88R12593 JCG-F

By: Guerra H.B. No. 4867

A BILL TO BE ENTITLED

AN ACT

relating to health care transparency, including advertising, identification, and notice requirements for certain health facilities and health professionals; authorizing administrative and civil penalties.

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

SECTION 1. Title 2, Health and Safety Code, is amended by adding Subtitle J to read as follows:

SUBTITLE J. PROVISION OF HEALTH CARE SERVICES

CHAPTER 185. IDENTIFICATION AND NOTICE REQUIREMENTS FOR HEALTH

FACILITIES AND HEALTH PROFESSIONALS

Sec. 185.001. DEFINITIONS. In this chapter:

(1) "Advertisement" means:

(A) any printed, electronic, or oral statement, with respect to the provision of health care services by a health care professional:

(i) that is communicated or disseminated to the public;

(ii) that:

(a) is intended to encourage a person to use the professional's services; or

(b) for a commercial purpose, names the professional in connection with the practice, profession, or institution in which the professional provides health care services; and

(iii) the preparation, communication, or dissemination of which is controlled by the professional or a group to which the professional is affiliated; and

(B) any communication or statement not described by Paragraph (A) but that is used in the regular course of the professional's business for the purpose of promoting the professional's services to the public, including:

(i) business cards;

(ii) letterhead;

(iii) signs;

(iv) pamphlets;

(v) brochures;

(vi) e-mails and any other communication or statement transmitted through the Internet; or

(vii) audio or video communications, including television or radio advertisements.

(2) "Commission" means the Health and Human Services Commission.

(3) "Health facility" means:

(A) a solo or group medical practice; or

(B) an urgent care facility.

(4) "Health professional" and "professional" mean an individual licensed under Title 3, Occupations Code.

(5) "Urgent care facility" means a facility providing health care that:

(A) provides episodic ambulatory health care to individuals outside of a hospital emergency room setting;

(B) does not require an individual to make an appointment;

(C) provides some services typically provided in a primary care physician's office or emergency room; and

(D) treats individuals requiring treatment of an illness or injury that requires immediate care but is not life-threatening.

Sec. 185.002. PHOTO IDENTIFICATION BADGE REQUIRED. (a) A health facility shall adopt a policy requiring a health professional providing direct patient care at the facility to wear a photo identification badge during all patient encounters, unless wearing the badge is precluded by isolation or sterilization protocols adopted by the facility. The badge must be of sufficient size, be prominently worn and clearly visible, and include:

(1) the professional's first and last name;

(2) the facility department with which the professional is associated;

(3) the type of license held by the professional under Title 3, Occupations Code, and no other title; and

(4) if applicable, the professional's status as a student, intern, or trainee, or resident, but only if the professional is registered with the Texas Medical Board.

(b) For purposes of Subsection (a)(3), the identification badge of a health professional licensed under Title 3, Occupations Code, must clearly state:

(1) "physician," if the professional holds a license under Subtitle B of that title;

(2) "acupuncturist," "chiropractor," "midwife," "physician assistant," "podiatrist," or "surgical assistant," as applicable, if the professional holds a license under Subtitle C of that title;

(3) "dental hygienist" or "dentist," as applicable, if the professional holds a license under Subtitle D of that title;

(4) "advanced practice registered nurse," "licensed vocational nurse," "registered nurse," "nurse practitioner," "nurse midwife," "nurse anesthetist," or "clinical nurse specialist," as applicable, if the professional holds a license under Subtitle E of that title;

(5) "optometrist" or "therapeutic optometrist," as applicable, if the professional holds a license under Subtitle F of that title;

(6) "audiologist" or "speech-language pathologist," as applicable, if the professional holds a license under Subtitle G of that title;

(7) "athletic trainer," "massage therapist," "occupational therapist," "occupational therapy assistant," "physical therapist," or "physical therapist assistant," as applicable, if the professional holds a license under Subtitle H of that title;

(8) "pharmacist," if the professional holds a license under Subtitle J of that title;

(9) "medical physicist," "medical radiologic technologist," "orthotist," "orthotist assistant," "perfusionist," "prosthetist," "prosthetist assistant," or "respiratory care practitioner," as applicable, if the professional holds a license under Subtitle K of that title; or

(10) "dietitian," if the professional holds a license under Subtitle M of that title.

Sec. 185.003. NOTICE OF HEALTH PROFESSIONAL LICENSE. A health facility shall post in a conspicuous location in each office where a health professional provides health care services a written notice stating the type of license the professional holds. The notice must be printed using an easily readable font and type size.

Sec. 185.004. HEALTH CARE SERVICES PROVIDED BY NONPHYSICIAN HEALTH PROFESSIONAL. (a) If a nonphysician health professional provides health care services in a health facility under the supervision of a physician, the facility shall post in a conspicuous location in each office where the professional provides health care services a written notice stating:

(1) the name of the supervising physician;

(2) the supervising physician's medical license number;

(3) any board certification or specialty in which the physician is certified;

(4) the physician's practice contact information, including the telephone number and address of the practice;

(5) either:

(A) the hours the physician is scheduled to be present at the practice location; or

(B) if the physician is not scheduled to be present at the practice location, the statement: "No physician on site"; and

(6) the statement: "Any patient may request treatment by a physician. Notify a staff member at this location if you want to request this option."

(b) A patient may choose to be treated by the supervising physician of a nonphysician health professional. If the patient requests treatment by the supervising physician, the physician must see the patient not later than the 30th day after the date the patient makes the request. The physician may see the patient in person or through an acceptable telemedicine medical services platform.

Sec. 185.005. PROHIBITED CONDUCT. A health professional may not:

(1) knowingly aid, abet, permit, advise, or solicit a person who is not licensed to practice the health profession in which the professional is licensed to engage in an act contrary to that professional licensure; or

(2) delegate to or contract with another health professional to provide health care services if the professional knows, or has reason to know, that the other professional is not authorized for delegation of or to contract for those services under the professional's license.

Sec. 185.006. ADMINISTRATIVE PENALTY. (a) The commission or the regulatory agency for a health professional, including the Texas Medical Board, the Texas Physician Assistant Board, and the Texas Board of Nursing, may impose an administrative penalty against a health facility or professional regulated by the commission or agency who violates this chapter or a rule adopted under this chapter.

(b) The amount of the penalty imposed may not exceed $1,000 for each violation, and each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty. The amount shall be based on:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(2) the history of previous violations;

(3) the amount necessary to deter a future violation;

(4) the efforts to correct the violation; and

(5) any other matter that justice may require.

(c) The enforcement of the penalty may be stayed during the time the order is under judicial review if the health facility or professional pays the penalty to the clerk of the court or files a supersedeas bond with the court in the amount of the penalty. A facility or professional that cannot afford to pay the penalty or file the bond may stay the enforcement by filing an affidavit in the manner required by the Texas Rules of Civil Procedure for a party who cannot afford to file security for costs, subject to the right of the commission or regulatory agency to contest the affidavit as provided by those rules.

(d) The attorney general may sue to collect the penalty. The attorney general may recover reasonable expenses incurred in obtaining relief under this subsection, including court costs, reasonable attorney's fees, investigation costs, witness fees, and deposition expenses.

(e) A proceeding to impose the penalty is considered to be a contested case under Chapter 2001, Government Code.

Sec. 185.007. CIVIL PENALTY. (a) A health facility that violates this chapter is liable to the state for a civil penalty of not more than $1,000 for each violation. Each day of a continuing violation constitutes a separate ground for recovery.

(b) The attorney general may sue to collect a civil penalty under this section. The attorney general may recover reasonable expenses incurred in obtaining relief under this section, including court costs, reasonable attorney's fees, investigation costs, witness fees, and deposition expenses.

SECTION 2. The heading to Subchapter E, Chapter 101, Occupations Code, is amended to read as follows:

SUBCHAPTER E. CERTAIN PRACTICES RELATED TO ADVERTISING AND BILLING

PROHIBITED [GROUNDS FOR LICENSE REVOCATION OR DENIAL]

SECTION 3. Section 101.201, Occupations Code, is amended by amending Subsection (b) and adding Subsections (c) and (d) to read as follows:

(b) False, misleading, or deceptive advertising or advertising not readily subject to verification includes advertising that:

(1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading;

(2) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;

(3) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated;

(4) contains a testimonial;

(5) causes confusion or misunderstanding as to the credentials, education, or licensing of a health care professional, including using a title, term, or other words that misstate, falsely describe, falsely hold out, or falsely detail the health care professional's:

(A) professional skills;

(B) training;

(C) expertise;

(D) educational degree;

(E) specialty certification; or

(F) licensure;

(6) represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required;

(7) represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required;

(8) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or

(9) represents in the use of a professional name a title or professional identification that is associated with another profession and the health care professional is not licensed or otherwise authorized to practice that profession [expressly or commonly reserved to or used by another profession or professional].

(c) For purposes of this section, advertising that does not include the name of the health care professional and the professional identification required by Section 104.003 is considered false, misleading, deceptive, or not readily subject to verification.

(d) In this section, "advertising" includes:

(1) any printed, electronic, or oral statement, with respect to the provision of health care services by a health care professional:

(A) that is communicated or disseminated to the public;

(B) that:

(i) is intended to encourage a person to use the professional's services; or

(ii) for a commercial purpose, names the professional in connection with the practice, profession, or institution in which the professional provides health care services; and

(C) the preparation, communication, or dissemination of which is controlled by the professional or a group to which the professional is affiliated; and

(2) any communication or statement not described by Subdivision (1) but that is used in the regular course of the professional's business for the purpose of promoting the professional's services to the public, including:

(A) business cards;

(B) letterhead;

(C) signs;

(D) pamphlets;

(E) brochures;

(F) e-mails and any other communication or statement transmitted through the Internet; or

(G) audio or video communications, including television or radio advertisements.

SECTION 4. Subchapter E, Chapter 101, Occupations Code, is amended by adding Section 101.205 to read as follows:

Sec. 101.205. ADMINISTRATIVE PENALTY. (a) A health licensing agency that issues a license, certificate, or other authorization under this title, may impose an administrative penalty on a person who:

(1) holds a license, certificate, or other authorization issued by the health licensing agency; and

(2) violates Section 101.201.

(b) The amount of an administrative penalty may not exceed $1,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

(c) A proceeding to impose an administrative penalty under this section is subject to Chapter 2001, Government Code.

SECTION 5. Section 104.003, Occupations Code, is amended by amending Subsections (b) and (c) and adding Subsection (h) to read as follows:

(b) A person who is licensed by the Texas Medical [State] Board [of Medical Examiners] and holds a doctor of medicine degree shall use:

(1) physician or surgeon, M.D.;

(2) doctor, M.D.; [or]

(3) doctor of medicine, M.D.; or

(4) a designation indicating that the person is certified or eligible for certification, as applicable, by a certifying board of the American Board of Medical Specialties, the American Board of Oral and Maxillofacial Surgery, the National Board of Physicians and Surgeons, or a successor organization to those organizations.

(c) A person who is licensed by the Texas Medical [State] Board [of Medical Examiners] and holds a doctor of osteopathy degree shall use:

(1) physician or surgeon, D.O.;

(2) osteopathic physician or surgeon;

(3) doctor, D.O.;

(4) doctor of osteopathy;

(5) doctor of osteopathic medicine;

(6) osteopath; [or]

(7) D.O.; or

(8) a designation indicating that the person is certified or eligible for certification, as applicable, by a certifying board of the American Osteopathic Association, the American Board of Oral and Maxillofacial Surgery, the National Board of Physicians and Surgeons, or a successor organization to those organizations.

(h) A person licensed under this title and not described by Subsection (b), (c), (d), (e), (f), or (g) may only use a title authorized by the law under which the person is licensed.

SECTION 6. Chapter 104, Occupations Code, is amended by adding Section 104.0035 to read as follows:

Sec. 104.0035. FALSE AND DECEPTIVE ADVERTISING. A healing art practitioner may not use advertising that is false, misleading, or deceptive, or not readily subject to verification as provided by Section 101.201.

SECTION 7. Chapter 104, Occupations Code, is amended by adding Section 104.008 to read as follows:

Sec. 104.008. ADMINISTRATIVE PENALTY. (a) A healing art licensing board that issues a license, certificate, or other authorization described by Section 104.003, may impose an administrative penalty on a person who:

(1) holds a license, certificate, or other authorization issued by the healing art licensing board; and

(2) violates this chapter.

(b) The amount of an administrative penalty may not exceed $1,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

(c) A proceeding to impose an administrative penalty under this section is subject to Chapter 2001, Government Code.

SECTION 8. Section 165.156, Occupations Code, is amended to read as follows:

Sec. 165.156. MISREPRESENTATION REGARDING ENTITLEMENT TO PRACTICE MEDICINE. A person, partnership, trust, association, or corporation commits an offense if the person, partnership, trust, association, or corporation, through the use of any title, abbreviation, description of services, designation, letters, words, or terms, alone or in combination with any other title, affixed on stationery or on advertisements, or in any other manner, including oral or written communications, indicates or induces another to believe that the person, partnership, trust, association, or corporation is entitled to practice medicine if the person, partnership, trust, association, or corporation is not licensed to do so.

SECTION 9. Subchapter D, Chapter 165, Occupations Code, is amended by adding Section 165.1565 to read as follows:

Sec. 165.1565. USE OF TITLE. (a) In this section, "medical or medical specialty title" means:

(1) "doctor of medicine" or "M.D.";

(2) "doctor of osteopathy" or "D.O.";

(3) "physician";

(4) "surgeon";

(5) "osteopathic physician";

(6) "osteopathic surgeon";

(7) "doctor";

(8) "aesthetic surgeon";

(9) "age management medicine physician";

(10) "allergist";

(11) "anesthesiologist";

(12) "associate physician";

(13) "cosmetic surgeon";

(14) "dermatologist";

(15) "emergency medicine doctor";

(16) "emergency medicine physician";

(17) "endocrinologist";

(18) "environmental medicine physician";

(19) "family medicine doctor";

(20) "family medicine physician";

(21) "family practice doctor";

(22) "family practice physician";

(23) "functional medicine doctor";

(24) "functional medicine physician";

(25) "gastroenterologist";

(26) "general practitioner";

(27) "geriatrician";

(28) "graduate physician";

(29) "gynecologist";

(30) "hematologist";

(31) "hepatologist";

(32) "hospitalist";

(33) "house officer";

(34) "intensivist";

(35) "internal medicine physician";

(36) "intern";

(37) "internist";

(38) "laryngologist";

(39) "neonatologist";

(40) "nephrologist";

(41) "neurologist";

(42) "nocturnist";

(43) "obstetrician";

(44) "occupational health physician";

(45) "occupational medicine doctor";

(46) "occupational medicine physician";

(47) "oncologist";

(48) "ophthalmologist";

(49) "orthopedic surgeon";

(50) "orthopedist";

(51) "osteopath";

(52) "otolaryngologist";

(53) "otologist";

(54) "otorhinolaryngologist";

(55) "pathologist";

(56) "pediatrician";

(57) "physiatrist";

(58) "physical medicine and rehabilitation physician";

(59) "physician associate";

(60) "physician graduate";

(61) "plastic surgeon";

(62) "primary care doctor";

(63) "primary care physician";

(64) "proctologist";

(65) "psychiatrist";

(66) "radiologist";

(67) "resident";

(68) "rheumatologist";

(69) "rhinologist";

(70) "urogynecologist";

(71) "urologist"; or

(72) another title specified by board rule.

(b) Except as provided by Section 104.004, a person who is not licensed to practice medicine by the board may not:

(1) use or publicly display a medical or medical specialty title in connection with the person's name either alone or in combination with another word or title; or

(2) indicate or induce another to believe that the person is an attending doctor or attending physician or practices medicine.

(c) In a clinical setting, the terms "fellowship" and "residency" are reserved for postgraduate medical, dental, podiatric, and pharmacologic education and training. The terms may not be used to describe nursing or any nonmedical postgraduate training.

(d) In a clinical setting, the terms "attending," "attending doctor," and "attending physician" are reserved for physicians who are licensed to practice medicine and who have completed a postgraduate medical residency training program.

(e) In a clinical setting, "physician associate," "associate physician," and "physician graduate" are reserved for physicians licensed to practice medicine who:

(1) are graduates of a board-approved medical school or osteopathic medical school; and

(2) have passed the second component of the United States Medical Licensing Examination or the equivalent component of another board-approved licensing examination.

SECTION 10. Section 204.203, Occupations Code, is amended to read as follows:

Sec. 204.203. IDENTIFICATION REQUIREMENTS. A physician assistant shall:

(1) keep the physician assistant's license available for inspection at the physician assistant's primary place of business; and

(2) when engaged in the physician assistant's professional activities, wear a name tag identifying the license holder as a physician assistant by title or the initials "P.A.".

SECTION 11. Subchapter E, Chapter 204, Occupations Code, is amended by adding Section 204.2035 to read as follows:

Sec. 204.2035. FALSE AND DECEPTIVE ADVERTISING. A physician assistant may not use advertising that is false, misleading, deceptive, or not readily subject to verification as provided by Section 101.201.

SECTION 12. Sections 301.351(a), (b), and (c), Occupations Code, are amended to read as follows:

(a) A person who holds a license [as a registered nurse] under this chapter[:

[(1)] is referred to as:

(1) a registered nurse or[; and

[(2) may use the abbreviation] "R.N.";

(2) a licensed vocational nurse or "L.V.N.";

(3) an advanced practice registered nurse or "A.P.R.N.";

(4) a nurse practitioner or "N.P.";

(5) a nurse midwife;

(6) a certified registered nurse anesthetist or "C.R.N.A."; or

(7) a clinical nurse specialist or "C.N.S.".

(b) Except as provided by Section 104.004, a [A] person who holds a license [as a vocational nurse] under this chapter may not use the title "doctor" unless the person also holds a license issued by the Texas Medical Board under Subtitle B, as provided by Section 165.1565.[:

[(1) is referred to as a licensed vocational nurse or vocational nurse; and

[(2) may use the abbreviation "L.V.N." or "V.N."]

(c) While interacting with the public in a nursing role, each nurse shall wear a clearly legible insignia identifying the nurse in accordance with Subsection (a) [as a registered or vocational nurse]. The insignia may not contain information other than:

(1) the appropriate [registered or vocational nurse] designation;

(2) the nurse's name, certifications, academic degrees, or practice position;

(3) the name of the employing facility or agency, or other employer;

(4) a picture of the nurse; or

(5) any other information authorized by the board.

SECTION 13. Subchapter H, Chapter 301, Occupations Code, is amended by adding Section 301.3515 to read as follows:

Sec. 301.3515. FALSE AND DECEPTIVE ADVERTISING. A nurse may not use advertising that is false, misleading, deceptive, or not readily subject to verification as provided by Section 101.201.

SECTION 14. Section 104.007, Occupations Code, is repealed.

SECTION 15. Each state regulatory agency that issues a license to a health professional or health facility, including the Texas Medical Board, Texas Physician Assistant Board, Texas Board of Nursing, and Health and Human Services Commission, shall adopt rules necessary to implement Chapter 185, Health and Safety Code, as added by this Act, and Chapters 101 and 104, Occupations Code, as amended by this Act, not later than January 1, 2024.

SECTION 16. Chapter 185, Health and Safety Code, as added by this Act, applies to the provision of health care services on or after January 1, 2024.

SECTION 17. The changes in law made by this Act apply only to conduct that occurs on or after the effective date of this Act. Conduct that occurs before that date is governed by the law in effect on the date the conduct occurred, and the former law is continued in effect for that purpose.

SECTION 18. This Act takes effect September 1, 2023.