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.