H.B. No. 680
AN ACT
relating to complaints filed with the Texas Medical Board.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 154.051, Occupations Code, is amended by
adding Subsections (d) and (e) 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 received by the board 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.
(e) On receipt of a complaint, the board may consider a
previously investigated complaint to determine whether there is a
pattern of practice violating this subtitle.
SECTION 2. 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.
(4) "Third-party administrator" means a person
required to have a certificate of authority under Chapter 4151,
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, insurer, pharmaceutical company, or third-party
administrator against a physician must include the name and address
of the insurance agent, insurer, pharmaceutical company, or
third-party administrator 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, insurer,
pharmaceutical company, or third-party administrator who filed the
complaint, unless the notice would jeopardize an investigation.
SECTION 3. 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 4. Subchapter A, Chapter 164, Occupations Code, is
amended by adding Section 164.0015 to read as follows:
Sec. 164.0015. REMEDIAL PLAN. (a) In addition to the
authority under Sections 164.001 and 164.002, the board may issue
and establish the terms of a remedial plan to resolve the
investigation of a complaint relating to this subtitle.
(b) A remedial plan may not contain a provision that:
(1) revokes, suspends, limits, or restricts a person's
license or other authorization to practice medicine; or
(2) assesses an administrative penalty against a
person.
(c) A remedial plan may not be imposed to resolve a
complaint:
(1) concerning:
(A) a patient death;
(B) the commission of a felony; or
(C) a matter in which the physician engaged in
inappropriate sexual behavior or contact with a patient or became
financially or personally involved with a patient in an
inappropriate manner; or
(2) in which the appropriate resolution may involve a
restriction on the manner in which a license holder practices
medicine.
(d) The board may not issue a remedial plan to resolve a
complaint against a license holder if the license holder has
previously entered into a remedial plan with the board for the
resolution of a different complaint relating to this subtitle.
(e) The board may assess a fee against a license holder
participating in a remedial plan in an amount necessary to recover
the costs of administering this plan.
(f) The board shall adopt rules necessary to implement this
section.
SECTION 5. Sections 164.002(c) and (d), Occupations Code,
are amended to read as follows:
(c) An agreed disposition is a disciplinary order for
purposes of reporting under this subtitle and of administrative
hearings and proceedings by state and federal regulatory agencies
regarding the practice of medicine. An agreed disposition or a
remedial plan under Section 164.0015 is public information.
(d) In civil litigation, an agreed disposition or a remedial
plan under Section 164.0015 is a settlement agreement under Rule
408, Texas Rules of Evidence. This subsection does not apply to a
license holder who has previously entered into an agreed
disposition with the board of a different disciplinary matter or
whose license the board is seeking to revoke.
SECTION 6. 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 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.
(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 the physician a fee to cover the cost of
recording the proceeding.
SECTION 7. 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 8. (a) Sections 154.051, 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.
(b) The Texas Medical Board shall adopt rules under Section
164.0015, Occupations Code, as added by this Act, not later than
January 1, 2012.
(c) Section 164.0015, Occupations Code, as added by this
Act, applies only to a complaint under Subtitle B, Title 3,
Occupations Code, filed on or after the effective date of this Act.
A complaint under Subtitle B, Title 3, Occupations Code, 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.
(d) 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 9. This Act takes effect September 1, 2011.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 680 was passed by the House on May 13,
2011, by the following vote: Yeas 137, Nays 1, 1 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 680 on May 27, 2011, by the following vote: Yeas 140, Nays 0, 2
present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 680 was passed by the Senate, with
amendments, on May 25, 2011, by the following vote: Yeas 31, Nays
0
.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor