By: Smith H.B. No. 2380
A BILL TO BE ENTITLED
AN ACT
relating to appearances at an informal show compliance proceeding
and settlement conference.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 151, Occupations Code, is
amended to read as follows:
Sec. 151.002. DEFINITIONS. (a) In this subtitle:
(1) "Appear" means an opportunity to be heard at an
Informal Show Compliance proceeding and settlement conference
(ISC) under Chapter 164 of this subtitle via videoconference, or if
a respondent cannot utilize videoconference to appear via
teleconference.
(2) [(1)] "Board" means the Texas Medical Board.
(3) [(2)] "Continuing threat to the public welfare"
means a real danger to the health of a physician's patients or to
the public from the acts or omissions of the physician caused
through the physician's lack of competence, impaired status, or
failure to care adequately for the physician's patients, as
determined by:
(A) the board;
(B) a medical peer review committee in this
state;
(C) a physician licensed to practice medicine in
this state or otherwise lawfully practicing medicine in this state;
(D) a physician engaged in graduate medical
education or training; or
(E) a medical student.
(4) [(3)] "Disciplinary order" means an action taken
under Section 164.001, 164.053, 164.058, or 164.101.
(5) [(4)] "Doctor of osteopathic medicine" includes a
doctor of osteopathy, an osteopath, an osteopathic physician, and
an osteopathic surgeon.
(6) [(5)] "Health care entity" means:
(A) a hospital licensed under Chapter 241 or 577,
Health and Safety Code;
(B) an entity, including a health maintenance
organization, group medical practice, nursing home, health science
center, university medical school, hospital district, hospital
authority, or other health care facility, that:
(i) provides or pays for medical care or
health care services; and
(ii) follows a formal peer review process
to further quality medical care or health care;
(C) a professional society or association of
physicians, or a committee of such a society or association, that
follows a formal peer review process to further quality medical
care or health care;
(D) an organization established by a
professional society or association of physicians, hospitals, or
both, that:
(i) collects and verifies the authenticity
of documents and other information concerning the qualifications,
competence, or performance of licensed health care professionals;
and
(ii) acts as a health care facility's agent
under the Health Care Quality Improvement Act of 1986 (42 U.S.C.
Section 11101 et seq.); or
(E) a health care collaborative certified under
Chapter 848, Insurance Code.
(7) [(6)] "Legally authorized representative" of a
patient means:
(A) a parent or legal guardian if the patient is a
minor;
(B) a legal guardian if the patient has been
adjudicated incompetent to manage the patient's personal affairs;
(C) an agent of the patient authorized under a
durable power of attorney for health care;
(D) an attorney ad litem appointed for the
patient;
(E) a guardian ad litem appointed for the
patient;
(F) a personal representative or statutory
beneficiary if the patient is deceased; or
(G) an attorney retained by the patient or by
another person listed by this subdivision.
(7-a) [(6)] "License holder" means a person holding a
license, permit, or certificate issued under this subtitle.
(7-b) [(6)] "Maintenance of certification" means the
satisfactory completion of periodic recertification requirements
that are required for a physician to maintain certification after
initial certification from:
(A) a medical specialty member board of the
American Board of Medical Specialties;
(B) a medical specialty member board of the
American Osteopathic Association Bureau of Osteopathic
Specialists;
(C) the American Board of Oral and Maxillofacial
Surgery; or
(D) any other certifying board that is recognized
by the Texas Medical Board.
(8) [(7)] "Medical peer review" or "professional
review action" means the evaluation of medical and health care
services, including evaluation of the qualifications and
professional conduct of professional health care practitioners and
of patient care provided by those practitioners. The term includes
evaluation of the:
(A) merits of a complaint relating to a health
care practitioner and a determination or recommendation regarding
the complaint;
(B) accuracy of a diagnosis;
(C) quality of the care provided by a health care
practitioner;
(D) report made to a medical peer review
committee concerning activities under the committee's review
authority;
(E) report made by a medical peer review
committee to another committee or to the board as permitted or
required by law; and
(F) implementation of the duties of a medical
peer review committee by a member, agent, or employee of the
committee.
(9) [(8)] "Medical peer review committee" or
"professional review body" means a committee of a health care
entity, the governing board of a health care entity, or the medical
staff of a health care entity, that operates under written bylaws
approved by the policy-making body or the governing board of the
health care entity and is authorized to evaluate the quality of
medical and health care services or the competence of physicians,
including evaluation of the performance of those functions
specified by Section 85.204, Health and Safety Code. The term
includes:
(A) an employee or agent of the committee,
including an assistant, investigator, intervenor, attorney, and
any other person or organization that serves the committee; and
(B) the governing body of a public hospital owned
or operated by a governmental entity, the governing body of a
hospital authority created under Chapter 262 or 264, Health and
Safety Code, and the governing body of a hospital district created
under Article IX, Texas Constitution, but only:
(i) in relation to the governing body's
evaluation of the competence of a physician or the quality of
medical and health care services provided by the public hospital,
hospital authority, or hospital district; and
(ii) to the extent that the evaluation
under Subparagraph (i) involves discussions or records that
specifically or necessarily identify an individual patient or
physician.
(10) [(9)] "Medical records" means all records
relating to the history, diagnosis, treatment, or prognosis of a
patient.
(11) [(10)] "Operation" means the application of
surgery or the performance of surgical services.
(12) [(11)] "Person" means an individual, unless the
term is expressly made applicable to a partnership, association, or
corporation.
(13) [(12)] "Physician" means a person licensed to
practice medicine in this state.
(14) [(13)] "Practicing medicine" means the
diagnosis, treatment, or offer to treat a mental or physical
disease or disorder or a physical deformity or injury by any system
or method, or the attempt to effect cures of those conditions, by a
person who:
(A) publicly professes to be a physician or
surgeon; or
(B) directly or indirectly charges money or other
compensation for those services.
(15) [(14)] "Surgery" includes:
(A) surgical services, procedures, and
operations; and
(B) the procedures described in the surgery
section of the common procedure coding system as adopted by the
Health Care Financing Administration of the United States
Department of Health and Human Services.
(b) The terms "physician" and "surgeon" are synonyms. As
used in this subtitle, the terms "practitioner" and "practitioner
of medicine" include physicians and surgeons.
SECTION 2. Section 164.003, Occupations Code, is amended by
amending Subsections (b) and (c) 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 day before the
date the meeting is held;
(3) the complainant and the license holder be provided
an opportunity to appear and 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 appear [be present] to advise the board or the
board's staff;
(6) a member of the board's staff appear [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; and
(7) if the complaint includes an allegation that the
license holder has violated the standard of care, the panel
conducting the informal proceeding consider whether the physician
was practicing complementary and alternative medicine.
(c) An affected physician is entitled to appear to:
(1) reply to the staff's presentation; and
(2) present the facts the physician reasonably
believes the physician could prove by competent evidence or
qualified witnesses at a hearing.
SECTION 3. Section 164.004, Occupations Code, is amended to
read as follows:
(a) Except in the case of a suspension under Section 164.059
or under the terms of an agreement between the board and a license
holder, a revocation, suspension, involuntary modification, or
other disciplinary action relating to a license is not effective
unless, before board proceedings are instituted:
(1) the board gives notice, in a manner consistent
with the notice requirements under Section 154.053, to the affected
license holder of the facts or conduct alleged to warrant the
intended action; and
(2) the license holder is given an opportunity to
appear to show compliance with all requirements of law for the
retention of the license[, at the license holder's option, either
in writing or through personal appearance] at an informal meeting
with one or more representatives of the board. Licensees may submit
material in writing to show compliance rather than appear at an
informal meeting with one or more representatives of the board.
(b) If the license holder chooses to [personally] appear and
an informal meeting is held, the board's staff and the board's
representatives are subject to the ex parte provisions of Chapter
2001, Government Code, with regard to contacts with board members
and administrative law judges concerning the case.
SECTION 4. Section 164.008, Occupations Code, is amended to
read as follows:
In a hearing involving a disciplinary action under this
subtitle, the respondent is entitled to appear with counsel
[personally, by counsel, or both].
SECTION 5. Section 164.056, Occupations Code, is amended by
amending Subsection (c) to read as follows:
(c) At the hearing, the physician and the physician's
attorney are entitled to appear to present testimony and other
evidence showing that the physician should not be required to
submit to the examination. After a hearing, the board shall issue an
order either requiring the physician to submit to the examination
or withdrawing the request for examination.
SECTION 6. Section 164.059, Occupations Code, is amended by
amending Subsection (c) to read as follows:
(c) A license may be suspended or restricted by a
disciplinary panel under this section without notice or hearing if:
(1) the board immediately provides notice of the
suspension or restriction to the license holder; and
(2) appear at a hearing on the temporary suspension or
restriction before a disciplinary panel of the board is scheduled
for the earliest possible date after 10 days' notice of hearing.
SECTION 7. The changes in law made by this Act apply to an
informal show compliance proceeding and settlement conference
under Chapter 164, Occupations Code, scheduled on or after the
effective date of this Act.
SECTION 8. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2021.