78R3095 SMH-D
By: Janek S.B. No. 248
A BILL TO BE ENTITLED
AN ACT
relating to the composition and functions of the Texas State Board
of Medical Examiners.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 152.002(a), Occupations Code, is amended
to read as follows:
(a) The board consists of 21 [18] members appointed by the
governor with the advice and consent of the senate as follows:
(1) thirteen [twelve] members who are learned and
eminent physicians licensed in this state for at least three years
before the appointment, ten [nine] of whom must be graduates of a
reputable medical school or college with a degree of doctor of
medicine (M.D.) and three of whom must be graduates of a reputable
medical school or college with a degree of doctor of osteopathic
medicine (D.O.); and
(2) eight [six] members who represent the public.
SECTION 2. Section 153.013, Occupations Code, is amended to
read as follows:
Sec. 153.013. REPRESENTATION BY ATTORNEY GENERAL. (a) The
board shall be represented by the attorney general in:
(1) formal contested case hearings under Section
164.007; and
(2) court proceedings [by the attorney general].
(b) A representative of the attorney general shall advise
the board's staff in informal proceedings under Section 164.003.
SECTION 3. Subchapter B, Chapter 153, Occupations Code, is
amended by adding Section 153.0535 to read as follows:
Sec. 153.0535. SURCHARGE FOR ANNUAL REGISTRATION PERMIT.
(a) The board shall collect an additional $15 surcharge for each of
the following fees:
(1) first annual registration permit; and
(2) renewal of annual registration permit.
(b) The board shall deposit each surcharge collected to the
credit of the public assurance account. The public assurance
account is an account in the general revenue fund that may be
appropriated only to the attorney general to pay the costs incurred
by the attorney general in prosecuting complaints filed with the
board.
SECTION 4. Section 153.055, Occupations Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) The board shall include in the report information
regarding the disposition of each complaint filed with the board
during the preceding year, including the reason for dismissal of
any case dismissed by the board.
SECTION 5. Section 155.007, Occupations Code, is amended by
adding Subsection (c-1) to read as follows:
(c-1) If the committee schedules a conference with the
applicant, the applicant may request a complete copy of the board's
file relating to the application. The board shall provide the copy
of the file not later than the fifth business day after the date the
board receives the request. The board may charge a fee in an amount
reasonable and necessary to cover the costs of reproducing and
mailing a copy of the file.
SECTION 6. Section 164.001, Occupations Code, is amended by
adding Subsections (d-1)-(d-3) and amending Subsection (e) to read
as follows:
(d-1) In determining the appropriate disciplinary action,
including the amount of any administrative penalty to assess, the
board shall consider whether the person:
(1) is being disciplined for multiple violations of
this subtitle or a rule or order adopted under this subtitle; or
(2) has previously been the subject of disciplinary
action by the board.
(d-2) In the case of a person described by:
(1) Subsection (d-1)(1), the board shall consider
taking a more severe disciplinary action, including revocation of
the person's license, than the disciplinary action that would be
taken for a single violation; and
(2) Subsection (d-1)(2), the board shall consider:
(A) taking a more severe disciplinary action,
including revocation of the person's license, than the disciplinary
action previously taken if the previous disciplinary action was
taken in response to the commission of the same type of violation;
or
(B) revoking the person's license if the person
has repeatedly been the subject of disciplinary action by the
board.
(d-3) If the board chooses not to revoke the license of a
person described by Subsection (d-2)(2)(B), the board in its
disciplinary order shall explain the reason for not revoking the
license.
(e) The provisions of this chapter governing sanctions
imposed by the board apply to a [For any] sanction imposed under
this chapter by the State Office of Administrative Hearings as the
result of a hearing conducted by [the State Office of
Administrative Hearings,] that office. In imposing a sanction,
that office shall use the schedule of sanctions adopted by board
rule.
SECTION 7. Section 164.003, Occupations Code, is amended by
amending Subsection (b) and adding Subsections (b-1)-(b-3) to read
as follows:
(b) Rules adopted under this section must require that:
(1) an informal meeting in compliance with Section
2001.054, Government Code, be scheduled not later than the 180th
day after the date the complaint is filed with the board under
Section 154.051;
(2) the board give notice to the license holder of the
time and place of the meeting not later than the 30th day before the
date the meeting is held;
(3) the complainant and the license holder be provided
an opportunity to be heard;
(4) [(2)] the board's legal counsel [or a
representative of the attorney general] be present to advise the
board;
(5) a representative of the attorney general be
present to advise [or] the board's staff; and
(6) [(3)] a member of the board's staff at the meeting
present to the board's representative the facts the staff
reasonably believes it could prove by competent evidence or
qualified witnesses at a hearing.
(b-1) The license holder who is the subject of the complaint
may request a complete copy of the board's investigation file
relating to the complaint after the board gives notice of the
informal meeting under Subsection (b)(2). The board shall provide
the copy of the file not later than the fifth business day after the
date the board receives the request. The board may charge a fee in
an amount reasonable and necessary to cover the costs of
reproducing and mailing a copy of the file.
(b-2) The license holder may request that the board grant a
continuance of the informal meeting. The board may grant only one
continuance without cause. The board may not grant another
continuance unless the board determines that the license holder has
shown good cause for the continuance. The first continuance
granted extends the deadline for scheduling the informal meeting
under Subsection (b)(1) by the period of the continuance, but a
subsequent continuance granted does not extend that deadline.
(b-3) If the license holder has previously been the subject
of disciplinary action by the board, the board shall schedule the
informal meeting as soon as practicable but not later than the
deadline prescribed by Subsection (b)(1). The license holder may
request that the board grant a continuance of the informal meeting
under this subsection. The board may grant only one continuance.
The board may not grant the continuance unless the board determines
that the license holder has shown good cause for the continuance. A
continuance granted under this subsection does not extend the
deadline for scheduling the informal meeting under Subsection
(b)(1).
SECTION 8. Subchapter A, Chapter 164, Occupations Code, is
amended by adding Section 164.0035 to read as follows:
Sec. 164.0035. DEADLINE FOR INFORMAL DISPOSITION OR
REFERRAL FOR FORMAL DISPOSITION OF COMPLAINT. The board shall
dismiss a complaint unless, before the first anniversary of the
date the complaint is filed under Section 154.051:
(1) the complaint is disposed of under Section
164.003; or
(2) the board refers the complaint to the State Office
of Administrative Hearings for disposition under Section 164.007.
SECTION 9. Section 164.005(e), Occupations Code, is amended
to read as follows:
(e) The president or designee shall notify the State Office
of Administrative Hearings and the attorney general of a formal
complaint.
SECTION 10. Section 164.007, Occupations Code, is amended
by amending Subsections (a) and (b) and adding Subsections (a-1)
and (a-2) to read as follows:
(a) The board by rule shall adopt procedures governing
formal disposition of a contested case under Chapter 2001,
Government Code. A formal hearing shall be conducted by an
administrative law judge employed by the State Office of
Administrative Hearings. The attorney general shall represent the
board in the hearing.
(a-1) After the hearing is concluded, the parties may submit
to the administrative law judge proposed findings of fact and
conclusions of law and a proposal for decision as to the occurrence
of the violation and any proposed sanction. The administrative law
judge shall make [After receiving the administrative law judge's]
findings of fact and conclusions of law and issue a final decision
finding that a violation has occurred and imposing a sanction or
finding that no violation occurred. If the administrative law
judge finds that a violation has occurred, the administrative law
judge may impose any sanction that the board is authorized to impose
under this chapter. The administrative law judge may impose more
than one sanction for the same violation. Section 2001.058(f),
Government Code, applies to the formal disposition of a contested
case under this section regardless of whether the board has adopted
a rule under that subsection. For the purposes of this chapter, a
sanction imposed by an administrative law judge under this section
is considered to be a disciplinary action taken by the board.
(a-2) The administrative law judge must issue the decision
not later than the earlier of:
(1) the date required by Section 2001.058(f),
Government Code; or
(2) the first anniversary of the date the complaint is
referred to the State Office of Administrative Hearings [, the
board shall determine the charges on the merits].
(b) Notwithstanding this subtitle or other law, the board,
with the approval of the attorney general, may employ, retain, and
compensate:
(1) attorneys, consultants, and other professionals
as necessary and appropriate to serve as board consultants or
special counsel to prosecute complaints filed with the board on
behalf of the hearings division and investigating division; and
(2) court reporters and other staff necessary to
prepare for or represent the board in the hearings authorized by
this section.
SECTION 11. Section 164.010, Occupations Code, is amended
by adding Subsection (c) to read as follows:
(c) The board shall immediately investigate:
(1) a violation of a disciplinary order by a license
holder described by Subsection (a); or
(2) a complaint filed against a license holder
described by Subsection (a).
SECTION 12. Section 164.059(c), Occupations Code, is
amended to read as follows:
(c) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) institution of proceedings for a hearing before
the State Office of Administrative Hearings [board] is initiated
simultaneously with the temporary suspension; [and]
(2) a hearing is held by the State Office of
Administrative Hearings under Chapter 2001, Government Code, and
this subtitle as soon as possible; and
(3) not later than the 10th business day after the date
the license is suspended, a hearing is held before the board to
determine whether the suspension should remain in effect until the
State Office of Administrative Hearings issues a decision in the
case.
SECTION 13. (a) This Act takes effect September 1, 2003.
(b) As soon as practicable on or after the effective date of
this Act, the governor shall appoint the following additional
members to the Texas State Board of Medical Examiners to reflect the
change in law made by this Act to Section 152.002, Occupations Code:
(1) one member who is a physician; and
(2) two members who represent the public.
(c) The term of the member appointed under Subsection (b)(1)
of this section expires April 13, 2009, and the terms of the members
appointed under Subsection (b)(2) of this section expire April 13,
2005.
(d) The changes in law made by this Act relating to license
applications and complaints apply only to an application or
complaint filed on or after the effective date of this Act. A
license application or complaint filed before the effective date of
this Act is covered by the law in effect when the application or
complaint was filed, and the former law is continued in effect for
that purpose.
(e) Section 153.0535, Occupations Code, as added by this
Act, applies only to a fee for a first annual registration permit or
a renewal of an annual registration permit that becomes due on or
after the effective date of this Act.