Bill Text: TX SB666 | 2023-2024 | 88th Legislature | Engrossed

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Bill Title: Relating to complaint information and to rulemaking and disciplinary procedures of the Texas Medical Board.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Engrossed - Dead) 2023-05-15 - Referred to Public Health [SB666 Detail]

Download: Texas-2023-SB666-Engrossed.html

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By: Hall S.B. No. 666

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 Subsections (c-1)
and (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.
(c-1) 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 five 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.