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A BILL TO BE ENTITLED
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AN ACT
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relating to the powers and duties of the Texas Medical Board. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 152.002(a), Occupations Code, is amended |
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to read as follows: |
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(a) The board consists of 19 members appointed by the |
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governor with the advice and consent of the senate as follows: |
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(1) twelve members who are learned and eminent |
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physicians licensed in this state for at least five [three] years |
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before the appointment, nine of whom must be graduates of a |
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reputable medical school or college with a degree of doctor of |
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medicine (M.D.) and three of whom must be graduates of a reputable |
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medical school or college with a degree of doctor of osteopathic |
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medicine (D.O.); and |
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(2) seven members who represent the public. |
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SECTION 2. Section 152.003, Occupations Code, is amended by |
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amending Subsection (b) and adding Subsection (e) to read as |
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follows: |
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(b) A person may not be a public member of the board if he or |
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anyone within the second degree by consanguinity: |
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(1) is registered, certified, or licensed by a |
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regulatory agency in the field of health care; |
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(2) is employed by or participates in the management |
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of a business entity or other organization regulated by or |
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receiving money from the board; |
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(3) owns or controls, directly or indirectly, more |
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than a 10 percent interest in a business entity or other |
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organization regulated by or receiving money from the board; |
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(4) uses or receives a substantial amount of tangible |
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goods, services, or money from the board other than compensation or |
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reimbursement authorized by law for board membership, attendance, |
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or expenses; [or] |
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(5) is a provider of health care; or |
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(6) is not in full compliance with Subchapter 572.051, |
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Government Code, Texas Ethics Commission ("Conflict of Interest"), |
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as though the person were an employee of the state. |
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(e) A person may not be a member of the board if he or anyone |
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within the second degree by consanguinity is not in full compliance |
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with Subchapter 572.051, Government Code, Texas Ethics Commission |
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("Conflict of Interest"), as though the person were an employee of |
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the state. |
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(f) A person may not be a member of the board participating |
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in decision-making about a license holder if the person or anyone |
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within the second degree by consanguinity receives compensation in |
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excess of 1% of his overall income from an entity, other than a |
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medical practice, which has a financial interest in common with or |
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adverse to the license holder under review by the board, including |
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compensation by an insurance company, health care regulatory |
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agency, pharmaceutical company, or medical malpractice attorney. |
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SECTION 3. Subchapter A, Chapter 152, Occupations Code, is |
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amended by adding Section 152.011 to read as follows: |
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Sec. 152.011. PUBLIC TESTIMONY. (a) The board shall |
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convene at least twice a year, on days other than its regularly |
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scheduled board meetings, in order to receive public testimony |
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about board conduct. |
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SECTION 4. Section 152.051(a), Occupations Code, is amended |
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to read as follows: |
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(a) The board shall appoint an executive director, who may |
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serve only when he is a physician licensed in good standing in this |
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state. The executive director serves as the chief executive and |
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administrative officer of the board. |
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SECTION 5. Section 154.002(a), Occupations Code, is amended |
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to read as follows: |
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(a) The board shall prepare: |
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(1) an alphabetical list of the names of the license |
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holders; |
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(2) an alphabetical list of the names of the license |
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holders by the county in which the license holder's principal place |
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of practice is located; |
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(3) a summary of the board's functions; |
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(4) a copy of this subtitle and a list of other laws |
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relating to the practice of medicine; |
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(5) a copy of the board's rules; |
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(6) a statistical report each fiscal year to the |
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legislature and the public that provides aggregate information |
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about all complaints received by the board categorized by type of |
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complaint, including administrative, quality of care, medical |
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error, substance abuse, other criminal behavior, and the |
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disposition of those complaints by category; [and] |
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(7) a list of the names of all persons who served on an |
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informal settlement conference panel during the preceding year and |
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the number of informal settlement conference panels on which each |
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person served; and |
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(8) other information considered appropriate by the |
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board. |
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SECTION 6. Section 154.051, Occupations Code, is amended by |
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amending Subsection (c) and adding Subsections (e), (f), and (g) to |
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read as follows: |
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(c) A person, including a person acting on behalf of a |
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partnership, association, corporation, or other entity, [A person,
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including a partnership, association, corporation, or other
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entity,] may file a complaint against a license holder with the |
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board by swearing under oath to the truth of the statements in the |
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complaint. If the person filing the complaint is other than a |
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patient, then that person must report his employment status and the |
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business for whom he works. The board may file a complaint on its |
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own initiative based only on good cause. |
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(d) The board may not consider or act on a complaint |
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involving care provided more than four (4) years before the date the |
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complaint is filed. |
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(e) Notwithstanding any other law, a person may not receive |
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civil, criminal, or regulatory immunity as a result of filing a |
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complaint if the complaint is filed with malice or with an |
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anticompetitive purpose. |
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SECTION 7. Section 154.053(a), Occupations Code, is amended |
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to read as follows: |
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(a) The board shall notify by personal delivery or certified |
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mail a physician who is the subject of a complaint filed with the |
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board that a complaint has been filed and shall provide [notify] the |
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physician notice of the complaint in plain language with sufficient |
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detail to formulate a response to the allegations made in the |
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complaint. If the doctor does not think he had been given |
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sufficient information then he may request that the board make a |
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good faith effort to provide additional information or shall |
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respond in writing why the board will not provide additional |
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information. |
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SECTION 8. Section 154.056, Occupations Code, is amended by |
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amending Subsections (a), (b), and (e) and adding Subsection (e-1) |
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to read as follows: |
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(a) The board shall adopt rules concerning the |
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investigation and review of a complaint filed with the board. The |
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rules adopted under this section must: |
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(1) distinguish among categories of complaints and |
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give priority to complaints that involve sexual misconduct, quality |
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of care, and impaired physician issues; |
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(2) ensure that a complaint is not dismissed without |
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appropriate consideration; |
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(3) require that the board be advised of the dismissal |
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of a complaint and that a letter be sent to the person who filed the |
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complaint and to the physician who was the subject of the complaint |
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explaining the action taken on the complaint; |
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(4) ensure that a person who files a complaint has an |
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opportunity to explain the allegations made in the complaint; |
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(5) ensure that a physician who is the subject of a |
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complaint has at least 30 days after receiving a copy of the |
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complaint as provided by Section 154.053(a) to prepare and submit a |
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response; |
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(6) prescribe guidelines concerning the categories of |
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complaints that require the use of a private investigator and the |
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procedures for the board to obtain the services of a private |
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investigator; |
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(7) [(6)] provide for an expert physician panel |
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authorized under Subsection (e) to assist with complaints and |
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investigations relating to medical competency; and |
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(8) [(7)] require the review of reports filed with the |
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National Practitioner Data Bank for any report of the termination, |
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limitation, suspension, limitation in scope of practice, or |
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probation of clinical or hospital staff privileges of a physician |
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by: |
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(A) a hospital; |
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(B) a health maintenance organization; |
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(C) an independent practice association; |
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(D) an approved nonprofit health corporation |
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certified under Section 162.001; or |
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(E) a physician network. |
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(b) The board shall: |
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(1) dispose of each complaint in a timely manner; and |
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(2) establish a schedule for conducting each phase of a complaint |
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that is under the control of the board not later than the 30th day |
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after the date the physician's time for preparing and submitting a |
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response expires.. |
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(e) The board by rule shall provide for an expert physician |
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panel appointed by the board to assist with complaints and |
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investigations relating to medical competency by acting as expert |
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physician reviewers. Each member of the expert physician panel |
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must be actively practicing medicine in this state. The rules |
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adopted under this subsection must include provisions governing the |
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composition of the panel, qualifications for membership on the |
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panel, length of time a member may serve on the panel, grounds for |
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removal from the panel, the avoidance of conflicts of interest, |
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including situations in which the affected physician and the panel |
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member live or work in the same geographical area or are |
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competitors, and the duties to be performed by the panel. The |
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board's rules governing grounds for removal from the panel must |
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include providing for the removal of a panel member who is |
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repeatedly delinquent in reviewing complaints and in submitting |
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reports to the board. The board's rules governing appointment of |
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expert physician panel members to act as expert physician reviewers |
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must include a requirement that the board randomly select, to the |
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extent permitted by Section 154.058(b) and the conflict of interest |
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provisions adopted under this subsection, panel members to review a |
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complaint. |
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(e-1) The board shall review a report concerning a |
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physician's medical competency prepared by an expert at the request |
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of the physician who is the subject of the complaint. |
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SECTION 9. Section 154.0561, Occupations Code, is amended |
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by amending Subsections (b) and (c) and adding Subsection (e) to |
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read as follows: |
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(b) A second expert physician reviewer shall independently |
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review information associated with the complaint. The review by |
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the second expert shall be independent of the first review, without |
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knowledge by the second reviewer of the identity of the first |
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reviewer, and without any communication between the two reviewers. |
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If the second expert physician agrees with the first expert |
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physician, the first physician shall issue a final written report |
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on the matter. |
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(c) If the second expert physician does not agree with the |
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conclusions of the first expert physician, then the physician who |
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is the subject of the complaint shall be notified of the conflict |
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and provided with copies of the conflicting reports. A [a] third |
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expert physician reviewer shall review the reports of both expert |
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witnesses and all information related to the complaint, and decide |
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between the conclusions reached by the first two expert physicians. |
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The final written report shall be issued by the third physician or |
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the physician with whom the third physician concurs and must |
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include a copy of the dissenting report. |
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(e) Before using a report under this section, the board |
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shall provide to the physician who is the subject of the complaint |
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the identity and qualifications of each expert physician who |
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reviewed the complaint. |
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SECTION 10. Section 154.058, Occupations Code, is amended |
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to read as follows: |
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Sec. 154.058. DETERMINATION OF MEDICAL COMPETENCY. (a) |
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Each complaint against a physician that requires a determination of |
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medical competency shall be reviewed initially by a board member, |
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consultant, or employee with a medical background and is engaged in |
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an active medical practice in the same or similar specialty as the |
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physician in the year preceding the review [considered sufficient
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by the board]. |
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(b) If the initial review under Subsection (a) indicates |
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that an act by a physician falls below an acceptable standard of |
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care, the complaint shall be reviewed by an expert physician panel |
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authorized under Section 154.056(e) consisting of physicians who |
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have an active practice in the same specialty as the physician who |
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is the subject of the complaint. The identity of the members of the |
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expert panel shall be promptly disclosed to the physician who is the |
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subject of the complaint[or in another specialty that is similar to
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the physician's specialty]. |
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(c) The expert physician panel shall report in writing the |
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panel's determinations based on the review of the complaint under |
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Subsection (b). The report must specify the standard of care that |
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applies to the facts that are the basis of the complaint and the |
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clinical basis for the panel's determinations, including any |
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reliance on peer-reviewed journals, studies, or reports. |
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SECTION 11. Section 164.003(c), Occupations Code, is |
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amended to read as follows: |
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(c) An affected physician is entitled to: |
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(1) reply to the staff's presentation; [and] |
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(2) present the facts the physician reasonably |
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believes the physician could prove by competent evidence or |
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qualified witnesses at a hearing; |
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(3) receive notice at least 48 hours prior to a |
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proceeding of the identity of the panel members presiding over the |
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Informal Settlement Conference proceedings; and |
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(4) audio or video record or arrange for transcription |
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of the Informal Settlement Conference proceedings. |
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SECTION 12. Section 164.0031(a), Occupations Code, is |
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amended to read as follows: |
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(a) In an informal meeting under Section 164.003 or an |
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informal hearing under Section 164.103, at least two panelists |
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shall be randomly appointed to determine whether an informal |
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disposition is appropriate. At least one of the panelists must be a |
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physician. |
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SECTION 13. Sections 164.007(a-1) and (c), Occupations |
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Code, are amended to read as follows: |
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(a-1) The decision of the SOAH judge shall be binding on the |
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board. |
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SECTION 14. Section 164.009, Occupations Code, is amended |
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to read as follows: |
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Sec. 164.009. JUDICIAL REVIEW. (b) A person whose license |
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to practice medicine has been revoked is entitled to a jury trial. |
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SECTION 15. Section 164.053(a), Occupations Code, is |
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amended to read as follows: |
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(a) For purposes of Section 164.052(a)(5), unprofessional |
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or dishonorable conduct likely to deceive or defraud the public |
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includes conduct in which a physician: |
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(1) commits an act that violates any state or federal |
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law if the act is connected with the physician's practice of |
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medicine; |
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(2) fails to keep complete and accurate records of |
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purchases and disposals of: |
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(A) drugs listed in Chapter 481, Health and |
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Safety Code; or |
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(B) controlled substances scheduled in the |
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Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 |
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U.S.C. Section 801 et seq.); |
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(3) writes prescriptions for or dispenses to a person |
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who: |
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(A) is known to be an abuser of narcotic drugs, |
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controlled substances, or dangerous drugs; or |
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(B) the physician should have known was an abuser |
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of narcotic drugs, controlled substances, or dangerous drugs; |
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(4) writes false or fictitious prescriptions for: |
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(A) dangerous drugs as defined by Chapter 483, |
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Health and Safety Code; or |
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(B) controlled substances scheduled in Chapter |
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481, Health and Safety Code, or the Comprehensive Drug Abuse |
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Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.); |
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(5) prescribes or administers a drug or treatment that |
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is nontherapeutic in nature or nontherapeutic in the manner the |
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drug or treatment is administered or prescribed and has a |
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likelihood of harm to a patient; |
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(6) prescribes, administers, or dispenses in a manner |
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inconsistent with public health and welfare: |
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(A) dangerous drugs as defined by Chapter 483, |
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Health and Safety Code; or |
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(B) controlled substances scheduled in Chapter |
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481, Health and Safety Code, or the Comprehensive Drug Abuse |
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Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.); |
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(7) violates Section 311.0025, Health and Safety Code; |
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(8) fails to supervise adequately the activities of |
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those acting under the supervision of the physician; or |
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(9) delegates professional medical responsibility or |
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acts to a person if the delegating physician knows or has reason to |
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know that the person is not qualified by training, experience, or |
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licensure to perform the responsibility or acts. |
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SECTION 16. The changes in law made by this Act by the |
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amendment of Sections 152.002(a) and 152.003, Occupations Code, |
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apply only to a person appointed to the Texas Medical Board on or |
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after the effective date of this Act. A person appointed before the |
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effective date of this Act is governed by the law in effect on the |
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date the appointment is made, and the former law is continued in |
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effect for that purpose. |
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SECTION 17. The changes in law made by this Act relating to |
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the Texas Medical Board's complaint procedures apply only to a |
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complaint filed on or after the effective date of this Act. A |
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complaint filed before the effective date of this Act is governed by |
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the law in effect on the date the complaint is filed, and the former |
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law is continued in effect for that purpose. |
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SECTION 18. The changes in law made by this Act relating to |
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the Texas Medical Board's disciplinary authority apply only to |
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conduct that occurs on or after the effective date of this Act. |
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Conduct that occurs before the effective date of this Act is |
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governed by the law in effect on the date the conduct occurs, and |
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the former law is continued in effect for that purpose. |
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SECTION 19. Not later than January 1, 2010, the governor and |
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lieutenant governor shall appoint the members of the advisory |
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commission under Section 152.011, Occupations Code, as added by |
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this Act. |
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SECTION 20. The change in law made by this Act by the |
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amendment of Section 152.051(a), Occupations Code, applies only to |
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a person appointed as executive director of the Texas Medical Board |
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on or after the effective date of this Act. A person appointed |
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before the effective date of this Act is governed by the law in |
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effect when the person is appointed, and the former law is continued |
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in effect for that purpose. |
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SECTION 21. This Act takes effect September 1, 2009. |