73R9671 DRH-D
By Black, Berlanga H.B. No. 1514
Substitute the following for H.B. No. 1514:
By Berlanga C.S.H.B. No. 1514
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of podiatry and to the continuation and
1-3 functions of the Texas State Board of Podiatry Examiners; providing
1-4 a penalty.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Article 4567, Revised Statutes, is amended to
1-7 read as follows:
1-8 Art. 4567. DEFINITIONS. (a) Any person shall be regarded
1-9 as practicing podiatry <chiropody> within the meaning of this law,
1-10 and shall be deemed and construed to be a podiatrist <chiropodist>,
1-11 who shall treat or offer to treat any disease or disorder, physical
1-12 injury or deformity, or ailment of the human foot by any system or
1-13 method and charge therefor, directly or indirectly, money or other
1-14 compensation, or who shall publicly profess or claim to be a
1-15 chiropodist, podiatrist, pedicurist, foot specialist, doctor or use
1-16 any title, degree, letter, syllable, word or words that would tend
1-17 to lead the public to believe such person was a practitioner
1-18 authorized to practice or assume the duties incident to the
1-19 practice of podiatry <chiropody>.
1-20 (b) In this chapter:
1-21 (1) "Board" means the Texas State Board of Podiatry
1-22 Examiners.
1-23 (2) "Executive director" means the employee of the
1-24 board who manages the day-to-day operations of the board.
2-1 SECTION 2. Chapter 11, Title 71, Revised Statutes, is
2-2 amended by adding Article 4567e to read as follows:
2-3 Art. 4567e. ADMINISTRATIVE PENALTY. (a) The board may
2-4 impose an administrative penalty against a person licensed or
2-5 regulated under this chapter who violates this chapter or a rule or
2-6 order adopted under this chapter.
2-7 (b) The penalty for a violation may be in an amount not to
2-8 exceed $2,500. Each day a violation continues or occurs is a
2-9 separate violation for purposes of imposing a penalty.
2-10 (c) The amount of the penalty shall be based on:
2-11 (1) the seriousness of the violation, including the
2-12 nature, circumstances, extent, and gravity of any prohibited acts,
2-13 and the hazard or potential hazard created to the health, safety,
2-14 or economic welfare of the public;
2-15 (2) the economic harm to property or the environment
2-16 caused by the violation;
2-17 (3) the history of previous violations;
2-18 (4) the amount necessary to deter future violations;
2-19 (5) efforts to correct the violation; and
2-20 (6) any other matter that justice may require.
2-21 (d) An executive director who determines that a violation
2-22 has occurred may issue to the board a report that states the facts
2-23 on which the determination is based and the director's
2-24 recommendation on the imposition of a penalty, including a
2-25 recommendation on the amount of the penalty.
2-26 (e) Within 14 days after the date the report is issued, the
2-27 executive director shall give written notice of the report to the
3-1 person. The notice may be given by certified mail. The notice
3-2 must include a brief summary of the alleged violation and a
3-3 statement of the amount of the recommended penalty and must inform
3-4 the person that the person has a right to a hearing on the
3-5 occurrence of the violation, the amount of the penalty, or both the
3-6 occurrence of the violation and the amount of the penalty.
3-7 (f) Within 20 days after the date the person receives the
3-8 notice, the person in writing may accept the determination and
3-9 recommended penalty of the executive director or may make a written
3-10 request for a hearing on the occurrence of the violation, the
3-11 amount of the penalty, or both the occurrence of the violation and
3-12 the amount of the penalty.
3-13 (g) If the person accepts the determination and recommended
3-14 penalty of the executive director, the board by order shall approve
3-15 the determination and impose the recommended penalty.
3-16 (h) If the person requests a hearing or fails to respond
3-17 timely to the notice, the executive director shall set a hearing
3-18 and give notice of the hearing to the person. The hearing shall be
3-19 held by an administrative law judge of the State Office of
3-20 Administrative Hearings. The administrative law judge shall make
3-21 findings of fact and conclusions of law and promptly issue to the
3-22 board a proposal for a decision about the occurrence of the
3-23 violation and the amount of a proposed penalty. Based on the
3-24 findings of fact, conclusions of law, and proposal for a decision,
3-25 the board by order may find that a violation has occurred and
3-26 impose a penalty or may find that no violation occurred.
3-27 (i) The notice of the board's order given to the person
4-1 under the Administrative Procedure and Texas Register Act (Article
4-2 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
4-3 amendments must include a statement of the right of the person to
4-4 judicial review of the order.
4-5 (j) Within 30 days after the date the board's order is final
4-6 as provided by Section 16(c), Administrative Procedure and Texas
4-7 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
4-8 its subsequent amendments, the person shall:
4-9 (1) pay the amount of the penalty;
4-10 (2) pay the amount of the penalty and file a petition
4-11 for judicial review contesting the occurrence of the violation, the
4-12 amount of the penalty, or both the occurrence of the violation and
4-13 the amount of the penalty; or
4-14 (3) without paying the amount of the penalty, file a
4-15 petition for judicial review contesting the occurrence of the
4-16 violation, the amount of the penalty, or both the occurrence of the
4-17 violation and the amount of the penalty.
4-18 (k) Within the 30-day period, a person who acts under
4-19 Subsection (j)(3) of this section may:
4-20 (1) stay enforcement of the penalty by:
4-21 (A) paying the amount of the penalty to the
4-22 court for placement in an escrow account; or
4-23 (B) giving to the court a supersedeas bond
4-24 approved by the court for the amount of the penalty and that is
4-25 effective until all judicial review of the board's order is final;
4-26 or
4-27 (2) request the court to stay enforcement of the
5-1 penalty by:
5-2 (A) filing with the court a sworn affidavit of
5-3 the person stating that the person is financially unable to pay the
5-4 amount of the penalty and is financially unable to give the
5-5 supersedeas bond; and
5-6 (B) giving a copy of the affidavit to the
5-7 executive director by certified mail.
5-8 (l) An executive director who receives a copy of an
5-9 affidavit under Subsection (k)(2) of this section may file, with
5-10 the court within five days after the date the copy is received, a
5-11 contest to the affidavit. The court shall hold a hearing on the
5-12 facts alleged in the affidavit as soon as practicable and shall
5-13 stay the enforcement of the penalty on finding that the alleged
5-14 facts are true. The person who files an affidavit has the burden
5-15 of proving that the person is financially unable to pay the amount
5-16 of the penalty and to give a supersedeas bond.
5-17 (m) If the person does not pay the amount of the penalty and
5-18 the enforcement of the penalty is not stayed, the executive
5-19 director may refer the matter to the attorney general for
5-20 collection of the amount of the penalty.
5-21 (n) Judicial review of the order of the board:
5-22 (1) is instituted by filing a petition as provided by
5-23 Section 19, Administrative Procedure and Texas Register Act
5-24 (Article 6252-13a, Vernon's Texas Civil Statutes) and its
5-25 subsequent amendments; and
5-26 (2) is under the substantial evidence rule.
5-27 (o) If the court sustains the occurrence of the violation,
6-1 the court may uphold or reduce the amount of the penalty and order
6-2 the person to pay the full or reduced amount of the penalty. If
6-3 the court does not sustain the occurrence of the violation, the
6-4 court shall order that no penalty is owed.
6-5 (p) When the judgment of the court becomes final, the court
6-6 shall proceed under this subsection. If the person paid the amount
6-7 of the penalty and if that amount is reduced or is not upheld by
6-8 the court, the court shall order that the appropriate amount plus
6-9 accrued interest be remitted to the person. The rate of the
6-10 interest is the rate charged on loans to depository institutions by
6-11 the New York Federal Reserve Bank, and the interest shall be paid
6-12 for the period beginning on the date the penalty was paid and
6-13 ending on the date the penalty is remitted. If the person gave a
6-14 supersedeas bond and if the amount of the penalty is not upheld by
6-15 the court, the court shall order the release of the bond. If the
6-16 person gave a supersedeas bond and if the amount of the penalty is
6-17 reduced, the court shall order the release of the bond after the
6-18 person pays the amount.
6-19 (q) A penalty collected under this section shall be remitted
6-20 to the comptroller for deposit in the general revenue fund.
6-21 (r) All proceedings under this section are subject to the
6-22 Administrative Procedure and Texas Register Act (Article 6252-13a,
6-23 Vernon's Texas Civil Statutes) and its subsequent amendments.
6-24 SECTION 3. Article 4568, Revised Statutes, is amended by
6-25 amending Subsections (a)-(f) and adding Subsections (m)-(r) to read
6-26 as follows:
6-27 (a) The Texas State Board of Podiatry Examiners shall
7-1 consist of nine (9) members. Six (6) members must be reputable
7-2 practicing podiatrists who have resided in this state and who have
7-3 been actively engaged in the practice of podiatry for five (5)
7-4 years immediately preceding their appointment. Three (3) members
7-5 must be representatives of the general public. However, a public
7-6 member may not participate in any part of the examination process
7-7 for applicants for a license issued by the Board that requires
7-8 knowledge of the practice of podiatry. Appointments to the Board
7-9 shall be made by the Governor without regard to the race, color,
7-10 <creed,> disability, sex, religion, or national origin of the
7-11 appointees.
7-12 (b) A person is not eligible for appointment as a public
7-13 member of the Board if the person or the person's spouse:
7-14 (1) is registered, certified, or licensed by an
7-15 occupational regulatory agency in the field of health care;
7-16 (2) is employed by or participates in the management
7-17 of a <an agency or> business entity or other organization regulated
7-18 by the Board or receiving funds from the Board <that provides
7-19 health-care services or that sells, manufactures, or distributes
7-20 health-care supplies or equipment>; <or>
7-21 (3) owns or controls, directly or indirectly, more
7-22 than a 10 percent interest in a business entity or other
7-23 organization regulated by the Board or receiving funds from the
7-24 Board; or
7-25 (4) uses or receives a substantial amount of tangible
7-26 goods, services, or funds from the Board, other than compensation
7-27 or reimbursement authorized by law for Board membership,
8-1 attendance, or expenses <has, other than as a consumer, a financial
8-2 interest in a business entity that provides health-care services or
8-3 that sells, manufactures, or distributes health-care supplies or
8-4 equipment>.
8-5 (c)(1) An officer, employee, or paid consultant of a Texas
8-6 trade association in the health care industry may not be a member
8-7 or employee of the Board who is exempt from the state's position
8-8 classification plan or is compensated at or above the amount
8-9 prescribed by the General Appropriations Act for step 1, salary
8-10 group 17, of the position classification salary schedule.
8-11 (2) A person who is the spouse of an officer, manager,
8-12 or paid consultant of a Texas trade association in the health care
8-13 industry may not be a Board member and may not be an employee of
8-14 the Board who is exempt from the state's position classification
8-15 plan or is compensated at or above the amount prescribed by the
8-16 General Appropriations Act for step 1, salary group 17, of the
8-17 position classification salary schedule.
8-18 (3) For the purposes of this section, a Texas trade
8-19 association is a nonprofit, cooperative, and voluntarily joined
8-20 association of business or professional competitors in this state
8-21 designed to assist its members and its industry or profession in
8-22 dealing with mutual business or professional problems and in
8-23 promoting their common interest <A member or employee of the Board
8-24 may not be an officer, employee, or paid consultant of a statewide
8-25 or national trade association in the health-care industry. A
8-26 member or employee of the Board may not be related within the
8-27 second degree by affinity or consanguinity, as determined under
9-1 Article 5996h, Revised Statutes, to a person who is an officer,
9-2 employee, or paid consultant of a statewide or national trade
9-3 association in the health-care industry>.
9-4 (d) A person may not serve as a member of the Board or act
9-5 as the general counsel to the Board if the person is required to
9-6 register as a lobbyist under Chapter 305, Government Code, and its
9-7 subsequent amendments, because of the person's activities for
9-8 compensation on behalf of a profession related to the operation of
9-9 the Board <who is required to register as a lobbyist under Chapter
9-10 305, Government Code, may not serve as a member of the Board or act
9-11 as the general counsel to the Board>.
9-12 (e) It is a ground for removal from the Board if a member:
9-13 (1) does not have at the time of appointment the
9-14 qualifications required by Subsection <Section> (a) or (b) of this
9-15 article for appointment to the Board;
9-16 (2) does not maintain during service on the Board the
9-17 qualifications required by Subsection (a) or (b) of this article;
9-18 (3) <(2)> violates a prohibition established by
9-19 Subsection <Section> (c) or (d) of this article; <or>
9-20 (4) cannot discharge the member's term for a
9-21 substantial part of the term for which the member is appointed
9-22 because of illness or disability; or
9-23 (5) is absent from more than half of the regularly
9-24 scheduled board meetings that the member is eligible to attend
9-25 during a calendar year unless the absence is excused by a majority
9-26 vote of the Board
9-27 <(3) fails to attend at least half of the regularly
10-1 scheduled Board meetings held in a calendar year, excluding
10-2 meetings held while the person was not a Board member>.
10-3 (f)(1) The validity of an action of the Board is not
10-4 affected by the fact that it is taken when a ground for removal of
10-5 a Board member exists.
10-6 (2) If the executive director has knowledge that a
10-7 potential ground for removal exists, the executive director shall
10-8 notify the president of the Board of the ground. The president
10-9 shall then notify the governor that a potential ground for removal
10-10 exists <If a ground for removal of a member of the Board exists,
10-11 the Board's actions during the existence of the ground for removal
10-12 are not invalid for that reason>.
10-13 (m) The Board shall file annually with the governor and the
10-14 presiding officer of each house of the legislature a complete and
10-15 detailed written report accounting for all funds received and
10-16 disbursed by the Board during the preceding fiscal year. The
10-17 annual report must be in the form and reported in the time provided
10-18 by the General Appropriations Act.
10-19 (n) The executive director or the director's designee shall
10-20 develop an intra-agency career ladder program. The program shall
10-21 require intra-agency posting of all nonentry level positions
10-22 concurrently with any public posting.
10-23 (o) The executive director or the director's designee shall
10-24 develop a system of annual performance evaluations based on
10-25 measurable job tasks. All merit pay for Board employees must be
10-26 based on the system established under this subsection.
10-27 (p) The Board shall develop and implement policies that
11-1 clearly define the respective responsibilities of the Board and the
11-2 staff of the Board.
11-3 (q) The Board shall prepare and maintain a written plan that
11-4 describes how a person who does not speak English can be provided
11-5 reasonable access to the Board's programs. The Board shall also
11-6 comply with federal and state laws for program and facility
11-7 accessibility.
11-8 (r) The Board shall develop and implement policies that
11-9 provide the public with a reasonable opportunity to appear before
11-10 the Board and to speak on any issue under the jurisdiction of the
11-11 Board.
11-12 SECTION 4. Article 4568b, Revised Statutes, is amended to
11-13 read as follows:
11-14 Art. 4568b. Sunset provision. The Texas State Board of
11-15 Podiatry Examiners is subject to Chapter 325, Government Code
11-16 (Texas Sunset Act). Unless continued in existence as provided by
11-17 that chapter, the board is abolished September 1, 2005 <1993>.
11-18 SECTION 5. Chapter 11, Title 71, Revised Statutes, is
11-19 amended by adding Article 4568c to read as follows:
11-20 Art. 4568c. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. (a) The
11-21 executive director or the director's designee shall prepare and
11-22 maintain a written policy statement to assure implementation of a
11-23 program of equal employment opportunity under which all personnel
11-24 transactions are made without regard to race, color, disability,
11-25 sex, religion, age, or national origin. The policy statement must
11-26 include:
11-27 (1) personnel policies, including policies relating to
12-1 recruitment, evaluation, selection, application, training, and
12-2 promotion of personnel that are in compliance with the Commission
12-3 on Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes)
12-4 and its subsequent amendments;
12-5 (2) a comprehensive analysis of the board workforce
12-6 that meets federal and state guidelines;
12-7 (3) procedures by which a determination can be made of
12-8 significant underuse in the board workforce of all persons for whom
12-9 federal or state guidelines encourage a more equitable balance; and
12-10 (4) reasonable methods to appropriately address those
12-11 areas of underuse.
12-12 (b) A policy statement prepared under Subsection (a) of this
12-13 article must cover an annual period, be updated annually, be
12-14 reviewed by the Commission on Human Rights for compliance with
12-15 Subsection (a)(1) of this article, and be filed with the governor's
12-16 office.
12-17 (c) The governor's office shall deliver a biennial report to
12-18 the legislature based on the information received under Subsection
12-19 (b) of this article. The report may be made separately or as part
12-20 of other biennial reports to the legislature.
12-21 SECTION 6. Chapter 11, Title 71, Revised Statutes, is
12-22 amended by adding Article 4568d to read as follows:
12-23 Art. 4568d. TRAINING; STANDARDS OF CONDUCT; INFORMATION.
12-24 (a) Each board member shall comply with the board member training
12-25 requirements established by any other state agency that is given
12-26 authority to establish the requirements for the board.
12-27 (b) The board shall provide to its members and employees, as
13-1 often as necessary, information regarding their qualifications for
13-2 office or employment under this chapter and their responsibilities
13-3 under applicable laws relating to standards of conduct for state
13-4 officers or employees.
13-5 SECTION 7. Subsections (c), (i), and (k), Article 4569,
13-6 Revised Statutes, are amended to read as follows:
13-7 (c) The examinations shall be written and practical and in
13-8 the English language, and all applicants that possess the
13-9 qualifications required for an examination and who shall pass the
13-10 examinations prescribed with a general average of seventy-five per
13-11 cent (75%) in all subjects and not less than sixty per cent (60%)
13-12 in any one subject shall be issued a license by the Board to
13-13 practice podiatry in this State. The Board shall have the
13-14 examination validated by an independent testing professional.
13-15 (i) Not later than the 30th day after the date on which a
13-16 licensing examination is administered under this chapter, the
13-17 secretary-treasurer of the Board shall notify each examinee of the
13-18 results of the examination. However, if an examination is graded
13-19 or reviewed by a national testing service, the secretary-treasurer
13-20 of the Board shall notify examinees of the results of the
13-21 examination not later than the 14th day after the date on which the
13-22 Board receives the results from the testing service. If the notice
13-23 of examination results graded or reviewed by a national testing
13-24 service will be delayed for longer than 90 days after the
13-25 examination date, the secretary-treasurer of the Board shall notify
13-26 the examinee of the reason for the delay before the 90th day <The
13-27 secretary-treasurer of the Board shall report to each applicant the
14-1 grade made in each subject and the general average on the
14-2 examination within sixty (60) days from the date of the
14-3 examination>.
14-4 (k) If requested in writing by a person who fails the
14-5 licensing examination administered under this chapter, the Board
14-6 shall furnish the person with an analysis of the person's
14-7 performance on the examination.
14-8 SECTION 8. Section 1, Article 4571, Revised Statutes, is
14-9 amended by amending Subsections (c), (d), (e), (g), and (h) and
14-10 adding Subsection (i) to read as follows:
14-11 (c)(1) The Board shall develop a mandatory continuing
14-12 education program. In developing its program the Board shall:
14-13 (A) establish by rule the minimum hours of
14-14 continuing education required for license renewal;
14-15 (B) identify the key factors that lead to the
14-16 competent performance of professional duties;
14-17 (C) develop a process to evaluate and approve
14-18 continuing education courses; and
14-19 (D) develop a process to assess the
14-20 participation and performance of a person with a license in
14-21 continuing education courses to enable the Board to evaluate the
14-22 overall effectiveness of the program.
14-23 (2) The Board may assess the continuing education
14-24 needs of a person with a license and require the person to attend
14-25 continuing education courses specified by the Board <In order to
14-26 ensure the continuing competence of persons licensed to practice
14-27 podiatry, the Texas State Board of Podiatry Examiners may adopt and
15-1 administer rules requiring continuing education, not to exceed 25
15-2 hours per licensee per year, as a prerequisite to annual license
15-3 renewal. If adopted by the Board, such rules shall establish
15-4 standards of accreditation for continuing education programs or
15-5 courses of study, and only those programs or courses of study which
15-6 are inspected and accredited by the Board shall apply toward the
15-7 satisfaction of such continuing education requirements. The Board
15-8 is hereby authorized to impose a fee, not to exceed $25 per
15-9 licensee per year, to cover the cost of administration of any
15-10 continuing education rules which may be adopted pursuant to this
15-11 Section>.
15-12 (d) A person may renew his unexpired license by <satisfying
15-13 any continuing education requirements pursuant to Subsection (c) of
15-14 this Section and by> paying to the Board before the expiration date
15-15 of the license the required renewal fee.
15-16 (e) If a person's license has been expired for 90 days or
15-17 less, the person may renew the license by <satisfying any
15-18 continuing education requirements pursuant to Subsection (c) of
15-19 this Section and by> paying to the Board the required renewal fee
15-20 and a fee that is one-half of the examination fee for the license.
15-21 (g) If a person's license has been expired for more than 90
15-22 days but less than one year <two years>, the person may renew the
15-23 license by <satisfying any continuing education requirements
15-24 pursuant to Subsection (c) of this Section and by> paying to the
15-25 Board all unpaid renewal fees and a fee that is equal to the
15-26 examination fee for the license.
15-27 (h) If a person's license has been expired for one year or
16-1 longer <two years or more>, the person may not renew the license.
16-2 The person may obtain a new license by submitting to reexamination
16-3 and complying with the requirements and procedures for obtaining an
16-4 original license. However, the Board may renew without
16-5 reexamination an expired license of a person who was licensed in
16-6 this state, moved to another state, and is currently licensed and
16-7 has been in practice in the other state for the two years preceding
16-8 application. The person must pay to the Board a fee that is equal
16-9 to the examination fee for the license.
16-10 (i) At least 30 days before the expiration of a person's
16-11 license, the Board shall send written notice of the impending
16-12 license expiration to the person at the licensee's last known
16-13 address according to the records of the Board.
16-14 SECTION 9. Article 4571, Revised Statutes, is amended by
16-15 adding Section 7 to read as follows:
16-16 Sec. 7. The Board by rule may provide for a person who holds
16-17 a license under this chapter to be placed on inactive status.
16-18 Rules adopted under this section shall include a time limit for a
16-19 license holder to remain on inactive status.
16-20 SECTION 10. Chapter 11, Title 71, Revised Statutes, is
16-21 amended by adding Article 4571a to read as follows:
16-22 Art. 4571a. PROVISIONAL LICENSES. (a) On application, the
16-23 board shall grant a provisional license to practice podiatry. An
16-24 applicant for a provisional license under this section must:
16-25 (1) be licensed in good standing as a podiatrist in
16-26 another state, the District of Columbia, or a territory of the
16-27 United States that has licensing requirements that are
17-1 substantially equivalent to the requirements of this chapter;
17-2 (2) have passed a national or other examination
17-3 recognized by the board relating to the practice of podiatry; and
17-4 (3) be sponsored by a person licensed by the board
17-5 under this chapter with whom the provisional license holder may
17-6 practice under this article.
17-7 (b) An applicant for a provisional license may be excused
17-8 from the requirement of Subsection (a)(3) of this article if the
17-9 board determines that compliance with that subsection constitutes a
17-10 hardship to the applicant.
17-11 (c) A provisional license is valid until the date the board
17-12 approves or denies the provisional license holder's application for
17-13 a license. The board shall issue a license under this chapter to
17-14 the holder of a provisional license under this section if:
17-15 (1) the provisional license holder passes the
17-16 examination required by Article 4569, Revised Statutes, and its
17-17 subsequent amendments;
17-18 (2) the board verifies that the provisional license
17-19 holder has the academic and experience requirements for a license
17-20 under this chapter; and
17-21 (3) the provisional license holder satisfies any other
17-22 license requirements under this chapter.
17-23 (d) The board must complete the processing of a provisional
17-24 license holder's application for a license not later than the 180th
17-25 day after the date the provisional license is issued. The board
17-26 may extend this deadline to allow for the receipt of pending
17-27 examination results.
18-1 SECTION 11. Chapter 11, Title 71, Revised Statutes, is
18-2 amended by adding Article 4571b to read as follows:
18-3 Art. 4571b. TEMPORARY LICENSE. (a) The board by rule may
18-4 adopt a procedure for the issuance of a temporary license to an
18-5 applicant other than an applicant who applies under Article 4571a,
18-6 Revised Statutes, and its subsequent amendments.
18-7 (b) Rules adopted under this article shall establish the
18-8 criteria for issuance of a temporary license and shall establish a
18-9 maximum period during which a temporary license is valid.
18-10 SECTION 12. Subsections (a) and (b), Article 4573, Revised
18-11 Statutes, are amended to read as follows:
18-12 (a) The Board shall maintain an information file about each
18-13 complaint filed with the Board <relating to a licensee>. If a
18-14 written complaint is filed with the Board <relating to a licensee>,
18-15 the Board, at least <as frequently as> quarterly and until final
18-16 disposition of the complaint, shall notify the parties to the
18-17 complaint of the status of the complaint <until final disposition>
18-18 unless the notification would jeopardize an undercover
18-19 investigation.
18-20 (b) The Board shall revoke or suspend a license, place on
18-21 probation a person whose license has been suspended <probate a
18-22 license suspension>, or reprimand a licensee for violation of the
18-23 law regulating the practice of podiatry or a rule adopted by the
18-24 Board. If a license suspension is probated, the Board may require
18-25 the license holder to:
18-26 (1) report regularly to the Board on matters that are
18-27 the basis of the probation;
19-1 (2) limit practice to the areas prescribed by the
19-2 Board; or
19-3 (3) continue or review continuing professional
19-4 education until the license holder attains a degree of skill
19-5 satisfactory to the Board in those areas that are the basis of the
19-6 probation.
19-7 SECTION 13. Chapter 11, Title 71, Revised Statutes, is
19-8 amended by adding Article 4573c to read as follows:
19-9 Art. 4573c. COMPLAINT PROCEDURE. (a) The board's
19-10 information file under Subsection (a), Article 4573, Revised
19-11 Statutes, and its subsequent amendments, shall be kept current and
19-12 contain a record for each complaint of:
19-13 (1) all persons contacted in relation to the
19-14 complaint;
19-15 (2) a summary of findings made at each step of the
19-16 complaint process;
19-17 (3) an explanation of the legal basis and reason for a
19-18 complaint that is dismissed; and
19-19 (4) other relevant information.
19-20 (b) The board by rule shall adopt a form to standardize
19-21 information concerning complaints made to the board. The board by
19-22 rule shall prescribe information to be provided to a person when
19-23 the person files a complaint with the board.
19-24 (c) The board shall provide reasonable assistance to a
19-25 person who wishes to file a complaint with the board.
19-26 (d) The board shall adopt rules concerning the investigation
19-27 of a complaint filed with the board. The rules adopted under this
20-1 subsection shall:
20-2 (1) distinguish between categories of complaints;
20-3 (2) ensure that complaints are not dismissed without
20-4 appropriate consideration;
20-5 (3) require that the board be advised of a complaint
20-6 that is dismissed and that a letter be sent to the person who filed
20-7 the complaint explaining the action taken on the dismissed
20-8 complaint;
20-9 (4) ensure that the person who filed the complaint has
20-10 an opportunity to explain the allegations made in the complaint;
20-11 and
20-12 (5) prescribe guidelines concerning the categories of
20-13 complaints that require the use of a private investigator and the
20-14 procedures for the board to obtain the services of a private
20-15 investigator.
20-16 (e) The board shall dispose of all complaints in a timely
20-17 manner. The board shall establish a schedule for conducting each
20-18 phase of a complaint that is under the control of the board not
20-19 later than the 30th day after the date the complaint is received by
20-20 the board. The schedule shall be kept in the information file for
20-21 the complaint and all parties shall be notified of the projected
20-22 time requirements for pursuing the complaint. A change in the
20-23 schedule must be noted in the complaint information file and all
20-24 parties to the complaint must be notified not later than the
20-25 seventh day after the date the change is made.
20-26 (f) The executive director shall notify the board of a
20-27 complaint that extends beyond the time prescribed by the board for
21-1 resolving the complaint so that the board may take necessary action
21-2 on the complaint.
21-3 SECTION 14. Chapter 11, Title 71, Revised Statutes, is
21-4 amended by adding Article 4573d to read as follows:
21-5 Art. 4573d. INFORMAL PROCEEDINGS. (a) The board by rule
21-6 shall adopt procedures governing:
21-7 (1) informal disposition of a contested case under
21-8 Section 13(e), Administrative Procedure and Texas Register Act
21-9 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
21-10 subsequent amendments; and
21-11 (2) informal proceedings held in compliance with
21-12 Section 18(c), Administrative Procedure and Texas Register Act
21-13 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
21-14 subsequent amendments.
21-15 (b) Rules adopted under this article must provide the
21-16 complainant and the licensee an opportunity to be heard and must
21-17 require the presence of a representative of the office of the
21-18 attorney general or the board's legal counsel to advise the board
21-19 or the board's employees.
21-20 SECTION 15. Chapter 11, Title 71, Revised Statutes, is
21-21 amended by adding Article 4573e to read as follows:
21-22 Art. 4573e. COMPLIANCE WITH THIS CHAPTER. The board by rule
21-23 shall develop a system to monitor a podiatrist's compliance with
21-24 this chapter. The system shall include:
21-25 (1) procedures for determining the compliance by a
21-26 podiatrist with an order issued by the board; and
21-27 (2) a method of identifying and monitoring podiatrists
22-1 who represent a risk to the public.
22-2 SECTION 16. Chapter 11, Title 71, Revised Statutes, is
22-3 amended by adding Article 4573c to read as follows:
22-4 Art. 4573c. PODIATRIC PEER REVIEW COMMITTEES
22-5 Sec. 1. In this article:
22-6 (1) "Podiatric peer review committee" means the
22-7 podiatric peer review, judicial, or grievance committee of a
22-8 podiatric medical society or association that is authorized to
22-9 evaluate the quality of podiatry services or the competence of a
22-10 podiatrist. A podiatric peer review committee includes the
22-11 members, employees, and agents of the committee.
22-12 (2) "Podiatric medical society or association" means a
22-13 membership organization of podiatrists that is incorporated under
22-14 the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq.,
22-15 Vernon's Texas Civil Statutes) and its subsequent amendments or
22-16 that is exempt from the payment of federal income taxes under
22-17 Section 501(c) of the Internal Revenue Code of 1986 (26 U.S.C.
22-18 Section 501(c)) and its subsequent amendments.
22-19 Sec. 2. Except for an action involving fraud, conspiracy, or
22-20 malice, a podiatric peer review committee is immune from liability
22-21 and may not be subject to a suit for damages for any act arising
22-22 from the performance of the committee's duties in investigating a
22-23 disagreement or complaint, holding a hearing to determine facts, or
22-24 making an evaluation, recommendation, decision, or award involving
22-25 a podiatrist who is a member of the podiatric medical society or
22-26 association or another podiatrist, podiatric patient, or third
22-27 party who requests the services of the committee.
23-1 Sec. 3. Except as otherwise provided by this article, the
23-2 proceedings and records of a podiatric peer review committee are
23-3 confidential and all communications made to a podiatric peer review
23-4 committee are privileged. However, if a judge makes a preliminary
23-5 finding that the proceedings, records, or communications of a
23-6 podiatric peer review committee are relevant to an anticompetitive
23-7 action or to an action brought under federal civil rights laws, the
23-8 proceedings, records, or communications are not considered to be
23-9 confidential to the extent the proceedings, records, or
23-10 communications are determined to be relevant to that action.
23-11 Sec. 4. Written or oral communications made to a podiatric
23-12 peer review committee and the records and proceedings of a peer
23-13 review committee may be disclosed to:
23-14 (1) another podiatric peer review committee;
23-15 (2) an appropriate state or federal agency;
23-16 (3) a national accreditation body; or
23-17 (4) the Texas State Board of Podiatry Examiners or the
23-18 state board of registration or licensure of podiatrists in another
23-19 state.
23-20 Sec. 5. (a) The disclosure of confidential podiatric peer
23-21 review committee information to the affected podiatrist that is
23-22 relevant to the matter under review by the committee does not
23-23 constitute a waiver of the confidentiality provisions of this
23-24 article.
23-25 (b) If a podiatric peer review committee takes action that
23-26 could result in censure or suspension, restriction, limitation, or
23-27 revocation of a license by the Texas State Board of Podiatry
24-1 Examiners or a denial of membership or privileges in a health care
24-2 entity, the affected podiatrist shall be provided a written copy of
24-3 the recommendation of the podiatric peer review committee and a
24-4 copy of the final decision, including a statement of the basis for
24-5 the decision.
24-6 Sec. 6. (a) Unless disclosure is required or authorized by
24-7 law, the records or determinations of a podiatric peer review
24-8 committee or communications made to a podiatric peer review
24-9 committee are not subject to subpoena or discovery and are not
24-10 admissible as evidence in a civil or administrative proceeding.
24-11 However, a committee may in writing waive the privilege of
24-12 confidentiality.
24-13 (b) The evidentiary privilege under this article may be
24-14 invoked by any person or organization in a civil or administrative
24-15 proceeding unless the person or organization has secured a waiver
24-16 of the privilege executed in writing by the chairman,
24-17 vice-chairman, or secretary of the affected podiatric peer review
24-18 committee.
24-19 (c) If a podiatric peer review committee, a person
24-20 participating in peer review, or an organization named as a
24-21 defendant in any civil action filed as a result of participating in
24-22 peer review is permitted to use confidential information in the
24-23 defendant's defense or in a claim or suit under Section 9 of this
24-24 article, the plaintiff in that proceeding also may disclose the
24-25 records or determinations of a peer review committee or
24-26 communications made to a peer review committee to rebut the
24-27 defendant.
25-1 (d) A person who seeks access to privileged information must
25-2 plead and prove waiver of the privilege.
25-3 (e) A member, employee, or agent of a podiatric peer review
25-4 committee who provides access to otherwise privileged
25-5 communications or records in cooperation with a law enforcement
25-6 authority in a criminal investigation has not waived any privilege
25-7 established under this article.
25-8 Sec. 7. (a) All persons, including the governing body and
25-9 medical staff of a health care entity, shall comply with a subpoena
25-10 issued by the Texas State Board of Podiatry Examiners for documents
25-11 or information.
25-12 (b) The disclosure of documents or information under a
25-13 subpoena does not constitute a waiver of the confidentiality
25-14 privilege associated with a podiatric peer review committee
25-15 proceeding.
25-16 (c) Failure to comply with a subpoena constitutes grounds
25-17 for disciplinary action against the facility or individual by the
25-18 Texas State Board of Podiatry Examiners.
25-19 Sec. 8. A person, health care entity, or podiatric peer
25-20 review committee that participates in podiatric peer review
25-21 activity or furnishes records, information, or assistance to a
25-22 podiatric peer review committee or to the Texas State Board of
25-23 Podiatry Examiners is immune from any civil liability arising from
25-24 those acts if the acts were made in good faith and without malice.
25-25 Sec. 9. A podiatric peer review committee, a person
25-26 participating in peer review, or another entity named as a
25-27 defendant in any civil action filed as a result of the defendant's
26-1 participation in peer review may file a counterclaim in the pending
26-2 action or may prove a cause of action in a subsequent suit to
26-3 recover defense costs, including court costs, attorney's fees, and
26-4 damages incurred as a result of the civil action, if the
26-5 plaintiff's original suit is determined to be frivolous or to have
26-6 been brought in bad faith.
26-7 SECTION 17. Subsection (a), Article 4574, Revised Statutes,
26-8 is amended to read as follows:
26-9 (a) The board by rule shall establish reasonable and
26-10 necessary fees so that the fees, in the aggregate, produce
26-11 sufficient revenue to cover the cost of administering this chapter.
26-12 The fees set by the board may be adjusted so that the total fees
26-13 collected are sufficient to meet the expenses of administering this
26-14 chapter. The board may not set a fee for an amount less than the
26-15 amount of that fee on September 1, 1993. <for the administration of
26-16 this article in amounts not to exceed:>
26-17 <1. Examination ........................... $500>
26-18 <2. Reexamination .......................... 500>
26-19 <3. Renewal ................................ 200>
26-20 <4. Duplicate license ....................... 50>
26-21 SECTION 18. Article 4575c, Revised Statutes, is amended to
26-22 read as follows:
26-23 Art. 4575c. Consumer information. (a) The board shall
26-24 prepare information of public <consumer> interest describing the
26-25 <regulatory> functions of the board and the board's procedures by
26-26 which <consumer> complaints are filed with and resolved by the
26-27 board. The board shall make the information available to the
27-1 <general> public and appropriate state agencies.
27-2 (b) The board by rule shall establish methods by which
27-3 consumers and service recipients are notified of the name, mailing
27-4 address, and telephone number of the board for the purpose of
27-5 directing complaints to the board. The board may provide for that
27-6 notification:
27-7 (1) on each registration form, application, or written
27-8 contract for services of an individual or entity regulated under
27-9 this chapter;
27-10 (2) on a sign prominently displayed in the place of
27-11 business of each individual or entity regulated by the board; or
27-12 (3) in a bill for service provided by an individual or
27-13 entity regulated by the board <Each written contract for services
27-14 in this state of a licensed podiatrist shall contain the name,
27-15 mailing address, and telephone number of the board>.
27-16 (c) The board shall list along with its regular telephone
27-17 number the toll-free telephone number that may be called to present
27-18 a complaint about a health professional if the toll-free number is
27-19 established under other state law <There shall at all times be
27-20 prominently displayed in the place of business of each licensed
27-21 podiatrist a sign containing the name, mailing address, and
27-22 telephone number of the board and a statement informing consumers
27-23 that complaints against licensees may be directed to the board>.
27-24 SECTION 19. Subsection (j), Article 4569, Revised Statutes,
27-25 and Subsection (g), Article 4570, Revised Statutes, are repealed.
27-26 SECTION 20. A contested case pending before the Texas State
27-27 Board of Podiatry Examiners on the effective date of this Act is
28-1 transferred to the State Office of Administrative Hearings and
28-2 actions taken in the proceeding are treated as if taken by the
28-3 State Office of Administrative Hearings.
28-4 SECTION 21. The changes in law made by Section 3 of this Act
28-5 relating to the requirements for membership on the Texas State
28-6 Board of Podiatry Examiners apply only to an appointment made on or
28-7 after the effective date of this Act, and do not affect the
28-8 entitlement of a member serving on the board on the effective date
28-9 of this Act to continue to hold office for the remainder of the
28-10 term for which the person was appointed.
28-11 SECTION 22. This Act takes effect September 1, 1993.
28-12 SECTION 23. The importance of this legislation and the
28-13 crowded condition of the calendars in both houses create an
28-14 emergency and an imperative public necessity that the
28-15 constitutional rule requiring bills to be read on three several
28-16 days in each house be suspended, and this rule is hereby suspended.