By McCall H.B. No. 1697
75R140 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to disciplinary proceedings against a physician who
1-3 performs certain in vitro fertility procedures without the consent
1-4 of the patient.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 3.07, Medical Practice Act (Article
1-7 4495b, Vernon's Texas Civil Statutes), is amended by adding
1-8 Subsection (j) to read as follows:
1-9 (j) A physician may not remove a patient's ova or sperm
1-10 without the patient's consent.
1-11 SECTION 2. Section 3.08, Medical Practice Act (Article
1-12 4495b, Vernon's Texas Civil Statutes), is amended to read as
1-13 follows:
1-14 Sec. 3.08. GROUNDS FOR REFUSAL TO ADMIT PERSONS TO
1-15 EXAMINATION AND TO ISSUE LICENSE AND RENEWAL LICENSE AND FOR
1-16 DISCIPLINARY ACTION. The board may refuse to admit persons to its
1-17 examinations and to issue a license to practice medicine to any
1-18 person and may take disciplinary action against any person for any
1-19 of the following reasons:
1-20 (1) submission of a false or misleading statement,
1-21 document, or certificate to the board in an application for
1-22 examination or licensure; the presentation to the board of any
1-23 license, certificate, or diploma that was illegally or fraudulently
1-24 obtained; the practice of fraud or deception in taking or passing
2-1 an examination;
2-2 (2) conviction of a crime of the grade of a felony or
2-3 a crime of a lesser degree that involves moral turpitude;
2-4 (3) intemperate use of alcohol or drugs that, in the
2-5 opinion of the board, could endanger the lives of patients;
2-6 (4) unprofessional or dishonorable conduct that is
2-7 likely to deceive or defraud the public or injure the public.
2-8 Unprofessional or dishonorable conduct likely to deceive or defraud
2-9 the public includes but is not limited to the following acts:
2-10 (A) committing any act that is in violation of
2-11 the laws of the State of Texas if the act is connected with the
2-12 physician's practice of medicine. A complaint, indictment, or
2-13 conviction of a law violation is not necessary for the enforcement
2-14 of this provision. Proof of the commission of the act while in the
2-15 practice of medicine or under the guise of the practice of medicine
2-16 is sufficient for action by the board under this section;
2-17 (B) failing to keep complete and accurate
2-18 records of purchases and disposals of drugs listed in Chapter 481,
2-19 Health and Safety Code, or of controlled substances scheduled in
2-20 the Federal Comprehensive Drug Abuse Prevention and Control Act of
2-21 1970, 21 U.S.C.A. Section 801 et seq. (Public Law 91-513). A
2-22 physician shall keep records of his purchases and disposals of
2-23 these drugs to include without limitation the date of purchase, the
2-24 sale or disposal of the drugs by the physician, the name and
2-25 address of the person receiving the drugs, and the reason for the
2-26 disposing or dispensing of the drugs to the person. A failure to
2-27 keep the records for a reasonable time is grounds for revoking,
3-1 canceling, suspending, or probating the license of any practitioner
3-2 of medicine. The board or its representative may enter and inspect
3-3 a physician's place(s) of practice during reasonable business hours
3-4 for the purpose of verifying the correctness of these records and
3-5 of taking inventory of the prescription drugs on hand;
3-6 (C) writing prescriptions for or dispensing to a
3-7 person known to be an abuser of narcotic drugs, controlled
3-8 substances, or dangerous drugs or to a person who the physician
3-9 should have known was an abuser of the narcotic drugs, controlled
3-10 substances, or dangerous drugs. This provision does not apply to
3-11 those persons:
3-12 (i) being treated by the physician for
3-13 their narcotic use after the physician notifies the board in
3-14 writing of the name and address of the person being so treated; or
3-15 (ii) who the physician is treating for
3-16 intractable pain under the Intractable Pain Treatment Act (Article
3-17 4495c, Revised Statutes) and its subsequent amendments;
3-18 (D) writing false or fictitious prescriptions
3-19 for dangerous drugs as defined by Chapter 483, Health and Safety
3-20 Code, of controlled substances scheduled in the Texas Controlled
3-21 Substances Act (Chapter 481, Health and Safety Code), or of
3-22 controlled substances scheduled in the Federal Comprehensive Drug
3-23 Abuse Prevention and Control Act of 1970, 21 U.S.C.A. Section 801
3-24 et seq. (Public Law 91-513);
3-25 (E) prescribing or administering a drug or
3-26 treatment that is nontherapeutic in nature or nontherapeutic in the
3-27 manner the drug or treatment is administered or prescribed;
4-1 (F) prescribing, administering, or dispensing in
4-2 a manner not consistent with public health and welfare dangerous
4-3 drugs as defined by Chapter 483, Health and Safety Code, controlled
4-4 substances scheduled in the Texas Controlled Substances Act
4-5 (Chapter 481, Health and Safety Code), or controlled substances
4-6 scheduled in the Federal Comprehensive Drug Abuse Prevention and
4-7 Control Act of 1970, 21 U.S.C.A. Section 801 et seq. (Public Law
4-8 91-513);
4-9 (G) persistently or flagrantly overcharging or
4-10 overtreating patients;
4-11 (H) failing to supervise adequately the
4-12 activities of those acting under the supervision of the physician;
4-13 or
4-14 (I) delegating professional medical
4-15 responsibility or acts to a person if the delegating physician
4-16 knows or has reason to know that the person is not qualified by
4-17 training, experience, or licensure to perform the responsibility or
4-18 acts;
4-19 (5) violation or attempted violation, direct or
4-20 indirect, of any valid rules issued under this Act, either as a
4-21 principal, accessory, or accomplice;
4-22 (6) use of any advertising statement that is false,
4-23 misleading, or deceptive;
4-24 (7) advertising professional superiority or the
4-25 performance of professional service in a superior manner if the
4-26 advertising is not readily subject to verification;
4-27 (8) purchase, sale, barter, or use or any offer to
5-1 purchase, sell, barter, or use any medical degree, license,
5-2 certificate, diploma, or transcript of license, certificate, or
5-3 diploma in or incident to an application to the board for a license
5-4 to practice medicine;
5-5 (9) altering, with fraudulent intent, any medical
5-6 license, certificate, diploma, or transcript of a medical license,
5-7 certificate, or diploma;
5-8 (10) using any medical license, certificate, diploma,
5-9 or transcript of a medical license, certificate, or diploma that
5-10 has been fraudulently purchased, issued, or counterfeited or that
5-11 has been materially altered;
5-12 (11) impersonating or acting as proxy for another in
5-13 any examination required by this Act for a medical license; or
5-14 engaging in conduct which subverts or attempts to subvert any
5-15 examination process required by this Act for a medical license.
5-16 Conduct which subverts or attempts to subvert the medical licensing
5-17 examination process includes, but is not limited to:
5-18 (A) conduct which violates the security of the
5-19 examination materials, as prescribed by board rules;
5-20 (B) conduct which violates the standard of test
5-21 administration, as prescribed by board rules; or
5-22 (C) conduct which violates the accreditation
5-23 process, as prescribed by board rules;
5-24 (12) impersonating a licensed practitioner or
5-25 permitting or allowing another to use his license or certificate to
5-26 practice medicine in this state for the purpose of diagnosing,
5-27 treating, or offering to treat sick, injured, or afflicted human
6-1 beings;
6-2 (13) employing, directly or indirectly, any person
6-3 whose license to practice medicine has been suspended, canceled, or
6-4 revoked or association in the practice of medicine with any person
6-5 or persons whose license to practice medicine has been suspended,
6-6 canceled, or revoked or any person who has been convicted of the
6-7 unlawful practice of medicine in Texas or elsewhere;
6-8 (14) performing or procuring a criminal abortion or
6-9 aiding or abetting in the procuring of a criminal abortion or
6-10 attempting to perform or procure a criminal abortion or attempting
6-11 to aid or abet the performance or procurement of a criminal
6-12 abortion;
6-13 (15) aiding or abetting, directly or indirectly, the
6-14 practice of medicine by any person, partnership, association, or
6-15 corporation not duly licensed to practice medicine by the board;
6-16 (16) inability to practice medicine with reasonable
6-17 skill and safety to patients by reason of illness, drunkenness,
6-18 excessive use of drugs, narcotics, chemicals, or any other type of
6-19 material or as a result of any mental or physical condition. In
6-20 enforcing this subdivision the board shall, upon probable cause,
6-21 request a physician to submit to a mental or physical examination
6-22 by physicians designated by the board. If the physician refuses to
6-23 submit to the examination, the board shall issue an order requiring
6-24 the physician to show cause why he should not be required to submit
6-25 to the examination and shall schedule a hearing on the order within
6-26 30 days after notice is served on the physician. The physician
6-27 shall be notified by either personal service or certified mail with
7-1 return receipt requested. At the hearing, the physician and his
7-2 attorney are entitled to present any testimony and other evidence
7-3 to show why the physician should not be required to submit to the
7-4 examination. After a complete hearing, the board shall issue an
7-5 order either requiring the physician to submit to the examination
7-6 or withdrawing the request for examination. An appeal from the
7-7 decision of the board shall be taken under the Administrative
7-8 Procedure Act;
7-9 (17) judgment by a court of competent jurisdiction
7-10 that a person licensed to practice medicine is of unsound mind;
7-11 (18) professional failure to practice medicine in an
7-12 acceptable manner consistent with public health and welfare;
7-13 (19) being removed, suspended, or having disciplinary
7-14 action taken by his peers in any professional medical association
7-15 or society, whether the association or society is local, regional,
7-16 state, or national in scope, or being disciplined by a licensed
7-17 hospital or medical staff of a hospital, including removal,
7-18 suspension, limitation of hospital privileges, or other
7-19 disciplinary action, if that action in the opinion of the board was
7-20 based on unprofessional conduct or professional incompetence that
7-21 was likely to harm the public, provided that the board finds that
7-22 the actions were appropriate and reasonably supported by evidence
7-23 submitted to it. The action does not constitute state action on
7-24 the part of the association, society, or hospital medical staff;
7-25 (20) repeated or recurring meritorious health-care
7-26 liability claims that in the opinion of the board evidence
7-27 professional incompetence likely to injure the public; [or]
8-1 (21) suspension, revocation, restriction, or other
8-2 disciplinary action by another state of a license to practice
8-3 medicine, or disciplinary action by the uniformed services of the
8-4 United States, based upon acts by the licensee similar to acts
8-5 described in this section. A certified copy of the record of the
8-6 state taking the action is conclusive evidence of it; or
8-7 (22) removing the ova or sperm of a patient without
8-8 the patient's consent.
8-9 SECTION 3. The change in law made by this Act to Sections
8-10 3.07 and 3.08, Medical Practice Act (Article 4495b, Vernon's Texas
8-11 Civil Statutes), relating to the removal of a patient's ova or
8-12 sperm, applies only to a removal that occurs on or after September
8-13 1, 1997. A removal that occurs before that date is covered by the
8-14 law in effect when the removal occurs, and the former law is
8-15 continued in effect for that purpose.
8-16 SECTION 4. This Act takes effect September 1, 1997.
8-17 SECTION 5. The importance of this legislation and the
8-18 crowded condition of the calendars in both houses create an
8-19 emergency and an imperative public necessity that the
8-20 constitutional rule requiring bills to be read on three several
8-21 days in each house be suspended, and this rule is hereby suspended.