, JOHN CORNYN

\

September 9, 1999

The Honorable Pete P. Gallego Chair, Committee on General Investigating Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 Opinion No. JC-0108

Re: Whether the governing body of ahospital district may meet in closed session when acting as a medical peer review committee under the Medical Practice Act and related questions (RQ-0005) Dear Representative’Gallego:

You ask whether the governing body of a hospital district acts as a medical peer review committee as defined in the Medical Practice Act, title 3, subtitle B, chapter 151 of the Texas Occupations Code’ (“the Act”), when it decides whether a physician should receive hospital privileges, evaluates the competence of aphysician, or evaluates the quality of medical and health
care services atthe district’s hospital. Ifthe governing body of ahospital district does have authority to act as apeer review committee, you ask whether itmay, without violating the requirements ofthe Open Meetings Act, hold a closed session when exercising that authority. The governing body of a hospital district acts as a medical peer review committee when it decides whether a physician should receive hospital privileges, evaluates the competence of aphysician, or evaluates the quality ofmedical and health care services atthe district’s hospital, to the extent that the evaluation involves discussions or records that specifically identify an individual patient or physician. A hospital district’s proceedings as amedical peer review committee are exempt from the requirements ofthe Open Meetings Act.

Your inquiry is limited to the peer review of physicians, and we will similarly limit our answer. Because your questions are based on statutes that were amended in the 76th session of the legislature, we will modify the questions where necessary to take these amendments into account. You first ask whether the governing body of a hospital district acts as a medical peer review committee under the Act when itdecides whether aphysician should be privileged to admit and treat patients atthe hospital, evaluates the competence of aphysician, or evaluates the quality of medical and health care services at the district’s hospital.

‘The Medical Practice Act was formerly article 4495b of the Texas Revised Civil Statutes. Tbc 76th Legislature repealed andreenacted thislawastitle3, subtitleB oftbeOccupations Code. Act ofMay 13, 1999,76tb Leg.,R.S,ch. 388.5 1, $5 151.001-,056, 1999Tex. Sess.Law Sew. 1431, 1461-66(Vemon). (EffectiveSeptember 1, 1999.)The Honorable Pete P. Gallego - Page 2 (JC-0108)

“Medical peer review” or “professional review action” is “the evaluation of medical and health care services, including evaluation of the qualifications of professional health care practitioners and of patient care provided by those practitioners.” Act ofMay 13, 1999,76th Leg., R.S., ch. 388, § 1, sec. 151.002(7), 1999 Tex. Sess. Law Serv. 1431,1463 (Vernon) (to be codified at TEX. Oct. CODEANN. $ 151.002(7)) [h ereinafter “Act of May 13, 1999”]. A “[mledical peer review committee,” or “professional review body” within the Medical Practice Act includes the governing board of ahealth care entity and a committee or the medical staff of ahealth care entity with authority to evaluate the quality of medical and health care services or the competence of physicians. Id. 5 151.002(g). The definition of a“health care entity” expressly includes ahospital district. See id. 5 151.002(5), as amended by Act ofMay 21, 1999,76th Leg., R.S., H.B. 2171, 3 1 (effective June 19, 1999)? The governing body of a hospital district, as the governing board of
ahealth care entity, falls within the definition of a“medical peer review committee” or “professional review committee” in the Act. See Act ofMay 13,1999, supra 5 151.002(g) (to be codified at TEX. OCC.CODEANN. 5 151.002(g)) (governing board of a health care entity is a medical peer review committee).
Moreover, “medical peer review committee” is defined by the Medical Practice Act as follows:
“Medical peer review committee” or “professional review body”

means acommittee of ahealth-care entity, [and] the governing board of a health-care entity The term “medical peer review committee” or “professional review body” includes the governing body of a public hospital owned or operated by a governmental entity, the governing body of a hospital authority

. and the governing body of ahospital district created under Article IX, Texas Constitution, but only:
(-4) in relation to the governing body’s evaluation of the competence of aphysician or the quality of medical and health care services provided by the public hospital, hospital authority, or hospital district; and (B) to the extent that the evaluation under Paragraph (A) involves discussions or records that specifically or necessarily identify an individual patient or physician.
Act ofMay 26, 1999,76th Leg., R.S., H.B. 747, 5 1(to be codified as an amendment to TEX.OCC. CODE ANN. 5 151.002(8)) (effective June 19, 1999).

2 ’lkerepeal ofastatuteby acode doesnotaffect anamendmentofthestatlltebythelegislaturethatenacted thecode. Theamendmentispreserved andgiveneffectaspartofthecodeprovisionthatrevisedthestatutesoamended. TEX.GOV’TCODEANN. 4311.031(c) (Vernon 1998).The Honorable Pete P. Gallego - Page 3 (JC-0108)

Thus, the governing body of ahospital district acts as a“medical peer review committee” or “professional review body” when itevaluates the competence ofaphysician, orevaluates the quality ofmedical and health care services atthe district’s hospital, but only to the extent that the evaluation identities a particular patient or physician. It also acts as a peer review committee in deciding whether or not to accord aphysician hospital privileges, because this decision necessarily involves evaluating the physician’s competence. See generally Memorial Hospital-The Woodlands v. McCown, 927 S.W.2d 1, 3-4 (Tex. 1996) (the initial decision as to whether a physician should receive hospital privileges is part of the peer review process).

You ask whether the governing body ofthe hospital district may meet in closed session when it acts as apeer review committee. As a general matter, the governing body of ahospital district is subject to the Open Meetings Act as“the governing board of a special district created by law.” TEX. GOV’T CODEANN. 5 551.001(3)(H) (Vemon 1994); see Fidelity and Deposit Co. v. Concerned Taxpayers, 829 S.W.2d 923,926-27 (Tex. App.-Austin 1992, no writ) (hospital district trustees were liable on official bonds for violations ofOpen Meetings Act); Tex. Att’y Gen. Op. No. H-238 (1974) at 2 (Harris County Hospital District is a special district created under authority of law). However, aproceeding of a medical peer review committee is expressly exempted from the Open Meetings Act. Section 161.032(a) of the Health and Safety Code, which makes the records and proceedings of a peer review committee confidential and exempt from discovery, see Brownwood Regional Hospital v. Eleventh Court ofAppeals, 927 S.W.2d 24 (Tex. 1996), was amended by the 76th legislative session to include the following language:

A proceeding of a medical peer review committee, as defined by Section 1.03, Medical Practice Act. ,or ameeting ofthe governing body of a public hospital, hospital district, or hospital authority at which the governing body receives records, information, or reports provided by amedical committee or medical peer review committee is not subject to Chapter 551, Government Code.
Act ofMay 21,1999,76th Leg., R.S., H.B. 2171,s 4 (to be codified as an amendment to Health & Safety Code $ 161.032(a)) (effective June 19, 1999).
The governing body of ahospital district is accordingly exempt from the Open Meetings Act when it acts as apeer review committee orwhen itreceives records, information, orreports provided by a medical committee or medical peer review committee. Section 161.032(a) of the Health and Safety Code does more than authorize a governmental body to conduct deliberations in executive session; it exempts the proceedings of amedical peer review committee from the Gpen Meetings Act in its entirety, including the notice provision. Thus, when the governing body of ahospital district meets as a peer review committee and does not conduct any other business subject to the Open Meetings Act, it isnot required topost notice ofthe subject matter. Section 161.032(a) ofthe Health and Safety Code also exempts apeer review proceeding from the Open Meetings Act requirement that a final action, decision, or vote may only be made in an open meeting. See TEX.GOV’TCODE ANN. 9 551.102 (Vernon 1994). When the hospital district board engages in a peer reviewThe Honorable Pete P. Gallego - Page 4 (X-0108)

proceeding within section 151.002(g) ofthe Texas Occupations Code, itmay conduct all discussion and take final action in a closed session.

You next ask whether the governing body of the hospital district is exempt from the Open Meetings Act as apeer review committee only when it is evaluating the competence, qualifications,
or actions of aphysician, but not when it is generally evaluating the quality of medical and health
care services for which it is responsible in a way that does not involve evaluating an identifiable physician. As we have already concluded, the governing body of a hospital district acts as a “medical peer review committee” or “professional review body” when it evaluates the competence of aphysician or evaluates the quality of medical and health care services at the district’s hospital, to the extent that the evaluation involves discussions or records that specifically or necessarily identify the individual patient or physician. Accordingly, the governing body acts as apeer review committee and is exempt from the Open Meetings Act when it evaluates the quality of medical and health care services only so long as the evaluation involves discussions or records that specifically
or necessarily identify the individual patient or physician.

Your last question ispremised on the assumption that ahospital district governing body may not hold a closed meeting to act as a peer review committee. You inquire about the legal consequences of such a conclusion, the potential criminal or civil liability that the hospital district governing body or its members might face if the governing body evaluates the competence of physicians in an open meeting or simply fails to meet to evaluate the competence of physicians practicing or applying to practice at the district’s hospital to avoid doing so in an open meeting. Because the governing body of a hospital district is exempt from the Open Meetings Act when it meets as apeer review committee and need not in those instances meet in an open meeting, we need not address your last question,The Honorable Pete P. Gallego - Page 5 (JC-0108)

SUMMARY

Pursuant to the Medical Practice Act, the governing body of
a hospital district acts as a medical peer review committee when it decides whether a physician should receive hospital privileges, evaluates the competence of a physician, or evaluates the quality of medical and health care services atthe district’s hospital, to the extent that the evaluation involves discussions or records that specifically identify an individual patient or physician. Section 161.032(a) ofthe Texas Health and Safety Code exempts a hospital district’s proceedings as a medical peer review committee from the requirements of the Open Meetings Act.
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# 4JbYJOkIN COkNYN Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General
CLARK KENT ERVJN Deputy Attorney General - General Counsel
ELIZABETH ROBINSON Chair, Opinion Committee
Susan L. Garrison Assistant Attorney General - Opinion Committee