CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES

Statutes > Texas Statutes > OCCUPATIONS CODE > TITLE 3. HEALTH PROFESSIONS > CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES

OCCUPATIONS CODE

TITLE 3. HEALTH PROFESSIONS

SUBTITLE B. PHYSICIANS

CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 164.001. DISCIPLINARY AUTHORITY OF BOARD; METHODS OF

DISCIPLINE. (a) Except for good cause shown, the board, on

determining a violation of this subtitle or a board rule or for

any cause for which the board may refuse to admit a person to its

examination or to issue or renew a license, including an initial

conviction or the initial finding of the trier of fact of guilt

of a felony or misdemeanor involving moral turpitude, shall:

(1) revoke or suspend a license;

(2) place on probation a person whose license is suspended; or

(3) reprimand a license holder.

(b) Except as otherwise provided by Sections 164.057 and

164.058, the board, on determining that a person committed an act

described by Sections 164.051 through 164.054, shall enter an

order to:

(1) deny the person's application for a license or other

authorization to practice medicine;

(2) administer a public reprimand;

(3) suspend, limit, or restrict the person's license or other

authorization to practice medicine, including:

(A) limiting the practice of the person to or excluding one or

more specified activities of medicine; or

(B) stipulating periodic board review;

(4) revoke the person's license or other authorization to

practice medicine;

(5) require the person to submit to care, counseling, or

treatment of physicians designated by the board as a condition

for:

(A) the issuance or renewal of a license or other authorization

to practice medicine; or

(B) continued practice under a license;

(6) require the person to participate in an educational or

counseling program prescribed by the board;

(7) require the person to practice under the direction of a

physician designated by the board for a specified period;

(8) require the person to perform public service considered

appropriate by the board; or

(9) assess an administrative penalty against the person as

provided by Section 165.001.

suspend, or deny a physician's license if the board determines

that, through the practice of medicine, the physician poses a

continuing threat to the public welfare.

(d) In addition to any other disciplinary action authorized by

this section, the board may issue a written reprimand to a

license holder who violates this subtitle or require that a

license holder who violates this subtitle participate in

continuing education programs. The board shall specify the

continuing education programs to be attended and the number of

hours that must be completed by the license holder to fulfill the

requirements of this subsection.

(e) For any sanction imposed under this chapter as the result of

a hearing conducted by the State Office of Administrative

Hearings, that office shall use the schedule of sanctions adopted

by board rule.

(f) The board by rule shall adopt a schedule of the disciplinary

sanctions that the board may impose under this subchapter. In

adopting the schedule of sanctions, the board shall ensure that

the severity of the sanction imposed is appropriate to the type

of violation or conduct that is the basis for disciplinary

action.

(g) In determining the appropriate disciplinary action,

including the amount of any administrative penalty to assess, the

board shall consider whether the person:

(1) is being disciplined for multiple violations of this

subtitle or a rule or order adopted under this subtitle; or

(2) has previously been the subject of disciplinary action by

the board.

(h) In the case of a person described by:

(1) Subsection (g)(1), the board shall consider taking a more

severe disciplinary action, including revocation of the person's

license, than the disciplinary action that would be taken for a

single violation; and

(2) Subsection (g)(2), the board shall consider revoking the

person's license if the person has repeatedly been the subject of

disciplinary action by the board.

(i) If the board chooses not to revoke the license of a person

described by Subsection (g)(2), the board shall consider taking a

more severe disciplinary action than the disciplinary action

previously taken.

(j) In determining the appropriate disciplinary action,

including the amount of any administrative penalty to impose, the

board shall consider whether the violation relates directly to

patient care or involves only an administrative violation.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2003, 78th Leg., ch. 202, Sec. 26, eff. June 10,

2003.

Amended by:

Acts 2005, 79th Leg., Ch.

269, Sec. 1.34, eff. September 1, 2005.

Sec. 164.002. BOARD DISPOSITION OF COMPLAINTS, CONTESTED CASES,

AND OTHER MATTERS. (a) Unless precluded by law, the board may

dispose of any complaint or matter relating to this subtitle or

of any contested case by a stipulation, agreed settlement, or

consent order.

(b) The board shall dispose of a complaint, contested case, or

other matter in writing. If appropriate, the affected physician

shall sign the writing.

of reporting under this subtitle and of administrative hearings

and proceedings by state and federal regulatory agencies

regarding the practice of medicine. An agreed disposition is

public information.

(d) In civil litigation, an agreed disposition is a settlement

agreement under Rule 408, Texas Rules of Evidence. This

subsection does not apply to a license holder who has previously

entered into an agreed disposition with the board of a different

disciplinary matter or whose license the board is seeking to

revoke.

(e) The board may not dismiss a complaint solely on the grounds

that the case has not been scheduled for an informal meeting

within the time required by Section 164.003(b).

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

269, Sec. 1.35, eff. September 1, 2005.

Sec. 164.0025. DELEGATION OF CERTAIN COMPLAINT DISPOSITIONS.

(a) The board may delegate to a committee of board employees the

authority to dismiss or enter into an agreed settlement of a

complaint that does not relate directly to patient care or that

involves only administrative violations. The disposition

determined by the committee must be approved by the board at a

public meeting.

(b) A complaint delegated under this section shall be referred

for informal proceedings under Section 164.003 if:

(1) the committee of employees determines that the complaint

should not be dismissed or settled;

(2) the committee is unable to reach an agreed settlement; or

(3) the affected physician requests that the complaint be

referred for informal proceedings.

Added by Acts 2005, 79th Leg., Ch.

269, Sec. 1.36, eff. September 1, 2005.

Sec. 164.003. INFORMAL PROCEEDINGS. (a) The board by rule

shall adopt procedures governing:

(1) informal disposition of a contested case under Section

2001.056, Government Code; and

(2) informal proceedings held in compliance with Section

2001.054, Government Code.

(b) Rules adopted under this section must require that:

(1) an informal meeting in compliance with Section 2001.054,

Government Code, be scheduled not later than the 180th day after

the date the board's official investigation of the complaint is

commenced as provided by Section 154.057(b), unless good cause is

shown by the board for scheduling the informal meeting after that

date;

(2) the board give notice to the license holder of the time and

place of the meeting not later than the 30th day before the date

the meeting is held;

(3) the complainant and the license holder be provided an

opportunity to be heard;

(4) at least one of the board members or district review

committee members participating in the informal meeting as a

panelist be a member who represents the public;

(5) the board's legal counsel or a representative of the

attorney general be present to advise the board or the board's

staff; and

(6) a member of the board's staff be at the meeting to present

to the board's representative the facts the staff reasonably

believes it could prove by competent evidence or qualified

witnesses at a hearing.

(1) reply to the staff's presentation; and

(2) present the facts the physician reasonably believes the

physician could prove by competent evidence or qualified

witnesses at a hearing.

(d) After ample time is given for the presentations, the board

representative shall recommend that the investigation be closed

or shall attempt to mediate the disputed matters and make a

recommendation regarding the disposition of the case in the

absence of a hearing under applicable law concerning contested

cases.

(e) If the license holder has previously been the subject of

disciplinary action by the board, the board shall schedule the

informal meeting as soon as practicable but not later than the

deadline prescribed by Subsection (b)(1).

(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 report by the expert

physician reviewer. The license holder must provide to the board

the license holder's rebuttal at least five business days before

the date of the meeting in order for the information to be

considered at the meeting.

(g) The board by rule shall define circumstances constituting

good cause for purposes of Subsection (b)(1), including the

extended illness of a board investigator and an expert physician

reviewer's delinquency in reviewing and submitting a report to

the board.

(h) Section 164.007(c) applies to the board's investigation file

used in an informal meeting under this section.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2003, 78th Leg., ch. 202, Sec. 27, eff. June 10,

2003.

Amended by:

Acts 2005, 79th Leg., Ch.

269, Sec. 1.37, eff. September 1, 2005.

Sec. 164.0031. BOARD REPRESENTATION IN INFORMAL PROCEEDINGS.

(a) In an informal meeting under Section 164.003 or an informal

hearing under Section 164.103, at least two panelists shall be

appointed to determine whether an informal disposition is

appropriate. At least one of the panelists must be a physician.

(b) Notwithstanding Subsection (a) and Section 164.003(b)(4), an

informal proceeding may be conducted by one panelist if the

affected physician waives the requirement that at least two

panelists conduct the informal proceeding. If the physician

waives that requirement, the panelist may be either a physician

or a member who represents the public.

apply to an informal proceeding conducted by the board under

Section 164.003 to show compliance with an order of the board.

Added by Acts 2005, 79th Leg., Ch.

269, Sec. 1.38, eff. September 1, 2005.

Sec. 164.0032. ROLES AND RESPONSIBILITIES OF PARTICIPANTS IN

INFORMAL PROCEEDINGS. (a) A board member or district review

committee member that serves as a panelist at an informal meeting

under Section 164.003 shall make recommendations for the

disposition of a complaint or allegation. The member may request

the assistance of a board employee at any time.

(b) Board employees shall present a summary of the allegations

against the affected physician and of the facts pertaining to the

allegation that the employees reasonably believe may be proven by

competent evidence at a formal hearing.

notwithstanding Subsection (e), shall be present during the

informal meeting and the panel's deliberations to advise the

panel on legal issues that arise during the proceeding. The

attorney may ask questions of participants in the informal

meeting to clarify any statement made by the participant. The

attorney shall provide to the panel a historical perspective on

comparable cases that have appeared before the board, keep the

proceedings focused on the case being discussed, and ensure that

the board's employees and the affected physician have an

opportunity to present information related to the case. During

the panel's deliberations, the attorney may be present only to

advise the panel on legal issues and to provide information on

comparable cases that have appeared before the board.

(d) The panel and board employees shall provide an opportunity

for the affected physician and the physician's authorized

representative to reply to the board employees' presentation and

to present oral and written statements and facts that the

physician and representative reasonably believe could be proven

by competent evidence at a formal hearing.

(e) An employee of the board who participated in the

presentation of the allegation or information gathered in the

investigation of the complaint, the affected physician, the

physician's authorized representative, the complainant, the

witnesses, and members of the public may not be present during

the deliberations of the panel. Only the members of the panel

and the board attorney serving as counsel to the panel may be

present during the deliberations.

(f) The panel shall recommend the dismissal of the complaint or

allegations or, if the panel determines that the affected

physician has violated a statute or board rule, the panel may

recommend board action and terms for an informal settlement of

the case.

(g) The panel's recommendations under Subsection (f) must be

made in a written order and presented to the affected physician

and the physician's authorized representative. The physician may

accept the proposed settlement within the time established by the

panel at the informal meeting. If the physician rejects the

proposed settlement or does not act within the required time, the

board may proceed with the filing of a formal complaint with the

State Office of Administrative Hearings.

(h) If the board rejects the panel's recommendation for

settlement or dismissal, the board shall notify the physician and

state in the board's minutes the reason for rejecting the

recommendation and specify further action to be considered. In

determining the appropriate further action to be taken, the board

shall consider previous attempts to resolve the matter.

Added by Acts 2005, 79th Leg., Ch.

269, Sec. 1.38, eff. September 1, 2005.

Sec. 164.0035. DISMISSAL OF BASELESS COMPLAINT. If, during the

180-day period prescribed by Section 164.003(b)(1), the board

determines that the complaint is a baseless or unfounded

complaint, the board shall dismiss the complaint and include a

statement in the records of the complaint that the reason for the

dismissal is because the complaint was baseless or unfounded. The

board shall adopt rules that establish criteria for determining

that a complaint is baseless or unfounded.

Added by Acts 2003, 78th Leg., ch. 202, Sec. 28, eff. June 10,

2003.

Sec. 164.0036. NOTICE REGARDING CERTAIN COMPLAINTS. (a) If an

informal meeting is not scheduled for a complaint before the

180th day after the date the board's official investigation of

the complaint is commenced under Section 154.057(b), the board

shall provide notice to all parties to the complaint. The notice

must include an explanation of the reason why the informal

meeting has not been scheduled. The notice under this subsection

is not required if the notice would jeopardize an investigation.

(b) The board must include in its annual report to the

legislature information about any complaint for which notice is

required under Subsection (a), including the reason for failing

to schedule the informal meeting before the 180-day deadline.

The information provided under this subsection must also list any

complaint in which the investigation has extended beyond the

first anniversary of the date the complaint was filed with the

board.

Added by Acts 2005, 79th Leg., Ch.

269, Sec. 1.39, eff. September 1, 2005.

Sec. 164.004. COMPLIANCE WITH DUE PROCESS REQUIREMENTS. (a)

Except in the case of a suspension under Section 164.059 or under

the terms of an agreement between the board and a license holder,

a revocation, suspension, involuntary modification, or other

disciplinary action relating to a license is not effective

unless, before board proceedings are instituted:

(1) the board gives notice, in a manner consistent with the

notice requirements under Section 154.053, to the affected

license holder of the facts or conduct alleged to warrant the

intended action; and

(2) the license holder is given an opportunity to show

compliance with all requirements of law for the retention of the

license, at the license holder's option, either in writing or

through personal appearance at an informal meeting with one or

more representatives of the board.

(b) If the license holder chooses to personally appear and an

informal meeting is held, the board's staff and the board's

representatives are subject to the ex parte provisions of Chapter

2001, Government Code, with regard to contacts with board members

and administrative law judges concerning the case.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.005. INITIATION OF CHARGES; FORMAL COMPLAINT. (a) In

this section, "formal complaint" means a written statement made

by a credible person under oath that is filed and presented by a

board representative charging a person with having committed an

act that, if proven, could affect the legal rights or privileges

of a license holder or other person under the board's

jurisdiction.

(b) Unless otherwise specified, a proceeding under this subtitle

or other applicable law and a charge against a license holder may

be instituted by an authorized representative of the board.

(1) is filed with the board's records custodian or assistant

records custodian; and

(2) details the nature of the charge as required by this

subtitle or other applicable law.

(d) The board president or a designee shall ensure a copy of the

charges is served on the respondent or the respondent's counsel

of record.

(e) The president or designee shall notify the State Office of

Administrative Hearings of a formal complaint.

(f) A formal complaint must allege with reasonable certainty

each specific act relied on by the board to constitute a

violation of a specific statute or rule. The formal complaint

must be specific enough to:

(1) enable a person of common understanding to know what is

meant by the formal complaint; and

(2) give the person who is the subject of the formal complaint

notice of each particular act alleged to be a violation of a

specific statute or rule.

(g) The board shall adopt rules to promote discovery by each

party to a contested case.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.006. SERVICE OF NOTICE. (a) Service of process to

notify the respondent of a hearing about the charges against the

person must be served in accordance with Chapter 2001, Government

Code.

(b) If service described by Subsection (a) is impossible or

cannot be effected, the board shall publish once a week for two

successive weeks a notice of the hearing in a newspaper published

in the county of the last known place of practice in this state

of the person, if known.

state as evidenced by information in the board files, or if the

last county of practice is unknown, the notice shall be published

in a newspaper in Travis County.

(d) If publication of notice is used, the date of hearing may

not be earlier than the 10th day after the date of the last

publication.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.007. ADMINISTRATIVE HEARINGS; CONFIDENTIALITY ISSUES.

(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 determine the

charges on the merits.

(a-1) The board may change a finding of fact or conclusion of

law or vacate or modify an order of the administrative law judge

only if the board makes a determination required by Section

2001.058(e), Government Code.

(b) Notwithstanding this subtitle or other law, the board may

employ, retain, and compensate:

(1) attorneys, consultants, and other professionals as necessary

and appropriate to serve as board consultants or special counsel

to prosecute complaints filed with the board on behalf of the

hearings division and investigating division; and

(2) court reporters and other staff necessary to prepare for or

represent the board in the hearings authorized by this section.

investigation report, and other investigative information in the

possession of or received or gathered by the board or its

employees or agents relating to a license holder, an application

for license, or a criminal investigation or proceeding is

privileged and confidential and is not subject to discovery,

subpoena, or other means of legal compulsion for release to

anyone other than the board or its employees or agents involved

in discipline of a license holder. For purposes of this

subsection, investigative information includes information

relating to the identity of, and a report made by, a physician

performing or supervising compliance monitoring for the board.

(d) Not later than the 30th day after the date of receipt of a

written request from a license holder who is the subject of a

formal complaint initiated and filed under Section 164.005 or

from the license holder's counsel of record, and subject to any

other privilege or restriction set forth by rule, statute, or

legal precedent, and unless good cause is shown for delay, the

board shall provide the license holder with access to all

information in its possession that the board intends to offer

into evidence in presenting its case in chief at the contested

hearing on the complaint. The board is not required to provide:

(1) a board investigative report or memorandum;

(2) the identity of a nontestifying complainant; or

(3) attorney-client communications, attorney work product, or

other materials covered by a privilege recognized by the Texas

Rules of Civil Procedure or the Texas Rules of Evidence.

(e) Furnishing information under Subsection (d) does not

constitute a waiver of privilege or confidentiality under this

subtitle or other applicable law.

(f) Investigative information in the possession of the board or

an employee or agent relating to discipline of a license holder

may be disclosed to:

(1) the appropriate licensing authority of:

(A) another state; or

(B) a territory or country in which the license holder is

licensed or has applied for a license; or

(2) a medical peer review committee reviewing an application for

privileges or the qualifications of the license holder with

respect to retaining privileges.

(g) If investigative information in the possession of the board

or its employees or agents indicates that a crime may have been

committed, the board shall report the information to the

appropriate law enforcement agency.

(h) The board shall cooperate with and assist a law enforcement

agency conducting a criminal investigation of a license holder by

providing information that is relevant to the criminal

investigation to the investigating agency. Information disclosed

by the board to an investigative agency remains confidential and

may not be disclosed by the investigating agency except as

necessary to further the investigation.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2001, 77th Leg., ch. 1201, Sec. 2, eff. June 15,

2001.

Amended by:

Acts 2005, 79th Leg., Ch.

269, Sec. 1.40, eff. September 1, 2005.

Sec. 164.0071. HEARINGS ON CERTAIN COMPLAINTS. (a) In a formal

hearing described by Section 164.007 in which the sole basis for

disciplinary action is the basis described by Section

164.051(a)(7), the board shall provide evidence from the board's

investigation that shows the basis for the board's findings

required by that subdivision.

(b) In any formal hearing described by Section 164.007,

information obtained as a result of peer review may not be used

as evidence except as the basis for the opinion of an expert

witness called by the board. When admitted into evidence, this

information shall be admitted under seal to protect the

confidentiality of the documents. In the event that a decision

of the board or the State Office of Administrative Hearings is

appealed to a district court or other court, the confidentiality

protections relating to the medical peer review committee

documents shall continue.

subpoena and may not be compelled to provide evidence in a formal

hearing.

Added by Acts 2005, 79th Leg., Ch.

269, Sec. 1.41, eff. September 1, 2005.

Sec. 164.008. RIGHT TO COUNSEL. In a hearing involving a

disciplinary action under this subtitle, the respondent is

entitled to appear personally, by counsel, or both.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.009. JUDICIAL REVIEW. A person whose license to

practice medicine has been revoked or who is subject to other

disciplinary action by the board may appeal to a Travis County

district court not later than the 30th day after the date the

board decision is final.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.010. MONITORING OF LICENSE HOLDER. (a) The board by

rule shall develop a system to monitor compliance with the

requirements of this subtitle of license holders who are the

subject of disciplinary action.

(b) Rules adopted under this section must include procedures to:

(1) monitor for compliance a license holder ordered by the board

to perform certain acts; and

(2) identify and monitor license holders who are the subject of

disciplinary action and who present a continuing threat to the

public welfare through the practice of medicine.

(1) a violation of a disciplinary order by a license holder

described by Subsection (a); or

(2) a complaint filed against a license holder described by

Subsection (a).

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2003, 78th Leg., ch. 202, Sec. 29, eff. June 10,

2003.

Sec. 164.011. LICENSE STATUS PENDING APPEAL. (a) The board's

decision on a disciplinary matter may not be enjoined or stayed

except on application to the appropriate court after notice to

the board.

(b) A person may not practice medicine or deliver health care

services in violation of a disciplinary order or action of the

board while an appeal is pending unless the order or action is

stayed by the appropriate court.

holder's continued practice presents a danger to the public. A

stay or injunction may not be granted for a term that exceeds 120

days.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2003, 78th Leg., ch. 202, Sec. 30, eff. June 10,

2003.

SUBCHAPTER B. LICENSE DENIAL AND DISCIPLINARY ACTIONS

Sec. 164.051. GROUNDS FOR DENIAL OR DISCIPLINARY ACTION. (a)

The board may refuse to admit a person to its examination or

refuse to issue a license to practice medicine and may take

disciplinary action against a person if the person:

(1) commits an act prohibited under Section 164.052;

(2) is convicted of, or is placed on deferred adjudication

community supervision or deferred disposition for:

(A) a felony; or

(B) a misdemeanor involving moral turpitude;

(3) commits or attempts to commit a direct or indirect violation

of a rule adopted under this subtitle, either as a principal,

accessory, or accomplice;

(4) is unable to practice medicine with reasonable skill and

safety to patients because of:

(A) illness;

(B) drunkenness;

substance; or

(D) a mental or physical condition;

(5) is found by a court judgment to be of unsound mind;

(6) fails to practice medicine in an acceptable professional

manner consistent with public health and welfare;

(7) is removed, suspended, or is subject to disciplinary action

taken by the person's peers in a local, regional, state, or

national professional medical association or society, or is

disciplined by a licensed hospital or medical staff of a

hospital, including removal, suspension, limitation of hospital

privileges, or other disciplinary action, if the board finds that

the action:

(A) was based on unprofessional conduct or professional

incompetence that was likely to harm the public; and

(B) was appropriate and reasonably supported by evidence

submitted to the board;

(8) is subject to repeated or recurring meritorious health care

liability claims that in the board's opinion evidence

professional incompetence likely to injure the public; or

(9) except as provided by Subsection (d), holds a license to

practice medicine subject to disciplinary action by another

state, or subject to disciplinary action by the uniformed

services of the United States, based on acts by the person that

are prohibited under Section 164.052 or are similar to acts

described by this subsection.

(b) Action taken by a professional medical association, society,

or hospital medical staff under Subsection (a)(7) does not

constitute state action.

action described by Subsection (a)(9) or (d) is conclusive

evidence of that action.

(d) The board shall revoke a license issued under this subtitle

if the license holder held a license to practice medicine in

another state that has been revoked by the licensing authority in

that state.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2003, 78th Leg., ch. 202, Sec. 31, eff. June 10,

2003.

Sec. 164.052. PROHIBITED PRACTICES BY PHYSICIAN OR LICENSE

APPLICANT. (a) A physician or an applicant for a license to

practice medicine commits a prohibited practice if that person:

(1) submits to the board a false or misleading statement,

document, or certificate in an application for a license;

(2) presents to the board a license, certificate, or diploma

that was illegally or fraudulently obtained;

(3) commits fraud or deception in taking or passing an

examination;

(4) uses alcohol or drugs in an intemperate manner that, in the

board's opinion, could endanger a patient's life;

(5) commits unprofessional or dishonorable conduct that is

likely to deceive or defraud the public, as provided by Section

164.053, or injure the public;

(6) uses an advertising statement that is false, misleading, or

deceptive;

(7) advertises professional superiority or the performance of

professional service in a superior manner if that advertising is

not readily subject to verification;

(8) purchases, sells, barters, or uses, or offers to purchase,

sell, barter, or use, a medical degree, license, certificate, or

diploma, or a transcript of a license, certificate, or diploma in

or incident to an application to the board for a license to

practice medicine;

(9) alters, with fraudulent intent, a medical license,

certificate, or diploma, or a transcript of a medical license,

certificate, or diploma;

(10) uses a medical license, certificate, or diploma, or a

transcript of a medical license, certificate, or diploma that has

been:

(A) fraudulently purchased or issued;

(B) counterfeited; or

(11) impersonates or acts as proxy for another person in an

examination required by this subtitle for a medical license;

(12) engages in conduct that subverts or attempts to subvert an

examination process required by this subtitle for a medical

license;

(13) impersonates a physician or permits another to use the

person's license or certificate to practice medicine in this

state;

(14) directly or indirectly employs a person whose license to

practice medicine has been suspended, canceled, or revoked;

(15) associates in the practice of medicine with a person:

(A) whose license to practice medicine has been suspended,

canceled, or revoked; or

(B) who has been convicted of the unlawful practice of medicine

in this state or elsewhere;

(16) performs or procures a criminal abortion, aids or abets in

the procuring of a criminal abortion, attempts to perform or

procure a criminal abortion, or attempts to aid or abet the

performance or procurement of a criminal abortion;

(17) directly or indirectly aids or abets the practice of

medicine by a person, partnership, association, or corporation

that is not licensed to practice medicine by the board;

(18) performs an abortion on a woman who is pregnant with a

viable unborn child during the third trimester of the pregnancy

unless:

(A) the abortion is necessary to prevent the death of the woman;

(B) the viable unborn child has a severe, irreversible brain

impairment; or

suffering imminent severe, irreversible brain damage or imminent

severe, irreversible paralysis; or

(19) performs an abortion on an unemancipated minor without the

written consent of the child's parent, managing conservator, or

legal guardian or without a court order, as provided by Section

33.003 or 33.004, Family Code, authorizing the minor to consent

to the abortion, unless the physician concludes that on the basis

of the physician's good faith clinical judgment, a condition

exists that complicates the medical condition of the pregnant

minor and necessitates the immediate abortion of her pregnancy to

avert her death or to avoid a serious risk of substantial

impairment of a major bodily function and that there is

insufficient time to obtain the consent of the child's parent,

managing conservator, or legal guardian.

(b) For purposes of Subsection (a)(12), conduct that subverts or

attempts to subvert the medical licensing examination process

includes, as prescribed by board rules, conduct that violates:

(1) the security of the examination materials;

(2) the standard of test administration; or

(3) the accreditation process.

obtain the consent required for an abortion to be performed on an

unemancipated minor under Subsection (a). The form executed to

obtain consent or any other required documentation must be

retained by the physician until the later of the fifth

anniversary of the date of the minor's majority or the seventh

anniversary of the date the physician received or created the

documentation for the record.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

269, Sec. 1.42, eff. September 1, 2005.

Sec. 164.053. UNPROFESSIONAL OR DISHONORABLE CONDUCT. (a) For

purposes of Section 164.052(a)(5), unprofessional or dishonorable

conduct likely to deceive or defraud the public includes conduct

in which a physician:

(1) commits an act that violates any state or federal law if the

act is connected with the physician's practice of medicine;

(2) fails to keep complete and accurate records of purchases and

disposals of:

(A) drugs listed in Chapter 481, Health and Safety Code; or

(B) controlled substances scheduled in the Comprehensive Drug

Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801

et seq.);

(3) writes prescriptions for or dispenses to a person who:

(A) is known to be an abuser of narcotic drugs, controlled

substances, or dangerous drugs; or

(B) the physician should have known was an abuser of narcotic

drugs, controlled substances, or dangerous drugs;

(4) writes false or fictitious prescriptions for:

(A) dangerous drugs as defined by Chapter 483, Health and Safety

Code; or

(B) controlled substances scheduled in Chapter 481, Health and

Safety Code, or the Comprehensive Drug Abuse Prevention and

Control Act of 1970 (21 U.S.C. Section 801 et seq.);

(5) prescribes or administers a drug or treatment that is

nontherapeutic in nature or nontherapeutic in the manner the drug

or treatment is administered or prescribed;

(6) prescribes, administers, or dispenses in a manner

inconsistent with public health and welfare:

(A) dangerous drugs as defined by Chapter 483, Health and Safety

Code; or

(B) controlled substances scheduled in Chapter 481, Health and

Safety Code, or the Comprehensive Drug Abuse Prevention and

Control Act of 1970 (21 U.S.C. Section 801 et seq.);

(7) violates Section 311.0025, Health and Safety Code;

(8) fails to supervise adequately the activities of those acting

under the supervision of the physician; or

(9) delegates professional medical responsibility or acts to a

person if the delegating physician knows or has reason to know

that the person is not qualified by training, experience, or

licensure to perform the responsibility or acts.

(b) A complaint, indictment, or conviction of a violation of law

is not necessary for the enforcement of Subsection (a)(1). Proof

of the commission of the act while in the practice of medicine or

under the guise of the practice of medicine is sufficient for the

board's action.

is treating for:

(1) the person's use of narcotics after the physician notifies

the board in writing of the name and address of the person being

treated; or

(2) intractable pain under the Intractable Pain Treatment Act

(Article 4495c, Revised Statutes).

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.034(a), eff.

Sept. 1, 2001; Acts 2003, 78th Leg., ch. 202, Sec. 32, eff. June

10, 2003.

Sec. 164.054. ADDITIONAL REQUIREMENTS REGARDING DRUG RECORDS.

(a) Each physician shall keep a record of the physician's

purchase and disposal of drugs and controlled substances

described by Section 164.053(a)(2) that includes:

(1) the date of purchase and the date of the sale or disposal of

the drugs and controlled substances by the physician;

(2) the name and address of the person receiving the drugs or

controlled substances; and

(3) the reason for the disposing or dispensing of the drugs or

controlled substances to the person.

(b) Failure to keep the records required by this section for a

reasonable time constitutes grounds for revoking, canceling,

suspending, or placing on probation the physician's license.

physician's place of practice during reasonable business hours

to:

(1) verify the accuracy of the records; and

(2) perform an inventory of the prescription drugs on hand.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.055. PROHIBITED ACTS REGARDING ABORTION. (a) The

board may take an appropriate disciplinary action against a

physician who violates Section 170.002, Health and Safety Code.

The board may refuse to admit to examination or refuse to issue a

license or renewal license to a person who violates that section.

(b) The sanctions provided by Subsection (a) are in addition to

any other grounds for refusal to admit persons to examination

under this subtitle or to issue a license or renew a license to

practice medicine under this subtitle. The criminal penalties

provided by Section 165.152 do not apply to a violation of

Section 170.002, Health and Safety Code.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.056. PHYSICAL OR MENTAL EXAMINATION; HEARING. (a) In

enforcing Section 164.051(a)(4), the board, on probable cause,

shall request the affected physician or applicant to submit to a

mental or physical examination by physicians designated by the

board. The board shall adopt guidelines, in conjunction with

persons interested in or affected by this section, to enable the

board to evaluate circumstances in which a physician or applicant

may be required to submit to an examination for mental or

physical health conditions, alcohol and substance abuse, or

professional behavior problems.

(b) If the affected physician refuses to submit to the

examination, the board shall issue an order requiring the

physician to show cause why the physician should not be required

to submit to the examination and shall schedule a hearing on the

order not later than the 30th day after the date on which notice

is served on the physician. The physician shall be notified by

either personal service or certified mail with return receipt

requested.

are entitled to present testimony and other evidence showing that

the physician should not be required to submit to the

examination. After a hearing, the board shall issue an order

either requiring the physician to submit to the examination or

withdrawing the request for examination.

(d) The board shall refer a physician or applicant with a

physical or mental health condition to the most appropriate

medical specialist for evaluation. The board may not require a

physician or applicant to submit to an examination by a physician

having a specialty specified by the board unless medically

indicated. The board may not require a physician or applicant to

submit to an examination to be conducted an unreasonable distance

from the person's home or place of business unless the physician

or applicant resides and works in an area in which there are a

limited number of physicians able to perform an appropriate

examination.

(e) The guidelines adopted under this section do not impair or

remove the board's power to make an independent licensing

decision.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

269, Sec. 1.43, eff. September 1, 2005.

Sec. 164.057. REQUIRED SUSPENSION OR REVOCATION OF LICENSE FOR

CERTAIN OFFENSES. (a) The board shall suspend a physician's

license on proof that the physician has been:

(1) initially convicted of:

(A) a felony;

(B) a misdemeanor under Chapter 22, Penal Code, other than a

misdemeanor punishable by fine only;

to register as a sex offender under Chapter 62, Code of Criminal

Procedure;

(D) a misdemeanor under Section 25.07, Penal Code; or

(E) a misdemeanor under Section 25.071, Penal Code; or

(2) subject to an initial finding by the trier of fact of guilt

of a felony under:

(A) Chapter 481 or 483, Health and Safety Code;

(B) Section 485.033, Health and Safety Code; or

1970 (21 U.S.C. Section 801 et seq.).

(b) On final conviction for an offense described by Subsection

(a), the board shall revoke the physician's license.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2003, 78th Leg., ch. 202, Sec. 33, eff. June 10,

2003.

Sec. 164.058. REQUIRED SUSPENSION OF LICENSE OF INCARCERATED

PHYSICIAN. Regardless of the offense, the board shall suspend

the license of a physician serving a prison term in a state or

federal penitentiary during the term of the incarceration.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.059. TEMPORARY SUSPENSION OR RESTRICTION OF LICENSE.

(a) The president of the board shall appoint a three-member

disciplinary panel consisting of board members to determine

whether a person's license to practice medicine should be

temporarily suspended or restricted.

(b) If the disciplinary panel determines from the evidence

presented to the panel that a person licensed to practice

medicine would, by the person's continuation in practice,

constitute a continuing threat to the public welfare, the

disciplinary panel shall temporarily suspend or restrict the

license of that person.

panel under this section without notice or hearing if:

(1) the board immediately provides notice of the suspension or

restriction to the license holder; and

(2) a hearing on the temporary suspension or restriction before

a disciplinary panel of the board is scheduled for the earliest

possible date after 10 days' notice of hearing.

(d) Notwithstanding Chapter 551, Government Code, the

disciplinary panel may hold a meeting by telephone conference

call if immediate action is required and convening of the panel

at one location is inconvenient for any member of the

disciplinary panel.

(e) After the hearing before the disciplinary panel described by

Subsection (c), if the disciplinary panel affirms the temporary

suspension or restriction of the license holder's license, the

board shall schedule an informal compliance meeting that meets

the requirements of Section 2001.054(c), Government Code, and

Section 164.004 of this code to be held as soon as practicable,

unless the license holder waives the informal meeting or an

informal meeting has already been held with regard to the issues

that are the basis for the temporary suspension or restriction.

(f) If the license holder is unable to show compliance at the

informal meeting described by Subsection (e) regarding the issues

that are the basis for the temporary suspension or restriction, a

board representative shall file a formal complaint under Section

164.005 as soon as practicable.

(g) If, after the hearing described by Subsection (c), the

disciplinary panel does not temporarily suspend or restrict the

license holder's license, the facts that were the basis for the

temporary suspension or restriction may not be the sole basis of

another proceeding to temporarily suspend or restrict the license

holder's license. The board may use those same facts in a

subsequent investigation to obtain new information that may be

the basis for the temporary suspension or restriction of the

license holder's license. For purposes of this subsection, facts

that are the basis for the temporary suspension or restriction of

a license holder's license include facts presented to the

disciplinary panel and facts presented by the board or a

representative of the board at the time evidence was presented to

the disciplinary panel.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2003, 78th Leg., ch. 202, Sec. 34, eff. June 10,

2003.

Sec. 164.060. REPORT OF BOARD ACTIONS. (a) Not later than the

first working day after the date a board order is issued taking

disciplinary action against a physician, the board shall report

the action to the appropriate health care facilities and

hospitals, if known by the board.

(b) Not later than the 30th day after the date the board takes

disciplinary action against a physician, the board shall report

that action, in writing, to:

(1) the appropriate health care facilities and hospitals, if not

previously notified in writing;

(2) professional societies of physicians in this state;

(3) the entity responsible for the administration of Medicare

and Medicaid in this state;

(4) the United States Secretary of Health and Human Services or

the secretary's designee; and

(5) the complainant.

physician, discovers an act or omission that may constitute a

felony, a misdemeanor involving moral turpitude, a violation of

state or federal narcotics or controlled substance laws, an

offense involving fraud or abuse under the Medicare or Medicaid

programs, or a violation of the workers' compensation laws under

Subtitle A, Title 5, Labor Code, the board shall immediately

report that act or omission to the appropriate prosecuting and

regulatory authorities.

(d) Notwithstanding Subsection (c), the board may exercise

discretion in the case of an impaired physician who is actively

participating in board-approved or sanctioned care, counseling,

or treatment.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2003, 78th Leg., ch. 202, Sec. 35, eff. June 10,

2003.

Sec. 164.061. SURRENDER OF LICENSE. (a) The board may accept

the voluntary surrender of a license.

(b) A surrendered license may not be returned unless the board

determines, under board rules, that the license holder is

competent to resume practice.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

SUBCHAPTER C. PROBATION OF LICENSE

Sec. 164.101. PROBATION. (a) The board on majority vote may

probate an order canceling, revoking, or suspending a license or

imposing any other method of discipline if the probationer

conforms to each order, condition, and rule the board establishes

as a term of probation.

(b) At the time probation is granted the board shall establish

the term of the probationary period.

the license holder to:

(1) report regularly to the board on matters that are the basis

of the probation;

(2) limit practice to the areas prescribed by the board; or

(3) continue or review continuing professional education until

the license holder attains a degree of skill satisfactory to the

board in the areas that are the basis of the probation.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.102. PERSONS INELIGIBLE FOR PROBATION. (a) The board

may not grant probation to a physician who constitutes, through

the practice of medicine, a continuing threat to the public

welfare.

(b) Except on an express determination, based on substantial

evidence, that granting probation is in the best interests of the

public and of the person whose license has been suspended,

revoked, or canceled, the board may not grant probation to a

person whose license has been canceled, revoked, or suspended

because of a felony conviction under:

(1) Chapter 481 or 483, Health and Safety Code;

(2) Section 485.033, Health and Safety Code; or

(3) the Comprehensive Drug Abuse Prevention and Control Act of

1970 (21 U.S.C. Section 801 et seq.).

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.103. RESCISSION OF PROBATION. (a) At any time during

a probation term, on a showing of adequate grounds, the board may

hold a hearing and, on proof of a violation of the probation

order, may:

(1) rescind the probation and enforce the board's original

order; and

(2) impose any disciplinary action permitted under Section

164.001 in addition to or instead of enforcing the original

order.

(b) The board shall revoke or suspend a probationer's license if

the board determines that the probationer constitutes, through

the practice of medicine, a continuing threat to the public

welfare.

requirements established under this chapter for other charges.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

SUBCHAPTER D. LICENSE REINSTATEMENT

Sec. 164.151. APPLICATION FOR LICENSE REINSTATEMENT. (a) On

application, the board may reissue a license to practice medicine

to a person whose license has been canceled, revoked, or

suspended.

(b) The application must be:

(1) accompanied by the fees set by the board; and

(2) made in the manner and form and under the conditions

required by the board.

subchapter, to be eligible for reinstatement or reissuance of a

license an applicant must prove that the reinstatement or

reissuance is in the best interests of:

(1) the public; and

(2) the person whose license has been canceled, revoked, or

suspended.

(d) A decision by the board to deny an application to reinstate

or reissue a license is subject to judicial review in the manner

provided by Section 164.009.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.152. APPLICATION PERIOD. (a) A person may not apply

for reinstatement of a license that was revoked before the first

anniversary of the date on which the revocation was issued or

became final.

(b) If the board denies the application for reinstatement, the

applicant may not reapply more frequently than annually.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.153. CERTAIN PERSONS INELIGIBLE FOR REINSTATEMENT.

Except on an express determination based on substantial evidence

contained in an investigative report indicating that

reinstatement or reissue of the license is in the best interests

of the public and of the person whose license has been canceled,

revoked, or suspended, the board may not reinstate or reissue a

license to a person whose license has been canceled, revoked, or

suspended because of a felony conviction under:

(1) Chapter 481 or 483, Health and Safety Code;

(2) Section 485.033, Health and Safety Code; or

(3) the Comprehensive Drug Abuse Prevention and Control Act of

1970 (21 U.S.C. Section 801 et seq.).

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 164.154. EFFECT OF LICENSE REINSTATEMENT ON CERTAIN

PROSECUTIONS OR PENALTIES. If a physician has had charges filed

against the physician during a period in which the physician's

license was not in force or was suspended, revoked, or canceled,

or if penalties have been incurred by the physician during that

period, the reinstatement of the physician's license does not

abate the prosecution or penalties.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

SUBCHAPTER E. OTHER ACTIONS

Sec. 164.201. REVIEW BY BOARD IF THREE OR MORE MALPRACTICE

CLAIMS. The board shall review the medical competency of a

physician against whom three or more expert reports under Section

74.351, Civil Practice and Remedies Code, have been filed in

three separate lawsuits within a five-year period in the same

manner as if a complaint against the physician had been made to

the board under Section 154.051.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2003, 78th Leg., ch. 202, Sec. 36, eff. June 10,

2003.

Amended by:

Acts 2005, 79th Leg., Ch.

141, Sec. 1, eff. September 1, 2005.

Sec. 164.206. REFUND. (a) Subject to Subsection (b), the board

may order a license holder to pay a refund to a consumer as

provided in an agreement resulting from an informal settlement

conference instead of or in addition to imposing an

administrative penalty under Chapter 165.

(b) The amount of a refund ordered as provided in an agreement

resulting from an informal settlement conference may not exceed

the amount the consumer paid to the license holder for a service

regulated by this subtitle. The board may not require payment of

other damages or estimate harm in a refund order.

Added by Acts 2005, 79th Leg., Ch.

269, Sec. 1.46, eff. September 1, 2005.

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Texas Codes and Statutes

CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES