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S.B. No. 419
AN ACT
relating to the continuation and functions of the Texas State Board
of Medical Examiners, Texas State Board of Physician Assistant
Examiners, and Texas State Board of Acupuncture Examiners and the
regulation of health care professions regulated by those state
agencies; providing administrative penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CONTINUATION AND FUNCTIONS OF TEXAS STATE BOARD OF
MEDICAL EXAMINERS
SECTION 1.01. Subdivisions (1) and (7), Subsection (a),
Section 151.002, Occupations Code, are amended to read as follows:
(1) "Board" means the Texas Medical [State] Board [of
Medical Examiners].
(7) "Medical peer review" or "professional review
action" means the evaluation of medical and health care services,
including evaluation of the qualifications and professional
conduct of professional health care practitioners and of patient
care provided by those practitioners. The term includes evaluation
of the:
(A) merits of a complaint relating to a health
care practitioner and a determination or recommendation regarding
the complaint;
(B) accuracy of a diagnosis;
(C) quality of the care provided by a health care
practitioner;
(D) report made to a medical peer review
committee concerning activities under the committee's review
authority;
(E) report made by a medical peer review
committee to another committee or to the board as permitted or
required by law; and
(F) implementation of the duties of a medical
peer review committee by a member, agent, or employee of the
committee.
SECTION 1.02. Section 151.004, Occupations Code, is amended
to read as follows:
Sec. 151.004. APPLICATION OF SUNSET ACT. The Texas Medical
[State] Board [of Medical Examiners] is subject to Chapter 325,
Government Code (Texas Sunset Act). Unless continued in existence
as provided by that chapter, the board is abolished and this
subtitle and Chapters 204, 205, and 206 expire [expires] September
1, 2017 [2005].
SECTION 1.03. Section 152.001, Occupations Code, is amended
to read as follows:
Sec. 152.001. TEXAS MEDICAL [STATE] BOARD [OF MEDICAL
EXAMINERS]. (a) The Texas Medical [State] Board [of Medical
Examiners] is an agency of the executive branch of state government
with the power to regulate the practice of medicine.
(b) A reference in any other law to the former Texas State
Board of Medical Examiners means the Texas Medical Board.
SECTION 1.04. Subsection (b), Section 152.003, Occupations
Code, is amended to read as follows:
(b) A person may not be a public member of the board if the
person or the person's spouse [may not be]:
(1) is registered, certified, or licensed by a
regulatory agency in the field of health care [licensed to practice
medicine];
(2) is employed by or participates in the management
of a business entity or other [financially involved in any]
organization regulated by or receiving money from [subject to
regulation by] the board; [or]
(3) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by or receiving money from the board;
(4) uses or receives a substantial amount of tangible
goods, services, or money from the board other than compensation or
reimbursement authorized by law for board membership, attendance,
or expenses; or
(5) is a provider of health care.
SECTION 1.05. Subsections (a) through (e), Section 152.004,
Occupations Code, are amended to read as follows:
(a) In this section, "Texas trade [or professional]
association" means a [nonprofit,] cooperative[,] and voluntarily
joined association of business or professional competitors in this
state designed to assist its members and its industry or profession
in dealing with mutual business or professional problems and in
promoting their common interest.
(b) A person is ineligible for appointment to the board if,
at the time of appointment, the person is younger than 18 years of
age or is a stockholder[, paid full-time faculty member,] or a
member of the board of trustees of a medical school.
(c) A person may not be a member of the board and may not be a
board employee in a "bona fide executive, administrative, or
professional capacity," as that phrase is used for purposes of
establishing an exemption to the overtime provisions of the federal
Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.),
if:
(1) the person is an [serving as the president, vice
president, secretary, or treasurer of a statewide or national
organization incorporated to represent the entire profession
licensed to practice medicine in this state or the United States,
including an organization representing the practice of osteopathic
medicine, or is an employee of such an organization.
[(d) An] officer, employee, or paid consultant of a Texas
trade [or professional] association in the field of health care or a
national organization incorporated to represent the entire
profession licensed to practice medicine in this state or the
United States, including an organization representing the practice
of osteopathic medicine; or
(2) the person's [may not be a board member or employee
who is exempt from the state's position classification plan or is
compensated at or above the amount prescribed by the General
Appropriations Act for step 1, salary group A17, of the position
classification salary schedule.
[(e) A person who is the] spouse is [of] an officer,
manager, or paid consultant of a Texas trade [or professional]
association in the field of health care [may not be a board member
or employee who is exempt from the state's position classification
plan or is compensated at or above the amount prescribed by the
General Appropriations Act for step 1, salary group A17, of the
position classification salary schedule].
SECTION 1.06. Subchapter A, Chapter 152, Occupations Code,
is amended by adding Section 152.0041 to read as follows:
Sec. 152.0041. RESTRICTION ON USE OF INFORMATION. A board
member who is a physician or a physician acting as an agent of the
board, including a member of an expert physician panel appointed
under Section 154.056(e), may not use information to which the
person has access solely by virtue of the person's position as a
member or agent of the board for the benefit of the person's
practice or for the benefit of another physician or person
affiliated with the physician.
SECTION 1.07. Subsections (a) and (c), Section 152.006,
Occupations Code, are amended to read as follows:
(a) It is a ground for removal from the board that a member:
(1) does not have at the time of taking office
[appointment] the qualifications required by Section 152.002;
(2) does not maintain during service on the board the
qualifications required by Section 152.002;
(3) is ineligible for membership under Sections
152.003 and [violates a prohibition established by Section]
152.004;
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) is absent from more than half of the regularly
scheduled board meetings that the member is eligible to attend
during a calendar year without an excuse approved by a majority vote
of the board.
(c) If the executive director has knowledge that a potential
ground for removal exists, the executive director shall notify the
president of the board of the potential ground. The president shall
then notify the governor and the attorney general that a potential
ground for removal exists. If the potential ground for removal
involves the president of the board, the executive director shall
notify the next highest ranking officer of the board, who shall then
notify the governor and the attorney general that a potential
ground for removal exists.
SECTION 1.08. Section 152.008, Occupations Code, is amended
to read as follows:
Sec. 152.008. OFFICERS. Not later than December after each
regular session of the legislature, the governor shall appoint from
the members of the board a president, to serve in that capacity at
the pleasure of the governor, and the board shall elect from its
members a vice president, secretary-treasurer, and other officers
as are required, in the board's opinion, to carry out the board's
duties.
SECTION 1.09. Subsections (a), (b), and (c), Section
152.010, Occupations Code, are amended to read as follows:
(a) A person who is appointed to and qualifies for office as
a member of the board may not vote, deliberate, or be counted as a
member in attendance at a meeting of the board until the person
completes [Before a board member may assume the member's duties and
before the member may be confirmed by the senate, the member must
complete at least one course of] a training program that complies
with [established by the board under] this section.
(b) The training program must [shall] provide the person
with information [to a participant] regarding:
(1) this subtitle;
(2) the programs operated by the board;
(3) the role and functions of the board;
(4) the rules of the board, with an emphasis on the
rules that relate to disciplinary and investigatory authority;
(5) the current budget for the board;
(6) the results of the most recent formal audit of the
board;
(7) the requirements of laws relating to open
meetings, public information, administrative procedure, and
conflicts of interest [Chapters 551, 552, 2001, and 2002,
Government Code]; and
(8) [the requirements of the conflict of interest laws
and other laws relating to public officials; and
[(9)] any applicable ethics policies adopted by the
board or the Texas Ethics Commission.
(c) A person appointed to the board is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office [In developing the
training program, the board shall consult with the governor, the
attorney general, and the Texas Ethics Commission].
SECTION 1.10. Section 152.056, Occupations Code, is amended
to read as follows:
Sec. 152.056. DIVISION OF RESPONSIBILITIES. The board
shall develop and implement policies that clearly separate [define]
the policy-making [respective] responsibilities of the board and
the management responsibilities of the executive director and the
staff of the board.
SECTION 1.11. Subchapter A, Chapter 153, Occupations Code,
is amended by adding Section 153.0015 to read as follows:
Sec. 153.0015. GUIDELINES FOR INPUT IN RULEMAKING.
(a) The board shall adopt guidelines to establish procedures for
receiving input during the rulemaking process from individuals and
groups that have an interest in matters under the board's
jurisdiction, including input from the Texas Physician Assistant
Board and the Texas State Board of Acupuncture Examiners. The
guidelines must provide an opportunity for those individuals and
groups to provide input before the board provides notice of the
proposed rule under Section 2001.023, Government Code.
(b) The guidelines adopted under this section shall also
include procedures for the board to receive comments on rules
recommended by the physician assistant board or acupuncture board
for adoption by the board.
(c) A rule adopted by the board may not be challenged on the
grounds that the board did not comply with this section. If the
board was unable to solicit a significant amount of input from the
public or affected persons early in the rulemaking process, the
board shall state in writing the reasons why the board was unable to
do so.
SECTION 1.12. Subchapter A, Chapter 153, Occupations Code,
is amended by adding Section 153.0045 to read as follows:
Sec. 153.0045. RULES ON CONSEQUENCES OF CRIMINAL
CONVICTION. The board shall adopt rules and guidelines as
necessary to comply with Chapter 53, except to the extent the
requirements of this subtitle are stricter than the requirements of
that chapter.
SECTION 1.13. Subchapter B, Chapter 153, Occupations Code,
is amended by adding Sections 153.057 and 153.058 to read as
follows:
Sec. 153.057. USE OF TECHNOLOGY. The board shall implement
a policy requiring the board to use appropriate technological
solutions to improve the board's ability to perform its functions.
The policy must ensure that the public is able to interact with the
board on the Internet.
Sec. 153.058. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION POLICY. (a) The board shall develop and
implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of board rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the board's
jurisdiction.
(b) The board's procedures relating to alternative dispute
resolution must conform, to the extent possible, to any model
guidelines issued by the State Office of Administrative Hearings
for the use of alternative dispute resolution by state agencies.
(c) The board shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the board.
SECTION 1.14. Section 154.003, Occupations Code, is amended
by adding Subsection (d) to read as follows:
(d) Except as provided by this subsection, the board shall
publish information regarding errors in and reversals of
disciplinary actions taken by the board. The information to be
published under this subsection includes instances in which a
disciplinary action initiated by the board is overturned by a
court. The board shall disseminate the information under this
subsection in the same format, size, style, and manner as the
information regarding the original action by the board was
disseminated. The board may not publish information under this
subsection if the physician who was the subject of the disciplinary
action requests that the information not be published.
SECTION 1.15. Section 154.052, Occupations Code, is amended
to read as follows:
Sec. 154.052. RECORDS OF COMPLAINTS. The board shall
maintain a system to promptly and efficiently act on complaints
filed with the board. The board shall maintain [keep an]
information [file] about [each complaint filed with the board. The
information file must be kept current and contain a record for each
complaint of]:
(1) the parties to the complaint;
(2) the subject matter of the complaint;
(3) a summary of the results of the review or
investigation of the complaint; and
(4) the disposition of the complaint [each potential
witness contacted in relation to the complaint;
[(2) a summary of findings made at each step of the
complaint process;
[(3) an explanation of the legal basis and reason for
the dismissal of a complaint;
[(4) the schedule for the disposition of the complaint
prepared as required under Section 154.056 and a notation of any
change in the schedule; and
[(5) other relevant information].
SECTION 1.16. Subsection (c), Section 154.053, Occupations
Code, is amended to read as follows:
(c) The board shall periodically [If a written complaint is
filed with the board that the board has authority to resolve, the
board, at least as frequently as quarterly and until final
disposition of the complaint, shall] notify the parties to the
complaint of the status of the complaint until final disposition
unless the notice would jeopardize an investigation.
SECTION 1.17. Subsection (e), Section 154.056, Occupations
Code, is amended to read as follows:
(e) The board by rule shall provide for an expert physician
panel appointed by the board to assist with complaints and
investigations relating to medical competency by acting as expert
physician reviewers. Each member of the [an] expert physician
panel must be licensed to practice medicine in this state. The
rules adopted under this subsection must include provisions
governing the composition of the panel, qualifications for
membership on the panel, length of time a member may serve on the
panel, grounds for removal from the panel, the avoidance of
conflicts of interest, including situations in which the affected
physician and the panel member live or work in the same geographical
area or are competitors, and the duties to be performed by the
panel. The board's rules governing grounds for removal from the
panel must include providing for the removal of a panel member who
is repeatedly delinquent in reviewing complaints and in submitting
reports to the board. The board's rules governing appointment of
expert physician panel members to act as expert physician reviewers
must include a requirement that the board randomly select, to the
extent permitted by Section 154.058(b) and the conflict of interest
provisions adopted under this subsection, panel members to review a
complaint.
SECTION 1.18. Subchapter B, Chapter 154, Occupations Code,
is amended by adding Section 154.0561 to read as follows:
Sec. 154.0561. PROCEDURES FOR EXPERT PHYSICIAN REVIEW.
(a) A physician on the expert physician panel authorized by
Section 154.056(e) who is selected to review a complaint shall:
(1) determine whether the physician who is the subject
of the complaint has violated the standard of care applicable to the
circumstances; and
(2) issue a preliminary written report of that
determination.
(b) A second expert physician reviewer shall review the
first physician's preliminary report and other information
associated with the complaint. If the second expert physician
agrees with the first expert physician, the first physician shall
issue a final written report on the matter.
(c) If the second expert physician does not agree with the
conclusions of the first expert physician, a third expert physician
reviewer shall review the preliminary report and information and
decide between the conclusions reached by the first two expert
physicians. The final written report shall be issued by the third
physician or the physician with whom the third physician concurs.
(d) In reviewing a complaint, the expert physician
reviewers assigned to examine the complaint may consult and
communicate with each other about the complaint in formulating
their opinions and reports.
SECTION 1.19. Subsection (b), Section 154.057, Occupations
Code, is amended to read as follows:
(b) The board shall complete [make] a preliminary
investigation of the complaint not later than the 30th day after the
date of receiving the complaint. The board shall first determine
whether the physician constitutes a continuing threat to the public
welfare. On completion of the preliminary investigation, the board
shall determine whether to officially proceed on the complaint. If
the board fails to complete the preliminary investigation in the
time required by this subsection, the board's official
investigation of the complaint is considered to commence on that
date.
SECTION 1.20. Section 155.002, Occupations Code, is amended
to read as follows:
Sec. 155.002. ISSUANCE OF LICENSE. (a) The board, at its
sole discretion, may issue a license to practice medicine to a
person who:
(1) submits to the board a license application as
required by this chapter;
(2) presents satisfactory proof that the person meets
the eligibility requirements established by this chapter; and
(3) satisfies the examination requirements of Section
155.051.
(b) The board may delegate authority to board employees to
issue licenses under this subtitle to applicants who clearly meet
all licensing requirements. If the board employees determine that
the applicant does not clearly meet all licensing requirements, the
application shall be returned to the board. A license issued under
this subsection does not require formal board approval.
SECTION 1.21. Subsection (a), Section 155.003, Occupations
Code, is amended to read as follows:
(a) To be eligible for a license under this chapter, an
applicant must present proof satisfactory to the board that the
applicant:
(1) is at least 21 years of age;
(2) is of good professional character and has not
violated Section 164.051, 164.052, or 164.053;
(3) has completed:
(A) at least 60 semester hours of college
courses, other than courses in medical school, that are acceptable
to The University of Texas at Austin for credit on a bachelor of
arts degree or a bachelor of science degree;
(B) the entire primary, secondary, and
premedical education required in the country of medical school
graduation, if the medical school is located outside the United
States or Canada; or
(C) substantially equivalent courses as
determined by board rule;
(4) is a graduate of a medical school located in the
United States or Canada and approved by the board;
(5) has either:
(A) successfully completed one year of graduate
medical training approved by the board in the United States or
Canada; or
(B) graduated from a medical school located
outside the United States or Canada and has successfully completed
three years of graduate medical training approved by the board in
the United States or Canada;
(6) has passed [within three attempts] an examination
accepted or administered by the board[, except as provided by
Section 155.056]; and
(7) has passed a Texas medical jurisprudence
examination as determined by board rule.
SECTION 1.22. Subchapter A, Chapter 155, Occupations Code,
is amended by adding Section 155.006 to read as follows:
Sec. 155.006. ISSUANCE OF LIMITED LICENSE. (a) The board
may adopt rules and prescribe fees related to the issuance of a
license under this section that is limited in scope to an applicant
by virtue of the applicant's conceded eminence and authority in the
applicant's specialty.
(b) An applicant is eligible for a limited license under
this section on presenting proof satisfactory to the board that the
applicant:
(1) is recommended to the board by the dean,
president, or chief academic officer of:
(A) a school of medicine in this state;
(B) The University of Texas Health Center at
Tyler;
(C) The University of Texas M. D. Anderson Cancer
Center; or
(D) a program of graduate medical education,
accredited by the Accreditation Council for Graduate Medical
Education or the American Osteopathic Association, that exceeds the
requirements for eligibility for first board certification in the
discipline;
(2) is expected to receive an appointment at the
institution or program making the recommendation under Subdivision
(1);
(3) has not failed a licensing examination that would
prevent the applicant from obtaining a full license not limited in
scope in this state;
(4) has passed a Texas medical jurisprudence
examination as determined by board rule;
(5) has successfully completed at least one year of
approved subspecialty training accredited by the Accreditation
Council for Graduate Medical Education or the American Osteopathic
Association;
(6) is of good professional character, is not subject
to denial of a license under Section 164.051, and has not engaged in
conduct described by Section 164.052 or 164.053; and
(7) meets any other requirements prescribed by board
rule adopted under this section.
(c) In adopting rules under this section, the board may
adopt rules that prescribe additional qualifications for an
applicant, including education and examination requirements,
conditions of employment, and application procedures. The board by
rule may qualify, restrict, or otherwise limit a license issued
under this section.
(d) The board by rule may define "conceded eminence and
authority in the applicant's specialty." In adopting rules under
this subsection, the board shall consider criteria that include a
person's:
(1) academic appointments;
(2) length of time in a profession;
(3) scholarly publications; and
(4) professional accomplishments.
(e) The board may require that the holder of a license under
this section serve a six-month probationary period during which
medical services provided by the license holder are supervised by
another licensed physician.
(f) The holder of a license under this section shall be
limited to the practice of only a specialty of medicine for which
the license holder has trained and qualified, as determined by the
board. The license holder may not practice medicine outside of the
setting of the institution or program that recommended the license
holder under Subsection (b)(1).
(g) The holder of a license under this section may not
change the license holder's practice setting to a new institution
or program unless the license holder applies for a new license under
this section with the recommendation of that institution or program
as required by Subsection (b)(1).
(h) A license holder under this section may obtain a full
license not limited in scope to practice medicine in this state by
meeting all applicable eligibility requirements for that license.
SECTION 1.23. Subchapter A, Chapter 155, Occupations Code,
is amended by adding Section 155.009 to read as follows:
Sec. 155.009. LIMITED LICENSE FOR PRACTICE OF
ADMINISTRATIVE MEDICINE. (a) The board shall adopt rules for the
issuance of a license that limits the license holder to the practice
of administrative medicine. The board's rules under this section
must include provisions for eligibility for the license, issuance
and renewal of the license, the fees applicable to the license,
continuing education requirements, and the scope of practice of a
person who holds the license.
(b) An applicant for a license under this section must meet
all of the requirements for issuance of a license under Section
155.002.
(c) A license holder under this section who seeks to
practice medicine under an unrestricted license that is not limited
to the practice of administrative medicine must provide proof to
the board that the license holder has the clinical competence to
practice medicine under that license and must meet all applicable
eligibility requirements for that license. The board may require
the license holder to pass any examination the board determines
necessary.
SECTION 1.24. Section 155.056, Occupations Code, is amended
to read as follows:
Sec. 155.056. EXAMINATION ATTEMPT LIMITS [REEXAMINATION].
(a) An applicant must pass each part of an examination within
three attempts[, except that an applicant who has passed all but one
part of an examination within three attempts may take the remaining
part of the examination one additional time].
(b) The board shall adopt rules that prescribe how the limit
on the number of examination attempts under Subsection (a) shall
apply to an applicant who seeks a license and who attempts more than
one type of examination [Notwithstanding Subsection (a), an
applicant is considered to have satisfied the requirements of this
section if the applicant:
[(1) passed all but one part of an examination
approved by the board within three attempts and passed the
remaining part of the examination within five attempts;
[(2) is specialty board certified by a specialty board
that:
[(A) is a member of the American Board of Medical
Specialties; or
[(B) is approved by the American Osteopathic
Association; and
[(3) completed in this state an additional two years
of postgraduate medical training approved by the board].
SECTION 1.25. Section 155.104, Occupations Code, is amended
to read as follows:
Sec. 155.104. TEMPORARY LICENSES. (a) The board may
adopt rules and set fees relating to granting temporary licenses
and extending the expiration dates of temporary licenses. The
board by rule shall set a time limit for the term of a temporary
license.
(b) The board may issue a faculty temporary license to
practice medicine to a physician appointed by a medical school in
this state as provided by this section. The physician:
(1) must hold a current medical license that is
unrestricted and not subject to a disciplinary order or probation
in another state or Canadian province or have completed at least
three years of postgraduate residency;
(2) may not hold a medical license in another state or
a Canadian province that has any restrictions, disciplinary orders,
or probation;
(3) must pass the Texas medical jurisprudence
examination; and
(4) must hold a salaried faculty position of at least
the level of assistant professor and be working full-time at one of
the following institutions:
(A) The University of Texas Medical Branch at
Galveston;
(B) The University of Texas Southwestern Medical
Center at Dallas;
(C) The University of Texas Health Science Center
at Houston;
(D) The University of Texas Health Science Center
at San Antonio;
(E) The University of Texas Health Center at
Tyler;
(F) The University of Texas M. D. Anderson Cancer
Center;
(G) Texas A&M University College of Medicine;
(H) Texas Tech University School of Medicine;
(I) Baylor College of Medicine; or
(J) the University of North Texas Health Science
Center at Fort Worth.
(c) A physician is eligible for a temporary license under
Subsection (b) if the physician holds a faculty position of at least
the level of assistant professor and works at least part-time at an
institution listed in Subsection (b)(4) and:
(1) the physician is on active duty in the United
States armed forces; and
(2) the physician's practice under the temporary
license will fulfill critical needs of the citizens of this state.
(d) A physician who is issued a temporary license under
Subsection (b) must sign an oath on a form prescribed by the board
swearing that the physician:
(1) has read and is familiar with this subtitle and
board rules;
(2) will abide by the requirements of this subtitle
and board rules while practicing under the physician's temporary
license; and
(3) will be subject to the disciplinary procedures of
the board.
(e) A physician holding a temporary license under
Subsection (b) and the physician's medical school must file
affidavits with the board affirming acceptance of the terms and
limits imposed by the board on the medical activities of the
physician.
(f) A temporary license issued under Subsection (b) is valid
for one year.
(g) The holder of a temporary license issued under
Subsection (b) is limited to the teaching confines of the applying
medical school as a part of the physician's duties and
responsibilities assigned by the school and may not practice
medicine outside of the setting of the medical school or an
affiliate of the medical school. The physician may participate in
the full activities of the department of any hospital for which the
physician's medical school has full responsibility for clinical,
patient care, and teaching activities.
(h) The application for a temporary license under
Subsection (b) must be made by the chairman of the department of the
medical school in which the physician teaches and must contain the
information and documentation requested by the department. The
application must be endorsed by the dean of the medical school or
the president of the institution.
(i) Three years in a teaching faculty position at an
institution listed in Subsection (b)(4) may be treated as
equivalent to three years of an approved postgraduate residency
program if, at the conclusion of the three-year period, the
physician presents recommendations on the physician's behalf from
the chief administrative officer and the president of the
institution.
(j) A physician who holds a temporary license issued under
Subsection (b) and who wishes to receive a permanent unrestricted
license must meet the requirements for issuance of a permanent
unrestricted license, including any examination requirements.
SECTION 1.26. Subsection (a), Section 156.001, Occupations
Code, is amended to read as follows:
(a) Each person licensed to practice medicine in this state
must register with the board every two years. The initial
registration permit shall be issued with the license [and expires
on the last day of the birth month of the license holder]. The board
by rule may adopt a system under which licenses expire on various
dates during the year.
SECTION 1.27. Subdivision (2), Section 157.051,
Occupations Code, is amended to read as follows:
(2) "Carrying out or signing a prescription drug
order" means completing a prescription drug order presigned by the
delegating physician, or the signing of a prescription by a
registered nurse or physician assistant [after that person has been
designated to the board by the delegating physician as a person
delegated to sign a prescription].
SECTION 1.28. Section 157.0511, Occupations Code, is
amended by adding Subsection (b-1) to read as follows:
(b-1) The board shall adopt rules that require a physician
who delegates the carrying out or signing of a prescription drug
order under this subchapter to maintain records that show when and
to whom a delegation is made. The board may access the physician's
records under this subsection as necessary for an investigation.
SECTION 1.29. Section 160.006, Occupations Code, is amended
by amending Subsections (a) and (c) and adding Subsections (d) and
(e) to read as follows:
(a) A record, report, or other information received and
maintained by the board under this subchapter or Subchapter B,
including any material received or developed by the board during an
investigation or hearing and the identity of, and reports made by, a
physician performing or supervising compliance monitoring for the
board, is confidential. The board may disclose this information
only:
(1) in a disciplinary hearing before the board or
State Office of Administrative Hearings or in a subsequent trial or
appeal of a board action or order;
(2) to the physician licensing or disciplinary
authority of another jurisdiction, to a local, state, or national
professional medical society or association, or to a medical peer
review committee located inside or outside this state that is
concerned with granting, limiting, or denying a physician hospital
privileges;
(3) under a court order;
(4) to qualified personnel for bona fide research or
educational purposes, if personally identifiable information
relating to any physician or other individual is first deleted; or
(5) to the Texas Workers' Compensation Commission as
provided by Section 413.0514, Labor Code.
(c) A record or report disclosed by the board under this
subchapter, [and] a record or report received, maintained, or
developed by the board, a medical peer review committee, a member of
the committee, or a health care entity, and a record or report
received or maintained by the State Office of Administrative
Hearings under this subchapter are not available for discovery or
court subpoena and may not be introduced into evidence in any action
for damages, including a medical professional liability action that
arises out of the provision of or failure to provide a medical or
health care service.
(d) Medical peer review documents remain confidential at
the board and at the State Office of Administrative Hearings. If
medical peer review documents are admitted into evidence for any
purpose at a proceeding before the State Office of Administrative
Hearings, the documents must be admitted under seal to protect the
confidentiality of the records as provided by this section and
Section 160.007. In the event that a decision of the board or the
State Office of Administrative Hearings is appealed to district
court or other court, the confidentiality protections relating to
the medical peer review committee documents shall continue.
(e) The confidentiality requirements of this section do not
apply to records used by a medical peer review committee, including
a patient's medical records or records made or maintained in the
regular course of business, if the records are not considered
confidential under this chapter or any other law and are otherwise
available to the board.
SECTION 1.30. Section 160.010, Occupations Code, is amended
by adding Subsection (e) to read as follows:
(e) A member of an expert panel under Section 154.056(e) and
a person serving as a consultant to the board are immune from suit
and judgment and may not be subjected to a suit for damages for any
investigation, report, recommendation, statement, evaluation,
finding, or other action taken without fraud or malice in the course
of performing the person's duties in evaluating a medical
competency case. The attorney general shall represent a member of
an expert panel or consultant in any suit resulting from a duty
provided by the person in good faith to the board.
SECTION 1.31. Section 162.103, Occupations Code, is amended
to read as follows:
Sec. 162.103. APPLICABILITY. Rules adopted by the board
under this subchapter do not apply to:
(1) an outpatient setting in which only local
anesthesia, peripheral nerve blocks, or both are used;
(2) [an outpatient setting in which only anxiolytics
and analgesics are used and only in doses that do not have the
probability of placing the patient at risk for loss of the patient's
life-preserving protective reflexes;
[(3)] a licensed hospital, including an outpatient
facility of the hospital that is located separate from the
hospital;
(3) [(4)] a licensed ambulatory surgical center;
(4) [(5)] a clinic located on land recognized as
tribal land by the federal government and maintained or operated by
a federally recognized Indian tribe or tribal organization as
listed by the United States secretary of the interior under 25
U.S.C. Section 479a-1 or as listed under a successor federal
statute or regulation;
(5) [(6)] a facility maintained or operated by a state
or local governmental entity;
(6) [(7)] a clinic directly maintained or operated by
the United States; or
(7) [(8)] an outpatient setting accredited by:
(A) the Joint Commission on Accreditation of
Healthcare Organizations relating to ambulatory surgical centers;
(B) the American Association for the
Accreditation of Ambulatory Surgery Facilities; or
(C) the Accreditation Association for Ambulatory
Health Care.
SECTION 1.32. Subsections (a) and (f), Section 163.003,
Occupations Code, are amended to read as follows:
(a) A committee consists of seven [five] members appointed
by the governor, as follows:
(1) three physician members who are doctors of
medicine (M.D.);
(2) one physician member who is a doctor of
osteopathic medicine (D.O.); and
(3) three [one] public members [member].
(f) A member of a committee is subject to law and the rules
of the board, including Sections 152.004, 152.006, and 152.010, as
if the committee member were a member of the board, except that a
committee member is not subject to Chapter 572, Government Code.
The training program a committee member must complete under Section
152.010 shall be an abbreviated version of the program under that
section that is limited to training relevant to serving on a
committee.
SECTION 1.33. Chapter 163, Occupations Code, is amended by
adding Section 163.0045 to read as follows:
Sec. 163.0045. ASSISTANCE TO BOARD. The board may request
members of a committee to participate in an informal meeting under
Section 164.003. A physician committee member who participates in
an informal meeting on a complaint relating to medical competency
must have the qualifications of a member of an expert panel under
Section 154.056(e).
SECTION 1.34. Section 164.001, Occupations Code, is amended
by adding Subsection (j) to read as follows:
(j) In determining the appropriate disciplinary action,
including the amount of any administrative penalty to impose, the
board shall consider whether the violation relates directly to
patient care or involves only an administrative violation.
SECTION 1.35. Section 164.002, Occupations Code, is amended
by adding Subsection (e) to read as follows:
(e) The board may not dismiss a complaint solely on the
grounds that the case has not been scheduled for an informal meeting
within the time required by Section 164.003(b).
SECTION 1.36. Subchapter A, Chapter 164, Occupations Code,
is amended by adding Section 164.0025 to read as follows:
Sec. 164.0025. DELEGATION OF CERTAIN COMPLAINT
DISPOSITIONS. (a) The board may delegate to a committee of board
employees the authority to dismiss or enter into an agreed
settlement of a complaint that does not relate directly to patient
care or that involves only administrative violations. The
disposition determined by the committee must be approved by the
board at a public meeting.
(b) A complaint delegated under this section shall be
referred for informal proceedings under Section 164.003 if:
(1) the committee of employees determines that the
complaint should not be dismissed or settled;
(2) the committee is unable to reach an agreed
settlement; or
(3) the affected physician requests that the complaint
be referred for informal proceedings.
SECTION 1.37. Section 164.003, Occupations Code, is amended
by amending Subsection (b) and adding Subsections (f), (g), and (h)
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 board's official investigation of the
complaint is commenced as provided by [filed with the board under]
Section 154.057(b) [154.051], unless good cause is shown by the
board for scheduling the informal meeting after that date;
(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) at least one of the board members or district
review committee members participating in the informal meeting as a
panelist be a member who represents the public;
(5) the board's legal counsel or a representative of
the attorney general be present to advise the board or the board's
staff; and
(6) [(5)] a member of the board's staff be at the
meeting to present to the board's representative the facts the
staff reasonably believes it could prove by competent evidence or
qualified witnesses at a hearing.
(f) The notice required by Subsection (b)(2) must be
accompanied by a written statement of the nature of the allegations
and the information the board intends to use at the meeting. If the
board does not provide the statement or information at that time,
the license holder may use that failure as grounds for rescheduling
the informal meeting. If the complaint includes an allegation that
the license holder has violated the standard of care, the notice
must include a copy of the report by the expert physician reviewer.
The license holder must provide to the board the license holder's
rebuttal at least five business days before the date of the meeting
in order for the information to be considered at the meeting.
(g) The board by rule shall define circumstances
constituting good cause for purposes of Subsection (b)(1),
including the extended illness of a board investigator and an
expert physician reviewer's delinquency in reviewing and
submitting a report to the board.
(h) Section 164.007(c) applies to the board's investigation
file used in an informal meeting under this section.
SECTION 1.38. Subchapter A, Chapter 164, Occupations Code,
is amended by adding Sections 164.0031 and 164.0032 to read as
follows:
Sec. 164.0031. BOARD REPRESENTATION IN INFORMAL
PROCEEDINGS. (a) In an informal meeting under Section 164.003 or
an informal hearing under Section 164.103, at least two panelists
shall be appointed to determine whether an informal disposition is
appropriate. At least one of the panelists must be a physician.
(b) Notwithstanding Subsection (a) and Section
164.003(b)(4), an informal proceeding may be conducted by one
panelist if the affected physician waives the requirement that at
least two panelists conduct the informal proceeding. If the
physician waives that requirement, the panelist may be either a
physician or a member who represents the public.
(c) The panel requirements described by Subsection (a) do
not apply to an informal proceeding conducted by the board under
Section 164.003 to show compliance with an order of the board.
Sec. 164.0032. ROLES AND RESPONSIBILITIES OF PARTICIPANTS
IN INFORMAL PROCEEDINGS. (a) A board member or district review
committee member that serves as a panelist at an informal meeting
under Section 164.003 shall make recommendations for the
disposition of a complaint or allegation. The member may request
the assistance of a board employee at any time.
(b) Board employees shall present a summary of the
allegations against the affected physician and of the facts
pertaining to the allegation that the employees reasonably believe
may be proven by competent evidence at a formal hearing.
(c) A board attorney shall act as counsel to the panel and,
notwithstanding Subsection (e), shall be present during the
informal meeting and the panel's deliberations to advise the panel
on legal issues that arise during the proceeding. The attorney may
ask questions of participants in the informal meeting to clarify
any statement made by the participant. The attorney shall provide
to the panel a historical perspective on comparable cases that have
appeared before the board, keep the proceedings focused on the case
being discussed, and ensure that the board's employees and the
affected physician have an opportunity to present information
related to the case. During the panel's deliberations, the
attorney may be present only to advise the panel on legal issues and
to provide information on comparable cases that have appeared
before the board.
(d) The panel and board employees shall provide an
opportunity for the affected physician and the physician's
authorized representative to reply to the board employees'
presentation and to present oral and written statements and facts
that the physician and representative reasonably believe could be
proven by competent evidence at a formal hearing.
(e) An employee of the board who participated in the
presentation of the allegation or information gathered in the
investigation of the complaint, the affected physician, the
physician's authorized representative, the complainant, the
witnesses, and members of the public may not be present during the
deliberations of the panel. Only the members of the panel and the
board attorney serving as counsel to the panel may be present during
the deliberations.
(f) The panel shall recommend the dismissal of the complaint
or allegations or, if the panel determines that the affected
physician has violated a statute or board rule, the panel may
recommend board action and terms for an informal settlement of the
case.
(g) The panel's recommendations under Subsection (f) must
be made in a written order and presented to the affected physician
and the physician's authorized representative. The physician may
accept the proposed settlement within the time established by the
panel at the informal meeting. If the physician rejects the
proposed settlement or does not act within the required time, the
board may proceed with the filing of a formal complaint with the
State Office of Administrative Hearings.
(h) If the board rejects the panel's recommendation for
settlement or dismissal, the board shall notify the physician and
state in the board's minutes the reason for rejecting the
recommendation and specify further action to be considered. In
determining the appropriate further action to be taken, the board
shall consider previous attempts to resolve the matter.
SECTION 1.39. Subchapter A, Chapter 164, Occupations Code,
is amended by adding Section 164.0036 to read as follows:
Sec. 164.0036. NOTICE REGARDING CERTAIN COMPLAINTS.
(a) If an informal meeting is not scheduled for a complaint before
the 180th day after the date the board's official investigation of
the complaint is commenced under Section 154.057(b), the board
shall provide notice to all parties to the complaint. The notice
must include an explanation of the reason why the informal meeting
has not been scheduled. The notice under this subsection is not
required if the notice would jeopardize an investigation.
(b) The board must include in its annual report to the
legislature information about any complaint for which notice is
required under Subsection (a), including the reason for failing to
schedule the informal meeting before the 180-day deadline. The
information provided under this subsection must also list any
complaint in which the investigation has extended beyond the first
anniversary of the date the complaint was filed with the board.
SECTION 1.40. Section 164.007, Occupations Code, is amended
by adding Subsection (a-1) to read as follows:
(a-1) The board may change a finding of fact or conclusion
of law or vacate or modify an order of the administrative law judge
only if the board makes a determination required by Section
2001.058(e), Government Code.
SECTION 1.41. Subchapter A, Chapter 164, Occupations Code,
is amended by adding Section 164.0071 to read as follows:
Sec. 164.0071. HEARINGS ON CERTAIN COMPLAINTS. (a) In a
formal hearing described by Section 164.007 in which the sole basis
for disciplinary action is the basis described by Section
164.051(a)(7), the board shall provide evidence from the board's
investigation that shows the basis for the board's findings
required by that subdivision.
(b) In any formal hearing described by Section 164.007,
information obtained as a result of peer review may not be used as
evidence except as the basis for the opinion of an expert witness
called by the board. When admitted into evidence, this information
shall be admitted under seal to protect the confidentiality of the
documents. In the event that a decision of the board or the State
Office of Administrative Hearings is appealed to a district court
or other court, the confidentiality protections relating to the
medical peer review committee documents shall continue.
(c) A member of a peer review committee is not subject to
subpoena and may not be compelled to provide evidence in a formal
hearing.
SECTION 1.42. Section 164.052, Occupations Code, is amended
by amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) A physician or an applicant for a license to practice
medicine commits a prohibited practice if that person:
(1) submits to the board a false or misleading
statement, document, or certificate in an application for a
license;
(2) presents to the board a license, certificate, or
diploma that was illegally or fraudulently obtained;
(3) commits fraud or deception in taking or passing an
examination;
(4) uses alcohol or drugs in an intemperate manner
that, in the board's opinion, could endanger a patient's life;
(5) commits unprofessional or dishonorable conduct
that is likely to deceive or defraud the public, as provided by
Section 164.053, or injure the public;
(6) uses an advertising statement that is false,
misleading, or deceptive;
(7) advertises professional superiority or the
performance of professional service in a superior manner if that
advertising is not readily subject to verification;
(8) purchases, sells, barters, or uses, or offers to
purchase, sell, barter, or use, a medical degree, license,
certificate, or diploma, or a transcript of a license, certificate,
or diploma in or incident to an application to the board for a
license to practice medicine;
(9) alters, with fraudulent intent, a medical license,
certificate, or diploma, or a transcript of a medical license,
certificate, or diploma;
(10) uses a medical license, certificate, or diploma,
or a transcript of a medical license, certificate, or diploma that
has been:
(A) fraudulently purchased or issued;
(B) counterfeited; or
(C) materially altered;
(11) impersonates or acts as proxy for another person
in an examination required by this subtitle for a medical license;
(12) engages in conduct that subverts or attempts to
subvert an examination process required by this subtitle for a
medical license;
(13) impersonates a physician or permits another to
use the person's license or certificate to practice medicine in
this state;
(14) directly or indirectly employs a person whose
license to practice medicine has been suspended, canceled, or
revoked;
(15) associates in the practice of medicine with a
person:
(A) whose license to practice medicine has been
suspended, canceled, or revoked; or
(B) who has been convicted of the unlawful
practice of medicine in this state or elsewhere;
(16) performs or procures a criminal abortion, aids or
abets in the procuring of a criminal abortion, attempts to perform
or procure a criminal abortion, or attempts to aid or abet the
performance or procurement of a criminal abortion; [or]
(17) directly or indirectly aids or abets the practice
of medicine by a person, partnership, association, or corporation
that is not licensed to practice medicine by the board;
(18) performs an abortion on a woman who is pregnant
with a viable unborn child during the third trimester of the
pregnancy unless:
(A) the abortion is necessary to prevent the
death of the woman;
(B) the viable unborn child has a severe,
irreversible brain impairment; or
(C) the woman is diagnosed with a significant
likelihood of suffering imminent severe, irreversible brain damage
or imminent severe, irreversible paralysis; or
(19) performs an abortion on an unemancipated minor
without the written consent of the child's parent, managing
conservator, or legal guardian or without a court order, as
provided by Section 33.003 or 33.004, Family Code, authorizing the
minor to consent to the abortion, unless the physician concludes
that on the basis of the physician's good faith clinical judgment, a
condition exists that complicates the medical condition of the
pregnant minor and necessitates the immediate abortion of her
pregnancy to avert her death or to avoid a serious risk of
substantial impairment of a major bodily function and that there is
insufficient time to obtain the consent of the child's parent,
managing conservator, or legal guardian.
(c) The board shall adopt the forms necessary for physicians
to obtain the consent required for an abortion to be performed on an
unemancipated minor under Subsection (a). The form executed to
obtain consent or any other required documentation must be retained
by the physician until the later of the fifth anniversary of the
date of the minor's majority or the seventh anniversary of the date
the physician received or created the documentation for the record.
SECTION 1.43. Section 164.056, Occupations Code, is amended
by amending Subsection (a) and adding Subsections (d) and (e) to
read as follows:
(a) In enforcing Section 164.051(a)(4), the board, on
probable cause, shall request the affected physician or applicant
to submit to a mental or physical examination by physicians
designated by the board. The board shall adopt guidelines, in
conjunction with persons interested in or affected by this section,
to enable the board to evaluate circumstances in which a physician
or applicant may be required to submit to an examination for mental
or physical health conditions, alcohol and substance abuse, or
professional behavior problems.
(d) The board shall refer a physician or applicant with a
physical or mental health condition to the most appropriate medical
specialist for evaluation. The board may not require a physician or
applicant to submit to an examination by a physician having a
specialty specified by the board unless medically indicated. The
board may not require a physician or applicant to submit to an
examination to be conducted an unreasonable distance from the
person's home or place of business unless the physician or
applicant resides and works in an area in which there are a limited
number of physicians able to perform an appropriate examination.
(e) The guidelines adopted under this section do not impair
or remove the board's power to make an independent licensing
decision.
SECTION 1.44. Section 164.202, Occupations Code, is amended
to read as follows:
Sec. 164.202. REHABILITATION ORDER. (a) The board,
through an agreed order or after a contested proceeding, may impose
a nondisciplinary rehabilitation order on an applicant, as a
prerequisite for issuing a license, or on a license holder, based
on:
(1) intemperate use of drugs or alcohol directly
resulting from habituation or addiction caused by medical care or
treatment provided by a physician;
(2) self-reported intemperate use of drugs or alcohol
during the five years preceding the report that could adversely
affect the reporter's ability to practice medicine safely, if:
(A) the reporting individual has not previously
been the subject of a substance abuse-related order of the board;
and
(B) the applicant or license holder has not
committed a violation of the standard of care as a result of the
intemperate use of drugs or alcohol;
(3) a judgment by a court that the applicant or license
holder is of unsound mind;
(4) a determination of impairment based on a mental or
physical examination offered to establish the impairment in an
evidentiary hearing before the board in which the applicant or
license holder was provided an opportunity to respond; or
(5) an admission by the applicant or license holder
indicating that the applicant or license holder suffers from a
potentially dangerous limitation or an inability to practice
medicine with reasonable skill and safety by reason of illness or as
a result of any physical or mental condition.
(b) The board may not issue an order under this section if,
before the individual signs the proposed order, the board receives
a valid complaint with regard to the individual based on the
individual's intemperate use of drugs or alcohol in a manner
affecting the standard of care.
(c) The board must determine whether an individual has
committed a standard of care violation described by Subsection
(a)(2) before imposing an order under this section.
(d) The board may disclose a rehabilitation order to a local
or statewide private medical association only as provided by
Section 164.205.
SECTION 1.45. Subchapter E, Chapter 164, Occupations Code,
is amended by adding Section 164.205 to read as follows:
Sec. 164.205. RESPONSIBILITIES OF PRIVATE MEDICAL
ASSOCIATIONS. (a) If a rehabilitation order imposed under Section
164.202 requires a license holder to participate in activities or
programs provided by a local or statewide private medical
association, the board shall inform the association of the license
holder's duties under the order. The information provided under
this section must include specific guidance to enable the
association to comply with any requirements necessary to assist in
the physician's rehabilitation.
(b) The board may provide to the association any information
that the board determines to be necessary, including a copy of the
rehabilitation order. Any information received by the association
remains confidential, is not subject to discovery, subpoena, or
other means of legal compulsion, and may be disclosed only to the
board.
SECTION 1.46. Subchapter E, Chapter 164, Occupations Code,
is amended by adding Section 164.206 to read as follows:
Sec. 164.206. REFUND. (a) Subject to Subsection (b), the
board may order a license holder to pay a refund to a consumer as
provided in an agreement resulting from an informal settlement
conference instead of or in addition to imposing an administrative
penalty under Chapter 165.
(b) The amount of a refund ordered as provided in an
agreement resulting from an informal settlement conference may not
exceed the amount the consumer paid to the license holder for a
service regulated by this subtitle. The board may not require
payment of other damages or estimate harm in a refund order.
SECTION 1.47. The heading to Subchapter B, Chapter 165,
Occupations Code, is amended to read as follows:
SUBCHAPTER B. INJUNCTIVE RELIEF AND OTHER ENFORCEMENT PROVISIONS
SECTION 1.48. Subchapter B, Chapter 165, Occupations Code,
is amended by adding Section 165.052 to read as follows:
Sec. 165.052. CEASE AND DESIST ORDER. (a) If it appears to
the board that a person who is not licensed under this subtitle is
violating this subtitle, a rule adopted under this subtitle, or
another state statute or rule relating to the practice of medicine,
the board after notice and opportunity for a hearing may issue a
cease and desist order prohibiting the person from engaging in the
activity.
(b) A violation of an order under this section constitutes
grounds for imposing an administrative penalty under this chapter.
SECTION 1.49. The following laws are repealed:
(1) Subsection (d), Section 152.010, Occupations
Code; and
(2) Subsections (d) through (h), Section 157.0542,
Occupations Code.
SECTION 1.50. Not later than January 1, 2006, the Texas
Medical Board shall:
(1) adopt the policies required by Sections 153.057
and 153.058, Occupations Code, as added by this article; and
(2) adopt the rules required by Subtitle B, Title 3,
Occupations Code, as amended by this article.
SECTION 1.51. (a) The changes in law made by Sections
152.003, 152.006, and 152.010, Occupations Code, as amended by this
article, regarding the prohibitions on or qualifications of members
of the Texas Medical Board do not affect the entitlement of a member
serving on the board immediately before September 1, 2005, to
continue to serve and function as a member of the board for the
remainder of the member's term. The changes in law made by those
sections apply only to a member appointed on or after September 1,
2005.
(b) The Texas Medical Board shall adopt rules necessary to
implement the requirements of Section 155.006, Occupations Code, as
added by this article, not later than March 1, 2006.
(c) The changes in law made by this article related to the
filing, investigation, or disposition of a complaint under Subtitle
B, Title 3, Occupations Code, as amended by this article, apply only
to a complaint filed with the Texas Medical Board on or after the
effective date of this Act. A complaint filed before the effective
date of this Act is governed by the law as it existed immediately
before that date, and the former law is continued in effect for that
purpose.
(d) The changes in law made by this article governing the
eligibility of a person for a license under Subtitle B, Title 3,
Occupations Code, apply only to an application for a license filed
on or after the effective date of this Act. A license application
filed before the effective date of this Act is governed by the law
in effect at the time the application was filed, and the former law
is continued in effect for that purpose.
(e) The change in law made by this article with respect to
conduct that is grounds for imposition of a disciplinary sanction,
including a refund or cease and desist order, applies only to
conduct that occurs on or after the effective date of this Act.
Conduct that occurs before the effective date of this Act is
governed by the law in effect on the date the conduct occurred, and
the former law is continued in effect for that purpose.
SECTION 1.52. MEDICAL PEER REVIEW STUDY. (a) The
presiding officer of each house of the legislature shall appoint a
joint interim committee to study the medical peer review process in
hospitals and other health care entities in this state. The study
shall include an examination of:
(1) the use of medical peer review in identifying and
reporting to the Texas Medical Board the conduct of or the quality
of care provided by physicians who are members of the medical staffs
of hospitals and other health care entities;
(2) the use of medical peer review in disciplining a
physician based on the conduct or quality of care provided by the
physician as a member of the medical staff of a hospital or other
health care entity;
(3) the appropriate level of immunity protections for
hospitals and other health care entities, medical peer review
committees, and individuals who participate on those committees in
health care liability claims brought by patients alleging bad faith
physician credentialing; and
(4) whether there are adequate mechanisms in state law
to ensure appropriate regulatory supervision of the
appropriateness and effectiveness of medical peer review in
hospitals and other health care entities.
(b) As part of the joint interim committee's study, the
committee shall investigate:
(1) the adequacy of the Texas Medical Board's
oversight and investigation of physician claims that the medical
peer review process is misused, including whether the board's
oversight and investigation powers should be strengthened and how
other states investigate claims of misuse of the medical peer
review process;
(2) the state regulatory reporting mechanisms
relating to the appropriateness and effectiveness of medical peer
review in hospitals and other health care entities and the
oversight and authority of the state to ensure good faith medical
peer review in hospitals and other health care entities in this
state;
(3) the potentially negative impact on medical peer
review in this state that could result from potential changes to:
(A) immunity protections; or
(B) the oversight and investigation of physician
claims of misuse of the medical peer review process;
(4) how the laws of other states address immunity
protections for medical peer review; and
(5) any other matter relevant to the medical peer
review process, including how state and federal law identifies
physician conduct that is considered to be unprofessional or unsafe
by a medical peer review committee.
(c) The Department of State Health Services and the Texas
Medical Board shall provide information and assistance to the joint
interim committee in conducting the investigation required by this
section on the committee's request.
(d) Not later than January 1, 2007, the joint interim
committee shall report the committee's findings to the governor,
lieutenant governor, and speaker of the house of representatives.
(e) This section expires September 1, 2007.
ARTICLE 2. CONTINUATION AND FUNCTIONS OF TEXAS STATE BOARD OF
PHYSICIAN ASSISTANT EXAMINERS
SECTION 2.01. Section 204.002, Occupations Code, is amended
to read as follows:
Sec. 204.002. DEFINITIONS. In this chapter:
(1) "Medical board" means the Texas [State Board of]
Medical Board [Examiners].
(2) "Physician assistant board" means the Texas [State
Board of] Physician Assistant Board [Examiners].
SECTION 2.02. The heading to Subchapter B, Chapter 204,
Occupations Code, is amended to read as follows:
SUBCHAPTER B. TEXAS [STATE BOARD OF] PHYSICIAN ASSISTANT BOARD
[EXAMINERS]
SECTION 2.03. Section 204.051, Occupations Code, is amended
to read as follows:
Sec. 204.051. TEXAS [STATE BOARD OF] PHYSICIAN ASSISTANT
BOARD [EXAMINERS]. (a) The Texas [State Board of] Physician
Assistant Board [Examiners] is an advisory board to the Texas State
Board of Medical Examiners.
(b) A reference in any other law to the former Texas State
Board of Physician Assistant Examiners means the Texas Physician
Assistant Board.
SECTION 2.04. Section 204.052, Occupations Code, is amended
to read as follows:
Sec. 204.052. APPOINTMENT OF BOARD. (a) The physician
assistant board consists of nine members appointed by the governor
with the advice and consent of the senate as follows:
(1) three practicing physician assistant members who
each have at least five years of clinical experience as a physician
assistant;
(2) three physician members who are licensed in this
state and who supervise physician assistants; and
(3) three public members who are not licensed as a
physician or physician assistant.
(b) Appointments to the physician assistant board shall be
made without regard to the race, color, disability, sex, religion,
age, or national origin of the appointee.
SECTION 2.05. Section 204.053, Occupations Code, is amended
to read as follows:
Sec. 204.053. MEMBERSHIP ELIGIBILITY AND RESTRICTIONS.
(a) In this section, "Texas trade association" means a cooperative
and voluntarily joined statewide association of business or
professional competitors in this state designed to assist its
members and its industry or profession in dealing with mutual
business or profession problems and in promoting their common
interest.
(b) A person may not be [is not eligible for appointment as]
a public member of the physician assistant board if the person or
the person's spouse:
(1) is registered, certified, or licensed by a [an
occupational] regulatory agency in the field of health care; [or]
(2) is employed by or participates in the management
of a business entity or other organization regulated by or
receiving money from the medical board or physician assistant
board;
(3) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by or receiving money from the medical board
or physician assistant board; or
(4) uses or receives a substantial amount of tangible
goods, services, or money from the medical board or physician
assistant board other than compensation or reimbursement
authorized by law for physician assistant board membership,
attendance, or expenses [that provides health care services or that
sells, manufactures, or distributes health care supplies or
equipment].
(c) [(b)] A person may not be [serve as] a member of the
physician assistant board and may not be a medical board employee in
a "bona fide executive, administrative, or professional capacity,"
as that phrase is used for purposes of establishing an exemption to
the overtime provisions of the federal Fair Labor Standards Act of
1938 (29 U.S.C. Section 201 et seq.), if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of health care;
or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in the field of health care.
(d) A person may not be a member of the physician assistant
board or act as the general counsel to the physician assistant board
if the person is required to register as a lobbyist under Chapter
305, Government Code, because of the person's activities for
compensation on behalf of a profession related to the operation of
the medical board or physician assistant board.
SECTION 2.06. Section 204.055, Occupations Code, is amended
to read as follows:
Sec. 204.055. OFFICERS. The governor shall designate a
member of the physician assistant board as the presiding officer of
the board to serve in that capacity at the will of the governor. The
physician assistant board shall select from its membership a
[presiding officer and a] secretary to serve a one-year term
[terms].
SECTION 2.07. Section 204.056, Occupations Code, is amended
by amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) It is a ground for removal from the physician assistant
board that a member:
(1) does not have at the time of taking office
[appointment] the qualifications required by Sections 204.052 and
204.053 [this subchapter for appointment to the board];
(2) does not maintain during [the] service on the
physician assistant board the qualifications required by Sections
204.052 and 204.053 [this subchapter for appointment to the board];
[or]
(3) is ineligible for membership under Section
204.053;
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) is absent from more than half [fails to attend at
least one-half] of the regularly scheduled physician assistant
board meetings that the member is eligible to attend during a
calendar year without an excuse approved by a majority vote of the
board.
(c) If the executive director of the medical board has
knowledge that a potential ground for removal exists, the executive
director shall notify the presiding officer of the physician
assistant board of the potential ground. The presiding officer
shall then notify the governor and the attorney general that a
potential ground for removal exists. If the potential ground for
removal involves the presiding officer, the executive director
shall notify the next highest ranking officer of the physician
assistant board, who shall then notify the governor and the
attorney general that a potential ground for removal exists.
SECTION 2.08. Subchapter B, Chapter 204, Occupations Code,
is amended by adding Section 204.059 to read as follows:
Sec. 204.059. TRAINING. (a) A person who is appointed to
and qualifies for office as a member of the physician assistant
board may not vote, deliberate, or be counted as a member in
attendance at a meeting of the board until the person completes a
training program that complies with this section.
(b) The training program must provide the person with
information regarding:
(1) this chapter and the physician assistant board's
programs, functions, rules, and budget;
(2) the results of the most recent formal audit of the
physician assistant board;
(3) the requirements of laws relating to open
meetings, public information, administrative procedure, and
conflicts of interest; and
(4) any applicable ethics policies adopted by the
physician assistant board or the Texas Ethics Commission.
(c) A person appointed to the physician assistant board is
entitled to reimbursement, as provided by the General
Appropriations Act, for the travel expenses incurred in attending
the training program regardless of whether the attendance at the
program occurs before or after the person qualifies for office.
SECTION 2.09. Subchapter C, Chapter 204, Occupations Code,
is amended by adding Section 204.1015 to read as follows:
Sec. 204.1015. GUIDELINES FOR EARLY INVOLVEMENT IN
RULEMAKING PROCESS. (a) The physician assistant board shall adopt
guidelines to establish procedures for receiving input during the
rulemaking process from individuals and groups that have an
interest in matters under the board's jurisdiction. The guidelines
must provide an opportunity for those individuals and groups to
provide input before the physician assistant board submits the rule
to the medical board for approval.
(b) A rule adopted by the medical board may not be
challenged on the grounds that the physician assistant board did
not comply with this section. If the physician assistant board was
unable to solicit a significant amount of input from the public or
affected persons early in the rulemaking process, the physician
assistant board shall state in writing the reasons why the
physician assistant board was unable to do so.
SECTION 2.10. Subchapter C, Chapter 204, Occupations Code,
is amended by adding Section 204.105 to read as follows:
Sec. 204.105. RULES ON CONSEQUENCES OF CRIMINAL CONVICTION.
The physician assistant board shall adopt rules and guidelines as
necessary to comply with Chapter 53, except to the extent the
requirements of this chapter are stricter than the requirements of
Chapter 53.
SECTION 2.11. Subchapter C, Chapter 204, Occupations Code,
is amended by adding Section 204.106 to read as follows:
Sec. 204.106. DIVISION OF RESPONSIBILITIES. Subject to the
advice and approval of the medical board, the physician assistant
board shall develop and implement policies that clearly separate
the policy-making responsibilities of the physician assistant
board and the management responsibilities of the executive director
and the staff of the medical board.
SECTION 2.12. Subchapter C, Chapter 204, Occupations Code,
is amended by adding Section 204.107 to read as follows:
Sec. 204.107. PUBLIC PARTICIPATION. Subject to the advice
and approval of the medical board, the physician assistant board
shall develop and implement policies that provide the public with a
reasonable opportunity to appear before the physician assistant
board and to speak on any issue under the jurisdiction of the
physician assistant board.
SECTION 2.13. Subchapter C, Chapter 204, Occupations Code,
is amended by adding Section 204.108 to read as follows:
Sec. 204.108. RECORDS OF COMPLAINTS. (a) The physician
assistant board shall maintain a system to promptly and efficiently
act on complaints filed with the physician assistant board. The
board shall maintain:
(1) information about the parties to the complaint and
the subject matter of the complaint;
(2) a summary of the results of the review or
investigation of the complaint; and
(3) information about the disposition of the
complaint.
(b) The physician assistant board shall make information
available describing its procedures for complaint investigation
and resolution.
(c) The physician assistant board shall periodically notify
the parties of the status of the complaint until final disposition
of the complaint, unless the notice would jeopardize an
investigation.
SECTION 2.14. Subchapter C, Chapter 204, Occupations Code,
is amended by adding Section 204.109 to read as follows:
Sec. 204.109. USE OF TECHNOLOGY. Subject to the advice and
approval of the medical board, the physician assistant board shall
implement a policy requiring the physician assistant board to use
appropriate technological solutions to improve the physician
assistant board's ability to perform its functions. The policy
must ensure that the public is able to interact with the board on
the Internet.
SECTION 2.15. Subchapter C, Chapter 204, Occupations Code,
is amended by adding Section 204.110 to read as follows:
Sec. 204.110. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION POLICY. (a) Subject to the advice and approval
of the medical board, the physician assistant board shall develop
and implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of physician assistant
board rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the physician
assistant board's jurisdiction.
(b) The physician assistant board's procedures relating to
alternative dispute resolution must conform, to the extent
possible, to any model guidelines issued by the State Office of
Administrative Hearings for the use of alternative dispute
resolution by state agencies.
(c) The physician assistant board shall designate a trained
person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the physician assistant board.
SECTION 2.16. Section 204.152, Occupations Code, is amended
to read as follows:
Sec. 204.152. ISSUANCE OF LICENSE. (a) The physician
assistant board shall issue a license to an applicant who:
(1) meets the eligibility requirements of Section
204.153;
(2) submits an application on a form prescribed by the
board;
(3) pays the required application fee;
(4) certifies that the applicant is mentally and
physically able to function safely as a physician assistant; and
(5) submits to the board any other information the
board considers necessary to evaluate the applicant's
qualifications.
(b) The physician assistant board may delegate authority to
medical board employees to issue licenses under this chapter to
applicants who clearly meet all licensing requirements. If the
medical board employees determine that the applicant does not
clearly meet all licensing requirements, the application shall be
returned to the physician assistant board. A license issued under
this subsection does not require formal physician assistant board
approval.
SECTION 2.17. Section 204.153, Occupations Code, is amended
by amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) To be eligible for a license under this chapter, an
applicant must:
(1) successfully complete an educational program for
physician assistants or surgeon assistants accredited by the
Committee on Allied Health Education and Accreditation or by that
committee's predecessor or successor entities;
(2) pass the Physician Assistant National Certifying
Examination administered by the National Commission on
Certification of Physician Assistants;
(3) hold a certificate issued by the National
Commission on Certification of Physician Assistants;
(4) be of good moral character; [and]
(5) meet any other requirement established by board
rule; and
(6) pass a jurisprudence examination approved by the
physician assistant board as provided by Subsection (a-1).
(a-1) The jurisprudence examination shall be conducted on
the licensing requirements and other laws, rules, or regulations
applicable to the physician assistant profession in this state.
The physician assistant board shall establish rules for the
jurisprudence examination under Subsection (a)(6) regarding:
(1) the development of the examination;
(2) applicable fees;
(3) administration of the examination;
(4) reexamination procedures;
(5) grading procedures; and
(6) notice of results.
SECTION 2.18. Section 204.156, Occupations Code, is amended
to read as follows:
Sec. 204.156. LICENSE RENEWAL. (a) On notification from
the physician assistant board, a person who holds a license under
this chapter may renew the license by:
(1) paying the required renewal fee;
(2) submitting the appropriate form; and
(3) meeting any other requirement established by board
rule.
(b) The physician assistant board by rule may adopt a system
under which licenses expire on various dates during the year.
(c) A person who is otherwise eligible to renew a license
may renew an unexpired license by paying the required renewal fee to
the physician assistant board before the expiration date of the
license. A person whose license has expired may not engage in
activities that require a license until the license has been
renewed.
(d) A person whose license has been expired for 90 days or
less may renew the license by paying to the physician assistant
board a fee that is equal to 1-1/2 times the renewal fee for the
license.
(e) A person whose license has been expired for more than 90
days but less than one year may renew the license by paying to the
physician assistant board a fee equal to two times the renewal fee
for the license.
(f) A person who was licensed in this state, moved to
another state, and is currently licensed and has been in practice in
the other state for the two years preceding the date of the
application may obtain a new license without reexamination. The
person must pay to the physician assistant board a fee that is equal
to two times the normally required renewal fee for the license.
SECTION 2.19. Subchapter D, Chapter 204, Occupations Code,
is amended by adding Section 204.1562 to read as follows:
Sec. 204.1562. CONTINUING MEDICAL EDUCATION REQUIREMENTS.
(a) The physician assistant board by rule shall adopt, monitor,
and enforce a reporting program for the continuing medical
education of license holders. The physician assistant board shall
adopt and administer rules that:
(1) establish the number of hours of continuing
medical education the physician assistant board determines
appropriate as a prerequisite to the renewal of a license under this
chapter;
(2) require at least one-half of the hours of
continuing medical education established under Subdivision (1) to
be approved by the physician assistant board; and
(3) adopt a process to assess a license holder's
participation in continuing medical education courses.
(b) The physician assistant board may require that a
specified number of continuing medical education hours be completed
informally, including through self-study and self-directed
education.
SECTION 2.20. Section 204.157, Occupations Code, is amended
by amending Subsection (c) and adding Subsection (d) to read as
follows:
(c) A person whose license is on inactive status under this
section may return the person's license to active status by:
(1) applying to the physician assistant board; [and]
(2) satisfying the requirements of Section 204.156;
and
(3) paying the fee established by the physician
assistant board for returning a license to active status.
(d) The physician assistant board by rule shall establish a
limit on the length of time a physician assistant's license may
remain on inactive status.
SECTION 2.21. Subchapter F, Chapter 204, Occupations Code,
is amended by adding Section 204.2511 to read as follows:
Sec. 204.2511. CONDUCT OF INVESTIGATION. The physician
assistant board shall complete a preliminary investigation of a
complaint filed with the physician assistant board not later than
the 30th day after the date of receiving the complaint. The
physician assistant board shall first determine whether the
physician assistant constitutes a continuing threat to the public
welfare. On completion of the preliminary investigation, the
physician assistant board shall determine whether to officially
proceed on the complaint. If the physician assistant board fails to
complete the preliminary investigation in the time required by this
section, the physician assistant board's official investigation of
the complaint is considered to commence on that date.
SECTION 2.22. Subsection (a), Section 204.301, Occupations
Code, is amended to read as follows:
(a) Except as provided by Section 204.305, on a
determination that an applicant or license holder committed an act
described in Section 204.302, 204.303, or 204.304, the physician
assistant board by order shall take any of the following actions:
(1) deny the person's application for a license
[application] or license renewal or revoke the person's license or
other authorization;
(2) require the person to submit to the care,
counseling, or treatment of a health care practitioner designated
by the physician assistant board;
(3) stay enforcement of an order and place the person
on probation;
(4) require the person to complete additional
training;
(5) suspend, limit, or restrict the person's license,
including:
(A) limiting the practice of the person to, or
excluding from the practice, one or more specified activities of
the practice as a physician assistant; or
(B) stipulating periodic physician assistant
board review;
(6) assess an administrative penalty against the
person under Section 204.351;
(7) order the person to perform public service; or
(8) administer a public reprimand.
SECTION 2.23. Subchapter G, Chapter 204, Occupations Code,
is amended by adding Section 204.3011 to read as follows:
Sec. 204.3011. DELEGATION OF CERTAIN COMPLAINT
DISPOSITIONS. (a) The physician assistant board may delegate to a
committee of medical board employees the authority to dismiss or
enter into an agreed settlement of a complaint that does not relate
directly to patient care or that involves only administrative
violations. The disposition determined by the committee must be
approved by the physician assistant board at a public meeting.
(b) A complaint delegated under this section shall be
referred for informal proceedings under Section 204.312 if:
(1) the committee of employees determines that the
complaint should not be dismissed or settled;
(2) the committee is unable to reach an agreed
settlement; or
(3) the affected physician assistant requests that the
complaint be referred for informal proceedings.
SECTION 2.24. Subchapter G, Chapter 204, Occupations Code,
is amended by adding Section 204.3045 to read as follows:
Sec. 204.3045. PHYSICAL OR MENTAL EXAMINATION. (a) The
physician assistant board shall adopt guidelines, in conjunction
with persons interested in or affected by this section, to enable
the physician assistant board to evaluate circumstances in which a
physician assistant or applicant may be required to submit to an
examination for mental or physical health conditions, alcohol and
substance abuse, or professional behavior problems.
(b) The physician assistant board shall refer a physician
assistant or applicant with a physical or mental health condition
to the most appropriate medical specialist for evaluation. The
physician assistant board may not require a physician assistant or
applicant to submit to an examination by a physician having a
specialty specified by the physician assistant board unless
medically indicated. The physician assistant board may not require
a physician assistant or applicant to submit to an examination to be
conducted an unreasonable distance from the person's home or place
of business unless the physician assistant or applicant resides and
works in an area in which there are a limited number of physicians
able to perform an appropriate examination.
(c) The guidelines adopted under this section do not impair
or remove the physician assistant board's power to make an
independent licensing decision.
SECTION 2.25. Section 204.305, Occupations Code, is amended
to read as follows:
Sec. 204.305. REHABILITATION ORDER. (a) The physician
assistant board, through an agreed order or after a contested
proceeding, may impose a rehabilitation order on an applicant, as a
prerequisite for issuing a license, or on a license holder based on:
(1) the person's intemperate use of drugs or alcohol
directly resulting from habituation or addiction caused by medical
care or treatment provided by a physician;
(2) the person's intemperate use of drugs or alcohol
during the five years preceding the date of the report that could
adversely affect the person's ability to safely practice as a
physician assistant, if the person:
(A) reported the use; [and]
(B) has not previously been the subject of a
substance abuse related order of the board; and
(C) has not committed a violation of the standard
of care as a result of the intemperate use of drugs or alcohol;
(3) a judgment by a court that the person is of unsound
mind; or
(4) the results of a mental or physical examination,
or an admission by the person, indicating that the person suffers
from a potentially dangerous limitation or an inability to practice
as a physician assistant with reasonable skill and safety because
of illness or any other physical or mental condition.
(b) The physician assistant board may not issue an order
under this section if, before the individual signs the proposed
order, the physician assistant board receives a valid complaint
with regard to the individual based on the individual's intemperate
use of drugs or alcohol in a manner affecting the standard of care.
(c) The physician assistant board must determine whether an
individual has committed a standard of care violation described by
Subsection (a)(2) before imposing an order under this section.
(d) The physician assistant board may disclose a
rehabilitation order to a local or statewide private association of
physician assistants only as provided by Section 204.3075.
SECTION 2.26. Subchapter G, Chapter 204, Occupations Code,
is amended by adding Section 204.3075 to read as follows:
Sec. 204.3075. RESPONSIBILITIES OF PRIVATE ASSOCIATIONS.
(a) If a rehabilitation order imposed under Section 204.305
requires a license holder to participate in activities or programs
provided by a local or statewide private association of physician
assistants, the physician assistant board shall inform the
association of the license holder's duties under the order. The
information provided under this section must include specific
guidance to enable the association to comply with any requirements
necessary to assist in the physician assistant's rehabilitation.
(b) The physician assistant board may provide to the
association any information that the board determines to be
necessary, including a copy of the rehabilitation order. Any
information received by the association remains confidential, is
not subject to discovery, subpoena, or other means of legal
compulsion, and may be disclosed only to the physician assistant
board.
SECTION 2.27. Subchapter G, Chapter 204, Occupations Code,
is amended by adding Section 204.312 to read as follows:
Sec. 204.312. INFORMAL PROCEEDINGS. (a) The physician
assistant board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under
Section 2001.056, Government Code; and
(2) informal proceedings held in compliance with
Section 2001.054, Government Code.
(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 physician
assistant board, unless good cause is shown by the physician
assistant board for scheduling the informal meeting after that
date;
(2) the physician assistant 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) at least one of the physician assistant board
members participating in the informal meeting as a panelist be a
member who represents the public;
(5) the physician assistant board's legal counsel or a
representative of the attorney general be present to advise the
physician assistant board or the medical board's staff; and
(6) a member of the medical board's staff be at the
meeting to present to the physician assistant board's
representative the facts the staff reasonably believes it could
prove by competent evidence or qualified witnesses at a hearing.
(c) An affected physician assistant is entitled to:
(1) reply to the staff's presentation; and
(2) present the facts the physician assistant
reasonably believes the physician assistant could prove by
competent evidence or qualified witnesses at a hearing.
(d) After ample time is given for the presentations, the
physician assistant board representative shall recommend that the
investigation be closed or shall attempt to mediate the disputed
matters and make a recommendation regarding the disposition of the
case in the absence of a hearing under applicable law concerning
contested cases.
(e) If the license holder has previously been the subject of
disciplinary action by the physician assistant board, the physician
assistant board shall schedule the informal meeting as soon as
practicable but not later than the deadline prescribed by
Subsection (b)(1).
SECTION 2.28. Subchapter G, Chapter 204, Occupations Code,
is amended by adding Section 204.313 to read as follows:
Sec. 204.313. PHYSICIAN ASSISTANT BOARD REPRESENTATION IN
INFORMAL PROCEEDINGS. (a) In an informal meeting under Section
204.312, at least two panelists shall be appointed to determine
whether an informal disposition is appropriate.
(b) Notwithstanding Subsection (a) and Section
204.312(b)(4), an informal proceeding may be conducted by one
panelist if the affected physician assistant waives the requirement
that at least two panelists conduct the informal proceeding. If the
physician assistant waives that requirement, the panelist may be
any member of the physician assistant board.
(c) The panel requirements described by Subsections (a) and
(b) apply to an informal proceeding conducted by the physician
assistant board under Section 204.312, including a proceeding to:
(1) consider a disciplinary case to determine if a
violation has occurred; or
(2) request modification or termination of an order.
(d) The panel requirements described by Subsections (a) and
(b) do not apply to an informal proceeding conducted by the
physician assistant board under Section 204.312 to show compliance
with an order of the physician assistant board.
SECTION 2.29. Subchapter G, Chapter 204, Occupations Code,
is amended by adding Sections 204.314 and 204.3145 to read as
follows:
Sec. 204.314. ROLES AND RESPONSIBILITIES OF PARTICIPANTS IN
INFORMAL PROCEEDINGS. (a) A physician assistant board member that
serves as a panelist at an informal meeting under Section 204.312
shall make recommendations for the disposition of a complaint or
allegation. The member may request the assistance of a medical
board employee at any time.
(b) Medical board employees shall present a summary of the
allegations against the affected physician assistant and of the
facts pertaining to the allegation that the employees reasonably
believe may be proven by competent evidence at a formal hearing.
(c) A physician assistant board or medical board attorney
shall act as counsel to the panel and, notwithstanding Subsection
(e), shall be present during the informal meeting and the panel's
deliberations to advise the panel on legal issues that arise during
the proceeding. The attorney may ask questions of participants in
the informal meeting to clarify any statement made by the
participant. The attorney shall provide to the panel a historical
perspective on comparable cases that have appeared before the
physician assistant board or medical board, keep the proceedings
focused on the case being discussed, and ensure that the medical
board's employees and the affected physician assistant have an
opportunity to present information related to the case. During the
panel's deliberations, the attorney may be present only to advise
the panel on legal issues and to provide information on comparable
cases that have appeared before the physician assistant board or
medical board.
(d) The panel and medical board employees shall provide an
opportunity for the affected physician assistant and the physician
assistant's authorized representative to reply to the medical board
employees' presentation and to present oral and written statements
and facts that the physician assistant and representative
reasonably believe could be proven by competent evidence at a
formal hearing.
(e) An employee of the medical board who participated in the
presentation of the allegation or information gathered in the
investigation of the complaint, the affected physician assistant,
the physician assistant's authorized representative, the
complainant, the witnesses, and members of the public may not be
present during the deliberations of the panel. Only the members of
the panel and the attorney serving as counsel to the panel may be
present during the deliberations.
(f) The panel shall recommend the dismissal of the complaint
or allegations or, if the panel determines that the affected
physician assistant has violated a statute or physician assistant
board rule, the panel may recommend physician assistant board
action and terms for an informal settlement of the case.
(g) The panel's recommendations under Subsection (f) must
be made in a written order and presented to the affected physician
assistant and the physician assistant's authorized representative.
The physician assistant may accept the proposed settlement within
the time established by the panel at the informal meeting. If the
physician assistant rejects the proposed settlement or does not act
within the required time, the physician assistant board may proceed
with the filing of a formal complaint with the State Office of
Administrative Hearings.
Sec. 204.3145. LIMIT ON ACCESS TO INVESTIGATION FILES. The
physician assistant board shall prohibit or limit access to an
investigation file relating to a license holder in an informal
proceeding in the manner provided by Section 164.007(c).
SECTION 2.30. Subchapter G, Chapter 204, Occupations Code,
is amended by adding Section 204.315 to read as follows:
Sec. 204.315. SURRENDER OF LICENSE. (a) The physician
assistant board may accept the voluntary surrender of a license.
(b) A surrendered license may not be returned to the license
holder unless the physician assistant board determines, under
physician assistant board rules, that the former holder of the
license is competent to resume practice.
(c) The physician assistant board by rule shall establish
guidelines for determining the competency of a former license
holder to return to practice.
SECTION 2.31. Subchapter G, Chapter 204, Occupations Code,
is amended by adding Section 204.316 to read as follows:
Sec. 204.316. REFUND. (a) Subject to Subsection (b), the
physician assistant board may order a license holder to pay a refund
to a consumer as provided in an agreement resulting from an informal
settlement conference instead of or in addition to imposing an
administrative penalty under Section 204.351.
(b) The amount of a refund ordered as provided in an
agreement resulting from an informal settlement conference may not
exceed the amount the consumer paid to the license holder for a
service regulated by this chapter. The physician assistant board
may not require payment of other damages or estimate harm in a
refund order.
SECTION 2.32. Subchapter G, Chapter 204, Occupations Code,
is amended by adding Section 204.317 to read as follows:
Sec. 204.317. MODIFICATION OF FINDINGS OR RULINGS BY
ADMINISTRATIVE LAW JUDGE. The physician assistant board may change
a finding of fact or conclusion of law or vacate or modify an order
of an administrative law judge only if the physician assistant
board makes a determination required by Section 2001.058(e),
Government Code.
SECTION 2.33. Subchapter G, Chapter 204, Occupations Code,
is amended by adding Section 204.318 to read as follows:
Sec. 204.318. EXPERT IMMUNITY. An expert who assists the
physician assistant board is immune from suit and judgment and may
not be subjected to a suit for damages for any investigation,
report, recommendation, statement, evaluation, finding, or other
action taken without fraud or malice in the course of assisting the
board in a disciplinary proceeding. The attorney general shall
represent the expert in any suit resulting from a service provided
by the person in good faith to the physician assistant board.
SECTION 2.34. The heading to Subchapter H, Chapter 204,
Occupations Code, is amended to read as follows:
SUBCHAPTER H. PENALTIES AND OTHER ENFORCEMENT PROVISIONS
SECTION 2.35. Subchapter H, Chapter 204, Occupations Code,
is amended by adding Section 204.353 to read as follows:
Sec. 204.353. CEASE AND DESIST ORDER. (a) If it appears to
the physician assistant board that a person who is not licensed
under this chapter is violating this chapter, a rule adopted under
this chapter, or another state statute or rule relating to
physician assistant practice, the board after notice and
opportunity for a hearing may issue a cease and desist order
prohibiting the person from engaging in the activity.
(b) A violation of an order under this section constitutes
grounds for imposing an administrative penalty under this
subchapter.
SECTION 2.36. Section 204.004, Occupations Code, is
repealed.
SECTION 2.37. (a) Not later than January 1, 2006, the
Texas Physician Assistant Board shall:
(1) adopt the policies required by Sections 204.109
and 204.110, Occupations Code, as added by this article; and
(2) adopt the rules required by Chapter 204,
Occupations Code, as amended by this article.
(b) Not later than March 1, 2006, the Texas Physician
Assistant Board shall develop the jurisprudence examination
required by Section 204.153, Occupations Code, as amended by this
article.
(c) The requirement to pass a jurisprudence examination
under Section 204.153, Occupations Code, as amended by this
article, applies only to an individual who applies for a license as
a physician assistant on or after September 1, 2006.
SECTION 2.38. (a) The changes in law made by Sections
204.053, 204.056, and 204.059, Occupations Code, as amended by this
article, regarding the prohibitions on or qualifications of members
of the Texas Physician Assistant Board do not affect the
entitlement of a member serving on the board immediately before
September 1, 2005, to continue to serve and function as a member of
the board for the remainder of the member's term. The changes in
law made by those sections apply only to a member appointed on or
after September 1, 2005.
(b) The changes in law made by this article related to the
filing, investigation, or resolution of a complaint under Chapter
204, Occupations Code, as amended by this article, apply only to a
complaint filed with the Texas Physician Assistant Board on or
after the effective date of this Act. A complaint filed before the
effective date of this Act is governed by the law as it existed
immediately before that date, and the former law is continued in
effect for that purpose.
(c) The changes in law made by this article governing the
authority of the Texas Physician Assistant Board to issue, renew,
or revoke a license under Chapter 204, Occupations Code, apply only
to an application for a license filed with the Texas Physician
Assistant Board under Chapter 204, Occupations Code, as amended by
this article, on or after the effective date of this Act. A license
application filed before the effective date of this Act is governed
by the law in effect at the time the application was filed, and the
former law is continued in effect for that purpose.
(d) The change in law made by this article with respect to
conduct that is grounds for imposition of a disciplinary sanction,
including a refund or cease and desist order, applies only to
conduct that occurs on or after the effective date of this Act.
Conduct that occurs before the effective date of this Act is
governed by the law in effect on the date the conduct occurred, and
the former law is continued in effect for that purpose.
ARTICLE 3. CONTINUATION AND FUNCTIONS OF TEXAS STATE BOARD OF
ACUPUNCTURE EXAMINERS
SECTION 3.01. Subdivisions (6), (7), and (8), Section
205.001, Occupations Code, are amended to read as follows:
(6) "Executive director" means the executive director
of the Texas Medical [State] Board [of Medical Examiners].
(7) "Medical board" means the Texas Medical [State]
Board [of Medical Examiners].
(8) "Physician" means a person licensed to practice
medicine by the Texas Medical [State] Board [of Medical Examiners].
SECTION 3.02. Subsection (a), Section 205.051, Occupations
Code, is amended to read as follows:
(a) The Texas State Board of Acupuncture Examiners consists
of nine members appointed by the governor with the advice and
consent of the senate as follows:
(1) four acupuncturist members who have at least five
years of experience in the practice of acupuncture in this state and
who are not physicians;
(2) two physician members experienced in the practice
of acupuncture; and
(3) three members of the general public who are not
licensed or trained in a health care profession.
SECTION 3.03. Subsections (a), (c), and (d), Section
205.053, Occupations Code, are amended to read as follows:
(a) In this section, "Texas trade association" means a
[nonprofit,] cooperative[,] and voluntarily joined statewide
association of business or professional competitors in this state
designed to assist its members and its industry or profession in
dealing with mutual business or professional problems and in
promoting their common interest.
(c) A person [who is the spouse of an officer, board member,
manager, or paid consultant of a Texas trade association in the
field of health care] may not be a member of the acupuncture board
and may not be a [an employee of the] medical board employee in a
"bona fide executive, administrative, or professional capacity,"
as that phrase is used for purposes of establishing an exemption to
the overtime provisions of the federal Fair Labor Standards Act of
1938 (29 U.S.C. Section 201 et seq.), if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in the field of health care;
or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in the field of health care
[who is exempt from the state's position classification plan or is
compensated at or above the amount prescribed by the General
Appropriations Act for step 1, salary group A17, of the position
classification salary schedule].
(d) A person may not be a member of [serve on] the
acupuncture board or act as general counsel to the acupuncture
board or the medical board if the person is required to register as
a lobbyist under Chapter 305, Government Code, because of the
person's activities for compensation on behalf of a profession
related to the operation of the medical board or acupuncture board.
SECTION 3.04. Section 205.055, Occupations Code, is amended
to read as follows:
Sec. 205.055. PRESIDING OFFICER. The governor shall
designate an acupuncturist [a] member of the acupuncture board as
presiding officer. The presiding officer serves in that capacity
at the will of the governor.
SECTION 3.05. Section 205.057, Occupations Code, is
amended to read as follows:
Sec. 205.057. TRAINING. (a) A [To be eligible to take
office as a member of the acupuncture board, a] person who is
appointed to and qualifies for office as a member of the acupuncture
board may not vote, deliberate, or be counted as a member in
attendance at a meeting of the acupuncture board until the person
completes [must complete at least one course of] a training program
that complies with this section.
(b) The training program must provide the person with
information [to the person] regarding:
(1) this chapter [and the acupuncture board];
(2) the programs operated by the acupuncture board;
(3) the role and functions of the acupuncture board;
(4) the rules of the acupuncture board[, with an
emphasis on the rules that relate to disciplinary and investigatory
authority];
(5) the current budget for the acupuncture board;
(6) the results of the most recent formal audit of the
acupuncture board;
(7) the requirements of laws relating to open
meetings, public information, administrative procedure, and
conflicts of interest [the:
[(A) open meetings law, Chapter 551, Government
Code;
[(B) open records law, Chapter 552, Government
Code; and
[(C) administrative procedure law, Chapter 2001,
Government Code]; and
(8) [the requirements of the conflict of interest laws
and other laws relating to public officials; and
[(9)] any applicable ethics policies adopted by the
acupuncture [medical] board or the Texas Ethics Commission.
(c) A person appointed to the acupuncture board is entitled
to reimbursement, as provided by the General Appropriations Act,
for the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after[, as provided by the General Appropriations Act and as if]
the person qualifies for office [were a member of the acupuncture
board].
SECTION 3.06. Section 205.101, Occupations Code, is amended
to read as follows:
Sec. 205.101. GENERAL POWERS AND DUTIES OF ACUPUNCTURE
BOARD. (a) Subject to the advice and approval of the medical
board, the acupuncture board shall:
(1) establish qualifications for an acupuncturist to
practice in this state;
(2) establish minimum education and training
requirements necessary for the acupuncture board to recommend that
the medical board issue a license to practice acupuncture;
(3) administer an examination that is validated by
independent testing professionals for a license to practice
acupuncture;
(4) develop requirements for licensure by endorsement
of other states;
(5) prescribe the application form for a license to
practice acupuncture;
(6) recommend rules to establish licensing and other
fees [make recommendations on applications for licenses to practice
acupuncture];
(7) establish the requirements for a tutorial program
for acupuncture students who have completed at least 48 semester
hours of college; and
(8) recommend additional rules as are necessary to
administer and enforce this chapter.
(b) The acupuncture board does not have independent
rulemaking authority. A rule adopted by the acupuncture board is
subject to medical board approval.
(c) The acupuncture board shall:
(1) review and approve or reject each application for
the issuance or renewal of a license;
(2) issue each license; and
(3) deny, suspend, or revoke a license or otherwise
discipline a license holder.
SECTION 3.07. Subchapter C, Chapter 205, Occupations Code,
is amended by adding Section 205.1041 to read as follows:
Sec. 205.1041. GUIDELINES FOR EARLY INVOLVEMENT IN
RULEMAKING PROCESS. (a) The acupuncture board shall develop
guidelines to establish procedures for receiving input during the
rulemaking process from individuals and groups that have an
interest in matters under the acupuncture board's jurisdiction.
The guidelines must provide an opportunity for those individuals
and groups to provide input before the acupuncture board submits
the rule to the medical board for approval.
(b) A rule adopted by the acupuncture board may not be
challenged on the grounds that the board did not comply with this
section. If the acupuncture board was unable to solicit a
significant amount of input from the public or affected persons
early in the rulemaking process, the board shall state in writing
the reasons why the board was unable to do so.
SECTION 3.08. Subchapter C, Chapter 205, Occupations Code,
is amended by adding Section 205.1045 to read as follows:
Sec. 205.1045. RULES ON CONSEQUENCES OF CRIMINAL
CONVICTION. The acupuncture board shall adopt rules and guidelines
as necessary to comply with Chapter 53, except to the extent the
requirements of this chapter are stricter than the requirements of
Chapter 53.
SECTION 3.09. Subchapter C, Chapter 205, Occupations Code,
is amended by adding Section 205.106 to read as follows:
Sec. 205.106. USE OF TECHNOLOGY. Subject to the advice and
approval of the medical board, the acupuncture board shall
implement a policy requiring the acupuncture board to use
appropriate technological solutions to improve the acupuncture
board's ability to perform its functions. The policy must ensure
that the public is able to interact with the acupuncture board on
the Internet.
SECTION 3.10. Subchapter C, Chapter 205, Occupations Code,
is amended by adding Section 205.107 to read as follows:
Sec. 205.107. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION POLICY. (a) Subject to the advice and approval
of the medical board, the acupuncture board shall develop and
implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of acupuncture board rules;
and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the acupuncture
board's jurisdiction.
(b) The acupuncture board procedures relating to
alternative dispute resolution must conform, to the extent
possible, to any model guidelines issued by the State Office of
Administrative Hearings for the use of alternative dispute
resolution by state agencies.
(c) The acupuncture board shall designate a trained person
to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the acupuncture board.
SECTION 3.11. Subchapter D, Chapter 205, Occupations Code,
is amended by adding Section 205.1521 to read as follows:
Sec. 205.1521. CONDUCT OF INVESTIGATION. The acupuncture
board shall complete a preliminary investigation of a complaint
received by the acupuncture board not later than the 30th day after
the date of receiving the complaint. The acupuncture board shall
first determine whether the acupuncturist constitutes a continuing
threat to the public welfare. On completion of the preliminary
investigation, the acupuncture board shall determine whether to
officially proceed on the complaint. If the acupuncture board
fails to complete the preliminary investigation in the time
required by this section, the acupuncture board's official
investigation of the complaint is considered to commence on that
date.
SECTION 3.12. Section 205.201, Occupations Code, is amended
to read as follows:
Sec. 205.201. LICENSE REQUIRED. Except as provided by
Section 205.303, a person may not practice acupuncture in this
state unless the person holds a license to practice acupuncture
issued by the acupuncture [medical] board under this chapter.
SECTION 3.13. Section 205.202, Occupations Code, is amended
to read as follows:
Sec. 205.202. ISSUANCE OF LICENSE. (a) The [After
consulting the] acupuncture board[, the medical board] shall issue
a license to practice acupuncture in this state to a person who
meets the requirements of this chapter and the rules adopted under
this chapter.
(b) The acupuncture board may delegate authority to medical
board employees to issue licenses under this chapter to applicants
who clearly meet all licensing requirements. If the medical board
employees determine that the applicant does not clearly meet all
licensing requirements, the application shall be returned to the
acupuncture board. A license issued under this subsection does not
require formal acupuncture board approval.
SECTION 3.14. Section 205.203, Occupations Code, is amended
by amending Subsections (a) and (c) and adding Subsections (c-1)
and (f) to read as follows:
(a) An applicant for a license to practice acupuncture must
pass an acupuncture examination and a jurisprudence examination
approved by the acupuncture board as provided by this section.
(c) The acupuncture examination shall be conducted on
practical and theoretical acupuncture and other subjects required
by the acupuncture board.
(c-1) The jurisprudence examination shall be conducted on
the licensing requirements and other laws, rules, or regulations
applicable to the professional practice of acupuncture in this
state.
(f) The acupuncture board shall adopt rules for the
jurisprudence examination under Subsection (c-1) regarding:
(1) the development of the examination;
(2) applicable fees;
(3) administration of the examination;
(4) reexamination procedures;
(5) grading procedures; and
(6) notice of results.
SECTION 3.15. Section 205.206, Occupations Code, is amended
by adding Subsections (c) and (d) to read as follows:
(c) In addition to the other requirements of this section,
an acupuncture school or degree program is subject to approval by
the Texas Higher Education Coordinating Board unless the school or
program qualifies for an exemption under Section 61.303, Education
Code.
(d) In reviewing an acupuncture school or degree program as
required by Subsection (c), the Texas Higher Education Coordinating
Board shall seek input from the acupuncture board regarding the
standards to be used for assessing whether a school or degree
program adequately prepares an individual for the practice of
acupuncture.
SECTION 3.16. Section 205.255, Occupations Code, is amended
by adding Subsections (a-1) and (c) to read as follows:
(a-1) The acupuncture board shall establish written
guidelines for granting continuing education credit that specify:
(1) procedural requirements;
(2) the qualifications needed to be considered a
preferred provider of continuing education; and
(3) course content requirements.
(c) After guidelines are established under Subsection
(a-1), the acupuncture board shall delegate to medical board
employees the authority to approve course applications for courses
that clearly meet the guidelines. Medical board employees shall
refer any courses that are not clearly within the guidelines to the
acupuncture board for review and approval.
SECTION 3.17. Subsections (b) and (c), Section 205.351,
Occupations Code, are amended to read as follows:
(b) If the acupuncture [medical] board proposes to suspend,
revoke, or refuse to renew a person's license, the person is
entitled to a hearing conducted by the State Office of
Administrative Hearings.
(c) A complaint, indictment, or conviction of a violation of
law is not necessary for an action under Subsection (a)(11). Proof
of the commission of the act while in the practice of acupuncture or
under the guise of the practice of acupuncture is sufficient for
action by the acupuncture [medical] board.
SECTION 3.18. Section 205.352, Occupations Code, is amended
to read as follows:
Sec. 205.352. DISCIPLINARY POWERS OF ACUPUNCTURE BOARD.
(a) On finding that grounds exist to deny a license or take
disciplinary action against a license holder, the acupuncture board
by order may:
(1) deny the person's application for a license,
license renewal, or certificate to practice acupuncture or revoke
the person's license or certificate to practice acupuncture;
(2) require the person to submit to the care,
counseling, or treatment of a health care practitioner designated
by the acupuncture board as a condition for the issuance,
continuance, or renewal of a license or certificate to practice
acupuncture;
(3) require the person to participate in a program of
education or counseling prescribed by the acupuncture board;
(4) suspend, limit, or restrict the person's license
or certificate to practice acupuncture, including limiting the
practice of the person to, or excluding from the practice, one or
more specified activities of acupuncture or stipulating periodic
review by the acupuncture board;
(5) require the person to practice under the direction
of an acupuncturist designated by the acupuncture board for a
specified period of time;
(6) assess an administrative penalty against the
person as provided by Subchapter J [Chapter 165];
(7) require the person to perform public service
considered appropriate by the acupuncture board; [or]
(8) stay enforcement of an order and place the person
on probation with the acupuncture board retaining the right to
vacate the probationary stay and enforce the original order for
noncompliance with the terms of probation or impose any other
remedial measure or sanction authorized by this section;
(9) require the person to continue or review
professional education until the person attains a degree of skill
satisfactory to the acupuncture board in those areas that are the
basis of the probation under Subdivision (8);
(10) require the person to report regularly to the
acupuncture board on matters that are the basis of the probation
under Subdivision (8); or
(11) administer a public reprimand.
(b) The acupuncture board may reinstate or reissue a license
or remove any disciplinary or corrective measure that the
acupuncture board has imposed under this section.
SECTION 3.19. Subchapter H, Chapter 205, Occupations Code,
is amended by adding Section 205.3522 to read as follows:
Sec. 205.3522. SURRENDER OF LICENSE. (a) The acupuncture
board may accept the voluntary surrender of a license.
(b) A surrendered license may not be returned to the license
holder unless the acupuncture board determines, under acupuncture
board rules, that the former holder of the license is competent to
resume practice.
(c) The acupuncture board shall recommend rules to the
medical board for determining the competency of a former license
holder to return to practice.
SECTION 3.20. Subchapter H, Chapter 205, Occupations Code,
is amended by adding Section 205.3523 to read as follows:
Sec. 205.3523. PHYSICAL OR MENTAL EXAMINATION. (a) The
acupuncture board shall adopt guidelines, in conjunction with
persons interested in or affected by this section, to enable the
board to evaluate circumstances in which an acupuncturist or
applicant may be required to submit to an examination for mental or
physical health conditions, alcohol and substance abuse, or
professional behavior problems.
(b) The acupuncture board shall refer an acupuncturist or
applicant with a physical or mental health condition to the most
appropriate medical specialist. The acupuncture board may not
require an acupuncturist or applicant to submit to an examination
by a physician having a specialty specified by the board unless
medically indicated. The acupuncture board may not require an
acupuncturist or applicant to submit to an examination to be
conducted an unreasonable distance from the person's home or place
of business unless the acupuncturist or applicant resides and works
in an area in which there are a limited number of physicians able to
perform an appropriate examination.
(c) The guidelines adopted under this section do not impair
or remove the acupuncture board's power to make an independent
licensing decision.
SECTION 3.21. Subchapter H, Chapter 205, Occupations Code,
is amended by adding Section 205.3541 to read as follows:
Sec. 205.3541. INFORMAL PROCEEDINGS. (a) The acupuncture
board by rule shall adopt procedures governing:
(1) informal disposition of a contested case under
Section 2001.056, Government Code; and
(2) informal proceedings held in compliance with
Section 2001.054, Government Code.
(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 acupuncture
board, unless good cause is shown by the acupuncture board for
scheduling the informal meeting after that date;
(2) the acupuncture 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) at least one of the acupuncture board members
participating in the informal meeting as a panelist be a member who
represents the public;
(5) the acupuncture board's legal counsel or a
representative of the attorney general be present to advise the
acupuncture board or the medical board's staff; and
(6) an employee of the medical board be at the meeting
to present to the acupuncture board's representative the facts the
medical board staff reasonably believes it could prove by competent
evidence or qualified witnesses at a hearing.
(c) An affected acupuncturist is entitled, orally or in
writing, to:
(1) reply to the staff's presentation; and
(2) present the facts the acupuncturist reasonably
believes the acupuncturist could prove by competent evidence or
qualified witnesses at a hearing.
(d) After ample time is given for the presentations, the
acupuncture board panel shall recommend that the investigation be
closed or shall attempt to mediate the disputed matters and make a
recommendation regarding the disposition of the case in the absence
of a hearing under applicable law concerning contested cases.
(e) If the license holder has previously been the subject of
disciplinary action by the acupuncture board, the acupuncture board
shall schedule the informal meeting as soon as practicable but not
later than the deadline prescribed by Subsection (b)(1).
SECTION 3.22. Subchapter H, Chapter 205, Occupations Code,
is amended by adding Section 205.3542 to read as follows:
Sec. 205.3542. ACUPUNCTURE BOARD REPRESENTATION IN
INFORMAL PROCEEDINGS. (a) In an informal proceeding under Section
205.3541, at least two panelists shall be appointed to determine
whether an informal disposition is appropriate.
(b) Notwithstanding Subsection (a) and Section
205.3541(b)(4), an informal proceeding may be conducted by one
panelist if the affected acupuncturist waives the requirement that
at least two panelists conduct the informal proceeding. If the
acupuncturist waives that requirement, the panelist may be any
member of the acupuncture board.
(c) The panel requirements described by Subsection (a)
apply to an informal proceeding conducted by the acupuncture board
under Section 205.3541, including a proceeding to:
(1) consider a disciplinary case to determine if a
violation has occurred; or
(2) request modification or termination of an order.
(d) The panel requirements described by Subsection (a) do
not apply to an informal proceeding conducted by the acupuncture
board under Section 205.3541 to show compliance with an order of the
acupuncture board.
SECTION 3.23. Subchapter H, Chapter 205, Occupations Code,
is amended by adding Section 205.3543 to read as follows:
Sec. 205.3543. ROLES AND RESPONSIBILITIES OF PARTICIPANTS
IN INFORMAL PROCEEDINGS. (a) An acupuncture board member that
serves as a panelist at an informal meeting under Section 205.3541
shall make recommendations for the disposition of a complaint or
allegation. The member may request the assistance of a medical
board employee at any time.
(b) Medical board employees shall present a summary of the
allegations against the affected acupuncturist and of the facts
pertaining to the allegation that the employees reasonably believe
may be proven by competent evidence at a formal hearing.
(c) An acupuncture board or medical board attorney shall act
as counsel to the panel and, notwithstanding Subsection (e), shall
be present during the informal meeting and the panel's
deliberations to advise the panel on legal issues that arise during
the proceeding. The attorney may ask questions of participants in
the informal meeting to clarify any statement made by the
participant. The attorney shall provide to the panel a historical
perspective on comparable cases that have appeared before the
acupuncture board or medical board, keep the proceedings focused on
the case being discussed, and ensure that the medical board's
employees and the affected acupuncturist have an opportunity to
present information related to the case. During the panel's
deliberation, the attorney may be present only to advise the panel
on legal issues and to provide information on comparable cases that
have appeared before the acupuncture board or medical board.
(d) The panel and medical board employees shall provide an
opportunity for the affected acupuncturist and the acupuncturist's
authorized representative to reply to the board employees'
presentation and to present oral and written statements and facts
that the acupuncturist and representative reasonably believe could
be proven by competent evidence at a formal hearing.
(e) An employee of the medical board who participated in the
presentation of the allegation or information gathered in the
investigation of the complaint, the affected acupuncturist, the
acupuncturist's authorized representative, the complainant, the
witnesses, and members of the public may not be present during the
deliberations of the panel. Only the members of the panel and the
attorney serving as counsel to the panel may be present during the
deliberations.
(f) The panel shall recommend the dismissal of the complaint
or allegations or, if the panel determines that the affected
acupuncturist has violated a statute or acupuncture board rule, the
panel may recommend board action and terms for an informal
settlement of the case.
(g) The panel's recommendations under Subsection (f) must
be made in a written order and presented to the affected
acupuncturist and the acupuncturist's authorized representative.
The acupuncturist may accept the proposed settlement within the
time established by the panel at the informal meeting. If the
acupuncturist rejects the proposed settlement or does not act
within the required time, the acupuncture board may proceed with
the filing of a formal complaint with the State Office of
Administrative Hearings.
SECTION 3.24. Subchapter H, Chapter 205, Occupations Code,
is amended by adding Section 205.3544 to read as follows:
Sec. 205.3544. LIMIT ON ACCESS TO INVESTIGATION FILES. The
acupuncture board shall prohibit or limit access to an
investigation file relating to a license holder in an informal
proceeding in the manner provided by Section 164.007(c).
SECTION 3.25. Section 205.356, Occupations Code, is amended
to read as follows:
Sec. 205.356. REHABILITATION ORDER. (a) The acupuncture
board, through an agreed order or after a contested proceeding, may
impose a nondisciplinary rehabilitation order on an applicant, as a
prerequisite for issuing a license, or on a license holder based on:
(1) the person's intemperate use of drugs or alcohol
directly resulting from habituation or addiction caused by medical
care or treatment provided by a physician;
(2) the person's intemperate use of drugs or alcohol
during the five years preceding the date of the report that could
adversely affect the person's ability to safely practice as an
acupuncturist, if the person:
(A) reported the use; [and]
(B) has not previously been the subject of a
substance abuse related order of the acupuncture board; and
(C) did not violate the standard of care as a
result of the impairment;
(3) a judgment by a court that the person is of unsound
mind; or
(4) the results of a mental or physical examination,
or an admission by the person, indicating that the person suffers
from a potentially dangerous limitation or an inability to practice
as an acupuncturist with reasonable skill and safety by reason of
illness or as a result of any physical or mental condition.
(b) The acupuncture board may not issue an order under this
section if, before the individual signs the proposed order, the
board receives a valid complaint with regard to the individual
based on the individual's intemperate use of drugs or alcohol in a
manner affecting the standard of care.
(c) The acupuncture board must determine whether an
individual has committed a standard of care violation described by
Subsection (a)(2) before imposing an order under this section.
(d) The acupuncture board may disclose a rehabilitation
order to a local or statewide private acupuncture association only
as provided by Section 205.3562.
SECTION 3.26. Subchapter H, Chapter 205, Occupations Code,
is amended by adding Sections 205.3561 and 205.3562 to read as
follows:
Sec. 205.3561. EXPERT IMMUNITY. An expert who assists the
acupuncture board is immune from suit and judgment and may not be
subjected to a suit for damages for any investigation, report,
recommendation, statement, evaluation, finding, or other action
taken without fraud or malice in the course of assisting the board
in a disciplinary proceeding. The attorney general shall represent
the expert in any suit resulting from a service provided by the
expert in good faith to the acupuncture board.
Sec. 205.3562. RESPONSIBILITIES OF PRIVATE ASSOCIATIONS.
(a) If a rehabilitation order imposed under Section 205.356
requires a license holder to participate in activities or programs
provided by a local or statewide private acupuncture association,
the acupuncture board shall inform the association of the license
holder's duties under the order. The information provided under
this section must include specific guidance to enable the
association to comply with any requirements necessary to assist in
the acupuncturist's rehabilitation.
(b) The acupuncture board may provide to the association any
information that the board determines to be necessary, including a
copy of the rehabilitation order. Any information received by the
association remains confidential, is not subject to discovery,
subpoena, or other means of legal compulsion, and may be disclosed
only to the acupuncture board.
SECTION 3.27. Subchapter H, Chapter 205, Occupations Code,
is amended by adding Section 205.360 to read as follows:
Sec. 205.360. DELEGATION OF CERTAIN COMPLAINT
DISPOSITIONS. (a) The acupuncture board may delegate to a
committee of medical board employees the authority to dismiss or
enter into an agreed settlement of a complaint that does not relate
directly to patient care or that involves only administrative
violations. The disposition determined by the committee must be
approved by the acupuncture board at a public meeting.
(b) A complaint delegated under this section shall be
referred for informal proceedings under Section 205.3541 if:
(1) the committee of employees determines that the
complaint should not be dismissed or settled;
(2) the committee is unable to reach an agreed
settlement; or
(3) the affected acupuncturist requests that the
complaint be referred for informal proceedings.
SECTION 3.28. Subchapter H, Chapter 205, Occupations Code,
is amended by adding Section 205.361 to read as follows:
Sec. 205.361. TEMPORARY SUSPENSION. (a) The presiding
officer of the acupuncture board, with that board's approval, shall
appoint a three-member disciplinary panel consisting of
acupuncture board members to determine whether a person's license
to practice as an acupuncturist should be temporarily suspended.
(b) If the disciplinary panel determines from the
information presented to the panel that a person licensed to
practice as an acupuncturist would, by the person's continuation in
practice, constitute a continuing threat to the public welfare, the
disciplinary panel shall temporarily suspend the license of that
person.
(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 acupuncture board is initiated simultaneously with the
temporary suspension; and
(2) a hearing is held under Chapter 2001, Government
Code, and this chapter as soon as possible.
(d) Notwithstanding Chapter 551, Government Code, the
disciplinary panel may hold a meeting by telephone conference call
if immediate action is required and convening of the panel at one
location is inconvenient for any member of the disciplinary panel.
SECTION 3.29. Subchapter H, Chapter 205, Occupations Code,
is amended by adding Section 205.362 to read as follows:
Sec. 205.362. CEASE AND DESIST ORDER. (a) If it appears to
the acupuncture board that a person who is not licensed under this
chapter is violating this chapter, a rule adopted under this
chapter, or another state statute or rule relating to the practice
of acupuncture, the board, after notice and opportunity for a
hearing, may issue a cease and desist order prohibiting the person
from engaging in the activity.
(b) A violation of an order under this section constitutes
grounds for imposing an administrative penalty under Section
205.352.
SECTION 3.30. Subchapter H, Chapter 205, Occupations Code,
is amended by adding Section 205.363 to read as follows:
Sec. 205.363. REFUND. (a) Subject to Subsection (b), the
acupuncture board may order a license holder to pay a refund to a
consumer as provided in an agreement resulting from an informal
settlement conference instead of or in addition to imposing an
administrative penalty under this subchapter.
(b) The amount of a refund ordered under Subsection (a) may
not exceed the amount the consumer paid to the license holder for a
service regulated by this chapter. The acupuncture board may not
require payment of other damages or estimate harm in a refund order.
SECTION 3.31. Subchapter H, Chapter 205, Occupations Code,
is amended by adding Section 205.364 to read as follows:
Sec. 205.364. MODIFICATION OF FINDINGS OR RULINGS BY
ADMINISTRATIVE LAW JUDGE. The acupuncture board may change a
finding of fact or conclusion of law or vacate or modify an order of
an administrative law judge only if the acupuncture board makes a
determination required by Section 2001.058(e), Government Code.
SECTION 3.32. Subsections (a) and (d), Section 205.402,
Occupations Code, are amended to read as follows:
(a) The acupuncture [medical] board, the attorney general,
or a district or county attorney may bring a civil action to compel
compliance with this chapter or to enforce a rule adopted under this
chapter.
(d) The attorney general, at the request of the acupuncture
[medical] board or on the attorney general's own initiative, may
bring a civil action to collect a civil penalty.
SECTION 3.33. The heading to Subchapter I, Chapter 205,
Occupations Code, is amended to read as follows:
SUBCHAPTER I. CRIMINAL PENALTIES AND OTHER ENFORCEMENT PROVISIONS
SECTION 3.34. Chapter 205, Occupations Code, is amended by
adding Subchapter J to read as follows:
SUBCHAPTER J. ADMINISTRATIVE PENALTIES
Sec. 205.451. IMPOSITION OF ADMINISTRATIVE PENALTY. The
acupuncture board by order may impose an administrative penalty
against a person licensed or regulated under this chapter who
violates this chapter or a rule or order adopted under this chapter.
Sec. 205.452. PROCEDURE. (a) The acupuncture board by
rule shall prescribe the procedure by which it may impose an
administrative penalty.
(b) A proceeding under this subchapter is subject to Chapter
2001, Government Code.
Sec. 205.453. AMOUNT OF PENALTY. (a) The amount of an
administrative penalty may not exceed $5,000 for each violation.
Each day a violation continues or occurs is a separate violation for
purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and
gravity of any prohibited act; and
(B) the hazard or potential hazard created to the
health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment
caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 205.454. NOTICE OF VIOLATION AND PENALTY. (a) If the
acupuncture board by order determines that a violation has occurred
and imposes an administrative penalty, the acupuncture board shall
notify the affected person of the board's order.
(b) The notice must include a statement of the right of the
person to judicial review of the order.
Sec. 205.455. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Not later than the 30th day after the date the acupuncture
board's order imposing the administrative penalty is final, the
person shall:
(1) pay the penalty;
(2) pay the penalty and file a petition for judicial
review contesting the occurrence of the violation, the amount of
the penalty, or both; or
(3) without paying the penalty, file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under
Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving to the court a supersedeas bond
approved by the court for the amount of the penalty and that is
effective until all judicial review of the acupuncture board's
order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court an affidavit of the
person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
presiding officer of the acupuncture board by certified mail.
(c) If the presiding officer of the acupuncture board
receives a copy of an affidavit under Subsection (b)(2), the
presiding officer may file with the court a contest to the affidavit
not later than the fifth day after the date the copy is received.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 205.456. COLLECTION OF PENALTY. If the person does not
pay the administrative penalty and the enforcement of the penalty
is not stayed, the presiding officer of the acupuncture board may
refer the matter to the attorney general for collection of the
penalty.
Sec. 205.457. DETERMINATION BY COURT. (a) If on appeal
the court sustains the determination that a violation occurred, the
court may uphold or reduce the amount of the administrative penalty
and order the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 205.458. REMITTANCE OF PENALTY AND INTEREST. (a) If
after judicial review the administrative penalty is reduced or not
imposed by the court, the court shall, after the judgment becomes
final:
(1) order that the appropriate amount, plus accrued
interest, be remitted to the person if the person paid the penalty;
or
(2) order the release of the bond in full if the
penalty is not imposed or order the release of the bond after the
person pays the penalty imposed if the person posted a supersedeas
bond.
(b) The interest paid under Subsection (a)(1) is the rate
charged on loans to depository institutions by the New York Federal
Reserve Bank. The interest is paid for the period beginning on the
date the penalty is paid and ending on the date the penalty is
remitted.
SECTION 3.35. Sections 205.002 and 205.353, Occupations
Code, are repealed.
SECTION 3.36. (a) Not later than January 1, 2006, the
Texas State Board of Acupuncture Examiners shall:
(1) adopt the policies required by Sections 205.106
and 205.107, Occupations Code, as added by this article; and
(2) adopt the rules required by Chapter 205,
Occupations Code, as amended by this article.
(b) Not later than March 1, 2006, the Texas State Board of
Acupuncture Examiners shall develop the jurisprudence examination
required by Section 205.203, Occupations Code, as amended by this
article.
(c) The requirement to pass a jurisprudence examination
under Section 205.203, Occupations Code, as amended by this
article, applies only to an individual who applies for a license as
an acupuncturist on or after September 1, 2006.
SECTION 3.37. (a) The changes in law made by Sections
205.053 and 205.057, Occupations Code, as amended by this article,
regarding the prohibitions on or qualifications of members of the
Texas State Board of Acupuncture Examiners do not affect the
entitlement of a member serving on the board immediately before
September 1, 2005, to continue to serve and function as a member of
the board for the remainder of the member's term. The changes in
law made by those sections apply only to a member appointed on or
after September 1, 2005.
(b) The changes in law made by this article related to the
filing, investigation, or resolution of a complaint under Chapter
205, Occupations Code, as amended by this article, apply only to a
complaint filed with the Texas State Board of Acupuncture Examiners
on or after the effective date of this Act. A complaint filed
before the effective date of this Act is governed by the law as it
existed immediately before that date, and the former law is
continued in effect for that purpose.
(c) The changes in law made by this article governing the
authority of the Texas State Board of Acupuncture Examiners to
issue, renew, or revoke a license under Chapter 205, Occupations
Code, apply only to an application for a license filed with the
Texas State Board of Acupuncture Examiners under Chapter 205,
Occupations Code, as amended by this article, on or after the
effective date of this Act. A license application filed before the
effective date of this Act is governed by the law in effect at the
time the application was filed, and the former law is continued in
effect for that purpose.
(d) The change in law made by this article with respect to
conduct that is grounds for imposition of a disciplinary sanction,
including a refund, temporary license suspension, or cease and
desist order, applies only to conduct that occurs on or after the
effective date of this Act. Conduct that occurs before the
effective date of this Act is governed by the law in effect on the
date the conduct occurred, and the former law is continued in effect
for that purpose.
ARTICLE 4. REGULATION OF SURGICAL ASSISTANTS
SECTION 4.01. Subdivision (5), Section 206.001,
Occupations Code, is amended to read as follows:
(5) "Medical board" means the Texas [State Board of]
Medical Board [Examiners].
SECTION 4.02. Subchapter D, Chapter 206, Occupations Code,
is amended by adding Section 206.1575 to read as follows:
Sec. 206.1575. CONDUCT OF INVESTIGATION. The medical board
shall complete a preliminary investigation of a complaint not later
than the 30th day after the date of receiving the complaint. The
medical board shall first determine whether the surgical assistant
constitutes a continuing threat to the public welfare. On
completion of the preliminary investigation, the medical board
shall determine whether to officially proceed on the complaint. If
the medical board fails to complete the preliminary investigation
in the time required by this section, the medical board's official
investigation is considered to commence on that date.
SECTION 4.03. Section 206.209, Occupations Code, is amended
to read as follows:
Sec. 206.209. ISSUANCE AND RENEWAL OF LICENSE. (a) The
medical board shall issue a surgical assistant license in this
state to a person who meets the requirements of this chapter and the
rules adopted under this chapter.
(b) The medical board may delegate authority to board
employees to issue licenses under this chapter to applicants who
clearly meet all licensing requirements. If the medical board
employees determine that the applicant does not clearly meet all
licensing requirements, the application shall be returned to the
medical board. A license issued under this subsection does not
require formal medical board approval.
SECTION 4.04. Section 206.305, Occupations Code, is amended
to read as follows:
Sec. 206.305. REHABILITATION ORDER. (a) The medical
board, through an agreed order or after a contested case
proceeding, may impose a rehabilitation order on an applicant, as a
prerequisite for issuing a license, or on a license holder based on:
(1) the person's intemperate use of drugs or alcohol
directly resulting from habituation or addiction caused by medical
care or treatment provided by a physician;
(2) the person's intemperate use of drugs or alcohol
during the five years preceding the date of the report that could
adversely affect the person's ability to safely practice as a
surgical assistant, if the person:
(A) reported the use; [and]
(B) has not previously been the subject of a
substance abuse related order of the medical board; and
(C) has not committed a violation of the standard
of care as a result of the intemperate use of drugs or alcohol;
(3) a judgment by a court that the person is of unsound
mind; or
(4) the results of a mental or physical examination,
or an admission by the person, indicating that the person suffers
from a potentially dangerous limitation or an inability to practice
as a surgical assistant with reasonable skill and safety because of
illness or any other physical or mental condition.
(b) The medical board may not issue an order under this
section if, before the individual signs the proposed order, the
board receives a valid complaint with regard to the individual
based on the individual's intemperate use of drugs or alcohol in a
manner affecting the standard of care.
(c) The medical board must determine whether an individual
has committed a standard of care violation described by Subsection
(a)(2) before imposing an order under this section.
(d) The medical board may disclose a rehabilitation order to
a local or statewide private medical or surgical assistant
association only as provided by Section 206.3075.
SECTION 4.05. Subchapter G, Chapter 206, Occupations Code,
is amended by adding Section 206.3075 to read as follows:
Sec. 206.3075. RESPONSIBILITIES OF PRIVATE ASSOCIATIONS.
(a) If a rehabilitation order imposed under Section 206.305
requires a license holder to participate in activities or programs
provided by a local or statewide private medical or surgical
assistant association, the medical board shall inform the
association of the license holder's duties under the order. The
information provided under this section must include specific
guidance to enable the association to comply with any requirements
necessary to assist in the surgical assistant's rehabilitation.
(b) The medical board may provide to the association any
information that the board determines to be necessary, including a
copy of the rehabilitation order. Any information received by the
association remains confidential, is not subject to discovery,
subpoena, or other means of legal compulsion, and may be disclosed
only to the medical board.
SECTION 4.06. Subchapter G, Chapter 206, Occupations Code,
is amended by adding Sections 206.313, 206.314, and 206.315 to read
as follows:
Sec. 206.313. INFORMAL PROCEEDINGS. (a) The medical board
by rule shall adopt procedures under this chapter governing:
(1) informal disposition of a contested case under
Section 2001.056, Government Code; and
(2) informal proceedings held in compliance with
Section 2001.054, Government Code.
(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 medical board's official investigation of
the complaint is commenced, unless good cause is shown by the board
for scheduling the informal meeting after that date;
(2) the medical 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) at least one of the medical board members or
district review committee members participating in the informal
meeting as a panelist be a member who represents the public;
(5) the medical board's legal counsel or a
representative of the attorney general be present to advise the
medical board or the board's staff; and
(6) a member of the medical board's staff be at the
meeting to present to the panel the facts the staff reasonably
believes it could prove by competent evidence or qualified
witnesses at a hearing.
(c) An affected surgical assistant is entitled, orally or in
writing, to:
(1) reply to the staff's presentation; and
(2) present the facts the surgical assistant
reasonably believes the surgical assistant could prove by competent
evidence or qualified witnesses at a hearing.
(d) After ample time is given for the presentations, the
medical board panel shall recommend that the investigation be
closed or shall attempt to mediate the disputed matters and make a
recommendation regarding the disposition of the case in the absence
of a hearing under applicable law concerning contested cases.
(e) If the license holder has previously been the subject of
disciplinary action by the medical board, the board shall schedule
the informal meeting as soon as practicable but not later than the
deadline prescribed by Subsection (b)(1).
Sec. 206.314. ROLES AND RESPONSIBILITIES OF PARTICIPANTS IN
INFORMAL PROCEEDINGS. (a) A medical board or district review
committee member that serves as a panelist at an informal meeting
under Section 206.313 shall make recommendations for the
disposition of a complaint or allegation. The member may request
the assistance of a medical board employee at any time.
(b) Medical board employees shall present a summary of the
allegations against the affected surgical assistant and of the
facts pertaining to the allegation that the employees reasonably
believe may be proven by competent evidence at a formal hearing.
(c) A medical board attorney shall act as counsel to the
panel and, notwithstanding Subsection (e), shall be present during
the informal meeting and the panel's deliberations to advise the
panel on legal issues that arise during the proceeding. The
attorney may ask questions of participants in the informal meeting
to clarify any statement made by the participant. The attorney
shall provide to the panel a historical perspective on comparable
cases that have appeared before the medical board, keep the
proceedings focused on the case being discussed, and ensure that
the medical board's employees and the affected surgical assistant
have an opportunity to present information related to the case.
During the panel's deliberations, the attorney may be present only
to advise the panel on legal issues and to provide information on
comparable cases that have appeared before the medical board.
(d) The panel and medical board employees shall provide an
opportunity for the affected surgical assistant and the surgical
assistant's authorized representative to reply to the board
employees' presentation and to present oral and written statements
and facts that the surgical assistant and representative reasonably
believe could be proven by competent evidence at a formal hearing.
(e) An employee of the medical board who participated in the
presentation of the allegation or information gathered in the
investigation of the complaint, the affected surgical assistant,
the surgical assistant's authorized representative, the
complainant, the witnesses, and members of the public may not be
present during the deliberations of the panel. Only the members of
the panel and the medical board attorney serving as counsel to the
panel may be present during the deliberations.
(f) The panel shall recommend the dismissal of the complaint
or allegations or, if the panel determines that the affected
surgical assistant has violated a statute or medical board rule,
the panel may recommend board action and terms for an informal
settlement of the case.
(g) The panel's recommendations under Subsection (f) must
be made in a written order and presented to the affected surgical
assistant and the surgical assistant's authorized representative.
The surgical assistant may accept the proposed settlement within
the time established by the panel at the informal meeting. If the
surgical assistant rejects the proposed settlement or does not act
within the required time, the medical board may proceed with the
filing of a formal complaint with the State Office of
Administrative Hearings.
Sec. 206.315. MEDICAL BOARD REPRESENTATION IN INFORMAL
PROCEEDINGS. (a) In an informal proceeding under Section 206.313,
at least two panelists shall be appointed to determine whether an
informal disposition is appropriate.
(b) The medical board may request members of a committee
under Chapter 163 to participate in an informal meeting under
Section 206.313.
(c) Notwithstanding Subsection (a) and Section
206.313(b)(4), an informal proceeding may be conducted by one
panelist if the affected surgical assistant waives the requirement
that at least two panelists conduct the informal proceeding. If the
surgical assistant waives that requirement, the panelist may be
either a physician or a member who represents the public.
(d) The panel requirements described by Subsection (a) do
not apply to an informal proceeding conducted by the medical board
under Section 206.313 to show compliance with an order of the board.
SECTION 4.07. The changes in law made by this article
related to the filing, investigation, or disposition of a complaint
under Chapter 206, Occupations Code, as amended by this article,
apply only to a complaint filed with the Texas Medical Board on or
after the effective date of this Act. A complaint filed before the
effective date of this Act is governed by the law as it existed
immediately before that date, and the former law is continued in
effect for that purpose.
ARTICLE 5. EFFECTIVE DATE
SECTION 5.01. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 419 passed the Senate on
April 26, 2005, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendments on May 26, 2005, by the
following vote: Yeas 23, Nays 7, one present not voting.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 419 passed the House, with
amendments, on May 17, 2005, by the following vote: Yeas 121,
Nays 12, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor