By Harris                                        S.B. No. 641

      75R3840 DLF-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to a physician who accepts a financial incentive; imposing

 1-3     penalties.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 3.08, Medical Practice Act (Article

 1-6     4495b, Vernon's Texas Civil Statutes), is amended to read as

 1-7     follows:

 1-8           Sec. 3.08.  GROUNDS FOR REFUSAL TO ADMIT PERSONS TO

 1-9     EXAMINATION AND TO ISSUE LICENSE AND RENEWAL LICENSE AND FOR

1-10     DISCIPLINARY ACTION.  (a)  The board may refuse to admit persons to

1-11     its examinations and to issue a license to practice medicine to any

1-12     person and may take disciplinary action against any person for any

1-13     of the following reasons:

1-14                 (1)  submission of a false or misleading statement,

1-15     document, or certificate to the board in an application for

1-16     examination or licensure;  the presentation to the board of any

1-17     license, certificate, or diploma that was illegally or fraudulently

1-18     obtained;  the practice of fraud or deception in taking or passing

1-19     an examination;

1-20                 (2)  conviction of a crime of the grade of a felony or

1-21     a crime of a lesser degree that involves moral turpitude;

1-22                 (3)  intemperate use of alcohol or drugs that, in the

1-23     opinion of the board, could endanger the lives of patients;

1-24                 (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

2-26     of taking inventory of the prescription drugs on hand;

2-27                       (C)  writing prescriptions for or dispensing to a

 3-1     person known to be an abuser of narcotic drugs, controlled

 3-2     substances, or dangerous drugs or to a person who the physician

 3-3     should have known was an abuser of the narcotic drugs, controlled

 3-4     substances, or dangerous drugs.  This provision does not apply to

 3-5     those persons:

 3-6                             (i)  being treated by the physician for

 3-7     their narcotic use after the physician notifies the board in

 3-8     writing of the name and address of the person being so treated; or

 3-9                             (ii)  who the physician is treating for

3-10     intractable pain under the Intractable Pain Treatment Act (Article

3-11     4495c, Revised Statutes) and its subsequent amendments;

3-12                       (D)  writing false or fictitious prescriptions

3-13     for dangerous drugs as defined by Chapter 483, Health and Safety

3-14     Code, of controlled substances scheduled in the Texas Controlled

3-15     Substances Act (Chapter 481, Health and Safety Code), or of

3-16     controlled substances scheduled in the Federal Comprehensive Drug

3-17     Abuse Prevention and Control Act of 1970, 21 U.S.C.A. Section 801

3-18     et seq.  (Public Law 91-513);

3-19                       (E)  prescribing or administering a drug or

3-20     treatment that is nontherapeutic in nature or nontherapeutic in the

3-21     manner the drug or treatment is administered or prescribed;

3-22                       (F)  prescribing, administering, or dispensing in

3-23     a manner not consistent with public health and welfare dangerous

3-24     drugs as defined by Chapter 483, Health and Safety Code, controlled

3-25     substances scheduled in the Texas Controlled Substances Act

3-26     (Chapter 481, Health and Safety Code), or controlled substances

3-27     scheduled in the Federal Comprehensive Drug Abuse Prevention and

 4-1     Control Act of 1970,  21 U.S.C.A. Section 801 et seq.  (Public Law

 4-2     91-513);

 4-3                       (G)  persistently or flagrantly overcharging or

 4-4     overtreating patients;

 4-5                       (H)  failing to supervise adequately the

 4-6     activities of those acting under the supervision of the physician;

 4-7     [or]

 4-8                       (I)  delegating professional medical

 4-9     responsibility or acts to a person if the delegating physician

4-10     knows or has reason to know that the person is not qualified by

4-11     training, experience, or licensure to perform the responsibility or

4-12     acts; or

4-13                       (J)  accepting a payment or other  financial

4-14     incentive intended to induce the physician to limit medically

4-15     necessary services to a patient, subject to Subsection (b) of this

4-16     section;

4-17                 (5)  violation or attempted violation, direct or

4-18     indirect, of any valid rules issued under this Act, either as a

4-19     principal, accessory, or accomplice;

4-20                 (6)  use of any advertising statement that is false,

4-21     misleading, or deceptive;

4-22                 (7)  advertising professional superiority or the

4-23     performance of professional service in a superior manner if the

4-24     advertising is not readily subject to verification;

4-25                 (8)  purchase, sale, barter, or use or any offer to

4-26     purchase, sell, barter, or use any medical degree, license,

4-27     certificate, diploma, or transcript of license, certificate, or

 5-1     diploma in or incident to an application to the board for a license

 5-2     to practice medicine;

 5-3                 (9)  altering, with fraudulent intent, any medical

 5-4     license, certificate, diploma, or transcript of a medical license,

 5-5     certificate, or diploma;

 5-6                 (10)  using any medical license, certificate, diploma,

 5-7     or transcript of a medical license, certificate, or diploma that

 5-8     has been fraudulently purchased, issued, or counterfeited or that

 5-9     has been materially altered;

5-10                 (11)  impersonating or acting as proxy for another in

5-11     any examination required by this Act for a medical license;  or

5-12     engaging in conduct which subverts or attempts to subvert any

5-13     examination process required by this Act for a medical license.

5-14     Conduct which subverts or attempts to subvert the medical licensing

5-15     examination process includes, but is not limited to:

5-16                       (A)  conduct which violates the security of the

5-17     examination materials, as prescribed by board rules;

5-18                       (B)  conduct which violates the standard of test

5-19     administration, as prescribed by board rules;  or

5-20                       (C)  conduct which violates the accreditation

5-21     process, as prescribed by board rules;

5-22                 (12)  impersonating a licensed practitioner or

5-23     permitting or allowing another to use his license or certificate to

5-24     practice medicine in this state for the purpose of diagnosing,

5-25     treating, or offering to treat sick, injured, or afflicted human

5-26     beings;

5-27                 (13)  employing, directly or indirectly, any person

 6-1     whose license to practice medicine has been suspended, canceled, or

 6-2     revoked or association in the practice of medicine with any person

 6-3     or persons whose license to practice medicine has been suspended,

 6-4     canceled, or revoked or any person who has been convicted of the

 6-5     unlawful practice of medicine in Texas or elsewhere;

 6-6                 (14)  performing or procuring a criminal abortion or

 6-7     aiding or abetting in the procuring of a criminal abortion or

 6-8     attempting to perform or procure a criminal abortion or attempting

 6-9     to aid or abet the performance or procurement of a criminal

6-10     abortion;

6-11                 (15)  aiding or abetting, directly or indirectly, the

6-12     practice of medicine by any person, partnership, association, or

6-13     corporation not duly licensed to practice medicine by the board;

6-14                 (16)  inability to practice medicine with reasonable

6-15     skill and safety to patients by reason of illness, drunkenness,

6-16     excessive use of drugs, narcotics, chemicals, or any other type of

6-17     material or as a result of any mental or physical condition.  In

6-18     enforcing this subdivision the board shall, upon probable cause,

6-19     request a physician to submit to a mental or physical examination

6-20     by physicians designated by the board.  If the physician refuses to

6-21     submit to the examination, the board shall issue an order requiring

6-22     the physician to show cause why he should not be required to submit

6-23     to the examination and shall schedule a hearing on the order within

6-24     30 days after notice is served on the physician.  The physician

6-25     shall be notified by either personal service or certified mail with

6-26     return receipt requested.  At the hearing, the physician and his

6-27     attorney are entitled to present any testimony and other evidence

 7-1     to show why the physician should not be required to submit to the

 7-2     examination.  After a complete hearing, the board shall issue an

 7-3     order either requiring the physician to submit to the examination

 7-4     or withdrawing the request for examination.  An appeal from the

 7-5     decision of the board shall be taken under the Administrative

 7-6     Procedure Act;

 7-7                 (17)  judgment by a court of competent jurisdiction

 7-8     that a person licensed to practice medicine is of unsound mind;

 7-9                 (18)  professional failure to practice medicine in an

7-10     acceptable manner consistent with public health and welfare;

7-11                 (19)  being removed, suspended, or having disciplinary

7-12     action taken by his peers in any professional medical association

7-13     or society, whether the association or society is local, regional,

7-14     state, or national in scope, or being disciplined by a licensed

7-15     hospital or medical staff of a hospital, including removal,

7-16     suspension, limitation of hospital privileges, or other

7-17     disciplinary action, if that action in the opinion of the board was

7-18     based on unprofessional conduct or professional incompetence that

7-19     was likely to harm the public, provided that the board finds that

7-20     the actions were appropriate and reasonably supported by evidence

7-21     submitted to it.  The action does not constitute state action on

7-22     the part of the association, society, or hospital medical staff;

7-23                 (20)  repeated or recurring meritorious health-care

7-24     liability claims that in the opinion of the board evidence

7-25     professional incompetence likely to injure the public; or

7-26                 (21)  suspension, revocation, restriction, or other

7-27     disciplinary action by another state of a license to practice

 8-1     medicine, or disciplinary action by the uniformed services of the

 8-2     United States, based upon acts by the licensee similar to acts

 8-3     described in this section.  A certified copy of the record of the

 8-4     state taking the action is conclusive evidence of it.

 8-5           (b)  Subsection (a)(4)(J) of this section does not prohibit a

 8-6     physician from entering into an agreement under which the physician

 8-7     is compensated under a capitated method of compensation.  For

 8-8     purposes of this subsection, a capitated method  of compensation is

 8-9     a method of compensation under which a  physician is paid an amount

8-10     of money for a patient for a period of time, without regard to the

8-11     services actually provided to the patient, in exchange for which

8-12     the physician arranges for or provides specified services to the

8-13     patient as needed during the period of time.

8-14           SECTION 2.  Section 3.07(f), Medical Practice Act (Article

8-15     4495b, Vernon's Texas Civil Statutes), is amended to read as

8-16     follows:

8-17           (f)  It shall be unlawful for any person to do any act

8-18     described in Subsection (a)(1) [Subdivision (1)], (4)(J), (8), (9),

8-19     (10), (11), (12), (13), or (15) of Section 3.08 of this Act.

8-20           SECTION 3.  This Act takes effect September 1, 1997.

8-21           SECTION 4.  The importance of this legislation and the

8-22     crowded condition of the calendars in both houses create an

8-23     emergency and an imperative public necessity that the

8-24     constitutional rule requiring bills to be read on three several

8-25     days in each house be suspended, and this rule is hereby suspended.