By:  Cain                                    S.B. No. 1566

         97S0860/1                           

                                A BILL TO BE ENTITLED

                                       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.  The Physician Assistant Licensing Act (Article

1-12     4495b-1, Vernon's Texas Civil Statutes) is amended by amending

1-13     Sections 18 and 19 and adding Section 19.125 to read as follows:

1-14           Sec. 18.  Disciplinary Proceedings.  The board may refuse to

1-15     issue a license to any person and may take disciplinary action

1-16     against any [, publicly or privately reprimand a license holder, or

1-17     suspend, revoke, or place other restrictions on a license of a]

1-18     person who:

1-19                 (1)  fraudulently or deceptively obtains or attempts to

1-20     obtain a license;

1-21                 (2)  fraudulently or deceptively uses a license;

1-22                 (3)  violates any provision of this Act or any rule

1-23     adopted under this Act;

 2-1                 (4)  is convicted of a felony or has imposition of

 2-2     deferred adjudication or pretrial diversion;

 2-3                 (5)  habitually uses [is a habitual user of intoxicants

 2-4     or nontherapeutic] drugs or intoxicating liquors to the extent

 2-5     that, in the opinion of the board, the person cannot safely perform

 2-6     as a physician assistant;

 2-7                 (6)  has been adjudicated as mentally incompetent or

 2-8     has a mental or physical condition that renders the person unable

 2-9     to safely perform as a physician assistant;

2-10                 (7)  has committed an act of moral turpitude;

2-11                 (8)  represents that the person is a physician;

2-12                 (9)  has acted in an unprofessional or dishonorable

2-13     manner which is likely to deceive, defraud, or injure any member of

2-14     the public;

2-15                 (10)  has failed to practice as a physician assistant

2-16     in an acceptable manner consistent with public health and welfare;

2-17                 (11)  has committed any act that is in violation of the

2-18     laws of the State of Texas if the act is connected with practice as

2-19     a physician assistant; a complaint, indictment, or conviction of a

2-20     law violation is not necessary for the enforcement of this

2-21     provision; proof of the commission of the act while in practice as

2-22     a physician assistant or under the guise of practice as a physician

2-23     assistant is sufficient for action by the board under this section;

2-24     [or]

2-25                 (12)  has had the person's license or other

 3-1     authorization to practice as a physician assistant suspended,

 3-2     revoked, or restricted or who has had other disciplinary action

 3-3     taken by another state regarding practice as a physician assistant

 3-4     or had disciplinary action taken by the uniformed services of the

 3-5     United States.  A[, based on acts by the licensee similar to acts

 3-6     described in this section; a] certified copy of the record of the

 3-7     state or uniformed services of the United States taking the action

 3-8     is conclusive evidence of it;

 3-9                 (13)  fails to keep complete and accurate records of

3-10     purchases and disposals of drugs listed in Chapter 483, Health and

3-11     Safety Code, as required by Chapter 483, Health and Safety Code, or

3-12     any subsequent rules.  A failure to keep the records for a

3-13     reasonable time is grounds for disciplinary action against the

3-14     license of a physician assistant.  The board or its representative

3-15     may enter and inspect a physician assistant's place or places of

3-16     practice during reasonable business hours for the purpose of

3-17     verifying the correctness of these records and of taking inventory

3-18     of the drugs on hand;

3-19                 (14)  writes a false or fictitious prescription for a

3-20     dangerous drug as defined by Chapter 483, Health and Safety Code;

3-21                 (15)  prescribes, dispenses, or administers a drug or

3-22     treatment that is nontherapeutic in nature or nontherapeutic in the

3-23     manner the drug or treatment is prescribed, dispensed, or

3-24     administered;

3-25                 (16)  unlawfully advertises in a false, misleading, or

 4-1     deceptive manner. Advertisements shall be defined as false,

 4-2     misleading, or deceptive consistent with Section 4, Article 4512p,

 4-3     Revised Statutes;

 4-4                 (17)  alters, with fraudulent intent, any physician

 4-5     assistant license, certificate, or diploma;

 4-6                 (18)  uses any physician assistant license,

 4-7     certificate, or diploma that has been fraudulently purchased,

 4-8     issued, or counterfeited or that has been materially altered;

 4-9                 (19)  aids or abets, directly or indirectly, the

4-10     practice as a physician assistant by any person not duly licensed

4-11     to practice as a physician assistant by the board;

4-12                 (20)  is removed or suspended or has disciplinary

4-13     action taken by his peers in any professional association or

4-14     society, whether the association or society is local, regional,

4-15     state, or national in scope, or is being disciplined by a licensed

4-16     hospital or medical staff of a hospital, including removal,

4-17     suspension, limitation of privileges, or other disciplinary action,

4-18     if that action, in the opinion of the board, was based on

4-19     unprofessional conduct or professional incompetence that was likely

4-20     to harm the public.  This action does not constitute state action

4-21     on the part of the association, society, or hospital medical staff;

4-22                 (21)  has repeated or recurring meritorious health care

4-23     liability claims that in the opinion of the board evidence

4-24     professional incompetence likely to harm the public; or

4-25                 (22)  through his practice as a physician assistant,

 5-1     sexually abuses or exploits another person.

 5-2           Sec. 19.  [ADDITIONAL] DISCIPLINARY AUTHORITY.  Except as

 5-3     provided in Section 20 of this Act, if the board finds any person

 5-4     to have committed any of the acts set forth [In addition to the

 5-5     authority under Section 18 of this Act, the board may, on finding

 5-6     that a physician assistant has committed an offense described] in

 5-7     Section 18 of this Act, it shall enter an order imposing one or

 5-8     more of the following:

 5-9                 (1)  deny the person's application for a license or

5-10     other authorization to practice as a physician assistant;

5-11                 (2)  assess an administrative penalty against the

5-12     person as provided by Section 19.125 of this Act;

5-13                 (3)  administer a public reprimand;

5-14                 (4)  suspend, limit, or restrict the person's license

5-15     or other authorization to practice as a physician assistant,

5-16     including limiting the practice of the person to, or excluding from

5-17     the practice, one or more specified activities of the practice as a

5-18     physician assistant or stipulating periodic board review;

5-19                 (5)  revoke the person's license or other authorization

5-20     to practice as a physician assistant;

5-21                 (6)  require a physician assistant to submit to the

5-22     care, counseling, or treatment of a health care practitioner

5-23     designated by the board;

5-24                 (7) [(2)]  stay enforcement of an order and place the

5-25     physician assistant on probation with the board retaining the right

 6-1     to vacate the probationary stay and enforce the original order for

 6-2     noncompliance with the terms of probation or impose any other

 6-3     remedial measures or sanctions authorized by this section;

 6-4                 (8) [(3)]  restore or reissue a license or remove any

 6-5     disciplinary or corrective measure that the board may have imposed;

 6-6                 (9) [(4)]  order the physician assistant to perform

 6-7     public service; or

 6-8                 (10) [(5)]  require the physician assistant to complete

 6-9     additional training.

6-10           Sec. 19.125.  ADMINISTRATIVE PENALTY.  (a)  The board by

6-11     order may impose an administrative penalty against a person

6-12     licensed or regulated under this Act who violates this Act or a

6-13     rule or order adopted under this Act.

6-14           (b)  The penalty for a violation may be in an amount not to

6-15     exceed $5,000. Each day a violation continues or occurs is a

6-16     separate violation for purposes of imposing a penalty.

6-17           (c)  The amount of the penalty shall be based on:

6-18                 (1)  patient harm and the severity of patient harm;

6-19                 (2)  economic harm to any individual or entity and the

6-20     severity of such harm;

6-21                 (3)  environmental harm and severity of such harm;

6-22                 (4)  increased potential for harm to the public;

6-23                 (5)  attempted concealment of misconduct;

6-24                 (6)  premeditated misconduct;

6-25                 (7)  intentional misconduct;

 7-1                 (8)  motive;

 7-2                 (9)  prior misconduct of a similar or related nature;

 7-3                 (10)  disciplinary history;

 7-4                 (11)  prior written warnings or written admonishments

 7-5     from any government agency or official regarding statutes or

 7-6     regulations pertaining to the misconduct;

 7-7                 (12)  violation of a board order;

 7-8                 (13)  failure to implement remedial measures to correct

 7-9     or mitigate harm from the misconduct;

7-10                 (14)  lack of rehabilitative potential or likelihood

7-11     for future misconduct of a similar nature;

7-12                 (15)  relevant circumstances increasing the seriousness

7-13     of the misconduct; and

7-14                 (16)  any other matter that justice may require.

7-15           (d)  The board by rule shall prescribe the procedure by which

7-16     it may impose an administrative penalty.

7-17           (e)  All proceedings under this section are subject to

7-18     Chapter 2001, Government Code.

7-19           (f)  If the board by order finds that a violation has

7-20     occurred and imposes an administrative penalty, the board shall

7-21     give notice to the person of the board's order.  The notice must

7-22     include a statement of the right of the person to judicial review

7-23     of the order.

7-24           SECTION 3.  Section 28, Physician Assistant Licensing Act

7-25     (Article 4495b-1, Vernon's Texas Civil Statutes), is amended to

 8-1     read as follows:

 8-2           Sec. 28.  IMMUNITY AND REPORTING REQUIREMENTS.  (a)  A

 8-3     person, health care entity, medical peer review committee, or other

 8-4     entity that without malice furnishes records, information, or

 8-5     assistance to the board is immune from any civil liability arising

 8-6     from such act.

 8-7           (b)  Any medical peer review committee in this state, any

 8-8     physician assistant licensed to practice in this state, any

 8-9     physician assistant student, or any physician licensed to practice

8-10     medicine or otherwise lawfully practicing medicine in this state

8-11     shall report relevant information to the board related to the acts

8-12     of any physician assistant in this state if, in the opinion of the

8-13     medical peer review committee, physician assistant, physician

8-14     assistant student, or physician, a physician assistant poses a

8-15     continuing threat to the public welfare through his practice as a

8-16     physician assistant.  The duty to report under this section shall

8-17     not be nullified through contract.

8-18           SECTION 4.  Subsections (b), (d), (f), (i), (k), and (r),

8-19     Section 5.06, Medical Practice Act (Article 4495b, Vernon's Texas

8-20     Civil Statutes), are amended to read as follows:

8-21           (b)  Each medical peer review committee or health-care entity

8-22     shall report in writing to the board the results and circumstances

8-23     of any professional review action that adversely affects the

8-24     clinical privileges of a physician, physician assistant, or

8-25     acupuncturist for a period longer than 30 days, accepts the

 9-1     surrender of clinical privileges of a physician, physician

 9-2     assistant, or acupuncturist while the physician, physician

 9-3     assistant, or acupuncturist is under an investigation by the

 9-4     medical peer review committee relating to possible incompetence or

 9-5     improper professional conduct, or in return for not conducting such

 9-6     an investigation or proceeding, or in the case of an entity which

 9-7     is a professional society or association, takes a professional

 9-8     review action which adversely affects the membership of a

 9-9     physician, physician assistant, or acupuncturist in the society or

9-10     association.  The duty to report under this section shall not be

9-11     nullified through contract.

9-12           (d)  Any medical peer review committee in this state, any

9-13     physician licensed to practice medicine or otherwise lawfully

9-14     practicing medicine in this state, any physician engaged in

9-15     graduate medical education or training, [or] any medical student,

9-16     any physician assistant licensed to practice in this state or

9-17     otherwise lawfully practicing as a physician assistant in this

9-18     state, any physician assistant student, any acupuncturist licensed

9-19     to practice in this state or otherwise lawfully practicing

9-20     acupuncture in this state, or any acupuncture student shall report

9-21     relevant information to the board relating to the acts of any

9-22     physician, physician assistant, or acupuncturist in this state if,

9-23     in the opinion of the medical peer review committee, physician,

9-24     [or] medical student, physician assistant, physician assistant

9-25     student, acupuncturist or acupuncture student, the physician,

 10-1    physician assistant, or acupuncturist poses a continuing threat to

 10-2    the public welfare through the practice of medicine or acupuncture

 10-3    or practice as a physician assistant.  The duty to report under

 10-4    this section shall not be nullified through contract.

 10-5          (f)  The filing of a report with the board pursuant to this

 10-6    section, investigation by the board, or any disposition by the

 10-7    board does not, in itself, preclude any action by a health-care

 10-8    entity to suspend, restrict, or revoke the privileges or membership

 10-9    of the physician, physician assistant, or acupuncturist.

10-10          (i)  Disclosure of confidential peer review committee

10-11    information to the affected physician, physician assistant, or

10-12    acupuncturist pertinent to the matter under review shall not

10-13    constitute waiver of the confidentiality provisions provided in

10-14    this Act.  If a medical peer review committee takes action that

10-15    could result in censure, suspension, restriction, limitation,

10-16    revocation, or denial of membership or privileges in a health-care

10-17    entity, the affected physician, physician assistant, or

10-18    acupuncturist shall be provided a written copy of the

10-19    recommendation of the medical peer review committee and a copy of

10-20    the final decision, including a statement of the basis for the

10-21    decision.

10-22          (k)  Governing bodies and medical staffs of health-care

10-23    entities and others shall comply fully with a subpoena for

10-24    documents or information issued by the board under Subsection (i)

10-25    of Section 2.09 of this Act or Subsection (a), Section 27,

 11-1    Physician Assistant Licensing Act (Article 4495b-1, Vernon's Texas

 11-2    Civil Statutes).  The disclosure of documents or information under

 11-3    such a subpoena does not constitute a waiver of the privilege

 11-4    associated with medical peer review committee proceedings. Failure

 11-5    to comply with such a subpoena constitutes grounds for disciplinary

 11-6    action against the facility or individual by the appropriate

 11-7    licensing board.

 11-8          (r)  If a court of competent jurisdiction makes a final

 11-9    determination that a report or complaint made to the board was made

11-10    in bad faith, then such complaint shall be expunged from the

11-11    physician's, physician assistant's, acupuncturist's, or applicant's

11-12    individual historical record.

11-13          SECTION 5.  Subdivisions (1) and (2), Subsection (s), Section

11-14    5.06, Medical Practice Act (Article 4495b, Vernon's Texas Civil

11-15    Statutes), are amended to read as follows:

11-16          (s)(1)  Reports, information, or records received and

11-17    maintained by the board pursuant to this section and Section 5.05

11-18    of this Act, including any material received or developed by the

11-19    board during an investigation or hearing, are strictly confidential

11-20    and subject to the provisions of Subdivision (4) of this

11-21    subsection.  However, the board may disclose this confidential

11-22    information only:

11-23                      (A)  in a disciplinary hearing before the board

11-24    or in a subsequent trial or appeal of a board action or order;

11-25                      (B)  to the physician, physician assistant, or

 12-1    acupuncture licensing or disciplinary authorities of other

 12-2    jurisdictions, to a local, state, or national professional medical,

 12-3    physician assistant, or acupuncture society or association, or to a

 12-4    medical, physician assistant, or acupuncture peer review committee

 12-5    located inside or outside this state that is concerned with

 12-6    granting, limiting, or denying a physician, physician assistant, or

 12-7    acupuncturist hospital privileges;

 12-8                      (C)  pursuant to an order of a court of competent

 12-9    jurisdiction; or

12-10                      (D)  to qualified personnel for bona fide

12-11    research or educational purposes, if personally identifiable

12-12    information relating to any person or physician is first deleted.

12-13                (2)  Disciplinary orders of the board against a

12-14    physician, physician assistant, or acupuncturist and known hospital

12-15    suspensions for 30 days or longer of a physician, physician

12-16    assistant, or acupuncturist relating to the competence of a

12-17    physician, physician assistant, or acupuncturist are not

12-18    confidential.

12-19          SECTION 6.  This Act takes effect September 1, 1997.

12-20          SECTION 7.  The importance of this legislation and the

12-21    crowded condition of the calendars in both houses create an

12-22    emergency and an imperative public necessity that the

12-23    constitutional rule requiring bills to be read on three several

12-24    days in each house be suspended, and this rule is hereby suspended.