By Janek H.B. No. 610
75R3181 MCK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to disclosure of certain information contained in a
1-3 complaint against a physician that is filed with the Texas State
1-4 Board of Medical Examiners.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 4.02, Medical Practice Act (Article
1-7 4495b, Vernon's Texas Civil Statutes), is amended by amending
1-8 Subsections (g) and (m) and adding Subsection (o) to read as
1-9 follows:
1-10 (g) Unless it would jeopardize an investigation and except
1-11 as provided by Subsection (o) of this section, the board shall
1-12 notify the physician that a complaint has been filed. The notice
1-13 must include the name of the person filing the complaint and a
1-14 description of the nature of the complaint. The board shall make a
1-15 preliminary investigation of the complaint. The first
1-16 consideration of the board shall be whether the physician
1-17 constitutes a continuing threat to the public welfare.
1-18 (m) Except in the case of a suspension under Section 4.13 of
1-19 this Act or in accordance with the terms of an agreement between
1-20 the board and a licensee, no revocation, suspension, involuntary
1-21 modification, or disciplinary action relating to a license is
1-22 effective unless, before board proceedings are instituted:
1-23 (1) the board has served notice, in a manner
1-24 consistent with the requirements for service under Subsection (g)
2-1 of this section, to the physician of:
2-2 (A) the facts or conduct alleged to warrant the
2-3 intended action; and
2-4 (B) except as provided by Subsection (o) of this
2-5 section, the name of the person bringing the complaint; and
2-6 (2) the physician was given an opportunity to show
2-7 compliance with all requirements of law for the retention of the
2-8 license either in writing or through personal appearance at an
2-9 informal meeting with one or more representatives of the board, at
2-10 the option of the licensee.
2-11 (o) The requirement under this section to disclose to the
2-12 physician against whom a complaint has been filed the identity of
2-13 the person filing the complaint does not apply to disclosure of the
2-14 identity of a person who files a complaint as a member of a
2-15 professional review body engaged in peer review under Section 5.06
2-16 of this Act if the Health Care Quality Improvement Act of 1986 (42
2-17 U.S.C. Section 11101 et seq.) requires nondisclosure of the
2-18 identity of that person.
2-19 SECTION 2. Section 4.05(c), Medical Practice Act (Article
2-20 4495b, Vernon's Texas Civil Statutes), is amended to read as
2-21 follows:
2-22 (c) All complaints, adverse reports, investigation files,
2-23 other investigation reports, and other investigative information in
2-24 the possession of, received or gathered by the board or its
2-25 employees or agents relating to a licensee, an application for
2-26 license, or a criminal investigation or proceedings are privileged
2-27 and confidential and are not subject to discovery, subpoena, or
3-1 other means of legal compulsion for their release to anyone other
3-2 than the board or its employees or agents involved in licensee
3-3 discipline. Not later than 30 days after receiving a written
3-4 request from a licensee who is the subject of a formal complaint
3-5 initiated and filed under Section 4.03 of this Act or from the
3-6 licensee's counsel of record and subject to any other privileges or
3-7 restrictions set forth by rule, statute, or legal precedent, and
3-8 unless good cause is shown for delay, the board shall provide the
3-9 licensee with access to all information in its possession that the
3-10 board intends to offer into evidence in presenting its case in
3-11 chief at the contested hearing on the complaint, including the name
3-12 of the complainant unless disclosure of the complainant's identity
3-13 is precluded under Section 4.02(o) of this Act. However, the board
3-14 is not required to provide board investigative reports or
3-15 investigative memoranda, [the identity of nontestifying
3-16 complainants,] attorney-client communications, attorney-work
3-17 product, or other materials covered by a privilege as recognized by
3-18 the Texas Rules of Civil Procedure or the Texas Rules of Civil
3-19 Evidence. The furnishing of information shall not constitute a
3-20 waiver of privilege or confidentiality under this section, this
3-21 Act, or other applicable law. Investigative information in the
3-22 possession of the board or its employees or agents which relates to
3-23 licensee discipline may be disclosed to the appropriate licensing
3-24 authority in another state, the District of Columbia, or a
3-25 territory or country in which the licensee is licensed or has
3-26 applied for a license, or to a peer review committee reviewing an
3-27 application for privileges or the qualifications of the licensee
4-1 with respect to retaining privileges. If the investigative
4-2 information in the possession of the board or its employees or
4-3 agents indicates a crime may have been committed, the information
4-4 shall be reported to the proper law enforcement agency. The board
4-5 shall cooperate and assist all law enforcement agencies conducting
4-6 criminal investigations of licensees by providing information which
4-7 is relevant to the criminal investigation to the investigating
4-8 agency. Any information disclosed by the board to an investigative
4-9 agency shall remain confidential and shall not be disclosed by the
4-10 investigating agency except as necessary to further the
4-11 investigation. The board shall provide information upon the
4-12 written request of a health-care entity about a complaint filed
4-13 against a licensee that was resolved after investigation by a
4-14 disciplinary order of the board or by an agreed settlement and the
4-15 basis of and current status of any complaint under active
4-16 investigation. The board shall keep information on file about each
4-17 complaint filed with the board, consistent with this Act. If a
4-18 written complaint is filed with the board relating to a person
4-19 licensed by the board, the board, at least as often as quarterly
4-20 and until final determination of the action to be taken relative to
4-21 the complaint, shall notify the parties to the complaint consistent
4-22 with this Act of the status of the complaint unless the notice
4-23 would jeopardize an active investigation.
4-24 SECTION 3. Section 5.06(a), Medical Practice Act (Article
4-25 4495b, Vernon's Texas Civil Statutes), is amended to read as
4-26 follows:
4-27 (a) The provisions of the Health Care Quality Improvement
5-1 Act of 1986 (42 U.S.C. Section 11101 et seq.; Public Law No.
5-2 99-660) apply to a professional review action taken by a
5-3 professional review body in this state on or after September 1,
5-4 1987 [the effective date of this Act].
5-5 SECTION 4. This Act takes effect September 1, 1997, and
5-6 applies only to a complaint filed with the Texas State Board of
5-7 Medical Examiners on or after that date. A complaint filed before
5-8 that date is governed by the law in effect on the date that the
5-9 complaint was filed, and the former law is continued in effect for
5-10 that purpose.
5-11 SECTION 5. The importance of this legislation and the
5-12 crowded condition of the calendars in both houses create an
5-13 emergency and an imperative public necessity that the
5-14 constitutional rule requiring bills to be read on three several
5-15 days in each house be suspended, and this rule is hereby suspended.