82R698 YDB-F
By: Nelson S.B. No. 188
A BILL TO BE ENTITLED
AN ACT
relating to the licensing and regulation of genetic counselors;
providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle I, Title 3, Occupations Code, is
amended by adding Chapter 506 to read as follows:
CHAPTER 506. LICENSED GENETIC COUNSELORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 506.001. SHORT TITLE. This chapter may be cited as the
Licensed Genetic Counselor Act.
Sec. 506.002. GENERAL DEFINITIONS. In this chapter:
(1) "Advisory committee" means the Licensed Genetic
Counselor Advisory Committee.
(2) "Board" means the Texas Medical Board.
(3) "Executive director" means the executive director
of the board.
(4) "Licensed genetic counselor" means a person
licensed under this chapter to engage in the practice of genetic
counseling.
Sec. 506.003. DEFINITION: PRACTICE OF GENETIC COUNSELING.
In this chapter, "practice of genetic counseling" means, on the
documented referral by a physician licensed to practice medicine in
this state or by a person acting under authority delegated under
Subchapter A, Chapter 157, providing professional services for
compensation to communicate genetic information to an individual,
family, group, or other entity. The term includes:
(1) assessing the likelihood of an occurrence or
recurrence of a birth defect or a potentially inherited or
genetically influenced condition, including:
(A) obtaining and analyzing a complete health
history of an individual and family;
(B) reviewing pertinent medical records;
(C) evaluating the risks associated with
exposure to possible mutagens or teratogens; and
(D) recommending genetic testing to evaluate a
condition or determine the carrier status of a family member;
(2) assisting an individual, family, or group to:
(A) appreciate the medical, psychological, and
social implications of a disorder, including the disorder's
features, variability, usual course, and management options;
(B) understand the effect genetic factors have on
a disorder and on the chance for recurrence of the disorder in other
family members;
(C) understand the options available for coping
with, preventing, or reducing the occurrence or recurrence of a
condition; and
(D) understand genetic or prenatal tests and
coordinate testing for inherited disorders; and
(3) facilitating an individual's or family's:
(A) examination of the risk and burden perception
associated with the disorder;
(B) decision-making related to testing or
medical interventions consistent with the individual's or family's
beliefs, goals, needs, resources, culture, and ethical or moral
views; and
(C) adjustment and adaptation to the disorder or
to the individual's or family's genetic risk by addressing the need
for psychological, social, and medical support.
Sec. 506.004. PRACTICE OF MEDICINE NOT AUTHORIZED. This
chapter does not authorize:
(1) the practice of medicine as defined by Subtitle B,
Title 3; or
(2) the making of a medical diagnosis.
Sec. 506.005. APPLICATION OF SUNSET ACT. The Licensed
Genetic Counselor Advisory Committee is subject to Chapter 325,
Government Code (Texas Sunset Act). Unless continued in existence
as provided by that chapter, the advisory committee is abolished
and this chapter expires September 1, 2021.
Sec. 506.006. APPLICABILITY; EXEMPTIONS. (a) This
chapter does not apply to a physician licensed to practice medicine
in this state unless the physician is a licensed genetic counselor.
(b) A person may engage in the practice of genetic
counseling without holding a license under this chapter if the
person:
(1) is licensed, certified, or registered to practice
in this state in a health care-related field and engages in an
activity or service of genetic counseling but does not use the title
"genetic counselor" or represent or imply the person is licensed as
a genetic counselor under this chapter;
(2) is a student:
(A) pursuing a course of study or engaged in a
training program for an occupation regulated by this state and
acting within the occupation's scope of practice; or
(B) enrolled in a board-approved supervised
genetic counseling training program and engaged in an activity
constituting the practice of genetic counseling as a required part
of the training program; or
(3) is a genetic counselor who:
(A) is certified by the American Board of Medical
Genetics, the American Board of Genetic Counseling, or another
certification body approved by the board;
(B) is not a resident of this state;
(C) performs an activity or provides a service in
this state for not more than 30 days during any year and the
activity or service is under the direction and supervision of a
physician licensed to practice medicine in this state or a licensed
genetic counselor; and
(D) meets any other requirements established by
board rule.
(c) A student described by Subsection (b)(2) includes an
individual who:
(1) is trained as:
(A) a genetic counselor and has applied to take
the certification examination; or
(B) a doctoral medical geneticist and has applied
to take the certification examination; and
(2) has not failed the certification examination more
than two times.
[Sections 506.007-506.050 reserved for expansion]
SUBCHAPTER B. ADVISORY COMMITTEE
Sec. 506.051. ADVISORY COMMITTEE. (a) The advisory
committee is an informal advisory committee to the board and is not
subject to Chapter 2110, Government Code.
(b) The advisory committee has no independent rulemaking
authority.
Sec. 506.052. APPOINTMENT OF ADVISORY COMMITTEE. The
advisory committee consists of seven members appointed by the
president of the board as follows:
(1) two licensed physician members, one of whom is a
board certified obstetrician gynecologist, a board certified
oncologist, or a board certified clinical geneticist; and
(2) five licensed genetic counselor members, each of
whom:
(A) has engaged for at least two years in the
practice of genetic counseling as a genetic counselor:
(i) licensed under this chapter; or
(ii) certified by the American Board of
Medical Genetics, the American Board of Genetic Counseling, or
another certification body approved by the board;
(B) is a United States citizen; and
(C) has been a resident of this state for not less
than six months preceding appointment.
Sec. 506.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS.
(a) In this section, "Texas trade association" means a cooperative
and voluntarily joined association of business or professional
competitors in this state designed to assist its members and its
industry or profession in dealing with mutual business or
professional problems and in promoting their common interest.
(b) A person may not be an advisory committee member if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of genetic
counseling; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in the field of genetic
counseling.
(c) A person may not be an advisory committee member if the
person is required to register as a lobbyist under Chapter 305,
Government Code, because of the person's activities for
compensation on behalf of a profession related to the field of
genetic counseling.
Sec. 506.054. TERMS; VACANCY. (a) Advisory committee
members serve two-year terms. The terms expire on February 1 of
each odd-numbered year.
(b) If a vacancy occurs during an advisory committee
member's term, the president of the board shall appoint a new member
to fill the unexpired term.
(c) An advisory committee member may not serve more than two
consecutive full terms.
Sec. 506.055. GROUNDS FOR REMOVAL. (a) It is a ground for
removal from the advisory committee that a member:
(1) does not have at the time of appointment the
qualifications required by Section 506.052;
(2) does not maintain during service on the advisory
committee the qualifications required by Section 506.052;
(3) is ineligible for membership under Section
506.053;
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) has had a restriction, suspension, or revocation
of a license to perform genetic counseling in this state or any
other state.
(b) The executive director shall review the qualifications
of the advisory committee members and notify the board of any action
that may be required.
(c) The validity of an action of the advisory committee is
not affected by the fact that it is taken when a ground for removal
of a member exists.
Sec. 506.056. OFFICERS. The president of the board
biennially shall designate an advisory committee member as the
presiding officer of the advisory committee to serve in that
capacity at the will of the president.
Sec. 506.057. PER DIEM. An advisory committee member is not
entitled to reimbursement for travel expenses or compensation.
Sec. 506.058. MEETINGS. (a) The advisory committee shall
meet as requested by the board.
(b) A meeting may be held by telephone or other electronic
conference call.
[Sections 506.059-506.100 reserved for expansion]
SUBCHAPTER C. POWERS AND DUTIES OF BOARD
AND EXECUTIVE DIRECTOR
Sec. 506.101. GENERAL POWERS AND DUTIES. The board, in
consultation with the advisory committee, shall:
(1) establish qualifications for licensed genetic
counselors in this state;
(2) establish the examination requirements for
issuance of a licensed genetic counselor license;
(3) establish minimum education and training
requirements necessary for issuance of a licensed genetic counselor
license;
(4) prescribe the application form for issuance of a
licensed genetic counselor license; and
(5) develop an approved program of mandatory
continuing education for licensed genetic counselors and the manner
in which attendance at all approved courses, clinics, forums,
lectures, programs, or seminars is monitored and recorded.
Sec. 506.102. RULES. In consultation with the advisory
committee, the board shall adopt rules to implement and enforce
this chapter.
Sec. 506.103. FEES; SPECIAL ACCOUNT. (a) The board by
rule shall set fees required by this chapter in amounts reasonable
and necessary to cover the costs of administering this chapter.
(b) The board shall deposit all the fees collected to the
credit of the genetic counseling licensing account. The genetic
counseling licensing account is a special account in the general
revenue fund that may be appropriated only to the board to pay for
the board's administration of this chapter.
Sec. 506.104. ANNUAL REPORT. (a) The board annually shall
prepare a complete and detailed written report accounting for all
money received and disbursed by the board under this chapter during
the preceding fiscal year.
(b) The annual report must meet the reporting requirements
applicable to financial reporting provided by the General
Appropriations Act.
Sec. 506.105. GIFTS, GRANTS, AND DONATIONS. In addition to
any fees paid to the board or money appropriated to the board, the
board may receive and accept under this chapter a gift, grant,
donation, or other item of value from any source, including the
United States or a private source.
[Sections 506.106-506.150 reserved for expansion]
SUBCHAPTER D. PUBLIC INTEREST INFORMATION;
COMPLAINT AND INVESTIGATIVE INFORMATION
Sec. 506.151. PUBLIC PARTICIPATION. (a) The board shall
develop and implement policies that provide the public with a
reasonable opportunity to appear before the board and speak on any
issue relating to genetic counseling.
(b) The executive director shall prepare and maintain a
written plan that describes how a person who does not speak English
may be provided reasonable access to the board's programs and
services under this chapter.
Sec. 506.152. PUBLIC INTEREST INFORMATION. (a) The board
shall prepare information of public interest describing the
functions of the board under this chapter and the procedure by which
complaints are filed and resolved under this chapter.
(b) The board shall make the information available to the
public and appropriate state agencies.
Sec. 506.153. COMPLAINTS. (a) The board by rule shall
establish methods by which consumers are notified of the name,
mailing address, and telephone number of the board for the purpose
of directing complaints about licensed genetic counselors to the
board.
(b) The board shall list with its regular telephone number
any toll-free telephone number established under other state law
that may be called to present a complaint about a licensed genetic
counselor.
Sec. 506.154. RECORDS OF COMPLAINTS. (a) The board shall
maintain a file on each written complaint filed with the board under
this chapter. The file must include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the board;
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the board closed the file without taking action other than to
investigate the complaint.
(b) The board shall provide to the person filing the
complaint and to each person who is a subject of the complaint a
copy of the board's policies and procedures relating to complaint
investigation and resolution. A person who reports a complaint by
telephone shall be given information on how to file a written
complaint.
(c) The board, at least quarterly and until final
disposition of the complaint, shall notify the person filing the
complaint and each person who is a subject of the complaint of the
status of the investigation unless the notice would jeopardize an
ongoing investigation.
Sec. 506.155. LICENSE HOLDER ACCESS TO COMPLAINT
INFORMATION. (a) The board shall provide a license holder who is
the subject of a formal complaint filed under this chapter with
access to all information in its possession that the board intends
to offer into evidence in presenting its case in chief at the
contested hearing on the complaint, subject to any other privilege
or restriction established by rule, statute, or legal precedent.
The board shall provide the information not later than the 30th day
after receipt of a written request from the license holder or the
license holder's counsel, unless good cause is shown for delay.
(b) Notwithstanding Subsection (a), the board is not
required to provide:
(1) board investigative reports;
(2) investigative memoranda;
(3) the identity of a non-testifying complainant;
(4) attorney-client communications;
(5) attorney work product; or
(6) other material covered by a privilege recognized
by the Texas Rules of Civil Procedure or the Texas Rules of
Evidence.
Sec. 506.156. HEALTH CARE ENTITY REQUEST FOR INFORMATION.
On the written request of a health care entity, the board shall
provide to the entity:
(1) information about a complaint filed against the
license holder that was resolved after investigation by:
(A) a disciplinary order of the board; or
(B) an agreed settlement; and
(2) the basis of and current status of any complaint
under active investigation that has been referred by the executive
director or the director's designee for legal action.
Sec. 506.157. CONFIDENTIALITY OF INVESTIGATIVE
INFORMATION. The following information is privileged and
confidential and is not subject to discovery, subpoena, or other
means of legal compulsion for release to any person other than the
board or board employee or agent involved in license holder
discipline:
(1) a complaint, adverse report, investigation file,
or other report;
(2) the identity of and reports made by a physician or
licensed genetic counselor performing or supervising compliance or
monitoring for the board; or
(3) other investigative information in the possession
of, received by, or gathered by the board or a board employee or
agent relating to a license holder, a license application, or a
criminal investigation or proceeding.
Sec. 506.158. PERMITTED DISCLOSURE OF INVESTIGATIVE
INFORMATION. (a) Notwithstanding Section 506.157, investigative
information in the possession of the board or a board employee or
agent may be disclosed to a licensing authority in another state or
country in which the license holder is licensed or has applied for a
license or similar authority.
(b) If the investigative information in the possession of
the board or a board employee or agent indicates a crime may have
been committed, the board shall report the information to the
proper law enforcement agency. The board shall cooperate with and
assist all law enforcement agencies conducting criminal
investigations of a license holder by providing information
relevant to the investigation.
(c) Confidential information disclosed by the board to a law
enforcement agency remains confidential and may not be disclosed by
the law enforcement agency except as necessary to further the
investigation or prosecution.
Sec. 506.159. IMMUNITY AND REPORTING REQUIREMENTS.
(a) Any person, including a physician or genetic counselor, shall
report relevant information to the board related to the acts of a
licensed genetic counselor in this state if, in that person's
opinion, the licensed genetic counselor poses a continuing threat
to the public welfare. The duty to report under this section may
not be nullified through contract.
(b) A person who without malice furnishes records,
information, or assistance to the board under this section is
immune from any civil liability arising from that action in a suit
against the person brought by or on behalf of a licensed genetic
counselor who is reported under this section.
[Sections 506.160-506.200 reserved for expansion]
SUBCHAPTER E. LICENSING REQUIREMENTS
Sec. 506.201. LICENSE REQUIRED. (a) Except as provided by
Section 506.006, a person may not act as a genetic counselor or
engage in the practice of genetic counseling in this state unless
the person holds a license under this chapter.
(b) Except as provided by Section 506.006, a person may not
use the title or represent or imply the person has the title
"genetic counselor," "certified genetic counselor," "licensed
genetic counselor," "gene counselor," "genetic consultant," or
"genetic associate" or use any other word, abbreviation, or
insignia indicating or implying the person is a licensed genetic
counselor unless the person holds a license under this chapter.
(c) Nothing in this chapter may be construed to prohibit a
physician or an employee or other person acting under the
physician's delegated authority from representing to a patient or
the public that the physician, employee, or person provides genetic
counseling.
Sec. 506.202. LICENSE APPLICATION. An applicant for a
license must:
(1) file a written application with the board on a form
prescribed by the board; and
(2) pay the application fee set by the board.
Sec. 506.203. LICENSE ELIGIBILITY. (a) To be eligible for
a license, a license applicant must demonstrate to the satisfaction
of the board that the applicant:
(1) is of good moral character;
(2) has not been convicted of a felony or a crime
involving moral turpitude;
(3) has not used drugs or alcohol to an extent that
affects the applicant's professional competency;
(4) has not had a certificate of registration or
license revoked by a licensing agency or by a certifying
professional organization; and
(5) has not engaged in fraud or deceit in applying for
a license under this chapter.
(b) In addition to meeting the requirements of Subsection
(a), an applicant must:
(1) successfully complete the examination required by
Section 506.204;
(2) have successfully completed:
(A) a master's degree in a genetic counseling
training program that is approved by the board and that is at least
as stringent as a genetic counseling training program accredited by
the American Board of Genetic Counselors; or
(B) a master's degree in a medical genetics
training program that is approved by the board and that is at least
as stringent as a medical genetics training program accredited by
the American Board of Medical Genetics; and
(3) meet any other requirement prescribed by the
board.
Sec. 506.204. EXAMINATION. (a) An applicant for a license
under this chapter must successfully complete an examination
approved by the board that demonstrates the applicant's knowledge
of genetic counseling.
(b) The board shall adopt rules to govern the development
and administration of an examination for issuance of a genetic
counselor license. Any written portion of the examination must be
validated by an independent testing professional.
Sec. 506.205. TEMPORARY LICENSE. (a) The board may,
through the executive director, issue a temporary license to an
applicant who:
(1) submits an application on a form prescribed by the
board;
(2) has successfully completed the examination
required by the board;
(3) pays the appropriate fee set by the board; and
(4) meets all the qualifications for a license under
this chapter and is waiting for the next scheduled meeting of the
board for the license to be issued.
(b) A temporary license is valid until the 100th day after
the date issued and may be extended until the 130th day after the
date issued.
Sec. 506.206. ISSUANCE OF LICENSE. The board shall issue a
genetic counselor license to a person who meets the requirements of
this chapter and the rules adopted under this chapter.
Sec. 506.207. TERM; RENEWAL. (a) A genetic counselor
license expires on the second anniversary of the date of issuance.
The board by rule shall provide for the renewal of the license.
(b) The board by rule may adopt a system under which
licenses expire on various dates during the year. For the year in
which the license expiration date is changed, license fees shall be
prorated on a monthly basis so that each license holder pays only
that portion of the license fee that is allocable to the number of
months during which the license or license renewal is valid. On
renewal of the license on the new expiration date, the total license
renewal fee is payable.
Sec. 506.208. NOTICE OF LICENSE EXPIRATION. At least 30
days before the expiration of a person's license, the board shall
send written notice of the impending license expiration to the
license holder's last known address according to the records of the
board.
Sec. 506.209. PROCEDURE FOR RENEWAL. (a) A person who is
otherwise eligible to renew a license may renew an unexpired
license by paying the required renewal fee to the board before the
expiration date of the license. A person whose license has expired
may not engage in activities that require a license.
(b) If the person's license has been expired for 90 days or
less, the person may renew the license by paying to the board one
and one-half times the required renewal fee.
(c) If the person's license has been expired for longer than
90 days but less than one year, the person may renew the license by
paying to the board two times the required renewal fee.
(d) If the person's license has been expired for one year or
longer, the person may not renew the license. The person may obtain
a new license by complying with the requirements and procedures for
obtaining an original license.
[Sections 506.210-506.300 reserved for expansion]
SUBCHAPTER F. DISCIPLINARY PROCEEDINGS
Sec. 506.301. DISCIPLINARY ACTIONS BY BOARD. (a) On a
determination that an applicant or license holder committed an act
or attempted to commit an act described by Section 506.302,
506.303, or 506.304, the board by order may take any of the
following actions:
(1) deny the person's license application or revoke
the person's license;
(2) require the person to complete additional
training;
(3) stay the enforcement of an order and place the
person on probation;
(4) require the person to submit to the care,
counseling, or treatment of a health care practitioner designated
by the board;
(5) suspend, limit, or restrict the person's license,
including:
(A) limiting the practice of the person to, or
excluding from the person's practice, one or more of the specified
activities of genetic counseling; or
(B) stipulating periodic board review;
(6) assess an administrative penalty against the
person as provided by Section 506.351; or
(7) administer a public reprimand.
(b) If the board stays enforcement of an order and places a
person on probation, the board retains the right to:
(1) vacate the probationary stay and enforce the
original order for noncompliance with the terms of probation; or
(2) impose any other remedial measure or sanction
authorized by this section.
(c) The board may restore or reissue a license or remove any
disciplinary or corrective measure that the board has imposed.
Sec. 506.302. CONDUCT RELATED TO MISREPRESENTATION OR
FRAUD. The board may take action under Section 506.301 against an
applicant or a license holder who:
(1) fraudulently or deceptively obtains or attempts to
obtain a license;
(2) fraudulently or deceptively uses a license;
(3) falsely represents that the person is a physician,
nurse, physician assistant, or other licensed health care provider;
(4) acts in an unprofessional or dishonorable manner
that is likely to deceive, defraud, or injure the public;
(5) fraudulently alters any license;
(6) uses any genetic counselor license that has been
fraudulently purchased, issued, or counterfeited or that has been
materially altered;
(7) directly or indirectly aids or abets the practice
of genetic counseling by any person not authorized to practice
genetic counseling under this chapter; or
(8) unlawfully advertises in a false, misleading, or
deceptive manner as defined in Section 101.201.
Sec. 506.303. CONDUCT RELATED TO VIOLATION OF LAW.
(a) The board may take action under Section 506.301 against an
applicant or license holder who:
(1) violates this chapter or a rule adopted under this
chapter;
(2) is convicted of a felony, placed on deferred
adjudication, or placed in a pretrial diversion program; or
(3) violates state law if the violation is connected
with the practice of genetic counseling.
(b) A complaint, indictment, or conviction of a law
violation is not necessary for the board to act under Subsection
(a)(3). Proof of the commission of the act while in practice as a
genetic counselor or under the guise of a genetic counselor is
sufficient for action by the board.
Sec. 506.304. CONDUCT INDICATING LACK OF FITNESS. (a) The
board may take action under Section 506.301 against an applicant or
license holder who:
(1) habitually uses drugs or intoxicating liquors to
the extent that, in the board's opinion, the person cannot safely
act as a genetic counselor;
(2) has been adjudicated as mentally incompetent;
(3) has a mental or physical condition that renders
the person unable to safely act as a genetic counselor;
(4) has committed an act of moral turpitude;
(5) has failed to practice genetic counseling in an
acceptable manner consistent with public health and welfare;
(6) has had the person's license or other
authorization to practice genetic counseling suspended, revoked,
or restricted;
(7) has had other disciplinary action taken by another
state regarding the practice of genetic counseling;
(8) was removed or suspended or has had disciplinary
action taken by the person's peers in any professional association
or society, if that action, in the opinion of the board, was based
on unprofessional conduct or professional incompetence that was
likely to harm the public;
(9) has repeated or recurring meritorious
professional liability claims that, in the board's opinion, are
evidence of professional incompetence likely to harm the public; or
(10) sexually abuses or exploits another person during
the person's practice of genetic counseling.
(b) An action described by Subsection (a)(8) does not
constitute state action on the part of the association or society.
Sec. 506.305. SUBPOENA. (a) The executive director, the
director's designee, or the secretary-treasurer of the board may
issue a subpoena or subpoena duces tecum:
(1) to conduct an investigation or a contested case
proceeding related to:
(A) alleged misconduct by a genetic counselor;
(B) an alleged violation of this chapter or
another law related to the practice of genetic counseling; or
(C) the practice of genetic counseling under this
chapter;
(2) for purposes of determining whether to issue,
suspend, restrict, or revoke a license under this chapter; or
(3) for purposes of determining whether to issue or
deny a license under this chapter.
(b) Failure to timely comply with a subpoena issued under
this section is a ground for:
(1) disciplinary action by the board or another
licensing or regulatory agency with jurisdiction over the person
subject to the subpoena; and
(2) denial of a license or license application.
Sec. 506.306. PROTECTION OF PATIENT IDENTITY. In a
disciplinary investigation or proceeding conducted under this
chapter, the board shall protect the identity of each patient whose
medical records are examined and used in a public proceeding unless
the patient:
(1) testifies in a public proceeding; or
(2) submits to the board a written release in regard to
the patient's record or identity.
Sec. 506.307. RULES FOR DISCIPLINARY PROCEEDINGS. Rules of
practice adopted under this chapter by the board under Section
2001.004, Government Code, applicable to the proceedings for a
disciplinary action may not conflict with rules adopted by the
State Office of Administrative Hearings.
Sec. 506.308. REQUIRED SUSPENSION OF INCARCERATED GENETIC
COUNSELOR. Regardless of the offense, the board shall suspend the
license of a licensed genetic counselor serving a prison term in a
state or federal penitentiary during the term of the incarceration.
Sec. 506.309. TEMPORARY SUSPENSION. (a) The president of
the board, with board approval, shall appoint a three-member
disciplinary panel consisting of board members to determine whether
a licensed genetic counselor's license should be temporarily
suspended.
(b) If the disciplinary panel determines from the evidence
or information presented to the panel that a licensed genetic
counselor would, by continuing in practice, constitute a threat to
the public welfare, the disciplinary panel shall temporarily
suspend the license.
(c) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) institution of proceedings for a hearing before
the board is initiated simultaneously with the temporary
suspension; and
(2) a hearing is held under Chapter 2001, Government
Code, and this chapter as soon as possible.
(d) Notwithstanding Chapter 551, Government Code, the
disciplinary panel may hold a meeting by telephone conference call
if immediate action is required and convening the disciplinary
panel at one location is inconvenient for any member of the panel.
Sec. 506.310. INFORMAL PROCEEDINGS. (a) The board by rule
shall adopt procedures under this chapter governing:
(1) informal disposition of a contested case under
Section 2001.056, Government Code; and
(2) informal proceedings held in compliance with
Section 2001.054, Government Code.
(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, 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 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 board member or committee member
participating in the informal meeting as a member of the
disciplinary panel 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 panel the facts that the staff reasonably believes
could be proven by competent evidence or qualified witnesses at a
hearing.
(c) An affected license holder is entitled, orally or in
writing, to:
(1) reply to the staff's presentation; and
(2) present the facts the license holder reasonably
believes the license holder could prove by competent evidence or
qualified witnesses at a hearing.
(d) After ample time is given for the presentations, the
board panel shall recommend that the investigation be closed or
shall attempt to mediate the disputed matters and make a
recommendation regarding the disposition of the case in the absence
of a hearing under applicable law concerning contested cases.
(e) If the license holder has previously been the subject of
disciplinary action by the board, the board shall schedule the
informal meeting as soon as practicable but not later than the
deadline prescribed by Subsection (b)(1).
Sec. 506.311. ROLES AND RESPONSIBILITIES OF PARTICIPANT IN
INFORMAL PROCEEDINGS. (a) A board or committee member that serves
as a panelist at an informal meeting under Section 506.310 shall
make recommendations for the disposition of a complaint or
allegation. The member may request the assistance of a board
employee at any time.
(b) Board employees shall present a summary of the
allegations against the affected license holder and offer the facts
pertaining to the allegation that the employees reasonably believe
may be proven by competent evidence at a formal hearing.
(c) A board attorney shall act as counsel to the panel and,
notwithstanding Subsection (e), shall be present during the
informal meeting and the panel's deliberation to advise the panel
on legal issues that arise during the proceeding. The attorney may
ask questions of participants in the informal meeting to clarify
any statement made by the participant.
(d) The attorney shall provide to the panel a historical
perspective on comparable cases that have appeared before the
board, keep the proceedings focused on the case being discussed,
and ensure that the board's employees and the affected license
holder have an opportunity to present information related to the
case.
(e) During the panel's deliberations, the attorney may be
present only to advise the panel on legal issues and to provide
information on comparable cases that have appeared before the
board.
[Sections 506.312-506.350 reserved for expansion]
SUBCHAPTER G. ADMINISTRATIVE PENALTY
Sec. 506.351. ADMINISTRATIVE PENALTY. (a) The board by
order may impose an administrative penalty against a person
licensed under this chapter who violates this chapter or a rule or
order adopted under this chapter.
(b) The penalty may be in an amount not to exceed $5,000.
Each day a violation continues or occurs is a separate violation for
purposes of imposing a penalty.
(c) The board shall base the amount of the penalty on:
(1) the severity of patient harm;
(2) the severity of economic harm to any person;
(3) the increased potential of harm to the public;
(4) any attempted concealment of misconduct;
(5) the motive for the violation;
(6) any prior misconduct of a similar or related
nature;
(7) the license holder's disciplinary history;
(8) any prior written warning or written admonishments
from any government agency or official regarding statutes or rules
relating to the misconduct;
(9) whether the violation is of a board order;
(10) the person's failure to implement remedial
measures to correct or mitigate harm from the misconduct;
(11) the person's lack of rehabilitative potential or
likelihood of future misconduct of a similar nature;
(12) any relevant circumstances increasing the
seriousness of the misconduct; or
(13) any other matter that justice may require.
Sec. 506.352. NOTICE OF VIOLATION AND PENALTY. If the board
by order determines that a violation has occurred and imposes an
administrative penalty, the board shall give notice to the person
of the order. The notice must include a statement of the person's
right to judicial review of the order.
Sec. 506.353. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Not later than the 30th day after the date the board's order
imposing the administrative penalty is final, the person shall:
(1) pay the penalty;
(2) pay the penalty and file a petition for judicial
review contesting the occurrence of the violation, the amount of
the penalty, or both; or
(3) without paying the penalty, file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under
Subsection (a)(3) may:
(1) stay the enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court for the amount of the penalty and that is effective
until all judicial review of the board's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court an affidavit of the
person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
executive director by certified mail.
(c) If the executive director receives a copy of an
affidavit under Subsection (b)(2), the executive director may file
with the court a contest to the affidavit not later than the fifth
day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 506.354. COLLECTION OF PENALTY. If the person does not
pay the administrative penalty and the enforcement of the penalty
is not stayed, the executive director may refer the matter to the
attorney general for collection of the penalty.
Sec. 506.355. DETERMINATION BY COURT. (a) If on appeal
the court sustains the determination that a violation occurred, the
court may uphold or reduce the amount of the administrative penalty
and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 506.356. REMITTANCE OF PENALTY AND INTEREST. (a) If
after judicial review the administrative penalty is reduced or not
imposed by the court, the court shall, after the judgment becomes
final:
(1) order that the appropriate amount, plus accrued
interest, be remitted to the person if the person paid the penalty;
or
(2) order the release of the bond in full if the
penalty is not imposed or order the release of the bond after the
person pays the penalty imposed if the person posted a supersedeas
bond.
(b) The interest paid under Subsection (a)(1) is a rate
charged on loans to depository institutions by the New York Federal
Reserve Bank. The interest is paid for the period beginning on the
date the penalty is paid and ending on the date the penalty is
remitted.
[Sections 506.357-506.400 reserved for expansion]
SUBCHAPTER H. INJUNCTIVE RELIEF
Sec. 506.401. INJUNCTIVE AUTHORITY. In addition to any
other action authorized by law, the board may institute an action in
its own name to enjoin a violation of this chapter.
SECTION 2. (a) Not later than October 1, 2011, the
president of the Texas Medical Board shall appoint the members of
the Licensed Genetic Counselor Advisory Committee created under
Chapter 506, Occupations Code, as added by this Act.
(b) The Texas Medical Board shall adopt rules under Chapter
506, Occupations Code, as added by this Act, not later than June 30,
2012.
SECTION 3. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2011.
(b) Section 506.201, Occupations Code, as added by this Act,
and Subchapters F, G, and H, Chapter 506, Occupations Code, as added
by this Act, take effect July 1, 2012.