Texas 2009 - 81st Regular

Texas House Bill HB3816 Compare Versions

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1	1	81R29491 NC-F
2	2	By: Brown of Brazos, Fletcher, Callegari, H.B. No. 3816
3	3	Howard of Fort Bend, Elkins, et al.
4	4	Substitute the following for H.B. No. 3816:
5	5	By: Davis of Harris C.S.H.B. No. 3816
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to the powers and duties of the Texas Medical Board.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 152.002(a), Occupations Code, is amended
13	13	to read as follows:
14	14	(a) The board consists of 19 members appointed by the
15	15	governor with the advice and consent of the senate as follows:
16	16	(1) twelve members who are learned and eminent
17	17	physicians licensed in this state for at least five [three] years
18	18	before the appointment, nine of whom must be graduates of a
19	19	reputable medical school or college with a degree of doctor of
20	20	medicine (M.D.) and three of whom must be graduates of a reputable
21	21	medical school or college with a degree of doctor of osteopathic
22	22	medicine (D.O.); and
23	23	(2) seven members who represent the public.
24	24	SECTION 2. Section 152.003, Occupations Code, is amended by
25	25	adding Subsections (e) and (f) to read as follows:
26	26	(e) A person may not be a member of the board if the member
27	27	is not in full compliance with Section 572.051, Government Code. A
28	28	person is not in full compliance with that section if the person's
29	29	spouse or anyone related to the person within the second degree by
30	30	consanguinity engages in conduct described by Section 572.051(a),
31	31	Government Code, that would affect or influence the person's
32	32	official conduct, position, powers, or duties as a member of the
33	33	board in a manner prohibited by that section.
34	34	(f) A member of the board may not participate in any matter
35	35	regarding a license holder if the person or anyone related to the
36	36	person within the second degree by consanguinity receives
37	37	compensation from an entity, other than a medical practice, that
38	38	has a financial interest in common with or adverse to the license
39	39	holder, including an insurance company, health care regulatory
40	40	agency, pharmaceutical company, or medical malpractice attorney.
41	41	SECTION 3. Section 154.002(a), Occupations Code, is amended
42	42	to read as follows:
43	43	(a) The board shall prepare:
44	44	(1) an alphabetical list of the names of the license
45	45	holders;
46	46	(2) an alphabetical list of the names of the license
47	47	holders by the county in which the license holder's principal place
48	48	of practice is located;
49	49	(3) a summary of the board's functions;
50	50	(4) a copy of this subtitle and a list of other laws
51	51	relating to the practice of medicine;
52	52	(5) a copy of the board's rules;
53	53	(6) a statistical report each fiscal year to the
54	54	legislature and the public that provides aggregate information
55	55	about all complaints received by the board categorized by type of
56	56	complaint, including administrative, quality of care, medical
57	57	error, substance abuse, other criminal behavior, and the
58	58	disposition of those complaints by category; [and]
59	59	(7) a list of the names of all persons who served on an
60	60	informal settlement conference panel during the preceding year and
61	61	the number of informal settlement conference panels on which each
62	62	person served; and
63	63	(8) other information considered appropriate by the
64	64	board.
65	65	SECTION 4. Section 154.051, Occupations Code, is amended by
66	66	adding Subsection (e) to read as follows:
67	67	(e) The board may not consider or act on a complaint
68	68	involving care provided more than seven years before the date the
69	69	complaint is filed, unless the care was provided to a minor. If the
70	70	care was provided to a minor, the board may not consider or act on a
71	71	complaint involving the care after the later of:
72	72	(1) the date the minor is 21 years of age; or
73	73	(2) the seventh anniversary of the date of care.
74	74	SECTION 5. Section 154.053, Occupations Code, is amended by
75	75	amending Subsection (a) and adding Subsection (a-1) to read as
76	76	follows:
77	77	(a) The board shall notify by personal delivery or certified
78	78	mail a physician who is the subject of a complaint filed with the
79	79	board that a complaint has been filed and shall provide [notify] the
80	80	physician with a copy of the [nature of the] complaint without
81	81	redaction unless there is a risk of harm to the public or the notice
82	82	would jeopardize an investigation. The complaint must include a
83	83	statement of the alleged violation in plain language.
84	84	(a-1) If a physician rejects a notice by personal delivery
85	85	or certified mail under Subsection (a), the board may send to the
86	86	physician an additional notice of the complaint by first class mail
87	87	that includes notice of the attempted delivery by personal delivery
88	88	or certified mail.
89	89	SECTION 6. Subchapter B, Chapter 154, Occupations Code, is
90	90	amended by adding Section 154.0535 to read as follows:
91	91	Sec. 154.0535. REQUIREMENTS FOR CERTAIN COMPLAINTS. (a)
92	92	In this section:
93	93	(1) "Anonymous complaint" means a complaint that lacks
94	94	sufficient information to identify the source or the name of the
95	95	person who filed the complaint.
96	96	(2) "Insurance agent" means a person licensed under
97	97	Chapter 4054, Insurance Code.
98	98	(3) "Insurer" means an insurance company or other
99	99	entity authorized to engage in the business of insurance under
100	100	Subtitle C, Title 6, Insurance Code.
101	101	(b) Notwithstanding any confidentiality requirements under
102	102	Chapter 552, Government Code, this subtitle, or rules adopted under
103	103	this subtitle, a complaint filed with the board by an insurance
104	104	agent or insurer against a physician must include the name and
105	105	address of the insurance agent or insurer filing the complaint. Not
106	106	later than the 15th day after the date the complaint is filed with
107	107	the board, the board shall notify the physician who is the subject
108	108	of the complaint of the name and address of the insurance agent or
109	109	insurer who filed the complaint, unless the notice would jeopardize
110	110	an investigation.
111	111	(c) The board may not accept anonymous complaints.
112	112	(d) The board shall adopt rules as necessary to implement
113	113	this section.
114	114	(e) Failure by an insurance agent or insurer to comply with
115	115	the requirements of Subsection (b) or rules adopted by the board
116	116	under this section constitutes grounds for the imposition of
117	117	sanctions by the commissioner of the Texas Department of Insurance
118	118	under Chapter 82, Insurance Code. The commissioner of insurance
119	119	may adopt rules to implement this subsection.
120	120	SECTION 7. Sections 154.056(a), (b), and (e), Occupations
121	121	Code, are amended to read as follows:
122	122	(a) The board shall adopt rules concerning the
123	123	investigation and review of a complaint filed with the board. The
124	124	rules adopted under this section must:
125	125	(1) distinguish among categories of complaints and
126	126	give priority to complaints that involve sexual misconduct, quality
127	127	of care, and impaired physician issues;
128	128	(2) ensure that a complaint is not dismissed without
129	129	appropriate consideration;
130	130	(3) require that the board be advised of the dismissal
131	131	of a complaint and that a letter be sent to the person who filed the
132	132	complaint and to the physician who was the subject of the complaint
133	133	explaining the action taken on the complaint;
134	134	(4) ensure that a person who files a complaint has an
135	135	opportunity to explain the allegations made in the complaint;
136	136	(5) ensure that a physician who is the subject of a
137	137	complaint has at least 45 days after receiving a copy of the
138	138	complaint as provided by Section 154.053(a) to prepare and submit a
139	139	response;
140	140	(6) prescribe guidelines concerning the categories of
141	141	complaints that require the use of a private investigator and the
142	142	procedures for the board to obtain the services of a private
143	143	investigator;
144	144	(7) [(6)] provide for an expert physician panel
145	145	authorized under Subsection (e) to assist with complaints and
146	146	investigations relating to medical competency; and
147	147	(8) [(7)] require the review of reports filed with the
148	148	National Practitioner Data Bank for any report of the termination,
149	149	limitation, suspension, limitation in scope of practice, or
150	150	probation of clinical or hospital staff privileges of a physician
151	151	by:
152	152	(A) a hospital;
153	153	(B) a health maintenance organization;
154	154	(C) an independent practice association;
155	155	(D) an approved nonprofit health corporation
156	156	certified under Section 162.001; or
157	157	(E) a physician network.
158	158	(b) The board shall:
159	159	(1) dispose of each complaint in a timely manner; and
160	160	(2) establish a schedule for conducting each phase of
161	161	a complaint that is under the control of the board not later than
162	162	the 30th day after the date the physician's time for preparing and
163	163	submitting a response expires [board receives the complaint].
164	164	(e) The board by rule shall provide for an expert physician
165	165	panel appointed by the board to assist with complaints and
166	166	investigations relating to medical competency by acting as expert
167	167	physician reviewers. Each member of the expert physician panel
168	168	must be actively practicing [licensed to practice] medicine in this
169	169	state. The rules adopted under this subsection must include
170	170	provisions governing the composition of the panel, qualifications
171	171	for membership on the panel, length of time a member may serve on
172	172	the panel, grounds for removal from the panel, the avoidance of
173	173	conflicts of interest, including situations in which the affected
174	174	physician and the panel member live or work in the same geographical
175	175	area or are competitors, and the duties to be performed by the
176	176	panel. The board's rules governing grounds for removal from the
177	177	panel must include providing for the removal of a panel member who
178	178	is repeatedly delinquent in reviewing complaints and in submitting
179	179	reports to the board. The board's rules governing appointment of
180	180	expert physician panel members to act as expert physician reviewers
181	181	must include a requirement that the board randomly select, to the
182	182	extent permitted by Section 154.058(b) and the conflict of interest
183	183	provisions adopted under this subsection, panel members to review a
184	184	complaint.
185	185	SECTION 8. Section 154.0561, Occupations Code, is amended
186	186	by adding Subsections (a-1) and (e) to read as follows:
187	187	(a-1) Before the complaint is reviewed, the board must
188	188	redact all information that identifies the physician who is the
189	189	subject of the complaint, the patient, and the person filing the
190	190	complaint.
191	191	(e) The board shall deliver a copy of the preliminary and
192	192	final reports to the physician who is the subject of the review.
193	193	Before delivering the reports to the physician, the board shall
194	194	redact information identifying the expert physicians from the
195	195	reports.
196	196	SECTION 9. Section 154.058(b), Occupations Code, is amended
197	197	to read as follows:
198	198	(b) If the initial review under Subsection (a) indicates
199	199	that an act by a physician falls below an acceptable standard of
200	200	care, the complaint shall be reviewed by an expert physician panel
201	201	authorized under Section 154.056(e) consisting of physicians who
202	202	have an active practice in the same specialty as the physician who
203	203	is the subject of the complaint or in another specialty that is
204	204	similar to the physician's specialty.
205	205	SECTION 10. Section 164.001, Occupations Code, is amended
206	206	by adding Subsections (k) and (l) to read as follows:
207	207	(k) A license holder may practice medicine in a manner
208	208	taught in a course currently accredited by the Accreditation
209	209	Council for Continuing Medical Education, the American Medical
210	210	Association, or the American Osteopathic Association.
211	211	(l) The board may not direct a physician in the practice of
212	212	medicine, except by ordering that a physician not engage in a
213	213	practice that causes actual harm or an imminent risk of harm to a
214	214	patient.
215	215	SECTION 11. Section 164.003, Occupations Code, is amended
216	216	by adding Subsection (i) to read as follows:
217	217	(i) On request by a physician under review, the board shall
218	218	make a recording of the informal settlement conference proceeding.
219	219	The recording is a part of the investigative file and may not be
220	220	released to a third party unless authorized under this subtitle.
221	221	SECTION 12. Section 164.0031(a), Occupations Code, is
222	222	amended to read as follows:
223	223	(a) In an informal meeting under Section 164.003 or an
224	224	informal hearing under Section 164.103, at least two panelists
225	225	shall be randomly appointed to determine whether an informal
226	226	disposition is appropriate. At least one of the panelists must be a
227	227	physician.
228	228	SECTION 13. Sections 164.007(a) and (a-1), Occupations
229	229	Code, are amended to read as follows:
230	230	(a) The board by rule shall adopt procedures governing
231	231	formal disposition of a contested case under Chapter 2001,
232	232	Government Code. A formal hearing shall be conducted by an
233	233	administrative law judge employed by the State Office of
234	234	Administrative Hearings. After receiving the administrative law
235	235	judge's findings of fact and conclusions of law, the board shall
236	236	dispose of the contested case by issuing a final order based on the
237	237	administrative law judge's findings of fact and conclusions of law
238	238	[determine the charges on the merits].
239	239	(a-1) Notwithstanding Section 2001.058(e), Government
240	240	Code, the [The] board may not change a finding of fact or conclusion
241	241	of law or vacate or modify an order of the administrative law judge.
242	242	The board may obtain judicial review of any finding of fact or
243	243	conclusion of law issued by the administrative law judge as
244	244	provided by Section 2001.058(f)(5), Government Code. For each
245	245	case, the board has the sole authority and discretion to determine
246	246	the appropriate action or sanction, and the administrative law
247	247	judge may not make any recommendation regarding the appropriate
248	248	action or sanction [only if the board makes a determination
249	249	required by Section 2001.058(e), Government Code].
250	250	SECTION 14. Section 164.009, Occupations Code, is amended
251	251	to read as follows:
252	252	Sec. 164.009. JUDICIAL REVIEW. (a) A person whose
253	253	license to practice medicine has been revoked or who is subject to
254	254	other disciplinary action by the board may appeal to a Travis County
255	255	district court not later than the 30th day after the date the board
256	256	decision is final.
257	257	(b) A person whose license to practice medicine has been
258	258	revoked is entitled to a jury trial in a district court in Travis
259	259	County.
260	260	SECTION 15. Section 164.053(a), Occupations Code, is
261	261	amended to read as follows:
262	262	(a) For purposes of Section 164.052(a)(5), unprofessional
263	263	or dishonorable conduct likely to deceive or defraud the public
264	264	includes conduct in which a physician:
265	265	(1) commits an act that violates any state or federal
266	266	law if the act is connected with the physician's practice of
267	267	medicine;
268	268	(2) fails to keep complete and accurate records of
269	269	purchases and disposals of:
270	270	(A) drugs listed in Chapter 481, Health and
271	271	Safety Code; or
272	272	(B) controlled substances scheduled in the
273	273	Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
274	274	U.S.C. Section 801 et seq.);
275	275	(3) writes prescriptions for or dispenses to a person
276	276	who:
277	277	(A) is known to be an abuser of narcotic drugs,
278	278	controlled substances, or dangerous drugs; or
279	279	(B) the physician should have known was an abuser
280	280	of narcotic drugs, controlled substances, or dangerous drugs;
281	281	(4) writes false or fictitious prescriptions for:
282	282	(A) dangerous drugs as defined by Chapter 483,
283	283	Health and Safety Code; or
284	284	(B) controlled substances scheduled in Chapter
285	285	481, Health and Safety Code, or the Comprehensive Drug Abuse
286	286	Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
287	287	(5) prescribes or administers a drug or treatment that
288	288	is nontherapeutic in nature or nontherapeutic in the manner the
289	289	drug or treatment is administered or prescribed and has the
290	290	likelihood of harm to a patient;
291	291	(6) prescribes, administers, or dispenses in a manner
292	292	inconsistent with public health and welfare:
293	293	(A) dangerous drugs as defined by Chapter 483,
294	294	Health and Safety Code; or
295	295	(B) controlled substances scheduled in Chapter
296	296	481, Health and Safety Code, or the Comprehensive Drug Abuse
297	297	Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
298	298	(7) violates Section 311.0025, Health and Safety Code;
299	299	(8) fails to supervise adequately the activities of
300	300	those acting under the supervision of the physician; or
301	301	(9) delegates professional medical responsibility or
302	302	acts to a person if the delegating physician knows or has reason to
303	303	know that the person is not qualified by training, experience, or
304	304	licensure to perform the responsibility or acts.
305	305	SECTION 16. The changes in law made by this Act by the
306	306	amendment of Sections 152.002(a) and 152.003, Occupations Code,
307	307	apply only to a person appointed to the Texas Medical Board on or
308	308	after the effective date of this Act. A person appointed before the
309	309	effective date of this Act is governed by the law in effect on the
310	310	date the appointment is made, and the former law is continued in
311	311	effect for that purpose.
312	312	SECTION 17. The changes in law made by this Act relating to
313	313	the Texas Medical Board's complaint procedures apply only to a
314	314	complaint filed on or after the effective date of this Act. A
315	315	complaint filed before the effective date of this Act is governed by
316	316	the law in effect on the date the complaint is filed, and the former
317	317	law is continued in effect for that purpose.
318	318	SECTION 18. The changes in law made by this Act relating to
319	319	the Texas Medical Board's disciplinary authority apply only to
320	320	conduct that occurs on or after the effective date of this Act.
321	321	Conduct that occurs before the effective date of this Act is
322	322	governed by the law in effect on the date the conduct occurs, and
323	323	the former law is continued in effect for that purpose.
324	324	SECTION 19. Sections 164.007(a) and (a-1), Occupations
325	325	Code, as amended by this Act, apply only to a contested case for
326	326	which an administrative law judge employed by the State Office of
327	327	Administrative Hearings issues written findings of fact and
328	328	conclusions of law on or after the effective date of this Act. A
329	329	contested case for which an administrative law judge employed by
330	330	the State Office of Administrative Hearings issues written findings
331	331	of fact and conclusions of law before the effective date of this Act
332	332	is governed by the law in effect on the date the findings of fact and
333	333	conclusions of law were issued, and the former law is continued in
334	334	effect for that purpose.
335	335	SECTION 20. This Act takes effect September 1, 2009.