited physical depend-
ence or psychological dependence relative to the substances
in Schedule III.
222
Title 71
HEALTH-PUBLIC
Art. 4476-15
Schedule V tests
Sec. 2.14. The commissioner shall place a substance in Schedule V
if he finds that:
(1) the substance has low potential for abuse relative to the con-
trolled substances listed in Schedule IV;
(2) the substance has currently accepted medical use in treat-
ment in the United States; and
(3) the substance may lead to limited physical dependence or psy-
chological dependence liability relative to the controlled sub-
stances listed in Schedule IV.
Alterations in schedule: notice and hearing
Sec. 2.15. Each alteration made by the commissioner in a schedule
under Subchapter 2 of this Act, except pursuant to Section 2.09(e), must
be preceded by a public hearing held by the commissioner in Austin fol-
lowing publication of notice in at least three newspapers of general cir-
culation in this state. The notice shall state the time and place of the
hearing, which must be at least 30 days but not more than 60 days after
the date of the publication, and the substance of the proposed alteration.
Republishing of schedules
Sec. 2.16. The commissioner shall republish the schedules semian-
nually for two years from the effective date of this Act, and thereafter
annually, reflecting the changes, if any, made in the schedules. The com-
missioner shall publish the schedules by filing a certified copy with the
secretary of state.
Dangerous drugs
Sec. 2.17. The following substances are dangerous drugs regulated
by the provisions of Chapter 425, Acts of the 56th Legislature, Regular
Session, 1959, as amended (Article 726d, Vernon's Texas Penal Code) : 1
(1) tranquilizers;
(2) procaine, its salts, derivatives, or compounds or mixtures
thereof;
(3) any substance that bears the legend: Caution: federal law
prohibits dispensing without prescription; or the legend:
Caution: federal law restricts this drug to use by or on the
order of a licensed veterinarian;
(4) phendimetrazine, its salts, derivatives, or compounds or mix-
tures thereof;
(5) pentazocine, its salts, derivatives, or compounds or mixtures
thereof.
1 Transferred to article 4476-14.
SUBCHAPTER 3. REGULATION OF MANUFACTURE, DISTRIBU-
TION, AND DISPENSING OF CONTROLLED SUBSTANCES
Registration requirements
Sec. 3.01. (a) Every person who manufactures, distributes, analyzes,
or dispenses any controlled substance within this state must possess a
valid registration. Registrations must be obtained annually from the di-
rector in accordance with rules promulgated by him under Section 3.02.
(b) Persons registered by the director under this Act to manu-
facture, distribute, dispense, analyze, or conduct research with controlled
substances may possess, manufacture, distribute, dispense, analyze, or
conduct research with those substances to the extent authorized by their
registration and in conformity with the other provisions of this Act.
223
TEXAS STATUTES RELATED TO THE PRACTICE OF MEDICINE:
THE PHYSICIAN AND THE LAW
APPENDIX
TEXAS STATUTES RELATED TO THE PRACTICE OF MEDICINE:
THE PHYSICIAN AND THE LAW
FOOTNOTES
1
Tex. Rev. Civ. Stat. Ann. art. 4445a (1966). (The Texas Sta-
tutes will hereinafter be cited as T.R.C.S. art.
).
2
T.R.C.S. art. 4445a, §7 (1966).
3
T.R.C.S. art. 4441a (Supp. 1974-75).
4
T.R.C.S. art. 4447e, §2 (1966).
5 Id.
6
T.R.C.S. art. 4477, Rule 50a (1966).
7 Id.
8
T.R.C.S. art. 4445a (1966).
9
T.R.C.S. art. 4447d (Supp. 1974-75).
10
Id. at §1
11 Id.
12
Id. at §3
13
T.R.C.S. art. 4447d-1 (Supp. 1974-75).
14
T.R.C.S. art. 4477, Rule 46a (1966).
15
T.R.C.S. art. 4477, Rule 39 (a) (Supp. 1974-75).
16
T.R.C.S. art. 4445a, §3 (1966).
17
T.R.C.S. art. 4477c (Supp. 1974-75).
18
T.R.C.S. art. 4477, Rule 22 (1966)
Footnotes
February 25, 1975
19
Tex. Fam. Code $34.01 (1975).
20
Tex. Fam. Code $34.02 (a) (1975)
21
Tex. Fam. Code $34.02 (d) (1975)
22
Tex. Fam. Code $34.03 (1975).
23
T.R.C.S. art. 4477, Rule 1 (1966).
24
Id.
25
T.R.C.S. art. 4477, Rule 3 (1966).
26
T.R.C.S. art. 4445, §1 (Supp. 1974-75).
27
Id. at $2.
28
Id. at $5.
29 Id. at §8.
30
Id. at $$9,10.
31
T.R.C.S. art. 4445c, §1 (Supp. 1974-75).
32
Id. at §2.
33
Id. at §2 (c).
34 Id. at $4.
35
Id. at $5 (a).
36
T.R.C.S. art. 4477-11, §4 (a) (1966).
37 Id.
38
Id. at §4 (c).
39
Id. at $5 (e).
40
T.R.C.S. art. 4477-12, §3 (1966).
41
T.R.C.S. art. 4477-11, §6 (1966).
42
T.R.C.S. art. 4447p, §1 (Supp. 1974-75).
Footnotes
February 25, 1975
43
Id.
44
Id. at $2.
45
T.R.C.S. art. 4477, Rule 40a (1966).
46 Id.
47
Tex. Code Crim. Proc. Ann. art. 49.25, $6.7 (1966).
48
Tex. Code Crim. Proc. Ann. art. 49.01, $7 (1966).
49
Tex. Code Crim. Proc. Ann. art. 49.25, §7 (1966).
50
Tex. Code Crim. Proc. Ann. art. 49.01, 49.25 (1966).
51
T.R.C.S. art. 4477c (Supp. 1974-75).
52
T.R.C.S. art. 4477b (Supp. 1974-75).
53
Tex. Code Crim. Proc. Ann. art. 49.25, §6a (Supp. 1974-75).
54
Id.
55
T.R.C.S. art. 4447n, §1 (Supp. 1974-75).
56
Id.
57
T.R.C.S. art. la (1969).
58 Id.
59
Tex. Fam. Code Ann. $35.01 (1975).
60
Tex. Fam. Code Ann. $35.02 (b) (1975).
61
Tex. Fam. Code Ann. $35.02 (a) (1975).
62
Tex. Fam. Code Ann. $35.03 (a) (1), (2) (1975).
63
Tex. Fam. Code Ann. $35.03 (a) (3) (1975).
64
Tex. Fam. Code Ann. $35.03 (a) (4) (1975).
65
Tex. Fam. Code Ann. $35.03 (a) (b) (1975).
66
T.R.C.S. art. 4447i (Supp. 1974-75).
Footnotes
February 25, 1975
67
Tex. Fam. Code Ann. $35.03 (a) (5) (1975) .
68
T.R.C.S. art. 4447j (Supp. 1974-75) .
69
Tex. Fam. Code Ann. $35.03 (b) (1975) .
70
Tex. Fam. Code Ann. $35.03 (c) (1975) .
71
Tex. Fam. Code Ann. $35.03 (f) (1975) .
72
Tex. Fam. Code Ann. $35.03 (e) (1975) .
73
Tex. Fam. Code Ann. $35.03 (d) (1975)
74
Tex. Fam. Code Ann. $$17.01, 17.04 (1975) .
75
Tex. Fam. Code Ann. $35.01 (6) (1975) ; See Tex. Fam. Code $11.11,
17.04 (1975)
76
T.R.C.S. art. 4590-2 (Supp. 1974-75).
77
Id. at §3 (a) .
78
Id. at §3 (b) .
79
Id. at §3 (c) .
80
Id. at §3 (b) .
81
Id. at §4 (2) .
82
Id. at §4 (3) .
83
Id. at $4(4). .
84
Id. at §5 (a) -
85
Id. at $5 (b) -
86
Id. at §5(c). .
87
Id. at §5 (e) .
88
Id. at $7.
89
Id. at §8 (a)
Footnotes
February 25, 1975
90
Id. at $$5(b),6.
91 Id. at $6.
92
Id. at §8 (b). .
93
Id. at §8 (c). .
94
Id. at §8 (d).
95
Tex. Code Crim. Proc. Ann. art. 49.25, §6 (a) (Supp. 1974-75).
96
Tex. Fam. Code Ann. $12.03 (b) (1975)
97
Tex. Fam. Code Ann. $12.03 (a) (1975) .
98
Tex. Code Crim. Proc. Ann. art 49.05, §1 (1966).
99 Id.
100 Id.
101
Tex. Code Crim. Proc. Ann. art. 49.04 (1966).
102
T.R.C.S. art. 4587 (1960).
103 Id.
104
T.R.C.S. art. 5547-18 (1958).
105
T.R.C.S. art. 4590-3 (Supp. 1974-75).
106
Id. at §1.
107
Id. at §2.
108
Id.
109
Id. at $3(b). .
110
Id. at §3 (c) .
111
Id. at §3 (a). .
112
410 U.S. . 113 (1973).
113
T.R.C.S. art. 4512.1 et seq. (Supp. 1974-75).
Footnotes
February 25, 1975
114
T.R.C.S. art. 4512.1, 4512.2, 4512.3 (Supp. 1974-75).
115
T.R.C.S. art. 4512.1 (Supp. 1974-75).
116
T.R.C.S. art. 4512.4 (Supp. 1974-75).
117
T.R.C.S. art. 4512.5 (Supp. 1974-75).
118
T.R.C.S. art. 4512.6 (Supp. 1974-75).
119
T.R.C.S. art 695e, §8 (a) (1) (f) (1964)
120
Id.
121
Id. at §8 (a) (12) (Supp. 1974-75)
122
Tex. Pen. Code Ann. art. 42.10 (1974).
123
T.R.C.S. art 4510 (1966) ; See also T.R.C.S. 4510a (Supp. 1974-75).
The latter article was transferred to the civil statutes upon en-
actment of the new Penal Code. The language of both articles is
identical. If nothing else, the Legislature seems rather emphatic
about it.
124
T.R.C.S. art. 4590c, §11 (1960).
125
A wide variety of persons have been found to be practicing medi-
cine within the statutory definition. See, eg Webber V. State,
370 SW2d 889 (Tex. Crim. App. 1963) (cosmetologist) ; Newman V.
State, 58 Cr. R. 223, 124 S.W.956 (1910) ("message doctor") ; Lar-
son V. State, 106 Cr.R. 261, 285 S.W.317 (1926) (electrical thera-
peutic).
126
Tex. Att'y. Gen. Op. No. H-27 (1973).
127
T.R.C.S. art. 4504a (Supp. 1974-75).
128
See, eg T.R.C.S. art. 4513 (1960) (Nurses) ; T.R.C.S. art. 4529
(1960) (Pharmacists) ; T.R.C.S. art. 4543 (1960) (Dentists) ; T.R.C.S.
art. 4552 (Supp. 1974-75) (Optometrists) ; See, gen. T.R.C.S. art.
4590c (1960), as amended (Supp. 1974-75) (Basic Science Law).
129
T.R.C.S. art. 4590e, §3 (1960).
130
Doctor of Medicine
: M.D.
Doctor of Osteopathy
: D.O.
Doctor of Dental Surgery
: D.D.S.
Footnotes
February 25, 1975
130
Doctor of Dental Medicine
: D.M.D.
Chiropractor
: D.C.
Chiropodist
: D.S.C.
Naturopathic physician
: N.D.
Optometrist
: O.D.
All of the above, of course, must be duly licensed by the
appropriate regulatory body.
131
T.R.C.S. art. 4498 (1966) ; T.R.C.S. art. 4498.1 (Supp. 1974-75).
As with articles 4510 and 4510a (footnote 123, supra). The lat-
ter was transferred to the civil statutes upon the enactment of
the new penal code. The language of both statutes is identical.
132
Id.; See also T.R.C.S. art. 4477, Rule 49a (1966).
133
T.R.C.S. art. 4498a, §1 (1966).
134
T.R.C.S. art. 4498a, §2 (Supp. 1974-75).
135
Tex. Bus. Corp. Act. Ann. art. 2.01B(2) (1956) ; T.R.C.S. art. 1396-
2.01B (2) (1962)
136
T.R.C.S. art. 1528e (Supp. 1974-75).
137
Id. at §3 (a). The statute states as a reason for excluding use
by doctors is that there are precedents allowing them to associ-
ate in joint stock companies.
138
T.R.C.S. art. 1528f (Supp. 1974-75).
139
Id. at $24.
140
Id.
141
T.R.C.S. art. 4505a (Supp. 1974-75).
142
T.R.C.S. art. 4505b (Supp. 1974-75).
143
Id.
144
T.R.C.S. art. 4447m, §1 (Supp. 1974-75).
145
Id. at §2.
146
Tex. Fam. Code Ann. $4.02(1975).
Footnotes
February 25, 1975
147
Woodruff V. Woodruff, 487 SW2d 791, 793 (Tex. Civ. App.--Texar-
kana 1972, no writ history).
148
Tex. Fam. Code Ann. $4.02 (1975).
149
T.R.C.S. art. 4512 (1966).
150
Id.
151
Id.
152
T.R.C.S. art. 4476-5 (1966) as amended (Supp. 1974-75).
153
T.R.C.S. art. 4476-14 (Supp. 1974-75).
154
T.R.C.S. art. 4476-15 (Supp. 1974-75).
155
T.R.C.S. art. 4476-5, $14(a) (Supp. 1974-75).
156 Id.
157
Id. at $14(b).
158
Id. at $14(c).
159
Id. at $14(d).
160
T.R.C.S. art. 4476-5, §15(a) (1966).
161
Id. at $15(b).
162
Id. at §15 (c).
163
Id. at $15(k).
164
T.R.C.S. art. 4476-5, §16 $16(d) (d) (1) (Supp. 1974-75).
165
T.R.C.S. art. 4476-14 (Supp. 1974-75).
166
Id. at $4.
167
Id. at $5.
168
Id. at $$5,6.
169
Id. at $15(c). .
Footnotes
February 25, 1975
170
T.R.C.S. art. 4476-15 (Supp. 1974-75).
171
Id. at $3.01 (a).
172 Id. at $3.03 (b).
173
Id. at $3.08 (a).
174
Id. at $3.08 (c).
175
Id. at $3.08 (b).
176
Id. at $$3.08 (b), (e).
177
T.R.C.S. art. 4542a, §8 (Supp. 1974-75).
178
T.R.C.S. art. 4476-11, §1 (Supp. 1974-75).
179 Id. at §4.
180
Id. at $5.
181 Id. at §11.
182
Id. at §8.
183
Id. at §9.
184
House Concurrent Resolution No. 17, Acts, 62nd Legislature 2nd
C.S. (1972).
185
Tex. Fam. Code Ann. $35.03 (a) (b) (1975) ; T.R.C.S. art. 4447i (Supp.
1974-75).
186
Tex. 1974-75). Fam. Code Ann. $35.03 (e) (1975) ; T.R.C.S. art. 4447i (Supp.
187
Tex. Code Crim. Proc. Ann. art. 38.101 (Supp. 1974-75).
188 Id.
Published by
HERMANN HOSPITAL
The University Hospital
Houston, Texas
Public Relations Department