1-1 By: Parker, Moncrief S.B. No. 1062
1-2 (In the Senate - Filed March 12, 1993; March 15, 1993, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 28, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 1; April 28, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Zaffirini x
1-10 Ellis x
1-11 Madla x
1-12 Moncrief x
1-13 Nelson x
1-14 Patterson x
1-15 Shelley x
1-16 Truan x
1-17 Wentworth x
1-18 COMMITTEE SUBSTITUTE FOR S.B. No. 1062 By: Moncrief
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the continuation and operation of the Texas State Board
1-22 of Medical Examiners and to the regulation of the practice of
1-23 medicine, including the practice of acupuncture; providing
1-24 penalties.
1-25 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-26 SECTION 1. Subdivision (6), Subsection (a), Section 1.03,
1-27 Medical Practice Act (Article 4495b, Vernon's Texas Civil
1-28 Statutes), is amended to read as follows:
1-29 (6) "Medical peer review committee" or "professional
1-30 review body" means a committee of a health-care entity, the
1-31 governing board of a health-care entity, or the medical staff of a
1-32 health-care entity, provided the committee or medical staff
1-33 operates pursuant to written bylaws that have been approved by the
1-34 policy-making body or the governing board of the health-care entity
1-35 and authorized to evaluate the quality of medical and health-care
1-36 services or the competence of physicians, including those functions
1-37 specified by Section 85.204, Health and Safety Code, and its
1-38 subsequent amendments. Such a committee includes the employees and
1-39 agents of the committee, including assistants, investigators,
1-40 intervenors, attorneys, and any other persons or organizations that
1-41 serve the committee in any capacity.
1-42 SECTION 2. Section 2.03, Medical Practice Act (Article
1-43 4495b, Vernon's Texas Civil Statutes), is amended to read as
1-44 follows:
1-45 Sec. 2.03. Appointment to Board. Members of the board shall
1-46 be appointed by the governor and confirmed by the senate. Any
1-47 vacancy on the board shall be filled by appointment of the
1-48 governor. Any appointment made shall be without regard to race,
1-49 color, disability <creed>, sex, religion, age, or national origin,
1-50 except that a person younger than 18 years of age is not eligible
1-51 for appointment.
1-52 SECTION 3. Section 2.04, Medical Practice Act (Article
1-53 4495b, Vernon's Texas Civil Statutes), is amended to read as
1-54 follows:
1-55 Sec. 2.04. Removal from Office. (a) It is a ground for
1-56 removal from the board if a member:
1-57 (1) does not have at the time of appointment the
1-58 qualifications required by Sections 2.05(a), (b), (c), (d), and (e)
1-59 of this Act;
1-60 (2) does not maintain during service on the board the
1-61 qualifications required by Sections 2.05(a), (b), (c), (d), and (e)
1-62 of this Act;
1-63 (3) violates a prohibition established by Section
1-64 2.05(f), (g), (h), (j), or (k) of this Act;
1-65 (4) cannot discharge the member's duties for a
1-66 substantial part of the term for which the member is appointed
1-67 because of illness or disability; or
1-68 (5) is absent from more than half of the regularly
2-1 scheduled board meetings that the member is eligible to attend
2-2 during a calendar year unless the absence is excused by majority
2-3 vote of the board<, during a member's service on the board, the
2-4 member fails to meet the qualifications set forth in this Act for
2-5 members of the board. The validity of an action of the board is
2-6 not affected by the fact that it was taken when a ground for
2-7 removal of a member of the board existed>.
2-8 (b) The validity of an action of the board is not affected
2-9 by the fact that it is taken when a ground for removal of a board
2-10 member exists <Each member of the board shall be present for at
2-11 least one-half of the regularly scheduled board meetings held each
2-12 year. Failure of a board member to meet this requirement is
2-13 grounds for removal of the member from the board and the removal
2-14 creates a vacancy on the board>.
2-15 (c) If the executive director has knowledge that a potential
2-16 ground for removal exists, the executive director shall notify the
2-17 president of the board of the ground. The president shall then
2-18 notify the governor that a potential ground for removal exists.
2-19 SECTION 4. Section 2.05, Medical Practice Act (Article
2-20 4495b, Vernon's Texas Civil Statutes), is amended by amending
2-21 Subsections (b), (d), (g), (h), and (i) and adding Subsections (j),
2-22 (k), and (l) to read as follows:
2-23 (b) Seven <Nine> members of the board must:
2-24 (1) be learned and eminent physicians licensed to
2-25 practice medicine within this state for at least three years prior
2-26 to appointment and be graduates of a reputable medical school or
2-27 college with a degree of doctor of medicine (M.D.); and
2-28 (2) have been actively engaged in the practice of
2-29 medicine for at least five years immediately preceding their
2-30 appointment.
2-31 (d) Five <Three> members of the board must be public
2-32 representatives who are not licensed to practice medicine, who are
2-33 not financially involved in any organization subject to the
2-34 regulation of the board, and who are not providers of health care.
2-35 "Provider of health care" means:
2-36 (1) an individual who is a direct provider of health
2-37 care (including but not limited to a dentist, registered nurse,
2-38 licensed vocational nurse, chiropractor, podiatrist, physician
2-39 assistant, psychologist, athletic trainer, physical therapist,
2-40 social psychotherapist, pharmacist, optometrist, hospital
2-41 administrator, or nursing home administrator) in that the
2-42 individual's primary current activity is the provision of health
2-43 care to individuals or the administration of facilities or
2-44 institutions (including but not limited to hospitals, long-term
2-45 care facilities, out-patient facilities, and health maintenance
2-46 organizations) in which such care is provided and, when required by
2-47 law or otherwise, the individual has received professional or other
2-48 training in the provision of such care or in such administration
2-49 and is licensed or certified or holds himself out for such
2-50 provision or administration;
2-51 (2) one who is an indirect provider of health care in
2-52 that the individual holds a fiduciary position with or has a
2-53 fiduciary interest in an entity described below in this
2-54 subdivision; for purposes of this subdivision, a fiduciary position
2-55 or interest as applied to any entity means a position or interest
2-56 with respect to such entity affected with the character of a trust,
2-57 including members of boards of directors and officers, majority
2-58 shareholders, or agents, and receivers (either directly or through
2-59 their spouses) of more than one-tenth of their annual income from
2-60 any one or combination of fees or other compensation for research
2-61 into or instruction in the provision of health-care entities (or
2-62 associations or organizations composed of such entities) engaged
2-63 (or comprised of individuals who are engaged) in the provision of
2-64 health care or in the provision of health care and entities (or
2-65 associations or organizations composed of such entities engaged in
2-66 producing drugs or other such articles);
2-67 (3) one who is a member of the immediate family of an
2-68 individual described in this subsection; for purposes of this
2-69 subsection "immediate family" as applied to any individual includes
2-70 only his parents, spouse, children, brothers, and sisters who
3-1 reside in the same household;
3-2 (4) one who is engaged in or employed by an entity
3-3 issuing any policy or contract of individual or group health
3-4 insurance or hospital or medical service benefits; or
3-5 (5) one who is employed by, on the board of directors
3-6 of, or holds elective office by or under the authority of any unit
3-7 of federal, state, or local government or any organization that
3-8 receives a significant part of its funding from any such unit of
3-9 federal, state, or local government.
3-10 (g) An officer, employee, or paid consultant of a Texas
3-11 trade or professional association in the field of health care may
3-12 not be a member or employee of the board who is exempt from the
3-13 state's position classification plan or is compensated at or above
3-14 the amount prescribed by the General Appropriations Act for step 1,
3-15 salary group 17, of the position classification salary schedule.
3-16 (h) A person who is the spouse of an officer, manager, or
3-17 paid consultant of a Texas trade or professional association in the
3-18 field of health care may not be a board member and may not be a
3-19 board employee who is exempt from the state's position
3-20 classification plan or is compensated at or above the amount
3-21 prescribed by the General Appropriations Act for step 1, salary
3-22 group 17, of the position classification salary schedule.
3-23 (i) For the purposes of this section, a "Texas trade or
3-24 professional association" is a nonprofit, cooperative, and
3-25 voluntarily joined association of business or professional
3-26 competitors in this state designed to assist its members and its
3-27 industry or profession in dealing with mutual business or
3-28 professional problems and in promoting their common interest.
3-29 (j) A person may not serve as a member of the board if the
3-30 person is required to register as a lobbyist under Chapter 305,
3-31 Government Code, and its subsequent amendments, because of the
3-32 person's activities for compensation on behalf of a profession
3-33 related to the operation of the board <A person required to
3-34 register as a lobbyist under Chapter 305, Government Code, by
3-35 virtue of his activities on behalf of a trade or professional
3-36 association in the regulated profession may not act as a member of
3-37 the board>.
3-38 (k) <(h)> A person is ineligible for appointment to the
3-39 board if, at the time of appointment, the person is a stockholder,
3-40 paid full-time faculty member, or a member of the board of trustees
3-41 of a medical school.
3-42 (l) <(i)> All board members must take the official oath.
3-43 SECTION 5. Subsection (a), Section 2.07, Medical Practice
3-44 Act (Article 4495b, Vernon's Texas Civil Statutes), is amended to
3-45 read as follows:
3-46 (a) Not later than December after each regular session of
3-47 the legislature <At the first meeting of the board after each
3-48 biennial appointment>, the governor shall appoint from the members
3-49 of the board a president and the board shall elect from its members
3-50 a <president,> vice-president, secretary-treasurer, and other
3-51 officers as are required, in the opinion of the board, to carry out
3-52 its duties.
3-53 SECTION 6. Section 2.09, Medical Practice Act (Article
3-54 4495b, Vernon's Texas Civil Statutes), is amended by amending
3-55 Subsections (b), (c), (g), (k), (s), and (u) and adding Subsections
3-56 (b-1), (x), (y), (z), and (aa) to read as follows:
3-57 (b) The board shall develop and implement policies that
3-58 clearly define the respective responsibilities of the board and the
3-59 staff of the board. The board shall appoint an executive director
3-60 who shall be its chief executive and administrative officer, who
3-61 shall be charged with the primary responsibility of administering,
3-62 enforcing, and carrying out the provisions of the Medical Practice
3-63 Act under the control and supervision and at the direction of the
3-64 board. The executive director shall hold such position at the
3-65 pleasure of board and may be discharged at any time. The board may
3-66 act under its rules through the executive director, an executive
3-67 committee, or other committee, unless otherwise specified in this
3-68 Act. The executive committee shall be the president,
3-69 vice-president, and secretary-treasurer except where otherwise
3-70 provided in this Act<. Any duty of the secretary-treasurer in this
4-1 Act may be performed by the executive director within the
4-2 discretion of the board. Any reference to secretary-treasurer
4-3 shall have the same meaning as executive director when so
4-4 designated by the board>.
4-5 (b-1) The executive director may employ a chief operating
4-6 officer who shall be primarily responsible for administering,
4-7 implementing, and monitoring systems and necessary measures to
4-8 promote quality and efficiency of ongoing board operations and
4-9 other duties as may be assigned by the executive director. If the
4-10 board appoints an executive director who is not a physician
4-11 licensed to practice in this state, the executive director shall
4-12 appoint a medical director who is a physician licensed to practice
4-13 in this state and who shall be primarily responsible for
4-14 implementing and maintaining policies, systems, and measures
4-15 regarding clinical and professional issues and determinations. The
4-16 chief operating officer or medical director shall act under the
4-17 control and supervision and at the direction of the executive
4-18 director.
4-19 (c) The board may make rules and establish fees as are
4-20 reasonable relating to the granting and extension of expiration
4-21 dates of temporary licenses and the placing of licensees on
4-22 inactive status. The board shall by rule set time limits on the
4-23 periods for which licensees may hold temporary licenses or maintain
4-24 inactive status.
4-25 (g) A person may not serve as a member of the board or act
4-26 as the general counsel to the board if the person is required to
4-27 register as a lobbyist under Chapter 305, Government Code, and its
4-28 subsequent amendments, because of the person's activities for
4-29 compensation on behalf of a profession related to the operation of
4-30 the board <who is required personally to register as a lobbyist
4-31 under Chapter 305, Government Code, representing physicians,
4-32 health-care entities, or health-care related professions, may not
4-33 be employed by the board in any capacity>.
4-34 (k) The board <shall establish> by rule shall establish
4-35 reasonable and necessary fees so that the fees, in the aggregate,
4-36 produce sufficient revenue to cover the cost of administering this
4-37 Act. The fees set by the board may be adjusted so that the total
4-38 fees collected shall be sufficient to meet the expenses of
4-39 administering this Act. The board may not set a fee for an amount
4-40 less than the amount of that fee on September 1, 1993 <a reasonable
4-41 charge for those fees not specifically determined but authorized by
4-42 this Act>. The board may not waive collection of any fee or
4-43 penalty. The board shall place all fees received under authority
4-44 of this Act, not otherwise specified, into the medical licensing
4-45 fund. The board is authorized and shall by annual budget determine
4-46 the manner of handling the funds and the purpose, consistent with
4-47 this Act, for which the same may be used. The budgeted expenses
4-48 authorized by the board shall not be a charge upon the general
4-49 revenue of the state nor paid from the general revenue.
4-50 (s)(1) The board shall prepare information of public
4-51 <consumer> interest describing the functions of the board and the
4-52 board's procedures by which complaints are filed with and resolved
4-53 by the board. The board shall make the information available to
4-54 the public and appropriate state agencies.
4-55 (2) The board by rule shall establish methods by which
4-56 the public and licensees of the board are notified of the name,
4-57 mailing address, and telephone number of the board for the purpose
4-58 of directing complaints to the board. The board may provide for
4-59 that notification:
4-60 (A) on each registration form, application, or
4-61 written contract for services of an individual or entity regulated
4-62 under this Act;
4-63 (B) on a sign prominently displayed in the place
4-64 of business of each individual or entity regulated under this Act;
4-65 or
4-66 (C) in a bill for services provided by an
4-67 individual or entity regulated under this Act.
4-68 (3) The board shall list along with its regular
4-69 telephone number the toll-free telephone number that may be called
4-70 to present a complaint about a health professional if the toll-free
5-1 number is established under other state law <regulatory functions
5-2 of the board and describing the board's procedures by which
5-3 consumer complaints are filed with and resolved by the board>. On
5-4 written request the board shall make information available to the
5-5 general public for a reasonable fee to cover expenses and
5-6 appropriate state agencies including a summary of any previous
5-7 disciplinary orders by the board against a specific physician
5-8 licensed in this state, the date of the order, and the current
5-9 status of the order. The board shall establish an eight-hour
5-10 toll-free telephone number to make the information immediately
5-11 available to any caller if the board is not required to establish a
5-12 toll-free telephone number under other state law.
5-13 (u) The executive director or the executive director's
5-14 designee shall develop an intraagency career ladder program. The
5-15 program shall require intraagency posting of all non-entry-level
5-16 positions concurrently with any public posting <board shall cause
5-17 to be developed an intraagency career ladder program, one part of
5-18 which shall be the intraagency posting of each job opening with the
5-19 board in a nonentry-level position. The intraagency posting shall
5-20 be made at least 10 days before any public posting>.
5-21 (x) Each board member shall comply with the board member
5-22 training requirements established by any other state agency that is
5-23 given authority to establish the requirements for the board.
5-24 (y) The board shall provide to its members and employees, as
5-25 often as necessary, information regarding their qualifications for
5-26 office or employment under this Act and their responsibilities
5-27 under applicable laws relating to standards of conduct for state
5-28 officers or employees.
5-29 (z) The board shall develop and implement policies that
5-30 provide the public with a reasonable opportunity to appear before
5-31 the board and to speak on any issue under the jurisdiction of the
5-32 board.
5-33 (aa) The board shall prepare and maintain a written plan
5-34 that describes how a person who does not speak English can be
5-35 provided reasonable access to the board's programs. The board
5-36 shall also comply with federal and state laws for program and
5-37 facility accessibility.
5-38 SECTION 7. Subchapter B, Medical Practice Act (Article
5-39 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
5-40 2.10 to read as follows:
5-41 Sec. 2.10. EQUAL EMPLOYMENT OPPORTUNITY. (a) The executive
5-42 director or the executive director's designee shall prepare and
5-43 maintain a written policy statement to assure implementation of a
5-44 program of equal employment opportunity under which all personnel
5-45 decisions are made without regard to race, color, disability, sex,
5-46 religion, age, or national origin. The policy statement must
5-47 include:
5-48 (1) personnel policies, including policies relating to
5-49 recruitment, evaluation, selection, appointment, training, and
5-50 promotion of personnel, that are in compliance with requirements of
5-51 the Commission on Human Rights Act (Article 5221k, Vernon's Texas
5-52 Civil Statutes) and its subsequent amendments;
5-53 (2) a comprehensive analysis of the board's work force
5-54 that meets federal and state guidelines;
5-55 (3) procedures by which a determination can be made of
5-56 significant underutilization in the board's work force of all
5-57 persons for whom federal or state guidelines encourage a more
5-58 equitable balance; and
5-59 (4) reasonable methods to appropriately address those
5-60 areas of significant underutilization.
5-61 (b) A policy statement prepared under Subsection (a) of this
5-62 section must cover an annual period, be updated annually and
5-63 reviewed by the Commission on Human Rights for compliance with
5-64 requirements of the Commission on Human Rights Act (Article 5221k,
5-65 Vernon's Texas Civil Statutes) and its subsequent amendments, and
5-66 be filed with the governor's office.
5-67 (c) The governor's office shall deliver a biennial report to
5-68 the legislature based on the information received under Subsection
5-69 (b) of this section. The report may be made separately or as a
5-70 part of other biennial reports made to the legislature.
6-1 SECTION 8. Subsections (a), (c), (f), (h), and (i), Section
6-2 3.01, Medical Practice Act (Article 4495b, Vernon's Texas Civil
6-3 Statutes), are amended to read as follows:
6-4 (a) All persons now lawfully qualified to practice medicine
6-5 in this state, or who are hereafter licensed for the practice of
6-6 medicine by the board, shall be registered as practitioners with
6-7 the board on or before the first day of January and thereafter
6-8 shall register in like manner annually, on or before the first day
6-9 of January of each succeeding year. Each person so registered with
6-10 the board shall pay, in connection with each annual registration
6-11 and for the receipt hereinafter provided for, a fee established by
6-12 the board which fee shall accompany the application of each person
6-13 for registration. The payment shall be made to the board. Every
6-14 person so registered shall file with the board a written
6-15 application for annual registration, setting forth his name and
6-16 mailing address, the place or places where the applicant is engaged
6-17 in the practice of medicine, and other necessary information
6-18 prescribed by the board. If the person is licensed for the
6-19 practice of medicine by another state, the District of Columbia, a
6-20 territory of the United States, Canada, any other country, or the
6-21 uniformed services of the United States, the application must
6-22 include a description of any investigations the person knows are in
6-23 progress and of any sanctions imposed by or disciplinary matters
6-24 pending in the state, district, territory, country, or service.
6-25 (c)(1) A person may renew an unexpired license by paying to
6-26 the board on or before the expiration date of the license the
6-27 required renewal fee.
6-28 (2) If a person's license has been expired for 90 days
6-29 or less, the person may renew the license by paying to the board
6-30 the required renewal fee and a fee that is one-half of the
6-31 examination fee for the license.
6-32 (3) If a person's license has been expired for longer
6-33 than 90 days but less than one year, the person may renew the
6-34 license by paying to the board all unpaid renewal fees and a fee
6-35 that is equal to the examination fee for the license.
6-36 (4) If a person's license has been expired for one
6-37 year, it is considered to have been canceled, and the person may
6-38 not renew the license. The person may obtain a new license by
6-39 submitting to reexamination and complying with the requirements and
6-40 procedures for obtaining an original license.
6-41 (5) The board may renew without examination an expired
6-42 license of a person who was licensed in this state, moved to
6-43 another state, and is currently licensed and has been in practice
6-44 in the other state for not more than two years preceding
6-45 application. The person must pay to the board a fee that is equal
6-46 to the examination fee for the license. <Failure of any licensee
6-47 to pay the annual license renewal fee on or before the 90th day
6-48 after the date it is due automatically cancels his licensure. Any
6-49 licensee whose license has been canceled because of failure to pay
6-50 the annual license renewal fee may secure reinstatement of his
6-51 license at any time within that license year upon payment of the
6-52 delinquent fee together with a penalty in an amount as the board
6-53 may determine to be reasonable. After expiration of the license
6-54 year for which the license fee was not paid, no license shall be
6-55 reinstated except upon application and satisfaction of other
6-56 conditions as the board may establish and payment of delinquent
6-57 fees and a penalty to be assessed by the board.>
6-58 (f) <In performing its duties as provided in this Act, the
6-59 board may act through the secretary-treasurer of the board. The
6-60 secretary-treasurer is entitled to a salary to be fixed by the
6-61 legislature in its General Appropriations Act for the performance
6-62 of duties under this Act.> The executive director
6-63 <secretary-treasurer> of the board shall file a surety bond with
6-64 the board. The bond shall be in an amount not less than $10,000,
6-65 be in compliance with the insurance laws of the state, and be
6-66 payable to the state for the use of the state if the executive
6-67 director <secretary-treasurer> does not faithfully discharge the
6-68 duties of the office. The board shall pay the premium on the bond.
6-69 <The salary shall be paid out of said medical registration fund and
6-70 shall not be in any way a charge upon the general revenue of the
7-1 state.>
7-2 (h) The <secretary-treasurer or the> executive director
7-3 shall review each application for licensure by examination or
7-4 reciprocity and shall recommend to the board all applicants
7-5 eligible for licensure. The <secretary-treasurer or the> executive
7-6 director also shall report to the board the names of all applicants
7-7 determined to be ineligible for licensure, together with the
7-8 reasons for each recommendation. An applicant deemed ineligible
7-9 for licensure by the <secretary-treasurer or the> executive
7-10 director may request review of such recommendation by a committee
7-11 of the board within 20 days of receipt of such notice, and the
7-12 <secretary-treasurer or the> executive director may refer any
7-13 application to said committee for a recommendation concerning
7-14 eligibility. If the committee finds the applicant ineligible for
7-15 licensure, such recommendation, together with the reasons therefor,
7-16 shall be submitted to the board unless the applicant requests a <an
7-17 appellate> hearing <before a hearing examiner appointed by the
7-18 board> within 20 days of receipt of notice of the committee's
7-19 determination. The hearing shall be before an administrative law
7-20 judge of the State Office of Administrative Hearings and shall
7-21 comply with the Administrative Procedure Act and its subsequent
7-22 amendments and the rules of the State Office of Administrative
7-23 Hearings and the board. The committee may refer any application
7-24 for determination of eligibility to the full board. The board
7-25 shall, after receiving the administrative law judge's proposed
7-26 findings of fact and conclusions of law, determine the eligibility
7-27 of the applicant for licensure <an appellate hearing on its own
7-28 motion. The board may elect to hear any appeal in lieu of
7-29 proceedings before a hearing examiner, and it shall adopt, modify,
7-30 or reject each decision made by a hearing examiner. The board also
7-31 shall adopt, modify, or reject each recommendation of ineligibility
7-32 made by the secretary-treasurer or the executive director or by the
7-33 committee, unless the applicant has requested a timely review of
7-34 the recommendation. Such action by the board shall constitute a
7-35 final administrative decision concerning licensure. Any hearing
7-36 before the board or before a hearing examiner under this subsection
7-37 becomes a contested case under the Administrative Procedure Act>.
7-38 A physician whose application for licensure is denied by the board
7-39 shall receive a written statement<, upon request,> containing the
7-40 reasons for the board's action. All reports received or gathered
7-41 by the board on each applicant are confidential and are not subject
7-42 to disclosure under the Open Records Law. The board may disclose
7-43 such reports to appropriate licensing authorities in other states
7-44 <upon request>.
7-45 (i) At least 30 days before the expiration of a person's
7-46 license, the board shall send written notice of the impending
7-47 license expiration to the person at the licensee's last known
7-48 address according to the records of the board <The board must
7-49 notify each delinquent licensee of his impending license
7-50 cancellation by registered or certified mail sent to the licensee's
7-51 address listed with the board not less than 30 days prior to the
7-52 cancellation. This requirement shall be waived when the licensee
7-53 has requested in writing that his or her license be canceled>.
7-54 SECTION 9. Subchapter C, Medical Practice Act (Article
7-55 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
7-56 3.025 to read as follows:
7-57 Sec. 3.025. CONTINUING MEDICAL EDUCATION. (a) The board by
7-58 rule shall adopt, monitor, and enforce a reporting program for
7-59 continuing medical education of licensees. The board shall adopt
7-60 and administer rules:
7-61 (1) requiring the number of hours of continuing
7-62 medical education the board determines appropriate as a
7-63 prerequisite to the annual registration of a licensee under this
7-64 Act;
7-65 (2) requiring at least one-half of the hours of
7-66 continuing medical education required under Subdivision (1) of this
7-67 subsection to be approved by the board after taking into account
7-68 the standards of the American Medical Association for its
7-69 Physician's Recognition Award, the Council of Medical Specialty
7-70 Societies, or the American Osteopathic Association and permitting
8-1 the remaining hours to be composed of self-study or equivalent
8-2 self-directed continuing medical education according to guidelines
8-3 determined by the board; and
8-4 (3) adopting a process to assess a licensee's
8-5 participation in continuing medical education courses.
8-6 (b) A licensee shall be presumed to have complied with this
8-7 section if in the preceding 36 months the licensee becomes board
8-8 certified or recertified in a medical specialty and the medical
8-9 specialty program takes into consideration the standards of the
8-10 American Board of Medical Specialties, the American Medical
8-11 Association, the Advisory Board for Osteopathic Specialists and
8-12 Boards of Certification, or the American Osteopathic Association.
8-13 (c) The board may temporarily exempt a licensee from the
8-14 requirement for continuing medical education for:
8-15 (1) catastrophic illness;
8-16 (2) military service of longer than one year's
8-17 duration outside the state;
8-18 (3) medical practice and residence of longer than one
8-19 year's duration outside the United States; or
8-20 (4) good cause shown on written application of the
8-21 licensee that gives satisfactory evidence to the board that the
8-22 licensee is unable to comply with the requirement for continuing
8-23 medical education.
8-24 (d) A temporary exemption under Subsection (c) of this
8-25 section may not exceed one year but may be renewed annually.
8-26 (e) Subsection (a) of this section does not apply to a
8-27 licensee who is retired and has been exempted by rule from paying
8-28 the annual registration fee.
8-29 (f) This section does not prevent the board from taking
8-30 disciplinary action with respect to a licensee or an applicant for
8-31 a license by requiring additional hours of continuing medical
8-32 education or of specific course subjects.
8-33 SECTION 10. Subsections (a), (b), (c), (d), (e), and (f),
8-34 Section 3.03, Medical Practice Act (Article 4495b, Vernon's Texas
8-35 Civil Statutes), are amended to read as follows:
8-36 (a) The board, at its sole discretion and upon payment by an
8-37 applicant of a fee prescribed by the board under this Act, may
8-38 grant a license to practice medicine to any <reputable> physician
8-39 who is a graduate of an acceptable <a reputable> medical college as
8-40 determined by the board and who<:>
8-41 <(1)> is a licensee of another state or Canadian
8-42 province having requirements for physician registration and
8-43 practice substantially equivalent to those established by the laws
8-44 of this state<; or>
8-45 <(2) is qualified by an examination for a certificate
8-46 to practice medicine under a commission in the uniformed services
8-47 of the United States>.
8-48 (b) An application for a license under this section must be
8-49 in writing and upon a form prescribed by the board. The
8-50 application must be accompanied by:
8-51 (1) a diploma or photograph of a diploma awarded to
8-52 the applicant by an acceptable <a reputable> medical college and a
8-53 certified transcript showing courses and grades <or a certificate,
8-54 license, or commission issued to the applicant by the Medical Corps
8-55 of the uniformed services of the United States>;
8-56 (2) a license or a certified copy of a license to
8-57 practice medicine lawfully issued to the applicant<, on
8-58 examination,> by some other state or a Canadian province that
8-59 requires in its examination the same general degree of fitness
8-60 required by this state and that grants the same reciprocal
8-61 privileges to persons licensed by the board; <or>
8-62 (3) a certification made by <an executive officer of
8-63 the uniformed services of the United States,> the president or
8-64 secretary of the board that issued the license<,> or a duly
8-65 constituted registration office of the state or Canadian province
8-66 that issued the certificate or license, reciting that the
8-67 accompanying certificate or license has not been canceled,
8-68 suspended, or revoked <except by honorable discharge from the
8-69 Medical Corps of the uniformed services of the United States> and
8-70 reciting that the statement of the qualifications made in the
9-1 application for medical license in Texas is true and correct; and
9-2 (4) evidence of a passing grade on an examination
9-3 required by the board.
9-4 (c) Applicants for a license under this section must
9-5 subscribe to an oath in writing before an officer authorized by law
9-6 to administer oaths. The written oath must be a part of the
9-7 application. The application must:
9-8 (1) state that:
9-9 (A) <(1)> the license, certificate, or authority
9-10 under which the applicant has most recently practiced medicine in
9-11 the state or Canadian province from which the applicant is
9-12 transferring to this state is <removed or in the uniformed service
9-13 in which the applicant served was at the time of the removal or
9-14 completion of service> in full force and not restricted, canceled,
9-15 suspended, or revoked;
9-16 (B) <(2)> the applicant is the identical person
9-17 to whom the certificate or<,> license<, or commission> and the
9-18 diploma were issued;
9-19 (C) <(3)> no proceeding has been instituted
9-20 against the applicant for the restriction, cancellation,
9-21 suspension, or revocation of the certificate, license, or authority
9-22 to practice medicine in the state or<,> Canadian province<, or
9-23 uniformed service of the United States> in which it was issued; and
9-24 (D) <(4)> no prosecution is pending against the
9-25 applicant in any state, federal, or Canadian court for any offense
9-26 that under the laws of this state is a felony;
9-27 (2) include a description of any sanctions imposed by
9-28 or disciplinary matters pending in the state or Canadian province
9-29 in which the applicant was or is licensed or certified to practice
9-30 medicine; and
9-31 (3) include evidence of postgraduate training required
9-32 by the board.
9-33 (d) An applicant for a license under this section must <A
9-34 "reputable physician" means one who would> be eligible for
9-35 examination by the board. <A "reputable medical school or college"
9-36 means a medical school or college that was approved by the board at
9-37 the time the applicant's degree was conferred.>
9-38 (e) In addition to other licensure requirements, the board
9-39 may require by rule and regulation that an applicant who is a
9-40 licensee of another state or Canadian province and who is a
9-41 graduate <graduates> of a medical school <schools> located outside
9-42 of the United States and Canada, or the school itself <schools
9-43 themselves>, provide additional information to the board concerning
9-44 the medical school attended prior to approval of the applicant.
9-45 (f) The board may refuse to issue a license to an applicant
9-46 who is a licensee of another state or Canadian province and who
9-47 graduated from a medical school outside of the United States and
9-48 Canada if it finds that the applicant does not possess the
9-49 requisite qualifications to provide the same standard of medical
9-50 care as provided by a licensed physician in this state.
9-51 SECTION 11. Subchapter C, Medical Practice Act (Article
9-52 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
9-53 3.0305 to read as follows:
9-54 Sec. 3.0305. TEMPORARY LICENSE FOR OUT-OF-STATE
9-55 PRACTITIONERS. (a) On application, the board shall grant a
9-56 temporary license to practice medicine. An applicant for a
9-57 temporary license under this section must:
9-58 (1) have a current, active, and unrestricted license,
9-59 without any pending disciplinary matters, as a physician in another
9-60 state, the District of Columbia, or a territory of the United
9-61 States that has licensing requirements that are substantially
9-62 equivalent to the requirements of this Act;
9-63 (2) have passed a national or other examination
9-64 recognized by the board relating to the practice of medicine; and
9-65 (3) be sponsored by a person licensed by the board
9-66 under this Act with whom the temporary license holder may practice
9-67 under this section.
9-68 (b) An applicant for a temporary license may be excused from
9-69 the requirement of Subsection (a)(3) of this section if the board
9-70 determines that compliance with that subsection constitutes a
10-1 hardship to the applicant.
10-2 (c) A temporary license is valid until the date the board
10-3 approves or denies the temporary license holder's application for a
10-4 license. The board shall issue a license under this Act to the
10-5 holder of a temporary license under this section if:
10-6 (1) the temporary license holder passes the
10-7 examination required by Section 3.05 of this Act;
10-8 (2) the board verifies that the temporary license
10-9 holder has satisfied the academic and experience requirements for a
10-10 license under this Act; and
10-11 (3) the temporary license holder has satisfied any
10-12 other license requirements under this Act.
10-13 (d) The board must assemble the documents and information
10-14 necessary to process a temporary license holder's application for a
10-15 license not later than the 90th day after the date the temporary
10-16 license is issued and complete the processing of the application
10-17 not later than the 90th day after the date the documents and
10-18 information are assembled. If by the 180th day after the date the
10-19 temporary license is issued the board has not completed the
10-20 processing of the application, the board shall review the
10-21 application to determine the cause of the delay.
10-22 SECTION 12. Section 3.04, Medical Practice Act (Article
10-23 4495b, Vernon's Texas Civil Statutes), is amended to read as
10-24 follows:
10-25 Sec. 3.04. Qualification of Licensee. (a) An applicant, to
10-26 be eligible for the examination and issuance of a license, must
10-27 present satisfactory proof to the board that the applicant:
10-28 (1) is at least 21 years of age;
10-29 (2) is of good professional character;
10-30 (3) has completed 60 semester hours of college courses
10-31 other than in medical school, which courses would be acceptable, at
10-32 the time of completion, to The University of Texas for credit on a
10-33 bachelor of arts degree or a bachelor of science degree; and
10-34 (4)(A) is a graduate of an acceptable <a> medical
10-35 school or college that was approved by the board at the time the
10-36 degree was conferred<;> and has completed a one-year program of
10-37 graduate medical training approved by the board; or
10-38 (B) is a graduate of an acceptable medical
10-39 school or college as defined by the board that is located in the
10-40 United States or Canada and that was not approved by the board at
10-41 the time the degree was conferred and has successfully completed
10-42 three years of graduate medical training in the United States or
10-43 Canada that was approved by the board on the date the training was
10-44 completed.
10-45 (b) The <(5) has successfully completed a one year program
10-46 of graduate medical training approved by the board. In addition to
10-47 other licensure requirements, the board may require by rule and
10-48 regulation that graduates of medical schools located outside the
10-49 United States and Canada comply with other requirements that the
10-50 board considers appropriate, including but not limited to
10-51 additional graduate medical training in the United States, except
10-52 those who qualify for licensure in Section 5.04 of this Act.
10-53 However, the> applicant shall be eligible for examination prior to
10-54 complying with the graduate training requirement of Subsection
10-55 (a)(4)(A) or (B) <Subdivision (5) of Subsection (a)> of this
10-56 section but shall not be eligible for the issuance of an
10-57 unrestricted license until the requirements of Subsection (a) of
10-58 this section <this subsection> have been satisfied.
10-59 (c) <(b)> Applications for examination must be made in
10-60 writing, verified by affidavit, filed with the board on forms
10-61 prescribed by the board, and accompanied by documents and a fee as
10-62 the board determines to be reasonable.
10-63 (d) To be recognized by the board for the purposes of this
10-64 section, all allopathic or osteopathic medical education
10-65 instruction taught in the United States must be accredited by an
10-66 accrediting body officially recognized by the United States
10-67 Department of Education and the Council on Postsecondary
10-68 Accreditation as the accrediting body for medical education leading
10-69 to the doctor of medicine degree or the doctor of osteopathy degree
10-70 in the United States.
11-1 (e) The requirements for eligibility for examination and
11-2 licensure of a graduate of an unapproved foreign medical school are
11-3 set out in Section 5.035 of this Act, and the requirements for
11-4 eligibility for examination and licensure of a person who has
11-5 completed all of the didactic work of a foreign medical school but
11-6 has not graduated from the school (Fifth Pathway Program) are set
11-7 out in Section 5.04 of this Act.
11-8 SECTION 13. Subsections (a), (c), and (e), Section 3.05,
11-9 Medical Practice Act (Article 4495b, Vernon's Texas Civil
11-10 Statutes), are amended to read as follows:
11-11 (a) All examinations for license to practice medicine shall
11-12 be conducted in writing in the English language and in a manner as
11-13 to be entirely fair and impartial to all individuals and to every
11-14 school or system of medicine. <All applicants shall be known to
11-15 the examiners only by numbers, without names or other method of
11-16 identification on examination papers by which members of the board
11-17 may be able to identify the applicants or examinees, until after
11-18 the general averages of the examinees' numbers in the class have
11-19 been determined and license granted or refused.> Examinations
11-20 shall be conducted on and cover those subjects generally taught by
11-21 medical schools, a knowledge of which is commonly and generally
11-22 required of candidates for the degree of doctor of medicine or
11-23 doctor of osteopathy conferred by schools or colleges of medicine
11-24 approved by the board, and the examinations shall also be conducted
11-25 on and cover the subject of medical jurisprudence. Examinations
11-26 shall be prepared by a national testing service or prepared by the
11-27 board and validated by qualified independent testing professionals.
11-28 On satisfactory examination conducted as required by this Act under
11-29 rules of the board, applicants may <shall> be granted licenses to
11-30 practice medicine. All questions and answers, with the grades
11-31 attached, shall be preserved for one year in the executive office
11-32 of the board or such other repository as the board by rule may
11-33 direct. All applicants examined at the same time shall be given
11-34 identical questions. All certificates shall be attested by the
11-35 seal of the board. The board in its discretion may give the
11-36 examination for license in two or more parts.
11-37 (c) All applicants for license to practice medicine in this
11-38 state not otherwise licensed under the provisions of law must
11-39 successfully pass a uniform <an> examination approved by the board
11-40 as determined by rule. The board is authorized to adopt and
11-41 enforce all rules of procedure not inconsistent with statutory
11-42 requirements. All applicants shall be given due notice of the date
11-43 and place of the examination<; provided that the partial
11-44 examinations provided for in this Act shall not be disturbed by
11-45 this section>. If any applicant, because of failure to pass the
11-46 required examination, is refused a license, the applicant, at a
11-47 time as the board may fix, shall be permitted to take a subsequent
11-48 examination not more than two additional times <upon any subjects
11-49 required in the original examination> as the board may prescribe on
11-50 the payment of a fee as the board may determine to be reasonable.
11-51 In the event satisfactory grades shall be made on the subjects
11-52 prescribed and taken on the reexamination, the board may grant the
11-53 applicant a license to practice medicine. The board shall
11-54 determine the credit to be given examinees on answers turned in on
11-55 the subjects of complete and partial examination, and its decision
11-56 is final.
11-57 (e) Within 90 <30> days after the day on which an
11-58 examination is administered under this Act, the board shall notify
11-59 each examinee of the results of the examination. However, if an
11-60 examination is graded or reviewed by a national testing service,
11-61 the board shall notify each examinee of the results of the
11-62 examination not later than the 30th day <within four weeks> after
11-63 the date the board receives the results from the testing service.
11-64 If the notice of the examination results will be delayed for longer
11-65 than 90 days after the examination, the board shall notify the
11-66 examinee of the reason for the delay before the 90th day.
11-67 SECTION 14. Subdivision (5), Subsection (d), Section 3.06,
11-68 Medical Practice Act (Article 4495b, Vernon's Texas Civil
11-69 Statutes), is amended by adding Paragraph (G) to read as follows:
11-70 (G) An advertisement for a site serving a
12-1 medically underserved population shall include the name and
12-2 business address of the supervising physician for the site.
12-3 SECTION 15. Section 3.08, Medical Practice Act (Article
12-4 4495b, Vernon's Texas Civil Statutes), is amended to read as
12-5 follows:
12-6 Sec. 3.08. Grounds for Refusal to Admit Persons to
12-7 Examination and to Issue License and Renewal License And For
12-8 Disciplinary Action. The board may refuse to admit persons to its
12-9 examinations and to issue a license to practice medicine to any
12-10 person and may take disciplinary action against any person for any
12-11 of the following reasons:
12-12 (1) submission of a false or misleading statement,
12-13 document, or certificate to the board in an application for
12-14 examination or licensure; the presentation to the board of any
12-15 license, certificate, or diploma that was illegally or fraudulently
12-16 obtained; the practice of fraud or deception in taking or passing
12-17 an examination;
12-18 (2) conviction of a crime of the grade of a felony or
12-19 a crime of a lesser degree that involves moral turpitude;
12-20 (3) intemperate use of alcohol or drugs that, in the
12-21 opinion of the board, could endanger the lives of patients;
12-22 (4) unprofessional or dishonorable conduct that is
12-23 likely to deceive or defraud the public or injure the public.
12-24 Unprofessional or dishonorable conduct likely to deceive or defraud
12-25 the public includes but is not limited to the following acts:
12-26 (A) committing any act that is in violation of
12-27 the laws of the State of Texas if the act is connected with the
12-28 physician's practice of medicine. A complaint, indictment, or
12-29 conviction of a law violation is not necessary for the enforcement
12-30 of this provision. Proof of the commission of the act while in the
12-31 practice of medicine or under the guise of the practice of medicine
12-32 is sufficient for action by the board under this section;
12-33 (B) failing to keep complete and accurate
12-34 records of purchases and disposals of drugs listed in Chapter 481,
12-35 Health and Safety Code, or of controlled substances scheduled in
12-36 the Federal Comprehensive Drug Abuse Prevention and Control Act of
12-37 1970, 21 U.S.C.A. Section 801 et seq. (Public Law 91-513). A
12-38 physician shall keep records of his purchases and disposals of
12-39 these drugs to include without limitation the date of purchase, the
12-40 sale or disposal of the drugs by the physician, the name and
12-41 address of the person receiving the drugs, and the reason for the
12-42 disposing or dispensing of the drugs to the person. A failure to
12-43 keep the records for a reasonable time is grounds for revoking,
12-44 canceling, suspending, or probating the license of any practitioner
12-45 of medicine. The board or its representative may enter and inspect
12-46 a physician's place(s) of practice during reasonable business hours
12-47 for the purpose of verifying the correctness of these records and
12-48 of taking inventory of the prescription drugs on hand;
12-49 (C) writing prescriptions for or dispensing to a
12-50 person known to be an abuser <a habitual user> of narcotic drugs,
12-51 controlled substances, or dangerous drugs or to a person who the
12-52 physician should have known was an abuser <a habitual user> of the
12-53 narcotic drugs, controlled substances, or dangerous drugs. This
12-54 provision does not apply to those persons:
12-55 (i) being treated by the physician for
12-56 their narcotic use after the physician notifies the board in
12-57 writing of the name and address of the person being so treated; or
12-58 (ii) who the physician is treating for
12-59 intractable pain under the Intractable Pain Treatment Act (Article
12-60 4495c, Revised Statutes) and its subsequent amendments;
12-61 (D) writing false or fictitious prescriptions
12-62 for dangerous drugs as defined by Chapter 483, Health and Safety
12-63 Code, of controlled substances scheduled in the Texas Controlled
12-64 Substances Act (Chapter 481, Health and Safety Code) <(Article
12-65 4476-15, Vernon's Texas Civil Statutes)>, or of controlled
12-66 substances scheduled in the Federal Comprehensive Drug Abuse
12-67 Prevention and Control Act of 1970, 21 U.S.C.A. Section 801 et seq.
12-68 (Public Law 91-513);
12-69 (E) prescribing or administering a drug or
12-70 treatment that is nontherapeutic in nature or nontherapeutic in the
13-1 manner the drug or treatment is administered or prescribed;
13-2 (F) prescribing, administering, or dispensing in
13-3 a manner not consistent with public health and welfare dangerous
13-4 drugs as defined by Chapter 483, Health and Safety Code, controlled
13-5 substances scheduled in the Texas Controlled Substances Act
13-6 (Chapter 481, Health and Safety Code) <(Article 4476-15, Vernon's
13-7 Texas Civil Statutes)>, or controlled substances scheduled in the
13-8 Federal Comprehensive Drug Abuse Prevention and Control Act of
13-9 1970, 21 U.S.C.A. Section 801 et seq. (Public Law 91-513);
13-10 (G) persistently or <and> flagrantly
13-11 overcharging or overtreating patients;
13-12 (H) failing to supervise adequately the
13-13 activities of those acting under the supervision of the physician;
13-14 or
13-15 (I) delegating professional medical
13-16 responsibility or acts to a person if the delegating physician
13-17 knows or has reason to know that the person is not qualified by
13-18 training, experience, or licensure to perform the responsibility or
13-19 acts;
13-20 (5) violation or attempted violation, direct or
13-21 indirect, of any valid rules issued under this Act, either as a
13-22 principal, accessory, or accomplice;
13-23 (6) use of any advertising statement that is false,
13-24 misleading, or deceptive;
13-25 (7) advertising professional superiority or the
13-26 performance of professional service in a superior manner if the
13-27 advertising is not readily subject to verification;
13-28 (8) purchase, sale, barter, or use or any offer to
13-29 purchase, sell, barter, or use any medical degree, license,
13-30 certificate, diploma, or transcript of license, certificate, or
13-31 diploma in or incident to an application to the board for a license
13-32 to practice medicine;
13-33 (9) altering, with fraudulent intent, any medical
13-34 license, certificate, diploma, or transcript of a medical license,
13-35 certificate, or diploma;
13-36 (10) using any medical license, certificate, diploma,
13-37 or transcript of a medical license, certificate, or diploma that
13-38 has been fraudulently purchased, issued, or counterfeited or that
13-39 has been materially altered;
13-40 (11) impersonating or acting as proxy for another in
13-41 any examination required by this Act for a medical license; or
13-42 engaging in conduct which subverts or attempts to subvert any
13-43 examination process required by this Act for a medical license.
13-44 Conduct which subverts or attempts to subvert the medical licensing
13-45 examination process includes, but is not limited to:
13-46 (A) conduct which violates the security of the
13-47 examination materials, as prescribed by board rules;
13-48 (B) conduct which violates the standard of test
13-49 administration, as prescribed by board rules; or
13-50 (C) conduct which violates the accreditation
13-51 process, as prescribed by board rules;
13-52 (12) impersonating a licensed practitioner or
13-53 permitting or allowing another to use his license or certificate to
13-54 practice medicine in this state for the purpose of diagnosing,
13-55 treating, or offering to treat sick, injured, or afflicted human
13-56 beings;
13-57 (13) employing, directly or indirectly, any person
13-58 whose license to practice medicine has been suspended, canceled, or
13-59 revoked or association in the practice of medicine with any person
13-60 or persons whose license to practice medicine has been suspended,
13-61 canceled, or revoked or any person who has been convicted of the
13-62 unlawful practice of medicine in Texas or elsewhere;
13-63 (14) performing or procuring a criminal abortion or
13-64 aiding or abetting in the procuring of a criminal abortion or
13-65 attempting to perform or procure a criminal abortion or attempting
13-66 to aid or abet the performance or procurement of a criminal
13-67 abortion;
13-68 (15) aiding or abetting, directly or indirectly, the
13-69 practice of medicine by any person, partnership, association, or
13-70 corporation not duly licensed to practice medicine by the board;
14-1 (16) inability to practice medicine with reasonable
14-2 skill and safety to patients by reason of illness, drunkenness,
14-3 excessive use of drugs, narcotics, chemicals, or any other type of
14-4 material or as a result of any mental or physical condition. In
14-5 enforcing this subdivision the board shall, upon probable cause,
14-6 request a physician to submit to a mental or physical examination
14-7 by physicians designated by the board. If the physician refuses to
14-8 submit to the examination, the board shall issue an order requiring
14-9 the physician to show cause why he should not be required to submit
14-10 to the examination and shall schedule a hearing on the order within
14-11 30 days after notice is served on the physician. The physician
14-12 shall be notified by either personal service or certified mail with
14-13 return receipt requested. At the hearing, the physician and his
14-14 attorney are entitled to present any testimony and other evidence
14-15 to show why the physician should not be required to submit to the
14-16 examination. After a complete hearing, the board shall issue an
14-17 order either requiring the physician to submit to the examination
14-18 or withdrawing the request for examination. An appeal from the
14-19 decision of the board shall be taken under the Administrative
14-20 Procedure Act;
14-21 (17) judgment by a court of competent jurisdiction
14-22 that a person licensed to practice medicine is of unsound mind;
14-23 (18) professional failure to practice medicine in an
14-24 acceptable manner consistent with public health and welfare;
14-25 (19) being removed, suspended, or having disciplinary
14-26 action taken by his peers in any professional medical association
14-27 or society, whether the association or society is local, regional,
14-28 state, or national in scope, or being disciplined by a licensed
14-29 hospital or medical staff of a hospital, including removal,
14-30 suspension, limitation of hospital privileges, or other
14-31 disciplinary action, if that action in the opinion of the board was
14-32 based on unprofessional conduct or professional incompetence that
14-33 was likely to harm the public, provided that the board finds that
14-34 the actions were appropriate and reasonably supported by evidence
14-35 submitted to it. The action does not constitute state action on
14-36 the part of the association, society, or hospital medical staff;
14-37 (20) repeated or recurring meritorious health-care
14-38 liability claims that in the opinion of the board evidence
14-39 professional incompetence likely to injure the public; or
14-40 (21) suspension, revocation, <or> restriction, or
14-41 other disciplinary action by another state of a license to practice
14-42 medicine, or disciplinary action by the uniformed services of the
14-43 United States, based upon acts by the licensee similar to acts
14-44 described in this section. A certified copy of the record of the
14-45 state taking the action is conclusive evidence of it.
14-46 SECTION 16. Subchapter C, Medical Practice Act (Article
14-47 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
14-48 3.085 to read as follows:
14-49 Sec. 3.085. RESTRICTIONS ON BIDDING AND ADVERTISING.
14-50 (a) The board may not adopt rules restricting competitive bidding
14-51 or advertising by a person regulated by the board except to
14-52 prohibit false, misleading, or deceptive practices by the person.
14-53 (b) The board may not include in its rules to prohibit
14-54 false, misleading, or deceptive practices by a person regulated by
14-55 the board a rule that:
14-56 (1) restricts the use of any medium for advertising;
14-57 (2) restricts the person's personal appearance or use
14-58 of the person's voice in an advertisement;
14-59 (3) relates to the size or duration of an
14-60 advertisement by the person; or
14-61 (4) restricts the person's advertisement under a trade
14-62 name.
14-63 SECTION 17. Subsections (b), (c), (d), and (e), Section
14-64 3.10, Medical Practice Act (Article 4495b, Vernon's Texas Civil
14-65 Statutes), are amended to read as follows:
14-66 (b) The board may <not set, charge, collect, receive, or
14-67 deposit any of the following fees in excess of:>
14-68 <(1) for processing and granting a license by
14-69 reciprocity to a licensee of another state.....................$700>
14-70 <(2) for processing an application and
15-1 administration of a partial examination for
15-2 licensure......................................................$700>
15-3 <(3) for processing an application and
15-4 administration of a complete examination for
15-5 licensure......................................................$700>
15-6 <(4) for processing an application and
15-7 issuance of a temporary license................................$200>
15-8 <(5) for processing an application and
15-9 issuance of a duplicate license................................$200>
15-10 <(6) for processing an application and
15-11 issuance of a license of reinstatement after a lapse
15-12 or cancellation of a license...................................$700>
15-13 <(7) for processing an application and
15-14 issuance of an annual registration of a licensee...............$200>
15-15 <(8) for processing and issuance of an
15-16 institutional permit for interns, residents, and
15-17 others in approved medical training programs...................$200>
15-18 <(9) for processing an application and
15-19 issuance of an endorsement to other state medical
15-20 boards.........................................................$200>
15-21 <(10) for processing and issuance of a permit
15-22 to a physician who supervises a physician assistant............$200>
15-23 <(11) for processing and issuance of a permit
15-24 to a physician who supervises an acupuncturist...............$200.>
15-25 <(c) The board may> set and collect a sales charge for
15-26 making copies of any paper of record in the office of the board and
15-27 for any printed material published by the board. The charges shall
15-28 be in amounts considered sufficient to reimburse the board for the
15-29 actual expense.
15-30 (c) <(d)> The financial transactions of the board are
15-31 subject to audit by the state auditor in accordance with Chapter
15-32 321, Government Code.
15-33 (d) The board shall file annually with the governor and the
15-34 presiding officer of each house of the legislature a complete and
15-35 detailed written report accounting for all funds received and
15-36 disbursed by the board during the preceding fiscal year. The
15-37 annual report must be in the form and reported in the time provided
15-38 by the General Appropriations Act <(e) On or before the first day
15-39 of January each year, the board shall file with the governor and
15-40 the presiding officer of each house of the legislature a complete
15-41 and detailed written report accounting for all funds received and
15-42 disbursed by the board during the preceding year>.
15-43 SECTION 18. Section 3.11A, Medical Practice Act (Article
15-44 4495b, Vernon's Texas Civil Statutes), is amended to read as
15-45 follows:
15-46 Sec. 3.11A. Disposition of <Increase in> fees. (a) This
15-47 section applies to each <Each> of the following fees <imposed by or
15-48 under another section of this Act is increased by $200>:
15-49 (1) fee for processing and granting a license by
15-50 reciprocity to a licensee of another state;
15-51 (2) fee for processing an application and
15-52 administration of a partial examination for licensure;
15-53 (3) fee for processing an application and
15-54 administration of a complete examination for licensure;
15-55 (4) fee for processing an application and issuance of
15-56 a license of reinstatement after a lapse or cancellation of a
15-57 license; and
15-58 (5) fee for processing an application and issuance of
15-59 an annual registration of a licensee.
15-60 (b) Of each fee <increase> collected, $50 shall be deposited
15-61 to the credit of the foundation school fund and $150 shall be
15-62 deposited to the credit of the general revenue fund. This
15-63 subsection applies to the disposition of the stated portion of each
15-64 fee <increase> regardless of any other provision of law providing
15-65 for a different disposition of funds.
15-66 SECTION 19. Section 4.01, Medical Practice Act (Article
15-67 4495b, Vernon's Texas Civil Statutes), is amended to read as
15-68 follows:
15-69 Sec. 4.01. Grounds for Cancellation, Revocation, Suspension,
15-70 and Probation of License. (a) The board shall, except for good
16-1 cause shown, revoke or suspend a license, place on probation a
16-2 person whose license has been suspended, or reprimand a licensee
16-3 for a violation of this Act or a rule of the board <Except as
16-4 provided herein, the board may cancel, revoke, or suspend the
16-5 license of any practitioner of medicine or impose any other
16-6 authorized means of discipline upon proof of the violation of this
16-7 Act in any respect> or for any cause for which the board is
16-8 authorized to refuse to admit persons to its examination and to
16-9 issue a license and renewal license, including an initial
16-10 conviction or the initial finding of the trier of fact of guilt of
16-11 a felony or misdemeanor involving moral turpitude.
16-12 (b) On proof that a practitioner of medicine has been
16-13 initially convicted of a felony or the initial finding of the trier
16-14 of fact of guilt of a felony under Chapter 481, Health and Safety
16-15 Code, Section 485.033, Health and Safety Code, Chapter 483, Health
16-16 and Safety Code, or the Federal Comprehensive Drug Abuse Prevention
16-17 and Control Act of 1970, 21 U.S.C.A. Section 801 et seq. (Public
16-18 Law 91-513), the board shall suspend the practitioner's license.
16-19 On the practitioner's final conviction for such a felony offense,
16-20 the board shall revoke the practitioner's license.
16-21 (c) The board shall suspend the license of a practitioner
16-22 who is serving a prison term in a state or federal penitentiary
16-23 during his incarceration regardless of the offense.
16-24 SECTION 20. Section 4.04, Medical Practice Act (Article
16-25 4495b, Vernon's Texas Civil Statutes), is redesignated as Section
16-26 4.02 and amended to read as follows:
16-27 Sec. 4.02 <4.04>. COMPLAINT; INVESTIGATION. (a) Any
16-28 person, including a partnership, association, corporation, or other
16-29 entity, may file a complaint against a licensee with the board, or
16-30 the board may file a complaint on its own initiative. The board
16-31 shall adopt rules concerning the investigation of a complaint filed
16-32 with the board. The rules adopted under this subsection shall:
16-33 (1) distinguish between categories of complaints;
16-34 (2) ensure that complaints are not dismissed without
16-35 appropriate consideration;
16-36 (3) require that the board be advised of a complaint
16-37 that is dismissed and that a letter be sent to the person who filed
16-38 the complaint explaining the action taken on the dismissed
16-39 complaint;
16-40 (4) ensure that the person who filed the complaint has
16-41 an opportunity to explain the allegations made in the complaint;
16-42 and
16-43 (5) prescribe guidelines concerning the categories of
16-44 complaints that require the use of a private investigator and the
16-45 procedures for the board to obtain the services of a private
16-46 investigator.
16-47 (b) The board shall keep an information file about each
16-48 complaint filed with the board. The board's information file shall
16-49 be kept current and contain a record for each complaint of:
16-50 (1) all persons contacted in relation to the
16-51 complaint;
16-52 (2) a summary of findings made at each step of the
16-53 complaint process;
16-54 (3) an explanation of the legal basis and reason for a
16-55 complaint that is dismissed; and
16-56 (4) other relevant information.
16-57 (c) If a written complaint is filed with the board that the
16-58 board has authority to resolve, the board, at least as frequently
16-59 as quarterly and until final disposition of the complaint, shall
16-60 notify the parties to the complaint of the status of the complaint
16-61 unless the notice would jeopardize an investigation.
16-62 (d) The board by rule shall adopt a form to standardize
16-63 information concerning complaints made to the board. The board by
16-64 rule shall prescribe information to be provided to a person when
16-65 the person files a complaint with the board.
16-66 (e) The board shall provide reasonable assistance to a
16-67 person who wishes to file a complaint with the board.
16-68 (f) Except as otherwise provided by this section, all
16-69 investigations shall be conducted by the board or persons
16-70 authorized by the board to conduct them. The board may commission
17-1 investigators as peace officers for the purpose of enforcing this
17-2 Act. However, investigators of the board so commissioned as peace
17-3 officers may not carry a firearm or exercise arrest powers. Each
17-4 complaint against a physician which requires a determination of
17-5 medical competency shall be reviewed by a board member, consultant,
17-6 or employee with medical background considered sufficient by the
17-7 board.
17-8 (g) <(b)> Unless it would jeopardize an investigation, the
17-9 board shall notify the physician that a complaint has been filed
17-10 and the nature of the complaint. The board shall make a
17-11 preliminary investigation of the complaint. The first
17-12 consideration of the board shall be whether the physician
17-13 constitutes a continuing threat to the public welfare. The board
17-14 may, unless precluded by the law or this Act, make a disposition of
17-15 any complaint or matter relating to this Act, or of any contested
17-16 case by stipulation, agreed settlement, or consent order. The
17-17 board shall adopt such rules as are appropriate to carry out such
17-18 disposition. Such disposition shall be considered a disciplinary
17-19 order.
17-20 (h) The board shall dispose of all complaints in a timely
17-21 manner. The board shall establish a schedule for conducting each
17-22 phase of a complaint that is under the control of the board not
17-23 later than the 30th day after the date the complaint is received by
17-24 the board. The schedule shall be kept in the information file for
17-25 the complaint, and all parties shall be notified of the projected
17-26 time requirements for pursuing the complaint. A change in the
17-27 schedule must be noted in the complaint information file, and all
17-28 parties to the complaint must be notified not later than the 14th
17-29 day after the date the change is made unless the notice would
17-30 jeopardize an investigation.
17-31 (i) The executive director of the board shall notify the
17-32 board of a complaint that extends beyond the time prescribed by the
17-33 board for resolving the complaint so that the board may take
17-34 necessary action on the complaint.
17-35 (j) Except in the case of a suspension under Section 4.13 of
17-36 this Act or in accordance with the terms of an agreement between
17-37 the board and a licensee, no revocation, suspension, involuntary
17-38 modification, or disciplinary action relating to a license is
17-39 effective unless, before board proceedings are instituted:
17-40 (1) the board has served notice, in a manner
17-41 consistent with the requirements for service under Subsection (g)
17-42 of this section, to the physician of the facts or conduct alleged
17-43 to warrant the intended action; and
17-44 (2) the physician was given an opportunity to show
17-45 compliance with all requirements of law for the retention of the
17-46 license either in writing or through personal appearance at an
17-47 informal meeting with one or more representatives of the board, at
17-48 the option of the licensee.
17-49 (k) If the licensee exercises the option to personally
17-50 appear at an informal meeting with one or more representatives of
17-51 the board and the informal meeting is held, the staff of the board
17-52 and the representatives of the board shall be subject to the ex
17-53 parte provisions of the Administrative Procedure Act with regard to
17-54 subsequent contacts with board members and administrative law
17-55 judges concerning the case.
17-56 SECTION 21. Subchapter D, Medical Practice Act (Article
17-57 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
17-58 4.025 to read as follows:
17-59 Sec. 4.025. INFORMAL PROCEEDINGS. (a) The board by rule
17-60 shall adopt procedures governing:
17-61 (1) informal disposition of a contested case under
17-62 Section 13(e), Administrative Procedure Act, and its subsequent
17-63 amendments; and
17-64 (2) informal proceedings held in compliance with
17-65 Section 18(c), Administrative Procedure Act, and its subsequent
17-66 amendments.
17-67 (b) Rules adopted under this section must provide the
17-68 complainant and the licensee an opportunity to be heard and must
17-69 require the presence of the board's legal counsel or a
17-70 representative of the office of the attorney general to advise the
18-1 board or board's employees.
18-2 SECTION 22. Section 4.02, Medical Practice Act (Article
18-3 4495b, Vernon's Texas Civil Statutes), is redesignated as Section
18-4 4.03 and amended to read as follows:
18-5 Sec. 4.03 <4.02>. Initiation of Charges. (a) Proceedings,
18-6 unless otherwise specified, under this Act or other applicable law
18-7 and charges against a licensee may be instituted by a duly
18-8 authorized representative of the board <on its own initiative or by
18-9 any person>. Charges must be in writing and on sworn affidavit
18-10 filed with the records custodian or assistant records custodian of
18-11 the board detailing the nature of the charges as required by this
18-12 Act or other applicable law. The president or an authorized <his>
18-13 designee shall <set a time and place for a hearing and shall> cause
18-14 a copy of the charges<, together with a notice of the time and
18-15 place fixed for the hearing> to be served on the respondent or the
18-16 respondent's counsel of record.
18-17 (b) The president or designee shall notify the State Office
18-18 of Administrative Hearings of a formal complaint.
18-19 (c) A formal complaint shall be in writing and shall allege
18-20 with reasonable certainty the specific act or acts relied on by the
18-21 agency to constitute a violation of a specific statute or rule.
18-22 The formal complaint shall be specific enough to enable a person of
18-23 common understanding to know what is meant by the formal complaint
18-24 and shall contain a degree of certainty that will give the person
18-25 who is the subject of the formal complaint notice of the particular
18-26 act or acts alleged to be a violation of a specific statute or
18-27 rule.
18-28 (d) The board shall adopt reasonable rules to promote
18-29 discovery by all parties to contested cases.
18-30 (e) In this section, "formal complaint" means a written
18-31 statement made by a credible person under oath that is filed and
18-32 presented by a representative of the board charging a person with
18-33 having committed an act or acts that if proven could affect the
18-34 legal rights or privileges of a licensee or other person under the
18-35 jurisdiction of the board.
18-36 SECTION 23. Section 4.03, Medical Practice Act (Article
18-37 4495b, Vernon's Texas Civil Statutes), is redesignated as Section
18-38 4.04 and amended to read as follows:
18-39 Sec. 4.04 <4.03>. Notice. <(a)> Service of process
18-40 notifying the respondent of <the time and place of> a hearing about
18-41 <and the nature of> the charges against the person shall be made in
18-42 accordance with the requirements of the Administrative Procedure
18-43 Act and its subsequent amendments <person or by mail. Notice shall
18-44 be sufficient if made in person or if sent by registered or
18-45 certified mail to the person charged at the address shown in the
18-46 board files or on his most recent application for registration or
18-47 renewal, no later than 10 days before the hearing.>
18-48 <(b) If service of notice as prescribed by Subsection (a) of
18-49 this section is impossible or cannot be effected, the board shall
18-50 cause to be published once a week for two successive weeks a notice
18-51 of the hearing in a newspaper published in the county of the last
18-52 known place of practice in Texas of the person, if known. If the
18-53 licensee is not currently practicing in Texas as evidenced by
18-54 information in the board files, or if the last county of practice
18-55 is unknown, publication shall be in a newspaper in Travis County.
18-56 When publication of notice is used, the date of hearing may not be
18-57 less than 10 days after the date of the last publication of
18-58 notice>.
18-59 SECTION 24. Section 4.05, Medical Practice Act (Article
18-60 4495b, Vernon's Texas Civil Statutes), is amended to read as
18-61 follows:
18-62 Sec. 4.05. Hearings, Rules. (a) The <president of the>
18-63 board by rule shall adopt procedures governing formal disposition
18-64 of a contested case under the Administrative Procedure Act and its
18-65 subsequent amendments. A formal hearing shall be conducted by an
18-66 administrative law judge employed by the State Office of
18-67 Administrative Hearings <designate one of the following alternative
18-68 procedures for the conduct of each individual contested case in a
18-69 disciplinary matter:>
18-70 <(1) a hearing before the board itself where a quorum
19-1 of the board shall be present for the hearing and decision at the
19-2 conclusion of the hearing;>
19-3 <(2) a hearing committee appointed by the president of
19-4 the board, provided that the hearing committee shall be composed of
19-5 not less than three members of the board and the composition of
19-6 such committee shall be consistent with the provisions of Sections
19-7 2.08 and 2.09 of this Act; or>
19-8 <(3) a hearing before a hearing examiner appointed by
19-9 the board to conduct a hearing and to prepare and submit to the
19-10 board for action a proposal for decision as provided in the
19-11 Administrative Procedure and Texas Register Act (Article 6252-13a,
19-12 Vernon's Texas Civil Statutes).>
19-13 <Any individual conducting a hearing under this subchapter is
19-14 empowered to administer oaths and to receive evidence at the
19-15 hearing and shall report the hearing as prescribed by board rules>.
19-16 Notwithstanding any other provision of this Act or other law, the
19-17 board may, in its sole discretion, employ, retain, and compensate
19-18 such attorneys, consultants, and other professionals as it deems
19-19 necessary and appropriate to serve as <hearing examiners,> board
19-20 consultants or<,> special counsel to prosecute on behalf of the
19-21 hearings division and investigating division such complaints as are
19-22 filed with the board, court reporters, and other staff deemed
19-23 necessary or appropriate by the board to prepare for or represent
19-24 the board in <conduct> the hearings authorized by this section.
19-25 <All hearings conducted under this subchapter by the board shall
19-26 comply with the provisions of the Administrative Procedure Act and
19-27 the board's rules.>
19-28 (b) <The licensee shall have the right to produce witnesses
19-29 or evidence on the person's behalf, to cross-examine witnesses, and
19-30 to have subpoenas issued by the board to be served at the
19-31 licensee's expense.>
19-32 <(c)> The board shall, after receiving the administrative
19-33 law judge's findings of fact and conclusions of law <the hearing>,
19-34 determine the charges upon their merits.
19-35 (c) <(d)> All complaints, adverse reports, investigation
19-36 files, other investigation reports, and other investigative
19-37 information in the possession of, received or gathered by the board
19-38 or its employees or agents relating to a licensee, an application
19-39 for license, or a criminal investigation or proceedings are
19-40 privileged and confidential and are not subject to discovery,
19-41 subpoena, or other means of legal compulsion for their release to
19-42 anyone other than the board or its employees or agents involved in
19-43 licensee discipline. Not later than 30 days after receiving a
19-44 written request from a licensee who is the subject of a formal
19-45 complaint initiated and filed under Section 4.03 of this Act or
19-46 from the licensee's counsel of record and subject to any other
19-47 privileges or restrictions set forth by rule, statute, or legal
19-48 precedent, and unless good cause is shown for delay, the board
19-49 shall provide the licensee with access to all information in its
19-50 possession that the board intends to offer into evidence at the
19-51 contested hearing on the complaint. However, the board is not
19-52 required to provide board investigative reports or investigative
19-53 memoranda, the identity of nontestifying complainants,
19-54 attorney-client communications, attorney work product, or other
19-55 materials covered by a privilege as recognized by the Texas Rules
19-56 of Civil Procedure or the Texas Rules of Civil Evidence. The
19-57 furnishing of information shall not constitute a waiver of
19-58 privilege or confidentiality under this section, this Act, or other
19-59 applicable law. Investigative <However, investigative> information
19-60 in the possession of the board or its employees or agents which
19-61 relates to licensee discipline may be disclosed to the appropriate
19-62 licensing authority in another state, the District of Columbia, or
19-63 a territory or country in which the licensee is licensed or has
19-64 applied for a license, or to a peer review committee reviewing an
19-65 application for privileges or the qualifications of the licensee
19-66 with respect to retaining privileges. If the investigative
19-67 information in the possession of the board or its employees or
19-68 agents indicates a crime may have been committed, the information
19-69 shall be reported to the proper law enforcement agency. The board
19-70 shall cooperate and assist all law enforcement agencies conducting
20-1 criminal investigations of licensees by providing information which
20-2 is relevant to the criminal investigation to the investigating
20-3 agency. Any information disclosed by the board to an investigative
20-4 agency shall remain confidential and shall not be disclosed by the
20-5 investigating agency except as necessary to further the
20-6 investigation. The board shall provide information upon the
20-7 written request of a health-care entity about a complaint filed
20-8 against a licensee that was resolved after investigation by a
20-9 disciplinary order of the board or by an agreed settlement and the
20-10 basis of and current status of any complaint under active
20-11 investigation. The board shall keep information on file about each
20-12 complaint filed with the board, consistent with this Act. If a
20-13 written complaint is filed with the board relating to a person
20-14 licensed by the board, the board, at least as often as quarterly
20-15 and until final determination of the action to be taken relative to
20-16 the complaint, shall notify the parties to the complaint
20-17 <complaining party> consistent with this Act of the status of the
20-18 complaint unless the notice would jeopardize an active
20-19 investigation.
20-20 (d) <(e)> The board in its discretion may accept the
20-21 voluntary surrender of a license. No license may be returned
20-22 unless the board determines, under rules established by it, that
20-23 the licensee is competent to resume practice.
20-24 SECTION 25. Section 4.10, Medical Practice Act (Article
20-25 4495b, Vernon's Texas Civil Statutes), is amended to read as
20-26 follows:
20-27 Sec. 4.10. Petition for Reinstatement. (a) Upon
20-28 application, the board may reissue a license to practice medicine
20-29 to a person whose license has been canceled, revoked, or suspended,
20-30 but the application, in the case of revocation, may not be made
20-31 prior to one year after the revocation was issued or became final
20-32 and must be made upon payment of the fees as established by the
20-33 board and in the manner and form and under the conditions as the
20-34 board may require. Further, the board may not reinstate or reissue
20-35 a license to a person whose license has been canceled, revoked, or
20-36 suspended because of a felony conviction under Chapter 481, Health
20-37 and Safety Code, Section 485.033, Health and Safety Code, Chapter
20-38 483, Health and Safety Code, or the Federal Comprehensive Drug
20-39 Abuse Prevention and Control Act of 1970, 21 U.S.C.A. Section 801
20-40 et seq. (Public Law 91-513), except on an express determination
20-41 based on substantial evidence contained in an investigative report
20-42 indicating that the reinstatement or reissue of the license is in
20-43 the best interests of the public and of the person whose license
20-44 has been canceled, revoked, or suspended.
20-45 (b) A decision by the board to deny an application to
20-46 reinstate or reissue a license is subject to judicial review in the
20-47 manner provided by Section 4.09 of this Act.
20-48 SECTION 26. Section 4.11, Medical Practice Act (Article
20-49 4495b, Vernon's Texas Civil Statutes), is amended to read as
20-50 follows:
20-51 Sec. 4.11. Monitoring of License Holder; Probation.
20-52 (a) The board by rule shall develop a system for monitoring the
20-53 compliance of license holders who are the subject of disciplinary
20-54 action with the requirements of this Act. Rules adopted under this
20-55 section shall include procedures for monitoring a license holder
20-56 who is ordered by the board to perform certain acts to ascertain
20-57 that the license holder performs the required acts and to identify
20-58 and monitor license holders who present a risk to the public.
20-59 (b) The board upon majority vote may provide that the order
20-60 canceling, revoking, or suspending a license or imposing any other
20-61 method of discipline be probated so long as the probationer
20-62 conforms to the orders, conditions, and rules that the board may
20-63 set out as the terms of probation. However, the board may not
20-64 grant probation to a person whose license has been canceled,
20-65 revoked, or suspended because of a felony conviction under Chapter
20-66 481, Health and Safety Code, Section 485.033, Health and Safety
20-67 Code, Chapter 483, Health and Safety Code, or the Federal
20-68 Comprehensive Drug Abuse Prevention and Control Act of 1970, 21
20-69 U.S.C.A. Section 801 et seq. (Public Law 91-513), except on an
20-70 express determination, based on substantial evidence, that the
21-1 grant of probation is in the best interests of the public and of
21-2 the person whose license has been suspended, revoked, or canceled.
21-3 The board, at the time of probation, shall set out the period of
21-4 time that constitutes the probationary period. The board may not
21-5 grant probation to a physician who poses, through the practice of
21-6 medicine, a continuing threat to the public welfare.
21-7 (c) <(b)> The board may at any time while a license holder
21-8 <the probationer> remains on probation, with adequate grounds being
21-9 shown, cause <hold> a hearing to be held and, upon proof of a
21-10 violation of the order <majority vote>, rescind the probation and
21-11 enforce the board's original action and may impose any disciplinary
21-12 action permitted under Section 4.12 of this Act in addition to or
21-13 in lieu of enforcing the original order. The board <and> shall
21-14 revoke or suspend a probationer's license <do so> if the board
21-15 determines that the probationer poses, through the practice of
21-16 medicine, a continuing threat to the public welfare.
21-17 (d) <(c)> The hearing to rescind the probation shall be
21-18 governed by the same provisions as are set forth in this subchapter
21-19 for other charges.
21-20 SECTION 27. Section 4.12, Medical Practice Act (Article
21-21 4495b, Vernon's Texas Civil Statutes), is amended to read as
21-22 follows:
21-23 Sec. 4.12. Methods of Discipline. (a) Except as otherwise
21-24 provided in Section 4.01, if the board finds any person to have
21-25 committed any of the acts set forth in Section 3.08 of this Act, it
21-26 shall enter an order imposing one or more of the following:
21-27 (1) deny the person's application for a license or
21-28 other authorization to practice medicine;
21-29 (2) administer a public reprimand;
21-30 (3) suspend, limit, or restrict the person's license
21-31 or other authorization to practice medicine, including limiting the
21-32 practice of the person to or by the exclusion of one or more
21-33 specified activities of medicine or stipulating periodic board
21-34 review;
21-35 (4) revoke the person's license or other authorization
21-36 to practice medicine;
21-37 (5) require the person to submit to care, counseling,
21-38 or treatment of physicians designated by the board as a condition
21-39 for the initial, continued, or renewal of a license or other
21-40 authorization to practice medicine;
21-41 (6) require the person to participate in a program of
21-42 education or counseling prescribed by the board;
21-43 (7) require the person to practice under the direction
21-44 of a physician designated by the board for a specified period of
21-45 time; <or>
21-46 (8) require the person to perform public service
21-47 considered appropriate by the board; or
21-48 (9) assess an administrative penalty against the
21-49 person as provided by Section 4.125 of this Act.
21-50 (b) Providing however, if the board determines that, through
21-51 the practice of medicine, the physician poses a continuing threat
21-52 to the public welfare, it shall revoke, suspend or deny the
21-53 license.
21-54 (c) In addition to the other disciplinary actions authorized
21-55 by this section, the board may issue a written reprimand to a
21-56 license holder who violates this Act or require that a license
21-57 holder who violates this Act participate in continuing education
21-58 programs. The board shall specify the continuing education
21-59 programs that may be attended and the number of hours that must be
21-60 completed by an individual license holder to fulfill the
21-61 requirements of this subsection.
21-62 (d) If a license suspension is probated, the board may
21-63 require the license holder to:
21-64 (1) report regularly to the board on matters that are
21-65 the basis of the probation;
21-66 (2) limit practice to the areas prescribed by the
21-67 board; or
21-68 (3) continue or review continuing professional
21-69 education until the license holder attains a degree of skill
21-70 satisfactory to the board in those areas that are the basis of the
22-1 probation.
22-2 (e) The schedule of sanctions adopted by the board by rule
22-3 shall be used by the State Office of Administrative Hearings for
22-4 any sanction imposed as the result of a hearing conducted by that
22-5 office.
22-6 SECTION 28. Subchapter D, Medical Practice Act (Article
22-7 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
22-8 4.125 to read as follows:
22-9 Sec. 4.125. ADMINISTRATIVE PENALTY. (a) The board may
22-10 impose an administrative penalty against a person licensed or
22-11 regulated under this Act who violates this Act or a rule or order
22-12 adopted under this Act.
22-13 (b) The penalty for a violation may be in an amount not to
22-14 exceed $5,000. Each day a violation continues or occurs is a
22-15 separate violation for purposes of imposing a penalty.
22-16 (c) The amount of the penalty shall be based on:
22-17 (1) the seriousness of the violation, including the
22-18 nature, circumstances, extent, and gravity of any prohibited acts,
22-19 and the hazard or potential hazard created to the health, safety,
22-20 or economic welfare of the public;
22-21 (2) the economic harm to property or the environment
22-22 caused by the violation;
22-23 (3) the history of previous violations;
22-24 (4) the amount necessary to deter future violations;
22-25 (5) efforts to correct the violation; and
22-26 (6) any other matter that justice may require.
22-27 (d) An executive director who determines that a violation
22-28 has occurred may issue to the board a report that states the facts
22-29 on which the determination is based and the director's
22-30 recommendation on the imposition of a penalty, including a
22-31 recommendation on the amount of the penalty.
22-32 (e) Within 14 days after the date the report is issued, the
22-33 executive director shall give written notice of the report to the
22-34 person. The notice may be given by certified mail. The notice
22-35 must include a brief summary of the alleged violation and a
22-36 statement of the amount of the recommended penalty and must inform
22-37 the person that the person has a right to a hearing on the
22-38 occurrence of the violation, the amount of the penalty, or both the
22-39 occurrence of the violation and the amount of the penalty.
22-40 (f) Within 20 days after the date the person receives the
22-41 notice, the person in writing may accept the determination and
22-42 recommended penalty of the executive director or may make a written
22-43 request for a hearing on the occurrence of the violation, the
22-44 amount of the penalty, or both the occurrence of the violation and
22-45 the amount of the penalty.
22-46 (g) If the person accepts the determination and recommended
22-47 penalty of the executive director, the board by order shall approve
22-48 the determination and impose the recommended penalty.
22-49 (h) If the person requests a hearing or fails to respond
22-50 timely to the notice, the executive director shall set a hearing
22-51 and give notice of the hearing to the person. The hearing shall be
22-52 held by an administrative law judge of the State Office of
22-53 Administrative Hearings. The administrative law judge shall make
22-54 findings of fact and conclusions of law and promptly issue to the
22-55 board a proposal for a decision about the occurrence of the
22-56 violation and the amount of a proposed penalty. Based on the
22-57 findings of fact, conclusions of law, and proposal for a decision,
22-58 the board by order may find that a violation has occurred and
22-59 impose a penalty or may find that no violation occurred.
22-60 (i) The notice of the board's order given to the person
22-61 under the Administrative Procedure Act and its subsequent
22-62 amendments must include a statement of the right of the person to
22-63 judicial review of the order.
22-64 (j) Within 30 days after the date the board's order is final
22-65 as provided by Section 16(c), Administrative Procedure Act, and its
22-66 subsequent amendments, the person shall:
22-67 (1) pay the amount of the penalty;
22-68 (2) pay the amount of the penalty and file a petition
22-69 for judicial review contesting the occurrence of the violation, the
22-70 amount of the penalty, or both the occurrence of the violation and
23-1 the amount of the penalty; or
23-2 (3) without paying the amount of the penalty, file a
23-3 petition for judicial review contesting the occurrence of the
23-4 violation, the amount of the penalty, or both the occurrence of the
23-5 violation and the amount of the penalty.
23-6 (k) Within the 30-day period, a person who acts under
23-7 Subsection (j)(3) of this section may:
23-8 (1) stay enforcement of the penalty by:
23-9 (A) paying the amount of the penalty to the
23-10 court for placement in an escrow account; or
23-11 (B) giving to the court a supersedeas bond that
23-12 is approved by the court for the amount of the penalty and that is
23-13 effective until all judicial review of the board's order is final;
23-14 or
23-15 (2) request the court to stay enforcement of the
23-16 penalty by:
23-17 (A) filing with the court a sworn affidavit of
23-18 the person stating that the person is financially unable to pay the
23-19 amount of the penalty and is financially unable to give the
23-20 supersedeas bond; and
23-21 (B) giving a copy of the affidavit to the
23-22 executive director by certified mail.
23-23 (l) An executive director who receives a copy of an
23-24 affidavit under Subsection (k)(2) of this section may file with the
23-25 court, within five days after the date the copy is received, a
23-26 contest to the affidavit. The court shall hold a hearing on the
23-27 facts alleged in the affidavit as soon as practicable and shall
23-28 stay the enforcement of the penalty on finding that the alleged
23-29 facts are true. The person who files an affidavit has the burden
23-30 of proving that the person is financially unable to pay the amount
23-31 of the penalty and to give a supersedeas bond.
23-32 (m) If the person does not pay the amount of the penalty and
23-33 the enforcement of the penalty is not stayed, the executive
23-34 director may refer the matter to the attorney general for
23-35 collection of the amount of the penalty.
23-36 (n) Judicial review of the order of the board:
23-37 (1) is instituted by filing a petition as provided by
23-38 Section 19, Administrative Procedure Act, and its subsequent
23-39 amendments; and
23-40 (2) is under the substantial evidence rule.
23-41 (o) If the court sustains the occurrence of the violation,
23-42 the court may uphold or reduce the amount of the penalty and order
23-43 the person to pay the full or reduced amount of the penalty. If
23-44 the court does not sustain the occurrence of the violation, the
23-45 court shall order that no penalty is owed.
23-46 (p) When the judgment of the court becomes final, the court
23-47 shall proceed under this subsection. If the person paid the amount
23-48 of the penalty and if that amount is reduced or is not upheld by
23-49 the court, the court shall order that the appropriate amount plus
23-50 accrued interest be remitted to the person. The rate of the
23-51 interest is the rate charged on loans to depository institutions by
23-52 the New York Federal Reserve Bank, and the interest shall be paid
23-53 for the period beginning on the date the penalty was paid and
23-54 ending on the date the penalty is remitted. If the person gave a
23-55 supersedeas bond and if the amount of the penalty is not upheld by
23-56 the court, the court shall order the release of the bond. If the
23-57 person gave a supersedeas bond and if the amount of the penalty is
23-58 reduced, the court shall order the release of the bond after the
23-59 person pays the amount.
23-60 (q) A penalty collected under this section shall be remitted
23-61 to the comptroller for deposit in the general revenue fund.
23-62 (r) All proceedings under this section are subject to the
23-63 Administrative Procedure Act and its subsequent amendments.
23-64 SECTION 29. Subchapter D, Medical Practice Act (Article
23-65 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
23-66 4.126 to read as follows:
23-67 Sec. 4.126. CIVIL PENALTY. (a) If it appears that a person
23-68 is in violation of or is threatening to violate this Act or a rule
23-69 or order adopted by the board, the attorney general may institute
23-70 an action for a civil penalty of $1,000 for each violation. Each
24-1 day of a violation shall constitute a separate violation.
24-2 (b) A civil action filed under this section by the attorney
24-3 general or the board must be filed in a district court in Travis
24-4 County or the county in which the violation occurred.
24-5 (c) The attorney general, district and county attorney, and
24-6 the board may recover reasonable expenses incurred in obtaining a
24-7 civil penalty under this section, including court costs, reasonable
24-8 attorney fees, investigative costs, witness fees, and deposition
24-9 expenses.
24-10 (d) A civil penalty recovered in an action by the attorney
24-11 general or the board under this section shall be deposited in the
24-12 state treasury.
24-13 SECTION 30. Section 4.13, Medical Practice Act (Article
24-14 4495b, Vernon's Texas Civil Statutes), is amended to read as
24-15 follows:
24-16 Sec. 4.13. Temporary Suspension of License. (a) The
24-17 president of the board, with the approval of the board, shall
24-18 appoint a three-member disciplinary panel consisting of members of
24-19 the board for the purpose of determining whether a person's license
24-20 to practice medicine in this state should be temporarily suspended
24-21 under this section.
24-22 (b) If the disciplinary panel <executive committee of the
24-23 board> determines from the evidence or information presented to it
24-24 that a person licensed to practice medicine in this state by his
24-25 continuation in practice would constitute a continuing threat to
24-26 the public welfare, the disciplinary panel <executive committee of
24-27 the board> shall temporarily suspend the license of that person.
24-28 (c) The license may be suspended under this section without
24-29 notice or hearing on the complaint, provided institution of
24-30 proceedings for a hearing before the board is initiated
24-31 simultaneously with the temporary suspension and provided that a
24-32 hearing is held as soon as can be accomplished under the
24-33 Administrative Procedure Act and this Act.
24-34 (d) Notwithstanding the open meetings law, the disciplinary
24-35 panel may hold a meeting by telephone conference call if immediate
24-36 action is required and the convening at one location of the
24-37 disciplinary panel is inconvenient for any member of the
24-38 disciplinary panel.
24-39 SECTION 31. Subchapter E, Medical Practice Act (Article
24-40 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
24-41 5.035 to read as follows:
24-42 Sec. 5.035. GRADUATES OF UNAPPROVED FOREIGN MEDICAL SCHOOLS.
24-43 (a) An applicant who is a graduate of a medical school that is
24-44 located outside the United States and Canada and that was not
24-45 approved by the board at the time the degree was conferred, to be
24-46 eligible for the examination and issuance of a license, must
24-47 present satisfactory proof to the board that the applicant:
24-48 (1) meets the requirements set out in Sections
24-49 3.04(a)(1), (2), and (3) of this Act;
24-50 (2) is a graduate of a school whose curriculum meets
24-51 the requirements for an unapproved medical school as determined by
24-52 a committee of experts selected by the Texas Higher Education
24-53 Coordinating Board;
24-54 (3) has successfully completed three years of graduate
24-55 medical training in the United States or Canada that was approved
24-56 by the board on the date the training was completed;
24-57 (4) is eligible for licensure to practice medicine in
24-58 the country in which the school is located;
24-59 (5) possesses a valid certificate issued by the
24-60 Educational Commission for Foreign Medical Graduates; and
24-61 (6) has the ability to communicate in the English
24-62 language.
24-63 (b) In addition to other licensure requirements, the board
24-64 may require by rule that a graduate of an unapproved medical school
24-65 located outside the United States and Canada or the school of which
24-66 the person is a graduate provide additional information to the
24-67 board concerning the school before approving the applicant.
24-68 (c) The board may refuse to issue a license to an applicant
24-69 who graduated from an unapproved medical school located outside the
24-70 United States and Canada if it finds that the applicant does not
25-1 possess the requisite qualifications to provide the same standard
25-2 of medical care as provided by a physician licensed in this state.
25-3 (d) The board may refuse to issue a license to an applicant
25-4 who graduated from an unapproved medical school located outside the
25-5 United States and Canada if the applicant fails to provide the
25-6 board evidence to establish that the applicant completed medical
25-7 education or professional training substantially equivalent to that
25-8 provided by a medical school in this state.
25-9 SECTION 32. Section 5.04, Medical Practice Act, is amended
25-10 to read as follows:
25-11 Sec. 5.04. FIFTH PATHWAY FOR FOREIGN MEDICAL SCHOOL
25-12 STUDENTS. (a) An applicant <Notwithstanding any other provision
25-13 of law, an individual> who has been a student of a foreign medical
25-14 school, to be eligible for the examination and issuance of a
25-15 license, must present satisfactory proof to the board that the
25-16 applicant <is eligible for licensure to practice medicine in this
25-17 state if he>:
25-18 (1) meets the requirements set out in Sections
25-19 3.04(a)(1), (2), and (3) of this Act;
25-20 (2) has studied medicine in an acceptable <a
25-21 reputable> medical school as defined by the board located outside
25-22 the United States and Canada;
25-23 (3) <(2)> has completed all of the didactic work of
25-24 the foreign medical school but has not graduated from the school;
25-25 (4) <(3)> has attained a score satisfactory to a
25-26 medical school in the United States approved by the Liaison
25-27 Committee on Medical Education on a qualifying examination and has
25-28 satisfactorily completed one academic year of supervised clinical
25-29 training for foreign medical students as defined by the American
25-30 Medical Association Council on Medical Education (Fifth Pathway
25-31 Program) under the direction of the medical school in the United
25-32 States;
25-33 (5) <(4)> has attained a passing score on the
25-34 Educational Commission <Council> for Foreign Medical Graduates
25-35 examination, or other examination, if required by the board; and
25-36 (6) has successfully completed three years of graduate
25-37 medical training in the United States or Canada that was approved
25-38 by the board on the date the training was completed <(5) has
25-39 passed the examination required by the board of all applicants for
25-40 license>.
25-41 (b) Satisfaction of the requirements of Subsection (a) of
25-42 this section are in lieu of the completion of any requirements of
25-43 the foreign medical school beyond completion of the didactic work,
25-44 and no other medical education requirements shall be a condition of
25-45 licensure to practice medicine in this state.
25-46 (c) Satisfaction of the requirements specified in Subsection
25-47 (a) of this section shall be in lieu of certification by the
25-48 Educational Commission <Council> for Foreign Medical Graduates, and
25-49 the certification is not a condition of licensure to practice
25-50 medicine in this state for candidates who have completed the
25-51 requirements of Subsection (a) of this section.
25-52 (d) A hospital that is licensed by this state, that is
25-53 operated by the state or a political subdivision of the state, or
25-54 that receives state financial assistance, directly or indirectly,
25-55 may not require an individual who has been a student of a foreign
25-56 medical school but has not graduated from the school to satisfy any
25-57 requirements other than those contained in <Subdivisions (1), (2),
25-58 (3), and (4) of> Subsection (a) of this section prior to commencing
25-59 an internship or residency.
25-60 (e) A document granted by a medical school located outside
25-61 the United States issued after the completion of all the didactic
25-62 work of the foreign medical school shall, on certification by the
25-63 medical school in the United States in which the training was
25-64 received of satisfactory completion by the person to whom the
25-65 document was issued of the requirements listed in Subdivision (4)
25-66 <(3)> of Subsection (a) of this section, be considered the
25-67 equivalent of a degree of doctor of medicine or doctor of
25-68 osteopathy for purposes of licensure.
25-69 SECTION 33. Subsection (k), Section 5.08, Medical Practice
25-70 Act (Article 4495b, Vernon's Texas Civil Statutes), is amended to
26-1 read as follows:
26-2 (k) A physician shall furnish copies of medical records
26-3 requested, or a summary or narrative of the records, pursuant to a
26-4 written consent for release of the information as provided by
26-5 Subsection (j) of this section, except if the physician determines
26-6 that access to the information would be harmful to the physical,
26-7 mental, or emotional health of the patient, and the physician may
26-8 delete confidential information about another person who has not
26-9 consented to the release. The information shall be furnished by
26-10 the physician within 30 days after the date of receipt of the
26-11 request <a reasonable period of time> and reasonable fees for
26-12 furnishing the information shall be paid by the patient or someone
26-13 on his behalf. If the physician denies the request, in whole or in
26-14 part, the physician shall furnish the patient a written statement,
26-15 signed and dated, stating the reason for the denial. A copy of the
26-16 statement denying the request shall be placed in the patient's
26-17 medical records. In this subsection, "medical records" means any
26-18 records pertaining to the history, diagnosis, treatment, or
26-19 prognosis of the patient.
26-20 SECTION 34. Section 5.10, Medical Practice Act (Article
26-21 4495b, Vernon's Texas Civil Statutes), is amended to read as
26-22 follows:
26-23 Sec. 5.10. Sunset provision. The Texas State Board of
26-24 Medical Examiners is subject to Chapter 325, Government Code (Texas
26-25 Sunset Act). Unless continued in existence as provided by that
26-26 chapter, the board is abolished and this Act expires September 1,
26-27 2005 <1993>.
26-28 SECTION 35. The Medical Practice Act (Article 4495b,
26-29 Vernon's Texas Civil Statutes) is amended by adding Subchapter F to
26-30 read as follows:
26-31 SUBCHAPTER F. ACUPUNCTURE PRACTICE
26-32 Sec. 6.01. LEGISLATIVE FINDINGS AND PURPOSE. The
26-33 legislature finds that:
26-34 (1) the review and establishment of statewide
26-35 standards for the training, education, and discipline of persons
26-36 performing acupuncture are in the public interest; and
26-37 (2) the health, safety, and welfare of the people of
26-38 this state are best served by an orderly system of regulating the
26-39 practice of acupuncture.
26-40 Sec. 6.02. DEFINITIONS. In this subchapter:
26-41 (1) "Acupuncture" means:
26-42 (A) the insertion of an acupuncture needle and
26-43 the application of moxibustion to specific areas of the human body
26-44 as a primary mode of therapy to treat and mitigate a human
26-45 condition; and
26-46 (B) the administration of thermal or electrical
26-47 treatments or the recommendation of dietary guidelines, therapeutic
26-48 exercise, or dietary or herbal supplements in conjunction with the
26-49 treatment described by Paragraph (A) of this subdivision.
26-50 (2) "Acupuncturist" means a person who practices
26-51 acupuncture.
26-52 (3) "Acupuncture board" means the Texas State Board of
26-53 Acupuncture Examiners.
26-54 (4) "Chiropractor" means a licensee of the Texas Board
26-55 of Chiropractic Examiners.
26-56 (5) "Executive director" means the executive director
26-57 of the Texas State Board of Medical Examiners.
26-58 (6) "Medical board" means the Texas State Board of
26-59 Medical Examiners.
26-60 (7) "Physician" means a licensee of the Texas State
26-61 Board of Medical Examiners.
26-62 Sec. 6.03. EXEMPTION; LIMITATION. (a) This subchapter does
26-63 not apply to a health care professional licensed under another
26-64 subchapter of this Act or another statute of this state and acting
26-65 within the scope of the license.
26-66 (b) This subchapter does not:
26-67 (1) limit the practice of medicine by a physician or
26-68 permit the unauthorized practice of medicine; or
26-69 (2) permit a person to dispense, administer, or supply
26-70 any controlled substance, narcotic, or dangerous drug if the person
27-1 is not otherwise authorized by law to do so.
27-2 Sec. 6.04. ACUPUNCTURE BOARD. (a) The Texas State Board of
27-3 Acupuncture Examiners is composed of nine members appointed by the
27-4 governor as follows:
27-5 (1) four acupuncturists who have at least five years
27-6 of experience in the practice of acupuncture in this state and are
27-7 not licensed in this state as physicians;
27-8 (2) two physicians who are licensed in this state and
27-9 are experienced in the practice of acupuncture; and
27-10 (3) three members of the general public who are not
27-11 licensed or trained in a health care profession and who represent
27-12 the public.
27-13 (b) The following persons may not serve on the acupuncture
27-14 board:
27-15 (1) a person who is required to register as a lobbyist
27-16 under Chapter 305, Government Code, and its subsequent amendments;
27-17 and
27-18 (2) a person who is currently employed by or serving
27-19 as president, vice-president, secretary, or treasurer of a
27-20 statewide or national organization incorporated for the purpose of
27-21 representing a health care profession in this state or the United
27-22 States.
27-23 (c) Members of the acupuncture board hold office for
27-24 staggered terms of six years, with three members' terms expiring
27-25 January 31 of each odd-numbered year.
27-26 (d) The governor shall designate a presiding officer of the
27-27 acupuncture board from the members of the acupuncture board.
27-28 (e) A vacancy on the acupuncture board shall be filled by
27-29 appointment of the governor.
27-30 (f) A member of the acupuncture board may not receive
27-31 compensation for service on the board but is entitled to receive a
27-32 per diem as set by legislative appropriation for transportation and
27-33 related expenses incurred for each day that the member engages in
27-34 the business of the board.
27-35 (g) The acupuncture board is subject to the open meetings
27-36 law, the open records law, and the Administrative Procedure Act and
27-37 any subsequent amendments.
27-38 (h) The acupuncture board is subject to Chapter 325,
27-39 Government Code (Texas Sunset Act). Unless continued in existence
27-40 as provided by that chapter, the board is abolished and this
27-41 subchapter expires September 1, 1997.
27-42 Sec. 6.05. POWERS AND DUTIES OF ACUPUNCTURE BOARD.
27-43 (a) Subject to the advice and approval of the medical board, the
27-44 acupuncture board shall:
27-45 (1) establish qualifications for an acupuncturist to
27-46 practice in this state;
27-47 (2) establish minimum educational and training
27-48 requirements necessary for the acupuncture board to recommend that
27-49 the medical board issue a license to practice acupuncture;
27-50 (3) administer an examination that is validated by
27-51 independent testing professionals for a license to practice
27-52 acupuncture;
27-53 (4) develop requirements for licensure by endorsement
27-54 of other states;
27-55 (5) prescribe the application form for a license to
27-56 practice acupuncture;
27-57 (6) make recommendations on applications for licenses
27-58 to practice acupuncture;
27-59 (7) establish a procedure for reporting and processing
27-60 complaints relating to the practice of acupuncture under this
27-61 article;
27-62 (8) establish the requirements for a tutorial program
27-63 for students who have completed at least 48 semester hours of
27-64 college; and
27-65 (9) recommend additional rules as are necessary for
27-66 the administration and enforcement of this subchapter.
27-67 (b) Notwithstanding Subsection (a) of this section, the
27-68 acupuncture board has no independent rulemaking authority.
27-69 Sec. 6.06. LICENSE REQUIRED. A person may not practice
27-70 acupuncture in this state unless the person holds a license to
28-1 practice acupuncture issued by the medical board under this
28-2 subchapter.
28-3 Sec. 6.07. QUALIFICATIONS OF ACUPUNCTURISTS. (a) An
28-4 applicant for a license to practice acupuncture who is not
28-5 otherwise licensed under this subchapter must pass an examination
28-6 approved by the acupuncture board.
28-7 (b) To be eligible for the examination, an applicant must:
28-8 (1) be at least 21 years of age;
28-9 (2) have completed at least 48 semester hours of
28-10 college courses, including basic science courses as determined by
28-11 the advisory board; and
28-12 (3) be a graduate of an acceptable acupuncture school
28-13 whose entrance requirements and course of instruction meet
28-14 standards set by the acupuncture board.
28-15 (c) A reputable acupuncture school must:
28-16 (1) maintain a resident course of instruction
28-17 equivalent to not less than six terms of four months each for a
28-18 total of not less than 1,800 instructional hours;
28-19 (2) provide supervised patient treatment for at least
28-20 two terms of the resident course of instruction;
28-21 (3) maintain a course of instruction in
28-22 anatomy-histology, bacteriology, physiology, symptomatology,
28-23 pathology, meridian and point locations, hygiene, and public
28-24 health; and
28-25 (4) have the necessary teaching force and facilities
28-26 for proper instruction in required subjects.
28-27 (d) In establishing standards for the entrance requirements
28-28 and course of instruction of an acupuncture school, the acupuncture
28-29 board may consider the standards set by the National Accreditation
28-30 Commission for Schools and Colleges of Acupuncture and Oriental
28-31 Medicine.
28-32 (e) The examination shall be conducted on practical and
28-33 theoretical acupuncture and other subjects required by the
28-34 acupuncture board.
28-35 (f) An application for examination must be:
28-36 (1) in writing on a form prescribed by the acupuncture
28-37 board;
28-38 (2) verified by affidavit;
28-39 (3) filed with the executive director of the medical
28-40 board; and
28-41 (4) accompanied by a fee set by the medical board.
28-42 (g) The medical board shall notify all applicants of the
28-43 time and place of the examination.
28-44 (h) The examination may be in writing, by a practical
28-45 demonstration of the applicant's skill, or both, as the acupuncture
28-46 board may require.
28-47 Sec. 6.08. ASSISTANCE BY MEDICAL BOARD. The medical board
28-48 shall provide administrative and clerical employees as necessary to
28-49 enable the acupuncture board to carry out this subchapter.
28-50 Sec. 6.09. FEES. The medical board shall set and collect
28-51 fees in amounts that are reasonable and necessary to cover the
28-52 costs of administering and enforcing this subchapter without the
28-53 use of any other funds generated by the medical board and without
28-54 the use of general revenue funds.
28-55 Sec. 6.10. ISSUANCE OF LICENSE. (a) After consulting the
28-56 acupuncture board, the medical board shall issue a license to
28-57 practice acupuncture in this state to a person who meets the
28-58 requirements of this subchapter and the rules adopted under this
28-59 subchapter.
28-60 (b) The medical board shall by rule provide for the annual
28-61 renewal of a license to practice acupuncture.
28-62 Sec. 6.11. DENIAL OF LICENSE; DISCIPLINE OF LICENSE HOLDER.
28-63 (a) A license to practice acupuncture may be denied or, after
28-64 notice and hearing, suspended, probated, or revoked if the
28-65 applicant for a license or the holder of a license:
28-66 (1) uses drugs or intoxicating liquors to an extent
28-67 that affects the person's professional competence;
28-68 (2) obtains or attempts to obtain a license by fraud
28-69 or deception;
28-70 (3) is adjudged mentally incompetent by a court of
29-1 competent jurisdiction;
29-2 (4) practices acupuncture in a manner detrimental to
29-3 the public health and welfare;
29-4 (5) violates this subchapter or a rule adopted under
29-5 this subchapter;
29-6 (6) is convicted of a felony or a crime involving
29-7 moral turpitude; or
29-8 (7) holds himself out as a physician or surgeon or any
29-9 combination or derivative of those terms unless the person is also
29-10 licensed by the medical board as a physician or surgeon.
29-11 (b) Except as provided by Subsection (c) of this section, a
29-12 license to practice acupuncture shall be denied or, after notice
29-13 and hearing, revoked if the holder of a license has performed
29-14 acupuncture on a person who was not evaluated by a physician or
29-15 dentist, as appropriate, for the condition being treated within six
29-16 months before the date acupuncture was performed.
29-17 (c) The holder of a license may perform acupuncture on a
29-18 person who was referred by a doctor licensed to practice
29-19 chiropractic by the Texas Board of Chiropractic Examiners if the
29-20 licensee commences the treatment within 30 days of the date of the
29-21 referral. The licensee shall refer the person to a physician after
29-22 performing acupuncture 20 times or for 30 days, whichever occurs
29-23 first, if no substantial improvement occurs in the person's
29-24 condition for which the referral was made.
29-25 (d) The holder of a license must obtain reasonable
29-26 documentation that the evaluation required by Subsection (b) of
29-27 this section has taken place. If the licensee is unable to
29-28 determine that an evaluation has taken place, the licensee must
29-29 obtain a written statement signed by the person on a form
29-30 prescribed by the acupuncture board that states that the person has
29-31 been evaluated by a physician within the prescribed time frame.
29-32 The form shall contain a clear statement that the person should be
29-33 evaluated by a physician for the condition being treated by the
29-34 licensee.
29-35 (e) The medical board with advice from the acupuncture board
29-36 by rule may modify the requirement of the time frame or the scope
29-37 of the evaluation under Subsection (b) of this section.
29-38 (f) The medical board with advice from the acupuncture board
29-39 by rule may modify the requirement of the time frame for
29-40 commencement of treatment after referral by a chiropractor or the
29-41 number of treatments or days before referral to a physician is
29-42 required under Subsection (c) of this section.
29-43 (g) Notwithstanding Subsections (b) and (c) of this section,
29-44 an acupuncturist holding a current and valid license may without a
29-45 referral from a physician, dentist, or chiropractor perform
29-46 acupuncture on a person for smoking addiction, weight loss, or, as
29-47 established by the medical board with advice from the acupuncture
29-48 board by rule, substance abuse.
29-49 Sec. 6.12. OFFENSE. (a) A person commits an offense if the
29-50 person violates Section 6.06 of this Act.
29-51 (b) An offense under Subsection (a) of this section is a
29-52 Class A misdemeanor.
29-53 (c) Each day of a violation constitutes a separate offense.
29-54 Sec. 6.13. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The
29-55 medical board, the attorney general, or a district or county
29-56 attorney may bring a civil action to compel compliance with this
29-57 subchapter or to enforce a rule adopted under this subchapter.
29-58 (b) In addition to injunctive relief or any other remedy
29-59 provided by law, a person who violates this subchapter or a rule
29-60 adopted under this subchapter is liable to the state for a civil
29-61 penalty in an amount not to exceed $2,000 for each violation. Each
29-62 day a violation continues or occurs is a separate violation for
29-63 purposes of imposing a civil penalty. The attorney general, at the
29-64 request of the medical board or on the attorney general's own
29-65 initiative, may bring a civil action to collect a civil penalty
29-66 under this subsection. A civil penalty recovered shall be
29-67 deposited to the credit of the general revenue fund.
29-68 Sec. 6.14. AUTOMATIC LICENSURE. (a) With the approval of
29-69 the medical board, the acupuncture board shall establish
29-70 appropriate and reasonable requirements to determine those persons
30-1 practicing acupuncture on the effective date of this subchapter who
30-2 are eligible for immediate approval for a license to practice
30-3 acupuncture under this section.
30-4 (b) This section only applies to a person who meets the
30-5 requirements for immediate licensure under this section and who
30-6 applies for immediate approval on or before June 1, 1994.
30-7 (c) This section expires June 2, 1994.
30-8 SECTION 36. (a) As soon as possible on or after the
30-9 effective date of this Act, the governor shall appoint 15 new
30-10 members to the Texas State Board of Medical Examiners in accordance
30-11 with Section 2.05, Medical Practice Act (Article 4495b, Vernon's
30-12 Texas Civil Statutes), as amended by this Act. In making the
30-13 appointments, the governor shall designate five members for terms
30-14 expiring April 13, 1995, five members for terms expiring April 13,
30-15 1997, and five members for terms expiring April 13, 1999. The
30-16 members appointed under this subsection may not perform the
30-17 functions of the board until the day after the date a majority of
30-18 the new members take office.
30-19 (b) Until the date the new members of the Texas State Board
30-20 of Medical Examiners may begin performing the functions of the
30-21 board under Subsection (a) of this section, the members serving on
30-22 the board immediately before the effective date of this Act shall
30-23 continue to carry out the functions of the board. On the date the
30-24 new members may begin performing the functions of the board, the
30-25 offices of the members serving immediately before the effective
30-26 date of this Act are abolished.
30-27 (c) The changes in law made by this Act in the
30-28 qualifications of and the prohibitions applying to members of the
30-29 Texas State Board of Medical Examiners do not affect the
30-30 entitlement of a member serving on the board immediately before the
30-31 effective date of this Act to continue to carry out the functions
30-32 of the board for the period prescribed by Subsection (b) of this
30-33 section. The changes in law apply only to a member appointed on or
30-34 after the effective date of this Act. This Act does not prohibit a
30-35 person who is a member of the board on the effective date of this
30-36 Act from being reappointed to the board if the person has the
30-37 qualifications required for a member under the Medical Practice Act
30-38 (Article 4495b, Vernon's Texas Civil Statutes), as amended by this
30-39 Act.
30-40 (d) The changes in law made by this Act relating to an
30-41 administrative penalty or civil penalty apply only to a violation
30-42 of the Medical Practice Act (Article 4495b, Vernon's Texas Civil
30-43 Statutes) or a rule or order adopted by the Texas State Board of
30-44 Medical Examiners that occurs on or after the effective date of
30-45 this Act. A violation occurs on or after the effective date of
30-46 this Act only if each element of the violation occurs on or after
30-47 that date. A violation that occurs before the effective date of
30-48 this Act is governed by the law in effect on the date the violation
30-49 occurred, and the former law is continued in effect for that
30-50 purpose.
30-51 (e) A person is not required to obtain a license to practice
30-52 acupuncture under Subchapter F, Medical Practice Act (Article
30-53 4495b, Vernon's Texas Civil Statutes), as added by this Act, until
30-54 June 1, 1994.
30-55 (f) The Texas State Board of Medical Examiners shall adopt
30-56 rules under Subchapter F, Medical Practice Act (Article 4495b,
30-57 Vernon's Texas Civil Statutes), as added by this Act, not later
30-58 than February 1, 1994.
30-59 (g) Not later than January 1, 1994, the governor shall make
30-60 initial appointments to the Texas State Board of Acupuncture
30-61 Examiners and shall designate three members for terms expiring
30-62 January 31, 1995, three members for terms expiring January 31,
30-63 1997, and three members for terms expiring January 31, 1999.
30-64 (h) Notwithstanding other provisions of this Act, Sections
30-65 6.06 and 6.12, Medical Practice Act (Article 4495b, Vernon's Texas
30-66 Civil Statutes), as added by this Act, take effect June 1, 1994.
30-67 SECTION 37. This Act takes effect September 1, 1993.
30-68 SECTION 38. The importance of this legislation and the
30-69 crowded condition of the calendars in both houses create an
30-70 emergency and an imperative public necessity that the
31-1 constitutional rule requiring bills to be read on three several
31-2 days in each house be suspended, and this rule is hereby suspended.
31-3 * * * * *
31-4 Austin,
31-5 Texas
31-6 April 28, 1993
31-7 Hon. Bob Bullock
31-8 President of the Senate
31-9 Sir:
31-10 We, your Committee on Health and Human Services to which was
31-11 referred S.B. No. 1062, have had the same under consideration, and
31-12 I am instructed to report it back to the Senate with the
31-13 recommendation that it do not pass, but that the Committee
31-14 Substitute adopted in lieu thereof do pass and be printed.
31-15 Zaffirini,
31-16 Chair
31-17 * * * * *
31-18 WITNESSES
31-19 FOR AGAINST ON
31-20 ___________________________________________________________________
31-21 Name: C. Stratton Hill, M.D. x
31-22 Representing: Tx Pain Society
31-23 City: Houston
31-24 -------------------------------------------------------------------
31-25 Name: Ann H. Calvert x
31-26 Representing: Tx Hospice Organization
31-27 City: Kerrville
31-28 -------------------------------------------------------------------
31-29 Name: Albert M. Brady x
31-30 Representing: Self
31-31 City: Ft Worth
31-32 -------------------------------------------------------------------
31-33 Name: Tom Smith x
31-34 Representing: Self
31-35 City: Austin
31-36 -------------------------------------------------------------------
31-37 Name: Terry Boucher x
31-38 Representing: Tx Osteopathic Medical Asso
31-39 City: Ft Worth
31-40 -------------------------------------------------------------------
31-41 Name: Alice Libby x
31-42 Representing: Self
31-43 City: San Antonio
31-44 -------------------------------------------------------------------
31-45 Name: James Hankins x
31-46 Representing: Self
31-47 City: Austin
31-48 -------------------------------------------------------------------
31-49 Name: Dr. James R. Winn x
31-50 Representing: Tx Medical Assn
31-51 City: Ft Worth
31-52 -------------------------------------------------------------------
31-53 Name: Cindy Jenkins x
31-54 Representing: Public Member Bd of Med
31-55 City: Stowell
31-56 -------------------------------------------------------------------
31-57 Name: Barbara June Coe x
31-58 Representing: Public Member Bd of Med Ex
31-59 City: Dallas
31-60 -------------------------------------------------------------------
31-61 Name: Lisa McGiffert x
31-62 Representing: Consumers Union
31-63 City: Austin
31-64 -------------------------------------------------------------------
31-65 Name: Paul Wageman x
31-66 Representing: Sunset Adv Comm
31-67 City: Dallas
31-68 -------------------------------------------------------------------
31-69 FOR AGAINST ON
31-70 ___________________________________________________________________
32-1 Name: James G. Barton x
32-2 Representing: Self
32-3 City: Tyler
32-4 -------------------------------------------------------------------
32-5 Name: Kimberly Barton x
32-6 Representing: Self
32-7 City: Houston
32-8 -------------------------------------------------------------------
32-9 Name: James H. Bocd x
32-10 Representing: Tx St Bd of Medical
32-11 City: Eden
32-12 -------------------------------------------------------------------
32-13 Name: Carla Ann Baker x
32-14 Representing: Self
32-15 City: Austin
32-16 -------------------------------------------------------------------
32-17 Name: Karen Lindell x
32-18 Representing: Self
32-19 City: Austin
32-20 -------------------------------------------------------------------
32-21 Name: C. J. Francisco, III x
32-22 Representing: Tx Medical Asso
32-23 City: Austin
32-24 -------------------------------------------------------------------
32-25 Name: Dan Bishop x
32-26 Representing: Tx Medical Asso
32-27 City: Austin
32-28 -------------------------------------------------------------------
32-29 Name: Joey Barton x
32-30 Representing: Self
32-31 City: Tyler
32-32 -------------------------------------------------------------------
32-33 Name: Karla Parks x
32-34 Representing: Self
32-35 City: Tyler
32-36 -------------------------------------------------------------------