2005 Legislative Compendium: TSBME Sunset and Physician Licensure

 

 

Sunset Review of TSBME  |  Amendments to the Practice Acts for Physician Assistants and Acupuncturists 

Texas began regulating physicians in 1837, and with TMA's help, created the current Texas State Board of Medical Examiners (TSBME) in 1907 to ensure that only qualified physicians practice medicine and provide health care to Texans. In 1993, the state established both the Texas State Board of Physician Assistant Examiners and the Texas State Board of Acupuncture Examiners as advisory boards to TSBME. Their role is to assist in regulating physician assistants, who provide medical services under the supervision of licensed physicians, and acupuncturists. The boards' main functions include issuing licenses to qualified individuals; investigating and resolving complaints, including taking disciplinary action when necessary; and monitoring compliance with disciplinary orders.

All three boards are subject to the Sunset Act. Without reenactment of the boards' enabling statutes, state law requires sunsetting an agency. Through the sunset review process this legislative session, lawmakers reaffirmed the need for all three boards, but identified areas that could be improved to provide fair, objective processes for licensees while continuing to meet high standards in protecting the safety, health, and welfare of Texans.

Sunset Review of TSBME

SB 419 by Sen. Jane Nelson (R-Lewisville) and Rep. Burt Solomons (R-Carrollton) made cosmetic as well as significant changes to the Medical Practice Act. Other changes related to the operational duties of TSBME itself. The changes fall into a number of different categories, as outlined below.

Operational and Licensure Changes

SB 419:

  • Changes the name of the Texas State Board of Medical Examiners to the Texas Medical Board ("Medical Board") and makes conforming changes throughout the statute.
  • Provides stakeholders with an opportunity for a stronger role in the rulemaking process.
  • Requires the Medical Board, the Physician Assistant Board, and the Acupuncture Board to seek input from stakeholders early in the process when developing rules. (This particular provision is an "across-the-board" recommendation from the Sunset Commission.)
  • Clarifies how the Medical Board receives input from the Physician Assistant and Acupuncture boards, and clarifies how stakeholders provide input to the Physician Assistant and Acupuncture boards, which do not have independent rulemaking authority.
  • Specifies that a rule adopted by the boards may not be challenged on the grounds that the boards did not solicit a significant amount of input, and requires the boards to state in writing the reasons the boards were unable to do so (across-the-board recommendation).
  • Adds structure to the boards' licensing processes including:
    • Requiring the boards to develop guidelines to evaluate applicants' mental and physical health conditions, alcohol and substance abuse, and professional behavior problems;
    • Requiring the boards to use the most appropriate medical specialist for the evaluation;
    • Setting parameters for selecting the medical specialist to perform the evaluation; and
    • Clarifying that the guidelines for the evaluation do not impair the boards' licensing decisions.
     
  • Eliminates the medical licensing exam attempt exceptions from the Medical Practice Act. It requires the Medical Board to clarify, in rule, the number of exam attempts for applicants who attempt more than one type of exam.
  • Authorizes the Medical Board to award a limited license for the practice of administrative medicine if the applicant meets the requirements for issuance of a license.
  • Requires the Medical Board to adopt rules for the issuance of a license to practice administrative medicine and sets forth the requirements for obtaining an unrestricted license.
  • Authorizes the Medical Board to issue a license limited in scope to an applicant by virtue of the applicant's conceded eminence and authority in the applicant's specialty; sets out eligibility requirements and restrictions; requires the board to adopt rules for the issuance of this type of license; and sets forth the requirements for obtaining a full license.
  • Authorizes the Medical Board to issue a faculty temporary license to a physician appointed by a medical school in the state; sets out eligibility requirements and restrictions; sets forth the requirements for obtaining a full license; and sets forth activities in which the holder of this type of license may participate.
Strengthened Enforcement Powers and Promotion of Fair, Impartial Review of Alleged Violations
  • Establishes additional qualifications and service restrictions, including grounds-for-removal and conflict-of-interest provisions, for physicians to serve on the Medical Board's expert physician panel to review complaints relating to medical competency; requires random selection of expert physician reviewers, taking into account the requirement for review by physicians in the same or similar specialty; and establishes a process for review of complaints by at least two expert physician reviewers on the panel to determine if the standard of care has been violated and to report that determination.
  • Clarifies that expert physician reviewers may consult and communicate with each other about a complaint.
  • Establishes a process for the boards to conduct a preliminary investigation of complaints within 30 days of receiving the complaint.
  • Clarifies the legal protections of members of the expert physician panel and consultants who assist the boards.
  • Clarifies the boards' informal proceedings process (this encompasses the informal settlement conference and the administrative procedure act show cause hearing process). The bill applies language regarding informal proceedings that currently exists for the Medical Board to the Physician Assistant and Acupuncture boards, and to complaints regarding surgical assistants handled by the Medical Board, including establishing that an informal meeting must be set for a complaint within 180 days after the boards commence an investigation of the complaint.
  • Clarifies the consequences of not scheduling an informal meeting within 180 days of receiving the complaint for the Medical Board and requires the Medical Board to notify all parties to a complaint if an informal meeting is not scheduled within 180 days, unless the notice would jeopardize the investigation; and requires the Medical Board to further define good cause for not scheduling an informal meeting within 180 days.
  • Defines in statute the roles and responsibilities of participants in informal proceedings for the boards; requires that at least two panelists - including at least one physician from the Medical Board - serve on the boards' informal panels, unless the respondent waives this requirement, and except in cases where the respondent is showing compliance with a board order; and requires the boards to include at least one public member on the boards' informal panels.
  • Authorizes the boards to delegate to staff the authority to handle complaints that do not relate directly to patient care or that involve only administrative violations, subject to board approval, and requires referral to informal proceedings in certain cases. (This is an across-the-board recommendation.)
  • Outlines requirements and time frames for the Medical Board and the license holder to provide and receive certain information prior to informal proceedings, including requiring the license holder to provide his rebuttal to the Medical Board at least five business days before the informal meeting.
  • Clarifies that investigation files used by the boards in informal meetings are confidential.
  • Adds two public members to each District Review Committee (DRC); clarifies the DRC's role in statute; clarifies eligibility requirements for DRC members; and establishes conflict-of-interest, grounds-for-removal, and training requirements for DRC members.
  • Sets forth certain requirements for the Medical Board when it rejects a recommendation resulting from an informal proceeding.
  • Requires the Medical Board, when determining the appropriate disciplinary action, to consider whether the violation relates directly to patient care or involves only an administrative violation.
Revised Medical Peer Review Process
  • Clarifies the Medical Board's ability to disclose peer review documents in disciplinary hearings with the safeguard that they are subject to confidentiality provisions already in statute, at the Medical Board and at the State Office of Administrative Hearings (SOAH).
  • Clarifies that peer review documents remain confidential at the Medical Board and at SOAH, and specifies that if medical peer review documents are admitted into evidence at SOAH, the documents must be admitted under seal.
  • Clarifies that medical records, such as a patient's medical records, that are otherwise available outside of the peer review process are not confidential.
  • Establishes that in formal hearings at SOAH in which peer review action is the sole ground alleged for disciplinary action, the Medical Board must provide evidence from its own investigation.
  • Clarifies that the appropriate use of peer review information in formal hearings at SOAH is the basis for the opinion of an expert witness called by the Medical Board.
  • Clarifies that a member of a peer review committee is not subject to subpoena and cannot be compelled to provide evidence in a formal hearing.
  • Clarifies the definition of "medical peer review" to include the professional conduct of professional health care practitioners.
  • Establishes a joint interim committee, consisting of members appointed by the presiding officer of each house of the Texas Legislature, to study the medical peer review process in hospitals and other health care entities in the state, and requires the joint interim committee to report its findings to the governor, lieutenant governor, and speaker of the House of Representatives by Jan. 1, 2007.
Strengthened Public Protections
  • Restricts nondisciplinary rehabilitation orders to individuals who have not violated the standard of care as a result of the intemperate use of drugs or alcohol, provided that the boards have not received a valid complaint regarding the individual's intemperate use of drugs or alcohol that affected the standard of care before the individual signs the proposed order.
  • Requires the boards to 1) inform private associations of a license holder's responsibilities under a rehabilitation order only if the order requires a license holder to participate in activities or programs provided by the association; 2) provide specific guidance to the associations; and 3) maintain the confidentiality of the rehabilitation order.
  • Removes the statutory exemption from Medical Board regulation for physicians who use moderate sedation in outpatient settings.
Changes Relating to Abortion
  • Prohibits third-term abortions, unless having the viable unborn child would jeopardize the woman's life or she would suffer imminent, severe, irreversible brain damage or paralysis, or unless the viable unborn child has a severe, irreversible brain impairment.
  • Requires, prior to performing an abortion on a minor, a parent, managing conservator, or guardian's affidavit, and if no such person is available, access to the court to obtain approval.
  • Requires the Medical Board to adopt a form for use by physicians to document the consent for an unemancipated minor to have an abortion. This form must be completed before the abortion can be performed except if the physician in her professional judgment determines that the procedure must be performed immediately to avert death or serious bodily injury to the minor.

Amendments to the Practice Acts for Physician Assistants and Acupuncturists

In addition to the amendments contained within the provisions mentioned, conforming amendments to the Physician Assistant Act and the Acupuncture Act also were made.

Physician Licensure

Extension of Time to Complete the Medical Licensure Exam
SB 424 by Sen. John Carona (R-Dallas) and Rep. Dan Branch (R-Dallas) changes state medical licensure requirements to give several groups more time to complete the U.S. Medical Licensure Exam (USMLE) testing series: 1) those with combined MD/PhD or DO/PhD degrees; 2) board certified physicians; and 3) those who have temporary faculty licenses for at least a year, and are recommended for licensure by the academic institution where they work.

Physicians with MD/PhD dual degrees often are delayed in taking Steps 2 (clinical diagnosis and skills) and 3 (clinical management) of the USMLE testing series due to the extra years devoted to earning a PhD. Gov. Rick Perry signed the bill May 17, and having received a two-thirds vote in the House and Senate, the bill became law on that date. The old law required these dual-degreed physicians to complete the testing series within two years of receiving their MD or DO degree. The new law allows for two years from completion of their first year of residency training to complete the testing series. This accommodates those who take additional time to do research, for example. Several otherwise highly credentialed physicians had been barred from ever practicing in Texas due to the previous shorter time limit.

Secondly, SB 424 extended the deadline for completing the testing series from seven to 10 years for those: 1) who are board certified by a specialty board that is a member of the American Board of Medical Specialties or Bureau of Osteopathic Specialists; or 2) who have a temporary faculty license that has allowed them to practice for at least a year, and are recommended for licensure by the academic institution where they work.

All other physicians are required to complete the testing series within seven years to qualify for Texas medical licensure. The National Board of Medical Examiners recommends the series be completed within seven years, but a number of states have policies that exceed or ignore this recommendation, including California and New York.

Authorization of Limited Medical License
SB 423 by Senator Carona and Rep. Dianne Delisi (R-Temple) changes the law to qualify individual physicians for medical licensure who wouldn't otherwise qualify by allowing the Medical Board to issue a limited medical license on the basis of conceded eminence and authority in the applicant's specialty if he or she: 1) is recommended by a medical dean, president, or chief academic officer of a school of medicine; The University of Texas Health Center at Tyler; MD Anderson Cancer Center; or a residency program; 2) is expected to receive an appointment at the institution or program making the recommendation; 3) has not failed a licensing examination that would prevent him or her from obtaining a full license in Texas; 4) passed the Texas medical jurisprudence exam; 5) completed at least one year subspecialty training in the United States; 6) is of good professional character, not subject to denial of a Texas license; 7) meets any other requirements prescribed by the Medical Board. This type of license limits the physician to practice in the specialty of her training and at the institution that recommends her for licensure.

International medical graduates who qualify for a limited license under this provision are exempt from the state requirement that they must complete a minimum of three years of specialty training to qualify for licensure. It is anticipated that this provision will be used by foreign graduates who have been recruited by academic institutions on the basis of their prominence in a given medical specialty or accomplishments in a specific field of research.

TSBME/Licensure TMA Staff Contacts:  

  • Yvonne Barton, Legislative Affairs, (512) 370-1359
  • C.J. Francisco, Office of the General Counsel, (512) 370-1339
  • Marcia Collins, Medical Education, (512) 370-1375 (issues relating to medical education/workforce) 

Overview  | Tax Reform | Scope of Practice | Physician Ownership | Inadequate Health Plan Networks (Balanced Billing) | Managed Care/Insurance Reform  | Agency Sunset Review  | Corporate Practice of Medicine | Health Care Funding | Medicaid and CHIP | Indigent Care and the Uninsured | Workers' Compensation | Professional Liability Reform | Medical Education/Workforce | Child Health, Safety, and Nutrition/Fitness | Public Health | Border Health | Rural Health | Mental Health | Trauma/EMS | Prescription Drugs | Medical Science | Long-Term Care | Abortion | Transplantation/Organ Donation | Table of Contents  


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