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A BILL TO BE ENTITLED
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AN ACT
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relating to solicitation of patients and other prohibited marketing |
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practices and the establishment of the task force on patient |
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solicitation; increasing criminal penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle E, Title 2, Health and Safety Code, is |
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amended by adding Chapter 110 to read as follows: |
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CHAPTER 110. TASK FORCE ON PATIENT SOLICITATION |
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Sec. 110.001. DEFINITION. In this chapter, "task force" |
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means the task force on patient solicitation created under this |
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chapter. |
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Sec. 110.002. PURPOSE. The task force is established to |
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study and make recommendations on preventing conduct that violates |
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Chapter 164 of this code or Chapter 102, Occupations Code, and to |
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improve enforcement of those chapters. |
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Sec. 110.003. MEMBERSHIP. (a) The task force is composed of |
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eight members as follows: |
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(1) four members appointed by the executive |
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commissioner; and |
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(2) four members appointed by the attorney general. |
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(b) Each task force member must have expertise in the field |
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of health care or advertising. |
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(c) Task force members serve without compensation. |
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Sec. 110.004. ADMINISTRATIVE ATTACHMENT. The task force is |
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administratively attached to the commission. |
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Sec. 110.005. ACCESS TO INFORMATION; CONFIDENTIALITY OF |
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PROVIDED INFORMATION. The attorney general and the commission shall |
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provide the task force with information requested by the task force |
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to allow the task force to fulfil its duties. Information provided |
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under this section is confidential and is not subject to disclosure |
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under Chapter 552, Government Code. |
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Sec. 110.006. REPORT. Not later than December 1, of each |
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even-numbered year, the task force shall submit to the legislature |
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a report that includes: |
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(1) a summary of civil or criminal actions brought on |
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behalf of the state and administrative actions by state regulatory |
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agencies in the preceding biennium for violations of Chapter 164 of |
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this code or Chapter 102, Occupations Code; and |
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(2) legislative recommendations for preventing |
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conduct that violates Chapter 164 of this code or Chapter 102, |
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Occupations Code, and improving enforcement of those chapters. |
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SECTION 2. Section 164.002, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 164.002. LEGISLATIVE PURPOSE. The purpose of this |
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chapter is to safeguard the public against fraud, deceit, and |
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misleading marketing practices and to foster and encourage |
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competition and fair dealing by mental health facilities and |
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chemical dependency treatment facilities by prohibiting or |
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restricting practices by which the public has been injured in |
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connection with the marketing and advertising of mental health |
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services and the admission of patients. Nothing in this chapter |
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should be construed to prohibit a mental health facility from |
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advertising its services in a general way or promoting its |
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specialized services. However, the public should be able to clearly |
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distinguish between the marketing activities of the facility and |
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its clinical functions. |
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SECTION 3. Section 164.003(1), Health and Safety Code, is |
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amended to read as follows: |
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(1) "Advertising" or "advertise" means a solicitation |
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or inducement, through print or electronic media, including radio, |
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television, the Internet, or direct mail, to purchase the services |
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provided by a treatment facility. |
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SECTION 4. Section 164.006, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 164.006. SOLICITING AND CONTRACTING WITH CERTAIN |
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REFERRAL SOURCES. A treatment facility or a person employed or |
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under contract with a treatment facility, if acting on behalf of the |
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treatment facility, may not: |
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(1) contact a referral source or potential client for |
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the purpose of soliciting, directly or indirectly, a referral of a |
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patient to the treatment facility without disclosing its soliciting |
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agent's, employee's, or contractor's affiliation with the treatment |
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facility; |
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(2) offer to provide or provide mental health or |
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chemical dependency services to a public or private school in this |
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state, on a part-time or full-time basis, the services of any of its |
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employees or agents who make, or are in a position to make, a |
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referral, if the services are provided on an individual basis to |
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individual students or their families. Nothing herein prohibits a |
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treatment facility from: |
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(A) offering or providing educational programs |
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in group settings to public schools in this state if the affiliation |
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between the educational program and the treatment facility is |
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disclosed; |
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(B) providing counseling services to a public |
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school in this state in an emergency or crisis situation if the |
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services are provided in response to a specific request by a school; |
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provided that, under no circumstances may a student be referred to |
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the treatment facility offering the services; or |
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(C) entering into a contract under Section |
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464.020 with the board of trustees of a school district with a |
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disciplinary alternative education program, or with the board's |
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designee, for the provision of chemical dependency treatment |
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services; |
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(3) provide to an entity of state or local government, |
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on a part-time or full-time basis, the mental health or chemical |
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dependency services of any of its employees, agents, or contractors |
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who make or are in a position to make referrals unless: |
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(A) the treatment facility discloses to the |
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governing authority of the entity: |
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(i) the employee's, agent's, or |
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contractor's relationship to the facility; and |
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(ii) the fact that the employee, agent, or |
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contractor might make a referral, if permitted, to the facility; |
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and |
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(B) the employee, agent, or contractor makes a |
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referral only if: |
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(i) the treatment facility obtains the |
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governing authority's authorization in writing for the employee, |
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agent, or contractor to make the referrals; and |
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(ii) the employee, agent, or contractor |
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discloses to the prospective patient the employee's, agent's, or |
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contractor's relationship to the facility at initial contact; [or] |
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(4) in relation to intervention and assessment |
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services, contract with, offer to remunerate, or remunerate a |
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person who operates an intervention and assessment service that |
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makes referrals to a treatment facility for inpatient treatment of |
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mental illness or chemical dependency unless the intervention and |
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assessment service is: |
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(A) operated by a community mental health and |
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intellectual disability center funded by the department and the |
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Department of Aging and Disability Services; |
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(B) operated by a county or regional medical |
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society; |
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(C) a qualified mental health referral service as |
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defined by Section 164.007; or |
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(D) owned and operated by a nonprofit or |
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not-for-profit organization offering counseling concerning family |
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violence, help for runaway children, or rape; or |
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(5) contract with a marketing provider who agrees to |
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provide general referrals or leads for the placement of patients |
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with a service provider or in a recovery residence through a call |
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center or Internet website presence, unless the terms of that |
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contract are disclosed to the prospective patient. |
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SECTION 5. Section 164.010, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 164.010. PROHIBITED ACTS. It is a violation of this |
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chapter, in connection with the marketing of mental health |
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services, for a person to: |
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(1) advertise, expressly or impliedly, the services of |
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a treatment facility through the use of: |
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(A) promises of cure or guarantees of treatment |
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results that cannot be substantiated; or |
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(B) any unsubstantiated claims; |
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(2) advertise, expressly or impliedly, the |
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availability of intervention and assessment services unless and |
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until the services are available and are provided by mental health |
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professionals licensed or certified to provide the particular |
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service; |
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(3) fail to disclose before soliciting a referral |
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source or prospective patient to induce a person to use the services |
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of the treatment facility an affiliation between a treatment |
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facility and its soliciting agents, employees, or contractors; |
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(4) obtain information considered confidential by |
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state or federal law regarding a person for the purpose of |
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soliciting that person to use the services of a treatment facility |
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unless and until consent is obtained from the person or, in the case |
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of a minor, the person's parent, managing conservator, or legal |
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guardian or another person with authority to give that |
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authorization; [or] |
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(5) represent that a referral service is a qualified |
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mental health referral service unless and until the referral |
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service complies with Section 164.007; |
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(6) make a false or misleading statement or provide |
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false or misleading information about the facility's services or |
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location in the facility's advertising media or on its Internet |
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website; or |
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(7) provide a link on the facility's Internet website |
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that redirects the user to another Internet website containing |
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false or misleading statements or information described by |
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Subdivision (6). |
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SECTION 6. Section 164.011(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) If it appears that a person is in violation of this |
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chapter, the attorney general, a district attorney, or a county |
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attorney may institute an action for injunctive relief to restrain |
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the person from continuing the violation and for civil penalties of |
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not less than $2,000 [$1,000] and not more than $25,000 per |
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violation. |
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SECTION 7. Section 102.001, Occupations Code, is amended to |
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read as follows: |
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Sec. 102.001. SOLICITING PATIENTS; OFFENSE. (a) A person |
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commits an offense if the person knowingly offers to pay or agrees |
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to accept, directly or indirectly, overtly or covertly any |
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remuneration in cash or in kind or any benefit or commission to or |
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from another for securing or soliciting a patient or patronage for |
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or from a person licensed, certified, or registered by a state |
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health care regulatory agency. |
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(b) Except as provided by Subsection (c), an offense under |
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this section is a state jail felony [Class A misdemeanor]. |
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(c) An offense under this section is a felony of the second |
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[third] degree if it is shown on the trial of the offense that the |
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person: |
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(1) has previously been convicted of an offense under |
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this section; or |
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(2) was employed by a federal, state, or local |
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government at the time of the offense. |
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SECTION 8. Section 102.004, Occupations Code, is amended to |
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read as follows: |
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Sec. 102.004. APPLICABILITY TO ADVERTISING. Section |
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102.001 does not prohibit advertising, unless the advertising is: |
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(1) false, misleading, or deceptive; [or] |
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(2) not readily subject to verification, if the |
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advertising claims professional superiority or the performance of a |
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professional service in a superior manner; or |
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(3) prohibited under Chapter 164, Health and Safety |
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Code, as applicable. |
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SECTION 9. Section 102.006, Occupations Code, is amended to |
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read as follows: |
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Sec. 102.006. FAILURE TO DISCLOSE; OFFENSE. (a) A person |
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commits an offense if: |
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(1) the person, in a manner otherwise permitted under |
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Section 102.001, accepts remuneration, a benefit, or a commission |
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to secure or solicit a patient or patronage for a person licensed, |
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certified, or registered by a state health care regulatory agency; |
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and |
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(2) does not, at the time of initial contact and at the |
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time of referral, disclose to the patient: |
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(A) the person's affiliation, if any, with the |
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person for whom the patient is secured or solicited; and |
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(B) that the person will receive, directly or |
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indirectly, remuneration, a benefit, or a commission for securing |
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or soliciting the patient. |
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(b) Except as provided by Subsection (c), an offense under |
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this section is a state jail felony [Class A misdemeanor]. |
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(c) An offense under this section is a felony of the second |
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[third] degree if it is shown on the trial of the offense that the |
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person: |
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(1) has previously been convicted of an offense under |
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this section; or |
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(2) was employed by a federal, state, or local |
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government at the time of the offense. |
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SECTION 10. Sections 102.051(a), (b), and (c), Occupations |
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Code, are amended to read as follows: |
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(a) A person commits an offense if the person: |
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(1) practices the art of healing with or without the |
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use of medicine; and |
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(2) employs or agrees to employ, pays or promises to |
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pay, or rewards or promises to reward or provide any benefit or |
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commission to another for soliciting or securing a patient or |
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patronage. |
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(b) A person commits an offense if the person accepts or |
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agrees to accept anything of value or any benefit or commission for |
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soliciting or securing a patient or patronage for a person who |
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practices the art of healing with or without the use of medicine. |
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(c) An offense under this section is a Class B misdemeanor |
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[punishable by a fine of not less than $100 or more than $200]. Each |
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violation of this section is a separate offense. |
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SECTION 11. The changes in law made by this Act apply only |
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to an offense committed on or after the effective date of this Act. |
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An offense committed before the effective date of this Act is |
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governed by the law in effect on the date the offense was committed, |
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and the former law is continued in effect for that purpose. For |
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purposes of this section, an offense was committed before the |
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effective date of this Act if any element of the offense occurred |
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before that date. |
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SECTION 12. This Act takes effect September 1, 2021. |