2009S0697-1 03/12/09
By: Patrick S.B. No. 2336
A BILL TO BE ENTITLED
AN ACT
relating to the powers and duties of the Texas Medical Board and the
creation of a commission to advise the board.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (a), Section 152.002, Occupations
Code, is amended to read as follows:
(a) The board consists of 19 members appointed by the
governor with the advice and consent of the senate as follows:
(1) twelve members who are learned and eminent
physicians licensed in this state for at least five [three] years
before the appointment, nine of whom must be graduates of a
reputable medical school or college with a degree of doctor of
medicine (M.D.) and three of whom must be graduates of a reputable
medical school or college with a degree of doctor of osteopathic
medicine (D.O.); and
(2) seven members who represent the public.
SECTION 2. Section 152.003, Occupations Code, is amended by
amending Subsection (b) and adding Subsections (e) and (f) to read
as follows:
(b) A person may not be a public member of the board if the
person or the person's spouse:
(1) is registered, certified, or licensed by a
regulatory agency in the field of health care;
(2) is employed by or participates in the management
of a business entity or other organization regulated by or
receiving money from the board;
(3) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by or receiving money from the board;
(4) uses or receives a substantial amount of tangible
goods, services, or money from the board other than compensation or
reimbursement authorized by law for board membership, attendance,
or expenses; [or]
(5) is a provider of health care; or
(6) would not be in full compliance with Section
572.051, Government Code, if the person or the person's spouse were
an employee of the state.
(e) A person may not be a member of the board if the person
or someone related to the person within the second degree by
consanguinity would not be in full compliance with Section 572.051,
Government Code, if the person were an employee of the state.
(f) A person may not be a member of the board if the person
or someone related to the person within the second degree by
consanguinity receives compensation from an entity, other than a
medical practice, that has a financial interest in common with or
adverse to a license holder, including an insurance company, health
care regulatory agency, pharmaceutical company, or medical
malpractice attorney.
SECTION 3. Subchapter A, Chapter 152, Occupations Code, is
amended by adding Section 152.011 to read as follows:
Sec. 152.011. ADVISORY COMMISSION. (a) The advisory
commission consists of six members as follows:
(1) three members appointed by the governor from a
list of nominees submitted by the speaker of the house of
representatives; and
(2) three members appointed by the lieutenant
governor.
(b) Of the appointed members:
(1) one member must be a graduate of a reputable
medical school or college with a degree of doctor of medicine or
doctor of osteopathic medicine;
(2) one member must be a graduate of a reputable law
school or college with a degree in law; and
(3) four members must represent the public.
(c) Appointments to the advisory commission shall be made
without regard to the race, color, disability, sex, religion, age,
or national origin of the appointee.
(d) Members of the advisory commission serve two-year
terms.
(e) The advisory commission shall receive and investigate
complaints by patients and license holders concerning the
operations of and disciplinary actions taken by the board. The
advisory commission shall hold public hearings at least four times
each year. The board shall comply with requests for information by
and for testimony before the advisory commission for the purpose of
oversight.
(f) Not later than December 31 of each year, the advisory
commission shall provide a report to the members of the legislature
and the governor regarding the operation of the board.
(g) The advisory commission may adopt rules as necessary to:
(1) govern its proceedings;
(2) perform its duties; and
(3) enforce its authority under this section.
SECTION 4. Subsection (a), Section 152.051, Occupations
Code, is amended to read as follows:
(a) The board shall appoint an executive director, who may
serve only while the person is a physician licensed in good standing
in this state. The executive director serves as the chief executive
and administrative officer of the board.
SECTION 5. Subsection (a), Section 154.002, Occupations
Code, is amended to read as follows:
(a) The board shall prepare:
(1) an alphabetical list of the names of the license
holders;
(2) an alphabetical list of the names of the license
holders by the county in which the license holder's principal place
of practice is located;
(3) a summary of the board's functions;
(4) a copy of this subtitle and a list of other laws
relating to the practice of medicine;
(5) a copy of the board's rules;
(6) a statistical report each fiscal year to the
legislature and the public that provides aggregate information
about all complaints received by the board categorized by type of
complaint, including administrative, quality of care, medical
error, substance abuse, other criminal behavior, and the
disposition of those complaints by category; [and]
(7) a list of the names of all persons who served on an
informal settlement conference panel during the preceding year and
the number of informal settlement conference panels on which each
person served; and
(8) other information considered appropriate by the
board.
SECTION 6. Section 154.051, Occupations Code, is amended by
amending Subsection (c) and adding Subsections (d), (e), and (f) to
read as follows:
(c) A person, including a person acting on behalf of a
partnership, association, corporation, or other entity, may file a
complaint against a license holder with the board by swearing under
oath to the truth of the statements in the complaint. If the person
filing the complaint is not a patient, then that person must report
the person's employment status and the business for whom the person
works. The board may file a complaint on its own initiative based
only on good cause.
(d) The board shall, when appropriate, encourage each
person with a complaint to attempt to resolve the complaint with the
license holder directly before filing a formal complaint with the
board. Preprinted complaint forms provided by the board must
include a prominent statement encouraging persons with complaints
to attempt to resolve their complaints directly with the physician,
when appropriate, before filing a formal complaint with the board.
(e) The board may not consider or act on a complaint
involving care provided more than four years before the date the
complaint is filed.
(f) Notwithstanding any other law, a person may not receive
civil, criminal, or regulatory immunity as a result of filing a
complaint if the complaint is filed with malice or with an
anticompetitive purpose.
SECTION 7. Subsection (a), Section 154.053, Occupations
Code, is amended to read as follows:
(a) The board shall notify by personal delivery or certified
mail a physician who is the subject of a complaint filed with the
board that a complaint has been filed and shall provide [notify] the
physician with a copy [of the nature] of the complaint without
redaction unless there is a risk of harm to the public or unless it
[the notice] would jeopardize a criminal [an] investigation. In
all cases, the physician must be given a statement of the alleged
violation in plain language. In the case of redaction of
identifying information from the complaint, the physician may
initiate a proceeding with the State Office of Administrative
Hearings for a determination of the validity of the redaction.
SECTION 8. Section 154.056, Occupations Code, is amended by
amending Subsections (a), (b), and (e) and adding Subsection (e-1)
to read as follows:
(a) The board shall adopt rules concerning the
investigation and review of a complaint filed with the board. The
rules adopted under this section must:
(1) distinguish among categories of complaints and
give priority to complaints that involve sexual misconduct, quality
of care, and impaired physician issues;
(2) ensure that a complaint is not dismissed without
appropriate consideration;
(3) require that the board be advised of the dismissal
of a complaint and that a letter be sent to the person who filed the
complaint and to the physician who was the subject of the complaint
explaining the action taken on the complaint;
(4) ensure that a person who files a complaint has an
opportunity to explain the allegations made in the complaint;
(5) ensure that a physician who is the subject of a
complaint has at least 30 days after receiving a copy of the
complaint as provided by Section 154.053(a) to prepare and submit a
response;
(6) prescribe guidelines concerning the categories of
complaints that require the use of a private investigator and the
procedures for the board to obtain the services of a private
investigator;
(7) [(6)] provide for an expert physician panel
authorized under Subsection (e) to assist with complaints and
investigations relating to medical competency; and
(8) [(7)] require the review of reports filed with the
National Practitioner Data Bank for any report of the termination,
limitation, suspension, limitation in scope of practice, or
probation of clinical or hospital staff privileges of a physician
by:
(A) a hospital;
(B) a health maintenance organization;
(C) an independent practice association;
(D) an approved nonprofit health corporation
certified under Section 162.001; or
(E) a physician network.
(b) The board shall:
(1) dispose of each complaint in a timely manner; and
(2) establish a schedule for conducting each phase of
a complaint that is under the control of the board not later than
the 30th day after the date the physician's time for preparing and
submitting a response expires [board receives the complaint].
(e) The board by rule shall provide for an expert physician
panel appointed by the board to assist with complaints and
investigations relating to medical competency by acting as expert
physician reviewers. Each member of the expert physician panel
must be actively practicing [licensed to practice] medicine in this
state. The rules adopted under this subsection must include
provisions governing the composition of the panel, qualifications
for membership on the panel, length of time a member may serve on
the panel, grounds for removal from the panel, the avoidance of
conflicts of interest, including situations in which the affected
physician and the panel member live or work in the same geographical
area or are competitors, and the duties to be performed by the
panel. The board's rules governing grounds for removal from the
panel must include providing for the removal of a panel member who
is repeatedly delinquent in reviewing complaints and in submitting
reports to the board. The board's rules governing appointment of
expert physician panel members to act as expert physician reviewers
must include a requirement that the board randomly select, to the
extent permitted by Section 154.058(b) and the conflict of interest
provisions adopted under this subsection, panel members to review a
complaint.
(e-1) The board shall review a report concerning a
physician's medical competency prepared by an expert physician
reviewer at the request of the physician who is the subject of the
complaint.
SECTION 9. Section 154.0561, Occupations Code, is amended
by amending Subsections (b) and (c) and adding Subsection (e) to
read as follows:
(b) A second expert physician reviewer shall independently
review [the first physician's preliminary report and other]
information associated with the complaint. The review by the
second expert shall be independent of the first review, without
knowledge by the second reviewer of the identity of the first
reviewer, and without any communication between the two reviewers.
If the second expert physician reviewer agrees with the first
expert physician reviewer, the first reviewer [physician] shall
issue a final written report on the matter.
(c) If the second expert physician reviewer does not agree
with the conclusions of the first expert physician reviewer, then
the physician who is the subject of the complaint shall be notified
of the conflict and provided with copies of the conflicting
reports. A [a] third expert physician reviewer shall review the
reports of both expert witnesses and all information related to the
complaint [preliminary report and information] and decide between
the conclusions reached by the first two expert physicians. The
final written report shall be issued by the third physician or the
physician with whom the third physician concurs and must include a
copy of the dissenting report.
(e) Before using a report under this section, the board
shall provide to the physician who is the subject of the complaint
the identity and qualifications of each expert physician reviewer
who reviewed the complaint.
SECTION 10. Section 154.058, Occupations Code, is amended
to read as follows:
Sec. 154.058. DETERMINATION OF MEDICAL COMPETENCY.
(a) Each complaint against a physician that requires a
determination of medical competency shall be reviewed initially by
a board member, consultant, or employee with a medical background
and engaged in an active practice in the same or similar specialty
as the physician in the year preceding the review [considered
sufficient by the board].
(b) If the initial review under Subsection (a) indicates
that an act by a physician falls below an acceptable standard of
care, the complaint shall be reviewed by an expert physician panel
authorized under Section 154.056(e) consisting of physicians who
have an active practice in the same specialty as the physician who
is the subject of the complaint. The identity of the members of the
expert panel shall be promptly disclosed to the physician who is the
subject of the complaint [or in another specialty that is similar to
the physician's specialty].
(c) The expert physician panel shall report in writing the
panel's determinations based on the review of the complaint under
Subsection (b). The report must specify the standard of care that
applies to the facts that are the basis of the complaint and the
clinical basis for the panel's determinations, including any
reliance on peer-reviewed journals, studies, or reports. To be
considered by the board, the report must be in the form of an
affidavit sworn under oath.
SECTION 11. Subsection (b), Section 160.005, Occupations
Code, is amended to read as follows:
(b) In a proceeding brought under this chapter or Chapter
158, 159, or 162, evidence may not be excluded on the ground that it
consists of a privileged communication unless it:
(1) is a communication between attorney and client; or
(2) concerns patient records and the patient objects
to this disclosure of the records for reasons of patient privacy, in
which case the physician is not required to disclose the records to
the board in the absence of a court order.
SECTION 12. Section 164.001, Occupations Code, is amended
by amending Subsections (b) and (c) and adding Subsections (k),
(l), (m), and (n) to read as follows:
(b) Except as otherwise provided by Sections 164.057 and
164.058, the board, on determining by clear and convincing evidence
that a person committed an act described by Sections 164.051
through 164.054, shall enter an order to:
(1) deny the person's application for a license or
other authorization to practice medicine;
(2) administer a public reprimand;
(3) suspend, limit, or restrict the person's license
or other authorization to practice medicine, including:
(A) limiting the practice of the person to or
excluding one or more specified activities of medicine; or
(B) stipulating periodic board review;
(4) revoke the person's license or other authorization
to practice medicine;
(5) require the person to submit to care, counseling,
or treatment of physicians designated by the board as a condition
for:
(A) the issuance or renewal of a license or other
authorization to practice medicine; or
(B) continued practice under a license;
(6) require the person to participate in an
educational or counseling program prescribed by the board;
(7) require the person to practice under the direction
of a physician designated by the board for a specified period;
(8) require the person to perform public service
considered appropriate by the board; or
(9) assess an administrative penalty against the
person as provided by Section 165.001.
(c) Notwithstanding Subsection (b), the board shall revoke,
suspend, or deny a physician's license if the board determines
based on clear and convincing evidence that, through the practice
of medicine, the physician poses a continuing threat to the public
welfare.
(k) A license holder may practice medicine in a manner
taught in a course accredited by the Accreditation Council for
Graduate Medical Education, the American Medical Association, or
the American Osteopathic Association.
(l) The board may not order or require a physician to
practice medicine in a particular manner, exercise the authority to
practice medicine, or direct anyone in the practice of medicine,
except by ordering that a physician not engage in a practice that
causes actual harm or an imminent risk of harm to a patient.
(m) The board may not impose a penalty, sanction, or other
disciplinary action that is different from the action recommended
by the panel in an informal proceeding under Section 164.0032(f)
and agreed upon by the license holder.
(n) Notwithstanding any other law, the board may not:
(1) involve itself in fee disputes or take
disciplinary action against a license holder for using the "fee for
service" method of billing; or
(2) take disciplinary action against a license holder
based upon the manner in which the license holder maintains the
license holder's office or records, unless the conduct has a
likelihood of causing an actual harm or an imminent risk of harm to
a patient.
SECTION 13. Subsection (c), Section 164.003, Occupations
Code, is amended to read as follows:
(c) An affected physician is entitled to:
(1) reply to the staff's presentation; [and]
(2) present the facts the physician reasonably
believes the physician could prove by competent evidence or
qualified witnesses at a hearing;
(3) receive notice at least 48 hours before a
proceeding of the identity of the panel members presiding over the
informal settlement conference proceedings; and
(3) audio or video record or arrange for transcription
of the informal settlement conference proceedings.
SECTION 14. Subsection (a), Section 164.0031, Occupations
Code, is amended to read as follows:
(a) In an informal meeting under Section 164.003 or an
informal hearing under Section 164.103, at least two panelists
shall be randomly appointed to determine whether an informal
disposition is appropriate. At least one of the panelists must be a
physician.
SECTION 15. Subsections (a-1) and (c), Section 164.007,
Occupations Code, are amended to read as follows:
(a-1) The decision of the State Office of Administrative
Hearings judge shall be binding on the board [The board may change a
finding of fact or conclusion of law or vacate or modify an order of
the administrative law judge only if the board makes a
determination required by Section 2001.058(e), Government Code].
(c) Each [complaint, adverse report,] investigation file,
[other] investigation report, and other investigative information
in the possession of or received or gathered by the board or its
employees or agents relating to a license holder, an application
for license, or a criminal investigation or proceeding is
privileged and confidential and is not subject to discovery,
subpoena, or other means of legal compulsion for release to anyone
other than the board or its employees or agents involved in
discipline of a license holder. For purposes of this subsection,
investigative information includes information relating to the
identity of, and a report made by, a physician performing or
supervising compliance monitoring for the board. Notwithstanding
any other provision of this subsection, a license holder may access
and obtain a copy of any information relating to the license holder.
SECTION 16. Section 164.009, Occupations Code, is amended
to read as follows:
Sec. 164.009. JUDICIAL REVIEW. (a) A person whose license
to practice medicine has been revoked or who is subject to other
disciplinary action by the board may appeal to a Travis County
district court not later than the 30th day after the date the board
decision is final. The district court may sustain a board
disciplinary action only on a finding by clear and convincing
evidence that the action was supported by facts and law.
(b) A person whose license to practice medicine has been
revoked is entitled to a jury trial.
SECTION 17. Subsection (a), Section 164.053, Occupations
Code, is amended to read as follows:
(a) For purposes of Section 164.052(a)(5), unprofessional
or dishonorable conduct likely to deceive or defraud the public
includes conduct in which a physician:
(1) commits an act that violates any state or federal
law if the act is connected with the physician's practice of
medicine;
(2) fails to keep complete and accurate records of
purchases and disposals of:
(A) drugs listed in Chapter 481, Health and
Safety Code; or
(B) controlled substances scheduled in the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. Section 801 et seq.);
(3) writes prescriptions for or dispenses to a person
who:
(A) is known to be an abuser of narcotic drugs,
controlled substances, or dangerous drugs; or
(B) the physician should have known was an abuser
of narcotic drugs, controlled substances, or dangerous drugs;
(4) writes false or fictitious prescriptions for:
(A) dangerous drugs as defined by Chapter 483,
Health and Safety Code; or
(B) controlled substances scheduled in Chapter
481, Health and Safety Code, or the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
(5) prescribes or administers a drug or treatment that
is proven to be nontherapeutic in nature or proven to be
nontherapeutic in the manner the drug or treatment is administered
or prescribed and has a likelihood of harm to a patient;
(6) prescribes, administers, or dispenses in a manner
inconsistent with public health and welfare:
(A) dangerous drugs as defined by Chapter 483,
Health and Safety Code; or
(B) controlled substances scheduled in Chapter
481, Health and Safety Code, or the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);
(7) violates Section 311.0025, Health and Safety Code;
(8) fails to supervise adequately the activities of
those acting under the supervision of the physician; or
(9) delegates professional medical responsibility or
acts to a person if the delegating physician knows or has reason to
know that the person is not qualified by training, experience, or
licensure to perform the responsibility or acts.
SECTION 18. The changes in law made by this Act to
Subsection (a), Section 152.002, and Section 152.003, Occupations
Code, apply only to a person appointed to the Texas Medical Board on
or after the effective date of this Act. A person appointed before
the effective date of this Act is governed by the law in effect on
the date the appointment was made, and the former law is continued
in effect for that purpose.
SECTION 19. The changes in law made by this Act relating to
the Texas Medical Board's complaint procedures apply only to a
complaint filed on or after the effective date of this Act. A
complaint filed before the effective date of this Act is governed by
the law in effect on the date the complaint was filed, and the
former law is continued in effect for that purpose.
SECTION 20. The changes in law made by this Act relating to
the Texas Medical Board's disciplinary authority apply only to
conduct that occurs on or after the effective date of this Act.
Conduct that occurs before the effective date of this Act is
governed by the law in effect on the date the conduct occurred, and
the former law is continued in effect for that purpose.
SECTION 21. Not later than January 1, 2010, the governor and
lieutenant governor shall appoint the members of the advisory
commission under Section 152.011, Occupations Code, as added by
this Act.
SECTION 22. The change in law made by this Act to Subsection
(a), Section 152.051, Occupations Code, applies only to a person
appointed as executive director of the Texas Medical Board on or
after the effective date of this Act. A person appointed before the
effective date of this Act is governed by the law in effect when the
person was appointed, and the former law is continued in effect for
that purpose.
SECTION 23. This Act takes effect September 1, 2009.