81R35096 JAM-D
By: Nelson S.B. No. 2397
Substitute the following for S.B. No. 2397:
By: Coleman C.S.S.B. No. 2397
A BILL TO BE ENTITLED
AN ACT
relating to the licensing and regulation of physicians, physician
assistants, acupuncturists, and surgical assistants.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. REGULATION OF PHYSICIANS
SECTION 1.01. Section 154.051, Occupations Code, is amended
by adding Subsection (d) to read as follows:
(d) The board may not consider or act on a complaint
involving care provided more than seven years before the date on
which the complaint is filed unless the care was provided to a
minor. If the care was provided to a minor, the board may not
consider or act on a complaint involving the care after the later
of:
(1) the date the minor is 21 years of age; or
(2) the seventh anniversary of the date of the care.
SECTION 1.02. Section 154.053, Occupations Code, is amended
by amending Subsection (a) and adding Subsections (a-1) and (d) 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 the notice
would jeopardize an investigation. The complaint must include a
statement of the alleged violation in plain language.
(a-1) If a physician rejects a notice by personal delivery
or certified mail under Subsection (a), the board may send to the
physician an additional notice of the complaint by first class mail
that includes notice of the attempted delivery by personal delivery
or certified mail.
(d) If the board subpoenas the records of a patient in the
course of an investigation, the board shall send notice to the
address available in the records to the patient or the patient's
guardian unless the notice would jeopardize the investigation. The
notice is confidential and may not be released to a third party.
SECTION 1.03. Subchapter B, Chapter 154, Occupations Code,
is amended by adding Section 154.0535 to read as follows:
Sec. 154.0535. REQUIREMENTS FOR CERTAIN COMPLAINTS. (a)
In this section:
(1) "Anonymous complaint" means a complaint that lacks
sufficient information to identify the source or the name of the
person who filed the complaint.
(2) "Insurance agent" means a person licensed under
Chapter 4054, Insurance Code.
(3) "Insurer" means an insurance company or other
entity authorized to engage in the business of insurance under
Subtitle C, Title 6, Insurance Code.
(b) The board may not accept anonymous complaints.
(c) Notwithstanding any confidentiality requirements under
Chapter 552, Government Code, this subtitle, or rules adopted under
this subtitle, a complaint filed with the board by an insurance
agent or insurer against a physician must include the name and
address of the insurance agent or insurer filing the complaint. Not
later than the 15th day after the date the complaint is filed with
the board, the board shall notify the physician who is the subject
of the complaint of the name and address of the insurance agent or
insurer who filed the complaint, unless the notice would jeopardize
an investigation.
(d) Failure by an insurance agent or insurer to comply with
the requirements of Subsection (c) or rules adopted by the board
under this section constitutes grounds for the imposition of
sanctions by the commissioner of the Texas Department of Insurance
under Chapter 82, Insurance Code. The commissioner of insurance
may adopt rules to implement this subsection.
(e) The board shall adopt rules as necessary to implement
this section.
SECTION 1.04. Subsection (b), Section 154.055, Occupations
Code, is amended to read as follows:
(b) In complying with a request under Subsection (a), the
board may [not] identify the complainant or the patient and may
reveal the identity of the affected physician only to the members of
the committee. The information received under this section may not
be released to any third party.
SECTION 1.05. Subsection (b), Section 154.057, Occupations
Code, is amended to read as follows:
(b) The board shall complete a preliminary investigation of
the complaint not later than the 60th [30th] day after the date of
receiving the complaint. The board shall first determine whether
the physician constitutes a continuing threat to the public
welfare. On completion of the preliminary investigation, the board
shall determine whether to officially proceed on the complaint. If
the board fails to complete the preliminary investigation in the
time required by this subsection, the board's official
investigation of the complaint is considered to commence on that
date.
SECTION 1.06. Subsections (c) and (d), Section 155.0031,
Occupations Code, are amended to read as follows:
(c) Applicants for a license must subscribe to an oath [in
writing before an officer authorized by law to administer oaths].
The written oath is part of the application.
(d) An applicant must present proof satisfactory to the
board that:
(1) each medical school attended by the applicant is
substantially equivalent to a Texas medical school as determined by
board rule; or
(2) the applicant is specialty board certified by a
specialty board organization acceptable to the board.
SECTION 1.07. Section 155.004, Occupations Code, is amended
to read as follows:
Sec. 155.004. ADDITIONAL ELIGIBILITY REQUIREMENTS FOR
GRADUATES OF CERTAIN FOREIGN MEDICAL SCHOOLS. A license applicant
who is a graduate of a medical school that is located outside the
United States and Canada must present proof satisfactory to the
board that the applicant:
(1) is a graduate of a school whose curriculum meets
the requirements for an unapproved medical school as determined by
a committee of experts selected by the Texas Higher Education
Coordinating Board;
(2) has successfully completed:
(A) at least three years of graduate medical
training in the United States or Canada that was approved by the
board; or
(B) at least two years of graduate medical
training in the United States or Canada that was approved by the
board and at least one year of graduate medical training outside the
United States or Canada that was approved for advanced standing by a
specialty board organization approved by the board;
(3) [is eligible for a license to practice medicine in
the country in which the school is located, except for any
citizenship requirements;
[(4)] holds a valid certificate issued by the
Educational Commission for Foreign Medical Graduates; and
(4) [(5)] is able to communicate in English.
SECTION 1.08. Section 164.003, Occupations Code, is amended
by amending Subsections (b) and (f) and adding Subsection (i) to
read as follows:
(b) Rules adopted under this section must require that:
(1) an informal meeting in compliance with Section
2001.054, Government Code, be scheduled not later than the 180th
day after the date the board's official investigation of the
complaint is commenced as provided by Section 154.057(b), unless
good cause is shown by the board for scheduling the informal meeting
after that date;
(2) the board give notice to the license holder of the
time and place of the meeting not later than the 60th [30th] day
before the date the meeting is held;
(3) the complainant and the license holder be provided
an opportunity to be heard;
(4) at least one of the board members or district
review committee members participating in the informal meeting as a
panelist be a member who represents the public;
(5) the board's legal counsel or a representative of
the attorney general be present to advise the board or the board's
staff; and
(6) a member of the board's staff be at the meeting to
present to the board's representative the facts the staff
reasonably believes it could prove by competent evidence or
qualified witnesses at a hearing.
(f) The notice required by Subsection (b)(2) must be
accompanied by a written statement of the nature of the allegations
and the information the board intends to use at the meeting. If the
board does not provide the statement or information at that time,
the license holder may use that failure as grounds for rescheduling
the informal meeting. If the complaint includes an allegation that
the license holder has violated the standard of care, the notice
must include a copy of the report by the expert physician reviewer.
The license holder must provide to the board the license holder's
rebuttal at least 15 [five] business days before the date of the
meeting in order for the information to be considered at the
meeting.
(i) On request by a physician under review, the board shall
make a recording of the informal settlement conference proceeding.
The recording is a part of the investigative file and may not be
released to a third party unless authorized under this subtitle.
The board may charge a license holder a fee to cover the cost of
recording the hearing.
ARTICLE 2. REGULATION OF PHYSICIAN ASSISTANTS
SECTION 2.01. Section 204.058, Occupations Code, is amended
to read as follows:
Sec. 204.058. OPEN MEETINGS; ADMINISTRATIVE PROCEDURE LAW.
(a) Except as otherwise provided by this chapter, the physician
assistant board is subject to Chapters 551 and 2001, Government
Code.
(b) The physician assistant board may hear all evidence and
arguments and conduct deliberations relating to license
applications and disciplinary actions under this chapter in
executive sessions. The board shall vote and announce its
decisions in open session. Deliberations by the board relating to
license applications and disciplinary actions are exempt from
Chapter 551, Government Code.
SECTION 2.02. Subsections (a) and (b), Section 204.153,
Occupations Code, are amended to read as follows:
(a) To be eligible for a license under this chapter, an
applicant must:
(1) successfully complete an educational program for
physician assistants or surgeon assistants accredited by the
Committee on Allied Health Education and Accreditation or by that
committee's predecessor or successor entities;
(2) pass the Physician Assistant National Certifying
Examination administered by the National Commission on
Certification of Physician Assistants;
(3) hold a certificate issued by the National
Commission on Certification of Physician Assistants;
(4) be of good professional [moral] character;
(5) meet any other requirement established by board
rule; and
(6) pass a jurisprudence examination approved by the
physician assistant board as provided by Subsection (a-1).
(b) In addition to the requirements of Subsection (a), an
applicant is not eligible for a license[, unless the physician
assistant board takes the fact into consideration in determining
whether to issue the license,] if the applicant:
(1) has been issued a license, certificate, or
registration as a physician assistant in this state or from a
licensing authority in another state that is revoked or suspended;
or
(2) is subject to probation or other disciplinary
action for cause resulting from the applicant's acts as a physician
assistant.
SECTION 2.03. Section 204.155, Occupations Code, is amended
to read as follows:
Sec. 204.155. TEMPORARY LICENSE. [(a)] The physician
assistant board may adopt rules and set fees relating to granting
temporary licenses and extending the expiration dates of temporary
licenses. The board by rule shall set a time limit for the term of
[issue] a temporary license [to an applicant who:
[(1) meets all the qualifications for a license under
this chapter but is waiting for the license to be issued at the next
scheduled meeting of the board;
[(2) seeks to temporarily substitute for a licensed
physician assistant during the license holder's absence, if the
applicant:
[(A) is licensed or registered in good standing
in another state;
[(B) submits an application on a form prescribed
by the board; and
[(C) pays the appropriate fee prescribed by the
board; or
[(3) has graduated from an educational program for
physician assistants or surgeon assistants described by Section
204.153(a)(1) not later than six months before applying for a
temporary license and is waiting for examination results from the
National Commission on Certification of Physician Assistants.
[(b) A temporary license may be valid for not more than one
year after the date issued as determined by board rule].
SECTION 2.04. Subchapter D, Chapter 204, Occupations Code,
is amended by adding Section 204.1551 to read as follows:
Sec. 204.1551. POSTGRADUATE TRAINING PERMIT. (a) The
physician assistant board by rule may issue a physician assistant
postgraduate training permit to a physician assistant not otherwise
licensed by the board who is participating in a graduate physician
assistant education training program approved by the board.
(b) A physician assistant postgraduate training permit does
not authorize the performance of a physician assistant act by the
permit holder unless the act is performed:
(1) as a part of the graduate medical education
training program; and
(2) under the supervision of a physician and a
physician assistant.
(c) The physician assistant board has jurisdiction to
discipline a permit holder whose permit has expired if the
violation of the law occurred during the time the permit was valid.
If an investigation is open when the permit expires, the permit
shall be executory and the board may retain jurisdiction.
SECTION 2.05. Section 204.156, Occupations Code, is amended
by adding Subsections (f-1) and (f-2) to read as follows:
(f-1) If the person's license has been expired for one year
or longer, the person's license is automatically canceled, unless
an investigation is pending, and the person may not renew the
license.
(f-2) A physician assistant whose license is automatically
canceled may obtain a new license by complying with the
requirements, fees, and procedures for obtaining a new license.
The physician assistant board may issue a new license without
examination to a person whose license is automatically canceled for
less than two years.
ARTICLE 3. REGULATION OF ACUPUNCTURISTS
SECTION 3.01. Section 205.060, Occupations Code, is amended
to read as follows:
Sec. 205.060. APPLICATION OF OPEN MEETINGS, OPEN RECORDS,
AND ADMINISTRATIVE PROCEDURE LAWS. (a) Except as provided by this
chapter, the acupuncture board is subject to Chapters 551, 552, and
2001, Government Code.
(b) The acupuncture board may hear all evidence and
arguments and conduct deliberations relating to license
applications and disciplinary actions under this chapter in
executive sessions. The board shall vote and announce its
decisions in open session. Deliberations by the board relating to
license applications and disciplinary actions are exempt from
Chapter 551, Government Code.
SECTION 3.02. Section 205.208, Occupations Code, is amended
to read as follows:
Sec. 205.208. TEMPORARY LICENSE. The acupuncture board may
adopt rules and recommend to the medical board fees relating to
granting temporary licenses and extending the expiration dates of
temporary licenses. The acupuncture board by rule shall set a time
limit for the term of a temporary license [(a) The acupuncture
board may, through the executive director, issue a temporary
license to practice acupuncture to an applicant who:
[(1) submits an application on a form prescribed by
the acupuncture board;
[(2) has passed a national or other examination
recognized by the acupuncture board relating to the practice of
acupuncture;
[(3) pays the appropriate fee;
[(4) if licensed in another state, is in good standing
as an acupuncturist; and
[(5) meets all the qualifications for a license under
this chapter but is waiting for the next scheduled meeting of the
medical board for the license to be issued.
[(b) A temporary license is valid for 100 days after the
date issued and may be extended only for another 30 days after the
date the initial temporary license expires].
SECTION 3.03. Section 205.3544, Occupations Code, is
amended to read as follows:
Sec. 205.3544. LIMIT ON ACCESS TO INVESTIGATION FILES. (a)
Each complaint, adverse report, investigation file, other
investigation report, and other investigative information in the
possession of or received or gathered by the acupuncture board or a
medical board employee or agent 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 acupuncture board or medical board employees or
agents involved in discipline of a license holder.
(b) Investigation records relating to an application for
license and disciplinary action of a license holder are exempt from
Chapter 552, Government Code.
(c) 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 acupuncture board [The acupuncture board shall
prohibit or limit access to an investigation file relating to a
license holder in an informal proceeding in the manner provided by
Section 164.007(c)].
ARTICLE 4. REGULATION OF SURGICAL ASSISTANTS
SECTION 4.01. Subchapter B, Chapter 206, Occupations Code,
is amended by adding Section 206.059 to read as follows:
Sec. 206.059. MEDICAL BOARD MEETINGS; CONFIDENTIALITY. (a)
The medical board may hear all evidence and arguments and conduct
deliberations relating to license applications and disciplinary
actions under this chapter in executive sessions. The medical
board shall vote and announce its decisions in open session.
(b) Deliberations and records relating to the professional
character and fitness of applicants as well as related to
disciplinary actions are exempt from Chapters 551 and 552,
Government Code.
SECTION 4.02. Subsection (a), Section 206.203, Occupations
Code, is amended to read as follows:
(a) Except as provided by Section 206.206, to be eligible
for a license, a person must:
(1) be of good professional [moral] character;
(2) have not been convicted of a felony or a crime
involving moral turpitude;
(3) not use drugs or alcohol to an extent that affects
the applicant's professional competency;
(4) not have had a license or certification revoked by
a licensing agency or by a certifying professional organization;
and
(5) not have engaged in fraud or deceit in applying for
a license under this chapter.
ARTICLE 5. TRANSITION PROVISIONS
SECTION 5.01. Sections 155.0031, 155.004, 204.153,
205.208, and 206.203, Occupations Code, as amended by this Act,
apply only to an application for a license filed with the applicable
licensing authority on or after the effective date of this Act. An
application for a license filed before the effective date of this
Act is governed by the law in effect on the date the application was
filed, and that law is continued in effect for that purpose.
SECTION 5.02. Sections 154.051, 154.053, 154.055, 154.057,
and 164.003, Occupations Code, as amended by this Act, and Section
154.0535, Occupations Code, as added by this Act, apply only to the
investigation of a complaint filed on or after the effective date of
this Act. The investigation of a complaint filed before that date
is governed by the law in effect on the date the complaint was
filed, and that law is continued in effect for that purpose.
SECTION 5.03. Section 204.058, Occupations Code, as amended
by this Act, and Subsection (b), Section 205.060, Occupations Code,
as added by this Act, apply only to a contested case hearing
conducted on or after the effective date of this Act. A contested
case filed before the effective date of this Act is governed by the
law in effect on the date the contested case was filed, and that law
is continued in effect for that purpose.
SECTION 5.04. Section 204.156, Occupations Code, as amended
by this Act, applies only to a license that expires on or after the
effective date of this Act. A license that expires before the
effective date of this Act is governed by the law in effect on the
date the license expires, and that law is continued in effect for
that purpose.
ARTICLE 6. EFFECTIVE DATE
SECTION 6.01. This Act takes effect September 1, 2009.