Bill Text: TX HB1013 | 2011-2012 | 82nd Legislature | Engrossed
Bill Title: Relating to the powers and duties of the Texas Medical Board and the regulation of certain persons licensed by the board.
Spectrum: Moderate Partisan Bill (Republican 76-12)
Status: (Engrossed - Dead) 2011-05-17 - Referred to Health & Human Services [HB1013 Detail]
Download: Texas-2011-HB1013-Engrossed.html
By: Brown, Callegari, Creighton, | H.B. No. 1013 | |
J. Davis of Harris, et al. |
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relating to the powers and duties of the Texas Medical Board and the | ||
regulation of certain persons licensed by the 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 [ |
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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 [ |
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physician with a copy of the [ |
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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; | ||
(C) a patient's agent under a power of attorney; | ||
or | ||
(D) a registered nurse or a licensed vocational | ||
nurse; | ||
(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; | ||
(C) a patient's agent under a power of attorney; | ||
or | ||
(D) a registered nurse or a licensed vocational | ||
nurse. | ||
(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) [ |
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authorized under Subsection (e) to assist with complaints and | ||
investigations relating to medical competency; and | ||
(8) [ |
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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 [ |
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(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 [ |
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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 [ |
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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. Subchapter B, Chapter 156, Occupations Code, is | ||
amended by adding Section 156.059 to read as follows: | ||
Sec. 156.059. CONTINUING EDUCATION IN TICK-BORNE DISEASES. | ||
(a) A physician licensed under this subtitle who submits an | ||
application for renewal of a license to practice medicine and whose | ||
practice includes the treatment of tick-borne diseases is | ||
encouraged to include continuing medical education in the treatment | ||
of tick-borne diseases among the hours of continuing medical | ||
education completed for purposes of rules adopted under Section | ||
156.051(a)(2). | ||
(b) The board shall adopt rules to establish the content of | ||
and approval requirements for continuing medical education | ||
relating to the treatment of tick-borne diseases. In adopting | ||
rules, the board shall review relevant courses, including courses | ||
that have been approved in other states. Rules adopted under this | ||
section must provide for the identification and approval of | ||
accredited continuing medical education courses that represent an | ||
appropriate spectrum of relevant medical clinical treatment | ||
relating to tick-borne diseases. | ||
(c) If relevant, the board shall consider a physician's | ||
participation in a continuing medical education course approved | ||
under Subsection (b) if: | ||
(1) the physician is being investigated by the board | ||
regarding the physician's selection of clinical care for the | ||
treatment of tick-borne diseases; and | ||
(2) the physician completed the course not more than | ||
two years before the start of the investigation. | ||
(d) The board may adopt other rules to implement this | ||
section. | ||
SECTION 11. 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 [ |
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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 12. 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 13. Section 164.0032, Occupations Code, is amended | ||
by adding Subsection (f-1) to read as follows: | ||
(f-1) At least 21 days before the date the board conducts a | ||
meeting to consider the panel's recommendations under Subsection | ||
(f), the board must notify the affected physician and the | ||
physician's authorized representative of the meeting. The | ||
physician and the physician's representative may be present at the | ||
meeting. | ||
SECTION 14. 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 | ||
[ |
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(a-1) Notwithstanding Section 2001.058(e), Government | ||
Code, the [ |
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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 appr | ||
opriate | ||
action or sanction [ |
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SECTION 15. Section 164.009, Occupations Code, is amended | ||
to read as follows: | ||
Sec. 164.009. JUDICIAL REVIEW. 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. | ||
SECTION 16. Subchapter G, Chapter 301, Occupations Code, is | ||
amended by adding Section 301.304 to read as follows: | ||
Sec. 301.304. CONTINUING EDUCATION IN TICK-BORNE DISEASES. | ||
(a) As part of the continuing education requirements under Section | ||
301.303, a license holder whose practice includes the treatment of | ||
tick-borne diseases shall be encouraged to participate, during each | ||
two-year licensing period, in continuing education relating to the | ||
treatment of tick-borne diseases. | ||
(b) The board shall adopt rules to identify the license | ||
holders who are encouraged to complete continuing education under | ||
Subsection (a) and establish the content of that continuing | ||
education. In adopting rules, the board shall review relevant | ||
courses, including courses that have been approved in other states. | ||
Rules adopted under this section must provide for the | ||
identification and approval of accredited continuing education | ||
courses that represent an appropriate spectrum of relevant medical | ||
clinical treatment relating to tick-borne diseases. | ||
(c) If relevant, the board shall consider a license holder's | ||
participation in a continuing education course approved under | ||
Subsection (b) if: | ||
(1) the license holder is being investigated by the | ||
board regarding the license holder's selection of clinical care for | ||
the treatment of tick-borne diseases; and | ||
(2) the license holder completed the course not more | ||
than two years before the start of the investigation. | ||
(d) The board may adopt other rules to implement this | ||
section, including rules under Section 301.303(c) for the approval | ||
of education programs and providers. | ||
SECTION 17. The legislature finds that tick-borne diseases | ||
are an important public health issue in Texas. The legislature | ||
further finds that medical and nursing education on the appropriate | ||
care and treatment of tick-borne diseases is essential to the | ||
delivery of necessary health care to individuals in Texas suffering | ||
from tick-borne diseases. It is the intent of the legislature to | ||
address the need for medical and nursing education on tick-borne | ||
diseases through the continuing medical education requirements for | ||
physicians and nurses. | ||
SECTION 18. The Texas Medical Board and the Texas Board of | ||
Nursing shall consult and cooperate in adopting the rules required | ||
under Sections 156.059 and 301.304, Occupations Code, as added by | ||
this Act. | ||
SECTION 19. Not later than January 31, 2012, the Texas | ||
Medical Board shall adopt rules required by Section 156.059, | ||
Occupations Code, as added by this Act. | ||
SECTION 20. Not later than January 31, 2012, the Texas Board | ||
of Nursing shall adopt rules required by Section 301.304, | ||
Occupations Code, as added by this Act. | ||
SECTION 21. Not later than February 6, 2012, the Texas | ||
Medical Board and the Texas Board of Nursing shall report to the | ||
governor, the lieutenant governor, and the speaker of the house of | ||
representatives concerning the adoption of rules as required by | ||
Sections 156.059 and 301.304, Occupations Code, as added by this | ||
Act. | ||
SECTION 22. Sections 156.059(c) and 301.304(c), | ||
Occupations Code, as added by this Act, apply only to the | ||
investigation of a complaint or a disciplinary action based on a | ||
complaint filed on or after the effective date of this Act. The | ||
investigation of a complaint or a disciplinary action based on 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. | ||
SECTION 23. 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 24. 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 25. 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 26. 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 27. This Act takes effect September 1, 2011. |