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By: Eiland H.B. No. 3355
A BILL TO BE ENTITLED
AN ACT
relating to provider duty for ocular postoperative care.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 162, Subtitle B, Title 3, Occupations
Code is amended by adding Subchapter F to read as follows:
Subchapter F. Ocular Postoperative Care
Sec. 162.251. DEFINITIONS. In this subchapter:
(1) "ophthalmologist" means a physician licensed under
Chapter 155 who has completed a residency in ophthalmology in an
accredited program;
(2) "therapeutic optometrist" means a person licensed as an
therapeutic optometrist under Chapter 351 and authorized to
practice therapeutic optometry;
(3) "surgery" has the meaning assigned in Chapter 151,
Section 151.002.
Sec. 162.252. POSTOPERATIVE CARE AFTER EYE SURGERY. (a) If
a surgeon delegates the responsibility for postoperative care for a
patient for whom the surgeon performed eye surgery in this state,
the surgeon may do so only by entering into a comanagement agreement
with an ophthalmologist or therapeutic optometrist under the
provisions of this section.
(b) Except as provided in Subsection (c) of this section, a
surgeon who performs eye surgery in this state shall be physically
available to the patient for postoperative care in the community in
which the operation was performed for at least 120 hours after the
surgery is completed.
(c) A surgeon who performs eye surgery in this state may
delegate the responsibility for the first 120 hours of
postoperative care for the patient to another person if the
delegation occurs through a comanagement agreement that meets the
requirements of this section and the person to whom the
responsibility is delegated.
(1) is an ophthalmologist; and
(2) either
(A) holds a license or permit to practice
medicine that was issued under this Subtitle; or
(B) is exempt from the requirement to have a
license or permit under this Subtitle by Section 151.052(a)(8),
(9), or (11).
(d) In order to satisfy the requirements of this section, a
comanagement agreement for post operative care of a patient must
meet the following requirements:
(1) the agreement may be entered into only when
(A) the distance the patient would have to travel
to the regular office of the operating surgeon would result in an
unreasonable hardship for the patient, as determined by the
patient;
(B) the surgeon will not be available for
postoperative care of the patient as a result of the surgeon's
personal travel, illness, travel to a rural area of the state for
occasional practice of medicine, or travel to an area of the state
designated as a physician shortage area by the board; or
(C) other justifiable circumstances exist, as
provided under regulations of the board;
(2) the agreement may not provide a fee to the person
to whom the care is delegated that does not reflect the fair market
value of the services provided by the person;
(3) the agreement may be entered into only if the
surgeon confirms that the person to whom the care is delegated is
qualified to treat the patient during the postoperative period and
is licensed or certified to provide the care if license or
certification is required by law;
(4) the agreement may not take effect unless there is a
written statement in the surgeon's file and in the files of the
person to whom postoperative care is being delegated that is signed
by the patient in which the patient states the patient's consent to
the comanagement agreement and in which the patient acknowledges
that the details of the comanagement agreement have been explained
to the extent required under (5) of this subsection;
(5) the details of the agreement shall be disclosed to
the patient in writing before surgery is performed; the disclosure
required under this paragraph must include
(A) the reason for the delegation;
(B) the qualifications, including licensure or
certification, of the person to whom the care is delegated;
(C) the financial details about how the surgical
fee will be divided between the surgeon and the person who provides
the postoperative care;
(D) a notice that, notwithstanding the
delegation of care, the patient may receive postoperative care from
the surgeon at the patient's request without the payment of
additional fees;
(E) a statement that the surgeon will be
ultimately responsible for the patient's care until the patient is
postoperatively stable;
(F) a statement that there is no fixed date on
which the patient will be required to return to the referring health
care provider; and
(G) a description of special risks to the patient
that may result from the comanagement agreement.
(e) A surgeon may not enter into a comanagement agreement
governed by this section
(1) under which two more or physicians or therapeutic
optometrists agree to comanage patients of the surgeon as a matter
of routine policy rather than on a case- by-case basis;
(2) that is not clinically appropriate for the
patient;
(3) that is made with the intent to induce surgical
referrals; or
(4) that is based on economic considerations affecting
the surgeon.
(f) An opthalmologist or therapeutic optometrist may not
require, as a condition of making referrals to a surgeon, that the
surgeon must enter into a comanagement agreement with the
ophthalmologist or therapeutic optometrist for the postoperative
care of the patient who is referred.
(g) An ophthalmologist or therapeutic optometrist to whom
postoperative care is delegated under a comanagement agreement
governed by this section may not further delegate the care to
another person, regardless of whether the other person is under the
supervision of the ophthalmologist or therapeutic optometrist.
(h) It is an affirmative defense to a prosecution under this
section or in a disciplinary proceeding for violation of this
section that the surgeon delegated postoperative care of a patient
because of unanticipated circumstances that were not reasonably
foreseeable by the surgeon before the surgery was performed.
Sec. 162.252. EXEMPTIONS. This Subchapter does not apply
to ocular postoperative care for surgery which is:
(1) performed in a residency program accredited by the
Accreditation Council for Graduate Medical Education; and
(2) comanaged by a medical resident licensed to
practice medicine under this Subtitle.
Sec. 162.253. APPLICATION. This act applies to ocular
surgery performed on or after January 1, 2006.
Sec. 162.254. RULES. The board may adopt rules as necessary
to regulate ocular postoperative care in accordance with this
subchapter.
SECTION 2. This Act takes effect September 1, 2005.