1-1 By: Cain S.B. No. 1297
1-2 (In the Senate - Filed March 12, 1997; March 18, 1997, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 18, 1997, reported favorably by the following vote: Yeas 11,
1-5 Nays 0; April 18, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to disciplinary procedures and peer review for certain
1-9 medical practitioners; providing administrative penalties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Subsections (b), (d), (f), (i), (k), and (r),
1-12 Section 5.06, Medical Practice Act (Article 4495b, Vernon's Texas
1-13 Civil Statutes), are amended to read as follows:
1-14 (b) Each medical peer review committee or health-care entity
1-15 shall report in writing to the board the results and circumstances
1-16 of any professional review action that adversely affects the
1-17 clinical privileges of a physician, physician assistant, or
1-18 acupuncturist for a period longer than 30 days, accepts the
1-19 surrender of clinical privileges of a physician, physician
1-20 assistant, or acupuncturist while the physician, physician
1-21 assistant, or acupuncturist is under an investigation by the
1-22 medical peer review committee relating to possible incompetence or
1-23 improper professional conduct, or in return for not conducting such
1-24 an investigation or proceeding, or in the case of an entity which
1-25 is a professional society or association, takes a professional
1-26 review action which adversely affects the membership of a
1-27 physician, physician assistant, or acupuncturist in the society or
1-28 association. The duty to report under this section shall not be
1-29 nullified through contract.
1-30 (d) Any medical peer review committee in this state, any
1-31 physician licensed to practice medicine or otherwise lawfully
1-32 practicing medicine in this state, any physician engaged in
1-33 graduate medical education or training, [or] any medical student,
1-34 any physician assistant licensed to practice in this state or
1-35 otherwise lawfully practicing as a physician assistant in this
1-36 state, any physician assistant student, any acupuncturist licensed
1-37 to practice in this state or otherwise lawfully practicing
1-38 acupuncture in this state, or any acupuncture student shall report
1-39 relevant information to the board relating to the acts of any
1-40 physician, physician assistant, or acupuncturist in this state if,
1-41 in the opinion of the medical peer review committee, physician,
1-42 [or] medical student, physician assistant, physician assistant
1-43 student, acupuncturist, or acupuncture student, the physician,
1-44 physician assistant, or acupuncturist poses a continuing threat to
1-45 the public welfare through the practice of medicine or acupuncture
1-46 or practice as a physician assistant. The duty to report under
1-47 this section shall not be nullified through contract.
1-48 (f) The filing of a report with the board pursuant to this
1-49 section, investigation by the board, or any disposition by the
1-50 board does not, in itself, preclude any action by a health-care
1-51 entity to suspend, restrict, or revoke the privileges or membership
1-52 of the physician, physician assistant, or acupuncturist.
1-53 (i) Disclosure of confidential peer review committee
1-54 information to the affected physician, physician assistant, or
1-55 acupuncturist pertinent to the matter under review shall not
1-56 constitute waiver of the confidentiality provisions provided in
1-57 this Act. If a medical peer review committee takes action that
1-58 could result in censure, suspension, restriction, limitation,
1-59 revocation, or denial of membership or privileges in a health-care
1-60 entity, the affected physician, physician assistant, or
1-61 acupuncturist shall be provided a written copy of the
1-62 recommendation of the medical peer review committee and a copy of
1-63 the final decision, including a statement of the basis for the
1-64 decision.
2-1 (k) Governing bodies and medical staffs of health-care
2-2 entities and others shall comply fully with a subpoena for
2-3 documents or information issued by the board under Subsection (i)
2-4 of Section 2.09 of this Act or Subsection (a), Section 27,
2-5 Physician Assistant Licensing Act (Article 4495b-1, Vernon's Texas
2-6 Civil Statutes). The disclosure of documents or information under
2-7 such a subpoena does not constitute a waiver of the privilege
2-8 associated with medical peer review committee proceedings. Failure
2-9 to comply with such a subpoena constitutes grounds for disciplinary
2-10 action against the facility or individual by the appropriate
2-11 licensing board.
2-12 (r) If a court of competent jurisdiction makes a final
2-13 determination that a report or complaint made to the board was made
2-14 in bad faith, then such complaint shall be expunged from the
2-15 physician's, physician assistant's, acupuncturist's, or applicant's
2-16 individual historical record.
2-17 SECTION 2. Subdivisions (1) and (2), Subsection (s), Section
2-18 5.06, Medical Practice Act (Article 4495b, Vernon's Texas Civil
2-19 Statutes), are amended to read as follows:
2-20 (1) Reports, information, or records received and
2-21 maintained by the board pursuant to this section and Section 5.05
2-22 of this Act, including any material received or developed by the
2-23 board during an investigation or hearing, are strictly confidential
2-24 and subject to the provisions of Subdivision (4) of this
2-25 subsection. However, the board may disclose this confidential
2-26 information only:
2-27 (A) in a disciplinary hearing before the board
2-28 or in a subsequent trial or appeal of a board action or order;
2-29 (B) to the physician, physician assistant, or
2-30 acupuncture licensing or disciplinary authorities of other
2-31 jurisdictions, to a local, state, or national professional medical,
2-32 physician assistant, or acupuncture society or association, or to a
2-33 medical, physician assistant, or acupuncture peer review committee
2-34 located inside or outside this state that is concerned with
2-35 granting, limiting, or denying a physician, physician assistant, or
2-36 acupuncturist hospital privileges;
2-37 (C) pursuant to an order of a court of competent
2-38 jurisdiction; or
2-39 (D) to qualified personnel for bona fide
2-40 research or educational purposes, if personally identifiable
2-41 information relating to any person or physician is first deleted.
2-42 (2) Disciplinary orders of the board against a
2-43 physician, physician assistant, or acupuncturist and known hospital
2-44 suspensions for 30 days or longer of a physician, physician
2-45 assistant, or acupuncturist relating to the competence of a
2-46 physician, physician assistant, or acupuncturist are not
2-47 confidential.
2-48 SECTION 3. Subsection (g), Section 6.04, Medical Practice
2-49 Act (Article 4495b, Vernon's Texas Civil Statutes), is amended to
2-50 read as follows:
2-51 (g) The acupuncture board is subject to the open meetings
2-52 law, the open records law, and the Administrative Procedure Act and
2-53 any subsequent amendments except as provided by this Act, and in
2-54 such event this Act will control.
2-55 SECTION 4. Section 6.11, Medical Practice Act (Article
2-56 4495b, Vernon's Texas Civil Statutes), is amended by amending
2-57 Subsection (a) and adding Subsection (h) to read as follows:
2-58 (a) A license to practice acupuncture may be denied or,
2-59 after notice and hearing, disciplinary action may be taken
2-60 [suspended, probated, or revoked] if the applicant for a license or
2-61 the holder of a license:
2-62 (1) intemperately uses drugs or intoxicating liquors
2-63 to an extent that, in the opinion of the board, could endanger the
2-64 lives of patients [affects the person's professional competence];
2-65 (2) obtains or attempts to obtain a license by fraud
2-66 or deception;
2-67 (3) is adjudged mentally incompetent by a court of
2-68 competent jurisdiction;
2-69 (4) fails to practice [practices] acupuncture in an
3-1 acceptable [a] manner consistent with [detrimental to the] public
3-2 health and welfare;
3-3 (5) violates this subchapter or a rule adopted under
3-4 this subchapter;
3-5 (6) is convicted of a felony or a crime involving
3-6 moral turpitude or is the subject of deferred adjudication or
3-7 pretrial diversion for such an offense; [or]
3-8 (7) holds himself out as a physician or surgeon or any
3-9 combination or derivative of those terms unless the person is also
3-10 licensed by the medical board as a physician or surgeon;
3-11 (8) engages in unprofessional or dishonorable conduct
3-12 that is likely to deceive, defraud, or injure the public;
3-13 (9) commits any act that is in violation of the laws
3-14 of the State of Texas if the act is connected with the licensee's
3-15 practice of acupuncture; a complaint, indictment, or conviction of
3-16 a law violation is not necessary for the enforcement of this
3-17 provision; and proof of the commission of the act while in the
3-18 practice of acupuncture or under the guise of the practice of
3-19 acupuncture is sufficient for action by the board under this
3-20 section;
3-21 (10) fails to supervise adequately the activities of
3-22 persons acting under the supervision of the licensee;
3-23 (11) aids or abets, directly or indirectly, the
3-24 practice of acupuncture by any person not duly licensed to practice
3-25 acupuncture by the board;
3-26 (12) is unable to practice acupuncture with reasonable
3-27 skill and with safety to patients by reason of illness,
3-28 drunkenness, excessive use of drugs, narcotics, chemicals, or any
3-29 other type of material or as a result of any mental or physical
3-30 condition;
3-31 (13) has repeated or recurring meritorious health-care
3-32 liability claims that in the opinion of the board evidence
3-33 professional incompetence likely to injure the public;
3-34 (14) has had a license to practice acupuncture
3-35 suspended, revoked, or restricted by another state or has been
3-36 subject to other disciplinary action by another state or by the
3-37 uniformed services of the United States regarding practice as an
3-38 acupuncturist; a certified copy of the record of the state or
3-39 uniformed service taking the action is conclusive evidence of it;
3-40 or
3-41 (15) through the licensee's practice as an
3-42 acupuncturist, sexually abuses or exploits another person.
3-43 (h) Disciplinary action shall be by an order of the board
3-44 and shall include one or more of the following:
3-45 (1) deny the person's application for a license or
3-46 other authorization to practice acupuncture;
3-47 (2) administer a public reprimand;
3-48 (3) suspend, limit, or restrict the person's license
3-49 or other authorization to practice acupuncture, including limiting
3-50 the practice of the person to, or excluding from the practice, one
3-51 or more specified activities of acupuncture or stipulating periodic
3-52 board review;
3-53 (4) revoke the person's license or other authorization
3-54 to practice acupuncture;
3-55 (5) require the person to submit to the care,
3-56 counseling, or treatment of health practitioners designated by the
3-57 board as a condition for the issuance, continuance, or renewal of a
3-58 license or other authorization to practice acupuncture;
3-59 (6) require the person to participate in a program of
3-60 education or counseling prescribed by the board;
3-61 (7) require the person to practice under the direction
3-62 of an acupuncturist designated by the board for a specified period
3-63 of time;
3-64 (8) require the person to perform public service
3-65 considered appropriate by the board; or
3-66 (9) assess an administrative penalty against the
3-67 person as provided by Section 4.125 of this Act.
3-68 SECTION 5. This Act takes effect September 1, 1997.
3-69 SECTION 6. The importance of this legislation and the
4-1 crowded condition of the calendars in both houses create an
4-2 emergency and an imperative public necessity that the
4-3 constitutional rule requiring bills to be read on three several
4-4 days in each house be suspended, and this rule is hereby suspended.
4-5 * * * * *