OCCUPATIONS CODE
CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES
SUBCHAPTER A. GENERAL PROVISIONS
§ 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.
(c) Notwithstanding Subsection (b), the board shall revoke,
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.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 202, § 26, eff. June 10, 2003.
§ 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.
(c) An agreed disposition is a disciplinary order for
purposes 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.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 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 complaint is filed with the board under
Section 154.051, 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) the board's legal counsel or a representative of
the attorney general be present to advise the board or the board's
staff; and
(5) a member of the board's staff at the meeting
present to the board's representative the facts the staff
reasonably believes it could prove by competent evidence or
qualified witnesses at a hearing.
(c) An affected physician is entitled to:
(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).
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 202, § 27, eff. June 10, 2003.
§ 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, § 28, eff. June 10, 2003.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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.
(c) A charge must be in the form of a written affidavit that:
(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, § 1, eff. Sept. 1, 1999.
§ 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.
(c) If the license holder is not currently practicing in
this 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, § 1, eff. Sept. 1, 1999.
§ 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.
(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.
(c) Each complaint, adverse report, investigation file,
other 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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 1201, § 2, eff. June 15, 2001.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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.
(c) The board shall immediately investigate:
(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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 202, § 29, eff. June 10, 2003.
§ 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.
(c) A stay or injunction may not be granted if the license
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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 202, § 30, eff. June 10, 2003.
SUBCHAPTER B. LICENSE DENIAL AND DISCIPLINARY ACTIONS
§ 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;
(C) excessive use of drugs, narcotics,
chemicals, or another 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.
(c) A certified copy of the record of another state that
takes 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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 202, § 31, eff. June 10, 2003.
§ 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
(C) materially altered;
(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; or
(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.
(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.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 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.
(c) Subsection (a)(3) does not apply to a person the
physician 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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 1420, § 14.034(a), eff. Sept. 1,
2001; Acts 2003, 78th Leg., ch. 202, § 32, eff. June 10, 2003.
§ 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.
(c) The board or its representative may enter and inspect a
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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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 to submit to a
mental or physical examination by physicians designated by the
board.
(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.
(c) At the hearing, the physician and the physician's
attorney 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.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 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;
(C) a misdemeanor on conviction of which a
defendant is required 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
(C) the Comprehensive Drug Abuse Prevention and
Control Act of 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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 202, § 33, eff. June 10, 2003.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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.
(c) A license may be suspended or restricted by a
disciplinary 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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 202, § 34, eff. June 10, 2003.
§ 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.
(c) If the board, during its review of a complaint against a
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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 202, § 35, eff. June 10, 2003.
§ 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, § 1, eff. Sept. 1, 1999.
SUBCHAPTER C. PROBATION OF LICENSE
§ 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.
(c) If a license suspension is probated, the board may
require 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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.
(c) A hearing to rescind probation is subject to the
requirements established under this chapter for other charges.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
SUBCHAPTER D. LICENSE REINSTATEMENT
§ 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.
(c) In addition to the other requirements imposed under this
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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
SUBCHAPTER E. OTHER ACTIONS
§ 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
13.01, Medical Liability and Insurance Improvement Act of Texas
(Article 4590i, Vernon's Texas Civil Statutes), 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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 202, § 36, eff. June 10, 2003.
§ 164.202. REHABILITATION ORDER. The board, through an
agreed order or after a contested proceeding, may impose a
nondisciplinary rehabilitation order on an applicant, as a
prerequisite for issuing a license, or on a license holder, based
on:
(1) intemperate use of drugs or alcohol directly
resulting from habituation or addiction caused by medical care or
treatment provided by a physician;
(2) self-reported intemperate use of drugs or alcohol
during the five years preceding the report that could adversely
affect the reporter's ability to practice medicine safely, if the
reporting individual has not previously been the subject of a
substance abuse-related order of the board;
(3) a judgment by a court that the applicant or license
holder is of unsound mind;
(4) a determination of impairment based on a mental or
physical examination offered to establish the impairment in an
evidentiary hearing before the board in which the applicant or
license holder was provided an opportunity to respond; or
(5) an admission by the applicant or license holder
indicating that the applicant or license holder suffers from a
potentially dangerous limitation or an inability to practice
medicine with reasonable skill and safety by reason of illness or as
a result of any physical or mental condition.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 164.203. EFFECT OF REHABILITATION ORDER. (a) A
rehabilitation order imposed under Section 164.202 is a
nondisciplinary private order. If entered by agreement, the order
is:
(1) an agreed disposition or settlement agreement for
purposes of civil litigation as provided under Section 164.002;
and
(2) exempt from Chapter 552, Government Code.
(b) A rehabilitation order imposed under Section 164.202
must contain findings of fact and conclusions of law. The order may
impose a revocation, cancellation, suspension, period of probation
or restriction, or any other term authorized by Section 164.001 or
agreed to by the board and the person subject to the order.
(c) A violation of a rehabilitation order may result in
disciplinary action under this subtitle or under the terms of the
agreed order. A violation of a rehabilitation order is grounds for
disciplinary action based on:
(1) unprofessional or dishonorable conduct; or
(2) any provision of this subtitle that applies to the
conduct that resulted in the violation.
(d) A violation of a rehabilitation order is grounds for
temporary suspension of the person's license under Section 164.059.
This section does not prevent or limit the authority of the board to
take action to temporarily suspend a license under that section.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 164.204. AUDIT OF REHABILITATION ORDER. (a) The
board shall maintain a rehabilitation order imposed under Section
164.202 in a confidential file. The file is subject to an
independent audit by the state auditor or a private auditor with
whom the board contracts to perform the audit to ensure that only
qualified license holders are subject to rehabilitation orders.
(b) An audit may be performed at any time at the direction of
the board. The board shall ensure that an audit is performed at
least once in each three-year period.
(c) The audit results are public information and shall be
reported in a manner that maintains the anonymity of each license
holder who is subject to a rehabilitation order.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
