AN ACT
1-1 relating to licensing regulations for physician assistants and
1-2 acupuncturists; providing an administrative penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection (h), Section 4, Physician Assistant
1-5 Licensing Act (Article 4495b-1, Vernon's Texas Civil Statutes), is
1-6 amended to read as follows:
1-7 (h) The board is subject to the open meetings law, Chapter
1-8 551, Government Code, and its subsequent amendments, and Chapter
1-9 2001, Government Code (Administrative Procedure Act), and its
1-10 subsequent amendments except as provided by this Act.
1-11 SECTION 2. Section 7, Physician Assistant Licensing Act
1-12 (Article 4495b-1, Vernon's Texas Civil Statutes), is amended to
1-13 read as follows:
1-14 Sec. 7. LICENSURE QUALIFICATIONS. The board shall issue a
1-15 license under this Act to an applicant who:
1-16 (1) submits an application on a form prescribed by the
1-17 board;
1-18 (2) pays the application fee as prescribed by the
1-19 board;
1-20 (3) has successfully completed an educational program
1-21 for physician assistants or surgeon assistants accredited by the
1-22 Committee on Allied Health Education and Accreditation or by that
1-23 committee's predecessor or successor entities, [and] has passed the
2-1 Physician Assistant National Certifying Examination administered by
2-2 the National Commission on Certification of Physician Assistants,
2-3 and holds a valid certificate issued by the National Commission on
2-4 Certification of Physician Assistants;
2-5 (4) certifies that the applicant is mentally and
2-6 physically able to function safely as a physician assistant;
2-7 (5) does not have a license, certification, or
2-8 registration as a physician assistant in this state or from any
2-9 other licensing authority that is currently revoked or suspended or
2-10 the applicant is not subject to probation or other disciplinary
2-11 action for cause resulting from the applicant's acts as a physician
2-12 assistant, unless the board takes that fact into consideration in
2-13 determining whether to issue the license;
2-14 (6) is of good moral character;
2-15 (7) submits to the board any other information the
2-16 board considers necessary to evaluate the applicant's
2-17 qualifications; and
2-18 (8) meets any other requirement established by rules
2-19 adopted by the board.
2-20 SECTION 3. The Physician Assistant Licensing Act (Article
2-21 4495b-1, Vernon's Texas Civil Statutes) is amended by amending
2-22 Sections 18 and 19 and adding Section 19.125 to read as follows:
2-23 Sec. 18. Disciplinary Proceedings. The board may refuse to
2-24 issue a license to any person and may take disciplinary action
2-25 against any[, publicly or privately reprimand a license holder, or
3-1 suspend, revoke, or place other restrictions on a license of a]
3-2 person who:
3-3 (1) fraudulently or deceptively obtains or attempts to
3-4 obtain a license;
3-5 (2) fraudulently or deceptively uses a license;
3-6 (3) violates any provision of this Act or any rule
3-7 adopted under this Act;
3-8 (4) is convicted of a felony or has imposition of
3-9 deferred adjudication or pretrial diversion;
3-10 (5) habitually uses [is a habitual user of intoxicants
3-11 or nontherapeutic] drugs or intoxicating liquors to the extent
3-12 that, in the opinion of the board, the person cannot safely perform
3-13 as a physician assistant;
3-14 (6) has been adjudicated as mentally incompetent or
3-15 has a mental or physical condition that renders the person unable
3-16 to safely perform as a physician assistant;
3-17 (7) has committed an act of moral turpitude;
3-18 (8) represents that the person is a physician;
3-19 (9) has acted in an unprofessional or dishonorable
3-20 manner which is likely to deceive, defraud, or injure any member of
3-21 the public;
3-22 (10) has failed to practice as a physician assistant
3-23 in an acceptable manner consistent with public health and welfare;
3-24 (11) has committed any act that is in violation of the
3-25 laws of the State of Texas if the act is connected with practice as
4-1 a physician assistant; a complaint, indictment, or conviction of a
4-2 law violation is not necessary for the enforcement of this
4-3 provision; proof of the commission of the act while in practice as
4-4 a physician assistant or under the guise of practice as a physician
4-5 assistant is sufficient for action by the board under this section;
4-6 [or]
4-7 (12) has had the person's license or other
4-8 authorization to practice as a physician assistant suspended,
4-9 revoked, or restricted or who has had other disciplinary action
4-10 taken by another state regarding practice as a physician assistant
4-11 or had disciplinary action taken by the uniformed services of the
4-12 United States. A[, based on acts by the licensee similar to acts
4-13 described in this section; a] certified copy of the record of the
4-14 state or uniformed services of the United States taking the action
4-15 is conclusive evidence of it;
4-16 (13) fails to keep complete and accurate records of
4-17 purchases and disposals of drugs listed in Chapter 483, Health and
4-18 Safety Code, as required by Chapter 483, Health and Safety Code, or
4-19 any subsequent rules. A failure to keep the records for a
4-20 reasonable time is grounds for disciplinary action against the
4-21 license of a physician assistant. The board or its representative
4-22 may enter and inspect a physician assistant's place or places of
4-23 practice during reasonable business hours for the purpose of
4-24 verifying the correctness of these records and of taking inventory
4-25 of the drugs on hand;
5-1 (14) writes a false or fictitious prescription for a
5-2 dangerous drug as defined by Chapter 483, Health and Safety Code;
5-3 (15) prescribes, dispenses, or administers a drug or
5-4 treatment that is nontherapeutic in nature or nontherapeutic in the
5-5 manner the drug or treatment is prescribed, dispensed, or
5-6 administered;
5-7 (16) unlawfully advertises in a false, misleading, or
5-8 deceptive manner. Advertisements shall be defined as false,
5-9 misleading, or deceptive consistent with Section 4, Article 4512p,
5-10 Revised Statutes;
5-11 (17) alters, with fraudulent intent, any physician
5-12 assistant license, certificate, or diploma;
5-13 (18) uses any physician assistant license,
5-14 certificate, or diploma that has been fraudulently purchased,
5-15 issued, or counterfeited or that has been materially altered;
5-16 (19) aids or abets, directly or indirectly, the
5-17 practice as a physician assistant by any person not duly licensed
5-18 to practice as a physician assistant by the board;
5-19 (20) is removed or suspended or has disciplinary
5-20 action taken by his peers in any professional association or
5-21 society, whether the association or society is local, regional,
5-22 state, or national in scope, or is being disciplined by a licensed
5-23 hospital or medical staff of a hospital, including removal,
5-24 suspension, limitation of privileges, or other disciplinary action,
5-25 if that action, in the opinion of the board, was based on
6-1 unprofessional conduct or professional incompetence that was likely
6-2 to harm the public. This action does not constitute state action
6-3 on the part of the association, society, or hospital medical staff;
6-4 (21) has repeated or recurring meritorious health care
6-5 liability claims that in the opinion of the board evidence
6-6 professional incompetence likely to harm the public; or
6-7 (22) through his practice as a physician assistant,
6-8 sexually abuses or exploits another person.
6-9 Sec. 19. [ADDITIONAL] DISCIPLINARY AUTHORITY. Except as
6-10 provided in Section 20 of this Act, if the board finds any person
6-11 to have committed any of the acts set forth [In addition to the
6-12 authority under Section 18 of this Act, the board may, on finding
6-13 that a physician assistant has committed an offense described] in
6-14 Section 18 of this Act, it shall enter an order imposing one or
6-15 more of the following:
6-16 (1) deny the person's application for a license or
6-17 other authorization to practice as a physician assistant;
6-18 (2) assess an administrative penalty against the
6-19 person as provided by Section 19.125 of this Act;
6-20 (3) administer a public reprimand;
6-21 (4) suspend, limit, or restrict the person's license
6-22 or other authorization to practice as a physician assistant,
6-23 including limiting the practice of the person to, or excluding from
6-24 the practice, one or more specified activities of the practice as a
6-25 physician assistant or stipulating periodic board review;
7-1 (5) revoke the person's license or other authorization
7-2 to practice as a physician assistant;
7-3 (6) require a physician assistant to submit to the
7-4 care, counseling, or treatment of a health care practitioner
7-5 designated by the board;
7-6 (7) [(2)] stay enforcement of an order and place the
7-7 physician assistant on probation with the board retaining the right
7-8 to vacate the probationary stay and enforce the original order for
7-9 noncompliance with the terms of probation or impose any other
7-10 remedial measures or sanctions authorized by this section;
7-11 (8) [(3)] restore or reissue a license or remove any
7-12 disciplinary or corrective measure that the board may have imposed;
7-13 (9) [(4)] order the physician assistant to perform
7-14 public service; or
7-15 (10) [(5)] require the physician assistant to complete
7-16 additional training.
7-17 Sec. 19.125. ADMINISTRATIVE PENALTY. (a) The board by
7-18 order may impose an administrative penalty against a person
7-19 licensed or regulated under this Act who violates this Act or a
7-20 rule or order adopted under this Act.
7-21 (b) The penalty for a violation may be in an amount not to
7-22 exceed $5,000. Each day a violation continues or occurs is a
7-23 separate violation for purposes of imposing a penalty.
7-24 (c) The amount of the penalty shall be based on:
7-25 (1) patient harm and the severity of patient harm;
8-1 (2) economic harm to any individual or entity and the
8-2 severity of such harm;
8-3 (3) environmental harm and severity of such harm;
8-4 (4) increased potential for harm to the public;
8-5 (5) attempted concealment of misconduct;
8-6 (6) premeditated misconduct;
8-7 (7) intentional misconduct;
8-8 (8) motive;
8-9 (9) prior misconduct of a similar or related nature;
8-10 (10) disciplinary history;
8-11 (11) prior written warnings or written admonishments
8-12 from any government agency or official regarding statutes or
8-13 regulations pertaining to the misconduct;
8-14 (12) violation of a board order;
8-15 (13) failure to implement remedial measures to correct
8-16 or mitigate harm from the misconduct;
8-17 (14) lack of rehabilitative potential or likelihood of
8-18 future misconduct of a similar nature;
8-19 (15) relevant circumstances increasing the seriousness
8-20 of the misconduct; and
8-21 (16) any other matter that justice may require.
8-22 (d) The board by rule shall prescribe the procedure by which
8-23 it may impose an administrative penalty.
8-24 (e) All proceedings under this section are subject to
8-25 Chapter 2001, Government Code.
9-1 (f) If the board by order finds that a violation has
9-2 occurred and imposes an administrative penalty, the board shall
9-3 give notice to the person of the board's order. The notice must
9-4 include a statement of the right of the person to judicial review
9-5 of the order.
9-6 SECTION 4. Section 28, Physician Assistant Licensing Act
9-7 (Article 4495b-1, Vernon's Texas Civil Statutes), is amended to
9-8 read as follows:
9-9 Sec. 28. IMMUNITY AND REPORTING REQUIREMENTS. (a) A
9-10 person, health care entity, medical peer review committee, or other
9-11 entity that without malice furnishes records, information, or
9-12 assistance to the board is immune from any civil liability arising
9-13 from such act.
9-14 (b) Any medical peer review committee in this state, any
9-15 physician assistant licensed to practice in this state, any
9-16 physician assistant student, or any physician licensed to practice
9-17 medicine or otherwise lawfully practicing medicine in this state
9-18 shall report relevant information to the board related to the acts
9-19 of any physician assistant in this state if, in the opinion of the
9-20 medical peer review committee, physician assistant, physician
9-21 assistant student, or physician, a physician assistant poses a
9-22 continuing threat to the public welfare through his practice as a
9-23 physician assistant. The duty to report under this section shall
9-24 not be nullified through contract.
9-25 SECTION 5. Subsections (b), (d), (f), (i), (k), and (r),
10-1 Section 5.06, Medical Practice Act (Article 4495b, Vernon's Texas
10-2 Civil Statutes), are amended to read as follows:
10-3 (b) Each medical peer review committee or health-care entity
10-4 shall report in writing to the board the results and circumstances
10-5 of any professional review action that adversely affects the
10-6 clinical privileges of a physician, physician assistant, or
10-7 acupuncturist for a period longer than 30 days, accepts the
10-8 surrender of clinical privileges of a physician, physician
10-9 assistant, or acupuncturist while the physician, physician
10-10 assistant, or acupuncturist is under an investigation by the
10-11 medical peer review committee relating to possible incompetence or
10-12 improper professional conduct, or in return for not conducting such
10-13 an investigation or proceeding, or in the case of an entity which
10-14 is a professional society or association, takes a professional
10-15 review action which adversely affects the membership of a
10-16 physician, physician assistant, or acupuncturist in the society or
10-17 association. The duty to report under this section shall not be
10-18 nullified through contract.
10-19 (d) Any medical peer review committee in this state, any
10-20 physician licensed to practice medicine or otherwise lawfully
10-21 practicing medicine in this state, any physician engaged in
10-22 graduate medical education or training, [or] any medical student,
10-23 any physician assistant licensed to practice in this state or
10-24 otherwise lawfully practicing as a physician assistant in this
10-25 state, any physician assistant student, any acupuncturist licensed
11-1 to practice in this state or otherwise lawfully practicing
11-2 acupuncture in this state, or any acupuncture student shall report
11-3 relevant information to the board relating to the acts of any
11-4 physician, physician assistant, or acupuncturist in this state if,
11-5 in the opinion of the medical peer review committee, physician,
11-6 [or] medical student, physician assistant, physician assistant
11-7 student, acupuncturist, or acupuncture student, the physician,
11-8 physician assistant, or acupuncturist poses a continuing threat to
11-9 the public welfare through the practice of medicine or acupuncture
11-10 or practice as a physician assistant. The duty to report under
11-11 this section shall not be nullified through contract.
11-12 (f) The filing of a report with the board pursuant to this
11-13 section, investigation by the board, or any disposition by the
11-14 board does not, in itself, preclude any action by a health-care
11-15 entity to suspend, restrict, or revoke the privileges or membership
11-16 of the physician, physician assistant, or acupuncturist.
11-17 (i) Disclosure of confidential peer review committee
11-18 information to the affected physician, physician assistant, or
11-19 acupuncturist pertinent to the matter under review shall not
11-20 constitute waiver of the confidentiality provisions provided in
11-21 this Act. If a medical peer review committee takes action that
11-22 could result in censure, suspension, restriction, limitation,
11-23 revocation, or denial of membership or privileges in a health-care
11-24 entity, the affected physician, physician assistant, or
11-25 acupuncturist shall be provided a written copy of the
12-1 recommendation of the medical peer review committee and a copy of
12-2 the final decision, including a statement of the basis for the
12-3 decision.
12-4 (k) Governing bodies and medical staffs of health-care
12-5 entities and others shall comply fully with a subpoena for
12-6 documents or information issued by the board under Subsection (i)
12-7 of Section 2.09 of this Act or Subsection (a), Section 27,
12-8 Physician Assistant Licensing Act (Article 4495b-1, Vernon's Texas
12-9 Civil Statutes). The disclosure of documents or information under
12-10 such a subpoena does not constitute a waiver of the privilege
12-11 associated with medical peer review committee proceedings. Failure
12-12 to comply with such a subpoena constitutes grounds for disciplinary
12-13 action against the facility or individual by the appropriate
12-14 licensing board.
12-15 (r) If a court of competent jurisdiction makes a final
12-16 determination that a report or complaint made to the board was made
12-17 in bad faith, then such complaint shall be expunged from the
12-18 physician's, physician assistant's, acupuncturist's, or applicant's
12-19 individual historical record.
12-20 SECTION 6. Subdivisions (1) and (2), Subsection (s), Section
12-21 5.06, Medical Practice Act (Article 4495b, Vernon's Texas Civil
12-22 Statutes), are amended to read as follows:
12-23 (s)(1) Reports, information, or records received and
12-24 maintained by the board pursuant to this section and Section 5.05
12-25 of this Act, including any material received or developed by the
13-1 board during an investigation or hearing, are strictly confidential
13-2 and subject to the provisions of Subdivision (4) of this
13-3 subsection. However, the board may disclose this confidential
13-4 information only:
13-5 (A) in a disciplinary hearing before the board
13-6 or in a subsequent trial or appeal of a board action or order;
13-7 (B) to the physician, physician assistant, or
13-8 acupuncture licensing or disciplinary authorities of other
13-9 jurisdictions, to a local, state, or national professional medical,
13-10 physician assistant, or acupuncture society or association, or to a
13-11 medical, physician assistant, or acupuncture peer review committee
13-12 located inside or outside this state that is concerned with
13-13 granting, limiting, or denying a physician, physician assistant, or
13-14 acupuncturist hospital privileges;
13-15 (C) pursuant to an order of a court of competent
13-16 jurisdiction; or
13-17 (D) to qualified personnel for bona fide
13-18 research or educational purposes, if personally identifiable
13-19 information relating to any person or physician is first deleted.
13-20 (2) Disciplinary orders of the board against a
13-21 physician, physician assistant, or acupuncturist and known hospital
13-22 suspensions for 30 days or longer of a physician, physician
13-23 assistant, or acupuncturist relating to the competence of a
13-24 physician, physician assistant, or acupuncturist are not
13-25 confidential.
14-1 SECTION 7. This Act takes effect September 1, 1997.
14-2 SECTION 8. The importance of this legislation and the
14-3 crowded condition of the calendars in both houses create an
14-4 emergency and an imperative public necessity that the
14-5 constitutional rule requiring bills to be read on three several
14-6 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1566 passed the Senate on
April 28, 1997, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendment on May 26, 1997, by a
viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1566 passed the House, with
amendment, on May 23, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor