81R29491 NC-F

By: Brown of Brazos, Fletcher, Callegari, H.B. No. 3816

Howard of Fort Bend, Elkins, et al.

Substitute the following for H.B. No. 3816:

By: Davis of Harris C.S.H.B. No. 3816

A BILL TO BE ENTITLED

AN ACT

relating to the powers and duties of the Texas Medical Board.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 152.002(a), Occupations Code, is amended to read as follows:

(a) The board consists of 19 members appointed by the governor with the advice and consent of the senate as follows:

(1) twelve members who are learned and eminent physicians licensed in this state for at least five [three] years before the appointment, nine of whom must be graduates of a reputable medical school or college with a degree of doctor of medicine (M.D.) and three of whom must be graduates of a reputable medical school or college with a degree of doctor of osteopathic medicine (D.O.); and

(2) seven members who represent the public.

SECTION 2. Section 152.003, Occupations Code, is amended by adding Subsections (e) and (f) to read as follows:

(e) A person may not be a member of the board if the member is not in full compliance with Section 572.051, Government Code. A person is not in full compliance with that section if the person's spouse or anyone related to the person within the second degree by consanguinity engages in conduct described by Section 572.051(a), Government Code, that would affect or influence the person's official conduct, position, powers, or duties as a member of the board in a manner prohibited by that section.

(f) A member of the board may not participate in any matter regarding a license holder if the person or anyone related to the person within the second degree by consanguinity receives compensation from an entity, other than a medical practice, that has a financial interest in common with or adverse to the license holder, including an insurance company, health care regulatory agency, pharmaceutical company, or medical malpractice attorney.

SECTION 3. Section 154.002(a), Occupations Code, is amended to read as follows:

(a) The board shall prepare:

(1) an alphabetical list of the names of the license holders;

(2) an alphabetical list of the names of the license holders by the county in which the license holder's principal place of practice is located;

(3) a summary of the board's functions;

(4) a copy of this subtitle and a list of other laws relating to the practice of medicine;

(5) a copy of the board's rules;

(6) a statistical report each fiscal year to the legislature and the public that provides aggregate information about all complaints received by the board categorized by type of complaint, including administrative, quality of care, medical error, substance abuse, other criminal behavior, and the disposition of those complaints by category; [and]

(7) a list of the names of all persons who served on an informal settlement conference panel during the preceding year and the number of informal settlement conference panels on which each person served; and

(8) other information considered appropriate by the board.

SECTION 4. Section 154.051, Occupations Code, is amended by adding Subsection (e) to read as follows:

(e) The board may not consider or act on a complaint involving care provided more than seven years before the date the complaint is filed, unless the care was provided to a minor. If the care was provided to a minor, the board may not consider or act on a complaint involving the care after the later of:

(1) the date the minor is 21 years of age; or

(2) the seventh anniversary of the date of care.

SECTION 5. Section 154.053, Occupations Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) The board shall notify by personal delivery or certified mail a physician who is the subject of a complaint filed with the board that a complaint has been filed and shall provide [notify] the physician with a copy of the [nature of the] complaint without redaction unless there is a risk of harm to the public or the notice would jeopardize an investigation. The complaint must include a statement of the alleged violation in plain language.

(a-1) If a physician rejects a notice by personal delivery or certified mail under Subsection (a), the board may send to the physician an additional notice of the complaint by first class mail that includes notice of the attempted delivery by personal delivery or certified mail.

SECTION 6. Subchapter B, Chapter 154, Occupations Code, is amended by adding Section 154.0535 to read as follows:

Sec. 154.0535. REQUIREMENTS FOR CERTAIN COMPLAINTS. (a) In this section:

(1) "Anonymous complaint" means a complaint that lacks sufficient information to identify the source or the name of the person who filed the complaint.

(2) "Insurance agent" means a person licensed under Chapter 4054, Insurance Code.

(3) "Insurer" means an insurance company or other entity authorized to engage in the business of insurance under Subtitle C, Title 6, Insurance Code.

(b) Notwithstanding any confidentiality requirements under Chapter 552, Government Code, this subtitle, or rules adopted under this subtitle, a complaint filed with the board by an insurance agent or insurer against a physician must include the name and address of the insurance agent or insurer filing the complaint. Not later than the 15th day after the date the complaint is filed with the board, the board shall notify the physician who is the subject of the complaint of the name and address of the insurance agent or insurer who filed the complaint, unless the notice would jeopardize an investigation.

(c) The board may not accept anonymous complaints.

(d) The board shall adopt rules as necessary to implement this section.

(e) Failure by an insurance agent or insurer to comply with the requirements of Subsection (b) or rules adopted by the board under this section constitutes grounds for the imposition of sanctions by the commissioner of the Texas Department of Insurance under Chapter 82, Insurance Code. The commissioner of insurance may adopt rules to implement this subsection.

SECTION 7. Sections 154.056(a), (b), and (e), Occupations Code, are amended to read as follows:

(a) The board shall adopt rules concerning the investigation and review of a complaint filed with the board. The rules adopted under this section must:

(1) distinguish among categories of complaints and give priority to complaints that involve sexual misconduct, quality of care, and impaired physician issues;

(2) ensure that a complaint is not dismissed without appropriate consideration;

(3) require that the board be advised of the dismissal of a complaint and that a letter be sent to the person who filed the complaint and to the physician who was the subject of the complaint explaining the action taken on the complaint;

(4) ensure that a person who files a complaint has an opportunity to explain the allegations made in the complaint;

(5) ensure that a physician who is the subject of a complaint has at least 45 days after receiving a copy of the complaint as provided by Section 154.053(a) to prepare and submit a response;

(6) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator;

(7) [(6)] provide for an expert physician panel authorized under Subsection (e) to assist with complaints and investigations relating to medical competency; and

(8) [(7)] require the review of reports filed with the National Practitioner Data Bank for any report of the termination, limitation, suspension, limitation in scope of practice, or probation of clinical or hospital staff privileges of a physician by:

(A) a hospital;

(B) a health maintenance organization;

(C) an independent practice association;

(D) an approved nonprofit health corporation certified under Section 162.001; or

(E) a physician network.

(b) The board shall:

(1) dispose of each complaint in a timely manner; and

(2) establish a schedule for conducting each phase of a complaint that is under the control of the board not later than the 30th day after the date the physician's time for preparing and submitting a response expires [board receives the complaint].

(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 expert physician panel must be actively practicing [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 8. Section 154.0561, Occupations Code, is amended by adding Subsections (a-1) and (e) to read as follows:

(a-1) Before the complaint is reviewed, the board must redact all information that identifies the physician who is the subject of the complaint, the patient, and the person filing the complaint.

(e) The board shall deliver a copy of the preliminary and final reports to the physician who is the subject of the review. Before delivering the reports to the physician, the board shall redact information identifying the expert physicians from the reports.

SECTION 9. Section 154.058(b), Occupations Code, is amended to read as follows:

(b) If the initial review under Subsection (a) indicates that an act by a physician falls below an acceptable standard of care, the complaint shall be reviewed by an expert physician panel authorized under Section 154.056(e) consisting of physicians who have an active practice in the same specialty as the physician who is the subject of the complaint or in another specialty that is similar to the physician's specialty.

SECTION 10. Section 164.001, Occupations Code, is amended by adding Subsections (k) and (l) to read as follows:

(k) A license holder may practice medicine in a manner taught in a course currently accredited by the Accreditation Council for Continuing Medical Education, the American Medical Association, or the American Osteopathic Association.

(l) The board may not direct a physician in the practice of medicine, except by ordering that a physician not engage in a practice that causes actual harm or an imminent risk of harm to a patient.

SECTION 11. Section 164.003, Occupations Code, is amended by adding Subsection (i) to read as follows:

(i) On request by a physician under review, the board shall make a recording of the informal settlement conference proceeding. The recording is a part of the investigative file and may not be released to a third party unless authorized under this subtitle.

SECTION 12. Section 164.0031(a), Occupations Code, is amended to read as follows:

(a) In an informal meeting under Section 164.003 or an informal hearing under Section 164.103, at least two panelists shall be randomly appointed to determine whether an informal disposition is appropriate. At least one of the panelists must be a physician.

SECTION 13. Sections 164.007(a) and (a-1), Occupations Code, are amended to read as follows:

(a) The board by rule shall adopt procedures governing formal disposition of a contested case under Chapter 2001, Government Code. A formal hearing shall be conducted by an administrative law judge employed by the State Office of Administrative Hearings. After receiving the administrative law judge's findings of fact and conclusions of law, the board shall dispose of the contested case by issuing a final order based on the administrative law judge's findings of fact and conclusions of law [determine the charges on the merits].

(a-1) Notwithstanding Section 2001.058(e), Government Code, the [The] board may not change a finding of fact or conclusion of law or vacate or modify an order of the administrative law judge. The board may obtain judicial review of any finding of fact or conclusion of law issued by the administrative law judge as provided by Section 2001.058(f)(5), Government Code. For each case, the board has the sole authority and discretion to determine the appropriate action or sanction, and the administrative law judge may not make any recommendation regarding the appropriate action or sanction [only if the board makes a determination required by Section 2001.058(e), Government Code].

SECTION 14. Section 164.009, Occupations Code, is amended to read as follows:

Sec. 164.009. JUDICIAL REVIEW. (a) A person whose license to practice medicine has been revoked or who is subject to other disciplinary action by the board may appeal to a Travis County district court not later than the 30th day after the date the board decision is final.

(b) A person whose license to practice medicine has been revoked is entitled to a jury trial in a district court in Travis County.

SECTION 15. Section 164.053(a), Occupations Code, is amended to read as follows:

(a) For purposes of Section 164.052(a)(5), unprofessional or dishonorable conduct likely to deceive or defraud the public includes conduct in which a physician:

(1) commits an act that violates any state or federal law if the act is connected with the physician's practice of medicine;

(2) fails to keep complete and accurate records of purchases and disposals of:

(A) drugs listed in Chapter 481, Health and Safety Code; or

(B) controlled substances scheduled in the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);

(3) writes prescriptions for or dispenses to a person who:

(A) is known to be an abuser of narcotic drugs, controlled substances, or dangerous drugs; or

(B) the physician should have known was an abuser of narcotic drugs, controlled substances, or dangerous drugs;

(4) writes false or fictitious prescriptions for:

(A) dangerous drugs as defined by Chapter 483, Health and Safety Code; or

(B) controlled substances scheduled in Chapter 481, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);

(5) prescribes or administers a drug or treatment that is nontherapeutic in nature or nontherapeutic in the manner the drug or treatment is administered or prescribed and has the likelihood of harm to a patient;

(6) prescribes, administers, or dispenses in a manner inconsistent with public health and welfare:

(A) dangerous drugs as defined by Chapter 483, Health and Safety Code; or

(B) controlled substances scheduled in Chapter 481, Health and Safety Code, or the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);

(7) violates Section 311.0025, Health and Safety Code;

(8) fails to supervise adequately the activities of those acting under the supervision of the physician; or

(9) delegates professional medical responsibility or acts to a person if the delegating physician knows or has reason to know that the person is not qualified by training, experience, or licensure to perform the responsibility or acts.

SECTION 16. The changes in law made by this Act by the amendment of Sections 152.002(a) and 152.003, Occupations Code, apply only to a person appointed to the Texas Medical Board on or after the effective date of this Act. A person appointed before the effective date of this Act is governed by the law in effect on the date the appointment is made, and the former law is continued in effect for that purpose.

SECTION 17. The changes in law made by this Act relating to the Texas Medical Board's complaint procedures apply only to a complaint filed on or after the effective date of this Act. A complaint filed before the effective date of this Act is governed by the law in effect on the date the complaint is filed, and the former law is continued in effect for that purpose.

SECTION 18. The changes in law made by this Act relating to the Texas Medical Board's disciplinary authority apply 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 occurs, and the former law is continued in effect for that purpose.

SECTION 19. Sections 164.007(a) and (a-1), Occupations Code, as amended by this Act, apply only to a contested case for which an administrative law judge employed by the State Office of Administrative Hearings issues written findings of fact and conclusions of law on or after the effective date of this Act. A contested case for which an administrative law judge employed by the State Office of Administrative Hearings issues written findings of fact and conclusions of law before the effective date of this Act is governed by the law in effect on the date the findings of fact and conclusions of law were issued, and the former law is continued in effect for that purpose.

SECTION 20. This Act takes effect September 1, 2009.