1-1 By: Harris S.B. No. 641
1-2 (In the Senate - Filed February 18, 1997; February 20, 1997,
1-3 read first time and referred to Committee on Economic Development;
1-4 March 20, 1997, reported favorably by the following vote: Yeas 10,
1-5 Nays 0; March 20, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to a physician who accepts a financial incentive; imposing
1-9 penalties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. 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. (a) The board may refuse to admit persons
1-17 to its examinations and to issue a license to practice medicine to
1-18 any person and may take disciplinary action against any person for
1-19 any 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
1-25 an examination;
1-26 (2) conviction of a crime of the grade of a felony or
1-27 a crime of a lesser degree that involves moral turpitude;
1-28 (3) intemperate use of alcohol or drugs that, in the
1-29 opinion of the board, could endanger the lives of patients;
1-30 (4) unprofessional or dishonorable conduct that is
1-31 likely to deceive or defraud the public or injure the public.
1-32 Unprofessional or dishonorable conduct likely to deceive or defraud
1-33 the public includes but is not limited to the following acts:
1-34 (A) committing any act that is in violation of
1-35 the laws of the State of Texas if the act is connected with the
1-36 physician's practice of medicine. A complaint, indictment, or
1-37 conviction of a law violation is not necessary for the enforcement
1-38 of this provision. Proof of the commission of the act while in the
1-39 practice of medicine or under the guise of the practice of medicine
1-40 is sufficient for action by the board under this section;
1-41 (B) failing to keep complete and accurate
1-42 records of purchases and disposals of drugs listed in Chapter 481,
1-43 Health and Safety Code, or of controlled substances scheduled in
1-44 the Federal Comprehensive Drug Abuse Prevention and Control Act of
1-45 1970, 21 U.S.C.A. Section 801 et seq. (Public Law 91-513). A
1-46 physician shall keep records of his purchases and disposals of
1-47 these drugs to include without limitation the date of purchase, the
1-48 sale or disposal of the drugs by the physician, the name and
1-49 address of the person receiving the drugs, and the reason for the
1-50 disposing or dispensing of the drugs to the person. A failure to
1-51 keep the records for a reasonable time is grounds for revoking,
1-52 canceling, suspending, or probating the license of any practitioner
1-53 of medicine. The board or its representative may enter and inspect
1-54 a physician's place(s) of practice during reasonable business hours
1-55 for the purpose of verifying the correctness of these records and
1-56 of taking inventory of the prescription drugs on hand;
1-57 (C) writing prescriptions for or dispensing to a
1-58 person known to be an abuser of narcotic drugs, controlled
1-59 substances, or dangerous drugs or to a person who the physician
1-60 should have known was an abuser of the narcotic drugs, controlled
1-61 substances, or dangerous drugs. This provision does not apply to
1-62 those persons:
1-63 (i) being treated by the physician for
1-64 their narcotic use after the physician notifies the board in
2-1 writing of the name and address of the person being so treated; or
2-2 (ii) who the physician is treating for
2-3 intractable pain under the Intractable Pain Treatment Act (Article
2-4 4495c, Revised Statutes) and its subsequent amendments;
2-5 (D) writing false or fictitious prescriptions
2-6 for dangerous drugs as defined by Chapter 483, Health and Safety
2-7 Code, of controlled substances scheduled in the Texas Controlled
2-8 Substances Act (Chapter 481, Health and Safety Code), or of
2-9 controlled substances scheduled in the Federal Comprehensive Drug
2-10 Abuse Prevention and Control Act of 1970, 21 U.S.C.A. Section 801
2-11 et seq. (Public Law 91-513);
2-12 (E) prescribing or administering a drug or
2-13 treatment that is nontherapeutic in nature or nontherapeutic in the
2-14 manner the drug or treatment is administered or prescribed;
2-15 (F) prescribing, administering, or dispensing in
2-16 a manner not consistent with public health and welfare dangerous
2-17 drugs as defined by Chapter 483, Health and Safety Code, controlled
2-18 substances scheduled in the Texas Controlled Substances Act
2-19 (Chapter 481, Health and Safety Code), or controlled substances
2-20 scheduled in the Federal Comprehensive Drug Abuse Prevention and
2-21 Control Act of 1970, 21 U.S.C.A. Section 801 et seq. (Public Law
2-22 91-513);
2-23 (G) persistently or flagrantly overcharging or
2-24 overtreating patients;
2-25 (H) failing to supervise adequately the
2-26 activities of those acting under the supervision of the physician;
2-27 [or]
2-28 (I) delegating professional medical
2-29 responsibility or acts to a person if the delegating physician
2-30 knows or has reason to know that the person is not qualified by
2-31 training, experience, or licensure to perform the responsibility or
2-32 acts; or
2-33 (J) accepting a payment or other financial
2-34 incentive intended to induce the physician to limit medically
2-35 necessary services to a patient, subject to Subsection (b) of this
2-36 section;
2-37 (5) violation or attempted violation, direct or
2-38 indirect, of any valid rules issued under this Act, either as a
2-39 principal, accessory, or accomplice;
2-40 (6) use of any advertising statement that is false,
2-41 misleading, or deceptive;
2-42 (7) advertising professional superiority or the
2-43 performance of professional service in a superior manner if the
2-44 advertising is not readily subject to verification;
2-45 (8) purchase, sale, barter, or use or any offer to
2-46 purchase, sell, barter, or use any medical degree, license,
2-47 certificate, diploma, or transcript of license, certificate, or
2-48 diploma in or incident to an application to the board for a license
2-49 to practice medicine;
2-50 (9) altering, with fraudulent intent, any medical
2-51 license, certificate, diploma, or transcript of a medical license,
2-52 certificate, or diploma;
2-53 (10) using any medical license, certificate, diploma,
2-54 or transcript of a medical license, certificate, or diploma that
2-55 has been fraudulently purchased, issued, or counterfeited or that
2-56 has been materially altered;
2-57 (11) impersonating or acting as proxy for another in
2-58 any examination required by this Act for a medical license; or
2-59 engaging in conduct which subverts or attempts to subvert any
2-60 examination process required by this Act for a medical license.
2-61 Conduct which subverts or attempts to subvert the medical licensing
2-62 examination process includes, but is not limited to:
2-63 (A) conduct which violates the security of the
2-64 examination materials, as prescribed by board rules;
2-65 (B) conduct which violates the standard of test
2-66 administration, as prescribed by board rules; or
2-67 (C) conduct which violates the accreditation
2-68 process, as prescribed by board rules;
2-69 (12) impersonating a licensed practitioner or
3-1 permitting or allowing another to use his license or certificate to
3-2 practice medicine in this state for the purpose of diagnosing,
3-3 treating, or offering to treat sick, injured, or afflicted human
3-4 beings;
3-5 (13) employing, directly or indirectly, any person
3-6 whose license to practice medicine has been suspended, canceled, or
3-7 revoked or association in the practice of medicine with any person
3-8 or persons whose license to practice medicine has been suspended,
3-9 canceled, or revoked or any person who has been convicted of the
3-10 unlawful practice of medicine in Texas or elsewhere;
3-11 (14) performing or procuring a criminal abortion or
3-12 aiding or abetting in the procuring of a criminal abortion or
3-13 attempting to perform or procure a criminal abortion or attempting
3-14 to aid or abet the performance or procurement of a criminal
3-15 abortion;
3-16 (15) aiding or abetting, directly or indirectly, the
3-17 practice of medicine by any person, partnership, association, or
3-18 corporation not duly licensed to practice medicine by the board;
3-19 (16) inability to practice medicine with reasonable
3-20 skill and safety to patients by reason of illness, drunkenness,
3-21 excessive use of drugs, narcotics, chemicals, or any other type of
3-22 material or as a result of any mental or physical condition. In
3-23 enforcing this subdivision the board shall, upon probable cause,
3-24 request a physician to submit to a mental or physical examination
3-25 by physicians designated by the board. If the physician refuses to
3-26 submit to the examination, the board shall issue an order requiring
3-27 the physician to show cause why he should not be required to submit
3-28 to the examination and shall schedule a hearing on the order within
3-29 30 days after notice is served on the physician. The physician
3-30 shall be notified by either personal service or certified mail with
3-31 return receipt requested. At the hearing, the physician and his
3-32 attorney are entitled to present any testimony and other evidence
3-33 to show why the physician should not be required to submit to the
3-34 examination. After a complete hearing, the board shall issue an
3-35 order either requiring the physician to submit to the examination
3-36 or withdrawing the request for examination. An appeal from the
3-37 decision of the board shall be taken under the Administrative
3-38 Procedure Act;
3-39 (17) judgment by a court of competent jurisdiction
3-40 that a person licensed to practice medicine is of unsound mind;
3-41 (18) professional failure to practice medicine in an
3-42 acceptable manner consistent with public health and welfare;
3-43 (19) being removed, suspended, or having disciplinary
3-44 action taken by his peers in any professional medical association
3-45 or society, whether the association or society is local, regional,
3-46 state, or national in scope, or being disciplined by a licensed
3-47 hospital or medical staff of a hospital, including removal,
3-48 suspension, limitation of hospital privileges, or other
3-49 disciplinary action, if that action in the opinion of the board was
3-50 based on unprofessional conduct or professional incompetence that
3-51 was likely to harm the public, provided that the board finds that
3-52 the actions were appropriate and reasonably supported by evidence
3-53 submitted to it. The action does not constitute state action on
3-54 the part of the association, society, or hospital medical staff;
3-55 (20) repeated or recurring meritorious health-care
3-56 liability claims that in the opinion of the board evidence
3-57 professional incompetence likely to injure the public; or
3-58 (21) suspension, revocation, restriction, or other
3-59 disciplinary action by another state of a license to practice
3-60 medicine, or disciplinary action by the uniformed services of the
3-61 United States, based upon acts by the licensee similar to acts
3-62 described in this section. A certified copy of the record of the
3-63 state taking the action is conclusive evidence of it.
3-64 (b) Subsection (a)(4)(J) of this section does not prohibit a
3-65 physician from entering into an agreement under which the physician
3-66 is compensated under a capitated method of compensation. For
3-67 purposes of this subsection, a capitated method of compensation is
3-68 a method of compensation under which a physician is paid an amount
3-69 of money for a patient for a period of time, without regard to the
4-1 services actually provided to the patient, in exchange for which
4-2 the physician arranges for or provides specified services to the
4-3 patient as needed during the period of time.
4-4 SECTION 2. Subsection (f), Section 3.07, Medical Practice
4-5 Act (Article 4495b, Vernon's Texas Civil Statutes), is amended to
4-6 read as follows:
4-7 (f) It shall be unlawful for any person to do any act
4-8 described in Subsection (a)(1) [Subdivision (1)], (4)(J), (8), (9),
4-9 (10), (11), (12), (13), or (15) of Section 3.08 of this Act.
4-10 SECTION 3. This Act takes effect September 1, 1997.
4-11 SECTION 4. The importance of this legislation and the
4-12 crowded condition of the calendars in both houses create an
4-13 emergency and an imperative public necessity that the
4-14 constitutional rule requiring bills to be read on three several
4-15 days in each house be suspended, and this rule is hereby suspended.
4-16 * * * * *