By: Cain S.B. No. 1303
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the practice of medicine, including the rehabilitation
1-2 of impaired physicians, the creation and funding of the Physicians'
1-3 Peer Health Assistance Program, and the unlicensed practice of
1-4 medicine; providing a penalty.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subsection (a), Section 3.07, Medical Practice
1-7 Act (Article 4495b, Vernon's Texas Civil Statutes), is amended to
1-8 read as follows:
1-9 (a) A person practicing medicine in violation of this Act
1-10 commits an offense. Except as provided by this section, an offense
1-11 under this section is a Class A misdemeanor.
1-12 (1) If it be shown in the trial of a violation of this
1-13 Act that the person has once before been convicted of a violation
1-14 of this Act, on conviction the person shall be punished for a third
1-15 degree felony. Each day of violation constitutes a separate
1-16 offense. On final conviction of an offense under this section, a
1-17 person forfeits all rights and privileges conferred by virtue of
1-18 his licensure under this Act.
1-19 (2) A person practicing medicine without a valid
1-20 license or permit and who causes physical, psychological, or
1-21 financial harm to another by such practice shall, on conviction, be
1-22 punished for a third degree felony.
1-23 SECTION 2. Subchapter C, Medical Practice Act (Article
2-1 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
2-2 3.081 to read as follows:
2-3 Sec. 3.081. REHABILITATION ORDER. (a) The board, through
2-4 an agreed order or after a contested proceeding, may impose a
2-5 nondisciplinary rehabilitation order on any licensee or, as a
2-6 prerequisite for issuing a license, on any licensure applicant,
2-7 based on one or more of the following:
2-8 (1) intemperate use of drugs or alcohol directly
2-9 resulting from habituation or addiction caused by medical care or
2-10 treatment provided by another physician;
2-11 (2) self-reported intemperate use of drugs or alcohol
2-12 during the last five years immediately preceding the report which
2-13 could adversely affect the reporter's ability to practice medicine
2-14 safely, but only if the reporting individual has not previously
2-15 been the subject of a substance-abuse-related order of the board;
2-16 (3) judgment by a court of competent jurisdiction that
2-17 the individual is of unsound mind; or
2-18 (4) results from a mental or physical examination or
2-19 admissions by the individual indicating that the licensee or
2-20 applicant suffers from a potentially dangerous limitation or an
2-21 inability to practice medicine with reasonable skill and safety by
2-22 reason of illness or as a result of any physical or mental
2-23 condition.
2-24 (b) A rehabilitation order entered pursuant to this section
2-25 shall be a nondisciplinary private order and shall contain findings
3-1 of fact and conclusions of law. A rehabilitation order, if entered
3-2 by agreement, shall be an agreed disposition or settlement
3-3 agreement for purposes of civil litigation as provided for in
3-4 Section 4.02(i) of this Act and shall be exempt from the open
3-5 records law.
3-6 (c) A rehabilitation order entered pursuant to this section
3-7 may impose a revocation, cancellation, suspension, period of
3-8 probation or restriction, or any other terms and conditions
3-9 authorized under Section 4.12 of this Act or as otherwise agreed to
3-10 by the board and the individual subject to the order.
3-11 (d) The provisions of this section shall not prevent or
3-12 limit the authority of the board to take action to suspend a
3-13 license temporarily pursuant to Section 4.13 of this Act.
3-14 (e) Violation of a rehabilitation order entered pursuant to
3-15 this section may result in disciplinary action under the provisions
3-16 of this Act for contested matters or pursuant to the terms of the
3-17 agreed order. The violation of a rehabilitation order may be
3-18 grounds for disciplinary action based on unprofessional or
3-19 dishonorable conduct or any of the provisions of Section 3.08 of
3-20 this Act which may apply to the misconduct which resulted in
3-21 violation of the order. In addition, a violation of a
3-22 rehabilitation order may be grounds for temporary suspension of the
3-23 individual's license pursuant to Section 4.13 of this Act.
3-24 (f) The rehabilitation orders entered pursuant to this
3-25 section shall be kept in a confidential file which shall be subject
4-1 to an independent audit by state auditors or private auditors
4-2 contracted by the board to perform the audit. Audits may be
4-3 performed at any time at the direction of the board, but shall be
4-4 performed at least once every three years. The audit results shall
4-5 be reported in a manner so as to maintain the anonymity of all
4-6 licensees who are subject to rehabilitation orders and shall be a
4-7 public record. The audit shall be for the purpose of ensuring that
4-8 only qualified licensees are subject to rehabilitation orders.
4-9 SECTION 3. Subchapter C, Medical Practice Act (Article
4-10 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
4-11 3.11 to read as follows:
4-12 Sec. 3.11. PHYSICIANS' PEER HEALTH ASSISTANCE PROGRAM FUND.
4-13 (a) The Physicians' Peer Health Assistance Program Fund is created
4-14 as a special account in the state treasury.
4-15 (b) The annual registration fee may be increased to no more
4-16 than $10. Notwithstanding the provisions of Section 3.10(a) of
4-17 this Act, the additional fees collected pursuant to this section
4-18 shall be placed in the state treasury to the credit of the
4-19 Physicians' Peer Health Assistance Program Fund. The fees
4-20 deposited in the fund shall be credited to the appropriations of
4-21 the board and may be spent only as provided by the General
4-22 Appropriations Act, this Act, or other applicable statutes. Money
4-23 in the fund shall be used by the board and under its direction to
4-24 carry out and enforce the Physicians' Peer Health Assistance
4-25 Program. Distributions from the fund may be made only on written
5-1 approval of the executive director of the board or the executive
5-2 director's designee, and the comptroller shall on request of the
5-3 board from time to time draw warrants on the state treasury for the
5-4 amount specified in the request.
5-5 SECTION 4. Subchapter E, Medical Practice Act (Article 4495b
5-6 Vernon's Texas Civil Statutes), is amended by adding Section 5.095
5-7 to read as follows:
5-8 Sec. 5.095. PHYSICIANS' PEER HEALTH ASSISTANCE PROGRAM.
5-9 (a) The Physicians' Peer Health Assistance Program is created.
5-10 (b) At least annually, the board shall enter into contracts
5-11 and make grants from the Physicians' Peer Health Assistance Program
5-12 Fund to an established nonprofit statewide peer assistance program
5-13 organized by a health care entity as defined in Section
5-14 1.03(a)(5)(C) of this Act for physicians needing assistance in
5-15 dealing with their physical, emotional, or psychological problems
5-16 which could become detrimental to their ability to practice
5-17 medicine.
5-18 (c) To be eligible to receive a grant, a peer assistance
5-19 program shall:
5-20 (1) provide for the education of physicians in the
5-21 recognition and prevention of their physical, emotional, and
5-22 psychological problems and provide for intervention when necessary
5-23 or under circumstances which may be established by rule by the
5-24 board;
5-25 (2) offer assistance to a physician in identifying the
6-1 physician's physical, emotional, or psychological problems;
6-2 (3) evaluate the extent of the physical, emotional, or
6-3 psychological problem and refer the physician for appropriate
6-4 additional evaluation;
6-5 (4) monitor the status of physicians participating in
6-6 the program;
6-7 (5) provide counseling and support for a physician
6-8 referred for treatment and for the physician's family;
6-9 (6) agree to receive referrals from the board; and
6-10 (7) make its services available to all physician
6-11 licensees of the board.
6-12 (d) Any grant made by the board pursuant to Subsection (b)
6-13 of this section may be used only for educational and intervention
6-14 services and services related to the identification of the
6-15 physical, emotional, or psychological problem and the evaluation,
6-16 diagnosis, referral for evaluation, and the monitoring and
6-17 evaluation of the treatment of the physician participant. Costs of
6-18 treatment shall be the responsibility of the physician participant.
6-19 (e) No grant shall be made by the board pursuant to
6-20 Subsection (b) of this section until sufficient amounts have been
6-21 credited to the Physicians' Peer Health Assistance Program Fund.
6-22 (f) Nothing in this section shall be construed to create any
6-23 liability on the part of the board or the State of Texas for the
6-24 actions of the board in making grants to peer assistance programs,
6-25 and no civil action may be brought or maintained against the board
7-1 or the state for an injury alleged to have been the result of the
7-2 activities of any state-funded peer assistance program or the
7-3 result of an act or omission of a physician participating in or
7-4 referred by a state-funded peer assistance program.
7-5 (g) The board shall have the right to monitor and audit the
7-6 program of any of its grantees during the term of the grant and for
7-7 two years following the expiration of the grant. In the event of
7-8 an inappropriate use of funds from one of its grants or a violation
7-9 of the statute or rules relating to grants under this section, the
7-10 board, after notice and hearing, may:
7-11 (1) revoke, cancel, or suspend its grant to a program;
7-12 (2) require accounting or program changes as a
7-13 condition of continued participation; or
7-14 (3) request the repayment of all or a portion of the
7-15 grant and may institute a legal action in its own name through the
7-16 attorney general to recover such funds.
7-17 (h) The board may by rule require from a program information
7-18 edited so that it does not identify specific physician participants
7-19 concerning physician participants in the program who were not
7-20 referrals from the board.
7-21 (i) All information and reports received, gathered, created,
7-22 or maintained by the board or a peer assistance program on past or
7-23 present physician participants are privileged and confidential and
7-24 shall remain privileged and confidential and are not subject to
7-25 disclosure under the open records law and are not subject to
8-1 subpoena. This provision does not apply to a disciplinary order of
8-2 the board.
8-3 (j) A grantee under the Physicians' Peer Health Assistance
8-4 Program shall not be required to provide the board with the names
8-5 of past or present physician participants in the peer assistance
8-6 program who are not referrals from the board. However, the grantee
8-7 shall report to the board and any health care entity, if known, the
8-8 name and pertinent information of any physician participant whom
8-9 the grantee determines poses a continuing threat to the public
8-10 welfare through the practice of medicine.
8-11 SECTION 5. This Act takes effect September 1, 1995.
8-12 SECTION 6. The importance of this legislation and the
8-13 crowded condition of the calendars in both houses create an
8-14 emergency and an imperative public necessity that the
8-15 constitutional rule requiring bills to be read on three several
8-16 days in each house be suspended, and this rule is hereby suspended.