1-1 By: Harris of Dallas S.B. No. 1080
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 8, Nays 0; 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. 1080 By: Shelley
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the regulation of podiatry and to the continuation and
1-22 functions of the Texas State Board of Podiatry Examiners; providing
1-23 a penalty.
1-24 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-25 SECTION 1. Article 4567, Revised Statutes, is amended to
1-26 read as follows:
1-27 Art. 4567. DEFINITIONS. (a) Any person shall be regarded
1-28 as practicing chiropody within the meaning of this law, and shall
1-29 be deemed and construed to be a chiropodist, who shall treat or
1-30 offer to treat any disease or disorder, physical injury or
1-31 deformity, or ailment of the human foot by any system or method and
1-32 charge therefor, directly or indirectly, money or other
1-33 compensation, or who shall publicly profess or claim to be a
1-34 chiropodist, podiatrist, pedicurist, foot specialist, doctor or use
1-35 any title, degree, letter, syllable, word or words that would tend
1-36 to lead the public to believe such person was a practitioner
1-37 authorized to practice or assume the duties incident to the
1-38 practice of chiropody.
1-39 (b) In this chapter:
1-40 (1) "Board" means the Texas State Board of Podiatry
1-41 Examiners.
1-42 (2) "Executive director" means the employee of the
1-43 board who manages the day-to-day operations of the board.
1-44 SECTION 2. Chapter 11, Title 71, Revised Statutes, is
1-45 amended by adding Article 4567e to read as follows:
1-46 Art. 4567e. ADMINISTRATIVE PENALTIES. (a) If a person
1-47 licensed under this chapter violates this chapter or a rule or
1-48 order adopted by the board under this chapter, the board may assess
1-49 an administrative penalty against the person as provided by this
1-50 section.
1-51 (b) The penalty for each violation may be in an amount not
1-52 to exceed $2,500. Each day a violation continues or occurs may be
1-53 considered a separate violation for purposes of penalty assessment.
1-54 (c) In determining the amount of the penalty, the executive
1-55 director shall consider:
1-56 (1) the seriousness of the violation, including the
1-57 nature, circumstances, extent, and gravity of the prohibited acts
1-58 and the hazard or potential hazard posed to the health or safety of
1-59 the public;
1-60 (2) the economic damage to property or the environment
1-61 caused by the violation;
1-62 (3) the history of previous violations;
1-63 (4) the amount necessary to deter future violations;
1-64 (5) efforts to correct the violation; and
1-65 (6) any other matter that justice may require.
1-66 (d) If, after investigation of a possible violation and the
1-67 facts surrounding that possible violation, the executive director
1-68 determines that a violation has occurred, the executive director
2-1 may issue a violation report stating the facts on which the
2-2 conclusion that a violation occurred is based, recommending that an
2-3 administrative penalty under this section be imposed on the person
2-4 charged and recommending the amount of that proposed penalty. The
2-5 executive director shall base the recommended amount of the
2-6 proposed penalty on the seriousness of the violation determined by
2-7 consideration of the factors set forth in Subsection (c) of this
2-8 article.
2-9 (e) Not later than the 14th day after the date on which the
2-10 report is issued, the executive director shall give written notice
2-11 of the report to the person charged. The notice shall include a
2-12 brief summary of the charges, a statement of the amount of the
2-13 penalty recommended, and a statement of the right of the person
2-14 charged to a hearing on the occurrence of the violation or the
2-15 amount of the penalty, or both the occurrence of the violation and
2-16 the amount of the penalty.
2-17 (f) Not later than the 20th day after the date on which
2-18 notice is received, the person charged may accept the determination
2-19 of the executive director made under Subsection (d) of this
2-20 article, including the recommended penalty, or make a written
2-21 request for a hearing on the determination.
2-22 (g) If the person charged with the violation accepts the
2-23 determination of the executive director, the board shall issue an
2-24 order approving the determination and ordering the payment of the
2-25 recommended penalty.
2-26 (h) If the person charged requests a hearing or fails to
2-27 timely respond to the notice, the executive director shall set a
2-28 hearing and give notice of the hearing. The hearing shall be held
2-29 by the State Office of Administrative Hearings. The State Office
2-30 of Administrative Hearings shall make findings of fact and
2-31 conclusions of law and promptly issue to the board a proposal for
2-32 decision as to the occurrence of the violation, including a
2-33 recommendation as to the amount of the proposed penalty if a
2-34 penalty is warranted. Based on the findings of fact, conclusions
2-35 of law, and recommendations of the hearing examiner, the board by
2-36 order may find a violation has occurred and may assess a penalty or
2-37 may find that no violation has occurred. All proceedings under
2-38 this subsection are subject to the Administrative Procedure and
2-39 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
2-40 Statutes) and its subsequent amendments.
2-41 (i) The executive director shall give notice of the board's
2-42 order to the person charged. The notice shall include:
2-43 (1) the findings of fact and conclusions of law
2-44 separately stated;
2-45 (2) the amount of the penalty ordered, if any;
2-46 (3) a statement of the right of the person charged to
2-47 judicial review of the board's order, if any; and
2-48 (4) other information required by law.
2-49 (j) Within the 30-day period immediately following the day
2-50 on which the order becomes final as provided by Section 16(c),
2-51 Administrative Procedure and Texas Register Act (Article 6252-13a,
2-52 Vernon's Texas Civil Statutes), and its subsequent amendments, the
2-53 person charged with the penalty shall:
2-54 (1) pay the penalty in full; or
2-55 (2) if the person files a petition for judicial review
2-56 contesting either the amount of the penalty or the fact of the
2-57 violation or contesting both the fact of the violation and the
2-58 amount of the penalty:
2-59 (A) forward the amount to the executive director
2-60 for placement in an escrow account; or
2-61 (B) in lieu of payment into escrow, post with
2-62 the executive director a supersedeas bond in a form approved by the
2-63 executive director for the amount of the penalty, the bond to be
2-64 effective until all judicial review of the order or decision is
2-65 final.
2-66 (k) If a person charged is financially unable to either
2-67 forward the amount of the penalty for placement in an escrow
2-68 account or post a supersedeas bond for the amount of the penalty,
2-69 the person may satisfy the requirements of Subsection (j)(2) of
2-70 this article by filing with the executive director an affidavit
3-1 sworn by the person charged, stating that the person is financially
3-2 unable to either forward the amount of the penalty or post a bond.
3-3 (l) Failure to forward the money to or to post the bond or
3-4 file the affidavit with the executive director within the time
3-5 provided by Subsection (j) of this article results in a waiver of
3-6 all legal rights to judicial review. Also, if the person charged
3-7 fails to pay the penalty in full as provided under Subsection
3-8 (j)(1) of this article or forward the money, post the bond, or file
3-9 the affidavit as provided by Subsection (j) or (k) of this article,
3-10 the executive director may forward the matter to the attorney
3-11 general for enforcement.
3-12 (m) Judicial review of the order or decision of the board
3-13 assessing the penalty shall be under the substantial evidence rule
3-14 and shall be instituted by filing a petition with a district court
3-15 in Travis County, as provided by Section 19, Administrative
3-16 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
3-17 Civil Statutes), and its subsequent amendments.
3-18 (n) If the penalty is reduced or not assessed by the court,
3-19 the executive director shall remit to the person charged the
3-20 appropriate amount plus accrued interest if the penalty has been
3-21 paid or shall execute a release of the bond if a supersedeas bond
3-22 has been posted. The accrued interest on amounts remitted by the
3-23 executive director under this subsection shall be paid at a rate
3-24 equal to the rate charged on loans to depository institutions by
3-25 the New York Federal Reserve Bank and shall be paid for the period
3-26 beginning on the date the penalty is paid to the executive director
3-27 under Subsection (j) of this article and ending on the date the
3-28 penalty is remitted.
3-29 (o) A penalty collected under this section for a violation
3-30 by a person licensed or permitted under this chapter shall be
3-31 deposited in the general revenue fund.
3-32 SECTION 3. Article 4568, Revised Statutes, is amended by
3-33 amending Subsections (a) through (f) and adding Subsections (m)
3-34 through (r) to read as follows:
3-35 (a) The Texas State Board of Podiatry Examiners shall
3-36 consist of nine (9) members. Six (6) members must be reputable
3-37 practicing podiatrists who have resided in this state and who have
3-38 been actively engaged in the practice of podiatry for five (5)
3-39 years immediately preceding their appointment. Three (3) members
3-40 must be representatives of the general public. However, a public
3-41 member may not participate in any part of the examination process
3-42 for applicants for a license issued by the Board that requires
3-43 knowledge of the practice of podiatry. Appointments to the Board
3-44 shall be made by the Governor without regard to the race, color,
3-45 disability, <creed,> sex, religion, or national origin of the
3-46 appointees.
3-47 (b) A person is not eligible for appointment as a public
3-48 member if the person or the person's spouse:
3-49 (1) is registered, certified, or licensed by an
3-50 occupational regulatory agency in the field of health care;
3-51 (2) is employed by or participates in the management
3-52 of a <an agency or> business entity or other organization regulated
3-53 by the Board or receiving funds from the Board <that provides
3-54 health-care services or that sells, manufactures, or distributes
3-55 health-care supplies or equipment>; <or>
3-56 (3) owns or controls, directly or indirectly, more
3-57 than a 10 percent interest in a business entity or other
3-58 organization regulated by the Board or receiving funds from the
3-59 Board; or
3-60 (4) uses or receives a substantial amount of tangible
3-61 goods, services, or funds from the Board, other than compensation
3-62 or reimbursement authorized by law for Board membership,
3-63 attendance, or expenses <has, other than as a consumer, a financial
3-64 interest in a business entity that provides health-care services or
3-65 that sells, manufactures, or distributes health-care supplies or
3-66 equipment>.
3-67 (c)(1) An officer, employee, or paid consultant of a Texas
3-68 trade association in the field of health services may not be a
3-69 member or employee of the Board who is exempt from the state's
3-70 position classification plan or is compensated at or above the
4-1 amount prescribed by the General Appropriations Act for step 1,
4-2 salary group 17, of the position classification salary schedule.
4-3 (2) A person who is the spouse of an officer, manager,
4-4 or paid consultant of a Texas trade association in the field of
4-5 health services may not be a Board member and may not be an
4-6 employee of the Board who is exempt from the state's position
4-7 classification plan or is compensated at or above the amount
4-8 prescribed by the General Appropriations Act for step 1, salary
4-9 group 17, of the position classification salary schedule.
4-10 (3) For the purposes of this section, a Texas trade
4-11 association is a nonprofit, cooperative, and voluntarily joined
4-12 association of business or professional competitors in this state
4-13 designed to assist its members and its industry or profession in
4-14 dealing with mutual business or professional problems and in
4-15 promoting their common interest <A member or employee of the Board
4-16 may not be an officer, employee, or paid consultant of a statewide
4-17 or national trade association in the health-care industry. A
4-18 member or employee of the Board may not be related within the
4-19 second degree by affinity or consanguinity, as determined under
4-20 Article 5996h, Revised Statutes, to a person who is an officer,
4-21 employee, or paid consultant of a statewide or national trade
4-22 association in the health-care industry>.
4-23 (d) A person may not serve as a member of the Board or act
4-24 as the general counsel to the Board if the person is required to
4-25 register as a lobbyist under Chapter 305, Government Code, and its
4-26 subsequent amendments, because of the person's activities for
4-27 compensation on behalf of a profession related to the operation of
4-28 the Board <who is required to register as a lobbyist under Chapter
4-29 305, Government Code, may not serve as a member of the Board or act
4-30 as the general counsel to the Board>.
4-31 (e) It is a ground for removal from the Board if a member:
4-32 (1) does not have at the time of appointment the
4-33 qualifications required by Subsection <Section> (a) or (b) of this
4-34 article for appointment to the Board;
4-35 (2) does not maintain during service on the Board the
4-36 qualifications required by Subsection (a) or (b) of this article;
4-37 (3) <(2)> violates a prohibition established by
4-38 Subsection <Section> (c) or (d) of this article; <or>
4-39 (4) cannot discharge the member's duties for a
4-40 substantial part of the term for which the member is appointed
4-41 because of illness or disability; or
4-42 (5) is absent from more than half of the regularly
4-43 scheduled board meetings that the member is eligible to attend
4-44 during a calendar year unless the absence is excused by a majority
4-45 vote of the Board
4-46 <(3) fails to attend at least half of the regularly
4-47 scheduled Board meetings held in a calendar year, excluding
4-48 meetings held while the person was not a Board member>.
4-49 (f)(1) The validity of an action of the Board is not
4-50 affected by the fact that it is taken when a ground for removal of
4-51 a Board member exists.
4-52 (2) If the executive director has knowledge that a
4-53 potential ground for removal exists, the executive director shall
4-54 notify the presiding officer of the Board of the ground. The
4-55 presiding officer shall then notify the governor that a potential
4-56 ground for removal exists <If a ground for removal of a member of
4-57 the Board exists, the Board's actions during the existence of the
4-58 ground for removal are not invalid for that reason>.
4-59 (m) The Board shall file annually with the governor and the
4-60 presiding officer of each house of the legislature a complete and
4-61 detailed written report accounting for all funds received and
4-62 disbursed by the Board during the preceding fiscal year. The
4-63 annual report must be in the form and reported in the time provided
4-64 by the General Appropriations Act.
4-65 (n) The executive director or the director's designee shall
4-66 develop an intraagency career ladder program. The program shall
4-67 require intraagency posting of all non-entry-level positions
4-68 concurrently with any public posting.
4-69 (o) The executive director or the director's designee shall
4-70 develop a system of annual performance evaluations based on
5-1 measurable job tasks. All merit pay for Board employees must be
5-2 based on the system established under this subsection.
5-3 (p) The Board shall develop and implement policies that
5-4 clearly define the respective responsibilities of the Board and the
5-5 staff of the Board.
5-6 (q) The Board shall prepare and maintain a written plan that
5-7 describes how a person who does not speak English can be provided
5-8 reasonable access to the Board's programs. The Board shall also
5-9 comply with federal and state laws for program and facility
5-10 accessibility.
5-11 (r) The Board shall develop and implement policies that
5-12 provide the public with a reasonable opportunity to appear before
5-13 the Board and to speak on any issue under the jurisdiction of the
5-14 Board.
5-15 SECTION 4. Article 4568b, Revised Statutes, is amended to
5-16 read as follows:
5-17 Art. 4568b. Sunset provision. The Texas State Board of
5-18 Podiatry Examiners is subject to Chapter 325, Government Code
5-19 (Texas Sunset Act). Unless continued in existence as provided by
5-20 that chapter, the board is abolished September 1, 2005 <1993>.
5-21 SECTION 5. Chapter 11, Title 71, Revised Statutes, is
5-22 amended by adding Article 4568c to read as follows:
5-23 Art. 4568c. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. (a) The
5-24 executive director or the director's designee shall prepare and
5-25 maintain a written policy statement to assure implementation of a
5-26 program of equal employment opportunity under which all personnel
5-27 transactions are made without regard to race, color, disability,
5-28 sex, religion, age, or national origin. The policy statement must
5-29 include:
5-30 (1) personnel policies, including policies relating to
5-31 recruitment, evaluation, selection, application, training, and
5-32 promotion of personnel that are in compliance with the Commission
5-33 on Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes)
5-34 and its subsequent amendments;
5-35 (2) a comprehensive analysis of the board work force
5-36 that meets federal and state guidelines;
5-37 (3) procedures by which a determination can be made of
5-38 significant underutilization in the board work force of all persons
5-39 for whom federal or state guidelines encourage a more equitable
5-40 balance; and
5-41 (4) reasonable methods to appropriately address those
5-42 areas of underutilization.
5-43 (b) A policy statement prepared under Subsection (a) of this
5-44 article must cover an annual period, be updated annually, be
5-45 reviewed by the Commission on Human Rights for compliance with
5-46 Subsection (a)(1) of this article, and be filed with the governor's
5-47 office.
5-48 (c) The governor's office shall deliver a biennial report to
5-49 the legislature based on the information received under Subsection
5-50 (b) of this article. The report may be made separately or as part
5-51 of other biennial reports to the legislature.
5-52 SECTION 6. Chapter 11, Title 71, Revised Statutes, is
5-53 amended by adding Article 4568d to read as follows:
5-54 Art. 4568d. TRAINING; STANDARDS OF CONDUCT; INFORMATION.
5-55 (a) Each board member shall comply with the board member training
5-56 requirements established by any other state agency that is given
5-57 authority to establish the requirements for the board.
5-58 (b) The board shall provide to its members and employees, as
5-59 often as necessary, information regarding their qualifications for
5-60 office or employment under this chapter and their responsibilities
5-61 under applicable laws relating to standards of conduct for state
5-62 officers or employees.
5-63 SECTION 7. Subsections (c), (i), and (k), Article 4569,
5-64 Revised Statutes, are amended to read as follows:
5-65 (c) The examinations shall be written and practical and in
5-66 the English language, and all applicants that possess the
5-67 qualifications required for an examination and who shall pass the
5-68 examinations prescribed with a general average of seventy-five per
5-69 cent (75%) in all subjects and not less than sixty per cent (60%)
5-70 in any one subject shall be issued a license by the Board to
6-1 practice podiatry in this State. The Board shall have the
6-2 examination validated by an independent testing professional.
6-3 (i) Not later than the 30th day after the date on which a
6-4 licensing examination is administered under this chapter, the
6-5 secretary-treasurer of the Board shall notify each examinee of the
6-6 results of the examination. However, if an examination is graded
6-7 or reviewed by a national testing service, the secretary-treasurer
6-8 of the Board shall notify examinees of the results of the
6-9 examination not later than the 14th day after the date on which the
6-10 Board receives the results from the testing service. If the notice
6-11 of examination results graded or reviewed by a national testing
6-12 service will be delayed for longer than 90 days after the
6-13 examination date, the secretary-treasurer of the Board shall notify
6-14 the examinee of the reason for the delay before the 90th day <The
6-15 secretary-treasurer of the Board shall report to each applicant the
6-16 grade made in each subject and the general average on the
6-17 examination within sixty (60) days from the date of the
6-18 examination>.
6-19 (k) If requested in writing by a person who fails the
6-20 licensing examination administered under this chapter, the Board
6-21 shall furnish the person with an analysis of the person's
6-22 performance on the examination.
6-23 SECTION 8. Section 1, Article 4571, Revised Statutes, is
6-24 amended by amending Subsections (c), (d), (e), (g), and (h) and
6-25 adding Subsection (i) to read as follows:
6-26 (c) In order to ensure the continuing competence of persons
6-27 licensed to practice podiatry, the Texas State Board of Podiatry
6-28 Examiners may adopt and administer rules requiring continuing
6-29 education<, not to exceed 25 hours per licensee per year,> as a
6-30 prerequisite to annual license renewal. If adopted by the Board,
6-31 such rules shall establish standards of accreditation for
6-32 continuing education programs or courses of study, and only those
6-33 programs or courses of study which are inspected and accredited by
6-34 the Board shall apply toward the satisfaction of such continuing
6-35 education requirements. The Board is hereby authorized to impose a
6-36 fee, not to exceed $25 per licensee per year, to cover the cost of
6-37 administration of any continuing education rules which may be
6-38 adopted pursuant to this Section.
6-39 (d) A person may renew his unexpired license by <satisfying
6-40 any continuing education requirements pursuant to Subsection (c) of
6-41 this Section and by> paying to the Board before the expiration date
6-42 of the license the required renewal fee.
6-43 (e) If a person's license has been expired for 90 days or
6-44 less, the person may renew the license by <satisfying any
6-45 continuing education requirements pursuant to Subsection (c) of
6-46 this Section and by> paying to the Board the required renewal fee
6-47 and a fee that is one-half of the examination fee for the license.
6-48 (g) If a person's license has been expired for more than 90
6-49 days but less than one year <two years>, the person may renew the
6-50 license by <satisfying any continuing education requirements
6-51 pursuant to Subsection (c) of this Section and by> paying to the
6-52 Board all unpaid renewal fees and a fee that is equal to the
6-53 examination fee for the license.
6-54 (h) If a person's license has been expired for one year or
6-55 longer <two years or more>, the person may not renew the license.
6-56 The person may obtain a new license by submitting to reexamination
6-57 and complying with the requirements and procedures for obtaining an
6-58 original license. However, the Board may renew without
6-59 reexamination an expired license of a person who was licensed in
6-60 this state, moved to another state, and is currently licensed and
6-61 has been in practice in the other state for the two years preceding
6-62 application. The person must pay to the Board a fee that is equal
6-63 to the examination fee for the license.
6-64 (i) At least 30 days before the expiration of a person's
6-65 license, the Board shall send written notice of the impending
6-66 license expiration to the person at the licensee's last known
6-67 address according to the records of the Board.
6-68 SECTION 9. Article 4571, Revised Statutes, is amended by
6-69 adding Section 7 to read as follows:
6-70 Sec. 7. The Board by rule may provide for a person who holds
7-1 a license under this chapter to be placed on inactive status.
7-2 Rules adopted under this section shall include a time limit for a
7-3 license holder to remain on inactive status.
7-4 SECTION 10. Chapter 11, Title 71, Revised Statutes, is
7-5 amended by adding Article 4571a to read as follows:
7-6 Art. 4571a. PROVISIONAL LICENSES. (a) On application, the
7-7 board shall grant a provisional license to practice podiatry. An
7-8 applicant for a provisional license under this section must:
7-9 (1) be licensed in good standing as a podiatrist in
7-10 another state, the District of Columbia, or a territory of the
7-11 United States that has licensing requirements that are
7-12 substantially equivalent to the requirements of this chapter;
7-13 (2) have passed a national or other examination
7-14 recognized by the board relating to the practice of podiatry; and
7-15 (3) be sponsored by a person licensed by the board
7-16 under this chapter with whom the provisional license holder may
7-17 practice under this article.
7-18 (b) An applicant for a provisional license may be excused
7-19 from the requirement of Subsection (a)(3) of this article if the
7-20 board determines that compliance with that subsection constitutes a
7-21 hardship to the applicant.
7-22 (c) A provisional license is valid until the date the board
7-23 approves or denies the provisional license holder's application for
7-24 a license. The board shall issue a license under this chapter to
7-25 the holder of a provisional license under this section if:
7-26 (1) the provisional license holder passes the
7-27 examination required by Article 4569, Revised Statutes, and its
7-28 subsequent amendments;
7-29 (2) the board verifies that the provisional license
7-30 holder has the academic and experience requirements for a license
7-31 under this chapter; and
7-32 (3) the provisional license holder satisfies any other
7-33 license requirements under this chapter.
7-34 (d) The board must complete the processing of a provisional
7-35 license holder's application for a license not later than the 180th
7-36 day after the date the provisional license is issued.
7-37 SECTION 11. Chapter 11, Title 71, Revised Statutes, is
7-38 amended by adding Article 4571b to read as follows:
7-39 Art. 4571b. TEMPORARY LICENSE. (a) The board by rule may
7-40 adopt a procedure for the issuance of a temporary license to an
7-41 applicant other than an applicant who applies under Article 4571a,
7-42 Revised Statutes, and its subsequent amendments.
7-43 (b) Rules adopted under this article shall establish the
7-44 criteria for issuance of a temporary license and shall establish a
7-45 maximum period during which a temporary license is valid.
7-46 SECTION 12. Subsections (a) and (b), Article 4573, Revised
7-47 Statutes, are amended to read as follows:
7-48 (a) The Board shall maintain an information file about each
7-49 complaint filed with the Board <relating to a licensee>. If a
7-50 written complaint is filed with the Board <relating to a licensee>,
7-51 the Board, at least <as frequently as> quarterly and until final
7-52 disposition of the complaint, shall notify the parties to the
7-53 complaint of the status of the complaint <until final disposition>
7-54 unless the notification would jeopardize an undercover
7-55 investigation.
7-56 (b) The Board shall revoke or suspend a license, place on
7-57 probation a person whose license has been suspended <probate a
7-58 license suspension>, or reprimand a licensee for violation of the
7-59 law regulating the practice of podiatry or a rule adopted by the
7-60 Board. If a license suspension is probated, the Board may require
7-61 the license holder to:
7-62 (1) report regularly to the Board on matters that are
7-63 the basis of the probation;
7-64 (2) limit practice to the areas prescribed by the
7-65 Board; or
7-66 (3) continue or review continuing professional
7-67 education until the license holder attains a degree of skill
7-68 satisfactory to the Board in those areas that are the basis of the
7-69 probation.
7-70 SECTION 13. Chapter 11, Title 71, Revised Statutes, is
8-1 amended by adding Article 4573c to read as follows:
8-2 Art. 4573c. PODIATRIC PEER REVIEW COMMITTEES
8-3 Sec. 1. In this article:
8-4 (1) "Podiatric peer review committee" means the
8-5 podiatric peer review, judicial, or grievance committee of a
8-6 podiatric medical society or association that is authorized to
8-7 evaluate the quality of podiatry services or the competence of a
8-8 podiatrist. A podiatric peer review committee includes the
8-9 members, employees, and agents of the committee.
8-10 (2) "Podiatric medical society or association" means a
8-11 membership organization of podiatrists that is incorporated under
8-12 the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq.,
8-13 Vernon's Texas Civil Statutes) or that is exempt from the payment
8-14 of federal income taxes under Section 501(c) of the Internal
8-15 Revenue Code of 1986 (26 U.S.C. Section 501(c)).
8-16 Sec. 2. Except for an action involving fraud, conspiracy, or
8-17 malice, a podiatric peer review committee is immune from liability
8-18 and may not be subject to a suit for damages for any act arising
8-19 from the performance of the committee's duties in investigating a
8-20 disagreement or complaint, holding a hearing to determine facts, or
8-21 making an evaluation, recommendation, decision, or award involving
8-22 a podiatrist who is a member of the podiatric medical society or
8-23 association or another podiatrist, podiatric patient, or third
8-24 party who requests the services of the committee.
8-25 Sec. 3. Except as otherwise provided by this article, the
8-26 proceedings and records of a podiatric peer review committee are
8-27 confidential and all communications made to a podiatric peer review
8-28 committee are privileged. However, if a judge makes a preliminary
8-29 finding that the proceedings, records, or communications of a
8-30 podiatric peer review committee are relevant to an anticompetitive
8-31 action or to an action brought under federal civil rights laws, the
8-32 proceedings, records, or communications are not considered to be
8-33 confidential to the extent the proceedings, records, or
8-34 communications are determined to be relevant to that action.
8-35 Sec. 4. Written or oral communications made to a podiatric
8-36 peer review committee and the records and proceedings of a peer
8-37 review committee may be disclosed to:
8-38 (1) another podiatric peer review committee;
8-39 (2) an appropriate state or federal agency;
8-40 (3) a national accreditation body; or
8-41 (4) the Texas State Board of Podiatry Examiners or the
8-42 state board of registration or licensure of podiatrists in another
8-43 state.
8-44 Sec. 5. (a) The disclosure of confidential podiatric peer
8-45 review committee information to the affected podiatrist that is
8-46 relevant to the matter under review by the committee does not
8-47 constitute a waiver of the confidentiality provisions of this
8-48 article.
8-49 (b) If a podiatric peer review committee takes action that
8-50 could result in censure or suspension, restriction, limitation, or
8-51 revocation of a license by the Texas State Board of Podiatry
8-52 Examiners or a denial of membership or privileges in a health care
8-53 entity, the affected podiatrist shall be provided a written copy of
8-54 the recommendation of the podiatric peer review committee and a
8-55 copy of the final decision, including a statement of the basis for
8-56 the decision.
8-57 Sec. 6. (a) Unless disclosure is required or authorized by
8-58 law, the records or determinations of a podiatric peer review
8-59 committee or communications made to a podiatric peer review
8-60 committee are not subject to subpoena or discovery and are not
8-61 admissible as evidence in a civil or administrative proceeding.
8-62 However, a committee may in writing waive the privilege of
8-63 confidentiality.
8-64 (b) The evidentiary privilege under this article may be
8-65 invoked by any person or organization in a civil or administrative
8-66 proceeding unless the person or organization has secured a waiver
8-67 of the privilege executed in writing by the chairman,
8-68 vice-chairman, or secretary of the affected podiatric peer review
8-69 committee.
8-70 (c) If a podiatric peer review committee, a person
9-1 participating in peer review, or an organization named as a
9-2 defendant in any civil action filed as a result of participating in
9-3 peer review is permitted to use confidential information in the
9-4 defendant's defense or in a claim or suit under Section 9 of this
9-5 article, the plaintiff in that proceeding also may disclose the
9-6 records or determinations of a peer review committee or
9-7 communications made to a peer review committee to rebut the
9-8 defendant.
9-9 (d) A person who seeks access to privileged information must
9-10 plead and prove waiver of the privilege.
9-11 (e) A member, employee, or agent of a podiatric peer review
9-12 committee who provides access to otherwise privileged
9-13 communications or records in cooperation with a law enforcement
9-14 authority in a criminal investigation has not waived any privilege
9-15 established under this article.
9-16 Sec. 7. (a) All persons, including the governing body and
9-17 medical staff of a health care entity, shall comply with a subpoena
9-18 issued by the Texas State Board of Podiatry Examiners for documents
9-19 or information.
9-20 (b) The disclosure of documents or information under a
9-21 subpoena does not constitute a waiver of the confidentiality
9-22 privilege associated with a podiatric peer review committee
9-23 proceeding.
9-24 (c) Failure to comply with a subpoena constitutes grounds
9-25 for disciplinary action against the facility or individual by the
9-26 Texas State Board of Podiatry Examiners.
9-27 Sec. 8. A person, health care entity, or podiatric peer
9-28 review committee that participates in podiatric peer review
9-29 activity or furnishes records, information, or assistance to a
9-30 podiatric peer review committee or to the Texas State Board of
9-31 Podiatry Examiners is immune from any civil liability arising from
9-32 those acts if the acts were made in good faith and without malice.
9-33 Sec. 9. A podiatric peer review committee, a person
9-34 participating in peer review, or another entity named as a
9-35 defendant in any civil action filed as a result of the defendant's
9-36 participation in peer review may file a counterclaim in the pending
9-37 action or may prove a cause of action in a subsequent suit to
9-38 recover defense costs, including court costs, attorney fees, and
9-39 damages incurred as a result of the civil action, if the
9-40 plaintiff's original suit is determined to be frivolous or to have
9-41 been brought in bad faith.
9-42 SECTION 14. Chapter 11, Title 71, Revised Statutes, is
9-43 amended by adding Article 4573d to read as follows:
9-44 Art. 4573d. INFORMAL PROCEEDINGS. (a) The board by rule
9-45 shall adopt procedures governing:
9-46 (1) informal disposition of a contested case under
9-47 Section 13(e), Administrative Procedure and Texas Register Act
9-48 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
9-49 subsequent amendments; and
9-50 (2) informal proceedings held in compliance with
9-51 Section 18(c), Administrative Procedure and Texas Register Act
9-52 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
9-53 subsequent amendments.
9-54 (b) Rules adopted under this article must provide the
9-55 complainant and the licensee an opportunity to be heard and must
9-56 require the presence of a representative of the office of the
9-57 attorney general to advise the board or the board's employees.
9-58 SECTION 15. Subsection (a), Article 4574, Revised Statutes,
9-59 is amended to read as follows:
9-60 (a) The board by rule shall establish reasonable and
9-61 necessary fees so that the fees, in the aggregate, produce
9-62 sufficient revenue to cover the cost of administering this chapter.
9-63 The fees set by the board may be adjusted so that the total fees
9-64 collected are sufficient to meet the expenses of administering this
9-65 chapter. The board may not set a fee for an amount less than the
9-66 amount of that fee on September 1, 1993. <for the administration of
9-67 this article in amounts not to exceed:>
9-68 <1. Examination ........................... $500>
9-69 <2. Reexamination .......................... 500>
9-70 <3. Renewal ................................ 200>
10-1 <4. Duplicate license ....................... 50>
10-2 SECTION 16. Article 4575c, Revised Statutes, is amended to
10-3 read as follows:
10-4 Art. 4575c. Consumer information. (a) The board shall
10-5 prepare information of public <consumer> interest describing the
10-6 <regulatory> functions of the board and the board's procedures by
10-7 which <consumer> complaints are filed with and resolved by the
10-8 board. The board shall make the information available to the
10-9 <general> public and appropriate state agencies.
10-10 (b) The board by rule shall establish methods by which
10-11 consumers and service recipients are notified of the name, mailing
10-12 address, and telephone number of the board for the purpose of
10-13 directing complaints to the board. The board may provide for that
10-14 notification:
10-15 (1) on each registration form, application, or written
10-16 contract for services of an individual or entity regulated by the
10-17 board;
10-18 (2) on a sign prominently displayed in the place of
10-19 business of each individual or entity regulated by the board; or
10-20 (3) in a bill for service provided by an individual or
10-21 entity regulated by the board <Each written contract for services
10-22 in this state of a licensed podiatrist shall contain the name,
10-23 mailing address, and telephone number of the board>.
10-24 (c) The board shall list along with its regular telephone
10-25 number the toll-free telephone number that may be called to present
10-26 a complaint about a health professional if the toll-free number is
10-27 established under other state law <There shall at all times be
10-28 prominently displayed in the place of business of each licensed
10-29 podiatrist a sign containing the name, mailing address, and
10-30 telephone number of the board and a statement informing consumers
10-31 that complaints against licensees may be directed to the board>.
10-32 SECTION 17. Subsection (j), Article 4569, Revised Statutes,
10-33 and Subsection (g), Article 4570, Revised Statutes, are repealed.
10-34 SECTION 18. A contested case pending before the Texas State
10-35 Board of Podiatry Examiners on the effective date of this Act is
10-36 transferred to the State Office of Administrative Hearings and
10-37 actions taken in the proceeding are treated as if taken by the
10-38 State Office of Administrative Hearings.
10-39 SECTION 19. The changes in law made by Section 3 of this Act
10-40 relating to the requirements for membership on the Texas State
10-41 Board of Podiatry Examiners apply only to an appointment made on or
10-42 after the effective date of this Act, and do not affect the
10-43 entitlement of a member serving on the board on the effective date
10-44 of this Act to continue to hold office for the remainder of the
10-45 term for which the person was appointed.
10-46 SECTION 20. This Act takes effect September 1, 1993.
10-47 SECTION 21. The importance of this legislation and the
10-48 crowded condition of the calendars in both houses create an
10-49 emergency and an imperative public necessity that the
10-50 constitutional rule requiring bills to be read on three several
10-51 days in each house be suspended, and this rule is hereby suspended.
10-52 * * * * *
10-53 Austin,
10-54 Texas
10-55 April 28, 1993
10-56 Hon. Bob Bullock
10-57 President of the Senate
10-58 Sir:
10-59 We, your Committee on Health and Human Services to which was
10-60 referred S.B. No. 1080, have had the same under consideration, and
10-61 I am instructed to report it back to the Senate with the
10-62 recommendation that it do not pass, but that the Committee
10-63 Substitute adopted in lieu thereof do pass and be printed.
10-64 Zaffirini,
10-65 Chair
10-66 * * * * *
10-67 WITNESSES
10-68 FOR AGAINST ON
10-69 ___________________________________________________________________
10-70 Name: Dan Canada x
11-1 Representing: TX Pediatric Medical Asso
11-2 City: Austin
11-3 -------------------------------------------------------------------
11-4 Name: Joey Longley x
11-5 Representing: Sunset Commission
11-6 City: Austin
11-7 -------------------------------------------------------------------