By: Cain S.B. No. 1297
A BILL TO BE ENTITLED
AN ACT
1-1 relating to disciplinary procedures and peer review for certain
1-2 medical practitioners; providing administrative penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsections (b), (d), (f), (i), (k), and (r),
1-5 Section 5.06, Medical Practice Act (Article 4495b, Vernon's Texas
1-6 Civil Statutes), are amended to read as follows:
1-7 (b) Each medical peer review committee or health-care entity
1-8 shall report in writing to the board the results and circumstances
1-9 of any professional review action that adversely affects the
1-10 clinical privileges of a physician, physician assistant, or
1-11 acupuncturist for a period longer than 30 days, accepts the
1-12 surrender of clinical privileges of a physician, physician
1-13 assistant, or acupuncturist while the physician, physician
1-14 assistant, or acupuncturist is under an investigation by the
1-15 medical peer review committee relating to possible incompetence or
1-16 improper professional conduct, or in return for not conducting such
1-17 an investigation or proceeding, or in the case of an entity which
1-18 is a professional society or association, takes a professional
1-19 review action which adversely affects the membership of a
1-20 physician, physician assistant, or acupuncturist in the society or
1-21 association. The duty to report under this section shall not be
1-22 nullified through contract.
1-23 (d) Any medical peer review committee in this state, any
2-1 physician licensed to practice medicine or otherwise lawfully
2-2 practicing medicine in this state, any physician engaged in
2-3 graduate medical education or training, [or] any medical student,
2-4 any physician assistant licensed to practice in this state or
2-5 otherwise lawfully practicing as a physician assistant in this
2-6 state, any physician assistant student, any acupuncturist licensed
2-7 to practice in this state or otherwise lawfully practicing
2-8 acupuncture in this state, or any acupuncture student shall report
2-9 relevant information to the board relating to the acts of any
2-10 physician, physician assistant, or acupuncturist in this state if,
2-11 in the opinion of the medical peer review committee, physician,
2-12 [or] medical student, physician assistant, physician assistant
2-13 student, acupuncturist, or acupuncture student, the physician,
2-14 physician assistant, or acupuncturist poses a continuing threat to
2-15 the public welfare through the practice of medicine or acupuncture
2-16 or practice as a physician assistant. The duty to report under
2-17 this section shall not be nullified through contract.
2-18 (f) The filing of a report with the board pursuant to this
2-19 section, investigation by the board, or any disposition by the
2-20 board does not, in itself, preclude any action by a health-care
2-21 entity to suspend, restrict, or revoke the privileges or membership
2-22 of the physician, physician assistant, or acupuncturist.
2-23 (i) Disclosure of confidential peer review committee
2-24 information to the affected physician, physician assistant, or
2-25 acupuncturist pertinent to the matter under review shall not
3-1 constitute waiver of the confidentiality provisions provided in
3-2 this Act. If a medical peer review committee takes action that
3-3 could result in censure, suspension, restriction, limitation,
3-4 revocation, or denial of membership or privileges in a health-care
3-5 entity, the affected physician, physician assistant, or
3-6 acupuncturist shall be provided a written copy of the
3-7 recommendation of the medical peer review committee and a copy of
3-8 the final decision, including a statement of the basis for the
3-9 decision.
3-10 (k) Governing bodies and medical staffs of health-care
3-11 entities and others shall comply fully with a subpoena for
3-12 documents or information issued by the board under Subsection (i)
3-13 of Section 2.09 of this Act or Subsection (a), Section 27,
3-14 Physician Assistant Licensing Act (Article 4495b-1, Vernon's Texas
3-15 Civil Statutes). The disclosure of documents or information under
3-16 such a subpoena does not constitute a waiver of the privilege
3-17 associated with medical peer review committee proceedings. Failure
3-18 to comply with such a subpoena constitutes grounds for disciplinary
3-19 action against the facility or individual by the appropriate
3-20 licensing board.
3-21 (r) If a court of competent jurisdiction makes a final
3-22 determination that a report or complaint made to the board was made
3-23 in bad faith, then such complaint shall be expunged from the
3-24 physician's, physician assistant's, acupuncturist's, or applicant's
3-25 individual historical record.
4-1 SECTION 2. Subdivisions (1) and (2), Subsection (s), Section
4-2 5.06, Medical Practice Act (Article 4495b, Vernon's Texas Civil
4-3 Statutes), are amended to read as follows:
4-4 (1) Reports, information, or records received and
4-5 maintained by the board pursuant to this section and Section 5.05
4-6 of this Act, including any material received or developed by the
4-7 board during an investigation or hearing, are strictly confidential
4-8 and subject to the provisions of Subdivision (4) of this
4-9 subsection. However, the board may disclose this confidential
4-10 information only:
4-11 (A) in a disciplinary hearing before the board
4-12 or in a subsequent trial or appeal of a board action or order;
4-13 (B) to the physician, physician assistant, or
4-14 acupuncture licensing or disciplinary authorities of other
4-15 jurisdictions, to a local, state, or national professional medical,
4-16 physician assistant, or acupuncture society or association, or to a
4-17 medical, physician assistant, or acupuncture peer review committee
4-18 located inside or outside this state that is concerned with
4-19 granting, limiting, or denying a physician, physician assistant, or
4-20 acupuncturist hospital privileges;
4-21 (C) pursuant to an order of a court of competent
4-22 jurisdiction; or
4-23 (D) to qualified personnel for bona fide
4-24 research or educational purposes, if personally identifiable
4-25 information relating to any person or physician is first deleted.
5-1 (2) Disciplinary orders of the board against a
5-2 physician, physician assistant, or acupuncturist and known hospital
5-3 suspensions for 30 days or longer of a physician, physician
5-4 assistant, or acupuncturist relating to the competence of a
5-5 physician, physician assistant, or acupuncturist are not
5-6 confidential.
5-7 SECTION 3. Subsection (g), Section 6.04, Medical Practice
5-8 Act (Article 4495b, Vernon's Texas Civil Statutes), is amended to
5-9 read as follows:
5-10 (g) The acupuncture board is subject to the open meetings
5-11 law, the open records law, and the Administrative Procedure Act and
5-12 any subsequent amendments except as provided by this Act, and in
5-13 such event this Act will control.
5-14 SECTION 4. Section 6.11, Medical Practice Act (Article
5-15 4495b, Vernon's Texas Civil Statutes), is amended by amending
5-16 Subsection (a) and adding Subsection (h) to read as follows:
5-17 (a) A license to practice acupuncture may be denied or,
5-18 after notice and hearing, disciplinary action may be taken
5-19 [suspended, probated, or revoked] if the applicant for a license or
5-20 the holder of a license:
5-21 (1) intemperately uses drugs or intoxicating liquors
5-22 to an extent that, in the opinion of the board, could endanger the
5-23 lives of patients [affects the person's professional competence];
5-24 (2) obtains or attempts to obtain a license by fraud
5-25 or deception;
6-1 (3) is adjudged mentally incompetent by a court of
6-2 competent jurisdiction;
6-3 (4) fails to practice [practices] acupuncture in an
6-4 acceptable [a] manner consistent with [detrimental to the] public
6-5 health and welfare;
6-6 (5) violates this subchapter or a rule adopted under
6-7 this subchapter;
6-8 (6) is convicted of a felony or a crime involving
6-9 moral turpitude or is the subject of deferred adjudication or
6-10 pretrial diversion for such an offense; [or]
6-11 (7) holds himself out as a physician or surgeon or any
6-12 combination or derivative of those terms unless the person is also
6-13 licensed by the medical board as a physician or surgeon;
6-14 (8) engages in unprofessional or dishonorable conduct
6-15 that is likely to deceive, defraud, or injure the public;
6-16 (9) commits any act that is in violation of the laws
6-17 of the State of Texas if the act is connected with the licensee's
6-18 practice of acupuncture; a complaint, indictment, or conviction of
6-19 a law violation is not necessary for the enforcement of this
6-20 provision; and proof of the commission of the act while in the
6-21 practice of acupuncture or under the guise of the practice of
6-22 acupuncture is sufficient for action by the board under this
6-23 section;
6-24 (10) fails to supervise adequately the activities of
6-25 persons acting under the supervision of the licensee;
7-1 (11) aids or abets, directly or indirectly, the
7-2 practice of acupuncture by any person not duly licensed to practice
7-3 acupuncture by the board;
7-4 (12) is unable to practice acupuncture with reasonable
7-5 skill and with safety to patients by reason of illness,
7-6 drunkenness, excessive use of drugs, narcotics, chemicals, or any
7-7 other type of material or as a result of any mental or physical
7-8 condition;
7-9 (13) has repeated or recurring meritorious health-care
7-10 liability claims that in the opinion of the board evidence
7-11 professional incompetence likely to injure the public;
7-12 (14) has had a license to practice acupuncture
7-13 suspended, revoked, or restricted by another state or has been
7-14 subject to other disciplinary action by another state or by the
7-15 uniformed services of the United States regarding practice as an
7-16 acupuncturist; a certified copy of the record of the state or
7-17 uniformed service taking the action is conclusive evidence of it;
7-18 or
7-19 (15) through the licensee's practice as an
7-20 acupuncturist, sexually abuses or exploits another person.
7-21 (h) Disciplinary action shall be by an order of the board
7-22 and shall include one or more of the following:
7-23 (1) deny the person's application for a license or
7-24 other authorization to practice acupuncture;
7-25 (2) administer a public reprimand;
8-1 (3) suspend, limit, or restrict the person's license
8-2 or other authorization to practice acupuncture, including limiting
8-3 the practice of the person to, or excluding from the practice, one
8-4 or more specified activities of acupuncture or stipulating periodic
8-5 board review;
8-6 (4) revoke the person's license or other authorization
8-7 to practice acupuncture;
8-8 (5) require the person to submit to the care,
8-9 counseling, or treatment of health practitioners designated by the
8-10 board as a condition for the issuance, continuance, or renewal of a
8-11 license or other authorization to practice acupuncture;
8-12 (6) require the person to participate in a program of
8-13 education or counseling prescribed by the board;
8-14 (7) require the person to practice under the direction
8-15 of an acupuncturist designated by the board for a specified period
8-16 of time;
8-17 (8) require the person to perform public service
8-18 considered appropriate by the board; or
8-19 (9) assess an administrative penalty against the
8-20 person as provided by Section 4.125 of this Act.
8-21 SECTION 5. This Act takes effect September 1, 1997.
8-22 SECTION 6. The importance of this legislation and the
8-23 crowded condition of the calendars in both houses create an
8-24 emergency and an imperative public necessity that the
8-25 constitutional rule requiring bills to be read on three several
9-1 days in each house be suspended, and this rule is hereby suspended.