By Cuellar H.B. No. 2088
75R3556 PB-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of certain midwives; providing
1-3 administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 1(c)(2), (11), (12), and (13), Texas
1-6 Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes), are
1-7 amended to read as follows:
1-8 (2) "Midwifery" means the practice by a midwife of
1-9 providing necessary care and advice:
1-10 (A) [giving the necessary supervision, care, and
1-11 advice] to a normal woman during [normal] pregnancy, labor and
1-12 delivery, and the postpartum period; and
1-13 (B) for a normal newborn [conducting a normal
1-14 delivery of a child; and]
1-15 [(C) newborn care].
1-16 (11) "Normal [childbirth]" means, as applied in this
1-17 Act to:
1-18 (A) [means the labor and delivery, at or close
1-19 to term, of] a [pregnant] woman, a woman determined to be at low
1-20 risk of developing [whose assessment reveals no abnormality or
1-21 signs or symptoms of] complications during pregnancy, labor and
1-22 delivery, or the postpartum period, as defined in rules adopted by
1-23 the midwifery board; and
1-24 (B) a newborn, a newborn determined to be at low
2-1 risk of developing complications during the neonatal period, as
2-2 defined in rules adopted by the midwifery board.
2-3 (12) "Newborn [care]" means an infant from birth
2-4 through [the care of a child for] the first six weeks of [the
2-5 child's] life.
2-6 (13) "Postpartum period [care]" means [the care of a
2-7 woman for] the first six weeks after a [the] woman has given birth.
2-8 SECTION 2. Section 8A, Texas Midwifery Act (Article 4512i,
2-9 Vernon's Texas Civil Statutes), is amended by amending Subsection
2-10 (b) and by adding Subsection (e) to read as follows:
2-11 (b) Subject to the approval of the Texas Board of Health,
2-12 the midwifery board shall:
2-13 (1) adopt substantive and procedural rules as
2-14 necessary for the identification of midwives;
2-15 (2) adopt rules prescribing minimum standards for the
2-16 approval and revocation of approval of basic midwifery education
2-17 courses and midwifery continuing education courses;
2-18 (3) adopt rules prescribing minimum standards for the
2-19 approval and revocation of approval of instructors or facilities
2-20 used in basic midwifery education courses and midwifery continuing
2-21 education courses;
2-22 (4) adopt rules prescribing the type of courses and
2-23 number of hours required to meet the mandatory basic midwifery
2-24 education course and midwifery continuing education course
2-25 requirements;
2-26 (5) adopt rules prescribing the standards for the
2-27 practice of midwifery in this state, including standards required
3-1 for the delineation of findings that preclude a woman or newborn
3-2 from being classified as "normal" for purposes of this Act;
3-3 (6) adopt rules prescribing a procedure for reporting
3-4 and processing complaints relating to the practice of midwifery in
3-5 this state;
3-6 (7) adopt substantive and procedural rules as
3-7 necessary to discipline midwives determined to be in violation of
3-8 this Act or otherwise a threat to the public health and safety;
3-9 (8) adopt rules as necessary to establish eligibility
3-10 for reciprocity for initial documentation under this Act;
3-11 (9) [(6)] prepare and publish reports on the practice
3-12 of midwifery in this state including statistical reporting of
3-13 infant fetal morbidity and mortality; and
3-14 (10) [(7)] adopt any additional rules necessary to
3-15 implement any duty imposed on the board or the department under
3-16 this Act.
3-17 (e) The rules adopted under Subsection (a)(5) of this
3-18 section must include rules relating to:
3-19 (1) warnings provided to midwives for violations of
3-20 this Act or rules adopted under this Act;
3-21 (2) agreed orders for additional education by
3-22 midwives;
3-23 (3) recommendations or requirements for medical or
3-24 psychological treatment, including treatment related to substance
3-25 abuse by midwives; and
3-26 (4) restrictions on the practice of a midwife.
3-27 SECTION 3. Section 10(b), Texas Midwifery Act (Article
4-1 4512i, Vernon's Texas Civil Statutes), is amended to read as
4-2 follows:
4-3 (b) At the time of initial documentation, the person shall
4-4 provide the program coordinator with documentary evidence that the
4-5 person has met all of the requirements for [the] mandatory basic
4-6 midwifery education [course] as prescribed by rules approved by the
4-7 board and has passed the comprehensive midwifery examination
4-8 approved by the midwifery board. [The person may also provide the
4-9 program coordinator with a letter of documentation issued under
4-10 Section 12 of this Act as evidence that the midwife has passed the
4-11 voluntary examination of the course.]
4-12 SECTION 4. Section 11, Texas Midwifery Act (Article 4512i,
4-13 Vernon's Texas Civil Statutes), is amended to read as follows:
4-14 Sec. 11. EXAMINATION. (a) The midwifery board, with the
4-15 approval of the board, shall adopt a comprehensive midwifery
4-16 examination for persons regulated under this Act.
4-17 (b) [(e)] The midwifery board shall have the written portion
4-18 of the examination, if any, validated by an independent testing
4-19 professional.
4-20 SECTION 5. Section 16(f), Texas Midwifery Act (Article
4-21 4512i, Vernon's Texas Civil Statutes), is amended to read as
4-22 follows:
4-23 (f) A midwife shall refer a woman or newborn for [encourage
4-24 a client to seek] medical care or consultation, as specified by
4-25 rules adopted by the board, if the midwife determines that the
4-26 woman or newborn may not be classified as "normal" for purposes of
4-27 this Act [recognizes a sign or symptom of a complication to the
5-1 client's childbirth].
5-2 SECTION 6. The Texas Midwifery Act (Article 4512i, Vernon's
5-3 Texas Civil Statutes) is amended by adding Section 16A to read as
5-4 follows:
5-5 Sec. 16A. PREVENTION OF OPHTHALMIA NEONATORUM. Unless the
5-6 newborn is immediately transferred to a hospital because of an
5-7 emergency, a midwife who attends the birth of a child shall
5-8 administer to that child prophylaxis approved by the board for the
5-9 prevention of ophthalmia neonatorum as required under Section
5-10 81.091, Health and Safety Code.
5-11 SECTION 7. Section 17, Texas Midwifery Act (Article 4512i,
5-12 Vernon's Texas Civil Statutes), is amended to read as follows:
5-13 Sec. 17. PROHIBITED ACTS. A midwife may not:
5-14 (1) provide midwifery care to a woman or newborn not
5-15 determined to be "normal" for purposes of this Act except in an
5-16 emergency situation that poses an immediate threat to the life of
5-17 the woman or newborn;
5-18 (2) except for prophylaxis approved by the board to
5-19 prevent ophthalmia neonatorum, administer a prescription drug to a
5-20 client except under the supervision of a licensed physician in
5-21 accordance with the laws of this state;
5-22 (3) [(2)] use forceps or surgical instruments for any
5-23 procedure other than cutting the umbilical cord or providing
5-24 emergency first aid during delivery;
5-25 (4) [(3)] remove placenta by invasive techniques;
5-26 (5) [(4)] advance or retard labor or delivery by using
5-27 medicines or mechanical devices;
6-1 (6) [(5)] use in connection with the midwife's name a
6-2 title, abbreviation or any designation tending to imply that the
6-3 midwife is a "registered" or "certified" midwife as opposed to one
6-4 who is identified in compliance with this Act;
6-5 [(6) assist at childbirth other than a normal
6-6 childbirth except in an emergency situation that poses an immediate
6-7 threat to the life of the mother or newborn;]
6-8 (7) advertise or otherwise represent that the midwife
6-9 is a physician or a graduate of a medical school unless the midwife
6-10 is licensed to practice medicine by the Texas State Board of
6-11 Medical Examiners;
6-12 (8) except as authorized by rules adopted by the Board
6-13 of Nurse Examiners and the Board of Vocational Nurse Examiners, use
6-14 in combination with the term "midwife," the term "nurse" or other
6-15 title, initials, or other designation that implies that the midwife
6-16 is licensed as a registered nurse or licensed vocational nurse; or
6-17 (9) make a false statement or false record on a birth
6-18 certificate pursuant to Section 195.003, Health and Safety Code.
6-19 SECTION 8. The Texas Midwifery Act (Article 4512i, Vernon's
6-20 Texas Civil Statutes) is amended by adding Section 17A to read as
6-21 follows:
6-22 Sec. 17A. GROUNDS FOR DISCIPLINARY ACTION; REFUSAL TO ISSUE
6-23 LETTER OF DOCUMENTATION. The midwifery board or the board may
6-24 discipline a documented midwife and may refuse to issue a letter of
6-25 documentation to an individual for:
6-26 (1) noncompliance with this Act or rules adopted under
6-27 this Act;
7-1 (2) submission of false or misleading information to
7-2 the midwifery board, the board, or the department;
7-3 (3) conviction of a felony or of a misdemeanor
7-4 involving moral turpitude;
7-5 (4) intemperate use of alcohol or drugs;
7-6 (5) unprofessional or dishonorable conduct that may
7-7 reasonably be determined to deceive or defraud the public;
7-8 (6) inability to practice midwifery with reasonable
7-9 skill and safety because of illness, disability, or psychological
7-10 impairment;
7-11 (7) judgment by a court of competent jurisdiction that
7-12 the individual is mentally impaired;
7-13 (8) a suspension, a revocation, or another
7-14 disciplinary action taken by another jurisdiction affecting the
7-15 individual's authority to practice midwifery;
7-16 (9) submission of a birth or death certificate known
7-17 by the individual to be false or fraudulent or other noncompliance
7-18 with Title 3, Health and Safety Code, and rules adopted under that
7-19 title;
7-20 (10) noncompliance with the Texas Birthing Center
7-21 Licensing Act, Chapter 244, Health and Safety Code, or rules
7-22 adopted under that chapter; or
7-23 (11) failure to practice midwifery in a manner
7-24 consistent with the public health and safety.
7-25 SECTION 9. Section 18D, Texas Midwifery Act (Article 4512i,
7-26 Vernon's Texas Civil Statutes), is amended to read as follows:
7-27 Sec. 18D. COMPLAINT INVESTIGATION AND DISPOSITION. The
8-1 midwifery board shall adopt rules concerning the investigation of a
8-2 complaint filed with the midwifery board. The rules adopted under
8-3 this subsection shall:
8-4 (1) distinguish between categories of complaints;
8-5 [and]
8-6 (2) ensure that the person who filed the complaint has
8-7 an opportunity to explain the allegations made in the complaint;
8-8 (3) provide for the release of any relevant midwifery
8-9 or medical record to the department, without the necessity of
8-10 consent by the midwife's client, as necessary to conduct an
8-11 investigation of a complaint; and
8-12 (4) provide for the inspection by the department of a
8-13 site at which a midwife provided services, as necessary to conduct
8-14 an investigation of a complaint regarding those services.
8-15 SECTION 10. The Texas Midwifery Act (Article 4512i, Vernon's
8-16 Texas Civil Statutes) is amended by adding Section 18E to read as
8-17 follows:
8-18 Sec. 18E. ADMINISTRATIVE PENALTY. (a) The department may
8-19 assess an administrative penalty against a person who violates this
8-20 Act or a rule adopted under this Act.
8-21 (b) The penalty may not exceed $1,000 for each violation.
8-22 Each day of a continuing violation constitutes a separate
8-23 violation.
8-24 (c) In determining the amount of an administrative penalty
8-25 assessed under this section, the department shall consider:
8-26 (1) the seriousness of the violation;
8-27 (2) the history of previous violations;
9-1 (3) the amount necessary to deter future violations;
9-2 (4) efforts made to correct the violation; and
9-3 (5) any other matters that justice may require.
9-4 (d) All proceedings for the assessment of an administrative
9-5 penalty under this Act are subject to Chapter 2001, Government
9-6 Code.
9-7 (e) If, after investigation of a possible violation and the
9-8 facts surrounding that possible violation, the department
9-9 determines that a violation has occurred, the department shall give
9-10 written notice of the violation to the person alleged to have
9-11 committed the violation. The notice must include:
9-12 (1) a brief summary of the alleged violation;
9-13 (2) a statement of the amount of the proposed penalty
9-14 based on the factors set forth in Subsection (c) of this section;
9-15 and
9-16 (3) a statement of the person's right to a hearing on
9-17 the occurrence of the violation, the amount of the penalty, or both
9-18 the occurrence of the violation and the amount of the penalty.
9-19 (f) Not later than the 20th day after the date on which the
9-20 notice is received, the person notified may accept the
9-21 determination of the department made under this section, including
9-22 the proposed penalty, or make a written request for a hearing on
9-23 that determination.
9-24 (g) If the person notified of the violation accepts the
9-25 determination of the department, the commissioner of health or that
9-26 commissioner's designee shall issue an order approving the
9-27 determination and ordering that the person pay the proposed
10-1 penalty.
10-2 (h) If the person notified under Subsection (e) of this
10-3 section timely requests a hearing, the department shall:
10-4 (1) set a hearing;
10-5 (2) give written notice of the hearing to the person;
10-6 and
10-7 (3) designate a hearings examiner to conduct the
10-8 hearing.
10-9 (i) The hearings examiner shall make findings of fact and
10-10 conclusions of law and shall promptly issue to the commissioner of
10-11 health or that commissioner's designee a proposal for decision as
10-12 to the occurrence of the violation and a recommendation as to the
10-13 amount of the proposed penalty if a penalty is determined to be
10-14 warranted.
10-15 (j) Based on the findings of fact and conclusions of law and
10-16 the recommendations of the hearings examiner, the commissioner of
10-17 health or that commissioner's designee by order may find that a
10-18 violation has occurred and may assess a penalty or may find that no
10-19 violation has occurred.
10-20 (k) The department shall give notice of the order under
10-21 Subsection (j) of this section to the person notified. The notice
10-22 must include:
10-23 (1) separate statements of the findings of fact and
10-24 conclusions of law;
10-25 (2) the amount of any penalty assessed; and
10-26 (3) a statement of the right of the person to judicial
10-27 review of the order.
11-1 (l) Not later than the 30th day after the date on which the
11-2 decision is final as provided by Chapter 2001, Government Code, the
11-3 person shall:
11-4 (1) pay the penalty;
11-5 (2) pay the penalty and file a petition for judicial
11-6 review contesting the occurrence of the violation, the amount of
11-7 the penalty, or both the occurrence of the violation and the
11-8 amount of the penalty; or
11-9 (3) without paying the penalty, file a petition for
11-10 judicial review contesting the occurrence of the violation, the
11-11 amount of the penalty, or both the occurrence of the violation and
11-12 the amount of the penalty.
11-13 (m) Within the 30-day period, a person who acts under
11-14 Subsection (l)(3) of this section may:
11-15 (1) stay enforcement of the penalty by:
11-16 (A) paying the penalty to the court for
11-17 placement in an escrow account; or
11-18 (B) giving to the court a supersedeas bond that
11-19 is approved by the court for the amount of the penalty and that is
11-20 effective until all judicial review of the order is final; or
11-21 (2) request the court to stay enforcement of the
11-22 penalty by:
11-23 (A) filing with the court a sworn affidavit of
11-24 the person stating that the person is financially unable to pay the
11-25 amount of the penalty and is financially unable to give the
11-26 supersedeas bond; and
11-27 (B) giving a copy of the affidavit to the
12-1 department by certified mail.
12-2 (n) If the department receives a copy of an affidavit under
12-3 Subsection (m)(2) of this section, the department may file with the
12-4 court, within five days after the date the copy is received, a
12-5 contest to the affidavit. The court shall hold a hearing on the
12-6 facts alleged in the affidavit as soon as practicable and shall
12-7 stay the enforcement of the penalty on finding that the alleged
12-8 facts are true. The person who files an affidavit has the burden
12-9 of proving that the person is financially unable to pay the penalty
12-10 and to give a supersedeas bond.
12-11 (o) If the person does not pay the penalty and the
12-12 enforcement of the penalty is not stayed, the department may refer
12-13 the matter to the attorney general for collection of the penalty.
12-14 (p) Judicial review of the order:
12-15 (1) is instituted by filing a petition as provided by
12-16 Subchapter G, Chapter 2001, Government Code; and
12-17 (2) is under the substantial evidence rule.
12-18 (q) If the court sustains the occurrence of the violation,
12-19 the court may uphold or reduce the amount of the penalty and order
12-20 the person to pay the full or reduced amount of the penalty. If
12-21 the court does not sustain the occurrence of the violation, the
12-22 court shall order that no penalty is owed.
12-23 (r) When the judgment of the court becomes final, the court
12-24 shall proceed under this subsection. If the person paid the amount
12-25 of the penalty under Subsection (l)(2) of this section and if that
12-26 amount is reduced or is not upheld by the court, the court shall
12-27 order that the department pay the appropriate amount plus accrued
13-1 interest to the person. The rate of the interest is the rate
13-2 charged on loans to depository institutions by the New York Federal
13-3 Reserve Bank, and the interest shall be paid for the period
13-4 beginning on the date the penalty was paid and ending on the date
13-5 the penalty is remitted. If the person paid the penalty under
13-6 Subsection (m)(1)(A) of this section or gave a supersedeas bond and
13-7 if the amount of the penalty is not upheld by the court, the court
13-8 shall order the release of the escrow account or bond. If the
13-9 person paid the penalty under Subsection (m)(1)(A) and the amount
13-10 of the penalty is reduced, the court shall order that the amount of
13-11 the penalty be paid to the department from the escrow account and
13-12 that the remainder of the account be released. If the person gave
13-13 a supersedeas bond and if the amount of the penalty is reduced, the
13-14 court shall order the release of the bond after the person pays the
13-15 amount.
13-16 (s) An administrative penalty collected under this section
13-17 shall be deposited in the state treasury to the credit of the
13-18 general revenue fund.
13-19 (t) The department may assess reasonable expenses and costs
13-20 against a person in an administrative hearing if, as a result of
13-21 the hearing, an administrative penalty is assessed against the
13-22 person. The person shall pay expenses and costs assessed under
13-23 this subsection not later than the 30th day after the date of the
13-24 order of the commissioner of health or that commissioner's designee
13-25 requiring the payment of expenses and costs is final. The
13-26 department may refer the matter to the attorney general for
13-27 collection of the expenses and costs.
14-1 (u) If the attorney general brings an action against a
14-2 person to enforce an administrative penalty assessed under this Act
14-3 and the person is found liable for an administrative penalty, the
14-4 attorney general may recover, on behalf of the attorney general and
14-5 the department, reasonable expenses and costs.
14-6 (v) For purposes of this section, "reasonable expenses and
14-7 costs" includes expenses incurred by the department and the
14-8 attorney general in the investigation, initiation, or prosecution
14-9 of an action, including reasonable investigative costs, court
14-10 costs, attorney's fees, witness fees, and deposition expenses.
14-11 (w) Costs and expenses collected under this section shall be
14-12 deposited in the state treasury to the credit of a special account
14-13 that may be appropriated only to the department. Section 403.095,
14-14 Government Code, does not apply to the account.
14-15 SECTION 11. Section 483.001(13), Health and Safety Code, is
14-16 amended to read as follows:
14-17 (13) "Prescription" means an order from a
14-18 practitioner, or an agent of the practitioner designated in writing
14-19 as authorized to communicate prescriptions, or an order made in
14-20 accordance with Section 3.06(d)(5) or (6), Medical Practice Act
14-21 (Article 4495b, Vernon's Texas Civil Statutes), or Section 16A,
14-22 Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes),
14-23 to a pharmacist for a dangerous drug to be dispensed that states:
14-24 (A) the date of the order's issue;
14-25 (B) the name and address of the patient;
14-26 (C) if the drug is prescribed for an animal, the
14-27 species of the animal;
15-1 (D) the name and quantity of the drug
15-2 prescribed;
15-3 (E) the directions for the use of the drug;
15-4 (F) the intended use of the drug unless the
15-5 practitioner determines the furnishing of this information is not
15-6 in the best interest of the patient;
15-7 (G) the name, address, and telephone number of
15-8 the practitioner at the practitioner's usual place of business,
15-9 legibly printed or stamped; and
15-10 (H) the name, address, and telephone number of
15-11 the documented midwife, registered nurse, or physician assistant,
15-12 legibly printed or stamped, if signed by a documented midwife,
15-13 registered nurse, or physician assistant.
15-14 SECTION 12. Section 483.041(c), Health and Safety Code, is
15-15 amended to read as follows:
15-16 (c) Subsection (a) does not apply to the possession of a
15-17 dangerous drug in the usual course of business or practice or in
15-18 the performance of official duties by the following persons or an
15-19 agent or employee of the person:
15-20 (1) a pharmacy licensed by the board;
15-21 (2) a practitioner;
15-22 (3) a person who obtains a dangerous drug for lawful
15-23 research, teaching, or testing, but not for resale;
15-24 (4) a hospital that obtains a dangerous drug for
15-25 lawful administration by a practitioner;
15-26 (5) an officer or employee of the federal, state, or
15-27 local government;
16-1 (6) a manufacturer or wholesaler licensed by the
16-2 commissioner of health under Chapter 431 (Texas Food, Drug, and
16-3 Cosmetic Act);
16-4 (7) a carrier or warehouseman; [or]
16-5 (8) a home and community support services agency
16-6 licensed under Chapter 142, which may possess sterile water for
16-7 injection and irrigation and sterile saline for injection and
16-8 irrigation as authorized by Section 142.0061; or
16-9 (9) a documented midwife who obtains a dangerous drug
16-10 for the administration of prophylaxis to a newborn for the
16-11 prevention of ophthalmia neonatorum in accordance with Section 16A,
16-12 Texas Midwifery Act (Article 4512i, Vernon's Texas Civil Statutes).
16-13 SECTION 13. This Act takes effect September 1, 1997.
16-14 SECTION 14. The importance of this legislation and the
16-15 crowded condition of the calendars in both houses create an
16-16 emergency and an imperative public necessity that the
16-17 constitutional rule requiring bills to be read on three several
16-18 days in each house be suspended, and this rule is hereby suspended.