By: Oliverson, et al. (Senate Sponsor - Zaffirini) H.B. No. 1434
         (In the Senate - Received from the House April 28, 2021;
  May 4, 2021, read first time and referred to Committee on Health &
  Human Services; May 14, 2021, reported favorably by the following
  vote:  Yeas 9, Nays 0; May 14, 2021, sent to printer.)
Click here to see the committee vote
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to limitations on pelvic examinations; authorizing
  disciplinary action, including an administrative penalty.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle H, Title 2, Health and Safety Code, is
  amended by adding Chapter 167A to read as follows:
  CHAPTER 167A. PELVIC EXAMINATIONS
         Sec. 167A.001.  DEFINITIONS. In this chapter:
               (1)  "Health care practitioner" means a physician,
  physician assistant, or advanced practice registered nurse
  licensed to practice in this state.
               (2)  "Patient's legally authorized representative" 
  means:
                     (A)  a parent, managing conservator, or guardian
  of a patient, if the patient is a minor;
                     (B)  a guardian of the patient, if the patient has
  been adjudicated incompetent to manage the patient's personal
  affairs; or
                     (C)  an agent of the patient authorized under a
  durable power of attorney for health care.
               (3)  "Pelvic examination" means a physical examination
  by a health care practitioner of a patient's external and internal
  reproductive organs, genitalia, or rectum.
         Sec. 167A.002.  LIMITATIONS ON CERTAIN PELVIC EXAMINATIONS.
  (a)  A health care practitioner may not perform or delegate to
  another individual, including a student training to become a health
  care practitioner, the performance of a pelvic examination on an
  anesthetized or unconscious patient unless:
               (1)  the pelvic examination is within the standard
  scope of a procedure or diagnostic examination scheduled to be
  performed on the patient;
               (2)  the patient or the patient's legally authorized
  representative gives informed consent for the pelvic examination as
  provided by Subsection (b); 
               (3)  the pelvic examination is necessary for diagnosis
  or treatment of the patient's medical condition; or
               (4)  the pelvic examination is for the purpose of
  collecting evidence.
         (b)  To obtain informed consent to perform a pelvic
  examination on an unconscious or anesthetized patient, a health
  care practitioner must:
               (1)  provide the patient or the patient's legally
  authorized representative with a written or electronic informed
  consent form that:
                     (A)  may be included as a distinct or separate
  section of a general informed consent form; 
                     (B)  contains the following heading at the top of
  the form in at least 18-point boldface type: "CONSENT FOR
  EXAMINATION OF PELVIC REGION";
                     (C)  specifies the nature and purpose of the
  pelvic examination; 
                     (D)  informs the patient or the patient's legally
  authorized representative that a medical student or resident may be
  present if the patient or the patient's legally authorized
  representative authorizes the student or resident to:  
                           (i)  perform the pelvic examination; or 
                           (ii)  observe or otherwise be present at the
  pelvic examination, either in person or through electronic means; 
                     (E)  allows the patient or the patient's legally
  authorized representative the opportunity to consent to or refuse
  to consent to the pelvic examination; and
                     (F)  allows a patient or a patient's legally
  authorized representative that consents to a pelvic examination
  under Paragraph (E) the opportunity to authorize or refuse to
  authorize: 
                           (i)  a medical student or resident to
  perform the pelvic examination; or
                           (ii)  a medical student or resident to
  observe or otherwise be present at the pelvic examination, either
  in person or through electronic means;
               (2)  obtain the signature of the patient or the
  patient's legally authorized representative on the informed
  consent form; and
               (3)  sign the informed consent form. 
         Sec. 167A.003.  DISCIPLINARY ACTION. The appropriate
  licensing authority may take disciplinary action against a health
  care practitioner who violates Section 167A.002, including
  imposing an administrative penalty, as if the practitioner violated
  an applicable licensing law.
         SECTION 2.  Section 164.052(a), Occupations Code, is amended
  to read as follows:
         (a)  A physician or an applicant for a license to practice
  medicine commits a prohibited practice if that person:
               (1)  submits to the board a false or misleading
  statement, document, or certificate in an application for a
  license;
               (2)  presents to the board a license, certificate, or
  diploma that was illegally or fraudulently obtained;
               (3)  commits fraud or deception in taking or passing an
  examination;
               (4)  uses alcohol or drugs in an intemperate manner
  that, in the board's opinion, could endanger a patient's life;
               (5)  commits unprofessional or dishonorable conduct
  that is likely to deceive or defraud the public, as provided by
  Section 164.053, or injure the public;
               (6)  uses an advertising statement that is false,
  misleading, or deceptive;
               (7)  advertises professional superiority or the
  performance of professional service in a superior manner if that
  advertising is not readily subject to verification;
               (8)  purchases, sells, barters, or uses, or offers to
  purchase, sell, barter, or use, a medical degree, license,
  certificate, or diploma, or a transcript of a license, certificate,
  or diploma in or incident to an application to the board for a
  license to practice medicine;
               (9)  alters, with fraudulent intent, a medical license,
  certificate, or diploma, or a transcript of a medical license,
  certificate, or diploma;
               (10)  uses a medical license, certificate, or diploma,
  or a transcript of a medical license, certificate, or diploma that
  has been:
                     (A)  fraudulently purchased or issued;
                     (B)  counterfeited; or
                     (C)  materially altered;
               (11)  impersonates or acts as proxy for another person
  in an examination required by this subtitle for a medical license;
               (12)  engages in conduct that subverts or attempts to
  subvert an examination process required by this subtitle for a
  medical license;
               (13)  impersonates a physician or permits another to
  use the person's license or certificate to practice medicine in
  this state;
               (14)  directly or indirectly employs a person whose
  license to practice medicine has been suspended, canceled, or
  revoked;
               (15)  associates in the practice of medicine with a
  person:
                     (A)  whose license to practice medicine has been
  suspended, canceled, or revoked; or
                     (B)  who has been convicted of the unlawful
  practice of medicine in this state or elsewhere;
               (16)  performs or procures a criminal abortion, aids or
  abets in the procuring of a criminal abortion, attempts to perform
  or procure a criminal abortion, or attempts to aid or abet the
  performance or procurement of a criminal abortion;
               (17)  directly or indirectly aids or abets the practice
  of medicine by a person, partnership, association, or corporation
  that is not licensed to practice medicine by the board;
               (18)  performs an abortion on a woman who is pregnant
  with a viable unborn child during the third trimester of the
  pregnancy unless:
                     (A)  the abortion is necessary to prevent the
  death of the woman;
                     (B)  the viable unborn child has a severe,
  irreversible brain impairment; or
                     (C)  the woman is diagnosed with a significant
  likelihood of suffering imminent severe, irreversible brain damage
  or imminent severe, irreversible paralysis;
               (19)  performs an abortion on an unemancipated minor
  without the written consent of the child's parent, managing
  conservator, or legal guardian or without a court order, as
  provided by Section 33.003 or 33.004, Family Code, unless the
  abortion is necessary due to a medical emergency, as defined by
  Section 171.002, Health and Safety Code;
               (20)  otherwise performs an abortion on an
  unemancipated minor in violation of Chapter 33, Family Code;
               (21)  performs or induces or attempts to perform or
  induce an abortion in violation of Subchapter C, F, or G, Chapter
  171, Health and Safety Code; [or]
               (22)  in complying with the procedures outlined in
  Sections 166.045 and 166.046, Health and Safety Code, wilfully
  fails to make a reasonable effort to transfer a patient to a
  physician who is willing to comply with a directive; or
               (23)  performs or delegates to another individual the
  performance of a pelvic examination on an anesthetized or
  unconscious patient in violation of Section 167A.002, Health and
  Safety Code.
         SECTION 3.  Section 301.452(b), Occupations Code, is amended
  to read as follows:
         (b)  A person is subject to denial of a license or to
  disciplinary action under this subchapter for:
               (1)  a violation of this chapter, a rule or regulation
  not inconsistent with this chapter, or an order issued under this
  chapter;
               (2)  fraud or deceit in procuring or attempting to
  procure a license to practice professional nursing or vocational
  nursing;
               (3)  a conviction for, or placement on deferred
  adjudication community supervision or deferred disposition for, a
  felony or for a misdemeanor involving moral turpitude;
               (4)  conduct that results in the revocation of
  probation imposed because of conviction for a felony or for a
  misdemeanor involving moral turpitude;
               (5)  use of a nursing license, diploma, or permit, or
  the transcript of such a document, that has been fraudulently
  purchased, issued, counterfeited, or materially altered;
               (6)  impersonating or acting as a proxy for another
  person in the licensing examination required under Section 301.253
  or 301.255;
               (7)  directly or indirectly aiding or abetting an
  unlicensed person in connection with the unauthorized practice of
  nursing;
               (8)  revocation, suspension, or denial of, or any other
  action relating to, the person's license or privilege to practice
  nursing in another jurisdiction or under federal law;
               (9)  intemperate use of alcohol or drugs that the board
  determines endangers or could endanger a patient;
               (10)  unprofessional conduct in the practice of nursing
  that is likely to deceive, defraud, or injure a patient or the
  public;
               (11)  adjudication of mental incompetency;
               (12)  lack of fitness to practice because of a mental or
  physical health condition that could result in injury to a patient
  or the public; [or]
               (13)  performing or delegating to another individual
  the performance of a pelvic examination on an anesthetized or
  unconscious patient in violation of Section 167A.002, Health and
  Safety Code; or 
               (14)  failure to care adequately for a patient or to
  conform to the minimum standards of acceptable nursing practice in
  a manner that, in the board's opinion, exposes a patient or other
  person unnecessarily to risk of harm.
         SECTION 4.  The changes in law made by this Act apply only to
  a pelvic examination performed on or after the effective date of
  this Act. A pelvic examination performed before the effective date
  of this Act is governed by the law in effect when the pelvic
  examination occurred, and the former law is continued in effect for
  that purpose.
         SECTION 5.  This Act takes effect September 1, 2021.
 
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