82R17684 NC-F
By: Brown, Callegari, Creighton, H.B. No. 1013
J. Davis of Harris, et al.
Substitute the following for H.B. No. 1013:
By: Zerwas C.S.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 154.051, 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 4. 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, including a
statement of the alleged violation in plain language. The
complaint must be provided to the physician without redaction
unless:
(1) the complaint is filed by:
(A) a patient of the physician;
(B) a patient's parent or legal guardian if the
patient is a minor; or
(C) a patient's agent under a power of attorney;
(2) there is a risk of harm to the public; or
(3) the notice would jeopardize an investigation.
(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 5. 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, "anonymous complaint" means a complaint that lacks
sufficient information to identify the source or the name of the
person who filed the complaint.
(b) The board may not accept anonymous complaints.
(c) A complaint filed with the board against a physician
must include the name and address of the person filing the
complaint.
(d) 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 person
who filed the complaint, unless:
(1) the notice would jeopardize an investigation; or
(2) the complaint is filed by:
(A) a patient of the physician;
(B) a patient's parent or legal guardian if the
patient is a minor; or
(C) a patient's agent under a power of attorney.
(e) The board shall adopt rules as necessary to implement
this section.
SECTION 6. 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 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.
SECTION 7. Section 154.0561, Occupations Code, is amended
by adding Subsection (e) to read as follows:
(e) The board shall deliver a copy of the preliminary and
final reports, including any dissenting or minority report, to the
physician who is the subject of the review.
SECTION 8. Section 154.057(b), Occupations Code, is amended
to read as follows:
(b) The board shall complete a preliminary investigation of
the complaint not later than the 45th [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 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 164.003, Occupations Code, is amended
by amending Subsection (b) and adding Subsections (i) and (j) 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 45th [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.
(i) On request by a physician under review, the board shall
make an audio recording of the informal settlement conference
proceeding and provide a copy of the audio recording to the
physician. The physician shall pay the costs of producing and
copying the requested audio recording.
(j) The audio recording is a part of the investigative file
and may not be released by the board to a third party unless
authorized under this subtitle.
SECTION 11. 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, unless a panelist of the same or a
similar practice as the affected physician is available to serve in
the informal meeting or hearing. At least one of the panelists must
be a physician.
SECTION 12. 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 13. 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 14. 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 15. 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 16. 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 17. 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 18. This Act takes effect September 1, 2011.