By: Cain H.B. No. 1677
73R4154 SMH-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the continuation and operation of the Texas State Board
1-3 of Medical Examiners and to the regulation of the practice of
1-4 medicine; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 2.03, Medical Practice Act (Article
1-7 4495b, Vernon's Texas Civil Statutes), is amended to read as
1-8 follows:
1-9 Sec. 2.03. Appointment to Board. Members of the board shall
1-10 be appointed by the governor and confirmed by the senate. Any
1-11 vacancy on the board shall be filled by appointment of the
1-12 governor. Any appointment made shall be without regard to race,
1-13 color, disability <creed>, sex, religion, age, or national origin,
1-14 except that a person younger than 18 years of age is not eligible
1-15 for appointment.
1-16 SECTION 2. Section 2.04, Medical Practice Act (Article
1-17 4495b, Vernon's Texas Civil Statutes), is amended to read as
1-18 follows:
1-19 Sec. 2.04. Removal from Office. (a) It is a ground for
1-20 removal from the board if a member:
1-21 (1) does not have at the time of appointment the
1-22 qualifications required by Sections 2.05(a), (b), (c), (d), and (e)
1-23 of this Act;
1-24 (2) does not maintain during service on the board the
2-1 qualifications required by Sections 2.05(a), (b), (c), (d), and (e)
2-2 of this Act;
2-3 (3) violates a prohibition established by Section
2-4 2.05(f), (g), (h), (j), or (k) of this Act;
2-5 (4) cannot discharge the member's duties for a
2-6 substantial part of the term for which the member is appointed
2-7 because of illness or disability; or
2-8 (5) is absent from more than half of the regularly
2-9 scheduled board meetings that the member is eligible to attend
2-10 during a calendar year unless the absence is excused by majority
2-11 vote of the board<, during a member's service on the board, the
2-12 member fails to meet the qualifications set forth in this Act for
2-13 members of the board. The validity of an action of the board is
2-14 not affected by the fact that it was taken when a ground for
2-15 removal of a member of the board existed>.
2-16 (b) The validity of an action of the board is not affected
2-17 by the fact that it is taken when a ground for removal of a board
2-18 member exists <Each member of the board shall be present for at
2-19 least one-half of the regularly scheduled board meetings held each
2-20 year. Failure of a board member to meet this requirement is
2-21 grounds for removal of the member from the board and the removal
2-22 creates a vacancy on the board>.
2-23 (c) If the executive director has knowledge that a potential
2-24 ground for removal exists, the executive director shall notify the
2-25 president of the board of the ground. The president shall then
2-26 notify the governor that a potential ground for removal exists.
2-27 SECTION 3. Section 2.05, Medical Practice Act (Article
3-1 4495b, Vernon's Texas Civil Statutes), is amended by amending
3-2 Subsections (b), (d), (g), (h), and (i) and adding Subsections (j),
3-3 (k), and (l) to read as follows:
3-4 (b) Seven <Nine> members of the board must:
3-5 (1) be learned and eminent physicians licensed to
3-6 practice medicine within this state for at least three years prior
3-7 to appointment and be graduates of a reputable medical school or
3-8 college with a degree of doctor of medicine (M.D.); and
3-9 (2) have been actively engaged in the practice of
3-10 medicine for at least five years immediately preceding their
3-11 appointment.
3-12 (d) Five <Three> members of the board must be public
3-13 representatives who are not licensed to practice medicine, who are
3-14 not financially involved in any organization subject to the
3-15 regulation of the board, and who are not providers of health care.
3-16 "Provider of health care" means:
3-17 (1) an individual who is a direct provider of health
3-18 care (including but not limited to a dentist, registered nurse,
3-19 licensed vocational nurse, chiropractor, podiatrist, physician
3-20 assistant, psychologist, athletic trainer, physical therapist,
3-21 social psychotherapist, pharmacist, optometrist, hospital
3-22 administrator, or nursing home administrator) in that the
3-23 individual's primary current activity is the provision of health
3-24 care to individuals or the administration of facilities or
3-25 institutions (including but not limited to hospitals, long-term
3-26 care facilities, out-patient facilities, and health maintenance
3-27 organizations) in which such care is provided and, when required by
4-1 law or otherwise, the individual has received professional or other
4-2 training in the provision of such care or in such administration
4-3 and is licensed or certified or holds himself out for such
4-4 provision or administration;
4-5 (2) one who is an indirect provider of health care in
4-6 that the individual holds a fiduciary position with or has a
4-7 fiduciary interest in an entity described below in this
4-8 subdivision; for purposes of this subdivision, a fiduciary position
4-9 or interest as applied to any entity means a position or interest
4-10 with respect to such entity affected with the character of a trust,
4-11 including members of boards of directors and officers, majority
4-12 shareholders, or agents, and receivers (either directly or through
4-13 their spouses) of more than one-tenth of their annual income from
4-14 any one or combination of fees or other compensation for research
4-15 into or instruction in the provision of health-care entities (or
4-16 associations or organizations composed of such entities) engaged
4-17 (or comprised of individuals who are engaged) in the provision of
4-18 health care or in the provision of health care and entities (or
4-19 associations or organizations composed of such entities engaged in
4-20 producing drugs or other such articles);
4-21 (3) one who is a member of the immediate family of an
4-22 individual described in this subsection; for purposes of this
4-23 subsection "immediate family" as applied to any individual includes
4-24 only his parents, spouse, children, brothers, and sisters who
4-25 reside in the same household;
4-26 (4) one who is engaged in or employed by an entity
4-27 issuing any policy or contract of individual or group health
5-1 insurance or hospital or medical service benefits; or
5-2 (5) one who is employed by, on the board of directors
5-3 of, or holds elective office by or under the authority of any unit
5-4 of federal, state, or local government or any organization that
5-5 receives a significant part of its funding from any such unit of
5-6 federal, state, or local government.
5-7 (g) An officer, employee, or paid consultant of a Texas
5-8 trade association in the field of health care may not be a member
5-9 or employee of the board who is exempt from the state's position
5-10 classification plan or is compensated at or above the amount
5-11 prescribed by the General Appropriations Act for step 1, salary
5-12 group 17, of the position classification salary schedule.
5-13 (h) A person who is the spouse of an officer, manager, or
5-14 paid consultant of a Texas trade association in the field of health
5-15 care may not be a board member and may not be a board employee who
5-16 is exempt from the state's position classification plan or is
5-17 compensated at or above the amount prescribed by the General
5-18 Appropriations Act for step 1, salary group 17, of the position
5-19 classification salary schedule.
5-20 (i) For the purposes of this section, a "Texas trade
5-21 association" is a nonprofit, cooperative, and voluntarily joined
5-22 association of business or professional competitors in this state
5-23 designed to assist its members and its industry or profession in
5-24 dealing with mutual business or professional problems and in
5-25 promoting their common interest.
5-26 (j) A person may not serve as a member of the board or act
5-27 as the general counsel to the board if the person is required to
6-1 register as a lobbyist under Chapter 305, Government Code, because
6-2 of the person's activities for compensation on behalf of a
6-3 profession related to the operation of the board. <A person
6-4 required to register as a lobbyist under Chapter 305, Government
6-5 Code, by virtue of his activities on behalf of a trade or
6-6 professional association in the regulated profession may not act as
6-7 a member of the board.>
6-8 (k) <(h)> A person is ineligible for appointment to the
6-9 board if, at the time of appointment, the person is a stockholder,
6-10 paid full-time faculty member, or a member of the board of trustees
6-11 of a medical school.
6-12 (l) <(i)> All board members must take the official oath.
6-13 SECTION 4. Section 2.09, Medical Practice Act (Article
6-14 4495b, Vernon's Texas Civil Statutes), is amended by amending
6-15 Subsections (b), (c), (g), (k), (s), and (u) and adding Subsections
6-16 (x), (y), (z), and (aa) to read as follows:
6-17 (b) The board shall develop and implement policies that
6-18 clearly define the respective responsibilities of the board and the
6-19 staff of the board. The board shall appoint an executive director
6-20 who shall be its chief executive and administrative officer, who
6-21 shall be charged with the primary responsibility of administering,
6-22 enforcing, and carrying out the provisions of the Medical Practice
6-23 Act under the control and supervision and at the direction of the
6-24 board. The executive director shall hold such position at the
6-25 pleasure of board and may be discharged at any time. The board may
6-26 act under its rules through the executive director, an executive
6-27 committee, or other committee, unless otherwise specified in this
7-1 Act. The executive committee shall be the president,
7-2 vice-president, and secretary-treasurer except where otherwise
7-3 provided in this Act. <Any duty of the secretary-treasurer in this
7-4 Act may be performed by the executive director within the
7-5 discretion of the board. Any reference to secretary-treasurer
7-6 shall have the same meaning as executive director when so
7-7 designated by the board.>
7-8 (c) The board may make rules and establish fees as are
7-9 reasonable relating to the granting and extension of expiration
7-10 dates of temporary licenses and the placing of licensees on
7-11 inactive status. The board shall by rule set time limits on the
7-12 periods for which licensees may hold temporary licenses or maintain
7-13 inactive status.
7-14 (g) A person may not serve as a member of the board or act
7-15 as the general counsel to the board if the person is required to
7-16 register as a lobbyist under Chapter 305, Government Code, because
7-17 of the person's activities for compensation on behalf of a
7-18 profession related to the operation of the board <A person who is
7-19 required personally to register as a lobbyist under Chapter 305,
7-20 Government Code, representing physicians, health-care entities, or
7-21 health-care related professions, may not be employed by the board
7-22 in any capacity>.
7-23 (k) The board <shall establish> by rule shall establish
7-24 reasonable and necessary fees so that the fees, in the aggregate,
7-25 produce sufficient revenue to cover the cost of administering this
7-26 Act. The fees set by the board may be adjusted so that the total
7-27 fees collected shall be sufficient to meet the expenses of
8-1 administering this Act. The board may not set a fee for an amount
8-2 less than the amount of that fee on September 1, 1993 <a reasonable
8-3 charge for those fees not specifically determined but authorized by
8-4 this Act>. The board may not waive collection of any fee or
8-5 penalty. The board shall place all fees received under authority
8-6 of this Act, not otherwise specified, into the medical licensing
8-7 fund. The board is authorized and shall by annual budget determine
8-8 the manner of handling the funds and the purpose, consistent with
8-9 this Act, for which the same may be used. The budgeted expenses
8-10 authorized by the board shall not be a charge upon the general
8-11 revenue of the state nor paid from the general revenue.
8-12 (s)(1) The board shall prepare information of public
8-13 <consumer> interest describing the functions of the board and the
8-14 board's procedures by which complaints are filed with and resolved
8-15 by the board. The board shall make the information available to
8-16 the public and appropriate state agencies.
8-17 (2) The board by rule shall establish methods by which
8-18 consumers and service recipients are notified of the name, mailing
8-19 address, and telephone number of the board for the purpose of
8-20 directing complaints to the board. The board may provide for that
8-21 notification:
8-22 (A) on each registration form, application, or
8-23 written contract for services of an individual or entity regulated
8-24 under this Act;
8-25 (B) on a sign prominently displayed in the place
8-26 of business of each individual or entity regulated under this Act;
8-27 or
9-1 (C) in a bill for services provided by an
9-2 individual or entity regulated under this Act.
9-3 (3) The board shall list along with its regular
9-4 telephone number the toll free telephone number that may be called
9-5 to present a complaint about a health professional if the toll free
9-6 number is established under other state law <regulatory functions
9-7 of the board and describing the board's procedures by which
9-8 consumer complaints are filed with and resolved by the board. On
9-9 written request the board shall make information available to the
9-10 general public for a reasonable fee to cover expenses and
9-11 appropriate state agencies including a summary of any previous
9-12 disciplinary orders by the board against a specific physician
9-13 licensed in this state, the date of the order, and the current
9-14 status of the order. The board shall establish an eight-hour
9-15 toll-free telephone number to make the information immediately
9-16 available to any caller>.
9-17 (u) The executive director or the executive director's
9-18 designee shall develop an intra-agency career ladder program. The
9-19 program shall require intra-agency posting of all nonentry level
9-20 positions concurrently with any public posting <board shall cause
9-21 to be developed an intraagency career ladder program, one part of
9-22 which shall be the intraagency posting of each job opening with the
9-23 board in a nonentry-level position. The intraagency posting shall
9-24 be made at least 10 days before any public posting>.
9-25 (x) Each board member shall comply with the board member
9-26 training requirements established by any other state agency that is
9-27 given authority to establish the requirements for the board.
10-1 (y) The board shall provide to its members and employees, as
10-2 often as necessary, information regarding their qualifications for
10-3 office or employment under this Act and their responsibilities
10-4 under applicable laws relating to standards of conduct for state
10-5 officers or employees.
10-6 (z) The board shall develop and implement policies that
10-7 provide the public with a reasonable opportunity to appear before
10-8 the board and to speak on any issue under the jurisdiction of the
10-9 board.
10-10 (aa) The board shall prepare and maintain a written plan
10-11 that describes how a person who does not speak English can be
10-12 provided reasonable access to the board's programs. The board
10-13 shall also comply with federal and state laws for program and
10-14 facility accessibility.
10-15 SECTION 5. The Medical Practice Act (Article 4495b, Vernon's
10-16 Texas Civil Statutes) is amended by adding Section 2.10 to read as
10-17 follows:
10-18 Sec. 2.10. EQUAL EMPLOYMENT OPPORTUNITY. (a) The executive
10-19 director or the executive director's designee shall prepare and
10-20 maintain a written policy statement to assure implementation of a
10-21 program of equal employment opportunity under which all personnel
10-22 decisions are made without regard to race, color, disability, sex,
10-23 religion, age, or national origin. The policy statement must
10-24 include:
10-25 (1) personnel policies, including policies relating to
10-26 recruitment, evaluation, selection, appointment, training, and
10-27 promotion of personnel, that are in compliance with requirements of
11-1 the Commission on Human Rights Act (Article 5221k, Vernon's Texas
11-2 Civil Statutes) and its subsequent amendments;
11-3 (2) a comprehensive analysis of the board's work force
11-4 that meets federal and state guidelines;
11-5 (3) procedures by which a determination can be made of
11-6 significant underuse in the board's work force of all persons for
11-7 whom federal or state guidelines encourage a more equitable
11-8 balance; and
11-9 (4) reasonable methods to appropriately address those
11-10 areas of significant underuse.
11-11 (b) A policy statement prepared under Subsection (a) of this
11-12 section must cover an annual period, be updated annually and
11-13 reviewed by the Commission on Human Rights for compliance with
11-14 requirements of the Commission on Human Rights Act (Article 5221k,
11-15 Vernon's Texas Civil Statutes) and its subsequent amendments, and
11-16 be filed with the governor's office.
11-17 (c) The governor's office shall deliver a biennial report to
11-18 the legislature based on the information received under Subsection
11-19 (b) of this section. The report may be made separately or as a
11-20 part of other biennial reports made to the legislature.
11-21 SECTION 6. Sections 3.01(a), (c), and (i), Medical Practice
11-22 Act (Article 4495b, Vernon's Texas Civil Statutes), are amended to
11-23 read as follows:
11-24 (a) All persons now lawfully qualified to practice medicine
11-25 in this state, or who are hereafter licensed for the practice of
11-26 medicine by the board, shall be registered as practitioners with
11-27 the board on or before the first day of January and thereafter
12-1 shall register in like manner annually, on or before the first day
12-2 of January of each succeeding year. Each person so registered with
12-3 the board shall pay, in connection with each annual registration
12-4 and for the receipt hereinafter provided for, a fee established by
12-5 the board which fee shall accompany the application of each person
12-6 for registration. The payment shall be made to the board. Every
12-7 person so registered shall file with the board a written
12-8 application for annual registration, setting forth his name and
12-9 mailing address, the place or places where the applicant is engaged
12-10 in the practice of medicine, and other necessary information
12-11 prescribed by the board. If the person is licensed for the
12-12 practice of medicine by another state, the District of Columbia, or
12-13 a territory of the United States, the application must include a
12-14 description of any sanctions imposed by or disciplinary matters
12-15 pending in the state, district, or territory.
12-16 (c)(1) A person may renew an unexpired license by paying to
12-17 the board on or before the expiration date of the license the
12-18 required renewal fee.
12-19 (2) If a person's license has been expired for 90 days
12-20 or less, the person may renew the license by paying to the board
12-21 the required renewal fee and a fee that is one-half of the
12-22 examination fee for the license.
12-23 (3) If a person's license has been expired for longer
12-24 than 90 days but less than one year, the person may renew the
12-25 license by paying to the board all unpaid renewal fees and a fee
12-26 that is equal to the examination fee for the license.
12-27 (4) If a person's license has been expired for one
13-1 year or longer, the person may not renew the license. The person
13-2 may obtain a new license by submitting to reexamination and
13-3 complying with the requirements and procedures for obtaining an
13-4 original license.
13-5 (5) The board may renew without examination an expired
13-6 license of a person who was licensed in this state, moved to
13-7 another state, and is currently licensed and has been in practice
13-8 in the other state for the two years preceding application. The
13-9 person must pay to the board a fee that is equal to the examination
13-10 fee for the license <Failure of any licensee to pay the annual
13-11 license renewal fee on or before the 90th day after the date it is
13-12 due automatically cancels his licensure. Any licensee whose
13-13 license has been canceled because of failure to pay the annual
13-14 license renewal fee may secure reinstatement of his license at any
13-15 time within that license year upon payment of the delinquent fee
13-16 together with a penalty in an amount as the board may determine to
13-17 be reasonable. After expiration of the license year for which the
13-18 license fee was not paid, no license shall be reinstated except
13-19 upon application and satisfaction of other conditions as the board
13-20 may establish and payment of delinquent fees and a penalty to be
13-21 assessed by the board>.
13-22 (i) At least 30 days before the expiration of a person's
13-23 license, the board shall send written notice of the impending
13-24 license expiration to the person at the licensee's last known
13-25 address according to the records of the board <The board must
13-26 notify each delinquent licensee of his impending license
13-27 cancellation by registered or certified mail sent to the licensee's
14-1 address listed with the board not less than 30 days prior to the
14-2 cancellation. This requirement shall be waived when the licensee
14-3 has requested in writing that his or her license be canceled>.
14-4 SECTION 7. The Medical Practice Act (Article 4495b, Vernon's
14-5 Texas Civil Statutes) is amended by adding Section 3.025 to read as
14-6 follows:
14-7 Sec. 3.025. CONTINUING EDUCATION. (a) For the protection
14-8 of the public and to preserve and improve the competence of
14-9 licensees, the board shall:
14-10 (1) adopt and administer rules requiring continuing
14-11 education as a prerequisite to renewal of a license under this Act;
14-12 (2) identify the key factors that lead to the
14-13 competent performance by a licensee of the licensee's professional
14-14 duties;
14-15 (3) develop a process for evaluating and approving
14-16 continuing education courses;
14-17 (4) establish the minimum number of hours of
14-18 continuing education required to renew a license under this Act;
14-19 and
14-20 (5) adopt a process to assess the licensee's
14-21 participation and performance in continuing education courses.
14-22 (b) The board may assess the continuing education needs of
14-23 licensees and may require licensees to attend continuing education
14-24 courses specified by the board.
14-25 SECTION 8. Section 3.03(c), Medical Practice Act (Article
14-26 4495b, Vernon's Texas Civil Statutes), is amended to read as
14-27 follows:
15-1 (c) Applicants for a license under this section must
15-2 subscribe to an oath in writing before an officer authorized by law
15-3 to administer oaths. The written oath must be a part of the
15-4 application. The application must:
15-5 (1) state that:
15-6 (A) <(1)> the license, certificate, or authority
15-7 under which the applicant practiced medicine in the state or
15-8 Canadian province from which the applicant is removed or in the
15-9 uniformed service in which the applicant served was at the time of
15-10 the removal or completion of service in full force and not
15-11 canceled, suspended, or revoked;
15-12 (B) <(2)> the applicant is the identical person
15-13 to whom the certificate, license, or commission and the diploma
15-14 were issued;
15-15 (C) <(3)> no proceeding has been instituted
15-16 against the applicant for the restriction, cancellation,
15-17 suspension, or revocation of the certificate, license, or authority
15-18 to practice medicine in the state, Canadian province, or uniformed
15-19 service of the United States in which it was issued; and
15-20 (D) <(4)> no prosecution is pending against the
15-21 applicant in any state, federal, or Canadian court for any offense
15-22 that under the laws of this state is a felony; and
15-23 (2) include a description of any sanctions imposed by
15-24 or disciplinary matters pending in the state, Canadian province, or
15-25 uniformed service of the United States in which the applicant is
15-26 licensed or certified to practice medicine.
15-27 SECTION 9. The Medical Practice Act (Article 4495b, Vernon's
16-1 Texas Civil Statutes) is amended by adding Section 3.0305 to read
16-2 as follows:
16-3 Sec. 3.0305. TEMPORARY LICENSE FOR OUT-OF-STATE
16-4 PRACTITIONERS. (a) On application, the board shall grant a
16-5 temporary license to practice medicine. An applicant for a
16-6 temporary license under this section must:
16-7 (1) be licensed in good standing, without any pending
16-8 disciplinary matters, as a physician in another state, the District
16-9 of Columbia, or a territory of the United States that has licensing
16-10 requirements that are substantially equivalent to the requirements
16-11 of this Act;
16-12 (2) have passed a national or other examination
16-13 recognized by the board relating to the practice of medicine; and
16-14 (3) be sponsored by a person licensed by the board
16-15 under this Act with whom the temporary license holder may practice
16-16 under this section.
16-17 (b) An applicant for a temporary license may be excused from
16-18 the requirement of Subsection (a)(3) of this section if the board
16-19 determines that compliance with that subsection constitutes a
16-20 hardship to the applicant.
16-21 (c) A temporary license is valid until the date the board
16-22 approves or denies the temporary license holder's application for a
16-23 license. The board shall issue a license under this Act to the
16-24 holder of a temporary license under this section if:
16-25 (1) the temporary license holder passes the
16-26 examination required by Section 3.05 of this Act;
16-27 (2) the board verifies that the temporary license
17-1 holder has satisfied the academic and experience requirements for a
17-2 license under this Act; and
17-3 (3) the temporary license holder has satisfied any
17-4 other license requirements under this Act.
17-5 (d) The board must complete the processing of a temporary
17-6 license holder's application for a license not later than the 180th
17-7 day after the date the temporary license is issued.
17-8 SECTION 10. Sections 3.05(a), (c), and (e), Medical Practice
17-9 Act (Article 4495b, Vernon's Texas Civil Statutes), are amended to
17-10 read as follows:
17-11 (a) All examinations for license to practice medicine shall
17-12 be conducted in writing in the English language and in a manner as
17-13 to be entirely fair and impartial to all individuals and to every
17-14 school or system of medicine. All applicants shall be known to the
17-15 examiners only by numbers, without names or other method of
17-16 identification on examination papers by which members of the board
17-17 may be able to identify the applicants or examinees, until after
17-18 the general averages of the examinees' numbers in the class have
17-19 been determined and license granted or refused. Examinations shall
17-20 be conducted on and cover those subjects generally taught by
17-21 medical schools, a knowledge of which is commonly and generally
17-22 required of candidates for the degree of doctor of medicine or
17-23 doctor of osteopathy conferred by schools or colleges of medicine
17-24 approved by the board, and the examinations shall also be conducted
17-25 on and cover the subject of medical jurisprudence. Examinations
17-26 shall be prepared by a national testing service or prepared by the
17-27 board and validated by qualified independent testing professionals.
18-1 On satisfactory examination conducted as required by this Act under
18-2 rules of the board, applicants shall be granted licenses to
18-3 practice medicine. All questions and answers, with the grades
18-4 attached, shall be preserved for one year in the executive office
18-5 of the board or such other repository as the board by rule may
18-6 direct. All applicants examined at the same time shall be given
18-7 identical questions. All certificates shall be attested by the
18-8 seal of the board. The board in its discretion may give the
18-9 examination for license in two parts.
18-10 (c) All applicants for license to practice medicine in this
18-11 state not otherwise licensed under the provisions of law must
18-12 successfully pass an examination by the board. The board is
18-13 authorized to adopt and enforce all rules of procedure not
18-14 inconsistent with statutory requirements. All applicants shall be
18-15 given due notice of the date and place of the examination; provided
18-16 that the partial examinations provided for in this Act shall not be
18-17 disturbed by this section. If any applicant, because of failure to
18-18 pass the required examination, is refused a license, the applicant,
18-19 at a time as the board may fix, shall be permitted to take a
18-20 subsequent examination upon any subjects required in the original
18-21 examination as the board may prescribe on the payment of a fee as
18-22 the board may determine to be reasonable. The board shall by rule
18-23 determine the number of times an applicant may be permitted to take
18-24 the examination and the conditions for reexamination. In the event
18-25 satisfactory grades shall be made on the subjects prescribed and
18-26 taken on the reexamination, the board may grant the applicant a
18-27 license to practice medicine. The board shall determine the credit
19-1 to be given examinees on answers turned in on the subjects of
19-2 complete and partial examination, and its decision is final.
19-3 (e) Within 30 days after the day on which an examination is
19-4 administered under this Act, the board shall notify each examinee
19-5 of the results of the examination. However, if an examination is
19-6 graded or reviewed by a national testing service, the board shall
19-7 notify each examinee of the results of the examination not later
19-8 than the 14th day <within four weeks> after the date the board
19-9 receives the results from the testing service. If the notice of
19-10 the examination results will be delayed for longer than 90 days
19-11 after the examination, the board shall notify the examinee of the
19-12 reason for the delay before the 90th day.
19-13 SECTION 11. Section 3.08, Medical Practice Act (Article
19-14 4495b, Vernon's Texas Civil Statutes), is amended to read as
19-15 follows:
19-16 Sec. 3.08. Grounds for Refusal to Admit Persons to
19-17 Examination and to Issue License and Renewal License And For
19-18 Disciplinary Action. The board may refuse to admit persons to its
19-19 examinations and to issue a license to practice medicine to any
19-20 person and may take disciplinary action against any person for any
19-21 of the following reasons:
19-22 (1) submission of a false or misleading statement,
19-23 document, or certificate to the board in an application for
19-24 examination or licensure; the presentation to the board of any
19-25 license, certificate, or diploma that was illegally or fraudulently
19-26 obtained; the practice of fraud or deception in taking or passing
19-27 an examination;
20-1 (2) conviction of a crime of the grade of a felony or
20-2 a crime of a lesser degree that involves moral turpitude;
20-3 (3) intemperate use of alcohol or drugs that, in the
20-4 opinion of the board, could endanger the lives of patients;
20-5 (4) unprofessional or dishonorable conduct that is
20-6 likely to deceive or defraud the public or injure the public.
20-7 Unprofessional or dishonorable conduct likely to deceive or defraud
20-8 the public includes but is not limited to the following acts:
20-9 (A) committing any act that is in violation of
20-10 the laws of the State of Texas if the act is connected with the
20-11 physician's practice of medicine. A complaint, indictment, or
20-12 conviction of a law violation is not necessary for the enforcement
20-13 of this provision. Proof of the commission of the act while in the
20-14 practice of medicine or under the guise of the practice of medicine
20-15 is sufficient for action by the board under this section;
20-16 (B) failing to keep complete and accurate
20-17 records of purchases and disposals of drugs listed in Chapter 481,
20-18 Health and Safety Code, or of controlled substances scheduled in
20-19 the Federal Comprehensive Drug Abuse Prevention and Control Act of
20-20 1970, 21 U.S.C.A. Section 801 et seq. (Public Law 91-513). A
20-21 physician shall keep records of his purchases and disposals of
20-22 these drugs to include without limitation the date of purchase, the
20-23 sale or disposal of the drugs by the physician, the name and
20-24 address of the person receiving the drugs, and the reason for the
20-25 disposing or dispensing of the drugs to the person. A failure to
20-26 keep the records for a reasonable time is grounds for revoking,
20-27 canceling, suspending, or probating the license of any practitioner
21-1 of medicine. The board or its representative may enter and inspect
21-2 a physician's place(s) of practice during reasonable business hours
21-3 for the purpose of verifying the correctness of these records and
21-4 of taking inventory of the prescription drugs on hand;
21-5 (C) writing prescriptions for or dispensing to a
21-6 person known to be a habitual user of narcotic drugs, controlled
21-7 substances, or dangerous drugs or to a person who the physician
21-8 should have known was a habitual user of the narcotic drugs,
21-9 controlled substances, or dangerous drugs. This provision does not
21-10 apply to those persons being treated by the physician for their
21-11 narcotic use after the physician notifies the board in writing of
21-12 the name and address of the person being so treated;
21-13 (D) writing false or fictitious prescriptions
21-14 for dangerous drugs as defined by Chapter 483, Health and Safety
21-15 Code, of controlled substances scheduled in the Texas Controlled
21-16 Substances Act (Chapter 481, Health and Safety Code) <(Article
21-17 4476-15, Vernon's Texas Civil Statutes)>, or of controlled
21-18 substances scheduled in the Federal Comprehensive Drug Abuse
21-19 Prevention and Control Act of 1970, 21 U.S.C.A. Section 801 et
21-20 seq. (Public Law 91-513);
21-21 (E) prescribing or administering a drug or
21-22 treatment that is nontherapeutic in nature or nontherapeutic in the
21-23 manner the drug or treatment is administered or prescribed;
21-24 (F) prescribing, administering, or dispensing in
21-25 a manner not consistent with public health and welfare dangerous
21-26 drugs as defined by Chapter 483, Health and Safety Code, controlled
21-27 substances scheduled in the Texas Controlled Substances Act
22-1 (Chapter 481, Health and Safety Code) <(Article 4476-15, Vernon's
22-2 Texas Civil Statutes)>, or controlled substances scheduled in the
22-3 Federal Comprehensive Drug Abuse Prevention and Control Act of
22-4 1970, 21 U.S.C.A. Section 801 et seq. (Public Law 91-513);
22-5 (G) <persistently and flagrantly> overcharging
22-6 or overtreating patients;
22-7 (H) failing to supervise adequately the
22-8 activities of those acting under the supervision of the physician;
22-9 or
22-10 (I) delegating professional medical
22-11 responsibility or acts to a person if the delegating physician
22-12 knows or has reason to know that the person is not qualified by
22-13 training, experience, or licensure to perform the responsibility or
22-14 acts;
22-15 (5) violation or attempted violation, direct or
22-16 indirect, of any valid rules issued under this Act, either as a
22-17 principal, accessory, or accomplice;
22-18 (6) use of any advertising statement that is false,
22-19 misleading, or deceptive;
22-20 <(7) advertising professional superiority or the
22-21 performance of professional service in a superior manner if the
22-22 advertising is not readily subject to verification;>
22-23 (7) <(8)> purchase, sale, barter, or use or any offer
22-24 to purchase, sell, barter, or use any medical degree, license,
22-25 certificate, diploma, or transcript of license, certificate, or
22-26 diploma in or incident to an application to the board for a license
22-27 to practice medicine;
23-1 (8) <(9)> altering, with fraudulent intent, any
23-2 medical license, certificate, diploma, or transcript of a medical
23-3 license, certificate, or diploma;
23-4 (9) <(10)> using any medical license, certificate,
23-5 diploma, or transcript of a medical license, certificate, or
23-6 diploma that has been fraudulently purchased, issued, or
23-7 counterfeited or that has been materially altered;
23-8 (10) <(11)> impersonating or acting as proxy for
23-9 another in any examination required by this Act for a medical
23-10 license; or engaging in conduct which subverts or attempts to
23-11 subvert any examination process required by this Act for a medical
23-12 license. Conduct which subverts or attempts to subvert the medical
23-13 licensing examination process includes, but is not limited to:
23-14 (A) conduct which violates the security of the
23-15 examination materials, as prescribed by board rules;
23-16 (B) conduct which violates the standard of test
23-17 administration, as prescribed by board rules; or
23-18 (C) conduct which violates the accreditation
23-19 process, as prescribed by board rules;
23-20 (11) <(12)> impersonating a licensed practitioner or
23-21 permitting or allowing another to use his license or certificate to
23-22 practice medicine in this state for the purpose of diagnosing,
23-23 treating, or offering to treat sick, injured, or afflicted human
23-24 beings;
23-25 (12) <(13)> employing, directly or indirectly, any
23-26 person whose license to practice medicine has been suspended or
23-27 association in the practice of medicine with any person or persons
24-1 whose license to practice medicine has been suspended or any person
24-2 who has been convicted of the unlawful practice of medicine in
24-3 Texas or elsewhere;
24-4 (13) <(14)> performing or procuring a criminal
24-5 abortion or aiding or abetting in the procuring of a criminal
24-6 abortion or attempting to perform or procure a criminal abortion or
24-7 attempting to aid or abet the performance or procurement of a
24-8 criminal abortion;
24-9 (14) <(15)> aiding or abetting, directly or
24-10 indirectly, the practice of medicine by any person, partnership,
24-11 association, or corporation not duly licensed to practice medicine
24-12 by the board;
24-13 (15) <(16)> inability to practice medicine with
24-14 reasonable skill and safety to patients by reason of illness,
24-15 drunkenness, excessive use of drugs, narcotics, chemicals, or any
24-16 other type of material or as a result of any mental or physical
24-17 condition. In enforcing this subdivision the board shall, upon
24-18 probable cause, request a physician to submit to a mental or
24-19 physical examination by physicians designated by the board. If the
24-20 physician refuses to submit to the examination, the board shall
24-21 issue an order requiring the physician to show cause why he should
24-22 not be required to submit to the examination and shall schedule a
24-23 hearing on the order within 30 days after notice is served on the
24-24 physician. The physician shall be notified by either personal
24-25 service or certified mail with return receipt requested. At the
24-26 hearing, the physician and his attorney are entitled to present any
24-27 testimony and other evidence to show why the physician should not
25-1 be required to submit to the examination. After a complete
25-2 hearing, the board shall issue an order either requiring the
25-3 physician to submit to the examination or withdrawing the request
25-4 for examination. An appeal from the decision of the board shall be
25-5 taken under the Administrative Procedure Act;
25-6 (16) <(17)> judgment by a court of competent
25-7 jurisdiction that a person licensed to practice medicine is of
25-8 unsound mind;
25-9 (17) <(18)> professional failure to practice medicine
25-10 in an acceptable manner consistent with public health and welfare;
25-11 (18) <(19)> being removed, suspended, or having
25-12 disciplinary action taken by his peers in any professional medical
25-13 association or society, whether the association or society is
25-14 local, regional, state, or national in scope, or being disciplined
25-15 by a licensed hospital or medical staff of a hospital, including
25-16 removal, suspension, limitation of hospital privileges, or other
25-17 disciplinary action, if that action in the opinion of the board was
25-18 based on unprofessional conduct or professional incompetence that
25-19 was likely to harm the public, provided that the board finds that
25-20 the actions were appropriate and reasonably supported by evidence
25-21 submitted to it. The action does not constitute state action on
25-22 the part of the association, society, or hospital medical staff;
25-23 (19) <(20)> repeated or recurring meritorious
25-24 health-care liability claims that in the opinion of the board
25-25 evidence professional incompetence likely to injure the public; or
25-26 (20) <(21)> suspension, revocation, or restriction by
25-27 another state of a license to practice medicine, or disciplinary
26-1 action by the uniformed services of the United States, based upon
26-2 acts by the licensee similar to acts described in this section. A
26-3 certified copy of the record of the state taking the action is
26-4 conclusive evidence of it.
26-5 SECTION 12. The Medical Practice Act (Article 4495b,
26-6 Vernon's Texas Civil Statutes) is amended by adding Section 3.085
26-7 to read as follows:
26-8 Sec. 3.085. RESTRICTIONS ON BIDDING AND ADVERTISING. (a)
26-9 The board may not adopt rules restricting competitive bidding or
26-10 advertising by a person regulated by the board except to prohibit
26-11 false, misleading, or deceptive practices by the person.
26-12 (b) The board may not include in its rules to prohibit
26-13 false, misleading, or deceptive practices by a person regulated by
26-14 the board a rule that:
26-15 (1) restricts the use of any medium for advertising;
26-16 (2) restricts the person's personal appearance or use
26-17 of the person's voice in an advertisement;
26-18 (3) relates to the size or duration of an
26-19 advertisement by the person; or
26-20 (4) restricts the person's advertisement under a trade
26-21 name.
26-22 SECTION 13. Sections 3.10(b), (c), (d), and (e), Medical
26-23 Practice Act (Article 4495b, Vernon's Texas Civil Statutes), are
26-24 amended to read as follows:
26-25 <(b) The board may not set, charge, collect, receive, or
26-26 deposit any of the following fees in excess of:>
26-27 <(1) for processing and granting a license by
27-1 reciprocity to a licensee of another state.....................$700>
27-2 <(2) for processing an application and
27-3 administration of a partial examination for
27-4 licensure......................................................$700>
27-5 <(3) for processing an application and
27-6 administration of a complete examination for
27-7 licensure......................................................$700>
27-8 <(4) for processing an application and
27-9 issuance of a temporary license................................$200>
27-10 <(5) for processing an application and
27-11 issuance of a duplicate license................................$200>
27-12 <(6) for processing an application and
27-13 issuance of a license of reinstatement after a lapse
27-14 or cancellation of a license...................................$700>
27-15 <(7) for processing an application and
27-16 issuance of an annual registration of a licensee...............$200>
27-17 <(8) for processing and issuance of an
27-18 institutional permit for interns, residents, and
27-19 others in approved medical training programs...................$200>
27-20 <(9) for processing an application and
27-21 issuance of an endorsement to other state medical
27-22 boards.........................................................$200>
27-23 <(10) for processing and issuance of a permit
27-24 to a physician who supervises a physician assistant............$200>
27-25 <(11) for processing and issuance of a permit
27-26 to a physician who supervises an acupuncturist..............$200.>
27-27 (b) <(c)> The board may set and collect a sales charge for
28-1 making copies of any paper of record in the office of the board and
28-2 for any printed material published by the board. The charges shall
28-3 be in amounts considered sufficient to reimburse the board for the
28-4 actual expense.
28-5 (c) <(d)> The financial transactions of the board are
28-6 subject to audit by the state auditor in accordance with Chapter
28-7 321, Government Code.
28-8 (d) The board shall file annually with the governor and the
28-9 presiding officer of each house of the legislature a complete and
28-10 detailed written report accounting for all funds received and
28-11 disbursed by the board during the preceding fiscal year. The
28-12 annual report must be in the form and reported in the time provided
28-13 by the General Appropriations Act <(e) On or before the first day
28-14 of January each year, the board shall file with the governor and
28-15 the presiding officer of each house of the legislature a complete
28-16 and detailed written report accounting for all funds received and
28-17 disbursed by the board during the preceding year>.
28-18 SECTION 14. Section 3.11A, Medical Practice Act (Article
28-19 4495b, Vernon's Texas Civil Statutes), is amended to read as
28-20 follows:
28-21 Sec. 3.11A. Disposition of <Increase in> fees. (a) This
28-22 section applies to each <Each> of the following fees <imposed by or
28-23 under another section of this Act is increased by $200>:
28-24 (1) fee for processing and granting a license by
28-25 reciprocity to a licensee of another state;
28-26 (2) fee for processing an application and
28-27 administration of a partial examination for licensure;
29-1 (3) fee for processing an application and
29-2 administration of a complete examination for licensure;
29-3 (4) fee for processing an application and issuance of
29-4 a license of reinstatement after a lapse or cancellation of a
29-5 license; and
29-6 (5) fee for processing an application and issuance of
29-7 an annual registration of a licensee.
29-8 (b) Of each fee <increase> collected, $50 shall be deposited
29-9 to the credit of the foundation school fund and $150 shall be
29-10 deposited to the credit of the general revenue fund. This
29-11 subsection applies to the disposition of the stated portion of each
29-12 fee <increase> regardless of any other provision of law providing
29-13 for a different disposition of funds.
29-14 SECTION 15. Section 4.01, Medical Practice Act (Article
29-15 4495b, Vernon's Texas Civil Statutes), is amended to read as
29-16 follows:
29-17 Sec. 4.01. Grounds for Cancellation, Revocation, Suspension,
29-18 and Probation of License. (a) The board shall revoke or suspend a
29-19 license, place on probation a person whose license has been
29-20 suspended, or reprimand a licensee for a violation of this Act or a
29-21 rule of the board <Except as provided herein, the board may cancel,
29-22 revoke, or suspend the license of any practitioner of medicine or
29-23 impose any other authorized means of discipline upon proof of the
29-24 violation of this Act in any respect> or for any cause for which
29-25 the board is authorized to refuse to admit persons to its
29-26 examination and to issue a license and renewal license, including
29-27 an initial conviction or the initial finding of the trier of fact
30-1 of guilt of a felony or misdemeanor involving moral turpitude.
30-2 (b) On proof that a practitioner of medicine has been
30-3 initially convicted of a felony or the initial finding of the trier
30-4 of fact of guilt of a felony under Chapter 481, Health and Safety
30-5 Code, Section 485.033, Health and Safety Code, Chapter 483, Health
30-6 and Safety Code, or the Federal Comprehensive Drug Abuse Prevention
30-7 and Control Act of 1970, 21 U.S.C.A. Section 801 et seq. (Public
30-8 Law 91-513), the board shall suspend the practitioner's license.
30-9 On the practitioner's final conviction for such a felony offense,
30-10 the board shall revoke the practitioner's license.
30-11 (c) The board shall suspend the license of a practitioner
30-12 who is serving a prison term in a state or federal penitentiary
30-13 during his incarceration regardless of the offense.
30-14 SECTION 16. Section 4.02, Medical Practice Act (Article
30-15 4495b, Vernon's Texas Civil Statutes), is amended to read as
30-16 follows:
30-17 Sec. 4.02. Initiation of Charges; Complaint Procedures. (a)
30-18 Proceedings, unless otherwise specified, under this Act and charges
30-19 against a licensee may be instituted by the board on its own
30-20 initiative or by any person. <Charges must be in writing and on
30-21 sworn affidavit filed with the board detailing the nature of the
30-22 charges. The president or his designee shall set a time and place
30-23 for a hearing and shall cause a copy of the charges, together with
30-24 a notice of the time and place fixed for the hearing to be served
30-25 on the respondent or the respondent's counsel.>
30-26 (b) The board shall keep an information file about each
30-27 complaint filed with the board. The board's information file shall
31-1 be kept current and contain a record for each complaint of:
31-2 (1) all persons contacted in relation to the
31-3 complaint;
31-4 (2) a summary of findings made at each step of the
31-5 complaint process;
31-6 (3) an explanation of the legal basis and reason for a
31-7 complaint that is dismissed; and
31-8 (4) other relevant information.
31-9 (c) If a written complaint is filed with the board that the
31-10 board has authority to resolve, the board, at least as frequently
31-11 as quarterly and until final disposition of the complaint, shall
31-12 notify the parties to the complaint of the status of the complaint
31-13 unless the notice would jeopardize an undercover investigation.
31-14 (d) The board by rule shall adopt a form to standardize
31-15 information concerning complaints made to the board. The board by
31-16 rule shall prescribe information to be provided to a person when
31-17 the person files a complaint with the board.
31-18 (e) The board shall provide reasonable assistance to a
31-19 person who wishes to file a complaint with the board.
31-20 SECTION 17. Section 4.03, Medical Practice Act (Article
31-21 4495b, Vernon's Texas Civil Statutes), is amended to read as
31-22 follows:
31-23 Sec. 4.03. Notice. <(a)> Service of process notifying the
31-24 respondent of <the time and place of> a hearing about <and the
31-25 nature of> the charges against the person shall be made in
31-26 accordance with the requirements of the Administrative Procedure
31-27 Act and its subsequent amendments <person or by mail. Notice shall
32-1 be sufficient if made in person or if sent by registered or
32-2 certified mail to the person charged at the address shown in the
32-3 board files or on his most recent application for registration or
32-4 renewal, no later than 10 days before the hearing.>
32-5 <(b) If service of notice as prescribed by Subsection (a) of
32-6 this section is impossible or cannot be effected, the board shall
32-7 cause to be published once a week for two successive weeks a notice
32-8 of the hearing in a newspaper published in the county of the last
32-9 known place of practice in Texas of the person, if known. If the
32-10 licensee is not currently practicing in Texas as evidenced by
32-11 information in the board files, or if the last county of practice
32-12 is unknown, publication shall be in a newspaper in Travis County.
32-13 When publication of notice is used, the date of hearing may not be
32-14 less than 10 days after the date of the last publication of
32-15 notice>.
32-16 SECTION 18. Section 4.04, Medical Practice Act (Article
32-17 4495b, Vernon's Texas Civil Statutes), is amended to read as
32-18 follows:
32-19 Sec. 4.04. Investigation. (a) The board shall adopt rules
32-20 concerning the investigation of a complaint filed with the board.
32-21 The rules adopted under this subsection shall:
32-22 (1) distinguish between categories of complaints;
32-23 (2) ensure that complaints are not dismissed without
32-24 appropriate consideration;
32-25 (3) require that the board be advised of a complaint
32-26 that is dismissed and that a letter be sent to the person who filed
32-27 the complaint explaining the action taken on the dismissed
33-1 complaint;
33-2 (4) ensure that the person who filed the complaint has
33-3 an opportunity to explain the allegations made in the complaint;
33-4 and
33-5 (5) prescribed guidelines concerning the categories of
33-6 complaints that require the use of a private investigator and the
33-7 procedures for the board to obtain the services of a private
33-8 investigator.
33-9 (b) Except as otherwise provided by this section, all
33-10 investigations shall be conducted by the board or persons
33-11 authorized by the board to conduct them. The board may commission
33-12 investigators as peace officers for the purpose of enforcing this
33-13 Act. However, investigators of the board so commissioned as peace
33-14 officers may not carry a firearm or exercise arrest powers. Each
33-15 complaint against a physician which requires a determination of
33-16 medical competency shall be reviewed by a board member, consultant,
33-17 or employee with medical background considered sufficient by the
33-18 board.
33-19 (c) <(b)> Unless it would jeopardize an investigation, the
33-20 board shall notify the physician that a complaint has been filed
33-21 and the nature of the complaint. The board shall make a
33-22 preliminary investigation of the complaint. The first
33-23 consideration of the board shall be whether the physician
33-24 constitutes a continuing threat to the public welfare. The board
33-25 may, unless precluded by the law or this Act, make a disposition of
33-26 any complaint or matter relating to this Act, or of any contested
33-27 case by stipulation, agreed settlement, or consent order. The
34-1 board shall adopt such rules as are appropriate to carry out such
34-2 disposition. Such disposition shall be considered a disciplinary
34-3 order.
34-4 (d) The board shall dispose of all complaints in a timely
34-5 manner. The board shall establish a schedule for conducting each
34-6 phase of a complaint that is under the control of the board not
34-7 later than the 30th day after the date the complaint is received by
34-8 the board. The schedule shall be kept in the information file for
34-9 the complaint and all parties shall be notified of the projected
34-10 time requirements for pursuing the complaint. A change in the
34-11 schedule must be noted in the complaint information file and all
34-12 parties to the complaint must be notified not later than the
34-13 seventh day after the date the change is made.
34-14 (e) The executive director of the board shall notify the
34-15 board of a complaint that extends beyond the time prescribed by the
34-16 board for resolving the complaint so that the board may take
34-17 necessary action on the complaint.
34-18 SECTION 19. The Medical Practice Act (Article 4495b,
34-19 Vernon's Texas Civil Statutes) is amended by adding Section 4.045
34-20 to read as follows:
34-21 Sec. 4.045. INFORMAL PROCEEDINGS. (a) The board by rule
34-22 shall adopt procedures governing:
34-23 (1) informal disposition of a contested case under
34-24 Section 13(e), Administrative Procedure Act, and its subsequent
34-25 amendments; and
34-26 (2) informal proceedings held in compliance with
34-27 Section 18(c), Administrative Procedure Act, and its subsequent
35-1 amendments.
35-2 (b) Rules adopted under this section must provide the
35-3 complainant and the licensee an opportunity to be heard and must
35-4 require the presence of a representative of the office of the
35-5 attorney general to advise the board or board's employees.
35-6 SECTION 20. Section 4.05, Medical Practice Act (Article
35-7 4495b, Vernon's Texas Civil Statutes), is amended to read as
35-8 follows:
35-9 Sec. 4.05. Hearings, Rules. (a) The <president of the>
35-10 board by rule shall adopt procedures governing formal disposition
35-11 of a contested case under the Administrative Procedure Act and its
35-12 subsequent amendments. A formal hearing shall be conducted by an
35-13 administrative law judge employed by the State Office of
35-14 Administrative Hearings <designate one of the following alternative
35-15 procedures for the conduct of each individual contested case in a
35-16 disciplinary matter:>
35-17 <(1) a hearing before the board itself where a quorum
35-18 of the board shall be present for the hearing and decision at the
35-19 conclusion of the hearing;>
35-20 <(2) a hearing committee appointed by the president of
35-21 the board, provided that the hearing committee shall be composed of
35-22 not less than three members of the board and the composition of
35-23 such committee shall be consistent with the provisions of Sections
35-24 2.08 and 2.09 of this Act; or>
35-25 <(3) a hearing before a hearing examiner appointed by
35-26 the board to conduct a hearing and to prepare and submit to the
35-27 board for action a proposal for decision as provided in the
36-1 Administrative Procedure and Texas Register Act (Article 6252-13a,
36-2 Vernon's Texas Civil Statutes).>
36-3 <Any individual conducting a hearing under this subchapter is
36-4 empowered to administer oaths and to receive evidence at the
36-5 hearing and shall report the hearing as prescribed by board rules.
36-6 Notwithstanding any other provision of this Act or other law, the
36-7 board may, in its sole discretion, employ, retain, and compensate
36-8 such attorneys, consultants, and other professionals as it deems
36-9 necessary and appropriate to serve as hearing examiners, board
36-10 consultants, special counsel to prosecute on behalf of the hearings
36-11 division and investigating division such complaints as are filed
36-12 with the board, court reporters, and other staff deemed necessary
36-13 or appropriate by the board to prepare for or conduct the hearings
36-14 authorized by this section. All hearings conducted under this
36-15 subchapter by the board shall comply with the provisions of the
36-16 Administrative Procedure Act and the board's rules>.
36-17 <(b) The licensee shall have the right to produce witnesses
36-18 or evidence on the person's behalf, to cross-examine witnesses, and
36-19 to have subpoenas issued by the board to be served at the
36-20 licensee's expense.>
36-21 (b) <(c)> The board shall, after receiving the
36-22 administrative law judge's findings of fact and conclusions of law
36-23 <the hearing>, determine the charges upon their merits.
36-24 (c) <(d)> All complaints, adverse reports, investigation
36-25 files, other investigation reports, and other investigative
36-26 information in the possession of, received or gathered by the board
36-27 or its employees or agents relating to a licensee, an application
37-1 for license, or a criminal investigation or proceedings are
37-2 privileged and confidential and are not subject to discovery,
37-3 subpoena, or other means of legal compulsion for their release to
37-4 anyone other than the board or its employees or agents involved in
37-5 licensee discipline. However, investigative information in the
37-6 possession of the board or its employees or agents which relates to
37-7 licensee discipline may be disclosed to the appropriate licensing
37-8 authority in another state, the District of Columbia, or a
37-9 territory or country in which the licensee is licensed or has
37-10 applied for a license, or to a peer review committee reviewing an
37-11 application for privileges or the qualifications of the licensee
37-12 with respect to retaining privileges. If the investigative
37-13 information in the possession of the board or its employees or
37-14 agents indicates a crime may have been committed, the information
37-15 shall be reported to the proper law enforcement agency. The board
37-16 shall cooperate and assist all law enforcement agencies conducting
37-17 criminal investigations of licensees by providing information which
37-18 is relevant to the criminal investigation to the investigating
37-19 agency. Any information disclosed by the board to an investigative
37-20 agency shall remain confidential and shall not be disclosed by the
37-21 investigating agency except as necessary to further the
37-22 investigation. The board shall provide information upon the
37-23 written request of a health-care entity about a complaint filed
37-24 against a licensee that was resolved after investigation by a
37-25 disciplinary order of the board or by an agreed settlement and the
37-26 basis of and current status of any complaint under active
37-27 investigation. The board shall keep information on file about each
38-1 complaint filed with the board, consistent with this Act. If a
38-2 written complaint is filed with the board relating to a person
38-3 licensed by the board, the board, at least as often as quarterly
38-4 and until final determination of the action to be taken relative to
38-5 the complaint, shall notify the parties to the complaint
38-6 <complaining party> consistent with this Act of the status of the
38-7 complaint unless the notice would jeopardize an active
38-8 investigation.
38-9 (d) <(e)> The board in its discretion may accept the
38-10 voluntary surrender of a license. No license may be returned
38-11 unless the board determines, under rules established by it, that
38-12 the licensee is competent to resume practice.
38-13 SECTION 21. Section 4.10, Medical Practice Act (Article
38-14 4495b, Vernon's Texas Civil Statutes), is amended to read as
38-15 follows:
38-16 Sec. 4.10. Petition for Reinstatement. (a) Upon
38-17 application, the board may reissue a license to practice medicine
38-18 to a person whose license has been canceled, revoked, or suspended,
38-19 but the application, in the case of revocation, may not be made
38-20 prior to one year after the revocation was issued or became final
38-21 and must be made upon payment of the fees as established by the
38-22 board and in the manner and form and under the conditions as the
38-23 board may require. Further, the board may not reinstate or reissue
38-24 a license to a person whose license has been canceled, revoked, or
38-25 suspended because of a felony conviction under Chapter 481, Health
38-26 and Safety Code, Section 485.033, Health and Safety Code, Chapter
38-27 483, Health and Safety Code, or the Federal Comprehensive Drug
39-1 Abuse Prevention and Control Act of 1970, 21 U.S.C.A. Section 801
39-2 et seq. (Public Law 91-513), except on an express determination
39-3 based on substantial evidence contained in an investigative report
39-4 indicating that the reinstatement or reissue of the license is in
39-5 the best interests of the public and of the person whose license
39-6 has been canceled, revoked, or suspended.
39-7 (b) A decision by the board to deny an application to
39-8 reinstate or reissue a license is subject to judicial review in the
39-9 manner provided by Section 4.09 of this Act.
39-10 SECTION 22. Section 4.11, Medical Practice Act (Article
39-11 4495b, Vernon's Texas Civil Statutes), is amended to read as
39-12 follows:
39-13 Sec. 4.11. Monitoring of License Holder; Probation.
39-14 (a) The board by rule shall develop a system for monitoring
39-15 license holders' compliance with the requirements of this Act.
39-16 Rules adopted under this section shall include procedures for
39-17 monitoring a license holder who is ordered by the board to perform
39-18 certain acts to ascertain that the license holder performs the
39-19 required acts and to identify and monitor license holders who
39-20 present a risk to the public.
39-21 (b) The board upon majority vote may provide that the order
39-22 canceling, revoking, or suspending a license or imposing any other
39-23 method of discipline be probated so long as the probationer
39-24 conforms to the orders, conditions, and rules that the board may
39-25 set out as the terms of probation. However, the board may not
39-26 grant probation to a person whose license has been canceled,
39-27 revoked, or suspended because of a felony conviction under Chapter
40-1 481, Health and Safety Code, Section 485.033, Health and Safety
40-2 Code, Chapter 483, Health and Safety Code, or the Federal
40-3 Comprehensive Drug Abuse Prevention and Control Act of 1970, 21
40-4 U.S.C.A. Section 801 et seq. (Public Law 91-513), except on an
40-5 express determination, based on substantial evidence, that the
40-6 grant of probation is in the best interests of the public and of
40-7 the person whose license has been suspended, revoked, or canceled.
40-8 The board, at the time of probation, shall set out the period of
40-9 time that constitutes the probationary period. The board may not
40-10 grant probation to a physician who poses, through the practice of
40-11 medicine, a continuing threat to the public welfare.
40-12 (c) <(b)> The board may at any time while the probationer
40-13 remains on probation, with adequate grounds being shown, hold a
40-14 hearing and, upon majority vote, rescind the probation and enforce
40-15 the board's original action and shall do so if the board determines
40-16 that the probationer poses, through the practice of medicine, a
40-17 continuing threat to the public welfare.
40-18 (d) <(c)> The hearing to rescind the probation shall be
40-19 governed by the same provisions as are set forth in this subchapter
40-20 for other charges.
40-21 SECTION 23. Section 4.12, Medical Practice Act (Article
40-22 4495b, Vernon's Texas Civil Statutes), is amended to read as
40-23 follows:
40-24 Sec. 4.12. Methods of Discipline. (a) Except as otherwise
40-25 provided in Section 4.01, if the board finds any person to have
40-26 committed any of the acts set forth in Section 3.08 of this Act, it
40-27 shall enter an order imposing one or more of the following:
41-1 (1) deny the person's application for a license or
41-2 other authorization to practice medicine;
41-3 (2) administer a public reprimand;
41-4 (3) suspend, limit, or restrict the person's license
41-5 or other authorization to practice medicine, including limiting the
41-6 practice of the person to or by the exclusion of one or more
41-7 specified activities of medicine or stipulating periodic board
41-8 review;
41-9 (4) revoke the person's license or other authorization
41-10 to practice medicine;
41-11 (5) require the person to submit to care, counseling,
41-12 or treatment of physicians designated by the board as a condition
41-13 for the initial, continued, or renewal of a license or other
41-14 authorization to practice medicine;
41-15 (6) require the person to participate in a program of
41-16 education or counseling prescribed by the board;
41-17 (7) require the person to practice under the direction
41-18 of a physician designated by the board for a specified period of
41-19 time; <or>
41-20 (8) require the person to perform public service
41-21 considered appropriate by the board; or
41-22 (9) assess an administrative penalty against the
41-23 person as provided by Section 4.125 of this Act.
41-24 (b) Providing however, if the board determines that, through
41-25 the practice of medicine, the physician poses a continuing threat
41-26 to the public welfare, it shall revoke, suspend or deny the
41-27 license.
42-1 (c) In addition to the other disciplinary actions authorized
42-2 by this section, the board may issue a written reprimand to a
42-3 license holder who violates this Act or require that a license
42-4 holder who violates this Act participate in continuing education
42-5 programs. The board shall specify the continuing education
42-6 programs that may be attended and the number of hours that must be
42-7 completed by an individual license holder to fulfill the
42-8 requirements of this subsection.
42-9 (d) If a license suspension is probated, the board may
42-10 require the license holder to:
42-11 (1) report regularly to the board on matters that are
42-12 the basis of the probation;
42-13 (2) limit practice to the areas prescribed by the
42-14 board; or
42-15 (3) continue or review continuing professional
42-16 education until the license holder attains a degree of skill
42-17 satisfactory to the board in those areas that are the basis of the
42-18 probation.
42-19 (e) The schedule of sanctions adopted by the board by rule
42-20 shall be used by the State Office of Administrative Hearings for
42-21 any sanction imposed as the result of a hearing conducted by that
42-22 office.
42-23 SECTION 24. The Medical Practice Act (Article 4495b,
42-24 Vernon's Texas Civil Statutes) is amended by adding Section 4.125
42-25 to read as follows:
42-26 Sec. 4.125. ADMINISTRATIVE PENALTY. (a) If a person
42-27 licensed under this Act violates a provision of this Act or a rule
43-1 or order adopted by the board under this Act, the board may assess
43-2 an administrative penalty against the person as provided by this
43-3 section.
43-4 (b) The penalty for each violation may be in an amount not
43-5 to exceed $5,000. Each day a violation continues or occurs may be
43-6 considered a separate violation for purposes of penalty
43-7 assessments.
43-8 (c) In determining the amount of the penalty, the executive
43-9 director of the board shall consider:
43-10 (1) the seriousness of the violation, including the
43-11 nature, circumstances, extent, and gravity of the prohibited acts
43-12 and the hazard or potential hazard created to the health or safety
43-13 of the public;
43-14 (2) the economic damage to property or the environment
43-15 caused by the violation;
43-16 (3) the history of previous violations;
43-17 (4) the amount necessary to deter future violations;
43-18 (5) efforts to correct the violation; and
43-19 (6) any other matter that justice may require.
43-20 (d) If, after investigation of a possible violation and the
43-21 facts surrounding that possible violation, the executive director
43-22 determines that a violation has occurred, the executive director
43-23 may issue a violation report stating the facts on which the
43-24 conclusion that a violation occurred is based, recommending that an
43-25 administrative penalty under this section be imposed on the person
43-26 charged and recommending the amount of that proposed penalty. The
43-27 executive director shall base the recommended amount of the
44-1 proposed penalty on the seriousness of the violation determined by
44-2 consideration of the factors set forth in Subsection (c) of this
44-3 section.
44-4 (e) Not later than the 14th day after the date on which the
44-5 report is issued, the executive director shall give written notice
44-6 of the report to the person charged. The notice shall include a
44-7 brief summary of the charges, a statement of the amount of the
44-8 penalty recommended, and a statement of the right of the person
44-9 charged to a hearing on the occurrence of the violation or the
44-10 amount of the penalty, or both the occurrence of the violation and
44-11 the amount of the penalty.
44-12 (f) Not later than the 20th day after the date on which the
44-13 notice is received, the person charged may accept the determination
44-14 of the executive director made under Subsection (d) of this
44-15 section, including the recommended penalty, or make a written
44-16 request for a hearing on the determination.
44-17 (g) If the person charged with the violation accepts the
44-18 determination of the executive director, the board shall issue an
44-19 order approving the determination and ordering the payment of the
44-20 recommended penalty.
44-21 (h) If the person charged requests a hearing or fails to
44-22 timely respond to the notice, the executive director shall set a
44-23 hearing and give notice of the hearing. The hearing shall be held
44-24 by the State Office of Administrative Hearings. The State Office
44-25 of Administrative Hearings shall make findings of fact and
44-26 conclusions of law and promptly issue to the board a proposal for
44-27 decision as to the occurrence of the violation, including a
45-1 recommendation as to the amount of the proposed penalty if a
45-2 penalty is warranted. Based on the findings of fact, conclusions
45-3 of law, and recommendations of the State Office of Administrative
45-4 Hearings, the board by order may find that a violation has occurred
45-5 and may assess a penalty or may find that no violation has
45-6 occurred. All proceedings under this subsection are subject to the
45-7 Administrative Procedure Act and its subsequent amendments.
45-8 (i) The executive director shall give notice of the board's
45-9 order to the person charged. The notice shall include:
45-10 (1) the findings of fact and conclusions of law
45-11 separately stated;
45-12 (2) the amount of the penalty ordered, if any;
45-13 (3) a statement of the right of the person charged to
45-14 judicial review of the board's order, if any; and
45-15 (4) other information required by law.
45-16 (j) Within the 30-day period immediately following the day
45-17 on which the order becomes final as provided by Section 16(c),
45-18 Administrative Procedure Act, and its subsequent amendments, the
45-19 person charged with the penalty shall:
45-20 (1) pay the penalty in full; or
45-21 (2) if the person files a petition for judicial review
45-22 contesting either the amount of the penalty or the fact of the
45-23 violation or contesting both the fact of the violation and the
45-24 amount of the penalty:
45-25 (A) forward the amount to the executive director
45-26 for placement in an escrow account; or
45-27 (B) in lieu of payment into escrow, post with
46-1 the executive director a supersedeas bond in a form approved by the
46-2 executive director for the amount of the penalty, the bond to be
46-3 effective until all judicial review of the order or decision is
46-4 final.
46-5 (k) If a person charged is financially unable to either
46-6 forward the amount of the penalty for placement in an escrow
46-7 account or post a supersedeas bond for the amount of the penalty,
46-8 the person may satisfy the requirements of Subsection (j)(2) of
46-9 this section by filing with the executive director an affidavit
46-10 sworn by the person charged, stating that the person is financially
46-11 unable to either forward the amount of the penalty or post a bond.
46-12 (l) Failure to forward the money to or to post the bond or
46-13 file the affidavit with the executive director within the time
46-14 provided by Subsection (j) of this section results in a waiver of
46-15 all legal rights to judicial review. Also, if the person charged
46-16 fails to pay the penalty in full as provided by Subsection (j) or
46-17 (k) of this section, the executive director may forward the matter
46-18 to the attorney general for enforcement.
46-19 (m) Judicial review of the order or decision of the board
46-20 assessing the penalty shall be under the substantial evidence rule
46-21 and shall be instituted by filing a petition with a district court
46-22 in Travis County, as provided by Section 19, Administrative
46-23 Procedure Act, and its subsequent amendments.
46-24 (n) If the penalty is reduced or not assessed by the court,
46-25 the executive director shall remit to the person charged the
46-26 appropriate amount plus accrued interest if the penalty has been
46-27 paid or shall execute a release of the bond if a supersedeas bond
47-1 has been posted. The accrued interest on amounts remitted by the
47-2 executive director under this subsection shall be paid at a rate
47-3 equal to the rate charged on loans to depository institutions by
47-4 the New York Federal Reserve Bank and shall be paid for the period
47-5 beginning on the date the penalty is paid to the executive director
47-6 under Subsection (j) of this section and ending on the date the
47-7 penalty is remitted.
47-8 (o) A penalty collected under this section for a violation
47-9 by a person licensed under this Act shall be deposited in the state
47-10 general revenue fund.
47-11 SECTION 25. The Medical Practice Act (Article 4495b,
47-12 Vernon's Texas Civil Statutes) is amended by adding Section 4.126
47-13 to read as follows:
47-14 Sec. 4.126. CIVIL PENALTY. (a) If it appears that a person
47-15 is in violation of or is threatening to violate this Act or a rule
47-16 or order adopted by the board, the attorney general may institute
47-17 an action for a civil penalty of $1,000 for each violation. Each
47-18 day of a violation shall constitute a separate violation.
47-19 (b) A civil action filed under this section by the attorney
47-20 general or the board must be filed in a district court in Travis
47-21 County or the county in which the violation occurred.
47-22 (c) The attorney general, district and county attorney, and
47-23 the board may recover reasonable expenses incurred in obtaining a
47-24 civil penalty under this section, including court costs, reasonable
47-25 attorney's fees, investigative costs, witness fees, and deposition
47-26 expenses.
47-27 (d) A civil penalty recovered in an action by the attorney
48-1 general or the board under this section shall be deposited in the
48-2 state treasury.
48-3 SECTION 26. Section 4.13, Medical Practice Act (Article
48-4 4495b, Vernon's Texas Civil Statutes), is amended to read as
48-5 follows:
48-6 Sec. 4.13. Temporary Suspension of License. (a) The
48-7 president of the board, with the approval of the board, shall
48-8 appoint a three-member disciplinary panel consisting of members of
48-9 the board for the purpose of determining whether a person's license
48-10 to practice medicine in this state should be temporarily suspended
48-11 under this section.
48-12 (b) If the disciplinary panel <executive committee of the
48-13 board> determines from the evidence or information presented to it
48-14 that a person licensed to practice medicine in this state by his
48-15 continuation in practice would constitute a continuing threat to
48-16 the public welfare, the disciplinary panel <executive committee of
48-17 the board> shall temporarily suspend the license of that person.
48-18 (c) The license may be suspended under this section without
48-19 notice or hearing on the complaint, provided institution of
48-20 proceedings for a hearing before the board is initiated
48-21 simultaneously with the temporary suspension and provided that a
48-22 hearing is held as soon as can be accomplished under the
48-23 Administrative Procedure Act and this Act.
48-24 (d)(1) Notwithstanding the open meetings law, the
48-25 disciplinary panel may hold an open or closed meeting by telephone
48-26 conference call if immediate action is required and the convening
48-27 at one location of the disciplinary panel is inconvenient for any
49-1 member of the disciplinary panel.
49-2 (2) The meeting is subject to the notice requirements
49-3 applicable to other meetings.
49-4 (3) The notice of the meeting must specify as the
49-5 location of the meeting the location where meetings of the board
49-6 are usually held.
49-7 (4) Each part of the meeting that is required to be
49-8 open to the public shall be audible to the public at the location
49-9 specified in the notice of the meeting as the location of the
49-10 meeting and shall be tape recorded. The tape recording shall be
49-11 made available to the public.
49-12 SECTION 27. Section 5.08(k), Medical Practice Act (Article
49-13 4495b, Vernon's Texas Civil Statutes), is amended to read as
49-14 follows:
49-15 (k) A physician shall furnish copies of medical records
49-16 requested, or a summary or narrative of the records, pursuant to a
49-17 written consent for release of the information as provided by
49-18 Subsection (j) of this section, except if the physician determines
49-19 that access to the information would be harmful to the physical,
49-20 mental, or emotional health of the patient, and the physician may
49-21 delete confidential information about another person who has not
49-22 consented to the release. The information shall be furnished by
49-23 the physician within 30 days after the date of receipt of the
49-24 request <a reasonable period of time> and reasonable fees for
49-25 furnishing the information shall be paid by the patient or someone
49-26 on his behalf. If the physician denies the request, in whole or in
49-27 part, the physician shall furnish the patient a written statement,
50-1 signed and dated, stating the reason for the denial. A copy of the
50-2 statement denying the request shall be placed in the patient's
50-3 medical records. In this subsection, "medical records" means any
50-4 records pertaining to the history, diagnosis, treatment, or
50-5 prognosis of the patient.
50-6 SECTION 28. Section 5.10, Medical Practice Act (Article
50-7 4495b, Vernon's Texas Civil Statutes), is amended to read as
50-8 follows:
50-9 Sec. 5.10. Sunset provision. The Texas State Board of
50-10 Medical Examiners is subject to Chapter 325, Government Code (Texas
50-11 Sunset Act). Unless continued in existence as provided by that
50-12 chapter, the board is abolished and this Act expires September 1,
50-13 2005 <1993>.
50-14 SECTION 29. (a) As soon as possible on or after the
50-15 effective date of this Act, the governor shall appoint 15 new
50-16 members to the Texas State Board of Medical Examiners in accordance
50-17 with Section 2.05, Medical Practice Act (Article 4495b, Vernon's
50-18 Texas Civil Statutes), as amended by this Act. In making the
50-19 appointments, the governor shall designate five members for terms
50-20 expiring April 13, 1995, five members for terms expiring April 13,
50-21 1997, and five members for terms expiring April 13, 1999. The
50-22 members appointed under this subsection may not perform the
50-23 functions of the board until the day after the date a majority of
50-24 the new members take office.
50-25 (b) Until the date the new members of the Texas State Board
50-26 of Medical Examiners may begin performing the functions of the
50-27 board under Subsection (a) of this section, the members serving on
51-1 the board immediately before the effective date of this Act shall
51-2 continue to carry out the functions of the board. On the date the
51-3 new members may begin performing the functions of the board, the
51-4 offices of the members serving immediately before the effective
51-5 date of this Act are abolished.
51-6 (c) The changes in law made by this Act in the
51-7 qualifications of, and the prohibitions applying to, members of the
51-8 Texas State Board of Medical Examiners do not affect the
51-9 entitlement of a member serving on the board immediately before the
51-10 effective date of this Act to continue to carry out the functions
51-11 of the board for the period prescribed by Subsection (b) of this
51-12 section. The changes in law apply only to a member appointed on or
51-13 after the effective date of this Act.
51-14 (d) The changes in law made by this Act relating to an
51-15 administrative penalty or civil penalty apply only to a violation
51-16 of the Medical Practice Act (Article 4495b, Vernon's Texas Civil
51-17 Statutes) or a rule or order adopted by the Texas State Board of
51-18 Medical Examiners that occurs on or after the effective date of
51-19 this Act. A violation occurs on or after the effective date of
51-20 this Act only if each element of the violation occurs on or after
51-21 that date. A violation that occurs before the effective date of
51-22 this Act is governed by the law in effect on the date the violation
51-23 occurred, and the former law is continued in effect for that
51-24 purpose.
51-25 SECTION 30. This Act takes effect September 1, 1993.
51-26 SECTION 31. The importance of this legislation and the
51-27 crowded condition of the calendars in both houses create an
52-1 emergency and an imperative public necessity that the
52-2 constitutional rule requiring bills to be read on three several
52-3 days in each house be suspended, and this rule is hereby suspended.