1-1     By:  Cain                                             S.B. No. 1566

 1-2           (In the Senate - Filed March 14, 1997; March 20, 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 licensing regulations for physician assistants and

 1-9     acupuncturists; providing an administrative penalty.

1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-11           SECTION 1.  Subsection (h), Section 4, Physician Assistant

1-12     Licensing Act (Article 4495b-1, Vernon's Texas Civil Statutes), is

1-13     amended to read as follows:

1-14           (h)  The board is subject to the open meetings law, Chapter

1-15     551, Government Code, and its subsequent amendments, and Chapter

1-16     2001, Government Code (Administrative Procedure Act), and its

1-17     subsequent amendments except as provided by this Act.

1-18           SECTION 2.  The Physician Assistant Licensing Act (Article

1-19     4495b-1, Vernon's Texas Civil Statutes) is amended by amending

1-20     Sections 18 and 19 and adding Section 19.125 to read as follows:

1-21           Sec. 18.  Disciplinary Proceedings.  The board may refuse to

1-22     issue a license to any person and may take disciplinary action

1-23     against any[, publicly or privately reprimand a license holder, or

1-24     suspend, revoke, or place other restrictions on a license of a]

1-25     person who:

1-26                 (1)  fraudulently or deceptively obtains or attempts to

1-27     obtain a license;

1-28                 (2)  fraudulently or deceptively uses a license;

1-29                 (3)  violates any provision of this Act or any rule

1-30     adopted under this Act;

1-31                 (4)  is convicted of a felony or has imposition of

1-32     deferred adjudication or pretrial diversion;

1-33                 (5)  habitually uses [is a habitual user of intoxicants

1-34     or nontherapeutic] drugs or intoxicating liquors to the extent

1-35     that, in the opinion of the board, the person cannot safely perform

1-36     as a physician assistant;

1-37                 (6)  has been adjudicated as mentally incompetent or

1-38     has a mental or physical condition that renders the person unable

1-39     to safely perform as a physician assistant;

1-40                 (7)  has committed an act of moral turpitude;

1-41                 (8)  represents that the person is a physician;

1-42                 (9)  has acted in an unprofessional or dishonorable

1-43     manner which is likely to deceive, defraud, or injure any member of

1-44     the public;

1-45                 (10)  has failed to practice as a physician assistant

1-46     in an acceptable manner consistent with public health and welfare;

1-47                 (11)  has committed any act that is in violation of the

1-48     laws of the State of Texas if the act is connected with practice as

1-49     a physician assistant; a complaint, indictment, or conviction of a

1-50     law violation is not necessary for the enforcement of this

1-51     provision; proof of the commission of the act while in practice as

1-52     a physician assistant or under the guise of practice as a physician

1-53     assistant is sufficient for action by the board under this section;

1-54     [or]

1-55                 (12)  has had the person's license or other

1-56     authorization to practice as a physician assistant suspended,

1-57     revoked, or restricted or who has had other disciplinary action

1-58     taken by another state regarding practice as a physician assistant

1-59     or had disciplinary action taken by the uniformed services of the

1-60     United States.  A[, based on acts by the licensee similar to acts

1-61     described in this section; a] certified copy of the record of the

1-62     state or uniformed services of the United States taking the action

1-63     is conclusive evidence of it;

1-64                 (13)  fails to keep complete and accurate records of

 2-1     purchases and disposals of drugs listed in Chapter 483, Health and

 2-2     Safety Code, as required by Chapter 483, Health and Safety Code, or

 2-3     any subsequent rules.  A failure to keep the records for a

 2-4     reasonable time is grounds for disciplinary action against the

 2-5     license of a physician assistant.  The board or its representative

 2-6     may enter and inspect a physician assistant's place or places of

 2-7     practice during reasonable business hours for the purpose of

 2-8     verifying the correctness of these records and of taking inventory

 2-9     of the drugs on hand;

2-10                 (14)  writes a false or fictitious prescription for a

2-11     dangerous drug as defined by Chapter 483, Health and Safety Code;

2-12                 (15)  prescribes, dispenses, or administers a drug or

2-13     treatment that is nontherapeutic in nature or nontherapeutic in the

2-14     manner the drug or treatment is prescribed, dispensed, or

2-15     administered;

2-16                 (16)  unlawfully advertises in a false, misleading, or

2-17     deceptive manner. Advertisements shall be defined as false,

2-18     misleading, or deceptive consistent with Section 4, Article 4512p,

2-19     Revised Statutes;

2-20                 (17)  alters, with fraudulent intent, any physician

2-21     assistant license, certificate, or diploma;

2-22                 (18)  uses any physician assistant license,

2-23     certificate, or diploma that has been fraudulently purchased,

2-24     issued, or counterfeited or that has been materially altered;

2-25                 (19)  aids or abets, directly or indirectly, the

2-26     practice as a physician assistant by any person not duly licensed

2-27     to practice as a physician assistant by the board;

2-28                 (20)  is removed or suspended or has disciplinary

2-29     action taken by his peers in any professional association or

2-30     society, whether the association or society is local, regional,

2-31     state, or national in scope, or is being disciplined by a licensed

2-32     hospital or medical staff of a hospital, including removal,

2-33     suspension, limitation of privileges, or other disciplinary action,

2-34     if that action, in the opinion of the board, was based on

2-35     unprofessional conduct or professional incompetence that was likely

2-36     to harm the public.  This action does not constitute state action

2-37     on the part of the association, society, or hospital medical staff;

2-38                 (21)  has repeated or recurring meritorious health care

2-39     liability claims that in the opinion of the board evidence

2-40     professional incompetence likely to harm the public; or

2-41                 (22)  through his practice as a physician assistant,

2-42     sexually abuses or exploits another person.

2-43           Sec. 19.  [ADDITIONAL] DISCIPLINARY AUTHORITY.  Except as

2-44     provided in Section 20 of this Act, if the board finds any person

2-45     to have committed any of the acts set forth [In addition to the

2-46     authority under Section 18 of this Act, the board may, on finding

2-47     that a physician assistant has committed an offense described] in

2-48     Section 18 of this Act, it shall enter an order imposing one or

2-49     more of the following:

2-50                 (1)  deny the person's application for a license or

2-51     other authorization to practice as a physician assistant;

2-52                 (2)  assess an administrative penalty against the

2-53     person as provided by Section 19.125 of this Act;

2-54                 (3)  administer a public reprimand;

2-55                 (4)  suspend, limit, or restrict the person's license

2-56     or other authorization to practice as a physician assistant,

2-57     including limiting the practice of the person to, or excluding from

2-58     the practice, one or more specified activities of the practice as a

2-59     physician assistant or stipulating periodic board review;

2-60                 (5)  revoke the person's license or other authorization

2-61     to practice as a physician assistant;

2-62                 (6)  require a physician assistant to submit to the

2-63     care, counseling, or treatment of a health care practitioner

2-64     designated by the board;

2-65                 (7) [(2)]  stay enforcement of an order and place the

2-66     physician assistant on probation with the board retaining the right

2-67     to vacate the probationary stay and enforce the original order for

2-68     noncompliance with the terms of probation or impose any other

2-69     remedial measures or sanctions authorized by this section;

 3-1                 (8) [(3)]  restore or reissue a license or remove any

 3-2     disciplinary or corrective measure that the board may have imposed;

 3-3                 (9) [(4)]  order the physician assistant to perform

 3-4     public service; or

 3-5                 (10) [(5)]  require the physician assistant to complete

 3-6     additional training.

 3-7           Sec. 19.125.  ADMINISTRATIVE PENALTY.  (a)  The board by

 3-8     order may impose an administrative penalty against a person

 3-9     licensed or regulated under this Act who violates this Act or a

3-10     rule or order adopted under this Act.

3-11           (b)  The penalty for a violation may be in an amount not to

3-12     exceed $5,000.  Each day a violation continues or occurs is a

3-13     separate violation for purposes of imposing a penalty.

3-14           (c)  The amount of the penalty shall be based on:

3-15                 (1)  patient harm and the severity of patient harm;

3-16                 (2)  economic harm to any individual or entity and the

3-17     severity of such harm;

3-18                 (3)  environmental harm and severity of such harm;

3-19                 (4)  increased potential for harm to the public;

3-20                 (5)  attempted concealment of misconduct;

3-21                 (6)  premeditated misconduct;

3-22                 (7)  intentional misconduct;

3-23                 (8)  motive;

3-24                 (9)  prior misconduct of a similar or related nature;

3-25                 (10)  disciplinary history;

3-26                 (11)  prior written warnings or written admonishments

3-27     from any government agency or official regarding statutes or

3-28     regulations pertaining to the misconduct;

3-29                 (12)  violation of a board order;

3-30                 (13)  failure to implement remedial measures to correct

3-31     or mitigate harm from the misconduct;

3-32                 (14)  lack of rehabilitative potential or likelihood of

3-33     future misconduct of a similar nature;

3-34                 (15)  relevant circumstances increasing the seriousness

3-35     of the misconduct; and

3-36                 (16)  any other matter that justice may require.

3-37           (d)  The board by rule shall prescribe the procedure by which

3-38     it may impose an administrative penalty.

3-39           (e)  All proceedings under this section are subject to

3-40     Chapter 2001, Government Code.

3-41           (f)  If the board by order finds that a violation has

3-42     occurred and imposes an administrative penalty, the board shall

3-43     give notice to the person of the board's order.  The notice must

3-44     include a statement of the right of the person to judicial review

3-45     of the order.

3-46           SECTION 3.  Section 28, Physician Assistant Licensing Act

3-47     (Article 4495b-1, Vernon's Texas Civil Statutes), is amended to

3-48     read as follows:

3-49           Sec. 28.  IMMUNITY AND REPORTING REQUIREMENTS.  (a)  A

3-50     person, health care entity, medical peer review committee, or other

3-51     entity that without malice furnishes records, information, or

3-52     assistance to the board is immune from any civil liability arising

3-53     from such act.

3-54           (b)  Any medical peer review committee in this state, any

3-55     physician assistant licensed to practice in this state, any

3-56     physician assistant student, or any physician licensed to practice

3-57     medicine or otherwise lawfully practicing medicine in this state

3-58     shall report relevant information to the board related to the acts

3-59     of any physician assistant in this state if, in the opinion of the

3-60     medical peer review committee, physician assistant, physician

3-61     assistant student, or physician, a physician assistant poses a

3-62     continuing threat to the public welfare through his practice as a

3-63     physician assistant.  The duty to report under this section shall

3-64     not be nullified through contract.

3-65           SECTION 4.  Subsections (b), (d), (f), (i), (k), and (r),

3-66     Section 5.06, Medical Practice Act (Article 4495b, Vernon's Texas

3-67     Civil Statutes), are amended to read as follows:

3-68           (b)  Each medical peer review committee or health-care entity

3-69     shall report in writing to the board the results and circumstances

 4-1     of any professional review action that adversely affects the

 4-2     clinical privileges of a physician, physician assistant, or

 4-3     acupuncturist for a period longer than 30 days, accepts the

 4-4     surrender of clinical privileges of a physician, physician

 4-5     assistant, or acupuncturist while the physician, physician

 4-6     assistant, or acupuncturist is under an investigation by the

 4-7     medical peer review committee relating to possible incompetence or

 4-8     improper professional conduct, or in return for not conducting such

 4-9     an investigation or proceeding, or in the case of an entity which

4-10     is a professional society or association, takes a professional

4-11     review action which adversely affects the membership of a

4-12     physician, physician assistant, or acupuncturist in the society or

4-13     association.  The duty to report under this section shall not be

4-14     nullified through contract.

4-15           (d)  Any medical peer review committee in this state, any

4-16     physician licensed to practice medicine or otherwise lawfully

4-17     practicing medicine in this state, any physician engaged in

4-18     graduate medical education or training, [or] any medical student,

4-19     any physician assistant licensed to practice in this state or

4-20     otherwise lawfully practicing as a physician assistant in this

4-21     state, any physician assistant student, any acupuncturist licensed

4-22     to practice in this state or otherwise lawfully practicing

4-23     acupuncture in this state, or any acupuncture student shall report

4-24     relevant information to the board relating to the acts of any

4-25     physician, physician assistant, or acupuncturist in this state if,

4-26     in the opinion of the medical peer review committee, physician,

4-27     [or] medical student, physician assistant, physician assistant

4-28     student, acupuncturist, or acupuncture student, the physician,

4-29     physician assistant, or acupuncturist poses a continuing threat to

4-30     the public welfare through the practice of medicine or acupuncture

4-31     or practice as a physician assistant.  The duty to report under

4-32     this section shall not be nullified through contract.

4-33           (f)  The filing of a report with the board pursuant to this

4-34     section, investigation by the board, or any disposition by the

4-35     board does not, in itself, preclude any action by a health-care

4-36     entity to suspend, restrict, or revoke the privileges or membership

4-37     of the physician, physician assistant, or acupuncturist.

4-38           (i)  Disclosure of confidential peer review committee

4-39     information to the affected physician, physician assistant, or

4-40     acupuncturist pertinent to the matter under review shall not

4-41     constitute waiver of the confidentiality provisions provided in

4-42     this Act.  If a medical peer review committee takes action that

4-43     could result in censure, suspension, restriction, limitation,

4-44     revocation, or denial of membership or privileges in a health-care

4-45     entity, the affected physician, physician assistant, or

4-46     acupuncturist shall be provided a written copy of the

4-47     recommendation of the medical peer review committee and a copy of

4-48     the final decision, including a statement of the basis for the

4-49     decision.

4-50           (k)  Governing bodies and medical staffs of health-care

4-51     entities and others shall comply fully with a subpoena for

4-52     documents or information issued by the board under Subsection (i)

4-53     of Section 2.09 of this Act or Subsection (a), Section 27,

4-54     Physician Assistant Licensing Act (Article 4495b-1, Vernon's Texas

4-55     Civil Statutes).  The disclosure of documents or information under

4-56     such a subpoena does not constitute a waiver of the privilege

4-57     associated with medical peer review committee proceedings.  Failure

4-58     to comply with such a subpoena constitutes grounds for disciplinary

4-59     action against the facility or individual by the appropriate

4-60     licensing board.

4-61           (r)  If a court of competent jurisdiction makes a final

4-62     determination that a report or complaint made to the board was made

4-63     in bad faith, then such complaint shall be expunged from the

4-64     physician's, physician assistant's, acupuncturist's, or applicant's

4-65     individual historical record.

4-66           SECTION 5.  Subdivisions (1) and (2), Subsection (s), Section

4-67     5.06, Medical Practice Act (Article 4495b, Vernon's Texas Civil

4-68     Statutes), are amended to read as follows:

4-69           (s)(1)  Reports, information, or records received and

 5-1     maintained by the board pursuant to this section and Section 5.05

 5-2     of this Act, including any material received or developed by the

 5-3     board during an investigation or hearing, are strictly confidential

 5-4     and subject to the provisions of Subdivision (4) of this

 5-5     subsection.  However, the board may disclose this confidential

 5-6     information only:

 5-7                       (A)  in a disciplinary hearing before the board

 5-8     or in a subsequent trial or appeal of a board action or order;

 5-9                       (B)  to the physician, physician assistant, or

5-10     acupuncture licensing or disciplinary authorities of other

5-11     jurisdictions, to a local, state, or national professional medical,

5-12     physician assistant, or acupuncture society or association, or to a

5-13     medical, physician assistant, or acupuncture peer review committee

5-14     located inside or outside this state that is concerned with

5-15     granting, limiting, or denying a physician, physician assistant, or

5-16     acupuncturist hospital privileges;

5-17                       (C)  pursuant to an order of a court of competent

5-18     jurisdiction; or

5-19                       (D)  to qualified personnel for bona fide

5-20     research or educational purposes, if personally identifiable

5-21     information relating to any person or physician is first deleted.

5-22                 (2)  Disciplinary orders of the board against a

5-23     physician, physician assistant, or acupuncturist and known hospital

5-24     suspensions for 30 days or longer of a physician, physician

5-25     assistant, or acupuncturist relating to the competence of a

5-26     physician, physician assistant, or acupuncturist are not

5-27     confidential.

5-28           SECTION 6.  This Act takes effect September 1, 1997.

5-29           SECTION 7.  The importance of this legislation and the

5-30     crowded condition of the calendars in both houses create an

5-31     emergency and an imperative public necessity that the

5-32     constitutional rule requiring bills to be read on three several

5-33     days in each house be suspended, and this rule is hereby suspended.

5-34                                  * * * * *