1-1 By: Carona S.B. No. 1340 1-2 (In the Senate - Filed March 11, 1999; March 15, 1999, read 1-3 first time and referred to Committee on Health Services; 1-4 March 31, 1999, reported favorably by the following vote: Yeas 5, 1-5 Nays 0; March 31, 1999, sent to printer.) 1-6 A BILL TO BE ENTITLED 1-7 AN ACT 1-8 relating to the regulation of anesthesia in certain out patient 1-9 settings; providing administrative and civil penalties. 1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-11 SECTION 1. The Medical Practice Act (Article 4495b, Vernon's 1-12 Texas Civil Statutes) is amended by adding Subchapter G to read as 1-13 follows: 1-14 SUBCHAPTER G. REGULATION OF IN-OFFICE PROCEDURES USING ANESTHESIA 1-15 Sec. 7.01. FINDINGS AND PURPOSE. The legislature finds that 1-16 the practice of medicine is a dynamic art and science that involves 1-17 highly technical, rapidly changing standards of care. The 1-18 legislature further finds that the regulation of in-office surgical 1-19 procedures would benefit the health, safety, and general welfare of 1-20 the public. It is therefore the purpose of this subchapter to 1-21 require the Texas State Board of Medical Examiners to adopt rules 1-22 to regulate the use of anesthesia for in-office settings. 1-23 Sec. 7.02. Rules. (a) The board shall establish by rule 1-24 the minimum standards for provision of anesthesia for in-office 1-25 procedures. 1-26 (b) The rules shall include: 1-27 (1) requirements for general, regional, and conscious 1-28 sedation; 1-29 (2) patient counseling and preparation, including 1-30 patient assessment, history, and physical, and any necessary 1-31 laboratory tests; 1-32 (3) patient monitoring to be performed and monitoring 1-33 equipment to be used during the procedure and during postprocedure 1-34 monitoring; 1-35 (4) the personnel necessary for all phases of 1-36 anesthesia and monitoring of patients, including education, 1-37 training and licensure, as appropriate; 1-38 (5) medical supervision and coordination of patient 1-39 care responsibility; 1-40 (6) emergency procedures, drugs, and equipment, 1-41 including education, training, and certification, as appropriate, 1-42 and protocols for transfers to a hospital; 1-43 (7) the documentation requirements necessary to 1-44 demonstrate compliance with this subchapter; and 1-45 (8) the time frame to review, update, or amend 1-46 protocols or procedures covered by rules of the board. 1-47 Section 7.03. APPLICATION. The requirement to comply with 1-48 rules adopted by the board under this subchapter does not apply to: 1-49 (1) an in-office setting using only local anesthesia 1-50 or peripheral nerve blocks or both; 1-51 (2) an in-office setting using only anxiolytics and 1-52 analgesics that do not have the probability of placing the patient 1-53 at risk for loss of the patient's life and that preserve protective 1-54 reflexes; 1-55 (3) a licensed hospital; 1-56 (4) an ambulatory surgical center that is certified to 1-57 participate in the Medicare program under Title XVIII of the 1-58 federal Social Security Act (42 U.S.C. Section 1395 et seq.); 1-59 (5) any clinic conducted, maintained, or operated by a 1-60 federally recognized Indian tribe or tribal organization, as 1-61 defined in Section 450 or 1601 of Title 25 of the United States 1-62 Code, and located on land recognized as tribal land by the federal 1-63 government; and 1-64 (6) any clinic directly conducted, maintained, or 2-1 operated by the United States or by any of its departments, 2-2 officers, or agencies. 2-3 Sec. 7.04. COMPLIANCE WITH ANESTHESIA RULES. (a) On or 2-4 after September 1, 2000, a physician or surgeon practicing medicine 2-5 in this state and performing in-office surgical procedures shall 2-6 comply with the rules adopted under this subchapter. 2-7 (b) A failure to comply with the rules adopted under this 2-8 subchapter shall be grounds for disciplinary action under Section 2-9 3.08 of this Act, an administrative penalty under Section 4.125 of 2-10 this Act, and a civil penalty under Section 4.126 of this Act. 2-11 (c) The board, in its discretion, may require a physician to 2-12 submit and comply with a corrective action plan to remedy or 2-13 address any current or potential deficiencies with the physician's 2-14 in-office provision of anesthesia as required by this Act or a rule 2-15 of the board. 2-16 Sec. 7.05. ANNUAL REGISTRATION. (a) On or after September 2-17 1, 2000, each physician who performs in-office procedures using 2-18 anesthesia shall register with the board on a form adopted by the 2-19 board and shall pay a fee as established by the board. The payment 2-20 shall be made to the board. The physician shall register annually 2-21 each year thereafter. 2-22 (b) The board shall coordinate the registration required 2-23 under this subchapter with the registration required under Section 2-24 3.01 of this Act so that times of registration, payment, notice, 2-25 and penalties for late payment are similar and provide a minimum of 2-26 administrative burden to the board and physician. 2-27 Sec. 7.06. INSPECTION. (a) The board shall have the 2-28 authority to conduct examinations including examinations of the 2-29 office site and related documents of a physician's practice as it 2-30 relates to in-office procedures. 2-31 (b) Unless it would jeopardize an ongoing investigation, the 2-32 board shall provide at least five business days notice prior to 2-33 conducting an on-site examination. 2-34 (c) This section shall not be construed to require the board 2-35 to make an on-site visit to a physician's office. 2-36 (d)(1) The board may consider a request by a physician for 2-37 an on-site visit. The board, in its sole discretion, and upon 2-38 payment of a fee established by the board, may conduct such 2-39 examination and provide an advisory opinion. 2-40 (2) An advisory opinion by the board is not to be 2-41 construed as binding on the board, and the board, except as 2-42 provided in Subdivision (3) of this subsection, may take any action 2-43 it deems appropriate. 2-44 (3) A physician who requests and relies upon an 2-45 advisory opinion of the board may use such opinion as mitigation 2-46 evidence against an administrative or civil penalty that may be 2-47 imposed by the board under this Act. The board shall take proof of 2-48 such reliance into its consideration and mitigate such 2-49 administrative or civil penalties accordingly. 2-50 SECTION 2. Subsection (b), Section 3.10, Medical Practice 2-51 Act (Article 4495b, Vernon's Texas Civil Statutes), as amended by 2-52 Chapter 214, Acts of the 73rd Legislature, Regular Session, 1993, 2-53 is amended to read as follows: 2-54 (b) The board may not set, charge, collect, receive, or 2-55 deposit any of the following fees in excess of: 2-56 (1) for processing and granting a license by 2-57 reciprocity to a licensee of another state...$700 2-58 (2) for processing an application and 2-59 administration of a partial examination 2-60 for licensure................................$700 2-61 (3) for processing an application and 2-62 administration of a complete examination 2-63 for licensure................................$700 2-64 (4) for processing an application and issuance 2-65 of a temporary license.......................$200 2-66 (5) for processing an application and issuance 2-67 of a duplicate license.......................$200 2-68 (6) for processing an application and issuance 2-69 of a license of reinstatement after a 3-1 lapse or cancellation of a license...........$700 3-2 (7) for processing an application and issuance 3-3 of an annual registration of a licensee......$200 3-4 (8) for processing and issuance of an 3-5 institutional permit for interns, 3-6 residents, and others in approved medical 3-7 training programs............................$200 3-8 (9) for processing an application and issuance 3-9 of an endorsement to other state medical 3-10 boards.......................................$200 3-11 (10) for processing and issuance of a license or 3-12 temporary license to a physician 3-13 assistant...................................$200 3-14 (11) for processing and issuance of a permit to 3-15 a physician who supervises an 3-16 acupuncturist...............................$200 3-17 (12) for processing an application and issuance 3-18 of an annual registration for in-office 3-19 anesthesia procedures of a licensee........$300. 3-20 SECTION 3. The Texas State Board of Medical Examiners may 3-21 permit the annual registration requirement under Section 7.05, 3-22 Medical Practice Act (Article 4495b, Vernon's Texas Civil 3-23 Statutes), as added by this Act to be staggered and phased in over 3-24 a period of one year so that by September 1, 2001, all physicians 3-25 required to register under that section will be in compliance. 3-26 SECTION 4. The rules required by Section 7.02, Medical 3-27 Practice Act (Article 4495b, Vernon's Texas Civil Statutes), as 3-28 added by this Act must be adopted by January 7, 2000. 3-29 SECTION 5. The Texas State Board of Medical Examiners shall 3-30 report to the speaker of the house of representatives and the 3-31 lieutenant governor on the implementation and enforcement of the 3-32 rules and this Act by January 1, 2001. The report shall include 3-33 any suggested amendments or changes to this Act to make it more 3-34 effective or efficient. 3-35 SECTION 6. This Act takes effect September 1, 1999. 3-36 SECTION 7. The importance of this legislation and the 3-37 crowded condition of the calendars in both houses create an 3-38 emergency and an imperative public necessity that the 3-39 constitutional rule requiring bills to be read on three several 3-40 days in each house be suspended, and this rule is hereby suspended. 3-41 * * * * *