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 * * * * *