(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 personТs application for a license or other authorization to practice medicine;

(2) administer a public reprimand;

(3) suspend, limit, or restrict the personТs 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 personТs 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 physicianТs 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.а 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.

The Texas State Board of Medical Examiners shall adopt rules required by Subsection (f), Section 164.001, Occupations Code, as added by this Act, not later than January 1, 2004.

(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 personТs license, than the disciplinary action that would be taken for a single violation; and

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

з164.002. 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.

з164.003. 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 180^th 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 30^th day before the date the meeting is held;

(3) the complainant and the license holder be provided an opportunity to be heard;

(4) the boardТs legal counsel or a representative of the attorney general be present to advise the board or the boardТs staff; and

(5) a member of the boardТs staff at the meeting present to the boardТs representative the facts the staff reasonably believes it could prove by competent evidence or qualified witnesses at a hearing.

(1) reply to the staffТs 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).

з164.0035. 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.а The board shall adopt rules that establish criteria for determining that a complaint is baseless or unfounded.

з164.004. 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 holderТs 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 boardТs staff and the boardТs 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.

з164.005. Initiation of Charges; Formal Complaint

(a) In this section, Уformal complaintФ 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 boardТs 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 boardТs 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 respondentТs 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.

з164.006. 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 10^th day after the date of the last publication.

з164.007. 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 judgeТs 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 30^th 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 holderТs 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.

з164.008. Right to Counsel

In a hearing involving a disciplinary action under this subtitle, the respondent is entitled to appear personally, by counsel, or both.

з164.009. 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 30^th day after the date the board decision is final.

з164.010. 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).

з164.011. License Status Pending Appeal

(a) The boardТs 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 holderТs continued practice presents a danger to the public. A stay or injunction may not be granted for a term that exceeds 120 days.

Sections 164.012 to 164.050.Reserved for expansion.

THIS DOCUMENT IS CURRENT THROUGH ALL 2003 REG.SESSION LEGISLATION

OCCUPATIONS CODE

TITLE 3. HEALTH PROFESSIONS

SUBTITLE B. PHYSICIANS

CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES

SUBCHAPTER B. LICENSE DENIAL AND DISCIPLINARY ACTIONS

з164.051. 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;

(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 personТs 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 boardТs 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.

The change in law made by this Act by the amendment of Section 164.051, Occupations Code, applies to a physician whose license to practice medicine in another state was revoked on, before, or after the effective date of this Act. (September 1, 2003)

з164.052. 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 boardТs opinion, could endanger a patientТs 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 personТs 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.

з164.053. 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 physicianТs 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 boardТs action.

(1) the personТs 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).

з164.054. Additional Requirements Regarding Drug Records

(a) Each physician shall keep a record of the physicianТs 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 physicianТs license.

(c) The board or its representative may enter and inspect a physicianТs 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.

з164.055. 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.

з164.056. 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 30^th 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 physicianТs 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.

з164.057. Required Suspension or Revocation of License for Certain Offenses

(a) The board shall suspend a physicianТs 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

(b) On final conviction for an offense described by Subsection (a), the board shall revoke the physicianТs license.

The change in law made by this Act by the amendment of Section 164.057, Occupations Code, applies only to a person who is initially convicted of an offense on or after the effective date of this Act (September 1, 2003).а A person initially convicted of an offense before that date is governed by the law in effect on the date the conviction occurred, and the former law is continued in effect for that purpose.

з164.058. 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.

з164.059. 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 personТs 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 personТs continuation in practice, constitute a continuing threat to the public welfare, the disciplinary panel shall temporarily suspend or restrict the license of that person.

(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 daysТ 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 holderТs 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 holderТs 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 holderТs 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 holderТs license. For purposes of this subsection, facts that are the basis for the temporary suspension or restriction of a license holderТs 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.

з164.060. 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 30^th 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 secretaryТs 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 workersТ 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.

з164.061. 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.

Sections 164.062 to 164.100.Reserved for expansion.

THIS DOCUMENT IS CURRENT THROUGH ALL 2003 REG.SESSION LEGISLATION

OCCUPATIONS CODE

TITLE 3. HEALTH PROFESSIONS

SUBTITLE B. PHYSICIANS

CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES

SUBCHAPTER C. PROBATION OF LICENSE

з164.101. 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.

(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.

з164.102. 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.).

з164.103. 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 boardТs 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 probationerТs license if the board determines that the probationer constitutes, through the practice of medicine, a continuing threat to the public welfare.

Sections 164.104 to 164.150.Reserved for expansion.

THIS DOCUMENT IS CURRENT THROUGH ALL 2003 REG.SESSION LEGISLATION

OCCUPATIONS CODE

TITLE 3. HEALTH PROFESSIONS

SUBTITLE B. PHYSICIANS

CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES

SUBCHAPTER D. LICENSE REINSTATEMENT

з164.151. 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.

з164.152. 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.

з164.153. 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.).

з164.154. 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 physicianТs 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 physicianТs license does not abate the prosecution or penalties.

Sections 164.155 to 164.200.Reserved for expansion.

THIS DOCUMENT IS CURRENT THROUGH ALL 2003 REG.SESSION LEGISLATION

OCCUPATIONS CODE

TITLE 3. HEALTH PROFESSIONS

SUBTITLE B. PHYSICIANS

CHAPTER 164. DISCIPLINARY ACTIONS AND PROCEDURES

SUBCHAPTER E. OTHER ACTIONS

з164.201. 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, VernonТs 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.

з164.202. 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 reporterТs 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.

з164.203. 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 personТs 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.

з164.204. 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.