82R5053 NC-D
By: Brown H.B. No. 1013
A BILL TO BE ENTITLED
AN ACT
relating to the powers and duties of the Texas Medical Board.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 152.002(a), 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
adding Subsections (e) and (f) to read as follows:
(e) A person may not be a member of the board if the member
is not in full compliance with Section 572.051, Government Code. A
person is not in full compliance with that section if the person's
spouse or anyone related to the person within the second degree by
consanguinity engages in conduct described by Section 572.051(a),
Government Code, that would affect or influence the person's
official conduct, position, powers, or duties as a member of the
board in a manner prohibited by that section.
(f) A member of the board may not participate in any matter
regarding a license holder if the person or anyone 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 the license
holder, including an insurance company, health care regulatory
agency, pharmaceutical company, or medical malpractice attorney.
SECTION 3. Section 154.002(a), 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 4. 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 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 care.
SECTION 5. Section 154.053, Occupations Code, is amended by
amending Subsection (a) and adding Subsection (a-1) 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.
SECTION 6. 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) 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.
(c) The board may not accept anonymous complaints.
(d) The board shall adopt rules as necessary to implement
this section.
(e) Failure by an insurance agent or insurer to comply with
the requirements of Subsection (b) 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.
SECTION 7. Sections 154.056(a), (b), and (e), Occupations
Code, are amended 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 45 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.
SECTION 8. Section 154.0561, Occupations Code, is amended
by adding Subsections (a-1) and (e) to read as follows:
(a-1) Before the complaint is reviewed, the board must
redact all information that identifies the physician who is the
subject of the complaint, the patient, and the person filing the
complaint.
(e) The board shall deliver a copy of the preliminary and
final reports to the physician who is the subject of the review.
Before delivering the reports to the physician, the board shall
redact information identifying the expert physicians from the
reports.
SECTION 9. Section 154.058(b), Occupations Code, is amended
to read as follows:
(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 or in another specialty that is
similar to the physician's specialty.
SECTION 10. Section 164.001, Occupations Code, is amended
by adding Subsections (k) and (l) to read as follows:
(k) A license holder may practice medicine in a manner
taught in a course currently accredited by the Accreditation
Council for Continuing Medical Education, the American Medical
Association, or the American Osteopathic Association.
(l) The board may not direct a physician 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.
SECTION 11. Section 164.003, Occupations Code, is amended
by adding Subsection (i) to read as follows:
(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.
SECTION 12. Section 164.0031(a), 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 13. Sections 164.007(a) and (a-1), Occupations
Code, are amended to read as follows:
(a) The board by rule shall adopt procedures governing
formal disposition of a contested case under Chapter 2001,
Government Code. A formal hearing shall be conducted by an
administrative law judge employed by the State Office of
Administrative Hearings. After receiving the administrative law
judge's findings of fact and conclusions of law, the board shall
dispose of the contested case by issuing a final order based on the
administrative law judge's findings of fact and conclusions of law
[determine the charges on the merits].
(a-1) Notwithstanding Section 2001.058(e), Government
Code, the [The] board may not change a finding of fact or conclusion
of law or vacate or modify an order of the administrative law judge.
The board may obtain judicial review of any finding of fact or
conclusion of law issued by the administrative law judge as
provided by Section 2001.058(f)(5), Government Code. For each
case, the board has the sole authority and discretion to determine
the appropriate action or sanction, and the administrative law
judge may not make any recommendation regarding the appropriate
action or sanction [only if the board makes a determination
required by Section 2001.058(e), Government Code].
SECTION 14. 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.
(b) A person whose license to practice medicine has been
revoked is entitled to a jury trial in a district court in Travis
County.
SECTION 15. Section 164.053(a), 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 nontherapeutic in nature or nontherapeutic in the manner the
drug or treatment is administered or prescribed and has the
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 16. The changes in law made by this Act by the
amendment of Sections 152.002(a) and 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 is made, and the former law is continued in
effect for that purpose.
SECTION 17. 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 is filed, and the former
law is continued in effect for that purpose.
SECTION 18. 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 occurs, and
the former law is continued in effect for that purpose.
SECTION 19. Sections 164.007(a) and (a-1), Occupations
Code, as amended by this Act, apply only to a contested case for
which an administrative law judge employed by the State Office of
Administrative Hearings issues written findings of fact and
conclusions of law on or after the effective date of this Act. A
contested case for which an administrative law judge employed by
the State Office of Administrative Hearings issues written findings
of fact and conclusions of law before the effective date of this Act
is governed by the law in effect on the date the findings of fact and
conclusions of law were issued, and the former law is continued in
effect for that purpose.
SECTION 20. This Act takes effect September 1, 2011.