By: Hall  S.B. No. 666
         (In the Senate - Filed January 30, 2023; February 17, 2023,
  read first time and referred to Committee on Health & Human
  Services; May 2, 2023, reported adversely, with favorable
  Committee Substitute by the following vote:  Yeas 6, Nays 2;
  May 2, 2023, sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 666 By:  Perry
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to complaint information and to rulemaking and
  disciplinary procedures of the Texas Medical Board.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 153.001, Occupations Code, is amended to
  read as follows:
         Sec. 153.001.  ADOPTION OF RULES.  (a)  The board may adopt
  rules and bylaws as necessary to:
               (1)  govern its own proceedings;
               (2)  perform its duties;
               (3)  regulate the practice of medicine in this state;
  and
               (4)  enforce this subtitle.
         (b)  Notwithstanding any other law and except as otherwise
  provided by this subsection, the board must hold a public hearing
  with a public comment period on a proposed rule before adopting the
  rule.  This subsection does not apply to an emergency rule adopted
  or renewed in accordance with Section 2001.034, Government Code.
         SECTION 2.  Section 154.051, Occupations Code, is amended by
  amending Subsections (a), (b), and (c) and adding Subsection (d-2)
  to read as follows:
         (a)  The board by rule shall establish methods by which
  members of the public and license holders are notified of the name,
  mailing address, and telephone number of the board for the purpose
  of obtaining information about complaint procedures and directing
  complaints to the board. The board may provide for that notice:
               (1)  on each registration form, application, or written
  contract for services of a person or entity regulated under this
  subtitle;
               (2)  on a sign prominently displayed in the place of
  business of each person or entity regulated under this subtitle; or
               (3)  in a bill for service provided by a person or
  entity regulated under this subtitle.
         (b)  The board shall list with its regular telephone number
  any toll-free telephone number established under other state law
  that may be called to obtain information about how to present a
  complaint about a health professional.
         (c)  A person, including a partnership, association,
  corporation, or other entity, may not file a complaint against a
  license holder with the board unless the person:
               (1)  is:
                     (A)  a patient of the license holder; or
                     (B)  directly involved in the care of a patient of
  the license holder and the complaint concerns the license holder's
  provision of care to that patient; or
               (2)  is not a person described by Subdivision (1) and
  has direct knowledge of the incident that is the subject of the
  complaint.  [The board may file a complaint on its own initiative.]
         (d-2)  Notwithstanding Subsections (d) and (d-1), the board
  may consider or act on a complaint involving conduct that
  constitutes a criminal offense at any time before the expiration of
  the applicable statute of limitations for the offense.
         SECTION 3.  Subchapter B, Chapter 154, Occupations Code, is
  amended by adding Section 154.0511 to read as follows:
         Sec. 154.0511.  FORM OF CERTAIN COMPLAINTS. The board may
  not accept or take action regarding, or require a license holder to
  respond to, a complaint filed with the board by a person described
  by Section 154.051(c)(2) unless the complaint is in writing and
  includes:
               (1)  the name of the complainant; and
               (2)  a sworn affidavit that:
                     (A)  states that all of the facts asserted in the
  complaint are:
                           (i)  true; and
                           (ii)  based on personal knowledge of the
  physician's care of a patient identified in the complaint; and
                     (B)  is executed before a notary public under
  penalty of perjury.
         SECTION 4.  Section 154.053, Occupations Code, is amended by
  amending Subsection (a) and adding Subsection (a-1) to read as
  follows:
         (a)  Except as provided by Subsection (a-1), the [The] board
  shall notify 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 complete copy [of the nature] of the
  complaint, including the name of the complainant [unless the notice
  would jeopardize an investigation].
         (a-1)  The board shall redact the name of the complainant
  from the complete copy of the complaint provided to the physician
  under Subsection (a) if the complaint filed with the board is in
  writing and includes:
               (1)  the name of the complainant; and
               (2)  a sworn affidavit that:
                     (A)  states that all of the facts asserted in the
  complaint are:
                           (i)  true; and
                           (ii)  based on personal knowledge of the
  physician's care of a patient identified in the complaint; and
                     (B)  is executed before a notary public under
  penalty of perjury.
         SECTION 5.  Section 154.056, Occupations Code, is amended by
  adding Subsections (b-1), (b-2), (b-3), (b-4), and (b-5) and
  amending Subsection (e) to read as follows:
         (b-1)  The board must complete the investigation of a
  complaint not later than the 120th day after the date the complaint
  is filed with the board, except that the board may extend the period
  for investigating the complaint for an additional 30 days if
  extenuating circumstances prevent the completion of the
  investigation within the 120-day period.
         (b-2)  In conducting an investigation of a complaint filed
  with the board, the board may not investigate matters that are
  outside of the scope of the filed complaint.  This subsection
  applies at all times before the resolution of the complaint,
  including during the initial investigation period and any informal
  proceeding or disciplinary hearing.
         (b-3)  Except as provided by Subsection (b-4), the board may
  not investigate a complaint involving a violation alleged to have
  occurred more than three years before the date the complaint is
  filed.
         (b-4)  The board may not investigate a complaint that alleges
  a violation involving care provided to a person who was 17 years of
  age or younger at the time of the alleged violation unless the
  complaint is filed on or before the person's 20th birthday.
         (b-5)  Notwithstanding Subsections (b-3) and (b-4), the
  board may investigate a complaint that alleges a violation
  involving conduct constituting a criminal offense as provided by
  Section 154.051(d-2).
         (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 a physician licensed [to practice medicine] in this state
  and engaged in the active practice of medicine. 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 6.  Section 154.058, Occupations Code, is amended to
  read as follows:
         Sec. 154.058.  EXPERT PHYSICIAN REVIEW AND DETERMINATION OF
  MEDICAL COMPETENCY.  (a)  Each complaint against a physician that
  requires a determination of medical competency shall be reviewed
  initially by a board member, consultant, or employee [with a
  medical background considered sufficient by the board].  A board
  member, consultant, or employee who reviews a complaint under this
  subsection must be a physician licensed in this state and engaged in
  the active practice of medicine.
         (b)  If the initial review under Subsection (a) indicates
  that an act by a physician may fall [falls] below an acceptable
  standard of care, the complaint shall be reviewed by at least eight
  expert physician reviewers who:
               (1)  are selected from the [an] expert physician panel
  authorized under Section 154.056(e); and
               (2)  have an active [consisting of physicians who]
  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].
         (b-1)  The physician who is the subject of the complaint is
  entitled to strike any expert physician panel member from
  participating in the review under Subsection (b) if the subject
  physician is aware that the panel member's participation represents
  a conflict of interest, including a situation in which the subject
  physician and the panel member live or work in the same geographical
  area or are competitors.
         (b-2)  Each expert physician panel member reviewing a
  complaint under this section must:
               (1)  be provided separate copies of the complaint
  information; and
               (2)  before communicating with another expert
  physician reviewer, independently:
                     (A)  review the complaint information; and
                     (B)  form an opinion as to whether an act by the
  physician who is the subject of the complaint falls below an
  acceptable standard of care.
         (b-3)  After each expert physician panel member selected
  under Subsection (b) independently reviews the complaint
  information and forms an opinion as described by Subsection
  (b-2)(2), the expert physician reviewers shall vote on the question
  of whether an act by the physician who is the subject of the
  complaint falls below an acceptable standard of care.
         (c)  The expert physician reviewers [panel] shall report in
  writing the reviewers' [panel's] determinations based on the review
  of the complaint under Subsection (b), including the results of the
  vote under Subsection (b-3).  The report must specify the standard
  of care that applies to the facts that are the basis of the
  complaint and the clinical basis for the reviewers' [panel's]
  determinations, including any reliance on peer-reviewed journals,
  studies, or reports.
         (d)  Notwithstanding any other law, the board may not take
  any disciplinary action against a physician who is the subject of a
  complaint reviewed under this section unless the expert physician
  reviewers determine by a three-fourths vote under Subsection (b-3)
  that an act by the subject physician falls below an acceptable
  standard of care.  If the expert physician reviewers do not
  determine by a three-fourths vote that the act falls below an
  acceptable standard of care, the board shall dismiss the reviewed
  complaint with prejudice.
         SECTION 7.  Sections 164.003(f) and (i), Occupations Code,
  are amended to read as follows:
         (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 [each] report prepared [by an expert
  physician reviewer] under Section 154.058(c) [154.0561].  The
  license holder must provide to the board the license holder's
  rebuttal at least 15 business days before the date of the meeting in
  order for the information to be considered at the meeting.
         (i)  Any person participating in the informal settlement
  conference proceeding may [On request by a physician under review,
  the board shall] make a recording of the [informal settlement
  conference] proceeding.  A recording made under this subsection may
  be used in any subsequent legal 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 proceeding].
         SECTION 8.  Section 164.007(a), Occupations Code, is 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[:
               [(1)] dispose of the contested case by issuing a final
  order based on the administrative law judge's findings of fact and
  conclusions of law[; or
               [(2)  appeal the administrative law judge's findings of
  fact and conclusions of law in the manner provided by Section
  164.0072].
         SECTION 9.  The following provisions of the Occupations Code
  are repealed:
               (1)  Section 154.0561; and
               (2)  Section 164.0072.
         SECTION 10.  Not later than the 30th day after the effective
  date of this Act, the Texas Medical Board shall adopt rules as
  necessary to implement the changes in law made by this Act.
         SECTION 11.  The changes in law made by this Act apply only
  to a complaint, or a disciplinary action based on a complaint, filed
  on or after the 30th day after the effective date of this Act. A
  complaint, or a disciplinary action based on a complaint, filed
  before the 30th day after the effective date of this Act is governed
  by the law in effect immediately before the effective date of this
  Act, and the former law is continued in effect for that purpose.
         SECTION 12.  This Act takes effect immediately if it
  receives a vote of two-thirds of all the members elected to each
  house, as provided by Section 39, Article III, Texas Constitution.  
  If this Act does not receive the vote necessary for immediate
  effect, this Act takes effect September 1, 2023.
 
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