By:  Maxey                                             H.B. No. 955
       73R4851 T
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the duty of non-profit, tax-exempt hospitals to provide
    1-3  charity care.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5  SECTION 1.  Chapter 311, Subchapter C, Section 311.031, Health and
    1-6  Safety Code, is amended to read as follows:
    1-7  Section 311.031.  Definitions
    1-8  In this subchapter:
    1-9  (1)  "Board" means the Texas Board of Health.
   1-10  (2)  "Department" means the Texas Department of Health.
   1-11  (3)  "Hospital" means a general or special hospital licensed under
   1-12  Chapter 241 (Texas Hospital Licensing Law).
   1-13  (4)  "Community Benefits" means the unreimbursed cost to the
   1-14  hospital of providing "charity care", "contractual allowances",
   1-15  "subsidized health services", "donations", "research", and
   1-16  "education".  Community Benefits does not include the cost to the
   1-17  hospital of paying any taxes or other governmental assessments.
   1-18  (5)  "Charity Care" means the unreimbursed cost to the hospital of:
   1-19        (a)  providing health care service on an inpatient or
   1-20  outpatient basis to a person classified by the hospital as
   1-21  "financially indigent" or "medically indigent"; and/or
   1-22        (b)  providing or funding health care services through
   1-23  outpatient clinics or other community health programs, provided
   1-24  such programs primarily serve persons classified by the hospital as
    2-1  "financially indigent" or "medically indigent".
    2-2        (c)  "Financially Indigent" means an uninsured or
    2-3  underinsured person who is accepted for care with no obligation or
    2-4  a discounted obligation to pay for the services rendered based on
    2-5  the "hospital's eligibility system".
    2-6        (d)  "Medically Indigent" means a person whose medical or
    2-7  hospital bills after payment by third-party payors exceed a
    2-8  specified percentage of the patient's annual gross income, in
    2-9  accordance with the "hospital's eligibility system" and the person
   2-10  is financially unable to pay the remaining bill.
   2-11        (e)  "Hospital Eligibility System" means the financial
   2-12  criteria used by the hospital to determine if a patient is eligible
   2-13  for charity care.  Such system shall include income levels and
   2-14  means testing indexed to the federal poverty guidelines; provided,
   2-15  however, that a hospital may not establish an eligibility system
   2-16  which sets the income level eligible for charity care lower than
   2-17  required by counties under the Indigent Health Care Act, Health and
   2-18  Safety Code, Section 61.023.
   2-19  (6)  "Contractual Allowances" means the cost of providing
   2-20  healthcare to the beneficiaries of Medicaid, Medicare, and other
   2-21  state or local indigent care programs, which exceeds the
   2-22  reimbursement provided by these programs.
   2-23  (7)  "Subsidized Health Services" means those services provided by
   2-24  a hospital in response to community needs for which the
   2-25  reimbursement is less than the hospital's costs for providing the
   2-26  services, and which must be subsidized by other hospital revenue
   2-27  sources.  Subsidized health services may include, but are not
    3-1  limited to:
    3-2        (a)  emergency and trauma care;
    3-3        (b)  air ambulance services;
    3-4        (c)  free-standing community clinics; and
    3-5        (d)  collaborative efforts with local government agencies in
    3-6  preventive medicine, such as immunization programs.
    3-7  (8)  "Donations" means the unreimbursed cost of providing cash and
    3-8  in-kind gifts to charitable organizations that support the
    3-9  charitable purposes of the hospital.
   3-10  (9)  "Research" means the unreimbursed cost to the hospital of
   3-11  providing facilities, equipment, and personnel for conducting
   3-12  medical research in response to community needs.
   3-13  (10)  "Education" means the unreimbursed cost to the hospital of
   3-14  providing educational benefits, services, and programs, including:
   3-15        (a)  education of physicians, nurses, technicians, and other
   3-16  medical professionals and health care providers;
   3-17        (b)  provision of scholarships and funding to colleges and
   3-18  universities for health professions education;
   3-19        (c)  education of patients concerning diseases and home care;
   3-20  and
   3-21        (d)  community health education through informational
   3-22  programs, publications, and outreach activities.
   3-23  (11)  "Unreimbursed Costs" means the costs the hospital incurs for
   3-24  providing services after subtracting payments received from any
   3-25  source for such services including, but not limited to, the
   3-26  following:  third-party insurance payments; Medicare DRG payments;
   3-27  Medicaid DRG payments; Medicare education reimbursements; state
    4-1  reimbursements for education; payments from drug companies to
    4-2  pursue research; grant funds for research; and disproportionate
    4-3  share payments.
    4-4  SECTION 2.  Chapter 311, Subchapter C, Section 311.033, Health and
    4-5  Safety Code, is amended to read as follows:
    4-6  Section 311.033.  Financial and Utilization Data Required
    4-7  (a)  A hospital shall submit to the department financial and
    4-8  utilization data for that hospital, including data relating to the
    4-9  hospital's:
   4-10        . . .
   4-11        <(10)  total cost of reimbursed and unreimbursed care for
   4-12  indigent patients; and>
   4-13        (10)  unreimbursed costs of subsidized health services
   4-14  reported separately in the following categories:
   4-15              (a)  Emergency care;
   4-16              (b)  Trauma care;
   4-17              (c)  Air ambulance services;
   4-18              (d)  Free-standing community clinics;
   4-19              (e)  Collaborative efforts with local government
   4-20  agencies in preventive medicine, such as immunization programs; and
   4-21              (f)  Other services that satisfy the definition of
   4-22  "subsidized health services" contained in Section 311.031(7).
   4-23        (11)  donations;
   4-24        (12)  total cost of reimbursed and unreimbursed research;
   4-25        (13)<(11)>  total cost of reimbursed and unreimbursed
   4-26  <medical> education separated into the following categories:
   4-27              (a)  Education of physicians, nurses, technicians, and
    5-1  other medical professionals and health care providers;
    5-2              (b)  Provision of scholarships and funding to colleges
    5-3  and universities for health professions education;
    5-4              (c)  Education of patients concerning diseases and home
    5-5  care;
    5-6              (d)  Community health education through informational
    5-7  programs, publications, and outreach activities; and
    5-8              (e)  Other educational services that satisfy the
    5-9  definition of "education" contained in Section 311.031(10).
   5-10  SECTION 3.  Chapter 311, Subchapter C, Section 311.037, Health and
   5-11  Safety Code, is amended to read as follows:
   5-12  Section 311.037.  Confidential Data; Criminal Penalty
   5-13  (a)  The following data reported or submitted to the department
   5-14  under this subchapter is confidential:
   5-15        (1)  data regarding a specific patient. <or>
   5-16        <(2)  financial data regarding a provider or facility.>
   5-17  (b)  Before the department may disclose confidential data under
   5-18  this subchapter, the department must remove any information that
   5-19  identifies a specific patient<, provider, or facility>.
   5-20  (c)  A person commits an offense if the person:
   5-21        (1)  discloses, distributes, or sells confidential data
   5-22  obtained under this subchapter; or
   5-23        (2)  violates Subsection (b).
   5-24  (d)  An offense under Subsection (c) is a Class B misdemeanor.
   5-25  SECTION 4.  Chapter 311, Health and Safety Code, is amended to add
   5-26  Subchapter D to read as follows:
   5-27  SUBCHAPTER D.  DUTIES OF NON-PROFIT, TAX-EXEMPT HOSPITALS.
    6-1  Section 311.039.  Policy Statement.  It is the purpose of this
    6-2  subchapter to clarify the duties and responsibilities of
    6-3  non-profit, tax-exempt hospitals for providing community benefits
    6-4  that include charity care.
    6-5  Section 311.040.  Definitions.
    6-6  (a)  "Charity Care" means services defined as charity care in
    6-7  Subchapter C, section 311.031(5), Health and Safety Code.
    6-8  (b)  "Community Benefits" means services defined as community
    6-9  benefits in Subchapter C, section 311.031(4), Health and Safety
   6-10  Code.
   6-11  (c)  "Affiliate" means any non-profit or for-profit business entity
   6-12  which is owned or controlled by a non-profit hospital; its parent
   6-13  entity; or one or more of the affiliates of a non-profit hospital
   6-14  or its parent.  An entity is controlled if the hospital, parent, or
   6-15  affiliate has the authority to appoint the board of directors of
   6-16  the entity, or otherwise exercises control over the operations of
   6-17  the entity.
   6-18  (d)  "Available resources" means the combined resources, financial
   6-19  and otherwise, of a non-profit hospital and its affiliates.
   6-20  (e)  "Board of Directors" means the group of persons vested with
   6-21  the management of the affairs of the hospital, irrespective of the
   6-22  name by which such group is designated.
   6-23  (f)  "Community" means the geographic area and patient categories
   6-24  for which the hospital provides health care services; provided,
   6-25  however, that "community" shall at least encompass the entire
   6-26  county or counties in which the hospital and its affiliates are
   6-27  located.
    7-1  (g)  "Non-profit Hospital" and "Non-profit, Tax-exempt Hospital"
    7-2  means a hospital that is"
    7-3        (1)  eligible for tax-exempt bond financing; or
    7-4        (2)  exempt from state franchise, sales, ad valorem, or other
    7-5  state or local taxes; or
    7-6        (3)  organized as a non-profit corporation under the laws of
    7-7  this state or any other state or country.
    7-8  (h)  "Tax-exempt benefits" means:
    7-9        (1)  the dollar amount of federal, state, and local taxes
   7-10  foregone by a non-profit hospital and its affiliates;
   7-11        (2)  the dollar amount of donations, whether cash or in-kind,
   7-12  received by a non-profit hospital and its affiliates;
   7-13        (3)  the value of tax-exempt bond financing received by a
   7-14  non-profit hospital and its affiliates; and
   7-15        (4)  the value of volunteer services donated to a non-profit
   7-16  hospital and its affiliates.
   7-17  Section 311.041.  Duty of Non-Profit Hospitals to Provide Community
   7-18  Benefits.
   7-19  The board of directors of a non-profit hospital shall provide
   7-20  healthcare services to the community through the hospital and its
   7-21  affiliates; and shall comply with all federal, state, and local
   7-22  government requirements for tax exemption.  These healthcare
   7-23  services to the community shall include charity care and may
   7-24  include other components of community benefits as both terms are
   7-25  defined in Section 311.040 of this Subchapter.
   7-26  Section 311.042.  Community Benefits Planning by Non-Profit
   7-27  Hospitals.
    8-1  (a)  The board of directors of a non-profit hospital shall develop:
    8-2        (1)  an organizational mission statement that identifies the
    8-3  hospital's commitment to serving the healthcare needs of the
    8-4  community; and
    8-5        (2)  a community benefits plan defined as an operational plan
    8-6  for serving the community's healthcare needs that sets out goals
    8-7  and objectives for providing community benefits that include
    8-8  charity care, as both the terms community benefit and charity care
    8-9  are defined by Section 311.040; and that identifies the populations
   8-10  and communities served by the hospital.
   8-11  (b)  When developing the community benefits plan, the board of
   8-12  directors shall consider the healthcare needs of the community as
   8-13  determined by community-wide needs assessments.
   8-14  (c)  The board of directors shall include at least the following
   8-15  elements in the community benefits plan:
   8-16        (1)  mechanisms to evaluate the plan's effectiveness on at
   8-17  least an annual basis, including but not limited to, a method for
   8-18  soliciting the views of the communities served by the hospital;
   8-19        (2)  measurable objectives to be achieved within a specified
   8-20  timeframe which may be achieved through specific projects designed
   8-21  to meet those objectives; and
   8-22        (3)  a budget for the plan which establishes explicit budget
   8-23  amounts:
   8-24              (i)  that are sufficient to implement the plan; and
   8-25              (ii)  that include a reasonable amount of charity care.
   8-26  Section 311.043.  Budgeting Criteria.
   8-27  (a)  The board of directors shall consider at least the following
    9-1  criteria to determine whether budget amounts established pursuant
    9-2  to Section 311.042(c)(3)(ii) are reasonable:
    9-3        (1)  "Responsiveness to needs" defined as whether the level
    9-4  of effort is reasonable in relation to community needs assessments
    9-5  considered pursuant to Section 311.042(b);
    9-6        (2)  "Comparison to available resources" defined as whether
    9-7  budget amounts are set at a level sufficiently high to be
    9-8  reasonable in relation to the financial capacity of the hospital
    9-9  given its available resources;
   9-10        (3)  "Comparison to tax-exempt benefits" defined as whether
   9-11  budget amounts are set at a level sufficiently high to be
   9-12  reasonable in relation to the benefits received by the hospital
   9-13  from its tax-exempt status.
   9-14  (b)  If the hospital's payor mix consists of a large percentage of
   9-15  Medicaid patients, the Board of Directors may consider any impact
   9-16  the unreimbursed costs of Medicaid services has on the hospital's
   9-17  ability to provide charity care in determining whether budget
   9-18  amounts established pursuant to Section 311.042(c)(3)(ii) are
   9-19  reasonable.
   9-20  (c)  The board of directors may consider any other criteria
   9-21  relevant to the hospital's ability to provide charity care to
   9-22  determine whether budget amounts established pursuant to Section
   9-23  311.042(c)(3)(ii) are reasonable.
   9-24  (d)  Reductions in charity care will be considered reasonable when
   9-25  necessary to prevent a hospital from endangering its ability to
   9-26  continue operations.
   9-27  Section 311.044.  Annual Report of Community Benefits Plan
   10-1  (a)  The board of directors shall prepare an annual report of the
   10-2  community benefits plan and shall include in the plan at least the
   10-3  following information:
   10-4        (1)  the hospital's mission statement;
   10-5        (2)  a disclosure of the healthcare needs of the community
   10-6  that were considered in developing the hospital's community
   10-7  benefits plan pursuant to Section 311.042(b);
   10-8        (3)  a disclosure of the objectives and specific projects, if
   10-9  any, designed to address those objectives that were included in the
  10-10  hospital's community benefits plan pursuant to Section 311.042(c);
  10-11        (4)  a disclosure of the amount and types of community
  10-12  benefits, including charity care, actually provided.  Charity care
  10-13  shall be reported as a separate item from community benefits.
  10-14  (b)  The board shall file the annual report of the community
  10-15  benefits plan with the Bureau of State Health Data and Policy
  10-16  Analysis at the Texas Department of Health.  The report shall be
  10-17  filed no later than 90 days after the end of the hospital's fiscal
  10-18  year; provided, however, that the first report shall be filed no
  10-19  later than March 30, 1995.
  10-20  (c)  The Board shall prepare a statement that notifies the public
  10-21  that the annual report of the community benefits plan is public
  10-22  information; is filed with the Health Department; and is available
  10-23  to the public upon request from the Health Department.  The
  10-24  statement shall be posted in prominent places throughout the
  10-25  Hospital, including but not limited to the Emergency Room waiting
  10-26  area and the Admissions Office waiting area.  The statement shall
  10-27  also be printed in the Hospital patient guide or other material
   11-1  that provides the patient with information about the admissions
   11-2  criteria of the hospital.
   11-3  Section 311.045.  Remedies.
   11-4  (a)  The department may assess a civil penalty against a non-profit
   11-5  hospital that fails to make a report of the community benefits plan
   11-6  as required under this subchapter.
   11-7        (1)  The penalty may not exceed $1000 for each day the report
   11-8  is delinquent after the date upon which such reports are due.
   11-9        (2)  No penalty will be assessed against a hospital under
  11-10  Subsection (a) until 10 days have elapsed after written
  11-11  notification to the hospital of its failure to file a report.
  11-12  (b)  The attorney general may petition a district court to restrain
  11-13  a non-profit hospital or its board of directors from continuing to
  11-14  violate this subchapter.  Venue for a suit for injunctive relief is
  11-15  in the county in which the hospital is located or in Travis County.
  11-16  (c)  On application for injunctive relief and a finding that a
  11-17  hospital or its board of directors has violated this subchapter,
  11-18  the district court shall grant the injunctive relief that the facts
  11-19  warrant.
  11-20  (d)  Failure to comply with any provision of this subchapter
  11-21  constitutes a breach of fiduciary duty by the board of directors.
  11-22  No board member shall be personally liable for a breach of such
  11-23  fiduciary duty if he or she exercised prudent business judgement
  11-24  and acted in good faith in attempting to comply with the
  11-25  requirements of this subchapter.
  11-26  Section 311.046.  Remedies Cumulative.  The rights and remedies
  11-27  provided for in this subchapter are cumulative of all other laws in
   12-1  force in this state, and shall not limit, affect, change, or repeal
   12-2  any other statutory or common-law rights or remedies available to
   12-3  the state.
   12-4        SECTION 5.  If any provisions of the amendments made to
   12-5  Subchapter C, or of Subchapter D, are or become invalid, illegal or
   12-6  unenforceable in any respect, the remaining provisions shall not be
   12-7  in any way affected or impaired.
   12-8        SECTION 6.  This Act takes effect September 1, 1993.
   12-9        SECTION 7.  The importance of this legislation and the
  12-10  crowded condition of the calendars in both houses create an
  12-11  emergency and an imperative public necessity that the
  12-12  constitutional rule requiring bills to be read on three several
  12-13  days in each house be suspended, and this rule is hereby suspended.