By: Brown, Callegari, Creighton, H.B. No. 1013
      J. Davis of Harris, et al.
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the powers and duties of the Texas Medical Board and the
  regulation of certain persons licensed by the 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 154.051, Occupations Code, is amended by
  adding Subsection (d) to read as follows:
         (d)  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 4.  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, including a
  statement of the alleged violation in plain language.  The
  complaint must be provided to the physician without redaction
  unless:
               (1)  the complaint is filed by:
                     (A)  a patient of the physician;
                     (B)  a patient's parent or legal guardian if the
  patient is a minor;
                     (C)  a patient's agent under a power of attorney;
  or
                     (D)  a registered nurse or a licensed vocational
  nurse;
               (2)  there is a risk of harm to the public; or
               (3)  the notice would jeopardize an investigation.
         (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 5.  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, "anonymous complaint" means a complaint that lacks
  sufficient information to identify the source or the name of the
  person who filed the complaint.
         (b)  The board may not accept anonymous complaints.
         (c)  A complaint filed with the board against a physician
  must include the name and address of the person filing the
  complaint.
         (d)  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 person
  who filed the complaint, unless:
               (1)  the notice would jeopardize an investigation; or
               (2)  the complaint is filed by:
                     (A)  a patient of the physician;
                     (B)  a patient's parent or legal guardian if the
  patient is a minor;
                     (C)  a patient's agent under a power of attorney;
  or
                     (D)  a registered nurse or a licensed vocational
  nurse.
         (e)  The board shall adopt rules as necessary to implement
  this section.
         SECTION 6.  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 30 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 7.  Section 154.0561, Occupations Code, is amended
  by adding Subsection (e) to read as follows:
         (e)  The board shall deliver a copy of the preliminary and
  final reports, including any dissenting or minority report, to the
  physician who is the subject of the review.
         SECTION 8.  Section 154.057(b), Occupations Code, is amended
  to read as follows:
         (b)  The board shall complete a preliminary investigation of
  the complaint not later than the 45th [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 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.  Subchapter B, Chapter 156, Occupations Code, is
  amended by adding Section 156.059 to read as follows:
         Sec. 156.059.  CONTINUING EDUCATION IN TICK-BORNE DISEASES.
  (a) A physician licensed under this subtitle who submits an
  application for renewal of a license to practice medicine and whose
  practice includes the treatment of tick-borne diseases is
  encouraged to include continuing medical education in the treatment
  of tick-borne diseases among the hours of continuing medical
  education completed for purposes of rules adopted under Section
  156.051(a)(2).
         (b)  The board shall adopt rules to establish the content of
  and approval requirements for continuing medical education
  relating to the treatment of tick-borne diseases. In adopting
  rules, the board shall review relevant courses, including courses
  that have been approved in other states. Rules adopted under this
  section must provide for the identification and approval of
  accredited continuing medical education courses that represent an
  appropriate spectrum of relevant medical clinical treatment
  relating to tick-borne diseases.
         (c)  If relevant, the board shall consider a physician's
  participation in a continuing medical education course approved
  under Subsection (b) if:
               (1)  the physician is being investigated by the board
  regarding the physician's selection of clinical care for the
  treatment of tick-borne diseases; and
               (2)  the physician completed the course not more than
  two years before the start of the investigation.
         (d)  The board may adopt other rules to implement this
  section.
         SECTION 11.  Section 164.003, Occupations Code, is amended
  by amending Subsection (b) and adding Subsections (i) and (j) 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 Section 154.057(b), 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 45th [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)  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.
         (i)  On request by a physician under review, the board shall
  make an audio recording of the informal settlement conference
  proceeding and provide a copy of the audio recording to the
  physician.  The physician shall pay the costs of producing and
  copying the requested audio recording.
         (j)  The audio recording is a part of the investigative file
  and may not be released by the board 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, unless a panelist of the same or a
  similar practice as the affected physician is available to serve in
  the informal meeting or hearing.  At least one of the panelists must
  be a physician.
         SECTION 13.  Section 164.0032, Occupations Code, is amended
  by adding Subsection (f-1) to read as follows:
         (f-1)  At least 21 days before the date the board conducts a
  meeting to consider the panel's recommendations under Subsection
  (f), the board must notify the affected physician and the
  physician's authorized representative of the meeting. The
  physician and the physician's representative may be present at the
  meeting.
         SECTION 14.  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 appr
  opriate
  action or sanction [only if the board makes a determination
  required by Section 2001.058(e), Government Code].
         SECTION 15.  Section 164.009, Occupations Code, is amended
  to read as follows:
         Sec. 164.009.  JUDICIAL REVIEW. 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.
         SECTION 16.  Subchapter G, Chapter 301, Occupations Code, is
  amended by adding Section 301.304 to read as follows:
         Sec. 301.304.  CONTINUING EDUCATION IN TICK-BORNE DISEASES.
  (a) As part of the continuing education requirements under Section
  301.303, a license holder whose practice includes the treatment of
  tick-borne diseases shall be encouraged to participate, during each
  two-year licensing period, in continuing education relating to the
  treatment of tick-borne diseases.
         (b)  The board shall adopt rules to identify the license
  holders who are encouraged to complete continuing education under
  Subsection (a) and establish the content of that continuing
  education. In adopting rules, the board shall review relevant
  courses, including courses that have been approved in other states.
  Rules adopted under this section must provide for the
  identification and approval of accredited continuing education
  courses that represent an appropriate spectrum of relevant medical
  clinical treatment relating to tick-borne diseases.
         (c)  If relevant, the board shall consider a license holder's
  participation in a continuing education course approved under
  Subsection (b) if:
               (1)  the license holder is being investigated by the
  board regarding the license holder's selection of clinical care for
  the treatment of tick-borne diseases; and
               (2)  the license holder completed the course not more
  than two years before the start of the investigation.
         (d)  The board may adopt other rules to implement this
  section, including rules under Section 301.303(c) for the approval
  of education programs and providers.
         SECTION 17.  The legislature finds that tick-borne diseases
  are an important public health issue in Texas. The legislature
  further finds that medical and nursing education on the appropriate
  care and treatment of tick-borne diseases is essential to the
  delivery of necessary health care to individuals in Texas suffering
  from tick-borne diseases. It is the intent of the legislature to
  address the need for medical and nursing education on tick-borne
  diseases through the continuing medical education requirements for
  physicians and nurses.
         SECTION 18.  The Texas Medical Board and the Texas Board of
  Nursing shall consult and cooperate in adopting the rules required
  under Sections 156.059 and 301.304, Occupations Code, as added by
  this Act.
         SECTION 19.  Not later than January 31, 2012, the Texas
  Medical Board shall adopt rules required by Section 156.059,
  Occupations Code, as added by this Act.
         SECTION 20.  Not later than January 31, 2012, the Texas Board
  of Nursing shall adopt rules required by Section 301.304,
  Occupations Code, as added by this Act.
         SECTION 21.  Not later than February 6, 2012, the Texas
  Medical Board and the Texas Board of Nursing shall report to the
  governor, the lieutenant governor, and the speaker of the house of
  representatives concerning the adoption of rules as required by
  Sections 156.059 and 301.304, Occupations Code, as added by this
  Act.
         SECTION 22.  Sections 156.059(c) and 301.304(c),
  Occupations Code, as added by this Act, apply only to the
  investigation of a complaint or a disciplinary action based on a
  complaint filed on or after the effective date of this Act. The
  investigation of a complaint or a disciplinary action based on a
  complaint filed before that date is governed by the law in effect on
  the date the complaint was filed, and that law is continued in
  effect for that purpose.
         SECTION 23.  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 24.  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 25.  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 26.  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 27.  This Act takes effect September 1, 2011.