Texas 2009 - 81st Regular

Texas Senate Bill SB1879 Compare Versions

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1	1	By: Nelson S.B. No. 1879
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the licensing and regulation of genetic counselors;
7	7	providing penalties.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Subtitle I, Title 3, Occupations Code, is
10	10	amended by adding Chapter 506 to read as follows:
11	11	CHAPTER 506. LICENSED GENETIC COUNSELORS
12	12	SUBCHAPTER A. GENERAL PROVISIONS
13	13	Sec. 506.001. SHORT TITLE. This chapter may be cited as the
14	14	Licensed Genetic Counselor Act.
15	15	Sec. 506.002. GENERAL DEFINITIONS. In this chapter:
16	16	(1) "Advisory committee" means the licensed genetic
17	17	counselor advisory committee.
18	18	(2) "Board" means the Texas Medical Board.
19	19	(3) "Executive director" means the executive director
20	20	of the board.
21	21	(4) "Licensed genetic counselor" means a person
22	22	licensed under this chapter to engage in the practice of genetic
23	23	counseling.
24	24	Sec. 506.003. DEFINITION: PRACTICE OF GENETIC COUNSELING.
25	25	In this chapter, "practice of genetic counseling" means, on the
26	26	documented referral by a physician licensed to practice medicine in
27	27	this state or by a person acting under authority delegated under
28	28	Subchapter A, Chapter 157, providing professional services for
29	29	compensation to communicate genetic information to an individual,
30	30	family, group, or other entity. The term includes:
31	31	(1) assessing the likelihood of an occurrence or
32	32	recurrence of a birth defect or a potentially inherited or
33	33	genetically influenced condition, including:
34	34	(A) obtaining and analyzing a complete health
35	35	history of an individual and family;
36	36	(B) reviewing pertinent medical records;
37	37	(C) evaluating the risks associated with
38	38	exposure to possible mutagens or teratogens; and
39	39	(D) recommending genetic testing to evaluate a
40	40	condition or determine the carrier status of a family member;
41	41	(2) assisting an individual, family, or group to:
42	42	(A) appreciate the medical, psychological, and
43	43	social implications of a disorder, including the disorder's
44	44	features, variability, usual course, and management options;
45	45	(B) understand the effect genetic factors have on
46	46	a disorder and on the chance for recurrence of the disorder in other
47	47	family members;
48	48	(C) understand the options available for coping
49	49	with, preventing, or reducing the occurrence or recurrence of a
50	50	condition; and
51	51	(D) understand genetic or prenatal tests and
52	52	coordinate testing for inherited disorders; and
53	53	(3) facilitating an individual's or family's:
54	54	(A) examination of the risk and burden perception
55	55	associated with the disorder;
56	56	(B) decision-making related to testing or
57	57	medical interventions consistent with the individual's or family's
58	58	beliefs, goals, needs, resources, culture, and ethical or moral
59	59	views; and
60	60	(C) adjustment and adaptation to the disorder or
61	61	to the individual's or family's genetic risk by addressing the need
62	62	for psychological, social, and medical support.
63	63	Sec. 506.004. PRACTICE OF MEDICINE NOT AUTHORIZED. This
64	64	chapter does not authorize:
65	65	(1) the practice of medicine as defined by Subtitle B,
66	66	Title 3; or
67	67	(2) the making of a medical diagnosis.
68	68	Sec. 506.005. APPLICATION OF SUNSET ACT. The licensed
69	69	genetic counselor advisory committee is subject to Chapter 325,
70	70	Government Code (Texas Sunset Act). Unless continued in existence
71	71	as provided by that chapter, the advisory committee is abolished
72	72	and this chapter expires September 1, 2019.
73	73	Sec. 506.006. APPLICABILITY; EXEMPTIONS. (a) This
74	74	chapter does not apply to a physician licensed to practice medicine
75	75	in this state unless the physician is a licensed genetic counselor.
76	76	(b) A person may engage in the practice of genetic
77	77	counseling without holding a license under this chapter if the
78	78	person:
79	79	(1) is licensed, certified, or registered to practice
80	80	in this state in a health care-related field and engages in an
81	81	activity or service of genetic counseling but does not use the title
82	82	"genetic counselor" or represent or imply the person is licensed as
83	83	a genetic counselor under this chapter;
84	84	(2) is a student:
85	85	(A) pursuing a course of study or engaged in a
86	86	training program for an occupation regulated by this state and
87	87	acting within the occupation's scope of practice; or
88	88	(B) enrolled in a board-approved supervised
89	89	genetic counseling training program and engaged in an activity
90	90	constituting the practice of genetic counseling as a required part
91	91	of the training program; or
92	92	(3) is a genetic counselor who:
93	93	(A) is certified by the American Board of Medical
94	94	Genetics, the American Board of Genetic Counseling, or another
95	95	certification body approved by the board;
96	96	(B) is not a resident of this state;
97	97	(C) performs an activity or provides a service in
98	98	this state for not more than 30 days during any year and the
99	99	activity or service is under the direction and supervision of a
100	100	physician licensed to practice medicine in this state or a licensed
101	101	genetic counselor; and
102	102	(D) meets any other requirements established by
103	103	board rule.
104	104	(c) A student described by Subsection (b)(2) includes an
105	105	individual who:
106	106	(1) is trained as:
107	107	(A) a genetic counselor and has applied to take
108	108	the certification examination; or
109	109	(B) a doctoral medical geneticist and has applied
110	110	to take the certification examination; and
111	111	(2) has not failed the certification examination more
112	112	than two times.
113	113	[Sections 506.007-506.050 reserved for expansion]
114	114	SUBCHAPTER B. ADVISORY COMMITTEE
115	115	Sec. 506.051. ADVISORY COMMITTEE. (a) The advisory
116	116	committee is an informal advisory committee to the board and is not
117	117	subject to Chapter 2110, Government Code.
118	118	(b) The advisory committee has no independent rulemaking
119	119	authority.
120	120	Sec. 506.052. APPOINTMENT OF ADVISORY COMMITTEE. The
121	121	advisory committee consists of seven members appointed by the
122	122	president of the board as follows:
123	123	(1) two licensed physician members, one of whom is a
124	124	board certified obstetrician gynecologist, a board certified
125	125	oncologist, or a board certified clinical geneticist; and
126	126	(2) five licensed genetic counselor members, each of
127	127	whom:
128	128	(A) has engaged for at least two years in the
129	129	practice of genetic counseling as a genetic counselor:
130	130	(i) licensed under this chapter; or
131	131	(ii) certified by the American Board of
132	132	Medical Genetics, the American Board of Genetic Counseling, or
133	133	another certification body approved by the board;
134	134	(B) is a United States citizen; and
135	135	(C) has been a resident of this state for not less
136	136	than six months preceding appointment.
137	137	Sec. 506.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS.
138	138	(a) In this section, "Texas trade association" means a cooperative
139	139	and voluntarily joined association of business or professional
140	140	competitors in this state designed to assist its members and its
141	141	industry or profession in dealing with mutual business or
142	142	professional problems and in promoting their common interest.
143	143	(b) A person may not be a member of the advisory committee
144	144	if:
145	145	(1) the person is an officer, employee, or paid
146	146	consultant of a Texas trade association in the field of genetic
147	147	counseling; or
148	148	(2) the person's spouse is an officer, manager, or paid
149	149	consultant of a Texas trade association in the field of genetic
150	150	counseling.
151	151	(c) A person may not be a member of the advisory committee if
152	152	the person is required to register as a lobbyist under Chapter 305,
153	153	Government Code, because of the person's activities for
154	154	compensation on behalf of a profession related to the field of
155	155	genetic counseling.
156	156	Sec. 506.054. TERMS; VACANCY. (a) Members of the advisory
157	157	committee serve two-year terms. The terms of the members expire on
158	158	February 1 of each odd-numbered year.
159	159	(b) If a vacancy occurs during a member's term, the
160	160	president of the board shall appoint a new member to fill the
161	161	unexpired term.
162	162	(c) An advisory committee member may not serve more than two
163	163	consecutive full terms.
164	164	Sec. 506.055. GROUNDS FOR REMOVAL. (a) It is a ground for
165	165	removal from the advisory committee that a member:
166	166	(1) does not have at the time of appointment the
167	167	qualifications required by Section 506.052;
168	168	(2) does not maintain during service on the advisory
169	169	committee the qualifications required by Section 506.052;
170	170	(3) is ineligible for membership under Section
171	171	506.053;
172	172	(4) cannot, because of illness or disability,
173	173	discharge the member's duties for a substantial part of the member's
174	174	term; or
175	175	(5) has had a restriction, suspension, or revocation
176	176	of a license to perform genetic counseling in this state or any
177	177	other state.
178	178	(b) The executive director shall review the qualifications
179	179	of the members of the advisory committee and notify the board of any
180	180	action that may be required.
181	181	(c) The validity of an action of the advisory committee is
182	182	not affected by the fact that it is taken when a ground for removal
183	183	of a committee member exists.
184	184	Sec. 506.056. OFFICERS. The president of the board
185	185	biennially shall designate a committee member as the presiding
186	186	officer of the advisory committee to serve in that capacity at the
187	187	will of the president.
188	188	Sec. 506.057. PER DIEM. An advisory committee member is not
189	189	entitled to reimbursement for travel expenses or compensation.
190	190	Sec. 506.058. MEETINGS. (a) The advisory committee shall
191	191	meet as requested by the board.
192	192	(b) A meeting may be held by telephone or other electronic
193	193	conference call.
194	194	[Sections 506.059-506.100 reserved for expansion]
195	195	SUBCHAPTER C. POWERS AND DUTIES OF THE BOARD
196	196	AND THE EXECUTIVE DIRECTOR
197	197	Sec. 506.101. GENERAL POWERS AND DUTIES. The board, in
198	198	consultation with the advisory committee, shall:
199	199	(1) establish qualifications for genetic counselors
200	200	in this state;
201	201	(2) establish requirements for an examination for a
202	202	license to practice as a genetic counselor;
203	203	(3) establish minimum education and training
204	204	requirements necessary for a license as a genetic counselor;
205	205	(4) prescribe the application form for a license to
206	206	practice as a genetic counselor; and
207	207	(5) develop an approved program of mandatory
208	208	continuing education and the manner in which attendance at all
209	209	approved courses, clinics, forums, lectures, programs, or seminars
210	210	is monitored and recorded.
211	211	Sec. 506.102. RULES. In consultation with the advisory
212	212	committee, the board shall adopt rules to implement and enforce
213	213	this chapter.
214	214	Sec. 506.103. FEES; SPECIAL ACCOUNT. (a) The board by
215	215	rule shall set fees required by this chapter in amounts reasonable
216	216	and necessary to cover the costs of administering this chapter.
217	217	(b) The board shall deposit all the fees collected to the
218	218	credit of the genetic counseling licensing account. The genetic
219	219	counseling licensing account is a special account in the general
220	220	revenue fund that may be appropriated only to the board to pay for
221	221	the board's administration of this chapter.
222	222	Sec. 506.104. ANNUAL REPORT. (a) The board annually shall
223	223	prepare a complete and detailed written report accounting for all
224	224	funds received and disbursed by the board under this chapter during
225	225	the preceding fiscal year.
226	226	(b) The annual report must meet the reporting requirements
227	227	applicable to financial reporting provided by the General
228	228	Appropriations Act.
229	229	Sec. 506.105. GIFTS, GRANTS, AND DONATIONS. In addition to
230	230	any fees paid to the board or money appropriated to the board, the
231	231	board may receive and accept under this chapter a gift, grant,
232	232	donation, or other item of value from any source, including the
233	233	United States or a private source.
234	234	[Sections 506.106-506.150 reserved for expansion]
235	235	SUBCHAPTER D. PUBLIC INTEREST INFORMATION;
236	236	COMPLAINT AND INVESTIGATIVE INFORMATION
237	237	Sec. 506.151. PUBLIC PARTICIPATION. (a) The board shall
238	238	develop and implement policies that provide the public with a
239	239	reasonable opportunity to appear before the board and speak on any
240	240	issue relating to genetic counseling.
241	241	(b) The executive director shall prepare and maintain a
242	242	written plan that describes how a person who does not speak English
243	243	may be provided reasonable access to the board's programs and
244	244	services under this chapter.
245	245	Sec. 506.152. PUBLIC INTEREST INFORMATION. (a) The board
246	246	shall prepare information of public interest describing the
247	247	functions of the board under this chapter and the procedure by which
248	248	complaints are filed and resolved under this chapter.
249	249	(b) The board shall make the information available to the
250	250	public and appropriate state agencies.
251	251	Sec. 506.153. COMPLAINTS. (a) The board by rule shall
252	252	establish methods by which consumers are notified of the name,
253	253	mailing address, and telephone number of the board for the purpose
254	254	of directing complaints about genetic counselors to the board.
255	255	(b) The board shall list with its regular telephone number
256	256	any toll-free telephone number established under other state law
257	257	that may be called to present a complaint about a genetic counselor.
258	258	Sec. 506.154. RECORDS OF COMPLAINTS. (a) The board shall
259	259	maintain a file on each written complaint filed with the board under
260	260	this chapter. The file must include:
261	261	(1) the name of the person who filed the complaint;
262	262	(2) the date the complaint is received by the board;
263	263	(3) the subject matter of the complaint;
264	264	(4) the name of each person contacted in relation to
265	265	the complaint;
266	266	(5) a summary of the results of the review or
267	267	investigation of the complaint; and
268	268	(6) an explanation of the reason the file was closed,
269	269	if the board closed the file without taking action other than to
270	270	investigate the complaint.
271	271	(b) The board shall provide to the person filing the
272	272	complaint and to each person who is a subject of the complaint a
273	273	copy of the board's policies and procedures relating to complaint
274	274	investigation and resolution. A person who reports a complaint by
275	275	telephone shall be given information on how to file a written
276	276	complaint.
277	277	(c) The board, at least quarterly and until final
278	278	disposition of the complaint, shall notify the person filing the
279	279	complaint and each person who is a subject of the complaint of the
280	280	status of the investigation unless the notice would jeopardize an
281	281	ongoing investigation.
282	282	Sec. 506.155. LICENSE HOLDER ACCESS TO COMPLAINT
283	283	INFORMATION. (a) The board shall provide a genetic counselor who
284	284	is the subject of a formal complaint filed under this chapter with
285	285	access to all information in its possession that the board intends
286	286	to offer into evidence in presenting its case in chief at the
287	287	contested hearing on the complaint, subject to any other privilege
288	288	or restriction established by rule, statute, or legal precedent.
289	289	The board shall provide the information not later than the 30th day
290	290	after receipt of a written request from the license holder or the
291	291	license holder's counsel, unless good cause is shown for delay.
292	292	(b) Notwithstanding Subsection (a), the board is not
293	293	required to provide:
294	294	(1) board investigative reports;
295	295	(2) investigative memoranda;
296	296	(3) the identity of a non-testifying complainant;
297	297	(4) attorney-client communications;
298	298	(5) attorney work product; or
299	299	(6) other material covered by a privilege recognized
300	300	by the Texas Rules of Civil Procedure or the Texas Rules of
301	301	Evidence.
302	302	Sec. 506.156. HEALTH CARE ENTITY REQUEST FOR INFORMATION.
303	303	On the written request of a health care entity, the board shall
304	304	provide to the entity:
305	305	(1) information about a complaint filed against the
306	306	license holder that was resolved after investigation by:
307	307	(A) a disciplinary order of the board; or
308	308	(B) an agreed settlement; and
309	309	(2) the basis of and current status of any complaint
310	310	under active investigation that has been referred by the executive
311	311	director or the director's designee for legal action.
312	312	Sec. 506.157. CONFIDENTIALITY OF INVESTIGATIVE
313	313	INFORMATION. The following information is privileged and
314	314	confidential and is not subject to discovery, subpoena, or other
315	315	means of legal compulsion for release to any person other than the
316	316	board or board employee or agent involved in license holder
317	317	discipline:
318	318	(1) a complaint, adverse report, investigation file,
319	319	or other report;
320	320	(2) the identity of and reports made by a physician or
321	321	licensed genetic counselor performing or supervising compliance or
322	322	monitoring for the board; or
323	323	(3) other investigative information in the possession
324	324	of or received by or gathered by the board or a board employee or
325	325	agent relating to a license holder, a license application, or a
326	326	criminal investigation or proceeding.
327	327	Sec. 506.158. PERMITTED DISCLOSURE OF INVESTIGATIVE
328	328	INFORMATION. (a) Notwithstanding Section 506.157, investigative
329	329	information in the possession of the board or a board employee or
330	330	agent may be disclosed to a licensing authority in another state or
331	331	country in which the license holder is licensed or has applied for a
332	332	license or similar authority.
333	333	(b) If the investigative information in the possession of
334	334	the board or a board employee or agent indicates a crime may have
335	335	been committed, the board shall report the information to the
336	336	proper law enforcement agency. The board shall cooperate with and
337	337	assist all law enforcement agencies conducting criminal
338	338	investigations of a license holder by providing information
339	339	relevant to the investigation. Confidential information disclosed
340	340	by the board to a law enforcement agency remains confidential and
341	341	may not be disclosed by the law enforcement agency except as
342	342	necessary to further the investigation or prosecution.
343	343	Sec. 506.159. IMMUNITY AND REPORTING REQUIREMENTS.
344	344	(a) Any person, including a physician or genetic counselor, shall
345	345	report relevant information to the board related to the acts of a
346	346	licensed genetic counselor in this state if, in that person's
347	347	opinion, the licensed genetic counselor poses a continuing threat
348	348	to the public welfare. The duty to report under this section may
349	349	not be nullified through contract.
350	350	(b) A person who without malice furnishes records,
351	351	information, or assistance to the board under this section is
352	352	immune from any civil liability arising from that action in a suit
353	353	against the person brought by or on behalf of a licensed genetic
354	354	counselor who is reported under this section.
355	355	[Sections 506.160-506.200 reserved for expansion]
356	356	SUBCHAPTER E. LICENSING REQUIREMENTS
357	357	Sec. 506.201. LICENSE REQUIRED. (a) Except as provided by
358	358	Section 506.006, a person may not act as a genetic counselor unless
359	359	that person is licensed under this chapter.
360	360	(b) Unless the person holds a license under this chapter, a
361	361	person may not use the title or represent or imply the person has
362	362	the title "genetic counselor," "certified genetic counselor,"
363	363	"licensed genetic counselor," "gene counselor," "genetic
364	364	consultant," or "genetic associate" or use any other word,
365	365	abbreviation, or insignia indicating or implying the person is a
366	366	licensed genetic counselor.
367	367	(c) Nothing in this chapter may be construed to prohibit a
368	368	physician or an employee or other person acting under the
369	369	physician's delegated authority from representing to a patient or
370	370	the public that the physician, employee, or person provides genetic
371	371	counseling.
372	372	Sec. 506.202. LICENSE APPLICATION. An applicant for a
373	373	license must:
374	374	(1) file a written application with the board on a form
375	375	prescribed by the board; and
376	376	(2) pay the application fee set by the board.
377	377	Sec. 506.203. LICENSE ELIGIBILITY. (a) To be eligible for
378	378	a license, a license applicant must demonstrate to the satisfaction
379	379	of the board that the applicant:
380	380	(1) is of good moral character;
381	381	(2) has not been convicted of a felony or a crime
382	382	involving moral turpitude;
383	383	(3) has not used drugs or alcohol to an extent that
384	384	affects the applicant's professional competency;
385	385	(4) has not had a certificate of registration or
386	386	license revoked by a licensing agency or by a certifying
387	387	professional organization; and
388	388	(5) has not engaged in fraud or deceit in applying for
389	389	a license under this chapter.
390	390	(b) In addition to meeting the requirements of Subsection
391	391	(a), an applicant must:
392	392	(1) successfully complete the examination required by
393	393	Section 506.204;
394	394	(2) have successfully completed:
395	395	(A) a master's degree in a genetic counseling
396	396	training program that is approved by the board and that is at least
397	397	as stringent as a genetic counseling training program accredited by
398	398	the American Board of Genetic Counselors; or
399	399	(B) a master's degree in a medical genetics
400	400	training program that is approved by the board and that is at least
401	401	as stringent as a medical genetics training program accredited by
402	402	the American Board of Medical Genetics; and
403	403	(3) meet any other requirement prescribed by the
404	404	board.
405	405	Sec. 506.204. EXAMINATION. (a) An applicant for a license
406	406	under this chapter must successfully complete an examination
407	407	approved by the board that demonstrates the applicant's knowledge
408	408	of genetic counseling.
409	409	(b) The board shall adopt rules to govern the development
410	410	and administration of an examination for a license as a genetic
411	411	counselor under this chapter. Any written portion of the
412	412	examination must be validated by an independent testing
413	413	professional.
414	414	Sec. 506.205. TEMPORARY LICENSE. (a) The board may,
415	415	through the executive director, issue a temporary license to an
416	416	applicant who:
417	417	(1) submits an application on a form prescribed by the
418	418	board;
419	419	(2) has successfully completed the examination
420	420	required by the board;
421	421	(3) pays the appropriate fee set by the board; and
422	422	(4) meets all the qualifications for a license under
423	423	this chapter and is waiting for the next scheduled meeting of the
424	424	board for the license to be issued.
425	425	(b) A temporary license is valid until the 100th day after
426	426	the date issued and may be extended until the 130th day after the
427	427	date issued.
428	428	Sec. 506.206. ISSUANCE AND RENEWAL OF LICENSE. The board
429	429	shall issue a license as a genetic counselor to a person who meets
430	430	the requirements of this chapter and the rules adopted under this
431	431	chapter.
432	432	Sec. 506.207. TERM; RENEWAL. (a) A license as a genetic
433	433	counselor expires on the second anniversary of the date of
434	434	issuance. The board by rule shall provide for the renewal of a
435	435	license as a genetic counselor.
436	436	(b) The board by rule may adopt a system under which
437	437	licenses expire on various dates during the year. For the year in
438	438	which the license expiration date is changed, license fees shall be
439	439	prorated on a monthly basis so that each license holder pays only
440	440	that portion of the license fee that is allocable to the number of
441	441	months during which the license or license renewal is valid. On
442	442	renewal of the license on the new expiration date, the total license
443	443	renewal fee is payable.
444	444	Sec. 506.208. NOTICE OF LICENSE RENEWAL. At least 30 days
445	445	before the expiration of a person's license, the board shall send
446	446	written notice of the impending license expiration to the license
447	447	holder's last known address according to the records of the board.
448	448	Sec. 506.209. PROCEDURE FOR RENEWAL. (a) A person who is
449	449	otherwise eligible to renew a license may renew an unexpired
450	450	license by paying the required renewal fee to the board before the
451	451	expiration date of the license. A person whose license has expired
452	452	may not engage in activities that require a license.
453	453	(b) If the person's license has been expired for 90 days or
454	454	less, the person may renew the license by paying to the board one
455	455	and one-half times the required renewal fee.
456	456	(c) If the person's license has been expired for longer than
457	457	90 days but less than one year, the person may renew the license by
458	458	paying to the board two times the required renewal fee.
459	459	(d) If the person's license has been expired for one year or
460	460	longer, the person may not renew the license. The person may obtain
461	461	a new license by complying with the requirements and procedures for
462	462	obtaining an original license.
463	463	[Sections 506.210-506.300 reserved for expansion]
464	464	SUBCHAPTER F. DISCIPLINARY PROCEEDINGS
465	465	Sec. 506.301. DISCIPLINARY ACTIONS BY BOARD. (a) On a
466	466	determination that an applicant or license holder committed an act
467	467	or attempted to commit an act described by Section 506.302,
468	468	506.303, or 506.304, the board by order may take any of the
469	469	following actions:
470	470	(1) deny the person's license application or revoke
471	471	the person's license;
472	472	(2) require the person to complete additional
473	473	training;
474	474	(3) stay the enforcement of an order and place the
475	475	person on probation;
476	476	(4) require the person to submit to the care,
477	477	counseling, or treatment of a health care practitioner designated
478	478	by the board;
479	479	(5) suspend, limit, or restrict the person's license,
480	480	including:
481	481	(A) limiting the practice of the person to, or
482	482	excluding from the person's practice, one or more of the specified
483	483	activities of genetic counseling; or
484	484	(B) stipulating periodic board review;
485	485	(6) assess an administrative penalty against the
486	486	person as provided by Section 506.351; or
487	487	(7) administer a public reprimand.
488	488	(b) If the board stays enforcement of an order and places a
489	489	person on probation, the board retains the right to vacate the
490	490	probationary stay and enforce the original order for noncompliance
491	491	with the terms of probation or impose any other remedial measure or
492	492	sanction authorized by this section.
493	493	(c) The board may restore or reissue a license or remove any
494	494	disciplinary or corrective measure that the board has imposed.
495	495	Sec. 506.302. CONDUCT RELATED TO MISREPRESENTATION OR
496	496	FRAUD. The board may take action under Section 506.301 against an
497	497	applicant or a license holder who:
498	498	(1) fraudulently or deceptively obtains or attempts to
499	499	obtain a license;
500	500	(2) fraudulently or deceptively uses a license;
501	501	(3) falsely represents that the person is a physician,
502	502	nurse, physician assistant, or other licensed health care provider;
503	503	(4) acts in an unprofessional or dishonorable manner
504	504	that is likely to deceive, defraud, or injure the public;
505	505	(5) fraudulently alters any license;
506	506	(6) uses any genetic counselor license that has been
507	507	fraudulently purchased, issued, or counterfeited or that has been
508	508	materially altered;
509	509	(7) directly or indirectly aids or abets the practice
510	510	of genetic counseling by any person not licensed by the board to
511	511	practice as a genetic counselor; or
512	512	(8) unlawfully advertises in a false, misleading, or
513	513	deceptive manner as defined in Section 101.201.
514	514	Sec. 506.303. CONDUCT RELATED TO VIOLATION OF LAW.
515	515	(a) The board may take action under Section 506.301 against an
516	516	applicant or license holder who:
517	517	(1) violates this chapter or a rule adopted under this
518	518	chapter;
519	519	(2) is convicted of a felony, placed on deferred
520	520	adjudication, or placed in a pretrial diversion program; or
521	521	(3) violates state law if the violation is connected
522	522	with the practice of genetic counseling.
523	523	(b) A complaint, indictment, or conviction of a law
524	524	violation is not necessary for the board to act under Subsection
525	525	(a)(3). Proof of the commission of the act while in practice as a
526	526	genetic counselor or under the guise of a genetic counselor is
527	527	sufficient for action by the board.
528	528	Sec. 506.304. CONDUCT INDICATING LACK OF FITNESS. (a) The
529	529	board may take action under Section 506.301 against an applicant or
530	530	license holder who:
531	531	(1) habitually uses drugs or intoxicating liquors to
532	532	the extent that, in the board's opinion, the person cannot safely
533	533	act as a genetic counselor;
534	534	(2) has been adjudicated as mentally incompetent;
535	535	(3) has a mental or physical condition that renders
536	536	the person unable to safely act as a genetic counselor;
537	537	(4) has committed an act of moral turpitude;
538	538	(5) has failed to practice as a genetic counselor in an
539	539	acceptable manner consistent with public health and welfare;
540	540	(6) has had the person's license or other
541	541	authorization to practice as a genetic counselor suspended,
542	542	revoked, or restricted;
543	543	(7) has had other disciplinary action taken by another
544	544	state regarding the practice of genetic counseling;
545	545	(8) was removed or suspended or has had disciplinary
546	546	action taken by the person's peers in any professional association
547	547	or society, if that action, in the opinion of the board, was based
548	548	on unprofessional conduct or professional incompetence that was
549	549	likely to harm the public;
550	550	(9) has repeated or recurring meritorious
551	551	professional liability claims that, in the board's opinion, are
552	552	evidence of professional incompetence likely to harm the public; or
553	553	(10) sexually abuses or exploits another person during
554	554	the license holder's practice as a genetic counselor.
555	555	(b) An action described by Subsection (a)(8) does not
556	556	constitute state action on the part of the association or society.
557	557	Sec. 506.305. SUBPOENA. (a) The executive director, the
558	558	director's designee, or the secretary-treasurer of the board may
559	559	issue a subpoena or subpoena duces tecum:
560	560	(1) to conduct an investigation or a contested case
561	561	proceeding related to:
562	562	(A) alleged misconduct by a genetic counselor;
563	563	(B) an alleged violation of this chapter or
564	564	another law related to the practice of a genetic counselor; or
565	565	(C) the practice of genetic counseling under this
566	566	chapter;
567	567	(2) for purposes of determining whether to issue,
568	568	suspend, restrict, or revoke a license under this chapter; or
569	569	(3) for purposes of determining whether to issue or
570	570	deny a license under this chapter.
571	571	(b) Failure to timely comply with a subpoena issued under
572	572	this section is a ground for:
573	573	(1) disciplinary action by the board or another
574	574	licensing or regulatory agency with jurisdiction over the person
575	575	subject to the subpoena; and
576	576	(2) denial of a license or license application.
577	577	Sec. 506.306. PROTECTION OF PATIENT IDENTITY. In a
578	578	disciplinary investigation or proceeding conducted under this
579	579	chapter, the board shall protect the identity of each patient whose
580	580	medical records are examined and used in a public proceeding unless
581	581	the patient:
582	582	(1) testifies in a public proceeding; or
583	583	(2) submits to the board a written release in regard to
584	584	the patient's record or identity.
585	585	Sec. 506.307. RULES FOR DISCIPLINARY PROCEEDINGS. Rules of
586	586	practice adopted under this chapter by the board under Section
587	587	2001.004, Government Code, applicable to the proceedings for a
588	588	disciplinary action may not conflict with rules adopted by the
589	589	State Office of Administrative Hearings.
590	590	Sec. 506.308. REQUIRED SUSPENSION OF INCARCERATED GENETIC
591	591	COUNSELOR. Regardless of the offense, the board shall suspend the
592	592	license of a genetic counselor serving a prison term in a state or
593	593	federal penitentiary during the term of the incarceration.
594	594	Sec. 506.309. TEMPORARY SUSPENSION. (a) The president of
595	595	the board, with board approval, shall appoint a three-member
596	596	disciplinary panel consisting of board members to determine whether
597	597	a genetic counselor's license should be temporarily suspended.
598	598	(b) If the disciplinary panel determines from the evidence
599	599	or information presented to the panel that a person licensed to
600	600	practice as a genetic counselor would, by continuing in practice,
601	601	constitute a threat to the public welfare, the disciplinary panel
602	602	shall temporarily suspend the license of that person.
603	603	(c) A license may be suspended under this section without
604	604	notice or hearing on the complaint if:
605	605	(1) institution of proceedings for a hearing before
606	606	the board is initiated simultaneously with the temporary
607	607	suspension; and
608	608	(2) a hearing is held under Chapter 2001, Government
609	609	Code, and this chapter as soon as possible.
610	610	(d) Notwithstanding Chapter 551, Government Code, the
611	611	disciplinary panel may hold a meeting by telephone conference call
612	612	if immediate action is required and convening the disciplinary
613	613	panel at one location is inconvenient for any member of the panel.
614	614	Sec. 506.310. INFORMAL PROCEEDINGS. (a) The board by rule
615	615	shall adopt procedures under this chapter governing:
616	616	(1) informal disposition of a contested case under
617	617	Section 2001.056, Government Code; and
618	618	(2) informal proceedings held in compliance with
619	619	Section 2001.054, Government Code.
620	620	(b) Rules adopted under this section must require that:
621	621	(1) an informal meeting in compliance with Section
622	622	2001.054, Government Code, be scheduled not later than the 180th
623	623	day after the date the board's official investigation of the
624	624	complaint is commenced, unless good cause is shown by the board for
625	625	scheduling the informal meeting after that date;
626	626	(2) the board give notice to the license holder of the
627	627	time and place of the meeting not later than the 30th day before the
628	628	date the meeting is held;
629	629	(3) the complainant and the license holder be provided
630	630	an opportunity to be heard;
631	631	(4) at least one of the board members or committee
632	632	members participating in the informal meeting as a member of the
633	633	disciplinary panel be a member who represents the public;
634	634	(5) the board's legal counsel or a representative of
635	635	the attorney general be present to advise the board or the board's
636	636	staff; and
637	637	(6) a member of the board's staff be at the meeting to
638	638	present to the panel the facts that the staff reasonably believes
639	639	could be proven by competent evidence or qualified witnesses at a
640	640	hearing.
641	641	(c) An affected genetic counselor is entitled, orally or in
642	642	writing, to:
643	643	(1) reply to the staff's presentation; and
644	644	(2) present the facts the genetic counselor reasonably
645	645	believes the genetic counselor could prove by competent evidence or
646	646	qualified witnesses at a hearing.
647	647	(d) After ample time is given for the presentations, the
648	648	board panel shall recommend that the investigation be closed or
649	649	shall attempt to mediate the disputed matters and make a
650	650	recommendation regarding the disposition of the case in the absence
651	651	of a hearing under applicable law concerning contested cases.
652	652	(e) If the license holder has previously been the subject of
653	653	disciplinary action by the board, the board shall schedule the
654	654	informal meeting as soon as practicable but not later than the
655	655	deadline prescribed by Subsection (b)(1).
656	656	Sec. 506.311. ROLES AND RESPONSIBILITIES OF PARTICIPANT IN
657	657	INFORMAL PROCEEDINGS. (a) A board or committee member that serves
658	658	as a panelist at an informal meeting under Section 506.310 shall
659	659	make recommendations for the disposition of a complaint or
660	660	allegation. The member may request the assistance of a board
661	661	employee at any time.
662	662	(b) Board employees shall present a summary of the
663	663	allegations against the affected genetic counselor and offer the
664	664	facts pertaining to the allegation that the employees reasonably
665	665	believe may be proven by competent evidence at a formal hearing.
666	666	(c) A board attorney shall act as counsel to the panel and,
667	667	notwithstanding Subsection (e), shall be present during the
668	668	informal meeting and the panel's deliberation to advise the panel
669	669	on legal issues that arise during the proceeding. The attorney may
670	670	ask questions of participants in the informal meeting to clarify
671	671	any statement made by the participant.
672	672	(d) The attorney shall provide to the panel a historical
673	673	perspective on comparable cases that have appeared before the
674	674	board, keep the proceedings focused on the case being discussed,
675	675	and ensure that the board's employees and the affected genetic
676	676	counselor have an opportunity to present information related to the
677	677	case.
678	678	(e) During the panel's deliberations, the attorney may be
679	679	present only to advise the panel on legal issues and to provide
680	680	information on comparable cases that have appeared before the
681	681	board.
682	682	[Sections 506.312-506.350 reserved for expansion]
683	683	SUBCHAPTER G. ADMINISTRATIVE PENALTY
684	684	Sec. 506.351. ADMINISTRATIVE PENALTY. (a) The board by
685	685	order may impose an administrative penalty against a person
686	686	licensed under this chapter who violates this chapter or a rule or
687	687	order adopted under this chapter.
688	688	(b) The penalty may be in an amount not to exceed $5,000.
689	689	Each day a violation continues or occurs is a separate violation for
690	690	purposes of imposing a penalty.
691	691	(c) The board shall base the amount of the penalty on:
692	692	(1) the severity of patient harm;
693	693	(2) the severity of economic harm to any person;
694	694	(3) the increased potential of harm to the public;
695	695	(4) any attempted concealment of misconduct;
696	696	(5) the motive for the violation;
697	697	(6) any prior misconduct of a similar or related
698	698	nature;
699	699	(7) the license holder's disciplinary history;
700	700	(8) any prior written warning or written admonishments
701	701	from any government agency or official regarding statutes or rules
702	702	relating to the misconduct;
703	703	(9) whether the violation is of a board order;
704	704	(10) the person's failure to implement remedial
705	705	measures to correct or mitigate harm from the misconduct;
706	706	(11) the person's lack of rehabilitative potential or
707	707	likelihood of future misconduct of a similar nature;
708	708	(12) any relevant circumstances increasing the
709	709	seriousness of the misconduct; or
710	710	(13) any other matter that justice may require.
711	711	Sec. 506.352. NOTICE OF VIOLATION AND PENALTY. If the board
712	712	by order determines that a violation has occurred and imposes an
713	713	administrative penalty, the board shall give notice to the person
714	714	of the order. The notice must include a statement of the person's
715	715	right to judicial review of the order.
716	716	Sec. 506.353. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
717	717	(a) Not later than the 30th day after the date the board's order
718	718	imposing the administrative penalty is final, the person shall:
719	719	(1) pay the penalty;
720	720	(2) pay the penalty and file a petition for judicial
721	721	review contesting the occurrence of the violation, the amount of
722	722	the penalty, or both; or
723	723	(3) without paying the penalty, file a petition for
724	724	judicial review contesting the occurrence of the violation, the
725	725	amount of the penalty, or both.
726	726	(b) Within the 30-day period, a person who acts under
727	727	Subsection (a)(3) may:
728	728	(1) stay the enforcement of the penalty by:
729	729	(A) paying the penalty to the court for placement
730	730	in an escrow account; or
731	731	(B) giving the court a supersedeas bond approved
732	732	by the court for the amount of the penalty and that is effective
733	733	until all judicial review of the board's order is final; or
734	734	(2) request the court to stay enforcement of the
735	735	penalty by:
736	736	(A) filing with the court an affidavit of the
737	737	person stating that the person is financially unable to pay the
738	738	penalty and is financially unable to give the supersedeas bond; and
739	739	(B) giving a copy of the affidavit to the
740	740	executive director by certified mail.
741	741	(c) If the executive director receives a copy of an
742	742	affidavit under Subsection (b)(2), the executive director may file
743	743	with the court a contest to the affidavit not later than the fifth
744	744	day after the date the copy is received.
745	745	(d) The court shall hold a hearing on the facts alleged in
746	746	the affidavit as soon as practicable and shall stay the enforcement
747	747	of the penalty on finding that the alleged facts are true. The
748	748	person who files an affidavit has the burden of proving that the
749	749	person is financially unable to pay the penalty and to give a
750	750	supersedeas bond.
751	751	Sec. 506.354. COLLECTION OF PENALTY. If the person does not
752	752	pay the administrative penalty and the enforcement of the penalty
753	753	is not stayed, the executive director may refer the matter to the
754	754	attorney general for collection of the penalty.
755	755	Sec. 506.355. DETERMINATION BY COURT. (a) If on appeal
756	756	the court sustains the determination that a violation occurred, the
757	757	court may uphold or reduce the amount of the administrative penalty
758	758	and order the person to pay the full or reduced penalty.
759	759	(b) If the court does not sustain the determination that a
760	760	violation occurred, the court shall order that a penalty is not
761	761	owed.
762	762	Sec. 506.356. REMITTANCE OF PENALTY AND INTEREST. (a) If
763	763	after judicial review the administrative penalty is reduced or not
764	764	imposed by the court, the court shall, after the judgment becomes
765	765	final:
766	766	(1) order that the appropriate amount, plus accrued
767	767	interest, be remitted to the person if the person paid the penalty;
768	768	or
769	769	(2) order the release of the bond in full if the
770	770	penalty is not imposed or order the release of the bond after the
771	771	person pays the penalty imposed if the person posted a supersedeas
772	772	bond.
773	773	(b) The interest paid under Subsection (a)(1) is a rate
774	774	charged on loans to depository institutions by the New York Federal
775	775	Reserve Bank. The interest is paid for the period beginning on the
776	776	date the penalty is paid and ending on the date the penalty is
777	777	remitted.
778	778	[Sections 506.357-506.400 reserved for expansion]
779	779	SUBCHAPTER H. INJUNCTIVE RELIEF
780	780	Sec. 506.401. INJUNCTIVE AUTHORITY. In addition to any
781	781	other action authorized by law, the board may institute an action in
782	782	its own name to enjoin a violation of this chapter.
783	783	SECTION 2. (a) Not later than October 1, 2009, the
784	784	president of the Texas Medical Board shall appoint the members of
785	785	the licensed genetic counselor advisory committee created under
786	786	Chapter 506, Occupations Code, as added by this Act.
787	787	(b) The Texas Medical Board shall adopt rules under Chapter
788	788	506, Occupations Code, as added by this Act, not later than June 30,
789	789	2010.
790	790	SECTION 3. (a) Except as provided by Subsection (b) of this
791	791	Section, this Act takes effect September 1, 2009.
792	792	(b) Section 506.201, Occupations Code, as added by this Act,
793	793	and Subchapters F, G, and H, Chapter 506, Occupations Code, as added
794	794	by this Act, take effect July 1, 2010.