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.