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.
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