By: Nelson S.B. No. 190

(In the Senate - Filed November 9, 2010; January 31, 2011, read first time and referred to Committee on Health and Human Services; March 7, 2011, reported adversely, with favorable Committee Substitute by the following vote: Yeas 8, Nays 0; March 7, 2011, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 190 By: Nelson

A BILL TO BE ENTITLED

AN ACT

relating to the licensing and regulation of physicians, physician assistants, acupuncturists, and surgical assistants.

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

ARTICLE 1. REGULATION OF PHYSICIANS

SECTION 1.01. Subsection (d), Section 153.051, Occupations Code, is amended to read as follows:

(d) The board may not set, charge, collect, receive, or deposit any of the following fees in excess of:

(1) $900 for a license;

(2) $400 for a first registration permit;

(3) $200 for a temporary license;

(4) $400 for renewal of a registration permit;

(5) $200 for a physician-in-training permit;

(6) $600 for the processing of an application and the issuance of a registration for anesthesia in an outpatient setting;

(7) $200 for an endorsement to other state medical boards;

(8) $200 for a duplicate license; or

(9) [$700 for a reinstated license after cancellation for cause; or

[(10)] $1,200 for an annual fee under Section 167.011(c) for a program participant in the Texas Physician Health Program.

SECTION 1.02. Section 154.051, Occupations Code, is amended by adding Subsections (d) and (e) 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 on which 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 the care.

(e) On receipt of a complaint, the board may consider a previously investigated complaint to determine whether there is a pattern of practice violating this subtitle.

SECTION 1.03. 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.

(4) "Third-party administrator" means a person required to have a certificate of authority under Chapter 4151, Insurance Code.

(b) The board may not accept anonymous complaints.

(c) 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, insurer, pharmaceutical company, or third-party administrator against a physician must include the name and address of the insurance agent, insurer, pharmaceutical company, or third-party administrator 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, insurer, pharmaceutical company, or third-party administrator who filed the complaint, unless the notice would jeopardize an investigation.

SECTION 1.04. Subsection (b), Section 154.057, 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 1.05. Subsection (e), Section 155.003, Occupations Code, is amended to read as follows:

(e) An applicant is not eligible for a license if:

(1) the applicant:

(A) holds a medical license that is currently restricted for cause under a disciplinary order or[, canceled for cause,] suspended for cause;[,] or

(B) held a medical license that was surrendered or canceled for cause or revoked by a state, another country [a province of Canada], or a uniformed service of the United States;

(2) an investigation or a proceeding is instituted against the applicant for the restriction, cancellation, suspension, or revocation by another [in a] state or country[, a province of Canada,] or by a uniformed service of the United States; or

(3) a prosecution is pending against the applicant in any state or[,] federal court[,] or [Canadian] court in another country for any offense that under the laws of this state is a felony or a misdemeanor that involves moral turpitude.

SECTION 1.06. Subsection (b), Section 155.101, Occupations Code, is amended to read as follows:

(b) The board may not grant a provisional license under this section to an applicant who:

(1) has had a medical license suspended or revoked by another state or country [a Canadian province]; or

(2) holds a medical license issued by another state or country [a Canadian province] that is subject to a restriction, disciplinary order, or probationary order.

SECTION 1.07. Subsection (b), Section 155.104, Occupations Code, is amended to read as follows:

(b) The board may issue a faculty temporary license to practice medicine to a physician as provided by this section. The physician:

(1) must hold a current medical license that is unrestricted and not subject to a disciplinary order or probation in another state or country [a Canadian province] or have completed at least three years of postgraduate residency;

(2) may not:

(A) hold a medical license in another state or country [a Canadian province] that has any restrictions, disciplinary orders, or probation; or

(B) have held a medical license that was surrendered or canceled for cause or revoked by another state or country or by a uniformed service of the United States;

(3) must pass the Texas medical jurisprudence examination; and

(4) must hold a salaried faculty position equivalent to at least the level of assistant professor and be working full-time at one of the following institutions:

(A) The University of Texas Medical Branch at Galveston;

(B) The University of Texas Southwestern Medical Center at Dallas;

(C) The University of Texas Health Science Center at Houston;

(D) The University of Texas Health Science Center at San Antonio;

(E) The University of Texas Health Center at Tyler;

(F) The University of Texas M. D. Anderson Cancer Center;

(G) Texas A&M University College of Medicine;

(H) the Schools of Medicine at Texas Tech University Health Sciences Center;

(I) Baylor College of Medicine;

(J) the University of North Texas Health Science Center at Fort Worth;

(K) an institutional sponsor of a graduate medical education program accredited by the Accreditation Council for Graduate Medical Education; or

(L) a nonprofit health corporation certified under Section 162.001 and affiliated with a program described by Paragraph (K).

SECTION 1.08. Section 164.003, Occupations Code, is amended by amending Subsections (b) and (f) and adding Subsection (i) 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.

(f) The notice required by Subsection (b)(2) must be accompanied by a written statement of the nature of the allegations and the information the board intends to use at the meeting. If the board does not provide the statement or information at that time, the license holder may use that failure as grounds for rescheduling the informal meeting. If the complaint includes an allegation that the license holder has violated the standard of care, the notice must include a copy of the report by the expert physician reviewer. The license holder must provide to the board the license holder's rebuttal at least 15 [five] business days before the date of the meeting in order for the information to be considered at the meeting.

(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. The board may charge the physician a fee to cover the cost of recording the hearing.

ARTICLE 2. REGULATION OF PHYSICIAN ASSISTANTS

SECTION 2.01. Section 204.058, Occupations Code, is amended to read as follows:

Sec. 204.058. OPEN MEETINGS; ADMINISTRATIVE PROCEDURE LAW. (a) Except as otherwise provided by this chapter, the physician assistant board is subject to Chapters 551 and 2001, Government Code.

(b) The physician assistant board may hear all evidence and arguments and conduct deliberations relating to license applications and disciplinary actions under this chapter in executive sessions. The board shall vote and announce its decisions in open session. Deliberations by the board relating to license applications and disciplinary actions are exempt from Chapter 551, Government Code.

SECTION 2.02. Subsections (a) and (b), Section 204.153, Occupations Code, are amended to read as follows:

(a) To be eligible for a license under this chapter, an applicant must:

(1) successfully complete an educational program for physician assistants or surgeon assistants accredited by the Committee on Allied Health Education and Accreditation or by that committee's predecessor or successor entities;

(2) pass the Physician Assistant National Certifying Examination administered by the National Commission on Certification of Physician Assistants;

(3) hold a certificate issued by the National Commission on Certification of Physician Assistants;

(4) be of good professional [moral] character;

(5) meet any other requirement established by board rule; and

(6) pass a jurisprudence examination approved by the physician assistant board as provided by Subsection (a-1).

(b) In addition to the requirements of Subsection (a), an applicant is not eligible for a license[, unless the physician assistant board takes the fact into consideration in determining whether to issue the license,] if the applicant:

(1) has been issued a license, certificate, or registration as a physician assistant in this state or from a licensing authority in another state that is revoked or suspended; or

(2) is subject to probation or other disciplinary action for cause resulting from the applicant's acts as a physician assistant.

SECTION 2.03. Section 204.155, Occupations Code, is amended to read as follows:

Sec. 204.155. TEMPORARY LICENSE. [(a)] The physician assistant board may adopt rules and set fees relating to granting temporary licenses and extending the expiration dates of temporary licenses. The board by rule shall set a time limit for the term of [issue] a temporary license [to an applicant who:

[(1) meets all the qualifications for a license under this chapter but is waiting for the license to be issued at the next scheduled meeting of the board;

[(2) seeks to temporarily substitute for a licensed physician assistant during the license holder's absence, if the applicant:

[(A) is licensed or registered in good standing in another state;

[(B) submits an application on a form prescribed by the board; and

[(C) pays the appropriate fee prescribed by the board; or

[(3) has graduated from an educational program for physician assistants or surgeon assistants described by Section 204.153(a)(1) not later than six months before applying for a temporary license and is waiting for examination results from the National Commission on Certification of Physician Assistants.

[(b) A temporary license may be valid for not more than one year after the date issued as determined by board rule].

SECTION 2.04. Subchapter D, Chapter 204, Occupations Code, is amended by adding Section 204.1551 to read as follows:

Sec. 204.1551. POSTGRADUATE TRAINING PERMIT. (a) The physician assistant board by rule may issue a physician assistant postgraduate training permit to a physician assistant not otherwise licensed by the board who is participating in a graduate physician assistant education training program approved by the board.

(b) A physician assistant postgraduate training permit does not authorize the performance of a physician assistant act by the permit holder unless the act is performed:

(1) as a part of the graduate medical education training program; and

(2) under the supervision of a physician and a physician assistant.

(c) The physician assistant board has jurisdiction to discipline a permit holder whose permit has expired if the violation of the law occurred during the time the permit was valid. If an investigation is open when the permit expires, the permit shall be executory and the board may retain jurisdiction.

SECTION 2.05. Section 204.156, Occupations Code, is amended by adding Subsections (g) and (h) to read as follows:

(g) If the person's license has been expired for one year or longer, the person's license is automatically canceled, unless an investigation is pending, and the person may not renew the license.

(h) A physician assistant whose license is automatically canceled may obtain a new license by complying with the requirements, fees, and procedures for obtaining a new license. The physician assistant board may issue a new license without examination to a person whose license is automatically canceled for less than two years.

ARTICLE 3. REGULATION OF ACUPUNCTURISTS

SECTION 3.01. Section 205.060, Occupations Code, is amended to read as follows:

Sec. 205.060. APPLICATION OF OPEN MEETINGS, OPEN RECORDS, AND ADMINISTRATIVE PROCEDURE LAWS. (a) Except as provided by this chapter, the acupuncture board is subject to Chapters 551, 552, and 2001, Government Code.

(b) The acupuncture board may hear all evidence and arguments and conduct deliberations relating to license applications and disciplinary actions under this chapter in executive sessions. The board shall vote and announce its decisions in open session. Deliberations by the board relating to license applications and disciplinary actions are exempt from Chapter 551, Government Code.

SECTION 3.02. Section 205.3544, Occupations Code, is amended to read as follows:

Sec. 205.3544. LIMIT ON ACCESS TO INVESTIGATION FILES. (a) Each complaint, adverse report, investigation file, other investigation report, and other investigative information in the possession of or received or gathered by the acupuncture board or a medical board employee or agent relating to a license holder, an application for license, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the acupuncture board or medical board employees or agents involved in discipline of a license holder.

(b) Investigation records relating to an application for license and disciplinary action of a license holder are exempt from Chapter 552, Government Code.

(c) For purposes of this section, investigative information includes information relating to the identity of, and a report made by, a physician performing or supervising compliance monitoring for the acupuncture board [The acupuncture board shall prohibit or limit access to an investigation file relating to a license holder in an informal proceeding in the manner provided by Section 164.007(c)].

ARTICLE 4. REGULATION OF SURGICAL ASSISTANTS

SECTION 4.01. Subchapter B, Chapter 206, Occupations Code, is amended by adding Section 206.059 to read as follows:

Sec. 206.059. MEDICAL BOARD MEETINGS; CONFIDENTIALITY. (a) The medical board may hear all evidence and arguments and conduct deliberations relating to license applications and disciplinary actions under this chapter in executive sessions. The medical board shall vote and announce its decisions in open session.

(b) Deliberations and records relating to the professional character and fitness of applicants as well as related to disciplinary actions are exempt from Chapters 551 and 552, Government Code.

SECTION 4.02. Subsection (a), Section 206.203, Occupations Code, is amended to read as follows:

(a) Except as provided by Section 206.206, to be eligible for a license, a person must:

(1) be of good professional [moral] character;

(2) have not been convicted of a felony or a crime involving moral turpitude;

(3) not use drugs or alcohol to an extent that affects the applicant's professional competency;

(4) not have had a license or certification revoked by a licensing agency or by a certifying professional organization; and

(5) not have engaged in fraud or deceit in applying for a license under this chapter.

ARTICLE 5. TRANSITION PROVISIONS

SECTION 5.01. Sections 153.051, 155.003, 155.101, 155.104, 204.153, 204.155, and 206.203, Occupations Code, as amended by this Act, apply only to an application for a license filed with the applicable licensing authority on or after the effective date of this Act. An application for a license filed before the effective date of this Act is governed by the law in effect on the date the application was filed, and that law is continued in effect for that purpose.

SECTION 5.02. Sections 154.051, 154.057, and 164.003, Occupations Code, as amended by this Act, and Section 154.0535, Occupations Code, as added by this Act, apply only to the investigation of a complaint filed on or after the effective date of this Act. The investigation of 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 5.03. Section 204.058, Occupations Code, as amended by this Act, and Subsection (b), Section 205.060, and Section 206.059, Occupations Code, as added by this Act, apply only to a contested case hearing conducted on or after the effective date of this Act. A contested case filed before the effective date of this Act is governed by the law in effect on the date the contested case was filed, and that law is continued in effect for that purpose.

SECTION 5.04. Section 204.156, Occupations Code, as amended by this Act, applies only to a license that expires on or after the effective date of this Act. A license that expires before the effective date of this Act is governed by the law in effect on the date the license expires, and that law is continued in effect for that purpose.

ARTICLE 6. EFFECTIVE DATE

SECTION 6.01. This Act takes effect September 1, 2011.

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