By Serna H.B. No. 1390 75R5526 GJH-F A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the regulation of homeopathic medicine; providing 1-3 penalties. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 ARTICLE 1. GENERAL PROVISIONS 1-6 SECTION 1.01. DEFINITIONS. In this Act: 1-7 (1) "Acupuncture" means a medical therapy in which 1-8 ailments are diagnosed and treated by the specific application of 1-9 needles, heat, or physical and electromagnetic impulses or currents 1-10 to specific anatomic points on the body. 1-11 (2) "Board" means the Board of Homeopathic Medical 1-12 Examiners. 1-13 (3) "Chelation therapy" means medical therapy to 1-14 restore cellular homeostasis through the use of intravenous, 1-15 metal-binding, and bioinorganic agents, including 1-16 ethylenediaminetetraacetic acid. Except for its use in the 1-17 treatment of heavy metal poisoning, chelation therapy is an 1-18 experimental form of treatment. 1-19 (4) "Homeopathy" means a system of medicine employing 1-20 substances of animal, vegetable, or mineral origin that are given 1-21 in microdosages and prepared according to homeopathic pharmacology, 1-22 in accordance with the principle that a substance that produces 1-23 symptoms in a healthy person can cure those symptoms in an ill 1-24 person. The practice of homeopathy includes acupuncture, 2-1 neuromuscular integration, orthomolecular therapy, nutrition, 2-2 chelation therapy, pharmaceutical medicine, and minor surgery. 2-3 (5) "Medical assistant" means an unlicensed person who 2-4 has completed an educational program approved by the board, who 2-5 assists in a homeopathic practice under the supervision of a doctor 2-6 of homeopathy, and who performs delegated procedures commensurate 2-7 with the assistant's education and training, but who does not 2-8 diagnose, interpret, design, or modify established treatment 2-9 programs. 2-10 (6) "Neuromuscular integration" means musculoskeletal 2-11 therapy to improve physiological function by normalizing body 2-12 structure. 2-13 (7) "Orthomolecular therapy" means therapy to provide 2-14 the optimum concentration of substances normally present in the 2-15 human body, including vitamins, minerals, amino acids, and enzymes. 2-16 ARTICLE 2. BOARD OF HOMEOPATHIC MEDICAL EXAMINERS 2-17 SECTION 2.01. BOARD; TERMS. (a) The Board of Homeopathic 2-18 Medical Examiners consists of six members appointed by the 2-19 governor. 2-20 (b) Members of the board serve staggered six-year terms, 2-21 with the terms of two members expiring on February 1 of each 2-22 odd-numbered year. 2-23 (c) The board consists of two public members and four 2-24 homeopathic physicians licensed under this Act to practice 2-25 homeopathic medicine. 2-26 (d) Board members may be removed by the governor under 2-27 Section 9, Article XV, Texas Constitution. 3-1 SECTION 2.02. MEETINGS; ORGANIZATION; COMPENSATION. (a) 3-2 The board shall hold an annual meeting during January each year and 3-3 may hold other meetings at times and places determined by a 3-4 majority of the board on 10 days' written notice to each member. 3-5 (b) A majority vote of a quorum present at any meeting 3-6 governs all actions taken, except that a license may be issued 3-7 under this Act only on the vote of a majority of the full board. 3-8 (c) At each annual meeting, the board shall select from 3-9 among its members a president and vice president, who shall serve 3-10 until their successors are chosen. 3-11 (d) A board member is not entitled to compensation but may 3-12 be reimbursed for expenses incurred for service on the board as 3-13 provided by the General Appropriations Act. 3-14 SECTION 2.03. BOARD POWERS AND DUTIES. The board shall: 3-15 (1) administer and enforce this Act; 3-16 (2) conduct examinations for licenses under this Act; 3-17 (3) issue licenses; 3-18 (4) conduct hearings; 3-19 (5) place homeopathic physicians on probation or 3-20 revoke or suspend licenses; 3-21 (6) maintain a roster of all homeopathic physicians 3-22 licensed under this Act; 3-23 (7) adopt a seal for the use of the board; 3-24 (8) contract with the Texas Department of Health for 3-25 administrative and recordkeeping services; 3-26 (9) adopt fees that do not exceed the amount the board 3-27 determines to be necessary to carry out its duties; 4-1 (10) adopt rules regarding the regulation and the 4-2 qualifications of medical assistants; 4-3 (11) adopt rules necessary for the administration of 4-4 this Act; 4-5 (12) accredit educational institutions in this state 4-6 that grant the degree of doctor of medicine in homeopathy; 4-7 (13) hire permanent or temporary personnel to carry 4-8 out the purposes of this Act; 4-9 (14) hire or contract with investigators to assist in 4-10 the investigation of violations of this Act; and 4-11 (15) contract with other state agencies if required to 4-12 carry out this Act. 4-13 SECTION 2.04. SECRETARY-TREASURER. (a) The board shall 4-14 elect a secretary-treasurer from among its members, who serves at 4-15 the pleasure of the board. 4-16 (b) The secretary-treasurer shall: 4-17 (1) collect all money paid to the board; 4-18 (2) pay to the comptroller money received by the 4-19 board; 4-20 (3) prepare bills for authorized expenditures of the 4-21 board and obtain warrants from the comptroller for payment of bills 4-22 certified by the president or vice president and 4-23 secretary-treasurer of the board; 4-24 (4) act as custodian of the seal, books, records, 4-25 minutes, and proceedings; and 4-26 (5) perform duties prescribed elsewhere in this Act. 4-27 SECTION 2.05. FUND. The board of homeopathic medical 5-1 examiners' fund is established. All money collected under this Act 5-2 shall be deposited in the fund. 5-3 SECTION 2.06. ROSTER. The board shall maintain a roster of 5-4 homeopathic physicians that includes: 5-5 (1) the name of the licensed physician; 5-6 (2) the current professional office address of the 5-7 physician; 5-8 (3) the physician's license number and date the 5-9 license was issued; and 5-10 (4) a statement of whether the license holder is in 5-11 good standing. 5-12 ARTICLE 3. LICENSING REQUIREMENTS 5-13 SECTION 3.01. PRACTICE WITHOUT LICENSE PROHIBITED. A person 5-14 may not practice medicine as a homeopathic physician without 5-15 holding a license issued by the board under this Act. 5-16 SECTION 3.02. PERSONS AND ACTS NOT AFFECTED. This Act does 5-17 not apply to: 5-18 (1) the practice of any other method, system, or 5-19 science of healing by a person licensed under the laws of this 5-20 state; or 5-21 (2) the practice of a homeopathic physician 5-22 discharging a duty while a member of the armed forces of the United 5-23 States or while affiliated with an agency of the federal 5-24 government. 5-25 SECTION 3.03. QUALIFICATIONS AND APPLICATION. (a) A 5-26 license to practice medicine as a homeopathic physician may be 5-27 granted only to an applicant who: 6-1 (1) is a person of good moral character who holds a 6-2 doctor of medicine degree from a college or university approved by 6-3 the board and licensed under the Medical Practice Act (Article 6-4 4495b, Vernon's Texas Civil Statutes), or who holds a current 6-5 unsuspended and unrevoked license to practice medicine issued by 6-6 another state or the District of Columbia; 6-7 (2) has a professional record that indicates that the 6-8 applicant has not had a license to practice medicine refused, 6-9 revoked, suspended, or restricted in any way by any state, 6-10 territory, district, or country for reasons that relate to the 6-11 applicant's ability to competently and safely practice medicine; 6-12 (3) has a professional record that indicates that the 6-13 applicant has not committed an act or engaged in conduct that would 6-14 constitute grounds for disciplinary action against a license holder 6-15 under this Act; and 6-16 (4) has the physical and mental capacity to safely 6-17 engage in the practice of medicine. 6-18 (b) An applicant shall submit to the board, at least 30 days 6-19 before the date of the meeting at which the application is to be 6-20 considered: 6-21 (1) affidavits that are from three physicians licensed 6-22 to practice medicine in any state or the District of Columbia who 6-23 are in active practice and who attest to the good moral character 6-24 of the applicant and the fitness of the applicant to practice 6-25 medicine as a homeopathic physician and that include other 6-26 information considered necessary by the board; 6-27 (2) a diploma or certificate conferring the degree of 7-1 doctor of medicine in homeopathy issued by a homeopathic college or 7-2 other educational institution approved by the board or evidencing 7-3 the completion of a postgraduate course approved by the board; 7-4 (3) proof that the applicant has served an internship 7-5 or preceptorship approved by the board; and 7-6 (4) a verified application on a form furnished by the 7-7 board stating, in addition to any other information requested, 7-8 that the applicant is the person named in the diploma or 7-9 certificate and that the diploma was procured in a regular course 7-10 of instruction and examination without fraud or misrepresentation. 7-11 (c) An applicant must: 7-12 (1) successfully pass an examination as provided by 7-13 this Act, except that the board may waive the examination if the 7-14 applicant: 7-15 (A) has practiced primarily homeopathic medicine 7-16 for the past three years, has affidavits from three physicians 7-17 attesting to the applicant's competency for homeopathic practice, 7-18 and holds a valid medical degree from an educational institution 7-19 approved by the board; or 7-20 (B) holds a current unsuspended and unrevoked 7-21 license to practice homeopathic medicine issued by another state or 7-22 the District of Columbia and holds a valid medical degree from an 7-23 educational institution approved by the board; 7-24 (2) pay to the board at the time application is made 7-25 an application fee of $250 and an additional fee of $100 at the 7-26 time the license is issued; and 7-27 (3) submit to a personal interview at a reasonable 8-1 time and place prescribed by the board. 8-2 SECTION 3.04. EXAMINATION. (a) The board shall conduct an 8-3 examination for a license under this Act. 8-4 (b) The examination shall include all subjects that are 8-5 generally accepted as necessary for a thorough knowledge of the 8-6 practice of medicine as a homeopathic physician. 8-7 (c) The board shall adopt rules for conducting the 8-8 examination and set the passing grade. 8-9 (d) Examinations shall be conducted at least twice annually 8-10 at times and places designated by the board. Written notice of the 8-11 date and place of examination shall be mailed to all applicants at 8-12 least 30 days before the date of the examination. 8-13 (e) The board shall review the examination of any applicant 8-14 on the applicant's request. A grade on an examination reviewed by 8-15 the board may be changed only by the majority vote of the members 8-16 of the board. 8-17 (f) A person who fails to pass an examination may be 8-18 reexamined within one year without paying an additional fee. 8-19 (g) In a written examination, applicants shall be designated 8-20 by numbers only, and the corresponding names shall be kept secret 8-21 until after the grading of the examination. 8-22 SECTION 3.05. RECORDING AND DISPLAY OF LICENSE; DUPLICATE. 8-23 (a) A person holding a license to practice under this Act shall 8-24 record the person's license in the office of the county clerk of 8-25 each county in which the license holder maintains an office. The 8-26 county clerk shall record the license in a book kept for that 8-27 purpose. 9-1 (b) The board may issue a duplicate license to a person 9-2 holding a license under this Act on payment of a duplicate license 9-3 fee that does not exceed $50. 9-4 SECTION 3.06. RENEWAL. (a) A person holding a license 9-5 under this Act may renew the license on payment of a renewal fee 9-6 not to exceed $1,000 before the expiration date each year. 9-7 (b) Failure to renew an active license as required by this 9-8 section on or before the 30th day after the expiration date of the 9-9 license requires the payment of a penalty fee of $150 to renew the 9-10 license. 9-11 (c) Failure to renew an active license on or before the 90th 9-12 day after the expiration date of the license shall result in the 9-13 revocation of the license. 9-14 (d) At least 30 days before the expiration date of a 9-15 license, the secretary-treasurer of the board shall notify each 9-16 license holder of the renewal date. 9-17 (e) A person whose license has been revoked under Subsection 9-18 (c) of this section may reapply for a license to practice 9-19 homeopathy as provided in this Act. 9-20 ARTICLE 4. REGULATION 9-21 SECTION 4.01. FINDING ON CERTAIN PRACTICES. In the absence 9-22 of demonstrable harm to a patient, the board may not find a medical 9-23 procedure, practice, or treatment unacceptable solely because the 9-24 procedure, practice, or treatment is unconventional, 9-25 investigational, experimental, or eclectic. 9-26 SECTION 4.02. JURISDICTION ARBITRATION PANEL. (a) If the 9-27 board receives a complaint about a homeopathic physician who is 10-1 licensed under the Medical Practice Act (Article 4495b, Vernon's 10-2 Texas Civil Statutes), the board shall immediately notify the Texas 10-3 State Board of Medical Examiners. 10-4 (b) If the board and the Texas State Board of Medical 10-5 Examiners disagree on the resolution of a complaint and if both 10-6 claim jurisdiction over the license holder, an arbitration panel 10-7 shall decide jurisdiction. The panel shall consist of one member 10-8 from the board, one member from the Texas State Board of Medical 10-9 Examiners, one legal representative from the board, one legal 10-10 representative from the Texas State Board of Medical Examiners, and 10-11 one attorney licensed to practice law in this state selected by the 10-12 Supreme Court of Texas, who shall serve as chair. 10-13 (c) The chair shall fix a date, time, and place for meeting 10-14 before the 30th day after the date the action is referred to the 10-15 panel. 10-16 (d) The panel shall determine whether the board or the Texas 10-17 State Board of Medical Examiners shall investigate the complaint or 10-18 whether each should conduct an independent investigation and 10-19 hearing. 10-20 (e) The board or the Texas State Board of Medical Examiners, 10-21 whichever is chosen to conduct the investigation, shall transmit 10-22 all investigation materials, findings, and conclusions to the other 10-23 board, which shall review the information to determine whether the 10-24 other board should also take disciplinary action against the 10-25 physician. 10-26 (f) If the board and the Texas State Board of Medical 10-27 Examiners decide without resorting to arbitration which conducts 11-1 the investigation, the board that conducts the investigation shall 11-2 transmit all materials, findings, and conclusions to any other 11-3 licensing agency with which the physician is licensed. 11-4 SECTION 4.03. USE OF TITLE. (a) A person practicing under 11-5 this Act may designate the person as and use the titles 11-6 "homeopathic physician," "doctor of homeopathy," or "doctor of 11-7 medicine (homeopathic)." 11-8 (b) A person may not use the title "medical assistant" or a 11-9 related abbreviation unless the person is working as a medical 11-10 assistant under the supervision of a homeopathic physician. 11-11 SECTION 4.04. MEDICAL ASSISTANTS. Nothing in this Act may 11-12 be interpreted to prevent a medical assistant from assisting a 11-13 homeopathic physician under rules adopted by the board. 11-14 SECTION 4.05. UNPROFESSIONAL CONDUCT. Unprofessional 11-15 conduct by a physician licensed under this Act includes: 11-16 (1) performing or procuring a criminal abortion or 11-17 aiding or abetting in the performing or procuring of a criminal 11-18 abortion; 11-19 (2) wilfully betraying a professional secret or 11-20 violating a privileged communication except as otherwise required 11-21 by law; 11-22 (3) committing a felony, whether or not involving 11-23 moral turpitude, or a misdemeanor involving moral turpitude; 11-24 (4) exhibiting habitual intemperance in the use of 11-25 alcohol or a narcotic or hypnotic drug; 11-26 (5) prescribing a narcotic or hypnotic drug for other 11-27 than accepted therapeutic purposes; 12-1 (6) engaging in gross malpractice, repeated 12-2 malpractice, or any malpractice resulting in the death of a 12-3 patient; 12-4 (7) impersonating another physician; 12-5 (8) acting as a member of the board if the person is 12-6 not a board member; 12-7 (9) procuring or attempting to procure a license to 12-8 practice homeopathic medicine by fraud, by misrepresentation, or by 12-9 knowingly taking advantage of the mistake of another; 12-10 (10) having a professional connection with or lending 12-11 the person's name to an illegal practitioner of homeopathic 12-12 medicine or of any of the other healing arts; 12-13 (11) representing that a manifestly incurable disease, 12-14 injury, ailment, or infirmity can be permanently cured or that a 12-15 curable disease, injury, ailment, or infirmity can be cured within 12-16 a stated time, if that is not the fact; 12-17 (12) offering, undertaking, or agreeing to cure or 12-18 treat a disease, injury, ailment, or infirmity by a secret means, 12-19 method, device, or instrumentality; 12-20 (13) refusing to divulge to the board on demand the 12-21 means, method, device, or instrumentality used in the treatment of 12-22 a disease, injury, ailment, or infirmity; 12-23 (14) giving or receiving, or aiding or abetting the 12-24 giving or receiving, of a rebate, either directly or indirectly; 12-25 (15) knowingly making a false or fraudulent statement, 12-26 written or oral, in connection with the practice of homeopathic 12-27 medicine except as necessary for accepted therapeutic purposes; 13-1 (16) engaging in immorality or misconduct that tends 13-2 to discredit the profession; 13-3 (17) having a license refused, revoked, or suspended 13-4 by any other state, territory, district, or country, unless it can 13-5 be shown that the act was not related to the person's ability to 13-6 practice homeopathic medicine safely and skillfully or to an act of 13-7 unprofessional conduct as provided in this section; 13-8 (18) engaging in conduct or a practice contrary to the 13-9 recognized standards of ethics of the homeopathic medical 13-10 profession, in conduct or a practice that constitutes or might 13-11 constitute a danger to the health, welfare, or safety of a patient 13-12 or the public, or in conduct that impairs or might impair the 13-13 ability of the person to practice homeopathic medicine safely and 13-14 skillfully; 13-15 (19) failing or refusing to maintain records on a 13-16 patient or to make patient records promptly available to another 13-17 physician on the request and receipt of proper authorization; 13-18 (20) advertising in a false, deceptive, or misleading 13-19 manner; 13-20 (21) violating or attempting to violate, directly or 13-21 indirectly, or assisting in or abetting the violation of or 13-22 conspiring to violate a provision of this Act; 13-23 (22) using a controlled substance except if prescribed 13-24 by another physician for use during a prescribed course of 13-25 treatment; 13-26 (23) prescribing, dispensing, or administering 13-27 anabolic androgenic steroids for other than therapeutic purposes; 14-1 (24) prescribing or dispensing controlled substances 14-2 to a member of the homeopathic physician's own family; 14-3 (25) prescribing, dispensing, or administering 14-4 Schedule II controlled substances as defined by Section 481.033, 14-5 Health and Safety Code, including amphetamines and similar Schedule 14-6 II sympathomimetic drugs, in the treatment of exogenous obesity for 14-7 more than 30 days in any one year or contributing to the 14-8 nontherapeutic use of injectable amphetamines; 14-9 (26) using experimental forms of diagnosis and 14-10 treatment without adequate informed patient consent, without a 14-11 board-approved written disclosure that the form of diagnosis and 14-12 treatment to be used is experimental, and without conforming to 14-13 generally accepted experimental criteria, including protocols, 14-14 detailed records, periodic analysis of results, and periodic review 14-15 by a peer review committee; 14-16 (27) engaging in sexual intimacies with a patient in 14-17 the course of direct treatment; 14-18 (28) using the designation "M.D." or "D.O." in a way 14-19 that would lead the public to believe that a person is licensed by 14-20 the Texas State Board of Medical Examiners if the person is not 14-21 licensed by the Texas State Board of Medical Examiners; 14-22 (29) falsely or fraudulently representing or holding 14-23 the person out as being a homeopathic medical specialist; and 14-24 (30) failing to dispense drugs and devices in 14-25 compliance with the provisions of this Act. 14-26 SECTION 4.06. COMPLAINTS. (a) The board on its own motion 14-27 may investigate any information that appears to show that a 15-1 homeopathic physician is or may be guilty of unprofessional conduct 15-2 or is or may be mentally or physically unable to engage safely in 15-3 the practice of medicine. 15-4 (b) A homeopathic physician, a health care institution, or 15-5 any other person may report to the board any information that 15-6 appears to show that a homeopathic physician is or may be guilty of 15-7 unprofessional conduct or is or may be mentally or physically 15-8 unable to engage safely in the practice of medicine. 15-9 (c) The board shall notify the homeopathic physician about 15-10 whom information is received as to the content of the information 15-11 not later than the 120th day after the date of receipt of the 15-12 information. 15-13 (d) A person who reports or provides information to the 15-14 board in good faith is not subject to an action for civil damages 15-15 as a result of providing the information, and the person's name may 15-16 not be disclosed unless the person's testimony is essential to the 15-17 disciplinary proceedings conducted under this section. 15-18 (e) The failure to report as required by this section by a 15-19 homeopathic physician is an act of unprofessional conduct. 15-20 SECTION 4.07. DUTY OF HEALTH CARE INSTITUTION. (a) A 15-21 health care institution that fails to report as required by this 15-22 section shall be reported by the board to the institution's 15-23 licensing agency. 15-24 (b) A health care institution shall inform the board if the 15-25 privilege of a homeopathic physician to practice in the health care 15-26 institution is denied, revoked, suspended, or limited because of 15-27 actions by the homeopathic physician that jeopardize patient health 16-1 and welfare or if the physician resigns while a proceeding for 16-2 revocation, suspension, or limitation of privileges is pending. A 16-3 report to the board under this subsection shall contain a general 16-4 statement of the reasons the health care institution denied or took 16-5 action to revoke, suspend, or limit a homeopathic physician's 16-6 privilege. 16-7 SECTION 4.08. PROCEEDINGS AFTER INVESTIGATION; 16-8 ADMINISTRATIVE PENALTY. (a) If, after completing its 16-9 investigation, the board finds that the information provided under 16-10 this article is not of sufficient seriousness to merit direct 16-11 action against the license of the homeopathic physician, the board 16-12 may: 16-13 (1) dismiss the complaint if, in the opinion of the 16-14 board, the information is without merit; or 16-15 (2) file a letter of concern regarding the license 16-16 holder. 16-17 (b) If, in the opinion of the board, and after an 16-18 investigation, it appears that the information received by the 16-19 board is or may be true, the board may request an informal 16-20 interview with the homeopathic physician concerned. If the 16-21 homeopathic physician refuses the invitation or accepts the 16-22 invitation and the results of the interview indicate grounds for 16-23 the suspension or revocation of the license, a formal complaint 16-24 shall be issued and a formal hearing shall be conducted. 16-25 (c) If, after completing the investigation, at the informal 16-26 interview, the board finds the information provided under this 16-27 article is not of sufficient seriousness to merit suspension or 17-1 revocation of a license, the board may: 17-2 (1) dismiss the complaint if, in the opinion of the 17-3 board, the information is without merit; 17-4 (2) file a letter of concern regarding the license 17-5 holder; 17-6 (3) issue a decree of censure that constitutes an 17-7 official action against the homeopathic physician's license and may 17-8 include a requirement that the physician make restitution of fees 17-9 to a patient resulting from a violation of this Act or a rule 17-10 adopted under this Act; 17-11 (4) place the license holder on probation on terms 17-12 adapted to protect the public health and safety and to rehabilitate 17-13 or educate the license holder, including the temporary suspension 17-14 of the license for a time not to exceed 12 months, the restriction 17-15 of the homeopathic physician's license to practice medicine, or a 17-16 requirement that the license holder make restitution of fees to a 17-17 patient resulting from a violation of this Act or a rule adopted 17-18 under this Act; or 17-19 (5) enter into an agreement with the homeopathic 17-20 physician to restrict or limit the homeopathic physician's practice 17-21 or medical activities to rehabilitate the homeopathic physician, 17-22 protect the public, and ensure the homeopathic physician's ability 17-23 to safely engage in the practice of medicine. 17-24 (d) The failure of a license holder to comply with any 17-25 probation requirement is cause for the filing of a summons, 17-26 complaint, and notice of hearing under this article based on the 17-27 information considered by the board at the informal interview and 18-1 any other act or conduct alleged to be in violation of this Act or 18-2 a rule adopted under this Act. 18-3 (e) After an informal interview under this section or a 18-4 hearing, the board, in addition to any other action taken, may 18-5 impose an administrative penalty in an amount of not less than $500 18-6 and not more than $2,000 on a homeopathic physician who violates 18-7 this Act or a rule adopted under this Act. An action to enforce 18-8 the collection of an administrative penalty shall be brought in the 18-9 name of the state by the attorney general or the district attorney 18-10 in the district court in the county in which the violation 18-11 occurred. A penalty under this section is in addition to other 18-12 penalties imposed under this Act. 18-13 (f) If, in the opinion of the board, it appears that the 18-14 allegations concerning a homeopathic physician are of such 18-15 magnitude as to warrant suspension or revocation of the person's 18-16 license, the board shall serve on the physician a summons and a 18-17 complaint fully setting forth the allegations, setting a date for a 18-18 hearing to be held before the board not less than 30 days after the 18-19 date of the summons, and stating the time and place of the hearing. 18-20 SECTION 4.09. OTHER DISCIPLINARY ACTIONS. (a) A 18-21 homeopathic physician who, after a hearing, is found to be mentally 18-22 or physically unable to engage safely in the practice of 18-23 homeopathic medicine is subject to censure, probation, or 18-24 suspension of license, or any combination of those actions, or 18-25 revocation of the person's license for a designated time or 18-26 permanently and under conditions the board determines to be 18-27 appropriate for the protection of the public health and safety and 19-1 just in the circumstances. 19-2 (b) If the board acts to modify a homeopathic physician's 19-3 prescription-writing privileges, the board shall immediately notify 19-4 the Texas State Board of Pharmacy of the modification. 19-5 SECTION 4.10. USE OF RECORDS; CONFIDENTIALITY. 19-6 (a) Patient records, including clinical records, medical reports, 19-7 laboratory statements and reports, a file, film, another report or 19-8 oral statement relating to a diagnostic finding or treatment of a 19-9 patient, information from which a patient or the patient's family 19-10 may be identified, or information received and records kept by the 19-11 board as a result of an investigation procedure, are not open to 19-12 the public. 19-13 (b) This section or any other provision of law making 19-14 communications between a homeopathic physician and a patient a 19-15 privileged communication does not apply to an investigation or 19-16 proceeding conducted under this Act. The board and an employee, 19-17 agent, and representative of the board shall keep in confidence the 19-18 name of any patient whose record is reviewed during the course of 19-19 an investigation and proceeding under this Act. 19-20 (c) Hospital records, medical staff records, medical staff 19-21 review committee records, and testimony concerning these records 19-22 and proceedings related to the creation of the records are not 19-23 available to the public, shall be kept confidential by the board, 19-24 and are subject to the same provisions concerning discovery and use 19-25 in legal actions as the original records in the possession and 19-26 control of a hospital or a hospital's medical staff or medical 19-27 staff review committee. The board may use records and testimony 20-1 during the course of an investigation and proceeding under this 20-2 Act. 20-3 SECTION 4.11. MALPRACTICE CLAIM REVIEW. On receipt of a 20-4 report from the Texas Department of Insurance alleging that a 20-5 malpractice insurance claim against a homeopathic physician has 20-6 been filed, the board shall initiate an investigation to determine 20-7 whether the homeopathic physician against whom the claim is filed 20-8 is in violation of this Act or a rule adopted under this Act. 20-9 SECTION 4.12. PENALTY. (a) A person commits an offense if 20-10 the person practices or attempts to practice medicine as a 20-11 homeopathic physician in violation of this Act or otherwise 20-12 violates this Act. 20-13 (b) An offense under Subsection (a) of this section is a 20-14 Class A misdemeanor. 20-15 ARTICLE 5. DISPENSING OF DRUGS AND DEVICES 20-16 SECTION 5.01. DISPENSING DRUGS AND DEVICES; CIVIL PENALTY. 20-17 (a) A homeopathic physician may dispense drugs and devices kept by 20-18 the physician if: 20-19 (1) all drugs are dispensed in packages labeled with 20-20 the following information: 20-21 (A) the dispensing physician's name, address, 20-22 and telephone number; 20-23 (B) the date the drug is dispensed; 20-24 (C) the patient's name; and 20-25 (D) the name and strength of the drug, 20-26 directions for its use, and any cautionary statements; 20-27 (2) the dispensing physician enters in the patient's 21-1 medical record: 21-2 (A) the name and strength of the drug dispensed; 21-3 (B) the date the drug is dispensed; and 21-4 (C) the therapeutic reason for the use of the 21-5 drug; and 21-6 (3) the dispensing physician keeps all drugs in a 21-7 locked cabinet or room, controls access to the cabinet or room by a 21-8 written procedure, and maintains an ongoing inventory of its 21-9 contents. 21-10 (b) Except in an emergency situation, a physician who 21-11 dispenses drugs for profit without being registered by the board to 21-12 do so is subject to a civil penalty of not less than $300 and not 21-13 more than $1,000 for each transaction and is prohibited from 21-14 further dispensing for a time prescribed by the board. 21-15 (c) Before dispensing a drug under this section, the 21-16 physician must give the patient a written prescription containing 21-17 the following statement in bold type: "This prescription may be 21-18 filled by the prescribing physician or by a pharmacy of your 21-19 choice." 21-20 (d) A physician shall dispense for profit only to the 21-21 physician's own patient and only for conditions being treated by 21-22 the physician. The physician shall provide direct supervision of a 21-23 nurse or attendant involved in the dispensing process. 21-24 (e) This section shall be enforced by the board under rules 21-25 regarding recordkeeping and the labeling, storage, and packaging of 21-26 drugs consistent with the requirements of Title 6, Health and 21-27 Safety Code. The board may conduct periodic inspections of 22-1 dispensing practices to assure compliance with this section and 22-2 applicable rules. 22-3 (f) In this section: 22-4 (1) "Direct supervision" means that a physician is 22-5 present and makes the determination as to the legitimacy or the 22-6 advisability of the drugs or devices to be dispensed. 22-7 (2) "Dispense" means the delivery by a homeopathic 22-8 physician of a prescription drug or device to a patient, except for 22-9 samples packaged for individual use by licensed manufacturers or 22-10 repackagers of drugs, and includes the prescribing, administering, 22-11 packaging, labeling, and security necessary to prepare and 22-12 safeguard the drug or device for delivery. 22-13 ARTICLE 6. CONFORMING AMENDMENTS; TRANSITION; EFFECTIVE DATE 22-14 SECTION 6.01. CONFORMING AMENDMENT. Section 5(39), Texas 22-15 Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes), is 22-16 amended to read as follows: 22-17 (39) "Practitioner" means: 22-18 (A) a physician, homeopathic physician, dentist, 22-19 podiatrist, veterinarian, or other person licensed or registered to 22-20 prescribe, distribute, administer, or dispense a prescription drug 22-21 or device in the course of professional practice in this state; 22-22 (B) a person licensed by another state in a 22-23 health field in which, under Texas law, licensees in this state may 22-24 legally prescribe dangerous drugs or a person practicing in another 22-25 state and licensed by another state as a physician, homeopathic 22-26 physician, dentist, veterinarian, or podiatrist, having a current 22-27 Federal Drug Enforcement Administration registration number, and 23-1 who may legally prescribe Schedule II, III, IV, or V controlled 23-2 substances in such other state; or 23-3 (C) a person licensed in the Dominion of Canada 23-4 or the United Mexican States in a health field in which, under the 23-5 laws of this state, a licensee may legally prescribe dangerous 23-6 drugs. "Practitioner" does not include a person licensed under 23-7 this Act. 23-8 SECTION 6.02. CONFORMING AMENDMENT. Section 481.002(39), 23-9 Health and Safety Code, is amended to read as follows: 23-10 (39) "Practitioner" means: 23-11 (A) a physician, homeopathic physician, dentist, 23-12 veterinarian, podiatrist, scientific investigator, or other person 23-13 licensed, registered, or otherwise permitted to distribute, 23-14 dispense, analyze, conduct research with respect to, or administer 23-15 a controlled substance in the course of professional practice or 23-16 research in this state; 23-17 (B) a pharmacy, hospital, or other institution 23-18 licensed, registered, or otherwise permitted to distribute, 23-19 dispense, conduct research with respect to, or administer a 23-20 controlled substance in the course of professional practice or 23-21 research in this state; or 23-22 (C) a person practicing in and licensed by 23-23 another state as a physician, homeopathic physician, dentist, 23-24 veterinarian, or podiatrist, having a current Federal Drug 23-25 Enforcement Administration registration number, who may legally 23-26 prescribe Schedule II, III, IV, or V controlled substances in that 23-27 state. 24-1 SECTION 6.03. CONFORMING AMENDMENT. Section 483.001(12), 24-2 Health and Safety Code, is amended to read as follows: 24-3 (12) "Practitioner" means a person licensed: 24-4 (A) by the Texas State Board of Medical 24-5 Examiners, State Board of Dental Examiners, Texas State Board of 24-6 Podiatric Medical Examiners, Texas Optometry Board, Board of 24-7 Homeopathic Medical Examiners, or State Board of Veterinary Medical 24-8 Examiners to prescribe and administer dangerous drugs; 24-9 (B) by another state in a health field in which, 24-10 under the laws of this state, a licensee may legally prescribe 24-11 dangerous drugs; or 24-12 (C) in Canada or Mexico in a health field in 24-13 which, under the laws of this state, a licensee may legally 24-14 prescribe dangerous drugs. 24-15 SECTION 6.04. APPOINTMENT OF INITIAL BOARD. (a) In making 24-16 the initial appointments to the Board of Homeopathic Medical 24-17 Examiners, the governor shall appoint: 24-18 (1) two homeopathic physician members for terms 24-19 expiring February 1, 1999; 24-20 (2) one homeopathic physician member and one public 24-21 member for terms expiring February 1, 2001; and 24-22 (3) one homeopathic physician member and one public 24-23 member for terms expiring February 1, 2003. 24-24 (b) The initial members of the board required to be licensed 24-25 as homeopathic physicians must obtain a license under this Act not 24-26 later than September 1, 1998. 24-27 SECTION 6.05. RULES. The Board of Homeopathic Medical 25-1 Examiners shall adopt rules under this Act on or before January 1, 25-2 1998. 25-3 SECTION 6.06. EFFECTIVE DATE. (a) Except as provided by 25-4 Subsection (b) of this section, this Act takes effect September 1, 25-5 1997. 25-6 (b) Sections 3.01 and 4.12 of this Act take effect March 1, 25-7 1998. 25-8 SECTION 6.07. EMERGENCY. The importance of this legislation 25-9 and the crowded condition of the calendars in both houses create an 25-10 emergency and an imperative public necessity that the 25-11 constitutional rule requiring bills to be read on three several 25-12 days in each house be suspended, and this rule is hereby suspended.