By: Harris S.B. No. 641
A BILL TO BE ENTITLED
AN ACT
1-1 relating to a physician who accepts a financial incentive; imposing
1-2 penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 3.08, Medical Practice Act (Article
1-5 4495b, Vernon's Texas Civil Statutes), is amended to read as
1-6 follows:
1-7 Sec. 3.08. GROUNDS FOR REFUSAL TO ADMIT PERSONS TO
1-8 EXAMINATION AND TO ISSUE LICENSE AND RENEWAL LICENSE AND FOR
1-9 DISCIPLINARY ACTION. (a) The board may refuse to admit persons
1-10 to its examinations and to issue a license to practice medicine to
1-11 any person and may take disciplinary action against any person for
1-12 any of the following reasons:
1-13 (1) submission of a false or misleading statement,
1-14 document, or certificate to the board in an application for
1-15 examination or licensure; the presentation to the board of any
1-16 license, certificate, or diploma that was illegally or fraudulently
1-17 obtained; the practice of fraud or deception in taking or passing
1-18 an examination;
1-19 (2) conviction of a crime of the grade of a felony or
1-20 a crime of a lesser degree that involves moral turpitude;
1-21 (3) intemperate use of alcohol or drugs that, in the
1-22 opinion of the board, could endanger the lives of patients;
1-23 (4) unprofessional or dishonorable conduct that is
2-1 likely to deceive or defraud the public or injure the public.
2-2 Unprofessional or dishonorable conduct likely to deceive or defraud
2-3 the public includes but is not limited to the following acts:
2-4 (A) committing any act that is in violation of
2-5 the laws of the State of Texas if the act is connected with the
2-6 physician's practice of medicine. A complaint, indictment, or
2-7 conviction of a law violation is not necessary for the enforcement
2-8 of this provision. Proof of the commission of the act while in the
2-9 practice of medicine or under the guise of the practice of medicine
2-10 is sufficient for action by the board under this section;
2-11 (B) failing to keep complete and accurate
2-12 records of purchases and disposals of drugs listed in Chapter 481,
2-13 Health and Safety Code, or of controlled substances scheduled in
2-14 the Federal Comprehensive Drug Abuse Prevention and Control Act of
2-15 1970, 21 U.S.C.A. Section 801 et seq. (Public Law 91-513). A
2-16 physician shall keep records of his purchases and disposals of
2-17 these drugs to include without limitation the date of purchase, the
2-18 sale or disposal of the drugs by the physician, the name and
2-19 address of the person receiving the drugs, and the reason for the
2-20 disposing or dispensing of the drugs to the person. A failure to
2-21 keep the records for a reasonable time is grounds for revoking,
2-22 canceling, suspending, or probating the license of any practitioner
2-23 of medicine. The board or its representative may enter and inspect
2-24 a physician's place(s) of practice during reasonable business hours
2-25 for the purpose of verifying the correctness of these records and
3-1 of taking inventory of the prescription drugs on hand;
3-2 (C) writing prescriptions for or dispensing to a
3-3 person known to be an abuser of narcotic drugs, controlled
3-4 substances, or dangerous drugs or to a person who the physician
3-5 should have known was an abuser of the narcotic drugs, controlled
3-6 substances, or dangerous drugs. This provision does not apply to
3-7 those persons:
3-8 (i) being treated by the physician for
3-9 their narcotic use after the physician notifies the board in
3-10 writing of the name and address of the person being so treated; or
3-11 (ii) who the physician is treating for
3-12 intractable pain under the Intractable Pain Treatment Act (Article
3-13 4495c, Revised Statutes) and its subsequent amendments;
3-14 (D) writing false or fictitious prescriptions
3-15 for dangerous drugs as defined by Chapter 483, Health and Safety
3-16 Code, of controlled substances scheduled in the Texas Controlled
3-17 Substances Act (Chapter 481, Health and Safety Code), or of
3-18 controlled substances scheduled in the Federal Comprehensive Drug
3-19 Abuse Prevention and Control Act of 1970, 21 U.S.C.A. Section 801
3-20 et seq. (Public Law 91-513);
3-21 (E) prescribing or administering a drug or
3-22 treatment that is nontherapeutic in nature or nontherapeutic in the
3-23 manner the drug or treatment is administered or prescribed;
3-24 (F) prescribing, administering, or dispensing in
3-25 a manner not consistent with public health and welfare dangerous
4-1 drugs as defined by Chapter 483, Health and Safety Code, controlled
4-2 substances scheduled in the Texas Controlled Substances Act
4-3 (Chapter 481, Health and Safety Code), or controlled substances
4-4 scheduled in the Federal Comprehensive Drug Abuse Prevention and
4-5 Control Act of 1970, 21 U.S.C.A. Section 801 et seq. (Public Law
4-6 91-513);
4-7 (G) persistently or flagrantly overcharging or
4-8 overtreating patients;
4-9 (H) failing to supervise adequately the
4-10 activities of those acting under the supervision of the physician;
4-11 [or]
4-12 (I) delegating professional medical
4-13 responsibility or acts to a person if the delegating physician
4-14 knows or has reason to know that the person is not qualified by
4-15 training, experience, or licensure to perform the responsibility or
4-16 acts; or
4-17 (J) accepting a payment or other financial
4-18 incentive intended to induce the physician to limit medically
4-19 necessary services to a patient, subject to Subsection (b) of this
4-20 section;
4-21 (5) violation or attempted violation, direct or
4-22 indirect, of any valid rules issued under this Act, either as a
4-23 principal, accessory, or accomplice;
4-24 (6) use of any advertising statement that is false,
4-25 misleading, or deceptive;
5-1 (7) advertising professional superiority or the
5-2 performance of professional service in a superior manner if the
5-3 advertising is not readily subject to verification;
5-4 (8) purchase, sale, barter, or use or any offer to
5-5 purchase, sell, barter, or use any medical degree, license,
5-6 certificate, diploma, or transcript of license, certificate, or
5-7 diploma in or incident to an application to the board for a license
5-8 to practice medicine;
5-9 (9) altering, with fraudulent intent, any medical
5-10 license, certificate, diploma, or transcript of a medical license,
5-11 certificate, or diploma;
5-12 (10) using any medical license, certificate, diploma,
5-13 or transcript of a medical license, certificate, or diploma that
5-14 has been fraudulently purchased, issued, or counterfeited or that
5-15 has been materially altered;
5-16 (11) impersonating or acting as proxy for another in
5-17 any examination required by this Act for a medical license; or
5-18 engaging in conduct which subverts or attempts to subvert any
5-19 examination process required by this Act for a medical license.
5-20 Conduct which subverts or attempts to subvert the medical licensing
5-21 examination process includes, but is not limited to:
5-22 (A) conduct which violates the security of the
5-23 examination materials, as prescribed by board rules;
5-24 (B) conduct which violates the standard of test
5-25 administration, as prescribed by board rules; or
6-1 (C) conduct which violates the accreditation
6-2 process, as prescribed by board rules;
6-3 (12) impersonating a licensed practitioner or
6-4 permitting or allowing another to use his license or certificate to
6-5 practice medicine in this state for the purpose of diagnosing,
6-6 treating, or offering to treat sick, injured, or afflicted human
6-7 beings;
6-8 (13) employing, directly or indirectly, any person
6-9 whose license to practice medicine has been suspended, canceled, or
6-10 revoked or association in the practice of medicine with any person
6-11 or persons whose license to practice medicine has been suspended,
6-12 canceled, or revoked or any person who has been convicted of the
6-13 unlawful practice of medicine in Texas or elsewhere;
6-14 (14) performing or procuring a criminal abortion or
6-15 aiding or abetting in the procuring of a criminal abortion or
6-16 attempting to perform or procure a criminal abortion or attempting
6-17 to aid or abet the performance or procurement of a criminal
6-18 abortion;
6-19 (15) aiding or abetting, directly or indirectly, the
6-20 practice of medicine by any person, partnership, association, or
6-21 corporation not duly licensed to practice medicine by the board;
6-22 (16) inability to practice medicine with reasonable
6-23 skill and safety to patients by reason of illness, drunkenness,
6-24 excessive use of drugs, narcotics, chemicals, or any other type of
6-25 material or as a result of any mental or physical condition. In
7-1 enforcing this subdivision the board shall, upon probable cause,
7-2 request a physician to submit to a mental or physical examination
7-3 by physicians designated by the board. If the physician refuses to
7-4 submit to the examination, the board shall issue an order requiring
7-5 the physician to show cause why he should not be required to submit
7-6 to the examination and shall schedule a hearing on the order within
7-7 30 days after notice is served on the physician. The physician
7-8 shall be notified by either personal service or certified mail with
7-9 return receipt requested. At the hearing, the physician and his
7-10 attorney are entitled to present any testimony and other evidence
7-11 to show why the physician should not be required to submit to the
7-12 examination. After a complete hearing, the board shall issue an
7-13 order either requiring the physician to submit to the examination
7-14 or withdrawing the request for examination. An appeal from the
7-15 decision of the board shall be taken under the Administrative
7-16 Procedure Act;
7-17 (17) judgment by a court of competent jurisdiction
7-18 that a person licensed to practice medicine is of unsound mind;
7-19 (18) professional failure to practice medicine in an
7-20 acceptable manner consistent with public health and welfare;
7-21 (19) being removed, suspended, or having disciplinary
7-22 action taken by his peers in any professional medical association
7-23 or society, whether the association or society is local, regional,
7-24 state, or national in scope, or being disciplined by a licensed
7-25 hospital or medical staff of a hospital, including removal,
8-1 suspension, limitation of hospital privileges, or other
8-2 disciplinary action, if that action in the opinion of the board was
8-3 based on unprofessional conduct or professional incompetence that
8-4 was likely to harm the public, provided that the board finds that
8-5 the actions were appropriate and reasonably supported by evidence
8-6 submitted to it. The action does not constitute state action on
8-7 the part of the association, society, or hospital medical staff;
8-8 (20) repeated or recurring meritorious health-care
8-9 liability claims that in the opinion of the board evidence
8-10 professional incompetence likely to injure the public; or
8-11 (21) suspension, revocation, restriction, or other
8-12 disciplinary action by another state of a license to practice
8-13 medicine, or disciplinary action by the uniformed services of the
8-14 United States, based upon acts by the licensee similar to acts
8-15 described in this section. A certified copy of the record of the
8-16 state taking the action is conclusive evidence of it.
8-17 (b) Subsection (a)(4)(J) of this section does not prohibit a
8-18 physician from entering into an agreement under which the physician
8-19 is compensated under a capitated method of compensation. For
8-20 purposes of this subsection, a capitated method of compensation is
8-21 a method of compensation under which a physician is paid an amount
8-22 of money for a patient for a period of time, without regard to the
8-23 services actually provided to the patient, in exchange for which
8-24 the physician arranges for or provides specified services to the
8-25 patient as needed during the period of time.
9-1 SECTION 2. Subsection (f), Section 3.07, Medical Practice
9-2 Act (Article 4495b, Vernon's Texas Civil Statutes), is amended to
9-3 read as follows:
9-4 (f) It shall be unlawful for any person to do any act
9-5 described in Subsection (a)(1) [Subdivision (1)], (4)(J), (8), (9),
9-6 (10), (11), (12), (13), or (15) of Section 3.08 of this Act.
9-7 SECTION 3. This Act takes effect September 1, 1997.
9-8 SECTION 4. The importance of this legislation and the
9-9 crowded condition of the calendars in both houses create an
9-10 emergency and an imperative public necessity that the
9-11 constitutional rule requiring bills to be read on three several
9-12 days in each house be suspended, and this rule is hereby suspended.