Texas 2009 - 81st Regular

Texas Senate Bill SB2336 Compare Versions

Only one version of the bill is available at this time.

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1	1	2009S0697-1 03/12/09
2	2	By: Patrick S.B. No. 2336
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the powers and duties of the Texas Medical Board and the
8	8	creation of a commission to advise the board.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subsection (a), Section 152.002, Occupations
11	11	Code, is amended to read as follows:
12	12	(a) The board consists of 19 members appointed by the
13	13	governor with the advice and consent of the senate as follows:
14	14	(1) twelve members who are learned and eminent
15	15	physicians licensed in this state for at least five [three] years
16	16	before the appointment, nine of whom must be graduates of a
17	17	reputable medical school or college with a degree of doctor of
18	18	medicine (M.D.) and three of whom must be graduates of a reputable
19	19	medical school or college with a degree of doctor of osteopathic
20	20	medicine (D.O.); and
21	21	(2) seven members who represent the public.
22	22	SECTION 2. Section 152.003, Occupations Code, is amended by
23	23	amending Subsection (b) and adding Subsections (e) and (f) to read
24	24	as follows:
25	25	(b) A person may not be a public member of the board if the
26	26	person or the person's spouse:
27	27	(1) is registered, certified, or licensed by a
28	28	regulatory agency in the field of health care;
29	29	(2) is employed by or participates in the management
30	30	of a business entity or other organization regulated by or
31	31	receiving money from the board;
32	32	(3) owns or controls, directly or indirectly, more
33	33	than a 10 percent interest in a business entity or other
34	34	organization regulated by or receiving money from the board;
35	35	(4) uses or receives a substantial amount of tangible
36	36	goods, services, or money from the board other than compensation or
37	37	reimbursement authorized by law for board membership, attendance,
38	38	or expenses; [or]
39	39	(5) is a provider of health care; or
40	40	(6) would not be in full compliance with Section
41	41	572.051, Government Code, if the person or the person's spouse were
42	42	an employee of the state.
43	43	(e) A person may not be a member of the board if the person
44	44	or someone related to the person within the second degree by
45	45	consanguinity would not be in full compliance with Section 572.051,
46	46	Government Code, if the person were an employee of the state.
47	47	(f) A person may not be a member of the board if the person
48	48	or someone related to the person within the second degree by
49	49	consanguinity receives compensation from an entity, other than a
50	50	medical practice, that has a financial interest in common with or
51	51	adverse to a license holder, including an insurance company, health
52	52	care regulatory agency, pharmaceutical company, or medical
53	53	malpractice attorney.
54	54	SECTION 3. Subchapter A, Chapter 152, Occupations Code, is
55	55	amended by adding Section 152.011 to read as follows:
56	56	Sec. 152.011. ADVISORY COMMISSION. (a) The advisory
57	57	commission consists of six members as follows:
58	58	(1) three members appointed by the governor from a
59	59	list of nominees submitted by the speaker of the house of
60	60	representatives; and
61	61	(2) three members appointed by the lieutenant
62	62	governor.
63	63	(b) Of the appointed members:
64	64	(1) one member must be a graduate of a reputable
65	65	medical school or college with a degree of doctor of medicine or
66	66	doctor of osteopathic medicine;
67	67	(2) one member must be a graduate of a reputable law
68	68	school or college with a degree in law; and
69	69	(3) four members must represent the public.
70	70	(c) Appointments to the advisory commission shall be made
71	71	without regard to the race, color, disability, sex, religion, age,
72	72	or national origin of the appointee.
73	73	(d) Members of the advisory commission serve two-year
74	74	terms.
75	75	(e) The advisory commission shall receive and investigate
76	76	complaints by patients and license holders concerning the
77	77	operations of and disciplinary actions taken by the board. The
78	78	advisory commission shall hold public hearings at least four times
79	79	each year. The board shall comply with requests for information by
80	80	and for testimony before the advisory commission for the purpose of
81	81	oversight.
82	82	(f) Not later than December 31 of each year, the advisory
83	83	commission shall provide a report to the members of the legislature
84	84	and the governor regarding the operation of the board.
85	85	(g) The advisory commission may adopt rules as necessary to:
86	86	(1) govern its proceedings;
87	87	(2) perform its duties; and
88	88	(3) enforce its authority under this section.
89	89	SECTION 4. Subsection (a), Section 152.051, Occupations
90	90	Code, is amended to read as follows:
91	91	(a) The board shall appoint an executive director, who may
92	92	serve only while the person is a physician licensed in good standing
93	93	in this state. The executive director serves as the chief executive
94	94	and administrative officer of the board.
95	95	SECTION 5. Subsection (a), Section 154.002, Occupations
96	96	Code, is amended to read as follows:
97	97	(a) The board shall prepare:
98	98	(1) an alphabetical list of the names of the license
99	99	holders;
100	100	(2) an alphabetical list of the names of the license
101	101	holders by the county in which the license holder's principal place
102	102	of practice is located;
103	103	(3) a summary of the board's functions;
104	104	(4) a copy of this subtitle and a list of other laws
105	105	relating to the practice of medicine;
106	106	(5) a copy of the board's rules;
107	107	(6) a statistical report each fiscal year to the
108	108	legislature and the public that provides aggregate information
109	109	about all complaints received by the board categorized by type of
110	110	complaint, including administrative, quality of care, medical
111	111	error, substance abuse, other criminal behavior, and the
112	112	disposition of those complaints by category; [and]
113	113	(7) a list of the names of all persons who served on an
114	114	informal settlement conference panel during the preceding year and
115	115	the number of informal settlement conference panels on which each
116	116	person served; and
117	117	(8) other information considered appropriate by the
118	118	board.
119	119	SECTION 6. Section 154.051, Occupations Code, is amended by
120	120	amending Subsection (c) and adding Subsections (d), (e), and (f) to
121	121	read as follows:
122	122	(c) A person, including a person acting on behalf of a
123	123	partnership, association, corporation, or other entity, may file a
124	124	complaint against a license holder with the board by swearing under
125	125	oath to the truth of the statements in the complaint. If the person
126	126	filing the complaint is not a patient, then that person must report
127	127	the person's employment status and the business for whom the person
128	128	works. The board may file a complaint on its own initiative based
129	129	only on good cause.
130	130	(d) The board shall, when appropriate, encourage each
131	131	person with a complaint to attempt to resolve the complaint with the
132	132	license holder directly before filing a formal complaint with the
133	133	board. Preprinted complaint forms provided by the board must
134	134	include a prominent statement encouraging persons with complaints
135	135	to attempt to resolve their complaints directly with the physician,
136	136	when appropriate, before filing a formal complaint with the board.
137	137	(e) The board may not consider or act on a complaint
138	138	involving care provided more than four years before the date the
139	139	complaint is filed.
140	140	(f) Notwithstanding any other law, a person may not receive
141	141	civil, criminal, or regulatory immunity as a result of filing a
142	142	complaint if the complaint is filed with malice or with an
143	143	anticompetitive purpose.
144	144	SECTION 7. Subsection (a), Section 154.053, Occupations
145	145	Code, is amended to read as follows:
146	146	(a) The board shall notify by personal delivery or certified
147	147	mail a physician who is the subject of a complaint filed with the
148	148	board that a complaint has been filed and shall provide [notify] the
149	149	physician with a copy [of the nature] of the complaint without
150	150	redaction unless there is a risk of harm to the public or unless it
151	151	[the notice] would jeopardize a criminal [an] investigation. In
152	152	all cases, the physician must be given a statement of the alleged
153	153	violation in plain language. In the case of redaction of
154	154	identifying information from the complaint, the physician may
155	155	initiate a proceeding with the State Office of Administrative
156	156	Hearings for a determination of the validity of the redaction.
157	157	SECTION 8. Section 154.056, Occupations Code, is amended by
158	158	amending Subsections (a), (b), and (e) and adding Subsection (e-1)
159	159	to read as follows:
160	160	(a) The board shall adopt rules concerning the
161	161	investigation and review of a complaint filed with the board. The
162	162	rules adopted under this section must:
163	163	(1) distinguish among categories of complaints and
164	164	give priority to complaints that involve sexual misconduct, quality
165	165	of care, and impaired physician issues;
166	166	(2) ensure that a complaint is not dismissed without
167	167	appropriate consideration;
168	168	(3) require that the board be advised of the dismissal
169	169	of a complaint and that a letter be sent to the person who filed the
170	170	complaint and to the physician who was the subject of the complaint
171	171	explaining the action taken on the complaint;
172	172	(4) ensure that a person who files a complaint has an
173	173	opportunity to explain the allegations made in the complaint;
174	174	(5) ensure that a physician who is the subject of a
175	175	complaint has at least 30 days after receiving a copy of the
176	176	complaint as provided by Section 154.053(a) to prepare and submit a
177	177	response;
178	178	(6) prescribe guidelines concerning the categories of
179	179	complaints that require the use of a private investigator and the
180	180	procedures for the board to obtain the services of a private
181	181	investigator;
182	182	(7) [(6)] provide for an expert physician panel
183	183	authorized under Subsection (e) to assist with complaints and
184	184	investigations relating to medical competency; and
185	185	(8) [(7)] require the review of reports filed with the
186	186	National Practitioner Data Bank for any report of the termination,
187	187	limitation, suspension, limitation in scope of practice, or
188	188	probation of clinical or hospital staff privileges of a physician
189	189	by:
190	190	(A) a hospital;
191	191	(B) a health maintenance organization;
192	192	(C) an independent practice association;
193	193	(D) an approved nonprofit health corporation
194	194	certified under Section 162.001; or
195	195	(E) a physician network.
196	196	(b) The board shall:
197	197	(1) dispose of each complaint in a timely manner; and
198	198	(2) establish a schedule for conducting each phase of
199	199	a complaint that is under the control of the board not later than
200	200	the 30th day after the date the physician's time for preparing and
201	201	submitting a response expires [board receives the complaint].
202	202	(e) The board by rule shall provide for an expert physician
203	203	panel appointed by the board to assist with complaints and
204	204	investigations relating to medical competency by acting as expert
205	205	physician reviewers. Each member of the expert physician panel
206	206	must be actively practicing [licensed to practice] medicine in this
207	207	state. The rules adopted under this subsection must include
208	208	provisions governing the composition of the panel, qualifications
209	209	for membership on the panel, length of time a member may serve on
210	210	the panel, grounds for removal from the panel, the avoidance of
211	211	conflicts of interest, including situations in which the affected
212	212	physician and the panel member live or work in the same geographical
213	213	area or are competitors, and the duties to be performed by the
214	214	panel. The board's rules governing grounds for removal from the
215	215	panel must include providing for the removal of a panel member who
216	216	is repeatedly delinquent in reviewing complaints and in submitting
217	217	reports to the board. The board's rules governing appointment of
218	218	expert physician panel members to act as expert physician reviewers
219	219	must include a requirement that the board randomly select, to the
220	220	extent permitted by Section 154.058(b) and the conflict of interest
221	221	provisions adopted under this subsection, panel members to review a
222	222	complaint.
223	223	(e-1) The board shall review a report concerning a
224	224	physician's medical competency prepared by an expert physician
225	225	reviewer at the request of the physician who is the subject of the
226	226	complaint.
227	227	SECTION 9. Section 154.0561, Occupations Code, is amended
228	228	by amending Subsections (b) and (c) and adding Subsection (e) to
229	229	read as follows:
230	230	(b) A second expert physician reviewer shall independently
231	231	review [the first physician's preliminary report and other]
232	232	information associated with the complaint. The review by the
233	233	second expert shall be independent of the first review, without
234	234	knowledge by the second reviewer of the identity of the first
235	235	reviewer, and without any communication between the two reviewers.
236	236	If the second expert physician reviewer agrees with the first
237	237	expert physician reviewer, the first reviewer [physician] shall
238	238	issue a final written report on the matter.
239	239	(c) If the second expert physician reviewer does not agree
240	240	with the conclusions of the first expert physician reviewer, then
241	241	the physician who is the subject of the complaint shall be notified
242	242	of the conflict and provided with copies of the conflicting
243	243	reports. A [a] third expert physician reviewer shall review the
244	244	reports of both expert witnesses and all information related to the
245	245	complaint [preliminary report and information] and decide between
246	246	the conclusions reached by the first two expert physicians. The
247	247	final written report shall be issued by the third physician or the
248	248	physician with whom the third physician concurs and must include a
249	249	copy of the dissenting report.
250	250	(e) Before using a report under this section, the board
251	251	shall provide to the physician who is the subject of the complaint
252	252	the identity and qualifications of each expert physician reviewer
253	253	who reviewed the complaint.
254	254	SECTION 10. Section 154.058, Occupations Code, is amended
255	255	to read as follows:
256	256	Sec. 154.058. DETERMINATION OF MEDICAL COMPETENCY.
257	257	(a) Each complaint against a physician that requires a
258	258	determination of medical competency shall be reviewed initially by
259	259	a board member, consultant, or employee with a medical background
260	260	and engaged in an active practice in the same or similar specialty
261	261	as the physician in the year preceding the review [considered
262	262	sufficient by the board].
263	263	(b) If the initial review under Subsection (a) indicates
264	264	that an act by a physician falls below an acceptable standard of
265	265	care, the complaint shall be reviewed by an expert physician panel
266	266	authorized under Section 154.056(e) consisting of physicians who
267	267	have an active practice in the same specialty as the physician who
268	268	is the subject of the complaint. The identity of the members of the
269	269	expert panel shall be promptly disclosed to the physician who is the
270	270	subject of the complaint [or in another specialty that is similar to
271	271	the physician's specialty].
272	272	(c) The expert physician panel shall report in writing the
273	273	panel's determinations based on the review of the complaint under
274	274	Subsection (b). The report must specify the standard of care that
275	275	applies to the facts that are the basis of the complaint and the
276	276	clinical basis for the panel's determinations, including any
277	277	reliance on peer-reviewed journals, studies, or reports. To be
278	278	considered by the board, the report must be in the form of an
279	279	affidavit sworn under oath.
280	280	SECTION 11. Subsection (b), Section 160.005, Occupations
281	281	Code, is amended to read as follows:
282	282	(b) In a proceeding brought under this chapter or Chapter
283	283	158, 159, or 162, evidence may not be excluded on the ground that it
284	284	consists of a privileged communication unless it:
285	285	(1) is a communication between attorney and client; or
286	286	(2) concerns patient records and the patient objects
287	287	to this disclosure of the records for reasons of patient privacy, in
288	288	which case the physician is not required to disclose the records to
289	289	the board in the absence of a court order.
290	290	SECTION 12. Section 164.001, Occupations Code, is amended
291	291	by amending Subsections (b) and (c) and adding Subsections (k),
292	292	(l), (m), and (n) to read as follows:
293	293	(b) Except as otherwise provided by Sections 164.057 and
294	294	164.058, the board, on determining by clear and convincing evidence
295	295	that a person committed an act described by Sections 164.051
296	296	through 164.054, shall enter an order to:
297	297	(1) deny the person's application for a license or
298	298	other authorization to practice medicine;
299	299	(2) administer a public reprimand;
300	300	(3) suspend, limit, or restrict the person's license
301	301	or other authorization to practice medicine, including:
302	302	(A) limiting the practice of the person to or
303	303	excluding one or more specified activities of medicine; or
304	304	(B) stipulating periodic board review;
305	305	(4) revoke the person's license or other authorization
306	306	to practice medicine;
307	307	(5) require the person to submit to care, counseling,
308	308	or treatment of physicians designated by the board as a condition
309	309	for:
310	310	(A) the issuance or renewal of a license or other
311	311	authorization to practice medicine; or
312	312	(B) continued practice under a license;
313	313	(6) require the person to participate in an
314	314	educational or counseling program prescribed by the board;
315	315	(7) require the person to practice under the direction
316	316	of a physician designated by the board for a specified period;
317	317	(8) require the person to perform public service
318	318	considered appropriate by the board; or
319	319	(9) assess an administrative penalty against the
320	320	person as provided by Section 165.001.
321	321	(c) Notwithstanding Subsection (b), the board shall revoke,
322	322	suspend, or deny a physician's license if the board determines
323	323	based on clear and convincing evidence that, through the practice
324	324	of medicine, the physician poses a continuing threat to the public
325	325	welfare.
326	326	(k) A license holder may practice medicine in a manner
327	327	taught in a course accredited by the Accreditation Council for
328	328	Graduate Medical Education, the American Medical Association, or
329	329	the American Osteopathic Association.
330	330	(l) The board may not order or require a physician to
331	331	practice medicine in a particular manner, exercise the authority to
332	332	practice medicine, or direct anyone in the practice of medicine,
333	333	except by ordering that a physician not engage in a practice that
334	334	causes actual harm or an imminent risk of harm to a patient.
335	335	(m) The board may not impose a penalty, sanction, or other
336	336	disciplinary action that is different from the action recommended
337	337	by the panel in an informal proceeding under Section 164.0032(f)
338	338	and agreed upon by the license holder.
339	339	(n) Notwithstanding any other law, the board may not:
340	340	(1) involve itself in fee disputes or take
341	341	disciplinary action against a license holder for using the "fee for
342	342	service" method of billing; or
343	343	(2) take disciplinary action against a license holder
344	344	based upon the manner in which the license holder maintains the
345	345	license holder's office or records, unless the conduct has a
346	346	likelihood of causing an actual harm or an imminent risk of harm to
347	347	a patient.
348	348	SECTION 13. Subsection (c), Section 164.003, Occupations
349	349	Code, is amended to read as follows:
350	350	(c) An affected physician is entitled to:
351	351	(1) reply to the staff's presentation; [and]
352	352	(2) present the facts the physician reasonably
353	353	believes the physician could prove by competent evidence or
354	354	qualified witnesses at a hearing;
355	355	(3) receive notice at least 48 hours before a
356	356	proceeding of the identity of the panel members presiding over the
357	357	informal settlement conference proceedings; and
358	358	(3) audio or video record or arrange for transcription
359	359	of the informal settlement conference proceedings.
360	360	SECTION 14. Subsection (a), Section 164.0031, Occupations
361	361	Code, is amended to read as follows:
362	362	(a) In an informal meeting under Section 164.003 or an
363	363	informal hearing under Section 164.103, at least two panelists
364	364	shall be randomly appointed to determine whether an informal
365	365	disposition is appropriate. At least one of the panelists must be a
366	366	physician.
367	367	SECTION 15. Subsections (a-1) and (c), Section 164.007,
368	368	Occupations Code, are amended to read as follows:
369	369	(a-1) The decision of the State Office of Administrative
370	370	Hearings judge shall be binding on the board [The board may change a
371	371	finding of fact or conclusion of law or vacate or modify an order of
372	372	the administrative law judge only if the board makes a
373	373	determination required by Section 2001.058(e), Government Code].
374	374	(c) Each [complaint, adverse report,] investigation file,
375	375	[other] investigation report, and other investigative information
376	376	in the possession of or received or gathered by the board or its
377	377	employees or agents relating to a license holder, an application
378	378	for license, or a criminal investigation or proceeding is
379	379	privileged and confidential and is not subject to discovery,
380	380	subpoena, or other means of legal compulsion for release to anyone
381	381	other than the board or its employees or agents involved in
382	382	discipline of a license holder. For purposes of this subsection,
383	383	investigative information includes information relating to the
384	384	identity of, and a report made by, a physician performing or
385	385	supervising compliance monitoring for the board. Notwithstanding
386	386	any other provision of this subsection, a license holder may access
387	387	and obtain a copy of any information relating to the license holder.
388	388	SECTION 16. Section 164.009, Occupations Code, is amended
389	389	to read as follows:
390	390	Sec. 164.009. JUDICIAL REVIEW. (a) A person whose license
391	391	to practice medicine has been revoked or who is subject to other
392	392	disciplinary action by the board may appeal to a Travis County
393	393	district court not later than the 30th day after the date the board
394	394	decision is final. The district court may sustain a board
395	395	disciplinary action only on a finding by clear and convincing
396	396	evidence that the action was supported by facts and law.
397	397	(b) A person whose license to practice medicine has been
398	398	revoked is entitled to a jury trial.
399	399	SECTION 17. Subsection (a), Section 164.053, Occupations
400	400	Code, is amended to read as follows:
401	401	(a) For purposes of Section 164.052(a)(5), unprofessional
402	402	or dishonorable conduct likely to deceive or defraud the public
403	403	includes conduct in which a physician:
404	404	(1) commits an act that violates any state or federal
405	405	law if the act is connected with the physician's practice of
406	406	medicine;
407	407	(2) fails to keep complete and accurate records of
408	408	purchases and disposals of:
409	409	(A) drugs listed in Chapter 481, Health and
410	410	Safety Code; or
411	411	(B) controlled substances scheduled in the
412	412	Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
413	413	U.S.C. Section 801 et seq.);
414	414	(3) writes prescriptions for or dispenses to a person
415	415	who:
416	416	(A) is known to be an abuser of narcotic drugs,
417	417	controlled substances, or dangerous drugs; or
418	418	(B) the physician should have known was an abuser
419	419	of narcotic drugs, controlled substances, or dangerous drugs;
420	420	(4) writes false or fictitious prescriptions for:
421	421	(A) dangerous drugs as defined by Chapter 483,
422	422	Health and Safety Code; or
423	423	(B) controlled substances scheduled in Chapter
424	424	481, Health and Safety Code, or the Comprehensive Drug Abuse
425	425	Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
426	426	(5) prescribes or administers a drug or treatment that
427	427	is proven to be nontherapeutic in nature or proven to be
428	428	nontherapeutic in the manner the drug or treatment is administered
429	429	or prescribed and has a likelihood of harm to a patient;
430	430	(6) prescribes, administers, or dispenses in a manner
431	431	inconsistent with public health and welfare:
432	432	(A) dangerous drugs as defined by Chapter 483,
433	433	Health and Safety Code; or
434	434	(B) controlled substances scheduled in Chapter
435	435	481, Health and Safety Code, or the Comprehensive Drug Abuse
436	436	Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
437	437	(7) violates Section 311.0025, Health and Safety Code;
438	438	(8) fails to supervise adequately the activities of
439	439	those acting under the supervision of the physician; or
440	440	(9) delegates professional medical responsibility or
441	441	acts to a person if the delegating physician knows or has reason to
442	442	know that the person is not qualified by training, experience, or
443	443	licensure to perform the responsibility or acts.
444	444	SECTION 18. The changes in law made by this Act to
445	445	Subsection (a), Section 152.002, and Section 152.003, Occupations
446	446	Code, apply only to a person appointed to the Texas Medical Board on
447	447	or after the effective date of this Act. A person appointed before
448	448	the effective date of this Act is governed by the law in effect on
449	449	the date the appointment was made, and the former law is continued
450	450	in effect for that purpose.
451	451	SECTION 19. The changes in law made by this Act relating to
452	452	the Texas Medical Board's complaint procedures apply only to a
453	453	complaint filed on or after the effective date of this Act. A
454	454	complaint filed before the effective date of this Act is governed by
455	455	the law in effect on the date the complaint was filed, and the
456	456	former law is continued in effect for that purpose.
457	457	SECTION 20. The changes in law made by this Act relating to
458	458	the Texas Medical Board's disciplinary authority apply only to
459	459	conduct that occurs on or after the effective date of this Act.
460	460	Conduct that occurs before the effective date of this Act is
461	461	governed by the law in effect on the date the conduct occurred, and
462	462	the former law is continued in effect for that purpose.
463	463	SECTION 21. Not later than January 1, 2010, the governor and
464	464	lieutenant governor shall appoint the members of the advisory
465	465	commission under Section 152.011, Occupations Code, as added by
466	466	this Act.
467	467	SECTION 22. The change in law made by this Act to Subsection
468	468	(a), Section 152.051, Occupations Code, applies only to a person
469	469	appointed as executive director of the Texas Medical Board on or
470	470	after the effective date of this Act. A person appointed before the
471	471	effective date of this Act is governed by the law in effect when the
472	472	person was appointed, and the former law is continued in effect for
473	473	that purpose.
474	474	SECTION 23. This Act takes effect September 1, 2009.