,     JOHN     CORNYN
     \




                                                 September 9, 1999



The Honorable Pete P. Gallego                                    Opinion No. JC-0108
Chair, Committee on General Investigating
Texas House of Representatives                                   Re: Whether the governing body of a hospital
P.O. Box 2910                                                    district may meet in closed session when
Austin, Texas 78768-2910                                         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 a physician, or evaluates the quality of medical and health
care services at the district’s hospital. If the governing body of a hospital district does have authority
to act as a peer review committee, you ask whether it may, without violating the requirements of the
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 a physician, or evaluates the quality
ofmedical and health care services at the 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 a medical 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 it decides whether a physician should be privileged to admit and treat
    patients at the hospital, evaluates the competence of a physician, 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 and reenacted this law as title 3, subtitle B of tbe Occupations Code. Act of May 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 of May 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. CODE ANN. $ 151.002(7)) [hereinafter “Act of May 13, 1999”]. A “[mledical peer
review committee,” or “professional review body” within the Medical Practice Act includes the
governing board of a health care entity and a committee or the medical staff of a health care entity
with authority to evaluate the quality of medical and health care services or the competence of
physicians. Id. 5 15 1.002(g). The definition of a “health care entity” expressly includes a hospital
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
a health 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 15 1.002(g) (to be codified at TEX.
OCC. CODE ANN. 5 15 1.002(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 a committee of a health-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 a hospital district created under Article IX, Texas
                   Constitution, but only:

                           (-4)      in relation to the governing body’s evaluation of the
                   competence of a physician 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.
 CODEANN. 5 151.002(8)) (effective June 19, 1999).



           2’lke repeal of a statute by a code does not affect an amendment of the statllte by the legislature that enacted
 the code. The amendment is preserved and given effect as part of the code provision that revised the statute so amended.
 TEX. GOV’TCODEANN.
                 4 311.031(c)            (Vernon 1998).
The Honorable   Pete P. Gallego   - Page 3        (JC-0108)




          Thus, the governing body of a hospital district acts as a “medical peer review committee” or
“professional review body” when it evaluates the competence of a physician, or evaluates the quality
ofmedical and health care services at the 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 a physician 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 a peer review committee. As a general matter, the governing body of a hospital district is
subject to the Open Meetings Act as “the governing board of a special district created by law.” TEX.
GOV’T CODE ANN. 5 551.001(3)(H) (V emon 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,
a proceeding 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 of Appeals, 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 a meeting ofthe governing
                body of a public hospital, hospital district, or hospital authority at
                which the governing body receives records, information, or reports
                provided by a medical committee or medical peer review committee
                is not subject to Chapter 551, Government Code.

Act of May 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 a hospital district is accordingly exempt from the Open Meetings Act
 when it acts as a peer review committee or when it receives records, information, or reports 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 a hospital district
 meets as a peer review committee and does not conduct any other business subject to the Open
 Meetings Act, it is not required to post notice ofthe subject matter. Section 161.032(a) ofthe Health
 and Safety Code also exempts a peer 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’T CODE
 ANN. 9 551.102 (Vernon 1994). When the hospital district board engages in a peer review
The Honorable   Pete P. Gallego   - Page 4       (X-0108)




proceeding within section 15 1.002(g) of the Texas Occupations Code, it may 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 a peer review committee only when it is evaluating the competence, qualifications,
or actions of a physician, 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 a physician 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 a peer 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 is premised on the assumption that a hospital 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 a peer 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 at the 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) of the
               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.

                                                Y    UrsvelytN    )




                                           4JbY-JOkIN    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
