bill rewriting Texas Medical Board complaint rules

The text as introduced · 2,321 words

89R2520 BEE-D

By: Hall
S.B. No. 93

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 a member state,

as defined by Section 171.002 , 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 who are:

(1) licensed to practice medicine in this state; or

(2) licensed to practice medicine in a member state,

as defined by Section 171.002, if there are no panel members

licensed to practice medicine in this state available to review the

complaint in a timely manner.

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, 2025.