Texas 2011 - 82nd Regular

Texas House Bill HB1013 Compare Versions

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1	1	82R17684 NC-F
2	2	By: Brown, Callegari, Creighton, H.B. No. 1013
3	3	J. Davis of Harris, et al.
4	4	Substitute the following for H.B. No. 1013:
5	5	By: Zerwas C.S.H.B. No. 1013
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to the powers and duties of the Texas Medical Board.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 152.002(a), Occupations Code, is amended
13	13	to read as follows:
14	14	(a) The board consists of 19 members appointed by the
15	15	governor with the advice and consent of the senate as follows:
16	16	(1) twelve members who are learned and eminent
17	17	physicians licensed in this state for at least five [three] years
18	18	before the appointment, nine of whom must be graduates of a
19	19	reputable medical school or college with a degree of doctor of
20	20	medicine (M.D.) and three of whom must be graduates of a reputable
21	21	medical school or college with a degree of doctor of osteopathic
22	22	medicine (D.O.); and
23	23	(2) seven members who represent the public.
24	24	SECTION 2. Section 152.003, Occupations Code, is amended by
25	25	adding Subsections (e) and (f) to read as follows:
26	26	(e) A person may not be a member of the board if the member
27	27	is not in full compliance with Section 572.051, Government Code. A
28	28	person is not in full compliance with that section if the person's
29	29	spouse or anyone related to the person within the second degree by
30	30	consanguinity engages in conduct described by Section 572.051(a),
31	31	Government Code, that would affect or influence the person's
32	32	official conduct, position, powers, or duties as a member of the
33	33	board in a manner prohibited by that section.
34	34	(f) A member of the board may not participate in any matter
35	35	regarding a license holder if the person or anyone related to the
36	36	person within the second degree by consanguinity receives
37	37	compensation from an entity, other than a medical practice, that
38	38	has a financial interest in common with or adverse to the license
39	39	holder, including an insurance company, health care regulatory
40	40	agency, pharmaceutical company, or medical malpractice attorney.
41	41	SECTION 3. Section 154.051, Occupations Code, is amended by
42	42	adding Subsection (d) to read as follows:
43	43	(d) The board may not consider or act on a complaint
44	44	involving care provided more than seven years before the date the
45	45	complaint is filed, unless the care was provided to a minor. If the
46	46	care was provided to a minor, the board may not consider or act on a
47	47	complaint involving the care after the later of:
48	48	(1) the date the minor is 21 years of age; or
49	49	(2) the seventh anniversary of the date of care.
50	50	SECTION 4. Section 154.053, Occupations Code, is amended by
51	51	amending Subsection (a) and adding Subsection (a-1) to read as
52	52	follows:
53	53	(a) The board shall notify by personal delivery or certified
54	54	mail a physician who is the subject of a complaint filed with the
55	55	board that a complaint has been filed and shall provide [notify] the
56	56	physician with a copy of the [nature of the] complaint, including a
57	57	statement of the alleged violation in plain language. The
58	58	complaint must be provided to the physician without redaction
59	59	unless:
60	60	(1) the complaint is filed by:
61	61	(A) a patient of the physician;
62	62	(B) a patient's parent or legal guardian if the
63	63	patient is a minor; or
64	64	(C) a patient's agent under a power of attorney;
65	65	(2) there is a risk of harm to the public; or
66	66	(3) the notice would jeopardize an investigation.
67	67	(a-1) If a physician rejects a notice by personal delivery
68	68	or certified mail under Subsection (a), the board may send to the
69	69	physician an additional notice of the complaint by first class mail
70	70	that includes notice of the attempted delivery by personal delivery
71	71	or certified mail.
72	72	SECTION 5. Subchapter B, Chapter 154, Occupations Code, is
73	73	amended by adding Section 154.0535 to read as follows:
74	74	Sec. 154.0535. REQUIREMENTS FOR CERTAIN COMPLAINTS. (a)
75	75	In this section, "anonymous complaint" means a complaint that lacks
76	76	sufficient information to identify the source or the name of the
77	77	person who filed the complaint.
78	78	(b) The board may not accept anonymous complaints.
79	79	(c) A complaint filed with the board against a physician
80	80	must include the name and address of the person filing the
81	81	complaint.
82	82	(d) Not later than the 15th day after the date the complaint
83	83	is filed with the board, the board shall notify the physician who is
84	84	the subject of the complaint of the name and address of the person
85	85	who filed the complaint, unless:
86	86	(1) the notice would jeopardize an investigation; or
87	87	(2) the complaint is filed by:
88	88	(A) a patient of the physician;
89	89	(B) a patient's parent or legal guardian if the
90	90	patient is a minor; or
91	91	(C) a patient's agent under a power of attorney.
92	92	(e) The board shall adopt rules as necessary to implement
93	93	this section.
94	94	SECTION 6. Sections 154.056(a), (b), and (e), Occupations
95	95	Code, are amended to read as follows:
96	96	(a) The board shall adopt rules concerning the
97	97	investigation and review of a complaint filed with the board. The
98	98	rules adopted under this section must:
99	99	(1) distinguish among categories of complaints and
100	100	give priority to complaints that involve sexual misconduct, quality
101	101	of care, and impaired physician issues;
102	102	(2) ensure that a complaint is not dismissed without
103	103	appropriate consideration;
104	104	(3) require that the board be advised of the dismissal
105	105	of a complaint and that a letter be sent to the person who filed the
106	106	complaint and to the physician who was the subject of the complaint
107	107	explaining the action taken on the complaint;
108	108	(4) ensure that a person who files a complaint has an
109	109	opportunity to explain the allegations made in the complaint;
110	110	(5) ensure that a physician who is the subject of a
111	111	complaint has at least 30 days after receiving a copy of the
112	112	complaint as provided by Section 154.053(a) to prepare and submit a
113	113	response;
114	114	(6) prescribe guidelines concerning the categories of
115	115	complaints that require the use of a private investigator and the
116	116	procedures for the board to obtain the services of a private
117	117	investigator;
118	118	(7) [(6)] provide for an expert physician panel
119	119	authorized under Subsection (e) to assist with complaints and
120	120	investigations relating to medical competency; and
121	121	(8) [(7)] require the review of reports filed with the
122	122	National Practitioner Data Bank for any report of the termination,
123	123	limitation, suspension, limitation in scope of practice, or
124	124	probation of clinical or hospital staff privileges of a physician
125	125	by:
126	126	(A) a hospital;
127	127	(B) a health maintenance organization;
128	128	(C) an independent practice association;
129	129	(D) an approved nonprofit health corporation
130	130	certified under Section 162.001; or
131	131	(E) a physician network.
132	132	(b) The board shall:
133	133	(1) dispose of each complaint in a timely manner; and
134	134	(2) establish a schedule for conducting each phase of
135	135	a complaint that is under the control of the board not later than
136	136	the 30th day after the date the physician's time for preparing and
137	137	submitting a response expires [board receives the complaint].
138	138	(e) The board by rule shall provide for an expert physician
139	139	panel appointed by the board to assist with complaints and
140	140	investigations relating to medical competency by acting as expert
141	141	physician reviewers. Each member of the expert physician panel
142	142	must be actively practicing [licensed to practice] medicine in this
143	143	state. The rules adopted under this subsection must include
144	144	provisions governing the composition of the panel, qualifications
145	145	for membership on the panel, length of time a member may serve on
146	146	the panel, grounds for removal from the panel, the avoidance of
147	147	conflicts of interest, including situations in which the affected
148	148	physician and the panel member live or work in the same geographical
149	149	area or are competitors, and the duties to be performed by the
150	150	panel. The board's rules governing grounds for removal from the
151	151	panel must include providing for the removal of a panel member who
152	152	is repeatedly delinquent in reviewing complaints and in submitting
153	153	reports to the board. The board's rules governing appointment of
154	154	expert physician panel members to act as expert physician reviewers
155	155	must include a requirement that the board randomly select, to the
156	156	extent permitted by Section 154.058(b) and the conflict of interest
157	157	provisions adopted under this subsection, panel members to review a
158	158	complaint.
159	159	SECTION 7. Section 154.0561, Occupations Code, is amended
160	160	by adding Subsection (e) to read as follows:
161	161	(e) The board shall deliver a copy of the preliminary and
162	162	final reports, including any dissenting or minority report, to the
163	163	physician who is the subject of the review.
164	164	SECTION 8. Section 154.057(b), Occupations Code, is amended
165	165	to read as follows:
166	166	(b) The board shall complete a preliminary investigation of
167	167	the complaint not later than the 45th [30th] day after the date of
168	168	receiving the complaint. The board shall first determine whether
169	169	the physician constitutes a continuing threat to the public
170	170	welfare. On completion of the preliminary investigation, the board
171	171	shall determine whether to officially proceed on the complaint. If
172	172	the board fails to complete the preliminary investigation in the
173	173	time required by this subsection, the board's official
174	174	investigation of the complaint is considered to commence on that
175	175	date.
176	176	SECTION 9. Section 154.058(b), Occupations Code, is amended
177	177	to read as follows:
178	178	(b) If the initial review under Subsection (a) indicates
179	179	that an act by a physician falls below an acceptable standard of
180	180	care, the complaint shall be reviewed by an expert physician panel
181	181	authorized under Section 154.056(e) consisting of physicians who
182	182	have an active practice in the same specialty as the physician who
183	183	is the subject of the complaint or in another specialty that is
184	184	similar to the physician's specialty.
185	185	SECTION 10. Section 164.003, Occupations Code, is amended
186	186	by amending Subsection (b) and adding Subsections (i) and (j) to
187	187	read as follows:
188	188	(b) Rules adopted under this section must require that:
189	189	(1) an informal meeting in compliance with Section
190	190	2001.054, Government Code, be scheduled not later than the 180th
191	191	day after the date the board's official investigation of the
192	192	complaint is commenced as provided by Section 154.057(b), unless
193	193	good cause is shown by the board for scheduling the informal meeting
194	194	after that date;
195	195	(2) the board give notice to the license holder of the
196	196	time and place of the meeting not later than the 45th [30th] day
197	197	before the date the meeting is held;
198	198	(3) the complainant and the license holder be provided
199	199	an opportunity to be heard;
200	200	(4) at least one of the board members or district
201	201	review committee members participating in the informal meeting as a
202	202	panelist be a member who represents the public;
203	203	(5) the board's legal counsel or a representative of
204	204	the attorney general be present to advise the board or the board's
205	205	staff; and
206	206	(6) a member of the board's staff be at the meeting to
207	207	present to the board's representative the facts the staff
208	208	reasonably believes it could prove by competent evidence or
209	209	qualified witnesses at a hearing.
210	210	(i) On request by a physician under review, the board shall
211	211	make an audio recording of the informal settlement conference
212	212	proceeding and provide a copy of the audio recording to the
213	213	physician. The physician shall pay the costs of producing and
214	214	copying the requested audio recording.
215	215	(j) The audio recording is a part of the investigative file
216	216	and may not be released by the board to a third party unless
217	217	authorized under this subtitle.
218	218	SECTION 11. Section 164.0031(a), Occupations Code, is
219	219	amended to read as follows:
220	220	(a) In an informal meeting under Section 164.003 or an
221	221	informal hearing under Section 164.103, at least two panelists
222	222	shall be randomly appointed to determine whether an informal
223	223	disposition is appropriate, unless a panelist of the same or a
224	224	similar practice as the affected physician is available to serve in
225	225	the informal meeting or hearing. At least one of the panelists must
226	226	be a physician.
227	227	SECTION 12. Sections 164.007(a) and (a-1), Occupations
228	228	Code, are amended to read as follows:
229	229	(a) The board by rule shall adopt procedures governing
230	230	formal disposition of a contested case under Chapter 2001,
231	231	Government Code. A formal hearing shall be conducted by an
232	232	administrative law judge employed by the State Office of
233	233	Administrative Hearings. After receiving the administrative law
234	234	judge's findings of fact and conclusions of law, the board shall
235	235	dispose of the contested case by issuing a final order based on the
236	236	administrative law judge's findings of fact and conclusions of law
237	237	[determine the charges on the merits].
238	238	(a-1) Notwithstanding Section 2001.058(e), Government
239	239	Code, the [The] board may not change a finding of fact or conclusion
240	240	of law or vacate or modify an order of the administrative law judge.
241	241	The board may obtain judicial review of any finding of fact or
242	242	conclusion of law issued by the administrative law judge as
243	243	provided by Section 2001.058(f)(5), Government Code. For each
244	244	case, the board has the sole authority and discretion to determine
245	245	the appropriate action or sanction, and the administrative law
246	246	judge may not make any recommendation regarding the appropriate
247	247	action or sanction [only if the board makes a determination
248	248	required by Section 2001.058(e), Government Code].
249	249	SECTION 13. Section 164.009, Occupations Code, is amended
250	250	to read as follows:
251	251	Sec. 164.009. JUDICIAL REVIEW. (a) A person whose license
252	252	to practice medicine has been revoked or who is subject to other
253	253	disciplinary action by the board may appeal to a Travis County
254	254	district court not later than the 30th day after the date the board
255	255	decision is final.
256	256	(b) A person whose license to practice medicine has been
257	257	revoked is entitled to a jury trial in a district court in Travis
258	258	County.
259	259	SECTION 14. The changes in law made by this Act by the
260	260	amendment of Sections 152.002(a) and 152.003, Occupations Code,
261	261	apply only to a person appointed to the Texas Medical Board on or
262	262	after the effective date of this Act. A person appointed before the
263	263	effective date of this Act is governed by the law in effect on the
264	264	date the appointment is made, and the former law is continued in
265	265	effect for that purpose.
266	266	SECTION 15. The changes in law made by this Act relating to
267	267	the Texas Medical Board's complaint procedures apply only to a
268	268	complaint filed on or after the effective date of this Act. A
269	269	complaint filed before the effective date of this Act is governed by
270	270	the law in effect on the date the complaint is filed, and the former
271	271	law is continued in effect for that purpose.
272	272	SECTION 16. The changes in law made by this Act relating to
273	273	the Texas Medical Board's disciplinary authority apply only to
274	274	conduct that occurs on or after the effective date of this Act.
275	275	Conduct that occurs before the effective date of this Act is
276	276	governed by the law in effect on the date the conduct occurs, and
277	277	the former law is continued in effect for that purpose.
278	278	SECTION 17. Sections 164.007(a) and (a-1), Occupations
279	279	Code, as amended by this Act, apply only to a contested case for
280	280	which an administrative law judge employed by the State Office of
281	281	Administrative Hearings issues written findings of fact and
282	282	conclusions of law on or after the effective date of this Act. A
283	283	contested case for which an administrative law judge employed by
284	284	the State Office of Administrative Hearings issues written findings
285	285	of fact and conclusions of law before the effective date of this Act
286	286	is governed by the law in effect on the date the findings of fact and
287	287	conclusions of law were issued, and the former law is continued in
288	288	effect for that purpose.
289	289	SECTION 18. This Act takes effect September 1, 2011.