By: Vowell H.B. No. 2003
73R2130 CBH/JJT-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to illegal remuneration; providing criminal penalties;
1-3 making an appropriation.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter I, Chapter 161, Health and Safety
1-6 Code, as added by Chapter 15, Acts of the 72nd Legislature, 1st
1-7 Called Session, 1991, is amended to read as follows:
1-8 SUBCHAPTER I. ILLEGAL REMUNERATION
1-9 Sec. 161.091. PROHIBITION ON ILLEGAL REMUNERATION. (a) A
1-10 person <licensed, certified, or registered by a health care
1-11 regulatory agency of this state> commits an offense if the person
1-12 intentionally or knowingly offers to pay or agrees to accept any
1-13 remuneration directly or indirectly, overtly or covertly, in cash
1-14 or in kind, to or from any person, firm, association of persons,
1-15 partnership, or corporation for securing or soliciting patients or
1-16 patronage for or from a person licensed, certified, or registered
1-17 by a state health care regulatory agency.
1-18 (b) A person is presumed to have violated this section if:
1-19 (1) the person refers or accepts a referral of a
1-20 person to an inpatient mental health facility or chemical
1-21 dependency treatment facility;
1-22 (2) before the patient is discharged or furloughed
1-23 from the inpatient facility, the person pays the referring person
1-24 or accepts payment from the inpatient facility for outpatient
2-1 services to be provided by the referring person after the patient
2-2 is discharged or furloughed from the inpatient facility; and
2-3 (3) the referring person does not provide the
2-4 outpatient services for which payment was made and does not return
2-5 to the inpatient facility the payment for the services not
2-6 provided.
2-7 (c) This section shall not be construed to prohibit
2-8 advertising except that which is false, misleading, or deceptive or
2-9 that which advertises professional superiority or the performance
2-10 of a professional service in a superior manner and that is not
2-11 readily subject to verification.
2-12 (d) <(c)> Except as provided by this section, an offense
2-13 under this section is a Class A misdemeanor. If it is shown on
2-14 <in> the trial of a person under <violation of> this section that
2-15 the person has previously been convicted of an offense under <a
2-16 violation of> this section or that the person was employed by a
2-17 federal, state, or local government at the time the offense
2-18 occurred, the offense is<, on conviction the person shall be
2-19 punished for> a felony of the third degree. In addition to any
2-20 other penalties or remedies provided, a violation of this section
2-21 shall be grounds for disciplinary action by a <the> regulatory
2-22 agency that has issued a license, certification, or registration to
2-23 the person.
2-24 (e) <(d) The appropriate health care regulatory agency may
2-25 institute an action to enjoin a violation or potential violation of
2-26 this section. The action for an injunction shall be in addition to
2-27 any other action, proceeding, or remedy authorized by law. The
3-1 regulatory agency shall be represented by the attorney general.>
3-2 <(e) This section shall not be construed to prohibit
3-3 remuneration for advertising, marketing, or other services that are
3-4 provided for the purpose of securing or soliciting patients
3-5 provided the remuneration is set in advance, is consistent with the
3-6 fair market value of the services, and is not based on the volume
3-7 or value of any patient referrals or business otherwise generated
3-8 between the parties.>
3-9 <(f)> This section shall <not> be construed to permit
3-10 <prohibit> any payment, business arrangements, or payments practice
3-11 permitted <not prohibited> by 42 U.S.C. Section 1320a-7b(b) or any
3-12 regulations promulgated pursuant thereto.
3-13 (f) <(g)> This section shall not apply to licensed insurers,
3-14 governmental entities, including intergovernmental risk pools
3-15 established under Chapter 172, Local Government Code, and
3-16 institutions as defined in the Texas State College and University
3-17 Employees Uniform Insurance Benefits Act (Article 3.50-3, Vernon's
3-18 Texas Insurance Code), group hospital service corporations, or
3-19 health maintenance organizations which reimburse, provide, offer to
3-20 provide, or administer hospital, medical, dental, or other
3-21 health-related benefits under a health benefits plan for which it
3-22 is the payor.
3-23 Sec. 161.092. NOTIFICATION OF REMUNERATION. (a) A person
3-24 commits an offense if:
3-25 (1) the person, in a manner otherwise permitted under
3-26 Section 161.091, accepts remuneration to secure or solicit patients
3-27 or patronage for a person licensed, certified, or registered by a
4-1 state health care regulatory agency; and
4-2 (2) does not, at the time of initial contact and at
4-3 the time of referral, disclose to the patient:
4-4 (A) the person's affiliation, if any, with the
4-5 person for whom the patient is secured or solicited; and
4-6 (B) that the person will receive remuneration,
4-7 directly or indirectly, for securing or soliciting the patient.
4-8 (b) Except as otherwise provided by this section, an offense
4-9 under this section is a Class A misdemeanor. If it is shown on the
4-10 trial of a person under this section that the person has previously
4-11 been convicted of an offense under this section or that the person
4-12 was employed by a federal, state, or local government at the time
4-13 the offense occurred, the offense is a felony of the third degree.
4-14 (c) In addition to other penalties or remedies provided by
4-15 this subchapter, a violation of this section is grounds for
4-16 disciplinary action by a regulatory agency that has issued a
4-17 license, certification, or registration to the person.
4-18 Sec. 161.093. INJUNCTION. (a) The attorney general or the
4-19 appropriate district or county attorney, in the name of the state,
4-20 may institute and conduct an action in a district court of Travis
4-21 County or of a county in which any part of the violation occurs for
4-22 an injunction or other process against a person who is violating
4-23 this subchapter.
4-24 (b) The district court may grant any prohibitory or
4-25 mandatory relief warranted by the facts, including a temporary
4-26 restraining order, temporary injunction, or permanent injunction.
4-27 Sec. 161.094. CIVIL PENALTIES. (a) A person who violates
5-1 this subchapter is subject to a civil penalty of not more than
5-2 $10,000 for each day of violation and each act of violation. In
5-3 determining the amount of the civil penalty, the court shall
5-4 consider:
5-5 (1) the person's previous violations;
5-6 (2) the seriousness of the violation, including the
5-7 nature, circumstances, extent, and gravity of the violation;
5-8 (3) whether the health and safety of the public was
5-9 threatened by the violation;
5-10 (4) the demonstrated good faith of the person; and
5-11 (5) the amount necessary to deter future violations.
5-12 (b) The attorney general or the appropriate district or
5-13 county attorney, in the name of the state, may institute and
5-14 conduct an action authorized by this section in a district court of
5-15 Travis County or of a county in which any part of the violation
5-16 occurs.
5-17 (c) The party bringing the suit may:
5-18 (1) combine a suit to assess and recover civil
5-19 penalties with a suit for injunctive relief brought under Section
5-20 161.093; or
5-21 (2) file a suit to assess and recover civil penalties
5-22 independently of a suit for injunctive relief.
5-23 (d) The party bringing the suit may recover reasonable
5-24 expenses incurred in obtaining injunctive relief, civil penalties,
5-25 or both, including investigation costs, court costs, reasonable
5-26 attorney's fees, witness fees, and deposition expenses.
5-27 (e) A penalty collected under this section by the attorney
6-1 general shall be deposited to the credit of the general revenue
6-2 fund. A penalty collected under this section by a district or
6-3 county attorney shall be deposited to the credit of the general
6-4 fund of the county in which the suit was heard.
6-5 (f) The civil penalty authorized by this section is in
6-6 addition to any other civil, administrative, or criminal penalty
6-7 provided by law.
6-8 SECTION 2. There is appropriated to the Office of the
6-9 Attorney General from the general revenue fund for the fiscal
6-10 biennium ending August 31, 1995, the amounts awarded to the office
6-11 under Section 161.094(d), Health and Safety Code, as added by this
6-12 Act, to be used to reimburse the office for the office's expenses
6-13 related to the litigation for which the expenses were awarded.
6-14 SECTION 3. (a) The changes in law made by this Act apply
6-15 only to an offense or violation committed on or after the effective
6-16 date of this Act. For purposes of this Act, an offense or
6-17 violation is committed before the effective date of this Act if any
6-18 element of the offense or violation occurs before that date.
6-19 (b) An offense or violation committed before the effective
6-20 date of this Act is covered by the law in effect when the offense
6-21 or violation was committed, and the former law is continued in
6-22 effect for that purpose.
6-23 SECTION 4. The importance of this legislation and the
6-24 crowded condition of the calendars in both houses create an
6-25 emergency and an imperative public necessity that the
6-26 constitutional rule requiring bills to be read on three several
6-27 days in each house be suspended, and this rule is hereby suspended,
7-1 and that this Act take effect and be in force from and after its
7-2 passage, and it is so enacted.