By: Naishtat H.B. No. 1045
73R2132 JJT/CBH-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the provision of services to persons
1-3 with certain disabilities; providing civil and criminal penalties;
1-4 making an appropriation.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 ARTICLE 1
1-7 SECTION 1.01. Title 4, Health and Safety Code, is amended by
1-8 adding Subtitle G to read as follows:
1-9 SUBTITLE G. PROVISION OF SERVICES IN CERTAIN FACILITIES
1-10 CHAPTER 321. PROVISION OF MENTAL HEALTH, CHEMICAL DEPENDENCY,
1-11 AND REHABILITATION SERVICES
1-12 Sec. 321.001. DEFINITIONS. In this chapter:
1-13 (1) "Comprehensive medical rehabilitation services"
1-14 means a combination of rehabilitation services provided to a person
1-15 with a spinal cord injury, a brain injury, a stroke, multiple
1-16 sclerosis, cerebral palsy, hemiplegia, quadriplegia, paraplegia, a
1-17 chronic illness, a congenital defect, or another severe physical
1-18 disability that requires an integrated and coordinated program of
1-19 services to reduce the impact of the disability on the person.
1-20 (2) "Hospital" has the meaning assigned by Section
1-21 241.003.
1-22 (3) "License" means a state agency permit,
1-23 certificate, approval, registration, or other form of permission
1-24 required by state law.
2-1 (4) "Mental health facility" has the meaning assigned
2-2 by Section 571.003.
2-3 (5) "Rehabilitation services" includes physical
2-4 therapy, occupational therapy, audiology, speech-language
2-5 pathology, psychology, neuropsychology, vocational rehabilitation,
2-6 and the evaluation, diagnosis, or therapeutic or restorative
2-7 treatment of the physical, psychosocial, vocational, or educational
2-8 needs of a person with a disability to minimize the person's
2-9 physical or cognitive impairments, prevent the person's
2-10 institutionalization, maximize the person's functional ability, or
2-11 restore the person's lost functional capacity.
2-12 (6) "State health care regulatory agency" means a
2-13 state agency that licenses a health care professional.
2-14 (7) "Telephone counseling service" includes a "hot
2-15 line," "crisis line," "help line," or other telephone counseling
2-16 service, but does not include a counseling service offered by a
2-17 family violence shelter center.
2-18 (8) "Telephone referral service" means a telephone
2-19 service that refers to specific facilities or professionals
2-20 individuals who need or might need mental health or chemical
2-21 dependency treatment or comprehensive medical rehabilitation
2-22 services.
2-23 (9) "Treatment facility" has the meaning assigned by
2-24 Section 464.001.
2-25 Sec. 321.002. BILL OF RIGHTS. (a) The Texas Board of
2-26 Mental Health and Mental Retardation, Texas Board of Health, and
2-27 Texas Commission on Alcohol and Drug Abuse by rule shall each adopt
3-1 a "patient's bill of rights" that includes the applicable rights
3-2 included in this chapter, Subtitle C of Title 7, Chapters 241, 462,
3-3 464, and 466, and any other provisions the agencies consider
3-4 necessary to protect the health, safety, and rights of a patient
3-5 receiving voluntary or involuntary mental health, chemical
3-6 dependency, or comprehensive medical rehabilitation services in an
3-7 inpatient facility.
3-8 (b) The Board of Protective and Regulatory Services by rule
3-9 shall adopt a "children's bill of rights" for a minor receiving
3-10 treatment in a child-care facility for an emotional, mental health,
3-11 or chemical dependency problem.
3-12 (c) A "bill of rights" adopted under this section must
3-13 specifically address the rights of minors and provide that a minor
3-14 is entitled to:
3-15 (1) appropriate treatment in the least restrictive
3-16 setting available;
3-17 (2) not receive unnecessary or excessive medication;
3-18 (3) an individualized treatment plan and to
3-19 participate in the development of the plan; and
3-20 (4) a humane treatment environment that provides
3-21 reasonable protection from harm and appropriate privacy for
3-22 personal needs.
3-23 (d) Rules adopted under this section shall provide for:
3-24 (1) treatment of minors by persons who have
3-25 specialized knowledge of the emotional, mental health, and chemical
3-26 dependency problems and treatment of minors;
3-27 (2) separation of minor patients from adult patients;
4-1 (3) regular communication between a minor patient and
4-2 the patient's family; and
4-3 (4) standards to prevent the admission of a minor to a
4-4 facility for treatment of a condition that is not generally
4-5 recognized as responsive to treatment in an inpatient treatment
4-6 setting.
4-7 (e) The Texas Board of Health, Texas Board of Mental Health
4-8 and Mental Retardation, Texas Commission on Alcohol and Drug Abuse,
4-9 and Board of Protective and Regulatory Services shall consult each
4-10 other for assistance in adopting rules under this section.
4-11 (f) Before a facility may admit a patient for inpatient
4-12 mental health, chemical dependency, or comprehensive medical
4-13 rehabilitation services, or before a child-care facility may accept
4-14 a minor for treatment, the facility shall provide to the person
4-15 and, if appropriate, to the person's parent, managing conservator,
4-16 or guardian, a written copy of the applicable "bill of rights"
4-17 adopted under this section. The facility shall provide the written
4-18 copies in the person's primary language, if possible. In addition,
4-19 the facility shall ensure that, within 24 hours after the person is
4-20 admitted to the facility, the rights specified in the written copy
4-21 are explained to the person and, if appropriate, to the person's
4-22 parent, managing conservator, or guardian:
4-23 (1) orally, in simple, nontechnical terms in the
4-24 person's primary language, if possible; or
4-25 (2) through a means reasonably calculated to
4-26 communicate with a person who has an impairment of vision or
4-27 hearing, if applicable.
5-1 (g) The facility shall ensure that:
5-2 (1) each patient admitted for inpatient mental health,
5-3 chemical dependency, or comprehensive rehabilitation services and
5-4 each minor admitted for treatment in a child-care facility and, if
5-5 appropriate, the person's parent, managing conservator, or guardian
5-6 signs a copy of the document stating that the person has read the
5-7 document and understands the rights specified in the document; and
5-8 (2) the signed copy is made a part of the person's
5-9 clinical record.
5-10 (h) A facility shall prominently and conspicuously post a
5-11 copy of the "bill of rights" for display in a public area of the
5-12 facility that is readily available to patients, residents,
5-13 employees, and visitors. The "bill of rights" must be in English
5-14 and in a second language.
5-15 Sec. 321.003. ADVERTISING AND MARKETING OF TREATMENT OR
5-16 REHABILITATION SERVICES. (a) The Texas Commission on Alcohol and
5-17 Drug Abuse and Texas Board of Mental Health and Mental Retardation
5-18 by rule shall each adopt standards relating to the advertising and
5-19 marketing activities of a treatment facility or mental health
5-20 facility under its jurisdiction. The Texas Board of Health by rule
5-21 shall adopt standards relating to the advertising and marketing
5-22 activities of a hospital that provides comprehensive medical
5-23 rehabilitation services.
5-24 (b) A rule adopted under this section may restrict only
5-25 marketing or advertising that is false, misleading, or deceptive.
5-26 The rules may not:
5-27 (1) restrict a facility's use of a medium for
6-1 advertising;
6-2 (2) restrict in an advertisement the personal
6-3 appearance of a person representing a facility or the use of that
6-4 person's voice;
6-5 (3) regulate the size or duration of an advertisement;
6-6 or
6-7 (4) restrict the facility's advertisement under a
6-8 trade name.
6-9 (c) Standards adopted by an agency under this section must
6-10 be at least as restrictive as the guidelines for marketing and
6-11 advertising adopted by the National Association of Private
6-12 Psychiatric Hospitals and the American Society for Hospital
6-13 Marketing and Public Relations.
6-14 (d) Each agency shall adopt rules that specifically address
6-15 the marketing and advertising used by a telephone counseling
6-16 service or telephone referral service intended for persons who need
6-17 or might need chemical dependency treatment, mental health
6-18 services, or comprehensive medical rehabilitation services, as
6-19 applicable.
6-20 (e) Rules adopted under Subsection (d) must prohibit a
6-21 telephone counseling service or telephone referral service from:
6-22 (1) advertising or marketing the service unless the
6-23 service complies with Section 321.004;
6-24 (2) expressly or impliedly representing that the
6-25 service provides assistance or other services that the service is
6-26 not prepared or intended to provide;
6-27 (3) expressly or impliedly promising or guaranteeing
7-1 the success of a treatment if the probability of success cannot be
7-2 substantiated; or
7-3 (4) using marketing or advertising personnel in a
7-4 manner that would indicate to the public that the person is a
7-5 member of the service's medical personnel.
7-6 (f) Rules adopted under Subsection (d) must require the
7-7 advertising or marketing to clearly disclose:
7-8 (1) the intent of the service advertised or marketed;
7-9 and
7-10 (2) the affiliation between the service and a
7-11 treatment facility, mental health facility, or hospital, if any.
7-12 Sec. 321.004. TELEPHONE COUNSELING OR REFERRAL SERVICES.
7-13 (a) The Texas Commission on Alcohol and Drug Abuse and Texas Board
7-14 of Mental Health and Mental Retardation by rule shall each adopt
7-15 standards relating to the operation of a telephone counseling
7-16 service or telephone referral service intended for persons who need
7-17 or might need chemical dependency treatment or mental health
7-18 services. The Texas Board of Health by rule shall adopt standards
7-19 relating to the operation of a telephone counseling service or
7-20 telephone referral service intended for persons who need or might
7-21 need comprehensive medical rehabilitation services.
7-22 (b) The standards, at a minimum, must require:
7-23 (1) a telephone counseling service to be staffed by a
7-24 professional or other person who meets the minimum standards
7-25 adopted by the applicable agency under Subsection (c); and
7-26 (2) a person calling a telephone counseling service or
7-27 telephone referral service to be informed, at the time of initial
8-1 contact, of the service's affiliation with a treatment facility,
8-2 mental health facility, or hospital, if any.
8-3 (c) Each agency by rule shall prescribe the training or
8-4 credentials a person must have to provide a particular telephone
8-5 counseling service.
8-6 (d) This section does not apply to a telephone counseling
8-7 service that is operated by a nonprofit or not-for-profit
8-8 organization that uses volunteers to provide the counseling
8-9 services.
8-10 Sec. 321.005. MARKETING, ADVERTISING, AND RELATED SERVICES
8-11 BY HOSPITAL. (a) The Texas Board of Health by rule shall adopt
8-12 standards relating to:
8-13 (1) the marketing and advertising activities of a
8-14 hospital that relate to the hospital's provision of mental health
8-15 or chemical dependency treatment, including rules that specifically
8-16 address the marketing and advertising used by a mental health or
8-17 chemical dependency telephone counseling service or telephone
8-18 referral service that is owned, operated, or affiliated with a
8-19 hospital; and
8-20 (2) the operation of a telephone counseling service or
8-21 telephone referral service owned, operated, or affiliated with a
8-22 hospital and intended for persons who need or might need mental
8-23 health or chemical dependency treatment.
8-24 (b) Rules and standards adopted by the board under this
8-25 section must be consistent with and at least as restrictive as
8-26 applicable rules and standards adopted by the Texas Board of Mental
8-27 Health and Mental Retardation and the Texas Commission on Alcohol
9-1 and Drug Abuse under Sections 321.003 and 321.004.
9-2 Sec. 321.006. SUIT FOR HARM RESULTING FROM VIOLATION. (a)
9-3 A treatment facility or mental health facility that violates a
9-4 provision of, or a rule adopted under, this chapter, Subtitle C of
9-5 Title 7, or Chapter 241, 462, 464, or 466 is liable to a person
9-6 receiving care or treatment in or from the facility who is harmed
9-7 as a result of the violation.
9-8 (b) A person who has been harmed by a violation may sue for
9-9 injunctive relief, damages, or both.
9-10 (c) A court shall award to a plaintiff who prevails in a
9-11 suit under this section not less than the greater of $1,000 or
9-12 actual damages, including damages for mental anguish even if an
9-13 injury other than mental anguish is not shown.
9-14 (d) In addition to an award under Subsection (c), a court
9-15 may award to a plaintiff who prevails in a suit under this section:
9-16 (1) exemplary damages;
9-17 (2) court costs; and
9-18 (3) reasonable attorney's fees.
9-19 (e) A suit under this section may be brought in the district
9-20 court of the county in which:
9-21 (1) the plaintiff resides;
9-22 (2) the plaintiff received care or treatment; or
9-23 (3) the defendant conducts business.
9-24 (f) A person harmed by a violation must bring suit not later
9-25 than the second anniversary of the date on which the person's
9-26 injury is discovered, except that a minor whose injury is
9-27 discovered before the minor's 18th birthday may bring suit at any
10-1 time before the minor's 20th birthday.
10-2 (g) This section does not supersede or abrogate any other
10-3 remedy existing in law.
10-4 Sec. 321.007. PENALTIES. In addition to the penalties
10-5 prescribed by this chapter, a violation of a provision of this
10-6 chapter by an individual or facility that is licensed by a state
10-7 health care regulatory agency is subject to the same consequence as
10-8 a violation of the licensing law applicable to the individual or
10-9 facility or of a rule adopted under that licensing law.
10-10 SECTION 1.02. The changes in law made by this article apply
10-11 only to a cause of action that accrues on or after the effective
10-12 date of this article. A cause of action that accrues before the
10-13 effective date of this article is governed by the law in effect on
10-14 the date the cause of action accrues, and that law is continued in
10-15 effect for this purpose.
10-16 ARTICLE 2
10-17 SECTION 2.01. Section 241.053(b), Health and Safety Code, is
10-18 amended to read as follows:
10-19 (b) A hospital whose license is suspended or revoked may
10-20 apply to the department for the reissuance of a license. The
10-21 department may reissue the license if the department determines
10-22 that the hospital has corrected the conditions that led to the
10-23 suspension or revocation. A hospital whose license is suspended or
10-24 revoked may not admit new patients until the license is reissued.
10-25 SECTION 2.02. Section 241.054, Health and Safety Code, is
10-26 amended by amending Subsections (b), (d), and (e) and adding
10-27 Subsections (f) and (g) to read as follows:
11-1 (b) After the notice and opportunity to comply, the
11-2 department may petition a district court in Travis County or in the
11-3 county in which a violation occurs for assessment and recovery of
11-4 the civil penalty provided by Section 241.055, for injunctive
11-5 relief, or both.
11-6 (d) The district court shall assess the civil penalty, grant
11-7 the injunctive relief, or both, as warranted by the facts. The
11-8 injunctive relief may include any prohibitory or mandatory
11-9 injunction warranted by the facts, including a temporary
11-10 restraining order, temporary injunction, or permanent injunction.
11-11 (e) The attorney general or the appropriate district or
11-12 county attorney shall initiate and conduct the suit at the request
11-13 of the commissioner of health or on the initiative of the attorney
11-14 general or district or county attorney. The department and the
11-15 party bringing the suit may recover reasonable expenses incurred in
11-16 obtaining injunctive relief, civil penalties, or both, including
11-17 investigation costs, court costs, reasonable attorney's fees,
11-18 witness fees, and deposition expenses.
11-19 (f) Not later than the 30th day before the date on which the
11-20 attorney general intends to bring suit on his own initiative, the
11-21 attorney general shall provide to the department notice of the
11-22 suit. The attorney general is not required to provide notice of a
11-23 suit if the attorney general determines that waiting to bring suit
11-24 until the notice is provided will create an immediate threat to the
11-25 health and safety of a patient.
11-26 (g) The injunctive relief and civil penalty authorized by
11-27 this section and Section 241.055 are in addition to any other
12-1 civil, administrative, or criminal penalty provided by law.
12-2 SECTION 2.03. Section 241.055, Health and Safety Code, is
12-3 amended by amending Subsections (b) and (c) and adding Subsection
12-4 (d) to read as follows:
12-5 (b) A hospital that violates Subsection (a), another
12-6 provision of this chapter, or a rule adopted or enforced under this
12-7 chapter is liable for a civil penalty of not more than $25,000
12-8 <$1,000> for each day of violation and for each act of violation.
12-9 (c) In determining the amount of the penalty, the district
12-10 court shall consider:
12-11 (1) the hospital's previous violations;
12-12 (2) the seriousness of the violation, including the
12-13 nature, circumstances, extent, and gravity of the violation;
12-14 (3) whether the health and safety of the public was
12-15 threatened by the violation; <and>
12-16 (4) the demonstrated good faith of the hospital; and
12-17 (5) the amount necessary to deter future violations.
12-18 (d) A penalty collected under this section by the attorney
12-19 general shall be deposited to the credit of the general revenue
12-20 fund. A penalty collected under this section by a district or
12-21 county attorney shall be deposited to the credit of the general
12-22 fund of the county in which the suit was heard.
12-23 SECTION 2.04. Subchapter C, Chapter 241, Health and Safety
12-24 Code, is amended by adding Section 241.058 to read as follows:
12-25 Sec. 241.058. ADMINISTRATIVE PENALTY. (a) The department
12-26 may assess an administrative penalty against a person who violates
12-27 this chapter or a rule adopted or enforced under this chapter.
13-1 (b) The amount of the penalty may not exceed $25,000 for
13-2 each day of violation and for each act of violation.
13-3 (c) In determining the amount of the penalty, the department
13-4 shall consider:
13-5 (1) the history of previous violations;
13-6 (2) the amount necessary to deter future violations;
13-7 (3) efforts to correct the violation;
13-8 (4) enforcement costs relating to the violation; and
13-9 (5) any other matters that justice may require.
13-10 (d) If after an examination of the facts the department
13-11 concludes that the person did commit a violation, the department
13-12 may issue a preliminary report stating the facts on which it based
13-13 its conclusion, recommending that an administrative penalty under
13-14 this section be imposed, and recommending the amount of the
13-15 proposed penalty.
13-16 (e) The department shall give written notice of the report
13-17 to the person charged with committing the violation. The notice
13-18 must include a brief summary of the facts, a statement of the
13-19 amount of the recommended penalty, and a statement of the person's
13-20 right to an informal review of the occurrence of the violation, the
13-21 amount of the penalty, or both.
13-22 (f) Not later than the 10th day after the date on which the
13-23 person charged with committing the violation receives the notice,
13-24 the person may either give the department written consent to the
13-25 report, including the recommended penalty, or make a written
13-26 request for an informal review by the department.
13-27 (g) If the person charged with committing the violation
14-1 consents to the penalty recommended by the department or fails to
14-2 timely request an informal review, the department shall assess the
14-3 penalty. The department shall give the person written notice of
14-4 its action. The person shall pay the penalty not later than the
14-5 30th day after the date on which the person receives the notice.
14-6 (h) If the person charged with committing a violation
14-7 requests an informal review as provided by Subsection (f), the
14-8 department shall conduct the review. The department shall give the
14-9 person written notice of the results of the review.
14-10 (i) Not later than the 10th day after the date on which the
14-11 person charged with committing the violation receives the notice
14-12 prescribed by Subsection (h), the person may make to the department
14-13 a written request for a hearing. The hearing must be conducted in
14-14 accordance with the Administrative Procedure and Texas Register Act
14-15 (Article 6252-13a, Vernon's Texas Civil Statutes).
14-16 (j) If, after informal review, a person who has been ordered
14-17 to pay a penalty fails to request a formal hearing in a timely
14-18 manner, the department shall assess the penalty. The department
14-19 shall give the person written notice of its action. The person
14-20 shall pay the penalty not later than the 30th day after the date on
14-21 which the person receives the notice.
14-22 (k) Except as provided by Subsection (l), not later than the
14-23 30th day after the date on which the department issues a final
14-24 decision after a hearing under Subsection (i), a person who has
14-25 been ordered to pay a penalty under this section shall pay the
14-26 penalty in full.
14-27 (l) If the person seeks judicial review of either the fact
15-1 of the occurrence of the violation or the amount of the penalty, or
15-2 of both, the person shall send the amount of the penalty to the
15-3 department for placement in an escrow account or post with the
15-4 department a supersedeas bond in a form approved by the department
15-5 for the amount of the penalty. The bond must be effective until
15-6 all judicial review of the order or decision is final.
15-7 (m) Failure to forward the money to or to post the bond with
15-8 the department within the period provided by Subsection (k) or (l)
15-9 results in a waiver of all legal rights to judicial review. If the
15-10 person charged fails to forward the money or post the bond within
15-11 the period provided by Subsection (g), (j), (k), or (l), the
15-12 department may forward the matter to the attorney general for
15-13 enforcement of the penalty and interest as provided by law for
15-14 legal judgments. An action to enforce a penalty order under this
15-15 section must be initiated in a court of competent jurisdiction in
15-16 Travis County or in the county in which the violation occurred.
15-17 (n) Judicial review of a department order or review under
15-18 this section assessing a penalty is under the substantial evidence
15-19 rule. A suit may be initiated by filing a petition with a district
15-20 court in Travis County, as provided by Section 19, Administrative
15-21 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
15-22 Civil Statutes).
15-23 (o) If a penalty is reduced or not assessed, the department
15-24 shall remit to the person the appropriate amount plus accrued
15-25 interest if the penalty has been paid or shall execute a release of
15-26 the bond if a supersedeas bond has been posted. The accrued
15-27 interest on amounts remitted by the department under this
16-1 subsection shall be paid at a rate equal to the rate provided by
16-2 law for legal judgments and shall be paid for the period beginning
16-3 on the date the penalty is paid to the department under this
16-4 section and ending on the date the penalty is remitted.
16-5 (p) A penalty collected under this section shall be
16-6 deposited to the credit of the general revenue fund.
16-7 SECTION 2.05. Section 462.008, Health and Safety Code, is
16-8 amended by amending Subsections (c) and (d) and adding Subsections
16-9 (e)-(g) to read as follows:
16-10 (c) An individual who commits an offense under this section
16-11 is subject on conviction to:
16-12 (1) a fine of not less than $50 or more than $25,000
16-13 for each violation and each day of a continuing violation;
16-14 (2) confinement in jail for not more than two years
16-15 for each violation and each day of a continuing violation; or
16-16 (3) both fine and confinement.
16-17 (d) A person other than an individual who commits an offense
16-18 under this section is subject on conviction to a fine of not less
16-19 than $500 or more than $100,000 for each violation and each day of
16-20 a continuing violation.
16-21 (e) If it is shown on the trial of an individual that the
16-22 individual has previously been convicted of an offense under this
16-23 section, the offense is punishable by:
16-24 (1) a fine of not less than $100 or more than $50,000
16-25 for each violation and each day of a continuing violation;
16-26 (2) confinement in jail for not more than four years
16-27 for each violation and each day of a continuing violation; or
17-1 (3) both fine and confinement.
17-2 (f) If it is shown on the trial of a person other than an
17-3 individual that the person previously has been convicted of an
17-4 offense under this section, the offense is punishable by a fine of
17-5 not less than $1,000 or more than $200,000 for each violation and
17-6 each day of a continuing violation.
17-7 (g) <An offense under this section is a misdemeanor
17-8 punishable by a fine of not more than $5,000, confinement in the
17-9 county jail for not more than one year, or both.>
17-10 <(d)> The appropriate district or county attorney shall
17-11 prosecute violations of this chapter.
17-12 SECTION 2.06. Section 464.014, Health and Safety Code, is
17-13 amended to read as follows:
17-14 Sec. 464.014. Denial, Revocation, SUSPENSION, or Nonrenewal
17-15 of License. (a) The executive director of the commission may
17-16 deny, revoke, suspend, or refuse to renew a license if the
17-17 applicant, license holder, or owner, director, administrator, or
17-18 clinical staff member of the facility:
17-19 (1) has a documented history of client abuse or
17-20 neglect; or
17-21 (2) fails to comply with this subchapter or with a
17-22 rule of the commission adopted under this subchapter.
17-23 (b) The denial, revocation, suspension, or nonrenewal takes
17-24 effect on the 30th day after the date on which the notice was
17-25 mailed unless:
17-26 (1) the commission secures an injunction under Section
17-27 464.015; or
18-1 (2) an administrative appeal is requested.
18-2 (c) If an administrative appeal is requested, the effective
18-3 date of the commission's original decision must be postponed to
18-4 allow the person whose license was denied, revoked, suspended, or
18-5 not renewed to participate in the appeal. The commission shall
18-6 provide an opportunity for the affected person to present
18-7 additional evidence or testimony to the commission.
18-8 (d) A person whose license is denied, revoked, suspended, or
18-9 not renewed is entitled to:
18-10 (1) appeal that decision at a hearing before the
18-11 commission or a hearings officer appointed by the commission; and
18-12 (2) receive notice of the date, time, and place of the
18-13 hearing not later than the 15th day before the date of the hearing.
18-14 (e) A request for a hearing must be received by the
18-15 commission not later than the 15th day after the date on which the
18-16 notice of denial, revocation, suspension, or nonrenewal is mailed
18-17 to the applicant or license holder.
18-18 (f) The commission may restrict attendance at an appeals
18-19 hearing to the parties and their agents.
18-20 (g) If a license is denied, revoked, suspended, or not
18-21 renewed after a hearing, the commission shall send to the applicant
18-22 or license holder a copy of the commission's findings and grounds
18-23 for the decision.
18-24 (h) An order denying, revoking, suspending, or refusing to
18-25 renew a license takes effect on the 31st day after the date on
18-26 which the applicant or license holder receives final notice of the
18-27 denial, revocation, suspension, or nonrenewal. A license holder
19-1 whose license is suspended or revoked may not admit new clients
19-2 until the license is reissued.
19-3 (i) The Administrative Procedure and Texas Register Act
19-4 (Article 6252-13a, Vernon's Texas Civil Statutes) applies to a
19-5 judicial review of a commission appeals hearing under this
19-6 subchapter.
19-7 SECTION 2.07. Sections 464.015(b)-(e), Health and Safety
19-8 Code, are amended to read as follows:
19-9 (b) A suit for injunctive relief must be brought in Travis
19-10 County or the county in which the violation occurs.
19-11 (c) A district court, on petition of the commission and on a
19-12 finding by the court that a person or facility is violating this
19-13 subchapter or a standard adopted under this subchapter, shall grant
19-14 any prohibitory or mandatory injunctive relief warranted by the
19-15 facts, including a temporary restraining order, temporary
19-16 injunction, or permanent injunction.
19-17 (d) The court granting the injunctive relief shall order the
19-18 person or facility to reimburse the commission and the person
19-19 bringing the suit for all costs of investigation and litigation,
19-20 including reasonable attorney's fees, reasonable investigative
19-21 expenses, court costs, witness fees, deposition expenses, and civil
19-22 administrative costs.
19-23 (e) At the request of the commission or on the initiative of
19-24 the attorney general or district or county attorney, the attorney
19-25 general or the appropriate district or county attorney shall
19-26 institute and conduct a suit authorized by Subsection (a) in the
19-27 name of this state.
20-1 SECTION 2.08. Sections 464.017(a), (c), and (e), Health and
20-2 Safety Code, are amended to read as follows:
20-3 (a) A person or facility is subject to a civil penalty of
20-4 not <less than $10 or> more than $25,000 <$200> for each day of
20-5 violation and for each act of violation of this subchapter or a
20-6 rule adopted under this subchapter. In determining the amount of
20-7 the civil penalty, the court shall consider:
20-8 (1) the person or facility's previous violations;
20-9 (2) the seriousness of the violation, including the
20-10 nature, circumstances, extent, and gravity of the violation;
20-11 (3) whether the health and safety of the public was
20-12 threatened by the violation;
20-13 (4) the demonstrated good faith of the person or
20-14 facility; and
20-15 (5) the amount necessary to deter future violations.
20-16 (c) At the request of the commission or on the initiative of
20-17 the attorney general or district or county attorney, the attorney
20-18 general or the appropriate district or county attorney shall
20-19 institute and conduct the suit authorized by Subsection (b) in the
20-20 name of this state. The commission and the party bringing the suit
20-21 may recover reasonable expenses incurred in obtaining civil
20-22 penalties, including investigation costs, court costs, reasonable
20-23 attorney's fees, witness fees, and deposition expenses.
20-24 (e) Penalties collected under this section by the attorney
20-25 general shall be deposited to the credit of the alcohol and drug
20-26 abuse treatment licensure fund. Penalties collected under this
20-27 section by a district or county attorney shall be deposited to the
21-1 credit of the general fund of the county in which the suit was
21-2 heard.
21-3 SECTION 2.09. Subchapter A, Chapter 464, Health and Safety
21-4 Code, is amended by adding Sections 464.018 and 464.019 to read as
21-5 follows:
21-6 Sec. 464.018. NOTICE OF SUIT. Not later than the 30th day
21-7 before the date on which the attorney general intends to bring suit
21-8 on his own initiative under Section 464.015 or 464.017, the
21-9 attorney general shall provide to the commission notice of the
21-10 suit. The attorney general is not required to provide notice of a
21-11 suit if the attorney general determines that waiting to bring suit
21-12 until the notice is provided will create an immediate threat to the
21-13 health and safety of a client.
21-14 Sec. 464.019. ADMINISTRATIVE PENALTY. (a) The commission
21-15 may assess an administrative penalty against a person who violates
21-16 this chapter or a rule adopted under this chapter.
21-17 (b) The amount of the penalty may not exceed $25,000 for
21-18 each day of violation and for each act of violation.
21-19 (c) In determining the amount of the penalty, the commission
21-20 shall consider:
21-21 (1) the history of previous violations;
21-22 (2) the amount necessary to deter future violations;
21-23 (3) efforts to correct the violation;
21-24 (4) enforcement costs relating to the violation; and
21-25 (5) any other matters that justice may require.
21-26 (d) If after an examination of the facts the commission
21-27 concludes that the person did commit a violation, the commission
22-1 may issue a preliminary report stating the facts on which it based
22-2 its conclusion, recommending that an administrative penalty under
22-3 this section be imposed, and recommending the amount of the
22-4 proposed penalty.
22-5 (e) The commission shall give written notice of the report
22-6 to the person charged with committing the violation. The notice
22-7 must include a brief summary of the facts, a statement of the
22-8 amount of the recommended penalty, and a statement of the person's
22-9 right to an informal review of the occurrence of the violation, the
22-10 amount of the penalty, or both.
22-11 (f) Not later than the 10th day after the date on which the
22-12 person charged with committing the violation receives the notice,
22-13 the person may either give the commission written consent to the
22-14 report, including the recommended penalty, or make a written
22-15 request for an informal review by the commission.
22-16 (g) If the person charged with committing the violation
22-17 consents to the penalty recommended by the commission or fails to
22-18 timely request an informal review, the commission shall assess the
22-19 penalty. The commission shall give the person written notice of
22-20 its action. The person shall pay the penalty not later than the
22-21 30th day after the date on which the person receives the notice.
22-22 (h) If the person charged with committing a violation
22-23 requests an informal review as provided by Subsection (f), the
22-24 commission shall conduct the review. The commission shall give the
22-25 person written notice of the results of the review.
22-26 (i) Not later than the 10th day after the date on which the
22-27 person charged with committing the violation receives the notice
23-1 prescribed by Subsection (h), the person may make to the commission
23-2 a written request for a hearing. The hearing must be conducted in
23-3 accordance with the Administrative Procedure and Texas Register Act
23-4 (Article 6252-13a, Vernon's Texas Civil Statutes).
23-5 (j) If, after informal review, a person who has been ordered
23-6 to pay a penalty fails to request a formal hearing in a timely
23-7 manner, the commission shall assess the penalty. The commission
23-8 shall give the person written notice of its action. The person
23-9 shall pay the penalty not later than the 30th day after the date on
23-10 which the person receives the notice.
23-11 (k) Except as provided by Subsection (l), not later than the
23-12 30th day after the date on which the commission issues a final
23-13 decision after a hearing under Subsection (i), a person who has
23-14 been ordered to pay a penalty under this section shall pay the
23-15 penalty in full.
23-16 (l) If the person seeks judicial review of either the fact
23-17 of the occurrence of the violation or the amount of the penalty, or
23-18 of both, the person shall send the amount of the penalty to the
23-19 commission for placement in an escrow account or post with the
23-20 commission a supersedeas bond in a form approved by the commission
23-21 for the amount of the penalty. The bond must be effective until
23-22 all judicial review of the order or decision is final.
23-23 (m) Failure to forward the money to or to post the bond with
23-24 the commission within the period provided by Subsection (k) or (l)
23-25 results in a waiver of all legal rights to judicial review. If the
23-26 person charged fails to forward the money or post the bond within
23-27 the period provided by Subsection (g), (j), (k), or (l), the
24-1 commission may forward the matter to the attorney general for
24-2 enforcement of the penalty and interest as provided by law for
24-3 legal judgments. An action to enforce a penalty order under this
24-4 section must be initiated in a court of competent jurisdiction in
24-5 Travis County or in the county in which the violation occurred.
24-6 (n) Judicial review of a commission order or review under
24-7 this section assessing a penalty is under the substantial evidence
24-8 rule. A suit may be initiated by filing a petition with a district
24-9 court in Travis County, as provided by Section 19, Administrative
24-10 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
24-11 Civil Statutes).
24-12 (o) If a penalty is reduced or not assessed, the commission
24-13 shall remit to the person the appropriate amount plus accrued
24-14 interest if the penalty has been paid or shall execute a release of
24-15 the bond if a supersedeas bond has been posted. The accrued
24-16 interest on amounts remitted by the commission under this
24-17 subsection shall be paid at a rate equal to the rate provided by
24-18 law for legal judgments and shall be paid for the period beginning
24-19 on the date the penalty is paid to the commission under this
24-20 section and ending on the date the penalty is remitted.
24-21 (p) A penalty collected under this section shall be
24-22 deposited to the credit of the general revenue fund.
24-23 SECTION 2.10. (a) Section 571.020, Health and Safety Code,
24-24 is amended to read as follows:
24-25 Sec. 571.020. CRIMINAL PENALTIES. (a) A person commits an
24-26 offense if the person intentionally causes, conspires with another
24-27 to cause, or assists another to cause the unwarranted commitment of
25-1 a person to a mental health facility. <An offense under this
25-2 subsection is a misdemeanor punishable by a fine of not more than
25-3 $5,000, confinement in the county jail for not more than two years,
25-4 or both.>
25-5 (b) A person commits an offense if the person knowingly
25-6 violates a provision of this subtitle. <An offense under this
25-7 subsection is a misdemeanor punishable by a fine of not more than
25-8 $5,000, confinement in the county jail for not more than one year,
25-9 or both.>
25-10 (c) An individual who commits an offense under this section
25-11 is subject on conviction to:
25-12 (1) a fine of not less than $50 or more than $25,000
25-13 for each violation and each day of a continuing violation;
25-14 (2) confinement in jail for not more than two years
25-15 for each violation and each day of a continuing violation; or
25-16 (3) both fine and confinement.
25-17 (d) A person other than an individual who commits an offense
25-18 under this section is subject on conviction to a fine of not less
25-19 than $500 or more than $100,000 for each violation and each day of
25-20 a continuing violation.
25-21 (e) If it is shown on the trial of an individual that the
25-22 individual has previously been convicted of an offense under this
25-23 section, the offense is punishable by:
25-24 (1) a fine of not less than $100 or more than $50,000
25-25 for each violation and each day of a continuing violation;
25-26 (2) confinement in jail for not more than four years
25-27 for each violation and each day of a continuing violation; or
26-1 (3) both fine and confinement.
26-2 (f) If it is shown on the trial of a person other than an
26-3 individual that the person previously has been convicted of an
26-4 offense under this section, the offense is punishable by a fine of
26-5 not less than $1,000 or more than $200,000 for each violation and
26-6 each day of a continuing violation.
26-7 (b) Section 3, Chapter 567, Acts of the 72nd Legislature,
26-8 Regular Session, 1991, is repealed.
26-9 SECTION 2.11. Chapter 571, Health and Safety Code, is
26-10 amended by adding Sections 571.022, 571.023, and 571.024 to read as
26-11 follows:
26-12 Sec. 571.022. CIVIL PENALTY. (a) A person is subject to a
26-13 civil penalty of not more than $25,000 for each day of violation
26-14 and for each act of violation of this subtitle or a rule adopted
26-15 under this subtitle. In determining the amount of the civil
26-16 penalty, the court shall consider:
26-17 (1) the person's or facility's previous violations;
26-18 (2) the seriousness of the violation, including the
26-19 nature, circumstances, extent, and gravity of the violation;
26-20 (3) whether the health and safety of the public was
26-21 threatened by the violation;
26-22 (4) the demonstrated good faith of the person or
26-23 facility; and
26-24 (5) the amount necessary to deter future violations.
26-25 (b) The department may:
26-26 (1) combine a suit to assess and recover civil
26-27 penalties with a suit for injunctive relief brought under Section
27-1 577.019; or
27-2 (2) file a suit to assess and recover civil penalties
27-3 independently of a suit for injunctive relief.
27-4 (c) At the request of the department or on the initiative of
27-5 the attorney general or district or county attorney, the attorney
27-6 general or the appropriate district or county attorney shall
27-7 institute and conduct the suit authorized by Subsection (b) in the
27-8 name of the state.
27-9 (d) The department and the party bringing the suit may
27-10 recover reasonable expenses incurred in obtaining injunctive
27-11 relief, civil penalties, or both, including investigation costs,
27-12 court costs, reasonable attorney's fees, witness fees, and
27-13 deposition expenses.
27-14 (e) A penalty collected under this section by the attorney
27-15 general shall be deposited to the credit of the general revenue
27-16 fund. A penalty collected under this section by a district or
27-17 county attorney shall be deposited to the credit of the general
27-18 fund of the county in which the suit was heard.
27-19 (f) The civil penalty authorized by this section is in
27-20 addition to any other civil, administrative, or criminal penalty
27-21 provided by law.
27-22 Sec. 571.023. NOTICE OF SUIT. Not later than the 30th day
27-23 before the date on which the attorney general intends to bring suit
27-24 on his own initiative under Section 571.022 or 577.019, the
27-25 attorney general shall provide to the department notice of the
27-26 suit. The attorney general is not required to provide notice of a
27-27 suit if the attorney general determines that waiting to bring suit
28-1 until the notice is provided will create an immediate threat to the
28-2 health and safety of a patient.
28-3 Sec. 571.024. ADMINISTRATIVE PENALTY. (a) The department
28-4 may assess an administrative penalty against a person who violates
28-5 this subtitle or a rule adopted under this subtitle.
28-6 (b) The amount of the penalty may not exceed $25,000 for
28-7 each day of violation and for each act of violation.
28-8 (c) In determining the amount of the penalty, the department
28-9 shall consider:
28-10 (1) the history of previous violations;
28-11 (2) the amount necessary to deter future violations;
28-12 (3) efforts to correct the violation;
28-13 (4) enforcement costs relating to the violation,
28-14 including investigation costs, witness fees, and deposition
28-15 expenses; and
28-16 (5) any other matters that justice may require.
28-17 (d) If after an examination of the facts the department
28-18 concludes that the person did commit a violation, the department
28-19 may issue a preliminary report stating the facts on which it based
28-20 its conclusion, recommending that an administrative penalty under
28-21 this section be imposed, and recommending the amount of the
28-22 proposed penalty.
28-23 (e) The department shall give written notice of the report
28-24 to the person charged with committing the violation. The notice
28-25 must include a brief summary of the facts, a statement of the
28-26 amount of the recommended penalty, and a statement of the person's
28-27 right to an informal review of the occurrence of the violation, the
29-1 amount of the penalty, or both.
29-2 (f) Not later than the 10th day after the date on which the
29-3 person charged with committing the violation receives the notice,
29-4 the person may either give the department written consent to the
29-5 report, including the recommended penalty, or make a written
29-6 request for an informal review by the department.
29-7 (g) If the person charged with committing the violation
29-8 consents to the penalty recommended by the department or fails to
29-9 timely request an informal review, the department shall assess the
29-10 penalty. The department shall give the person written notice of
29-11 its action. The person shall pay the penalty not later than the
29-12 30th day after the date on which the person receives the notice.
29-13 (h) If the person charged with committing a violation
29-14 requests an informal review as provided by Subsection (f), the
29-15 department shall conduct the review. The department shall give the
29-16 person written notice of the results of the review.
29-17 (i) Not later than the 10th day after the date on which the
29-18 person charged with committing the violation receives the notice
29-19 prescribed by Subsection (h), the person may make to the department
29-20 a written request for a hearing. The hearing must be conducted in
29-21 accordance with the Administrative Procedure and Texas Register Act
29-22 (Article 6252-13a, Vernon's Texas Civil Statutes).
29-23 (j) If, after informal review, a person who has been ordered
29-24 to pay a penalty fails to request a formal hearing in a timely
29-25 manner, the department shall assess the penalty. The department
29-26 shall give the person written notice of its action. The person
29-27 shall pay the penalty not later than the 30th day after the date on
30-1 which the person receives the notice.
30-2 (k) Except as provided by Subsection (l), not later than the
30-3 30th day after the date on which the department issues a final
30-4 decision after a hearing under Subsection (i), a person who has
30-5 been ordered to pay a penalty under this section shall pay the
30-6 penalty in full.
30-7 (l) If the person seeks judicial review of either the fact
30-8 of the occurrence of a violation or the amount of the penalty, or
30-9 of both, the person shall send the amount of the penalty to the
30-10 department for placement in an escrow account or post with the
30-11 department a supersedeas bond in a form approved by the department
30-12 for the amount of the penalty. The bond must be effective until
30-13 all judicial review of the order or decision is final.
30-14 (m) Failure to forward the money to or to post the bond with
30-15 the department within the period provided by Subsection (k) or (l)
30-16 results in a waiver of all legal rights to judicial review. If the
30-17 person charged fails to forward the money or post the bond within
30-18 the period provided by Subsection (g), (j), (k), or (l), the
30-19 department may forward the matter to the attorney general for
30-20 enforcement of the penalty and interest as provided by law for
30-21 legal judgments. An action to enforce a penalty order under this
30-22 section must be initiated in a court of competent jurisdiction in
30-23 Travis County or in the county in which the violation occurred.
30-24 (n) Judicial review of a department order or review under
30-25 this section assessing a penalty is under the substantial evidence
30-26 rule. A suit may be initiated by filing a petition with a district
30-27 court in Travis County, as provided by Section 19, Administrative
31-1 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
31-2 Civil Statutes).
31-3 (o) If a penalty is reduced or not assessed, the department
31-4 shall remit to the person the appropriate amount plus accrued
31-5 interest if the penalty has been paid or shall execute a release of
31-6 the bond if a supersedeas bond has been posted. The accrued
31-7 interest on amounts remitted by the department under this
31-8 subsection shall be paid at a rate equal to the rate provided by
31-9 law for legal judgments and shall be paid for the period beginning
31-10 on the date the penalty is paid to the department under this
31-11 section and ending on the date the penalty is remitted.
31-12 (p) In addition to the administrative penalty, the court may
31-13 authorize the department to recover from a person who pays an
31-14 administrative penalty under this section reasonable expenses
31-15 incurred in obtaining the penalty, including investigation costs,
31-16 witness fees, and deposition expenses.
31-17 (q) A penalty collected under this section shall be
31-18 deposited to the credit of the general revenue fund.
31-19 SECTION 2.12. Section 577.016, Health and Safety Code, is
31-20 amended by adding Subsection (e) to read as follows:
31-21 (e) A license holder whose license is suspended or revoked
31-22 may not admit new patients until the license is reissued.
31-23 SECTION 2.13. Section 577.019, Health and Safety Code, is
31-24 amended to read as follows:
31-25 Sec. 577.019. INJUNCTION. (a) The department, in the name
31-26 of the state, may maintain an action in a district court of Travis
31-27 County or in the county in which the violation occurs for an
32-1 injunction or other process against any person to restrain the
32-2 person from operating a mental hospital or mental health facility
32-3 that is not licensed as required by this chapter.
32-4 (b) The district court <of Travis County, for cause shown,>
32-5 may grant any prohibitory or mandatory relief warranted by the
32-6 facts, including a temporary restraining order, temporary
32-7 injunction, or permanent injunction <restrain a violation of this
32-8 chapter>.
32-9 (c) At the request of the department or on the initiative of
32-10 the attorney general or district or county attorney, the attorney
32-11 general or the appropriate district or county attorney shall
32-12 institute and conduct a suit authorized by this section in the name
32-13 of the state.
32-14 SECTION 2.14. (a) There is appropriated to the Office of
32-15 the Attorney General from the general revenue fund for the fiscal
32-16 biennium ending August 31, 1995, the amounts awarded to the office
32-17 under Sections 241.054(e), 464.015(d), 464.017(c), and 571.022(d),
32-18 Health and Safety Code, as amended or added by this article, to be
32-19 used to reimburse the office for the office's expenses related to
32-20 the litigation for which the expenses were awarded.
32-21 (b) There is appropriated to the Texas Department of Health
32-22 from the general revenue fund for the fiscal biennium ending August
32-23 31, 1995, the amounts awarded to the department under Section
32-24 241.054(e), Health and Safety Code, as amended by this article, to
32-25 be used to reimburse the department for the department's expenses
32-26 related to the litigation for which the expenses were awarded.
32-27 (c) There is appropriated to the Texas Commission on Alcohol
33-1 and Drug Abuse from the general revenue fund for the fiscal
33-2 biennium ending August 31, 1995, the amounts awarded to the
33-3 commission under Sections 464.015(d) and 464.017(c), Health and
33-4 Safety Code, as amended by this article, to be used to reimburse
33-5 the commission for the commission's expenses related to the
33-6 litigation for which the expenses were awarded.
33-7 (d) There is appropriated to the Texas Department of Mental
33-8 Health and Mental Retardation from the general revenue fund for the
33-9 fiscal biennium ending August 31, 1995, the amounts awarded to the
33-10 department under Section 571.022(d), Health and Safety Code, as
33-11 added by this article, to be used to reimburse the department for
33-12 the department's expenses related to the litigation for which the
33-13 expenses were awarded.
33-14 ARTICLE 3
33-15 SECTION 3.01. Section 572.001(e), Health and Safety Code,
33-16 is amended to read as follows:
33-17 (e) A request for admission as a voluntary patient must
33-18 state that the person for whom admission is requested agrees to
33-19 voluntarily remain in the facility until the person's discharge and
33-20 that the person consents to the diagnosis, observation, care, and
33-21 treatment provided until the earlier of:
33-22 (1) the person's discharge; or
33-23 (2) the period prescribed <expiration of 96 hours
33-24 after the time a written request for release is filed as provided>
33-25 by Section 572.004.
33-26 SECTION 3.02. (a) Section 572.004, Health and Safety Code,
33-27 is amended to read as follows:
34-1 Sec. 572.004. DISCHARGE <OR RELEASE>. (a) A <Except as
34-2 provided by Subsection (b), a> voluntary patient is entitled to
34-3 leave an inpatient mental health facility in accordance with this
34-4 section <within 96 hours> after <the time> a written request for
34-5 discharge <release> is filed with the facility administrator or the
34-6 administrator's designee. The request must be signed, timed, and
34-7 dated by the patient or a person legally responsible for the
34-8 patient and must be made a part of the patient's clinical record.
34-9 If a patient informs an employee of or person associated with the
34-10 facility of the patient's desire to leave the facility, the
34-11 employee or person shall, as soon as possible, assist the patient
34-12 in creating the written request and present it to the patient for
34-13 the patient's signature <patient's admission>.
34-14 (b) The facility shall, within four hours after a request
34-15 for discharge is filed, notify the physician responsible for the
34-16 patient's treatment. If that physician is not available during
34-17 that period, the facility shall notify any available physician of
34-18 the request.
34-19 (c) The notified physician shall discharge the patient
34-20 before the end of the four-hour period unless the physician has
34-21 reasonable cause to believe that the patient might meet the
34-22 criteria for court-ordered mental health services or emergency
34-23 detention.
34-24 (d) A physician who has reasonable cause to believe that a
34-25 patient might meet the criteria for court-ordered mental health
34-26 services or emergency detention shall examine the patient as soon
34-27 as possible within 24 hours after the time the request for
35-1 discharge is filed. The physician shall discharge the patient on
35-2 completion of the examination unless the physician determines that
35-3 the person meets the criteria for court-ordered mental health
35-4 services or emergency detention. If the physician makes a
35-5 determination that the patient meets the criteria for court-ordered
35-6 mental health services or emergency detention, the physician shall,
35-7 not later than 4 p.m. on the next succeeding business day after the
35-8 date on which the examination occurs, either discharge the patient
35-9 or file an application for court-ordered mental health services or
35-10 emergency detention and obtain a written order for further
35-11 detention. The physician shall notify the patient if the physician
35-12 intends to detain the patient under this subsection or intends to
35-13 file an application for court-ordered mental health services or
35-14 emergency detention. A decision to detain a patient under this
35-15 subsection and the reasons for the decision shall be made a part of
35-16 the patient's clinical record.
35-17 (e) If extremely hazardous weather conditions exist or a
35-18 disaster occurs, the physician may request the judge of a court
35-19 that has jurisdiction over proceedings brought under Chapter 574 to
35-20 extend the period during which the patient may be detained. The
35-21 judge or a magistrate appointed by the judge may by written order
35-22 made each day extend the period during which the patient may be
35-23 detained until 4 p.m. on the first succeeding business day. The
35-24 written order must declare that an emergency exists because of the
35-25 weather or the occurrence of a disaster.
35-26 (f) The patient is not entitled to leave the facility if
35-27 before the end of the <96 hour> period prescribed by this section:
36-1 (1) a written withdrawal of the request for discharge
36-2 <release> is filed; or
36-3 (2) an application for court-ordered mental health
36-4 services or emergency detention is filed and the patient is
36-5 detained in accordance with this subtitle.
36-6 (g) <(c)> A plan for continuing care shall be prepared in
36-7 accordance with Section 574.081 for each patient discharged. If
36-8 sufficient time to prepare a continuing care plan before discharge
36-9 is not available, the plan may be prepared and mailed to the
36-10 appropriate person within 24 hours after the patient is discharged
36-11 <or released if sufficient time is available before release>.
36-12 (h) <(d)> The patient or other person who files a request
36-13 for discharge <release> of a patient shall be notified that the
36-14 person filing the request assumes all responsibility for the
36-15 patient on discharge.
36-16 (b) In addition to the substantive changes made by this
36-17 section, this section conforms Section 572.004, Health and Safety
36-18 Code, to Section 4, Chapter 567, Acts of the 72nd Legislature,
36-19 Regular Session, 1991.
36-20 (c) Section 4, Chapter 567, Acts of the 72nd Legislature,
36-21 Regular Session, 1991, is repealed.
36-22 SECTION 3.03. Chapter 572, Health and Safety Code, is
36-23 amended by adding Section 572.0025 to read as follows:
36-24 Sec. 572.0025. INTAKE, ASSESSMENT, AND ADMISSION. (a) The
36-25 board shall adopt rules governing the voluntary admission of a
36-26 patient to an inpatient mental health facility, including rules
36-27 governing the intake and assessment procedures of the admission
37-1 process.
37-2 (b) The rules governing the intake process shall prescribe a
37-3 facility's procedures for:
37-4 (1) reviewing a prospective patient's finances and
37-5 insurance benefits;
37-6 (2) explaining to a prospective patient the patient's
37-7 rights; and
37-8 (3) explaining to a prospective patient the facility's
37-9 services and treatment process.
37-10 (c) The assessment provided for by the rules may be
37-11 conducted only by a professional who meets the qualifications
37-12 prescribed by board rules.
37-13 (d) The rules governing the assessment process shall
37-14 prescribe:
37-15 (1) the types of professionals who may conduct an
37-16 assessment;
37-17 (2) the minimum credentials each type of professional
37-18 must have to conduct an assessment; and
37-19 (3) the type of assessment that professional may
37-20 conduct.
37-21 (e) In accordance with board rule, a facility shall provide
37-22 annually a minimum of eight hours of inservice training regarding
37-23 intake and assessment for persons who will be conducting an intake
37-24 or assessment for the facility. A person may not conduct intake or
37-25 assessments without having completed the initial and applicable
37-26 annual inservice training.
37-27 (f) A prospective voluntary patient may not be formally
38-1 accepted for treatment in a facility unless:
38-2 (1) the facility has a physician's signed order
38-3 admitting the prospective patient; and
38-4 (2) the facility administrator or a person designated
38-5 by the administrator has agreed to accept the prospective patient
38-6 and has signed a statement to that effect.
38-7 (g) An assessment conducted as required by rules adopted
38-8 under this section does not satisfy a statutory or regulatory
38-9 requirement for a personal evaluation of a patient or a prospective
38-10 patient by a qualified professional before admission.
38-11 (h) In this section:
38-12 (1) "Admission" means the formal acceptance of a
38-13 prospective patient to a facility.
38-14 (2) "Assessment" means the administrative process a
38-15 facility uses to gather information from a prospective patient,
38-16 including a medical history and the problem for which the patient
38-17 is seeking treatment, to determine whether a prospective patient
38-18 should be examined by a physician to determine if admission is
38-19 clinically justified.
38-20 (3) "Intake" means the administrative process for
38-21 gathering information about a prospective patient and giving a
38-22 prospective patient information about the facility and the
38-23 facility's treatment and services.
38-24 SECTION 3.04. Sections 574.081(a), (b), and (d), Health and
38-25 Safety Code, are amended to read as follows:
38-26 (a) The physician responsible for the patient's treatment
38-27 <facility administrator> shall prepare a continuing care plan for a
39-1 patient who is scheduled to be furloughed or discharged unless <if>
39-2 the patient does not require <requires> continuing care.
39-3 (b) The physician <facility administrator> shall prepare the
39-4 plan as prescribed by department rules and shall consult the
39-5 patient and the mental health authority in the area in which the
39-6 patient will reside before preparing the plan. The mental health
39-7 authority is not required to participate in preparing a plan for a
39-8 patient furloughed or discharged from a private mental health
39-9 facility.
39-10 (d) The physician <facility administrator> shall deliver the
39-11 plan and other appropriate information to the community center or
39-12 other provider that will deliver the services if:
39-13 (1) the services are provided by:
39-14 (A) a community center or other provider that
39-15 serves the county in which the patient will reside and that has
39-16 been designated by the commissioner to perform continuing care
39-17 services; or
39-18 (B) any other provider that agrees to accept the
39-19 referral; and
39-20 (2) the provision of care by the center or provider is
39-21 appropriate.
39-22 SECTION 3.05. Section 574.081, Health and Safety Code, is
39-23 amended by adding Subsection (f) to read as follows:
39-24 (f) A physician who believes that a patient does not require
39-25 continuing care and who does not prepare a continuing care plan
39-26 under this section shall document in the patient's treatment record
39-27 the reasons for that belief.
40-1 SECTION 3.06. Section 576.008, Health and Safety Code, is
40-2 amended to read as follows:
40-3 Sec. 576.008. NOTIFICATION OF PROTECTION AND ADVOCACY
40-4 SYSTEM. A patient shall be informed in writing, at the time of
40-5 admission and <or> discharge, of the existence, purpose, telephone
40-6 number, and address of the protection and advocacy system
40-7 established in this state under the federal Protection and Advocacy
40-8 for Mentally Ill Individuals Act of 1986 (42 U.S.C. Sec. 10801, et
40-9 seq.).
40-10 SECTION 3.07. Chapter 577, Health and Safety Code, is
40-11 amended by adding Section 577.0101 to read as follows:
40-12 Sec. 577.0101. NOTIFICATION OF TRANSFER OR REFERRAL. (a)
40-13 The board shall adopt rules governing the transfer or referral of a
40-14 patient from a private mental hospital to an inpatient mental
40-15 health facility.
40-16 (b) The rules must provide that before a private mental
40-17 hospital may transfer or refer a patient, the hospital must:
40-18 (1) provide to the receiving inpatient mental health
40-19 facility notice of the hospital's intent to transfer a patient;
40-20 (2) provide to the receiving inpatient mental health
40-21 facility information relating to the patient's diagnosis and
40-22 condition; and
40-23 (3) obtain verification from the receiving inpatient
40-24 mental health facility that the facility has the space, personnel,
40-25 and services necessary to provide appropriate care to the patient.
40-26 (c) The rules must also require that the private mental
40-27 hospital send the patient's appropriate records, or a copy of the
41-1 records, if any, to the receiving inpatient mental health facility.
41-2 SECTION 3.08. Subchapter B, Chapter 462, Health and Safety
41-3 Code, is amended by adding Section 462.025 to read as follows:
41-4 Sec. 462.025. INTAKE, ASSESSMENT, AND ADMISSION. (a) The
41-5 commission shall adopt rules governing the voluntary admission of a
41-6 patient to a treatment facility, including rules governing the
41-7 intake and assessment procedures of the admission process.
41-8 (b) The rules governing the intake process shall prescribe a
41-9 treatment facility's procedures for:
41-10 (1) reviewing a prospective patient's finances and
41-11 insurance benefits;
41-12 (2) explaining to a prospective patient the patient's
41-13 rights; and
41-14 (3) explaining to a prospective patient the facility's
41-15 services and treatment process.
41-16 (c) The assessment provided for by the rules may be
41-17 conducted only by a professional who meets the qualifications
41-18 prescribed by commission rules.
41-19 (d) The rules governing the assessment process shall
41-20 prescribe:
41-21 (1) the types of professionals who may conduct an
41-22 assessment;
41-23 (2) the minimum credentials each type of professional
41-24 must have to conduct an assessment; and
41-25 (3) the type of assessment that professional may
41-26 conduct.
41-27 (e) In accordance with commission rule, a treatment facility
42-1 shall provide annually a minimum of eight hours of inservice
42-2 training regarding intake and assessment for persons who will be
42-3 conducting an intake or assessment for the facility. A person may
42-4 not conduct intake or assessments without having completed the
42-5 initial and applicable annual inservice training.
42-6 (f) A prospective voluntary patient may not be formally
42-7 accepted for chemical dependency treatment in a treatment facility
42-8 unless the facility's administrator or a person designated by the
42-9 administrator has agreed to accept the prospective patient and has
42-10 signed a statement to that effect.
42-11 (g) An assessment conducted as required by rules adopted
42-12 under this section does not satisfy a statutory or regulatory
42-13 requirement for a personal evaluation of a patient or a prospective
42-14 patient by a qualified professional before admission.
42-15 (h) In this section:
42-16 (1) "Admission" means the formal acceptance of a
42-17 prospective patient to a treatment facility.
42-18 (2) "Assessment" means the administrative process a
42-19 treatment facility uses to gather information from a prospective
42-20 patient, including a medical history and the problem for which the
42-21 patient is seeking treatment, to determine whether a prospective
42-22 patient should be admitted.
42-23 (3) "Intake" means the administrative process for
42-24 gathering information about a prospective patient and giving a
42-25 prospective patient information about the treatment facility and
42-26 the facility's treatment and services.
42-27 SECTION 3.09. This article takes effect immediately.
43-1 ARTICLE 4
43-2 SECTION 4.01. Subtitle C, Title 7, Health and Safety Code,
43-3 is amended by adding Chapter 578 to read as follows:
43-4 CHAPTER 578. ELECTROCONVULSIVE AND OTHER THERAPIES
43-5 Sec. 578.001. APPLICATION. This chapter applies to the use
43-6 of electroconvulsive therapy by any person, including a private
43-7 physician who uses the therapy on an outpatient basis.
43-8 Sec. 578.002. USE OF ELECTROCONVULSIVE THERAPY. (a)
43-9 Electroconvulsive therapy may not be used on a person who is
43-10 younger than 16 years of age.
43-11 (b) Unless the person consents to the use of the therapy in
43-12 accordance with Section 578.003, electroconvulsive therapy may not
43-13 be used on:
43-14 (1) a person who is 16 years of age or older and who
43-15 is voluntarily receiving mental health services; or
43-16 (2) an involuntary patient who is 16 years of age or
43-17 older and who has not been adjudicated by an appropriate court of
43-18 law as incompetent to manage the patient's personal affairs.
43-19 (c) Electroconvulsive therapy may not be used on an
43-20 involuntary patient who is 16 years of age or older and who has
43-21 been adjudicated incompetent to manage the patient's personal
43-22 affairs unless the patient's guardian of the person consents to the
43-23 treatment in accordance with Section 578.003. The decision of the
43-24 guardian must be based on knowledge of what the patient would
43-25 desire, if known.
43-26 Sec. 578.003. CONSENT TO THERAPY. (a) The board by rule
43-27 shall adopt a standard written consent form to be used when
44-1 electroconvulsive therapy is considered. The board by rule shall
44-2 also prescribe the information that must be contained in the
44-3 written supplement required under Subsection (c). In addition to
44-4 the information required under this section, the form must include
44-5 the information required by the Texas Medical Disclosure Panel for
44-6 electroconvulsive therapy. In developing the form, the board shall
44-7 consider recommendations of the panel. Use of the consent form
44-8 prescribed by the board in the manner prescribed by this section
44-9 creates a rebuttable presumption that the disclosure requirements
44-10 of Sections 6.05 and 6.06, Medical Liability and Insurance
44-11 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
44-12 Statutes), have been met.
44-13 (b) The written consent form must clearly and explicitly
44-14 state:
44-15 (1) the nature and purpose of the procedure;
44-16 (2) the nature, degree, duration, and probability of
44-17 the side effects and significant risks of the treatment commonly
44-18 known by the medical profession, especially noting the possible
44-19 degree and duration of memory loss, the possibility of permanent
44-20 irrevocable memory loss, and the remote possibility of death;
44-21 (3) that there is a division of opinion as to the
44-22 efficacy of the procedure; and
44-23 (4) the probable degree and duration of improvement or
44-24 remission expected with or without the procedure.
44-25 (c) Before a patient receives each electroconvulsive
44-26 treatment, the hospital, facility, or physician administering the
44-27 therapy shall ensure that:
45-1 (1) the patient and the patient's guardian of the
45-2 person, if any, receives a written copy of the consent form that is
45-3 in the person's primary language, if possible;
45-4 (2) the patient and the patient's guardian of the
45-5 person, if any, receives a written supplement that contains related
45-6 information that pertains to the particular patient being treated;
45-7 (3) the contents of the consent form and the written
45-8 supplement are explained to the patient and the patient's guardian
45-9 of the person, if any:
45-10 (A) orally, in simple, nontechnical terms in the
45-11 person's primary language, if possible; or
45-12 (B) through the use of a means reasonably
45-13 calculated to communicate with a hearing impaired or visually
45-14 impaired person, if applicable;
45-15 (4) the patient or the patient's guardian of the
45-16 person, as appropriate, signs a copy of the consent form stating
45-17 that the person has read the consent form and the written
45-18 supplement and understands the information included in the
45-19 documents; and
45-20 (5) the signed copy is made a part of the patient's
45-21 clinical record.
45-22 (d) Consent given under this section is not valid unless the
45-23 person giving the consent understands the information presented and
45-24 consents voluntarily and without coercion or undue influence.
45-25 Sec. 578.004. WITHDRAWAL OF CONSENT. (a) A patient or
45-26 guardian who consents to the administration of electroconvulsive
45-27 therapy may revoke the consent for any reason and at any time.
46-1 (b) Revocation of consent is effective immediately.
46-2 Sec. 578.005. PHYSICIAN REQUIREMENT. (a) Only a physician
46-3 may administer electroconvulsive therapy.
46-4 (b) A physician may not delegate the act of administering
46-5 the therapy. A nonphysician who administers electroconvulsive
46-6 therapy is considered to be practicing medicine in violation of the
46-7 Medical Practice Act (Article 4495b, Vernon's Texas Civil
46-8 Statutes).
46-9 Sec. 578.006. REGISTRATION OF EQUIPMENT. (a) A person may
46-10 not administer electroconvulsive therapy unless the equipment used
46-11 to administer the therapy is registered with the department.
46-12 (b) A mental hospital or facility administering
46-13 electroconvulsive therapy or a private physician administering the
46-14 therapy on an outpatient basis must file an application for
46-15 registration under this section. The applicant must submit the
46-16 application to the department on a form prescribed by the
46-17 department.
46-18 (c) The application must be accompanied by a nonrefundable
46-19 application fee. The board shall set the fee in a reasonable
46-20 amount not to exceed the cost to the department to administer this
46-21 section.
46-22 (d) The application must contain:
46-23 (1) the model, manufacturer, and age of each piece of
46-24 equipment used to administer the therapy; and
46-25 (2) any other information required by the department.
46-26 (e) The department may conduct an investigation as
46-27 considered necessary after receiving the proper application and the
47-1 required fee.
47-2 (f) The board by rule may prohibit the registration and use
47-3 of equipment of a type, model, or age the board determines is
47-4 dangerous.
47-5 (g) The department may deny, suspend, or revoke a
47-6 registration if the department determines that the equipment is
47-7 dangerous. The denial, suspension, or revocation of a registration
47-8 is a contested case under the Administrative Procedure and Texas
47-9 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
47-10 Sec. 578.007. REPORTS. (a) A mental hospital or facility
47-11 administering electroconvulsive therapy, psychosurgery, pre-frontal
47-12 sonic sound treatment, or any other convulsive or coma-producing
47-13 therapy administered to treat mental illness or a physician
47-14 administering the therapy on an outpatient basis shall submit to
47-15 the department quarterly reports relating to the administration of
47-16 the therapy in the hospital or facility or by the physician.
47-17 (b) A report must state for each quarter:
47-18 (1) the number of patients who received the therapy,
47-19 including:
47-20 (A) the number of persons voluntarily receiving
47-21 mental health services who consented to the therapy;
47-22 (B) the number of involuntary patients who
47-23 consented to the therapy; and
47-24 (C) the number of involuntary patients for whom
47-25 a guardian of the person consented to the therapy;
47-26 (2) the age, sex, and race of the persons receiving
47-27 the therapy;
48-1 (3) the source of the treatment payment;
48-2 (4) the average number of nonelectroconvulsive
48-3 treatments;
48-4 (5) the average number of electroconvulsive treatments
48-5 administered for each complete series of treatments, but not
48-6 including maintenance treatments;
48-7 (6) the average number of maintenance
48-8 electroconvulsive treatments administered per month;
48-9 (7) the number of fractures, reported memory losses,
48-10 incidents of apnea, and cardiac arrests without death;
48-11 (8) autopsy findings if death followed within 14 days
48-12 after the date of the administration of the therapy; and
48-13 (9) any other information required by the department.
48-14 Sec. 578.008. USE OF INFORMATION; REPORT. (a) The
48-15 department shall use the information received under Sections
48-16 578.006 and 578.007 to analyze, audit, and monitor the use of
48-17 electroconvulsive therapy, psychosurgery, pre-frontal sonic sound
48-18 treatment, or any other convulsive or coma-producing therapy
48-19 administered to treat mental illness.
48-20 (b) The department shall file annually with the governor and
48-21 the presiding officer of each house of the legislature a written
48-22 report summarizing by facility the information received under
48-23 Sections 578.006 and 578.007. If the therapy is administered by a
48-24 private physician on an outpatient basis, the report must include
48-25 that information but may not identify the physician. The
48-26 department may not directly or indirectly identify in a report
48-27 issued under this section a patient who received the therapy.
49-1 SECTION 4.02. This article takes effect September 1, 1993,
49-2 except:
49-3 (1) Sections 578.002(a) and 578.005, Health and Safety
49-4 Code, as added by this article, take effect immediately;
49-5 (2) equipment in use to administer electroconvulsive
49-6 therapy on the effective date of Section 578.006, Health and Safety
49-7 Code, as added by this article, is not required to be registered
49-8 under that section before January 1, 1994;
49-9 (3) a person administering electroconvulsive therapy
49-10 shall file an initial report as prescribed by Section 578.007,
49-11 Health and Safety Code, as added by this article, not later than
49-12 September 15, 1993, for the period beginning June 1, 1993, and
49-13 ending August 31, 1993; and
49-14 (4) the Texas Department of Mental Health and Mental
49-15 Retardation shall file the initial report required under Section
49-16 578.008(b), Health and Safety Code, as added by this article, not
49-17 later than February 15, 1994, which report must summarize the
49-18 information the department receives on or before January 1, 1994.
49-19 ARTICLE 5
49-20 SECTION 5.01. Section 311.031(3), Health and Safety Code, is
49-21 amended to read as follows:
49-22 (3) "Hospital" means:
49-23 (A) a general or special hospital licensed under
49-24 Chapter 241;
49-25 (B) a private mental hospital licensed under
49-26 Chapter 577; and
49-27 (C) a treatment facility licensed under Chapter
50-1 464 <(Texas Hospital Licensing Law)>.
50-2 SECTION 5.02. Subchapter C, Chapter 311, Health and Safety
50-3 Code, is amended by adding Section 311.0335 to read as follows:
50-4 Sec. 311.0335. MENTAL HEALTH AND CHEMICAL DEPENDENCY DATA.
50-5 (a) A hospital that provides mental health or chemical dependency
50-6 services shall submit to the department financial and utilization
50-7 data relating to the mental health and chemical dependency services
50-8 provided by the hospital, including data for inpatient and
50-9 outpatient services relating to:
50-10 (1) patient demographics, including race, ethnicity,
50-11 age, gender, and county of residence;
50-12 (2) admissions;
50-13 (3) discharges, including length of inpatient
50-14 treatment;
50-15 (4) specific diagnoses and procedures according to
50-16 criteria prescribed by the Diagnostic and Statistical Manual of
50-17 Mental Disorders, 3rd Edition, Revised, or a later version
50-18 prescribed by the department;
50-19 (5) total charges and the components of the charges;
50-20 (6) payor sources; and
50-21 (7) use of mechanical restraints.
50-22 (b) The data must be submitted in the form and at the time
50-23 established by the department.
50-24 SECTION 5.03. Section 311.035, Health and Safety Code, is
50-25 amended by adding Subsection (c) to read as follows:
50-26 (c) The department shall enter into an interagency agreement
50-27 with the Texas Department of Mental Health and Mental Retardation,
51-1 Texas Commission on Alcohol and Drug Abuse, and Texas Department of
51-2 Insurance relating to the mental health and chemical dependency
51-3 hospital discharge data collected under Section 311.0335. The
51-4 agreement shall address the collection, analysis, and sharing of
51-5 the data by the agencies.
51-6 SECTION 5.04. Section 311.038(b), Health and Safety Code, is
51-7 amended to read as follows:
51-8 (b) The advisory committee must include representatives
51-9 from:
51-10 (1) the hospital industry, including private mental
51-11 hospitals and chemical dependency treatment facilities;
51-12 (2) private business;
51-13 (3) the insurance industry;
51-14 (4) state agencies, such as the Texas Department of
51-15 Human Services, <and> Employees Retirement System of Texas, Texas
51-16 Department of Mental Health and Mental Retardation, Texas
51-17 Commission on Alcohol and Drug Abuse, and Texas Department of
51-18 Insurance;
51-19 (5) consumer organizations; and
51-20 (6) the Statewide Health Coordinating Council.
51-21 ARTICLE 6
51-22 SECTION 6.01. Except as otherwise provided by this Act, this
51-23 Act takes effect September 1, 1993.
51-24 SECTION 6.02. (a) The changes in law made by this Act apply
51-25 only to an offense committed or a violation that occurs on or after
51-26 the effective date of this Act. For the purposes of this Act, an
51-27 offense is committed or a violation occurs before the effective
52-1 date of this Act if any element of the offense or violation occurs
52-2 before that date.
52-3 (b) An offense committed or violation that occurs before the
52-4 effective date of this Act is covered by the law in effect when the
52-5 offense was committed or the violation occurred, and the former law
52-6 is continued in effect for this purpose.
52-7 SECTION 6.03. The importance of this legislation and the
52-8 crowded condition of the calendars in both houses create an
52-9 emergency and an imperative public necessity that the
52-10 constitutional rule requiring bills to be read on three several
52-11 days in each house be suspended, and this rule is hereby suspended,
52-12 and that this Act take effect and be in force according to its
52-13 terms, and it is so enacted.