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.