By: Moncrief, Harris of Tarrant S.B. No. 205
Zaffirini
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation of the provision of services to persons
1-2 with certain disabilities or in need of counseling in a crisis or
1-3 an emergency; creating offenses and providing civil,
1-4 administrative, and criminal penalties.
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" means the
1-14 provision of rehabilitation services that are designed to improve
1-15 or minimize a person's physical or cognitive disabilities, maximize
1-16 a person's functional ability, or restore a person's lost
1-17 functional capacity through close coordination of services,
1-18 communication, interaction, and integration among several
1-19 professions that share the responsibility to achieve team treatment
1-20 goals for the person.
1-21 (2) "Hospital" has the meaning assigned by Section
1-22 241.003.
1-23 (3) "License" means a state agency permit,
1-24 certificate, approval, registration, or other form of permission
2-1 required by state law.
2-2 (4) "Mental health facility" has the meaning assigned
2-3 by Section 571.003.
2-4 (5) "State health care regulatory agency" means a
2-5 state agency that licenses a health care professional.
2-6 (6) "Treatment facility" has the meaning assigned by
2-7 Section 464.001.
2-8 Sec. 321.002. BILL OF RIGHTS. (a) The Texas Board of
2-9 Mental Health and Mental Retardation, Texas Board of Health, and
2-10 Texas Commission on Alcohol and Drug Abuse by rule shall each adopt
2-11 a "patient's bill of rights" that includes the applicable rights
2-12 included in this chapter, Subtitle C of Title 7, Chapters 241, 462,
2-13 464, and 466, and any other provisions the agencies consider
2-14 necessary to protect the health, safety, and rights of a patient
2-15 receiving voluntary or involuntary mental health, chemical
2-16 dependency, or comprehensive medical rehabilitation services in an
2-17 inpatient facility. In addition, each agency shall adopt rules
2-18 that:
2-19 (1) provide standards to prevent the admission of a
2-20 minor to a facility for treatment of a condition that is not
2-21 generally recognized as responsive to treatment in an inpatient
2-22 treatment setting; and
2-23 (2) prescribe the procedure for presenting the
2-24 applicable bill of rights and obtaining each necessary signature
2-25 if:
2-26 (A) the patient cannot comprehend the
2-27 information because of illness, age, or other factors; or
3-1 (B) an emergency exists that precludes immediate
3-2 presentation of the information.
3-3 (b) The Board of Protective and Regulatory Services by rule
3-4 shall adopt a "children's bill of rights" for a minor receiving
3-5 treatment in a child-care facility for an emotional, mental health,
3-6 or chemical dependency problem.
3-7 (c) A "bill of rights" adopted under this section must
3-8 specifically address the rights of minors and provide that a minor
3-9 is entitled to:
3-10 (1) appropriate treatment in the least restrictive
3-11 setting available;
3-12 (2) not receive unnecessary or excessive medication;
3-13 (3) an individualized treatment plan and to
3-14 participate in the development of the plan; and
3-15 (4) a humane treatment environment that provides
3-16 reasonable protection from harm and appropriate privacy for
3-17 personal needs.
3-18 (d) Rules adopted under this section shall provide for:
3-19 (1) treatment of minors by persons who have
3-20 specialized education and training in the emotional, mental health,
3-21 and chemical dependency problems and treatment of minors;
3-22 (2) separation of minor patients from adult patients;
3-23 and
3-24 (3) regular communication between a minor patient and
3-25 the patient's family, subject only to a restriction in accordance
3-26 with Section 576.006.
3-27 (e) The Texas Board of Health, Texas Board of Mental Health
4-1 and Mental Retardation, Texas Commission on Alcohol and Drug Abuse,
4-2 and Board of Protective and Regulatory Services shall consult each
4-3 other for assistance in adopting rules under this section.
4-4 (f) Before a facility may admit a patient for inpatient
4-5 mental health, chemical dependency, or comprehensive medical
4-6 rehabilitation services, or before a child-care facility may accept
4-7 a minor for treatment, the facility shall provide to the person
4-8 and, if appropriate, to the person's parent, managing conservator,
4-9 or guardian, a written copy of the applicable "bill of rights"
4-10 adopted under this section. The facility shall provide the written
4-11 copies in the person's primary language, if possible. In addition,
4-12 the facility shall ensure that, within 24 hours after the person is
4-13 admitted to the facility, the rights specified in the written copy
4-14 are explained to the person and, if appropriate, to the person's
4-15 parent, managing conservator, or guardian:
4-16 (1) orally, in simple, nontechnical terms in the
4-17 person's primary language, if possible; or
4-18 (2) through a means reasonably calculated to
4-19 communicate with a person who has an impairment of vision or
4-20 hearing, if applicable.
4-21 (g) The facility shall ensure that:
4-22 (1) each patient admitted for inpatient mental health,
4-23 chemical dependency, or comprehensive rehabilitation services and
4-24 each minor admitted for treatment in a child-care facility and, if
4-25 appropriate, the person's parent, managing conservator, or guardian
4-26 signs a copy of the document stating that the person has read the
4-27 document and understands the rights specified in the document; and
5-1 (2) the signed copy is made a part of the person's
5-2 clinical record.
5-3 (h) A facility shall prominently and conspicuously post a
5-4 copy of the "bill of rights" for display in a public area of the
5-5 facility that is readily available to patients, residents,
5-6 employees, and visitors. The "bill of rights" must be in English
5-7 and in a second language.
5-8 Sec. 321.003. SUIT FOR HARM RESULTING FROM VIOLATION.
5-9 (a) A treatment facility or mental health facility that violates a
5-10 provision of, or a rule adopted under, this chapter, Subtitle C of
5-11 Title 7, or Chapter 241, 462, 464, or 466 is liable to a person
5-12 receiving care or treatment in or from the facility who is harmed
5-13 as a result of the violation.
5-14 (b) A person who has been harmed by a violation may sue for
5-15 injunctive relief, damages, or both.
5-16 (c) A court shall award to a plaintiff who prevails in a
5-17 suit under this section not less than the greater of $1,000 or
5-18 actual damages, including damages for mental anguish even if an
5-19 injury other than mental anguish is not shown.
5-20 (d) In addition to an award under Subsection (c), a court
5-21 may award to a plaintiff who prevails in a suit under this section:
5-22 (1) exemplary damages;
5-23 (2) court costs; and
5-24 (3) reasonable attorney fees.
5-25 (e) A suit under this section may be brought in the district
5-26 court of the county in which:
5-27 (1) the plaintiff resides;
6-1 (2) the plaintiff received care or treatment; or
6-2 (3) the defendant conducts business.
6-3 (f) A person harmed by a violation must bring suit not later
6-4 than the second anniversary of the date on which the person's
6-5 injury is discovered, except that a minor whose injury is
6-6 discovered before the minor's 18th birthday may bring suit at any
6-7 time before the minor's 20th birthday.
6-8 (g) This section does not supersede or abrogate any other
6-9 remedy existing in law.
6-10 Sec. 321.004. PENALTIES. In addition to the penalties
6-11 prescribed by this chapter, a violation of a provision of this
6-12 chapter by an individual or facility that is licensed by a state
6-13 health care regulatory agency is subject to the same consequence as
6-14 a violation of the licensing law applicable to the individual or
6-15 facility or of a rule adopted under that licensing law.
6-16 SECTION 1.02. The changes in law made by this article apply
6-17 only to a cause of action that accrues on or after the effective
6-18 date of this article. A cause of action that accrues before the
6-19 effective date of this article is governed by the law in effect on
6-20 the date the cause of action accrues, and that law is continued in
6-21 effect for this purpose.
6-22 ARTICLE 2
6-23 SECTION 2.01. Subtitle H, Title 2, Health and Safety Code,
6-24 is amended by adding Chapter 164 to read as follows:
6-25 CHAPTER 164. TREATMENT FACILITIES MARKETING AND ADMISSION
6-26 PRACTICES
6-27 Sec. 164.001. SHORT TITLE. This chapter may be cited as the
7-1 Treatment Facilities Marketing Practices Act.
7-2 Sec. 164.002. LEGISLATIVE PURPOSE. The purpose of this
7-3 chapter is to safeguard the public against fraud, deceit, and
7-4 misleading marketing practices and to foster and encourage
7-5 competition and fair dealing by mental health facilities and
7-6 chemical dependency treatment facilities by prohibiting or
7-7 restricting practices by which the public has been injured in
7-8 connection with the marketing and advertising of mental health
7-9 services and the admission of patients. Nothing in this chapter
7-10 should be construed to prohibit a mental health facility from
7-11 advertising its services in a general way or promoting its
7-12 specialized services. However, the public should be able to
7-13 distinguish between the marketing activities of the facility and
7-14 its clinical functions.
7-15 Sec. 164.003. DEFINITIONS. In this chapter:
7-16 (1) "Advertising" or "advertise" means a solicitation
7-17 or inducement, through print or electronic media, including radio,
7-18 television, or direct mail, to purchase the services provided by a
7-19 treatment facility.
7-20 (2) "Chemical dependency" has the meaning assigned by
7-21 Section 462.001.
7-22 (3) "Chemical dependency facility" means a treatment
7-23 facility as that term is defined by Section 462.001.
7-24 (4) "Intervention and assessment service" means a
7-25 service that offers assessment, counseling, evaluation,
7-26 intervention, or referral services or makes treatment
7-27 recommendations to an individual with respect to mental illness or
8-1 chemical dependency.
8-2 (5) "Mental health facility" means:
8-3 (A) a "mental health facility" as defined by
8-4 Section 571.003;
8-5 (B) a residential treatment facility, other than
8-6 a mental health facility, in which persons are treated for
8-7 emotional problems or disorders in a 24-hour supervised living
8-8 environment; and
8-9 (C) an adult day-care facility or adult day
8-10 health care facility as defined by Section 103.003, Human Resources
8-11 Code.
8-12 (6) "Mental health professional" means a:
8-13 (A) "physician" as defined by Section 571.003;
8-14 (B) "licensed professional counselor" as defined
8-15 by Section 2, Licensed Professional Counselor Act (Article 4512g,
8-16 Vernon's Texas Civil Statutes);
8-17 (C) "chemical dependency counselor" as defined
8-18 by Section 1, Chapter 635, Acts of the 72nd Legislature, Regular
8-19 Session, 1991 (Article 4512o, Vernon's Texas Civil Statutes);
8-20 (D) "psychologist" offering "psychological
8-21 services" as defined by Section 2, Psychologists' Certification and
8-22 Licensing Act (Article 4512c, Vernon's Texas Civil Statutes);
8-23 (E) "registered nurse" licensed under Chapter 7,
8-24 Title 71, Revised Statutes;
8-25 (F) "licensed vocational nurse" as defined by
8-26 Section 1, Article 4528c, Revised Statutes;
8-27 (G) "licensed marriage and family therapist" as
9-1 defined by Section 2, Licensed Marriage and Family Therapist Act
9-2 (Article 4512c-1, Vernon's Texas Civil Statutes); and
9-3 (H) "social worker" as defined by Section
9-4 50.001(a), Human Resources Code.
9-5 (7) "Mental health services" has the meaning assigned
9-6 by Section 531.002.
9-7 (8) "Mental illness" has the meaning assigned by
9-8 Section 571.003.
9-9 (9) "Referral source" means a person who is in a
9-10 position to refer or who refers a person to a treatment facility.
9-11 "Referral source" does not include a physician, an insurer, a
9-12 health maintenance organization (HMO), a preferred provider
9-13 arrangement (PPA), or other third party payor or discount provider
9-14 organization (DPO) where the insurer, HMO, PPA, third party payor,
9-15 or DPO pays in whole or in part for the treatment of mental illness
9-16 or chemical dependency.
9-17 (10) "Treatment facility" means a chemical dependency
9-18 facility and a mental health facility.
9-19 Sec. 164.004. EXEMPTIONS. This chapter does not apply to:
9-20 (1) a treatment facility operated by the Texas
9-21 Department of Mental Health and Mental Retardation, a federal
9-22 agency, or a political subdivision;
9-23 (2) a community center established under Subchapter A,
9-24 Chapter 534, or a facility operated by a community center; or
9-25 (3) a facility owned and operated by a nonprofit or
9-26 not-for-profit organization offering counseling concerning family
9-27 violence, help for runaway children, or rape.
10-1 Sec. 164.005. CONDITIONING EMPLOYEE OR AGENT RELATIONSHIPS
10-2 ON PATIENT REVENUE. A treatment facility may not permit or provide
10-3 compensation or anything of value to its employees or agents,
10-4 condition employment or continued employment of its employees or
10-5 agents, set its employee or agent performance standards, or
10-6 condition its employee or agent evaluations, based on:
10-7 (1) the number of patient admissions resulting from an
10-8 employee's or agent's efforts;
10-9 (2) the number or frequency of telephone calls or
10-10 other contacts with referral sources or patients if the purpose of
10-11 the telephone calls or contacts is to solicit patients for the
10-12 treatment facility; or
10-13 (3) the existence of or volume of determinations made
10-14 respecting the length of patient stay.
10-15 Sec. 164.006. SOLICITING AND CONTRACTING WITH CERTAIN
10-16 REFERRAL SOURCES. A treatment facility or a person employed or
10-17 under contract with a treatment facility, if acting on behalf of
10-18 the treatment facility, may not:
10-19 (1) contact a referral source or potential client for
10-20 the purpose of soliciting, directly or indirectly, a referral of a
10-21 patient to the treatment facility without disclosing its soliciting
10-22 agent's, employee's, or contractor's affiliation with the treatment
10-23 facility;
10-24 (2) offer to provide or provide mental health or
10-25 chemical dependency services to a public or private school in this
10-26 state, on a part-time or full-time basis, the services of any of
10-27 its employees or agents who make, or are in a position to make, a
11-1 referral, if the services are provided on an individual basis to
11-2 individual students or their families. Nothing herein prohibits a
11-3 treatment facility from:
11-4 (A) offering or providing educational programs
11-5 in group settings to public schools in this state if the
11-6 affiliation between the educational program and the treatment
11-7 facility is disclosed; or
11-8 (B) providing counseling services to a public
11-9 school in this state in an emergency or crisis situation if the
11-10 services are provided in response to a specific request by a
11-11 school; provided that, under no circumstances may a student be
11-12 referred to the treatment facility offering the services;
11-13 (3) provide to an entity of state or local government,
11-14 on a part-time or full-time basis, the mental health or chemical
11-15 dependency services of any of its employees, agents, or contractors
11-16 who make or are in a position to make referrals unless:
11-17 (A) the treatment facility discloses to the
11-18 governing authority of the entity:
11-19 (i) the employee's, agent's, or
11-20 contractor's relationship to the facility; and
11-21 (ii) the fact that the employee, agent, or
11-22 contractor might make a referral, if permitted, to the facility;
11-23 and
11-24 (B) the employee, agent, or contractor makes a
11-25 referral only if:
11-26 (i) the treatment facility obtains the
11-27 governing authority's authorization in writing for the employee,
12-1 agent, or contractor to make the referrals; and
12-2 (ii) the employee, agent, or contractor
12-3 discloses to the prospective patient the employee's, agent's, or
12-4 contractor's relationship to the facility at initial contact; or
12-5 (4) in relation to intervention and assessment
12-6 services, contract with, offer to remunerate, or remunerate a
12-7 person who operates an intervention and assessment service that
12-8 makes referrals to a treatment facility for inpatient treatment of
12-9 mental illness or chemical dependency unless the intervention and
12-10 assessment service is:
12-11 (A) operated by a community mental health and
12-12 mental retardation center funded by the Texas Department of Mental
12-13 Health and Mental Retardation;
12-14 (B) operated by a county or regional medical
12-15 society;
12-16 (C) a qualified mental health referral service
12-17 as defined by Section 164.007; or
12-18 (D) owned and operated by a nonprofit or
12-19 not-for-profit organization offering counseling concerning family
12-20 violence, help for runaway children, or rape.
12-21 Sec. 164.007. QUALIFIED MENTAL HEALTH REFERRAL SERVICE:
12-22 DEFINITION AND STANDARDS. (a) A qualified mental health referral
12-23 service means a service that conforms to all of the following
12-24 standards:
12-25 (1) the referral service does not exclude as a
12-26 participant in the referral service an individual who meets the
12-27 qualifications for participation and qualifications for
13-1 participation cannot be based in whole or in part on an
13-2 individual's or entity's affiliation or nonaffiliation with other
13-3 participants in the referral service;
13-4 (2) a payment the participant makes to the referral
13-5 service is assessed equally against and collected equally from all
13-6 participants, and is only based on the cost of operating the
13-7 referral service and not on the volume or value of any referrals to
13-8 or business otherwise generated by the participants of the referral
13-9 service;
13-10 (3) the referral service imposes no requirements on
13-11 the manner in which the participant provides services to a referred
13-12 person, except that the referral service may require that the
13-13 participant charge the person referred at the same rate as it
13-14 charges other persons not referred by the referral service, or that
13-15 these services be furnished free of charge or at a reduced charge;
13-16 (4) a referral made to a mental health professional or
13-17 chemical dependency treatment facility is made only in accordance
13-18 with Subdivision (1) and the referral service does not make
13-19 referrals to mental health facilities other than facilities
13-20 maintained or operated by the Texas Department of Mental Health and
13-21 Mental Retardation, community mental health and mental retardation
13-22 centers, or other political subdivisions, provided that a physician
13-23 may make a referral directly to any mental health facility;
13-24 (5) the referral service is staffed by appropriately
13-25 licensed and trained mental health professionals and a person who
13-26 makes assessments for the need for treatment of mental illness or
13-27 chemical dependency is a mental health professional as defined by
14-1 this chapter;
14-2 (6) in response to each inquiry or after personal
14-3 assessment, the referral service makes referrals, on a clinically
14-4 appropriate, rotational basis, to at least three mental health
14-5 professionals or chemical dependency treatment facilities whose
14-6 practice addresses or facilities are located in the county of
14-7 residence of the person seeking the referral or assessment, but if
14-8 there are not three providers in the inquirer's county of
14-9 residence, the referral service may include additional providers
14-10 from other counties nearest the inquirer's county of residence;
14-11 (7) no information that identifies the person seeking
14-12 a referral, such as name, address, or telephone number, is used,
14-13 maintained, distributed, or provided for a purpose other than
14-14 making the requested referral or for administrative functions
14-15 necessary to operating the referral service;
14-16 (8) the referral service makes the following
14-17 disclosures to each person seeking a referral:
14-18 (A) the manner in which the referral service
14-19 selects the group of providers participating in the referral
14-20 service;
14-21 (B) whether the provider participant has paid a
14-22 fee to the referral service;
14-23 (C) the manner in which the referral service
14-24 selects a particular provider from its list of provider
14-25 participants to which to make a referral;
14-26 (D) the nature of the relationship or any
14-27 affiliation between the referral service and the group of provider
15-1 participants to whom it could make a referral; and
15-2 (E) the nature of any restriction that would
15-3 exclude a provider from continuing as a provider participant;
15-4 (9) the referral service maintains each disclosure in
15-5 a written record certifying that the disclosure has been made and
15-6 the record certifying that the disclosure has been made is signed
15-7 by either the person seeking a referral or by the person making the
15-8 disclosure on behalf of the referral service; and
15-9 (10) if the referral service refers callers to a 1-900
15-10 telephone number or another telephone number that requires the
15-11 payment of a toll or fee payable to or collected by the referral
15-12 service, the referral service discloses the per minute charge.
15-13 (b) A qualified mental health referral service may not limit
15-14 participation by a person for a reason other than:
15-15 (1) failure to have a current, valid license without
15-16 limitation to practice in this state;
15-17 (2) failure to maintain professional liability
15-18 insurance while participating in the service;
15-19 (3) a decision by a peer review committee that the
15-20 person has failed to meet prescribed standards or has not acted in
15-21 a professional or ethical manner;
15-22 (4) termination of the contract between the
15-23 participant and the qualified mental health referral service by
15-24 either party under the terms of the contract; or
15-25 (5) significant dissatisfaction of consumers that is
15-26 documented and verifiable.
15-27 Sec. 164.008. OPERATING AN INTERVENTION AND ASSESSMENT
16-1 SERVICE. A treatment facility may not own, operate, manage, or
16-2 control an intervention and assessment service that makes referrals
16-3 to a treatment facility for inpatient treatment of mental illness
16-4 or chemical dependency unless the intervention and assessment
16-5 service:
16-6 (1) is a qualified mental health referral service
16-7 under Section 164.007;
16-8 (2) discloses in all advertising the relationship
16-9 between the treatment facility and the intervention and assessment
16-10 service; and
16-11 (3) discloses to each person contacting the service,
16-12 at the time of initial contact, the relationship between the
16-13 treatment facility and the intervention and assessment service.
16-14 Sec. 164.009. DISCLOSURES AND REPRESENTATIONS. (a) A
16-15 treatment facility may not admit a patient to its facilities
16-16 without fully disclosing to the patient or, if the patient is a
16-17 minor, the patient's parent, managing conservator, or guardian, in,
16-18 if possible, the primary language of the patient, managing
16-19 conservator, or guardian, as the case may be, the following
16-20 information in writing before admission:
16-21 (1) the treatment facility's estimated average daily
16-22 charge for inpatient treatment with an explanation that the patient
16-23 may be billed separately for services provided by mental health
16-24 professionals;
16-25 (2) the name of the attending physician, if the
16-26 treatment facility is a mental health facility, or the name of the
16-27 attending mental health professional, if the facility is a chemical
17-1 dependency facility; and
17-2 (3) the current "patient's bill of rights" as adopted
17-3 by the Texas Department of Mental Health and Mental Retardation,
17-4 the Texas Commission on Alcohol and Drug Abuse, or the Texas
17-5 Department of Health that sets out restrictions to the patient's
17-6 freedom that may be imposed on the patient during the patient's
17-7 stay in a treatment facility.
17-8 (b) A treatment facility may not misrepresent to a patient
17-9 or the parent, guardian, managing conservator, or spouse of a
17-10 patient, the availability or amount of insurance coverage available
17-11 to the prospective patient or the amount and percentage of a charge
17-12 for which the patient will be responsible.
17-13 (c) A treatment facility may not represent to a patient who
17-14 requests to leave a treatment facility against medical advice that:
17-15 (1) the patient will be subject to an involuntary
17-16 commitment proceeding or subsequent emergency detention unless that
17-17 representation is made by a physician or on the written instruction
17-18 of a physician who has evaluated the patient within 48 hours of the
17-19 representation; or
17-20 (2) the patient's insurance company will refuse to pay
17-21 all or any portion of the medical expenses previously incurred.
17-22 (d) A mental health facility may not represent or recommend
17-23 that a prospective patient should be admitted for inpatient
17-24 treatment unless the representation is made by a licensed physician
17-25 or, subsequent to evaluation by a licensed physician, by a mental
17-26 health professional.
17-27 (e) A chemical dependency facility may not represent or
18-1 recommend that a prospective patient should be admitted to a
18-2 facility for treatment unless and until:
18-3 (1) the prospective patient has been evaluated, in
18-4 person, by a mental health professional; and
18-5 (2) the mental health professional determines that the
18-6 patient meets the facility's admission standards.
18-7 Sec. 164.010. PROHIBITED ACTS. It is a violation of this
18-8 chapter, in connection with the marketing of mental health
18-9 services, for a person to:
18-10 (1) advertise, expressly or impliedly, the services of
18-11 a treatment facility through the use of:
18-12 (A) promises of cure or guarantees of treatment
18-13 results that cannot be substantiated; or
18-14 (B) any unsubstantiated claims;
18-15 (2) advertise, expressly or impliedly, the
18-16 availability of intervention and assessment services unless and
18-17 until the services are available and are provided by mental health
18-18 professionals licensed or certified to provide the particular
18-19 service;
18-20 (3) fail to disclose before soliciting a referral
18-21 source or prospective patient to induce a person to use the
18-22 services of the treatment facility an affiliation between a
18-23 treatment facility and its soliciting agents, employees, or
18-24 contractors;
18-25 (4) obtain information considered confidential by
18-26 state or federal law regarding a person for the purpose of
18-27 soliciting that person to use the services of a treatment facility
19-1 unless and until consent is obtained from the person or, in the
19-2 case of a minor, the person's parent, managing conservator, or
19-3 legal guardian or another person with authority to give that
19-4 authorization; or
19-5 (5) represent that a referral service is a qualified
19-6 mental health referral service unless and until the referral
19-7 service complies with Section 164.007.
19-8 Sec. 164.011. INJUNCTION. (a) If it appears that a person
19-9 is in violation of this chapter, the attorney general, a district
19-10 attorney, or a county attorney may institute an action for
19-11 injunctive relief to restrain the person from continuing the
19-12 violation and for civil penalties of not less than $1,000 and not
19-13 more than $25,000 per violation.
19-14 (b) A civil action filed under this section shall be filed
19-15 in a district court in Travis County or in the county in which the
19-16 defendant resides.
19-17 (c) The attorney general, a district attorney, or a county
19-18 attorney may recover reasonable expenses incurred in obtaining
19-19 injunctive relief, civil penalties, or both, under this section,
19-20 including court costs, reasonable attorney fees, investigative
19-21 costs, witness fees, and deposition expenses.
19-22 (d) A civil penalty recovered in a suit instituted by a
19-23 local government under this chapter shall be paid to that local
19-24 government.
19-25 Sec. 164.012. PENALTIES. In addition to the penalties
19-26 prescribed by this chapter, a violation of a provision of this
19-27 chapter by an individual or treatment facility that is licensed by
20-1 a state health care regulatory agency is subject to the same
20-2 consequences as a violation of the licensing law applicable to the
20-3 individual or treatment facility or of a rule adopted under that
20-4 licensing law.
20-5 Sec. 164.013. DECEPTIVE TRADE PRACTICES. A violation of
20-6 this chapter constitutes a false, misleading, or deceptive act or
20-7 practice within the meaning of Subchapter E, Chapter 17, Business &
20-8 Commerce Code, and a public or private right or remedy prescribed
20-9 by that subchapter may be used to enforce this chapter.
20-10 Sec. 164.014. RULE-MAKING AUTHORITY. The Texas Commission
20-11 on Alcohol and Drug Abuse and Texas Board of Mental Health and
20-12 Mental Retardation may adopt rules interpreting the provisions of
20-13 this chapter relating to the activities of a chemical dependency
20-14 facility or mental health facility under its jurisdiction.
20-15 ARTICLE 3
20-16 SECTION 3.01. Subsection (b), Section 241.053, Health and
20-17 Safety Code, is amended to read as follows:
20-18 (b) A hospital whose license is suspended or revoked may
20-19 apply to the department for the reissuance of a license. The
20-20 department may reissue the license if the department determines
20-21 that the hospital has corrected the conditions that led to the
20-22 suspension or revocation. A hospital whose license is suspended or
20-23 revoked may not admit new patients until the license is reissued.
20-24 SECTION 3.02. Section 241.054, Health and Safety Code, is
20-25 amended by amending Subsections (b), (d), and (e) and adding
20-26 Subsections (f), (g), (h), and (i) to read as follows:
20-27 (b) After the notice and opportunity to comply, the
21-1 commissioner of health <department> may request the attorney
21-2 general or the appropriate district or county attorney to institute
21-3 and conduct a suit for a violation of this chapter or a rule
21-4 adopted under this chapter <petition a district court in the county
21-5 in which a violation occurs for assessment and recovery of the
21-6 civil penalty provided by Section 241.055, for injunctive relief,
21-7 or both>.
21-8 (d) On his own initiative, the attorney general, a district
21-9 attorney, or a county attorney may maintain an action in the name
21-10 of the state for a violation of this chapter or a rule adopted
21-11 under this chapter.
21-12 (e) The district court shall assess the civil penalty
21-13 authorized by Section 241.055, grant <the> injunctive relief, or
21-14 both, as warranted by the facts. The injunctive relief may include
21-15 any prohibitory or mandatory injunction warranted by the facts,
21-16 including a temporary restraining order, temporary injunction, or
21-17 permanent injunction.
21-18 (f) The department and the party bringing the suit may
21-19 recover reasonable expenses incurred in obtaining injunctive
21-20 relief, civil penalties, or both, including investigation costs,
21-21 court costs, reasonable attorney fees, witness fees, and deposition
21-22 expenses.
21-23 (g) Venue may be maintained in Travis County or in the
21-24 county in which the violation occurred.
21-25 (h) Not later than the seventh day before the date on which
21-26 the attorney general intends to bring suit on his own initiative,
21-27 the attorney general shall provide to the department notice of the
22-1 suit. The attorney general is not required to provide notice of a
22-2 suit if the attorney general determines that waiting to bring suit
22-3 until the notice is provided will create an immediate threat to the
22-4 health and safety of a patient. This section does not create a
22-5 requirement that the attorney general obtain the permission of a
22-6 referral from the department before filing suit.
22-7 (i) The injunctive relief and civil penalty authorized by
22-8 this section and Section 241.055 are in addition to any other
22-9 civil, administrative, or criminal penalty provided by law.
22-10 <(e) The attorney general or the appropriate district or
22-11 county attorney shall initiate and conduct the suit at the request
22-12 of the commissioner of health.>
22-13 SECTION 3.03. Section 241.055, Health and Safety Code, is
22-14 amended by amending Subsections (b) and (c) and adding Subsection
22-15 (d) to read as follows:
22-16 (b) A hospital that violates Subsection (a), another
22-17 provision of this chapter, or a rule adopted or enforced under this
22-18 chapter is liable for a civil penalty of not more than $25,000
22-19 <$1,000> for each day of violation and for each act of violation.
22-20 (c) In determining the amount of the penalty, the district
22-21 court shall consider:
22-22 (1) the hospital's previous violations;
22-23 (2) the seriousness of the violation, including the
22-24 nature, circumstances, extent, and gravity of the violation;
22-25 (3) whether the health and safety of the public was
22-26 threatened by the violation; <and>
22-27 (4) the demonstrated good faith of the hospital; and
23-1 (5) the amount necessary to deter future violations.
23-2 (d) A penalty collected under this section by the attorney
23-3 general shall be deposited to the credit of the general revenue
23-4 fund. A penalty collected under this section by a district or
23-5 county attorney shall be deposited to the credit of the general
23-6 fund of the county in which the suit was heard.
23-7 SECTION 3.04. Subchapter C, Chapter 241, Health and Safety
23-8 Code, is amended by adding Section 241.058 to read as
23-9 follows:
23-10 Sec. 241.058. ADMINISTRATIVE PENALTY. (a) The board may
23-11 impose an administrative penalty against a person licensed or
23-12 regulated under this chapter who violates this chapter or a rule or
23-13 order adopted under this chapter.
23-14 (b) The penalty for a violation may be in an amount not to
23-15 exceed $25,000. Each day a violation continues or occurs is a
23-16 separate violation for purposes of imposing a penalty.
23-17 (c) The amount of the penalty shall be based on:
23-18 (1) the seriousness of the violation, including the
23-19 nature, circumstances, extent, and gravity of any prohibited acts,
23-20 and the hazard or potential hazard created to the health, safety,
23-21 or economic welfare of the public;
23-22 (2) enforcement costs relating to the violation;
23-23 (3) the history of previous violations;
23-24 (4) the amount necessary to deter future
23-25 violations;
23-26 (5) efforts to correct the violation; and
23-27 (6) any other matter that justice may require.
24-1 (d) If the commissioner determines that a violation
24-2 has occurred, the commissioner may issue to the board a report that
24-3 states the facts on which the determination is based and the
24-4 commissioner's recommendation on the imposition of a penalty,
24-5 including a recommendation on the amount of the penalty.
24-6 (e) Within 14 days after the date the report is issued, the
24-7 commissioner shall give written notice of the report to the person.
24-8 The notice may be given by certified mail. The notice must include
24-9 a brief summary of the alleged violation and a statement of the
24-10 amount of the recommended penalty and must inform the person that
24-11 the person has a right to a hearing on the occurrence of the
24-12 violation, the amount of the penalty, or both the occurrence of the
24-13 violation and the amount of the penalty.
24-14 (f) Within 20 days after the date the person receives the
24-15 notice, the person in writing may accept the determination and
24-16 recommended penalty of the commissioner or may make a written
24-17 request for a hearing on the occurrence of the violation, the
24-18 amount of the penalty, or both the occurrence of the violation and
24-19 the amount of the penalty.
24-20 (g) If the person accepts the determination and recommended
24-21 penalty of the commissioner, the board by order shall approve the
24-22 determination and impose the recommended penalty.
24-23 (h) If the person requests a hearing or fails to respond
24-24 timely to the notice, the commissioner shall set a hearing and give
24-25 notice of the hearing to the person. The administrative law judge
24-26 shall make findings of fact and conclusions of law and promptly
24-27 issue to the board a proposal for a decision about the occurrence
25-1 of the violation and the amount of a proposed penalty. Based on
25-2 the findings of fact, conclusions of law, and proposal for a
25-3 decision, the board by order may find that a violation has occurred
25-4 and impose a penalty or may find that no violation occurred.
25-5 (i) The notice of the board's order given to the person
25-6 under the Administrative Procedure and Texas Register Act (Article
25-7 6252-13a, Vernon's Texas Civil Statutes) must include a statement
25-8 of the right of the person to judicial review of the order.
25-9 (j) Within 30 days after the date the board's order is final
25-10 as provided by Section 16(c), Administrative Procedure and Texas
25-11 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), the
25-12 person shall:
25-13 (1) pay the amount of the penalty;
25-14 (2) pay the amount of the penalty and file a petition
25-15 for judicial review contesting the occurrence of the violation, the
25-16 amount of the penalty, or both the occurrence of the violation and
25-17 the amount of the penalty; or
25-18 (3) without paying the amount of the penalty, file a
25-19 petition for judicial review contesting the occurrence of the
25-20 violation, the amount of the penalty, or both the occurrence of the
25-21 violation and the amount of the penalty.
25-22 (k) Within the 30-day period, a person who acts under
25-23 Subsection (j)(3) may:
25-24 (1) stay enforcement of the penalty by:
25-25 (A) paying the amount of the penalty to the
25-26 court for placement in an escrow account; or
25-27 (B) giving to the court a supersedeas bond that
26-1 is approved by the court for the amount of the penalty and that is
26-2 effective until all judicial review of the board's order is final;
26-3 or
26-4 (2) request the court to stay enforcement of the
26-5 penalty by:
26-6 (A) filing with the court a sworn affidavit of
26-7 the person stating that the person is financially unable to pay the
26-8 amount of the penalty and is financially unable to give the
26-9 supersedeas bond; and
26-10 (B) giving a copy of the affidavit to the
26-11 commissioner by certified mail.
26-12 (l) The commissioner on receipt of a copy of an affidavit
26-13 under Subsection (k)(2) may file with the court within five days
26-14 after the date the copy is received a contest to the affidavit.
26-15 The court shall hold a hearing on the facts alleged in the
26-16 affidavit as soon as practicable and shall stay the enforcement of
26-17 the penalty on finding that the alleged facts are true. The person
26-18 who files an affidavit has the burden of proving that the person is
26-19 financially unable to pay the amount of the penalty and to give a
26-20 supersedeas bond.
26-21 (m) If the person does not pay the amount of the penalty and
26-22 the enforcement of the penalty is not stayed, the commissioner may
26-23 refer the matter to the attorney general for collection of the
26-24 amount of the penalty.
26-25 (n) Judicial review of the order of the board:
26-26 (1) is instituted by filing a petition as provided by
26-27 Section 19, Administrative Procedure and Texas Register Act
27-1 (Article 6252-13a, Vernon's Texas Civil Statutes); and
27-2 (2) is under the substantial evidence rule.
27-3 (o) If the court sustains the occurrence of the violation,
27-4 the court may uphold or reduce the amount of the penalty and order
27-5 the person to pay the full or reduced amount of the penalty. If
27-6 the court does not sustain the occurrence of the violation, the
27-7 court shall order that no penalty is owed.
27-8 (p) When the judgment of the court becomes final, the court
27-9 shall proceed under this subsection. If the person paid the amount
27-10 of the penalty and if that amount is reduced or is not upheld by
27-11 the court, the court shall order that the appropriate amount plus
27-12 accrued interest be remitted to the person. The rate of the
27-13 interest is the rate charged on loans to depository institutions by
27-14 the New York Federal Reserve Bank, and the interest shall be paid
27-15 for the period beginning on the date the penalty was paid and
27-16 ending on the date the penalty is remitted. If the person gave a
27-17 supersedeas bond and if the amount of the penalty is not upheld by
27-18 the court, the court shall order the release of the bond. If the
27-19 person gave a supersedeas bond and if the amount of the penalty is
27-20 reduced, the court shall order the release of the bond after the
27-21 person pays the amount.
27-22 (q) A penalty collected under this section shall be remitted
27-23 to the comptroller for deposit in the general revenue fund.
27-24 (r) All proceedings under this section are subject to the
27-25 Administrative Procedure and Texas Register Act (Article 6252-13a,
27-26 Vernon's Texas Civil Statutes).
27-27 SECTION 3.041. Subchapter C, Chapter 241, Health and Safety
28-1 Code, is amended by adding Section 241.0585 to read as follows:
28-2 Sec. 241.0585. RECOVERY OF COSTS. If the attorney general
28-3 brings an action to enforce an administrative penalty assessed
28-4 under Section 241.058 and the court orders the payment of the
28-5 penalty, the attorney general may recover reasonable expenses
28-6 incurred in the investigation, initiation, or prosecution of the
28-7 enforcement suit, including investigative costs, court costs,
28-8 reasonable attorney fees, witness fees, and deposition expenses.
28-9 SECTION 3.05. Section 462.008, Health and Safety Code, is
28-10 amended by amending Subsections (c) and (d) and adding Subsections
28-11 (e) through (g) to read as follows:
28-12 (c) An individual who commits an offense under this section
28-13 is subject on conviction to:
28-14 (1) a fine of not less than $50 or more than $25,000
28-15 for each violation and each day of a continuing violation;
28-16 (2) confinement in jail for not more than two years
28-17 for each violation and each day of a continuing violation; or
28-18 (3) both fine and confinement.
28-19 (d) A person other than an individual who commits an offense
28-20 under this section is subject on conviction to a fine of not less
28-21 than $500 or more than $100,000 for each violation and each day of
28-22 a continuing violation.
28-23 (e) If it is shown on the trial of an individual that the
28-24 individual has previously been convicted of an offense under this
28-25 section, the offense is punishable by:
28-26 (1) a fine of not less than $100 or more than $50,000
28-27 for each violation and each day of a continuing violation;
29-1 (2) confinement in jail for not more than four years
29-2 for each violation and each day of a continuing violation; or
29-3 (3) both fine and confinement.
29-4 (f) If it is shown on the trial of a person other than an
29-5 individual that the person previously has been convicted of an
29-6 offense under this section, the offense is punishable by a fine of
29-7 not less than $1,000 or more than $200,000 for each violation and
29-8 each day of a continuing violation.
29-9 (g) <An offense under this section is a misdemeanor
29-10 punishable by a fine of not more than $5,000, confinement in the
29-11 county jail for not more than one year, or both.>
29-12 <(d)> The appropriate district or county attorney shall
29-13 prosecute violations of this chapter.
29-14 SECTION 3.06. Section 464.014, Health and Safety Code, is
29-15 amended to read as follows:
29-16 Sec. 464.014. Denial, Revocation, SUSPENSION, or Nonrenewal
29-17 of License. (a) The executive director of the commission may
29-18 deny, revoke, suspend, or refuse to renew a license if the
29-19 applicant, license holder, or owner, director, administrator, or
29-20 clinical staff member of the facility:
29-21 (1) has a documented history of client abuse or
29-22 neglect; or
29-23 (2) fails to comply with this subchapter or with a
29-24 rule of the commission adopted under this subchapter.
29-25 (b) The denial, revocation, suspension, or nonrenewal takes
29-26 effect on the 30th day after the date on which the notice was
29-27 mailed unless:
30-1 (1) the commission secures an injunction under Section
30-2 464.015; or
30-3 (2) an administrative appeal is requested.
30-4 (c) If an administrative appeal is requested, the effective
30-5 date of the commission's original decision must be postponed to
30-6 allow the person whose license was denied, revoked, suspended, or
30-7 not renewed to participate in the appeal. The commission shall
30-8 provide an opportunity for the affected person to present
30-9 additional evidence or testimony to the commission.
30-10 (d) A person whose license is denied, revoked, suspended, or
30-11 not renewed is entitled to:
30-12 (1) appeal that decision at a hearing before the
30-13 commission or a hearings officer appointed by the commission; and
30-14 (2) receive notice of the date, time, and place of the
30-15 hearing not later than the 15th day before the date of the hearing.
30-16 (e) A request for a hearing must be received by the
30-17 commission not later than the 15th day after the date on which the
30-18 notice of denial, revocation, suspension, or nonrenewal is mailed
30-19 to the applicant or license holder.
30-20 (f) The commission may restrict attendance at an appeals
30-21 hearing to the parties and their agents.
30-22 (g) If a license is denied, revoked, suspended, or not
30-23 renewed after a hearing, the commission shall send to the applicant
30-24 or license holder a copy of the commission's findings and grounds
30-25 for the decision.
30-26 (h) An order denying, revoking, suspending, or refusing to
30-27 renew a license takes effect on the 31st day after the date on
31-1 which the applicant or license holder receives final notice of the
31-2 denial, revocation, suspension, or nonrenewal. A license holder
31-3 whose license is suspended or revoked may not admit new clients
31-4 until the license is reissued.
31-5 (i) The Administrative Procedure and Texas Register Act
31-6 (Article 6252-13a, Vernon's Texas Civil Statutes) applies to a
31-7 judicial review of a commission appeals hearing under this
31-8 subchapter.
31-9 SECTION 3.07. Section 464.015, Health and Safety Code, is
31-10 amended by amending Subsections (b) through (e) and adding
31-11 Subsections (f) and (g) to read as follows:
31-12 (b) A suit for injunctive relief, civil penalties authorized
31-13 by Section 464.017, or both, must be brought in Travis County or
31-14 the county in which the violation occurs.
31-15 (c) A district court, on petition of the commission, the
31-16 attorney general, or a district or county attorney, and on a
31-17 finding by the court that a person or facility is violating or has
31-18 violated this subchapter or a standard adopted under this
31-19 subchapter, shall grant any prohibitory or mandatory injunctive
31-20 relief warranted by the facts, including a temporary restraining
31-21 order, temporary injunction, or permanent injunction.
31-22 (d) The court granting <the> injunctive relief shall order
31-23 the person or facility to reimburse the commission and the party
31-24 bringing the suit for all costs of investigation and litigation,
31-25 including reasonable attorney's fees, reasonable investigative
31-26 expenses, court costs, witness fees, deposition expenses, and civil
31-27 administrative costs.
32-1 (e) At the request of the commission, the attorney general
32-2 or the appropriate district or county attorney shall institute and
32-3 conduct a suit authorized by Subsection (a) in the name of this
32-4 state.
32-5 (f) On his own initiative, the attorney general or a
32-6 district attorney or county attorney may maintain an action for
32-7 injunctive relief in the name of the state for a violation of this
32-8 subchapter or a standard adopted under this subchapter.
32-9 (g) The injunctive relief and civil penalty authorized by
32-10 this section and Section 464.017 are in addition to any other
32-11 civil, administrative, or criminal penalty provided by law.
32-12 SECTION 3.08. Section 464.017, Health and Safety Code, is
32-13 amended by amending Subsections (a), (c), and (e) and adding
32-14 Subsections (f) and (g) to read as follows:
32-15 (a) A person or facility is subject to a civil penalty of
32-16 not <less than $10 or> more than $25,000 <$200> for each day of
32-17 violation and for each act of violation of this subchapter or a
32-18 rule adopted under this subchapter. In determining the amount of
32-19 the civil penalty, the court shall consider:
32-20 (1) the person or facility's previous violations;
32-21 (2) the seriousness of the violation, including the
32-22 nature, circumstances, extent, and gravity of the violation;
32-23 (3) whether the health and safety of the public was
32-24 threatened by the violation;
32-25 (4) the demonstrated good faith of the person or
32-26 facility; and
32-27 (5) the amount necessary to deter future violations.
33-1 (c) At the request of the commission, the attorney general
33-2 or the appropriate district or county attorney shall institute and
33-3 conduct the suit authorized by Subsection (b) in the name of this
33-4 state. The commission and the party bringing the suit may recover
33-5 reasonable expenses incurred in obtaining civil penalties,
33-6 including investigation costs, court costs, reasonable attorney
33-7 fees, witness fees, and deposition expenses.
33-8 (e) On his own initiative, the attorney general, a district
33-9 attorney, or a county attorney may maintain an action for civil
33-10 penalties in the name of the state for a violation of this
33-11 subchapter or a standard adopted under this subchapter.
33-12 (f) Penalties collected under this section by the attorney
33-13 general shall be deposited to the credit of the alcohol and drug
33-14 abuse treatment licensure fund. Penalties collected under this
33-15 section by a district or county attorney shall be deposited to the
33-16 credit of the general fund of the county in which the suit was
33-17 heard.
33-18 (g) The commission and the party bringing the suit may
33-19 recover reasonable expenses incurred in obtaining civil penalties,
33-20 including investigation costs, court costs, reasonable attorney
33-21 fees, witness fees, and deposition expenses.
33-22 SECTION 3.09. Subchapter A, Chapter 464, Health and Safety
33-23 Code, is amended by adding Sections 464.018 and 464.019 to read as
33-24 follows:
33-25 Sec. 464.018. NOTICE OF SUIT. Not later than the seventh
33-26 day before the date on which the attorney general intends to bring
33-27 suit on his own initiative under Section 464.015 or 464.017, the
34-1 attorney general shall provide to the commission notice of the
34-2 suit. The attorney general is not required to provide notice of a
34-3 suit if the attorney general determines that waiting to bring suit
34-4 until the notice is provided will create an immediate threat to the
34-5 health and safety of a client. This section does not create a
34-6 requirement that the attorney general obtain the permission of or a
34-7 referral from the commission before filing suit.
34-8 Sec. 464.019. ADMINISTRATIVE PENALTY. (a) The commission
34-9 may impose an administrative penalty against a person licensed or
34-10 regulated under this chapter who violates this chapter or a rule or
34-11 order adopted under this chapter.
34-12 (b) The penalty for a violation may be in an amount not to
34-13 exceed $25,000. Each day a violation continues or occurs is a
34-14 separate violation for purposes of imposing a penalty.
34-15 (c) The amount of the penalty shall be based on:
34-16 (1) the seriousness of the violation, including the
34-17 nature, circumstances, extent, and gravity of any prohibited acts,
34-18 and the hazard or potential hazard created to the health, safety,
34-19 or economic welfare of the public;
34-20 (2) enforcement costs relating to the violation;
34-21 (3) the history of previous violations;
34-22 (4) the amount necessary to deter future violations;
34-23 (5) efforts to correct the violation; and
34-24 (6) any other matter that justice may require.
34-25 (d) If the executive director determines that a violation
34-26 has occurred, the director may issue to the commission a report
34-27 that states the facts on which the determination is based and the
35-1 director's recommendation on the imposition of a penalty, including
35-2 a recommendation on the amount of the penalty.
35-3 (e) Within 14 days after the date the report is issued, the
35-4 executive director shall give written notice of the report to the
35-5 person. The notice may be given by certified mail. The notice
35-6 must include a brief summary of the alleged violation and a
35-7 statement of the amount of the recommended penalty and must inform
35-8 the person that the person has a right to a hearing on the
35-9 occurrence of the violation, the amount of the penalty, or both the
35-10 occurrence of the violation and the amount of the penalty.
35-11 (f) Within 20 days after the date the person receives the
35-12 notice, the person in writing may accept the determination and
35-13 recommended penalty of the commissioner or may make a written
35-14 request for a hearing on the occurrence of the violation, the
35-15 amount of the penalty, or both the occurrence of the violation and
35-16 the amount of the penalty.
35-17 (g) If the person accepts the determination and recommended
35-18 penalty of the commissioner, the board by order shall approve the
35-19 determination and impose the recommended penalty.
35-20 (h) If the person requests a hearing or fails to respond
35-21 timely to the notice, the commissioner shall set a hearing and give
35-22 notice of the hearing to the person. The administrative law judge
35-23 shall make findings of fact and conclusions of law and promptly
35-24 issue to the board a proposal for a decision about the occurrence
35-25 of the violation and the amount of a proposed penalty. Based on
35-26 the findings of fact, conclusions of law, and proposal for a
35-27 decision, the board by order may find that a violation has occurred
36-1 and impose a penalty or may find that no violation occurred.
36-2 (i) The notice of the board's order given to the person
36-3 under the Administrative Procedure and Texas Register Act (Article
36-4 6252-13a, Vernon's Texas Civil Statutes) must include a statement
36-5 of the right of the person to judicial review of the order.
36-6 (j) Within 30 days after the date the board's order is final
36-7 as provided by Section 16(c), Administrative Procedure and Texas
36-8 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), the
36-9 person shall:
36-10 (1) pay the amount of the penalty;
36-11 (2) pay the amount of the penalty and file a petition
36-12 for judicial review contesting the occurrence of the violation, the
36-13 amount of the penalty, or both the occurrence of the violation and
36-14 the amount of the penalty; or
36-15 (3) without paying the amount of the penalty, file a
36-16 petition for judicial review contesting the occurrence of the
36-17 violation, the amount of the penalty, or both the occurrence of the
36-18 violation and the amount of the penalty.
36-19 (k) Within the 30-day period, a person who acts under
36-20 Subsection (j)(3) may:
36-21 (1) stay enforcement of the penalty by:
36-22 (A) paying the amount of the penalty to the
36-23 court for placement in an escrow account; or
36-24 (B) giving to the court a supersedeas bond that
36-25 is approved by the court for the amount of the penalty and that is
36-26 effective until all judicial review of the board's order is final;
36-27 or
37-1 (2) request the court to stay enforcement of the
37-2 penalty by:
37-3 (A) filing with the court a sworn affidavit of
37-4 the person stating that the person is financially unable to pay the
37-5 amount of the penalty and is financially unable to give the
37-6 supersedeas bond; and
37-7 (B) giving a copy of the affidavit to the
37-8 commissioner by certified mail.
37-9 (l) The commissioner on receipt of a copy of an affidavit
37-10 under Subsection (k)(2) may file with the court within five days
37-11 after the date the copy is received a contest to the affidavit.
37-12 The court shall hold a hearing on the facts alleged in the
37-13 affidavit as soon as practicable and shall stay the enforcement of
37-14 the penalty on finding that the alleged facts are true. The person
37-15 who files an affidavit has the burden of proving that the person is
37-16 financially unable to pay the amount of the penalty and to give a
37-17 supersedeas bond.
37-18 (m) If the person does not pay the amount of the penalty and
37-19 the enforcement of the penalty is not stayed, the commissioner may
37-20 refer the matter to the attorney general for collection of the
37-21 amount of the penalty.
37-22 (n) Judicial review of the order of the board:
37-23 (1) is instituted by filing a petition as provided by
37-24 Section 19, Administrative Procedure and Texas Register Act
37-25 (Article 6252-13a, Vernon's Texas Civil Statutes); and
37-26 (2) is under the substantial evidence rule.
37-27 (o) If the court sustains the occurrence of the violation,
38-1 the court may uphold or reduce the amount of the penalty and order
38-2 the person to pay the full or reduced amount of the penalty. If
38-3 the court does not sustain the occurrence of the violation, the
38-4 court shall order that no penalty is owed.
38-5 (p) When the judgment of the court becomes final, the court
38-6 shall proceed under this subsection. If the person paid the amount
38-7 of the penalty and if that amount is reduced or is not upheld by
38-8 the court, the court shall order that the appropriate amount plus
38-9 accrued interest be remitted to the person. The rate of the
38-10 interest is the rate charged on loans to depository institutions by
38-11 the New York Federal Reserve Bank, and the interest shall be paid
38-12 for the period beginning on the date the penalty was paid and
38-13 ending on the date the penalty is remitted. If the person gave a
38-14 supersedeas bond and if the amount of the penalty is not upheld by
38-15 the court, the court shall order the release of the bond. If the
38-16 person gave a supersedeas bond and if the amount of the penalty is
38-17 reduced, the court shall order the release of the bond after the
38-18 person pays the amount.
38-19 (q) A penalty collected under this section shall be remitted
38-20 to the comptroller for deposit in the general revenue fund.
38-21 (r) All proceedings under this section are subject to the
38-22 Administrative Procedure and Texas Register Act (Article 6252-13a,
38-23 Vernon's Texas Civil Statutes).
38-24 SECTION 2.091. Subchapter A, Chapter 464, Health and Safety
38-25 Code, is amended by adding Section 464.0195 to read as follows:
38-26 Sec. 464.0195. RECOVERY OF COSTS. If the attorney general
38-27 brings an action to enforce an administrative penalty assessed
39-1 under Section 464.019 and the court orders the payment of the
39-2 penalty, the attorney general may recover reasonable expenses
39-3 incurred in the investigation, initiation, or prosecution of the
39-4 enforcement suit, including investigative costs, court costs,
39-5 reasonable attorney fees, witness fees, and deposition expenses.
39-6 SECTION 3.10. (a) Section 571.020, Health and Safety Code,
39-7 is amended to read as follows:
39-8 Sec. 571.020. CRIMINAL PENALTIES. (a) A person commits an
39-9 offense if the person intentionally causes, conspires with another
39-10 to cause, or assists another to cause the unwarranted commitment of
39-11 a person to a mental health facility. <An offense under this
39-12 subsection is a misdemeanor punishable by a fine of not more than
39-13 $5,000, confinement in the county jail for not more than two years,
39-14 or both.>
39-15 (b) A person commits an offense if the person knowingly
39-16 violates a provision of this subtitle. <An offense under this
39-17 subsection is a misdemeanor punishable by a fine of not more than
39-18 $5,000, confinement in the county jail for not more than one year,
39-19 or both.>
39-20 (c) An individual who commits an offense under this section
39-21 is subject on conviction to:
39-22 (1) a fine of not less than $50 or more than $25,000
39-23 for each violation and each day of a continuing violation;
39-24 (2) confinement in jail for not more than two years
39-25 for each violation and each day of a continuing violation; or
39-26 (3) both fine and confinement.
39-27 (d) A person other than an individual who commits an offense
40-1 under this section is subject on conviction to a fine of not less
40-2 than $500 or more than $100,000 for each violation and each day of
40-3 a continuing violation.
40-4 (e) If it is shown on the trial of an individual that the
40-5 individual has previously been convicted of an offense under this
40-6 section, the offense is punishable by:
40-7 (1) a fine of not less than $100 or more than $50,000
40-8 for each violation and each day of a continuing violation;
40-9 (2) confinement in jail for not more than four years
40-10 for each violation and each day of a continuing violation; or
40-11 (3) both fine and confinement.
40-12 (f) If it is shown on the trial of a person other than an
40-13 individual that the person previously has been convicted of an
40-14 offense under this section, the offense is punishable by a fine of
40-15 not less than $1,000 or more than $200,000 for each violation and
40-16 each day of a continuing violation.
40-17 (b) Section 3, Chapter 567, Acts of the 72nd Legislature,
40-18 Regular Session, 1991, is repealed.
40-19 SECTION 3.11. Chapter 571, Health and Safety Code, is
40-20 amended by adding Sections 571.022, 571.023, 571.024, and 571.025
40-21 to read as follows:
40-22 Sec. 571.022. INJUNCTION. (a) At the request of the
40-23 department, the attorney general or the appropriate district or
40-24 county attorney shall institute and conduct in the name of the
40-25 state a suit for a violation of this subtitle or a rule adopted
40-26 under this subtitle.
40-27 (b) On his own initiative, the attorney general or district
41-1 or county attorney may maintain an action for a violation of this
41-2 subtitle or a rule adopted under this subtitle in the name of the
41-3 state.
41-4 (c) Venue may be maintained in Travis County or in the
41-5 county in which the violation occurred.
41-6 (d) The district court may grant any prohibitory or
41-7 mandatory injunctive relief warranted by the facts, including a
41-8 temporary restraining order, temporary injunction, or permanent
41-9 injunction.
41-10 Sec. 571.023. CIVIL PENALTY. (a) A person is subject to a
41-11 civil penalty of not more than $25,000 for each day of violation
41-12 and for each act of violation of this subtitle or a rule adopted
41-13 under this subtitle. In determining the amount of the civil
41-14 penalty, the court shall consider:
41-15 (1) the person's or facility's previous violations;
41-16 (2) the seriousness of the violation, including the
41-17 nature, circumstances, extent, and gravity of the violation;
41-18 (3) whether the health and safety of the public was
41-19 threatened by the violation;
41-20 (4) the demonstrated good faith of the person or
41-21 facility; and
41-22 (5) the amount necessary to deter future violations.
41-23 (b) The department or party bringing the suit may:
41-24 (1) combine a suit to assess and recover civil
41-25 penalties with a suit for injunctive relief brought under Section
41-26 571.022 or 577.019; or
41-27 (2) file a suit to assess and recover civil penalties
42-1 independently of a suit for injunctive relief.
42-2 (c) At the request of the department, the attorney general
42-3 or the appropriate district or county attorney shall institute and
42-4 conduct the suit authorized by Subsection (b) in the name of the
42-5 state.
42-6 (d) On his own initiative, the attorney general, district
42-7 attorney, or county attorney may maintain an action as authorized
42-8 by Subsection (b) for a violation of this subtitle or a rule
42-9 adopted under this subtitle in the name of the state.
42-10 (e) The department and the party bringing the suit may
42-11 recover reasonable expenses incurred in obtaining injunctive
42-12 relief, civil penalties, or both, including investigation costs,
42-13 court costs, reasonable attorney fees, witness fees, and deposition
42-14 expenses.
42-15 (f) A penalty collected under this section by the attorney
42-16 general shall be deposited to the credit of the general revenue
42-17 fund. A penalty collected under this section by a district or
42-18 county attorney shall be deposited to the credit of the general
42-19 fund of the county in which the suit was heard.
42-20 (g) The civil penalty and injunctive relief authorized by
42-21 this section and Sections 571.022 and 577.019 are in addition to
42-22 any other civil, administrative, or criminal remedies provided by
42-23 law.
42-24 Sec. 571.024. NOTICE OF SUIT. Not later than the seventh
42-25 day before the date on which the attorney general intends to bring
42-26 suit on his own initiative, the attorney general shall provide to
42-27 the department notice of the suit. The attorney general is not
43-1 required to provide notice of a suit if the attorney general
43-2 determines that waiting to bring suit until the notice is provided
43-3 will create an immediate threat to the health and safety of a
43-4 patient. This section does not create a requirement that the
43-5 attorney general obtain the permission of or a referral from the
43-6 department before filing suit.
43-7 Sec. 571.025. ADMINISTRATIVE PENALTY. (a) The board may
43-8 impose an administrative penalty against a person licensed or
43-9 regulated under this subtitle who violates this subtitle or a rule
43-10 or order adopted under this subtitle.
43-11 (b) The penalty for a violation may be in an amount not to
43-12 exceed $25,000. Each day a violation continues or occurs is a
43-13 separate violation for purposes of imposing a penalty.
43-14 (c) The amount of the penalty shall be based on:
43-15 (1) the seriousness of the violation, including the
43-16 nature, circumstances, extent, and gravity of any prohibited acts,
43-17 and the hazard or potential hazard created to the health, safety,
43-18 or economic welfare of the public;
43-19 (2) enforcement costs relating to the violation,
43-20 including investigation costs, witness fees, and deposition
43-21 expenses;
43-22 (3) the history of previous violations;
43-23 (4) the amount necessary to deter future violations;
43-24 (5) efforts to correct the violation; and
43-25 (6) any other matter that justice may require.
43-26 (d) If the commissioner determines that a violation has
43-27 occurred, the commissioner may issue to the board a report that
44-1 states the facts on which the determination is based and the
44-2 commissioner's recommendation on the imposition of a penalty,
44-3 including a recommendation on the amount of the penalty.
44-4 (e) Within 14 days after the date the report is issued, the
44-5 commissioner shall give written notice of the report to the person.
44-6 The notice may be given by certified mail. The notice must include
44-7 a brief summary of the alleged violation and a statement of the
44-8 amount of the recommended penalty and must inform the person that
44-9 the person has a right to a hearing on the occurrence of the
44-10 violation, the amount of the penalty, or both the occurrence of the
44-11 violation and the amount of the penalty.
44-12 (f) Within 20 days after the date the person receives the
44-13 notice, the person in writing may accept the determination and
44-14 recommended penalty of the commissioner or may make a written
44-15 request for a hearing on the occurrence of the violation, the
44-16 amount of the penalty, or both the occurrence of the violation and
44-17 the amount of the penalty.
44-18 (g) If the person accepts the determination and recommended
44-19 penalty of the commissioner, the board by order shall approve the
44-20 determination and impose the recommended penalty.
44-21 (h) If the person requests a hearing or fails to respond
44-22 timely to the notice, the commissioner shall set a hearing and give
44-23 notice of the hearing to the person. The administrative law judge
44-24 shall make findings of fact and conclusions of law and promptly
44-25 issue to the board a proposal for a decision about the occurrence
44-26 of the violation and the amount of a proposed penalty. Based on
44-27 the findings of fact, conclusions of law, and proposal for a
45-1 decision, the board by order may find that a violation has occurred
45-2 and impose a penalty or may find that no violation occurred.
45-3 (i) The notice of the board's order given to the person
45-4 under the Administrative Procedure and Texas Register Act (Article
45-5 6252-13a, Vernon's Texas Civil Statutes) must include a statement
45-6 of the right of the person to judicial review of the order.
45-7 (j) Within 30 days after the date the board's order is final
45-8 as provided by Section 16(c), Administrative Procedure and Texas
45-9 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), the
45-10 person shall:
45-11 (1) pay the amount of the penalty;
45-12 (2) pay the amount of the penalty and file a petition
45-13 for judicial review contesting the occurrence of the violation, the
45-14 amount of the penalty, or both the occurrence of the violation and
45-15 the amount of the penalty; or
45-16 (3) without paying the amount of the penalty, file a
45-17 petition for judicial review contesting the occurrence of the
45-18 violation, the amount of the penalty, or both the occurrence of the
45-19 violation and the amount of the penalty.
45-20 (k) Within the 30-day period, a person who acts under
45-21 Subsection (j)(3) may:
45-22 (1) stay enforcement of the penalty by:
45-23 (A) paying the amount of the penalty to the
45-24 court for placement in an escrow account; or
45-25 (B) giving to the court a supersedeas bond that
45-26 is approved by the court for the amount of the penalty and that is
45-27 effective until all judicial review of the board's order is final;
46-1 or
46-2 (2) request the court to stay enforcement of the
46-3 penalty by:
46-4 (A) filing with the court a sworn affidavit of
46-5 the person stating that the person is financially unable to pay the
46-6 amount of the penalty and is financially unable to give the
46-7 supersedeas bond; and
46-8 (B) giving a copy of the affidavit to the
46-9 commissioner by certified mail.
46-10 (l) The commissioner on receipt of a copy of an affidavit
46-11 under Subsection (k)(2) may file with the court within five days
46-12 after the date the copy is received a contest to the affidavit.
46-13 The court shall hold a hearing on the facts alleged in the
46-14 affidavit as soon as practicable and shall stay the enforcement of
46-15 the penalty on finding that the alleged facts are true. The person
46-16 who files an affidavit has the burden of proving that the person is
46-17 financially unable to pay the amount of the penalty and to give a
46-18 supersedeas bond.
46-19 (m) If the person does not pay the amount of the penalty and
46-20 the enforcement of the penalty is not stayed, the commissioner may
46-21 refer the matter to the attorney general for collection of the
46-22 amount of the penalty.
46-23 (n) Judicial review of the order of the board:
46-24 (1) is instituted by filing a petition as provided by
46-25 Section 19, Administrative Procedure and Texas Register Act
46-26 (Article 6252-13a, Vernon's Texas Civil Statutes); and
46-27 (2) is under the substantial evidence rule.
47-1 (o) If the court sustains the occurrence of the violation,
47-2 the court may uphold or reduce the amount of the penalty and order
47-3 the person to pay the full or reduced amount of the penalty. If
47-4 the court does not sustain the occurrence of the violation, the
47-5 court shall order that no penalty is owed.
47-6 (p) When the judgment of the court becomes final, the court
47-7 shall proceed under this subsection. If the person paid the amount
47-8 of the penalty and if that amount is reduced or is not upheld by
47-9 the court, the court shall order that the appropriate amount plus
47-10 accrued interest be remitted to the person. The rate of the
47-11 interest is the rate charged on loans to depository institutions by
47-12 the New York Federal Reserve Bank, and the interest shall be paid
47-13 for the period beginning on the date the penalty was paid and
47-14 ending on the date the penalty is remitted. If the person gave a
47-15 supersedeas bond and if the amount of the penalty is not upheld by
47-16 the court, the court shall order the release of the bond. If the
47-17 person gave a supersedeas bond and if the amount of the penalty is
47-18 reduced, the court shall order the release of the bond after the
47-19 person pays the amount.
47-20 (q) A penalty collected under this section shall be remitted
47-21 to the comptroller for deposit in the general revenue fund.
47-22 (r) All proceedings under this section are subject to the
47-23 Administrative Procedure and Texas Register Act (Article 6252-13a,
47-24 Vernon's Texas Civil Statutes).
47-25 SECTION 3.111. Chapter 571, Health and Safety Code, is
47-26 amended by adding Section 571.026 to read as follows:
47-27 Sec. 571.026. RECOVERY OF COSTS. If the attorney general
48-1 brings an action to enforce an administrative penalty assessed
48-2 under this chapter and the court orders the payment of the penalty,
48-3 the attorney general may recover reasonable expenses incurred in
48-4 the investigation, initiation, or prosecution of the enforcement
48-5 suit, including investigative costs, court costs, reasonable
48-6 attorney fees, witness fees, and deposition expenses.
48-7 SECTION 3.12. Section 577.016, Health and Safety Code, is
48-8 amended by adding Subsection (e) to read as follows:
48-9 (e) A license holder whose license is suspended or revoked
48-10 may not admit new patients until the license is reissued.
48-11 SECTION 3.13. Section 577.019, Health and Safety Code, is
48-12 amended to read as follows:
48-13 Sec. 577.019. INJUNCTION. (a) The department, in the name
48-14 of the state, may maintain an action in a district court of Travis
48-15 County or in the county in which the violation occurs for an
48-16 injunction or other process against any person to restrain the
48-17 person from operating a mental hospital or mental health facility
48-18 that is not licensed as required by this chapter.
48-19 (b) The district court <of Travis County, for cause shown,>
48-20 may grant any prohibitory or mandatory relief warranted by the
48-21 facts, including a temporary restraining order, temporary
48-22 injunction, or permanent injunction <restrain a violation of this
48-23 chapter>.
48-24 (c) At the request of the department or on the initiative of
48-25 the attorney general or district or county attorney, the attorney
48-26 general or the appropriate district or county attorney shall
48-27 institute and conduct a suit authorized by this section in the name
49-1 of the state. The attorney general may recover reasonable expenses
49-2 incurred in instituting and conducting a suit authorized by this
49-3 section, including investigative costs, court costs, reasonable
49-4 attorney fees, witness fees, and deposition expenses.
49-5 ARTICLE 4
49-6 SECTION 4.01. Subsection (e), Section 572.001, Health and
49-7 Safety Code, is amended to read as follows:
49-8 (e) A request for admission as a voluntary patient must
49-9 state that the person for whom admission is requested agrees to
49-10 voluntarily remain in the facility until the person's discharge and
49-11 that the person consents to the diagnosis, observation, care, and
49-12 treatment provided until the earlier of:
49-13 (1) the person's discharge; or
49-14 (2) the period prescribed <expiration of 96 hours
49-15 after the time a written request for release is filed as provided>
49-16 by Section 572.004.
49-17 SECTION 4.02. (a) Section 572.004, Health and Safety Code,
49-18 is amended to read as follows:
49-19 Sec. 572.004. DISCHARGE <OR RELEASE>. (a) A <Except as
49-20 provided by Subsection (b), a> voluntary patient is entitled to
49-21 leave an inpatient mental health facility in accordance with this
49-22 section <within 96 hours> after <the time> a written request for
49-23 discharge <release> is filed with the facility administrator or the
49-24 administrator's designee. The request must be signed, timed, and
49-25 dated by the patient or a person legally responsible for the
49-26 patient and must be made a part of the patient's clinical record.
49-27 If a patient informs an employee of or person associated with the
50-1 facility of the patient's desire to leave the facility, the
50-2 employee or person shall, as soon as possible, assist the patient
50-3 in creating the written request and present it to the patient for
50-4 the patient's signature <patient's admission>.
50-5 (b) The facility shall, within four hours after a request
50-6 for discharge is filed, notify the physician responsible for the
50-7 patient's treatment. If that physician is not available during
50-8 that period, the facility shall notify any available physician of
50-9 the request.
50-10 (c) The notified physician shall discharge the patient
50-11 before the end of the four-hour period unless the physician has
50-12 reasonable cause to believe that the patient might meet the
50-13 criteria for court-ordered mental health services or emergency
50-14 detention.
50-15 (d) A physician who has reasonable cause to believe that a
50-16 patient might meet the criteria for court-ordered mental health
50-17 services or emergency detention shall examine the patient as soon
50-18 as possible within 24 hours after the time the request for
50-19 discharge is filed. The physician shall discharge the patient on
50-20 completion of the examination unless the physician determines that
50-21 the person meets the criteria for court-ordered mental health
50-22 services or emergency detention. If the physician makes a
50-23 determination that the patient meets the criteria for court-ordered
50-24 mental health services or emergency detention, the physician shall,
50-25 not later than 4 p.m. on the next succeeding business day after the
50-26 date on which the examination occurs, either discharge the patient
50-27 or file an application for court-ordered mental health services or
51-1 emergency detention and obtain a written order for further
51-2 detention. The physician shall notify the patient if the physician
51-3 intends to detain the patient under this subsection or intends to
51-4 file an application for court-ordered mental health services or
51-5 emergency detention. A decision to detain a patient under this
51-6 subsection and the reasons for the decision shall be made a part of
51-7 the patient's clinical record.
51-8 (e) If extremely hazardous weather conditions exist or a
51-9 disaster occurs, the physician may request the judge of a court
51-10 that has jurisdiction over proceedings brought under Chapter 574 to
51-11 extend the period during which the patient may be detained. The
51-12 judge or a magistrate appointed by the judge may by written order
51-13 made each day extend the period during which the patient may be
51-14 detained until 4 p.m. on the first succeeding business day. The
51-15 written order must declare that an emergency exists because of the
51-16 weather or the occurrence of a disaster.
51-17 (f) The patient is not entitled to leave the facility if
51-18 before the end of the <96 hour> period prescribed by this section:
51-19 (1) a written withdrawal of the request for discharge
51-20 <release> is filed; or
51-21 (2) an application for court-ordered mental health
51-22 services or emergency detention is filed and the patient is
51-23 detained in accordance with this subtitle.
51-24 (g) <(c)> A plan for continuing care shall be prepared in
51-25 accordance with Section 574.081 for each patient discharged. If
51-26 sufficient time to prepare a continuing care plan before discharge
51-27 is not available, the plan may be prepared and mailed to the
52-1 appropriate person within 24 hours after the patient is discharged
52-2 <or released if sufficient time is available before release>.
52-3 (h) <(d)> The patient or other person who files a request
52-4 for discharge <release> of a patient shall be notified that the
52-5 person filing the request assumes all responsibility for the
52-6 patient on discharge.
52-7 (b) In addition to the substantive changes made by this
52-8 section, this section conforms Section 572.004, Health and Safety
52-9 Code, to Section 4, Chapter 567, Acts of the 72nd Legislature,
52-10 Regular Session, 1991.
52-11 (c) Section 4, Chapter 567, Acts of the 72nd Legislature,
52-12 Regular Session, 1991, is repealed.
52-13 SECTION 4.03. Chapter 572, Health and Safety Code, is
52-14 amended by adding Section 572.0025 to read as follows:
52-15 Sec. 572.0025. INTAKE, ASSESSMENT, AND ADMISSION. (a) The
52-16 board shall adopt rules governing the voluntary admission of a
52-17 patient to an inpatient mental health facility, including rules
52-18 governing the intake and assessment procedures of the admission
52-19 process.
52-20 (b) The rules governing the intake process shall establish
52-21 minimum standards for:
52-22 (1) reviewing a prospective patient's finances and
52-23 insurance benefits;
52-24 (2) explaining to a prospective patient the patient's
52-25 rights; and
52-26 (3) explaining to a prospective patient the facility's
52-27 services and treatment process.
53-1 (c) The assessment provided for by the rules may be
53-2 conducted only by a professional who meets the qualifications
53-3 prescribed by board rules.
53-4 (d) The rules governing the assessment process shall
53-5 prescribe:
53-6 (1) the types of professionals who may conduct an
53-7 assessment;
53-8 (2) the minimum credentials each type of professional
53-9 must have to conduct an assessment; and
53-10 (3) the type of assessment that professional may
53-11 conduct.
53-12 (e) In accordance with board rule, a facility shall provide
53-13 annually a minimum of eight hours of inservice training regarding
53-14 intake and assessment for persons who will be conducting an intake
53-15 or assessment for the facility. A person may not conduct intake or
53-16 assessments without having completed the initial and applicable
53-17 annual inservice training.
53-18 (f) A prospective voluntary patient may not be formally
53-19 accepted for treatment in a facility unless:
53-20 (1) the facility has a physician's signed order
53-21 admitting the prospective patient; and
53-22 (2) the facility administrator or a person designated
53-23 by the administrator has agreed to accept the prospective patient
53-24 and has signed a statement to that effect.
53-25 (g) An assessment conducted as required by rules adopted
53-26 under this section does not satisfy a statutory or regulatory
53-27 requirement for a personal evaluation of a patient or a prospective
54-1 patient by a physician before admission.
54-2 (h) In this section:
54-3 (1) "Admission" means the formal acceptance of a
54-4 prospective patient to a facility.
54-5 (2) "Assessment" means the administrative process a
54-6 facility uses to gather information from a prospective patient,
54-7 including a medical history and the problem for which the patient
54-8 is seeking treatment, to determine whether a prospective patient
54-9 should be examined by a physician to determine if admission is
54-10 clinically justified.
54-11 (3) "Intake" means the administrative process for
54-12 gathering information about a prospective patient and giving a
54-13 prospective patient information about the facility and the
54-14 facility's treatment and services.
54-15 SECTION 4.04. Subsections (a), (b), and (d), Section
54-16 574.081, Health and Safety Code, are amended to read as follows:
54-17 (a) The physician responsible for the patient's treatment
54-18 <facility administrator> shall prepare a continuing care plan for a
54-19 patient who is scheduled to be furloughed or discharged unless <if>
54-20 the patient does not require <requires> continuing care.
54-21 (b) The physician <facility administrator> shall prepare the
54-22 plan as prescribed by department rules and shall consult the
54-23 patient and the mental health authority in the area in which the
54-24 patient will reside before preparing the plan. The mental health
54-25 authority is not required to participate in preparing a plan for a
54-26 patient furloughed or discharged from a private mental health
54-27 facility.
55-1 (d) The physician <facility administrator> shall deliver the
55-2 plan and other appropriate information to the community center or
55-3 other provider that will deliver the services if:
55-4 (1) the services are provided by:
55-5 (A) a community center or other provider that
55-6 serves the county in which the patient will reside and that has
55-7 been designated by the commissioner to perform continuing care
55-8 services; or
55-9 (B) any other provider that agrees to accept the
55-10 referral; and
55-11 (2) the provision of care by the center or provider is
55-12 appropriate.
55-13 SECTION 4.05. Section 574.081, Health and Safety Code, is
55-14 amended by adding Subsection (f) to read as follows:
55-15 (f) A physician who believes that a patient does not require
55-16 continuing care and who does not prepare a continuing care plan
55-17 under this section shall document in the patient's treatment record
55-18 the reasons for that belief.
55-19 SECTION 4.06. Section 576.008, Health and Safety Code, is
55-20 amended to read as follows:
55-21 Sec. 576.008. NOTIFICATION OF PROTECTION AND ADVOCACY
55-22 SYSTEM. A patient shall be informed in writing, at the time of
55-23 admission and <or> discharge, of the existence, purpose, telephone
55-24 number, and address of the protection and advocacy system
55-25 established in this state under the federal Protection and Advocacy
55-26 for Mentally Ill Individuals Act of 1986 (42 U.S.C. Sec. 10801, et
55-27 seq.).
56-1 SECTION 4.07. Chapter 577, Health and Safety Code, is
56-2 amended by adding Section 577.0101 to read as follows:
56-3 Sec. 577.0101. NOTIFICATION OF TRANSFER OR REFERRAL.
56-4 (a) The board shall adopt rules governing the transfer or referral
56-5 of a patient from a private mental hospital to an inpatient mental
56-6 health facility.
56-7 (b) The rules must provide that before a private mental
56-8 hospital may transfer or refer a patient, the hospital must:
56-9 (1) provide to the receiving inpatient mental health
56-10 facility notice of the hospital's intent to transfer a patient;
56-11 (2) provide to the receiving inpatient mental health
56-12 facility information relating to the patient's diagnosis and
56-13 condition; and
56-14 (3) obtain verification from the receiving inpatient
56-15 mental health facility that the facility has the space, personnel,
56-16 and services necessary to provide appropriate care to the patient.
56-17 (c) The rules must also require that the private mental
56-18 hospital send the patient's appropriate records, or a copy of the
56-19 records, if any, to the receiving inpatient mental health facility.
56-20 SECTION 4.08. Subchapter B, Chapter 462, Health and Safety
56-21 Code, is amended by adding Section 462.025 to read as follows:
56-22 Sec. 462.025. INTAKE, ASSESSMENT, AND ADMISSION. (a) The
56-23 commission shall adopt rules governing the voluntary admission of a
56-24 patient to a treatment facility, including rules governing the
56-25 intake and assessment procedures of the admission process.
56-26 (b) The rules governing the intake process shall establish
56-27 minimum standards for:
57-1 (1) reviewing a prospective patient's finances and
57-2 insurance benefits;
57-3 (2) explaining to a prospective patient the patient's
57-4 rights; and
57-5 (3) explaining to a prospective patient the facility's
57-6 services and treatment process.
57-7 (c) The assessment provided for by the rules may be
57-8 conducted only by a professional who meets the qualifications
57-9 prescribed by commission rules.
57-10 (d) The rules governing the assessment process shall
57-11 prescribe:
57-12 (1) the types of professionals who may conduct an
57-13 assessment;
57-14 (2) the minimum credentials each type of professional
57-15 must have to conduct an assessment; and
57-16 (3) the type of assessment that professional may
57-17 conduct.
57-18 (e) In accordance with commission rule, a treatment facility
57-19 shall provide annually a minimum of eight hours of inservice
57-20 training regarding intake and assessment for persons who will be
57-21 conducting an intake or assessment for the facility. A person may
57-22 not conduct intake or assessments without having completed the
57-23 initial and applicable annual inservice training.
57-24 (f) A prospective voluntary patient may not be formally
57-25 accepted for chemical dependency treatment in a treatment facility
57-26 unless the facility's administrator or a person designated by the
57-27 administrator has agreed to accept the prospective patient and has
58-1 signed a statement to that effect.
58-2 (g) An assessment conducted as required by rules adopted
58-3 under this section does not satisfy a statutory or regulatory
58-4 requirement for a personal evaluation of a patient or a prospective
58-5 patient by a qualified professional before admission.
58-6 (h) In this section:
58-7 (1) "Admission" means the formal acceptance of a
58-8 prospective patient to a treatment facility.
58-9 (2) "Assessment" means the administrative process a
58-10 treatment facility uses to gather information from a prospective
58-11 patient, including a medical history and the problem for which the
58-12 patient is seeking treatment, to determine whether a prospective
58-13 patient should be admitted.
58-14 (3) "Intake" means the administrative process for
58-15 gathering information about a prospective patient and giving a
58-16 prospective patient information about the treatment facility and
58-17 the facility's treatment and services.
58-18 SECTION 4.09. This article takes effect immediately.
58-19 ARTICLE 5
58-20 SECTION 5.01. Subtitle C, Title 7, Health and Safety Code,
58-21 is amended by adding Chapter 578 to read as follows:
58-22 CHAPTER 578. ELECTROCONVULSIVE AND OTHER THERAPIES
58-23 Sec. 578.001. APPLICATION. This chapter applies to the use
58-24 of electroconvulsive therapy by any person, including a private
58-25 physician who uses the therapy on an outpatient basis.
58-26 Sec. 578.002. USE OF ELECTROCONVULSIVE THERAPY.
58-27 (a) Electroconvulsive therapy may not be used on a person who is
59-1 younger than 16 years of age.
59-2 (b) Unless the person consents to the use of the therapy in
59-3 accordance with Section 578.003, electroconvulsive therapy may not
59-4 be used on:
59-5 (1) a person who is 16 years of age or older and who
59-6 is voluntarily receiving mental health services; or
59-7 (2) an involuntary patient who is 16 years of age or
59-8 older and who has not been adjudicated by an appropriate court of
59-9 law as incompetent to manage the patient's personal affairs.
59-10 (c) Electroconvulsive therapy may not be used on an
59-11 involuntary patient who is 16 years of age or older and who has
59-12 been adjudicated incompetent to manage the patient's personal
59-13 affairs unless the patient's guardian of the person consents to the
59-14 treatment in accordance with Section 578.003. The decision of the
59-15 guardian must be based on knowledge of what the patient would
59-16 desire, if known.
59-17 Sec. 578.003. CONSENT TO THERAPY. (a) The board by rule
59-18 shall adopt a standard written consent form to be used when
59-19 electroconvulsive therapy is considered. The board by rule shall
59-20 also prescribe the information that must be contained in the
59-21 written supplement required under Subsection (c). In addition to
59-22 the information required under this section, the form must include
59-23 the information required by the Texas Medical Disclosure Panel for
59-24 electroconvulsive therapy. In developing the form, the board shall
59-25 consider recommendations of the panel. Use of the consent form
59-26 prescribed by the board in the manner prescribed by this section
59-27 creates a rebuttable presumption that the disclosure requirements
60-1 of Sections 6.05 and 6.06, Medical Liability and Insurance
60-2 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
60-3 Statutes), have been met.
60-4 (b) The written consent form must clearly and explicitly
60-5 state:
60-6 (1) the nature and purpose of the procedure;
60-7 (2) the nature, degree, duration, and probability of
60-8 the side effects and significant risks of the treatment commonly
60-9 known by the medical profession, especially noting the possible
60-10 degree and duration of memory loss, the possibility of permanent
60-11 irrevocable memory loss, and the remote possibility of death;
60-12 (3) that there is a division of opinion as to the
60-13 efficacy of the procedure; and
60-14 (4) the probable degree and duration of improvement or
60-15 remission expected with or without the procedure.
60-16 (c) Before a patient receives each electroconvulsive
60-17 treatment, the hospital, facility, or physician administering the
60-18 therapy shall ensure that:
60-19 (1) the patient and the patient's guardian of the
60-20 person, if any, receives a written copy of the consent form that is
60-21 in the person's primary language, if possible;
60-22 (2) the patient and the patient's guardian of the
60-23 person, if any, receives a written supplement that contains related
60-24 information that pertains to the particular patient being treated;
60-25 (3) the contents of the consent form and the written
60-26 supplement are explained to the patient and the patient's guardian
60-27 of the person, if any:
61-1 (A) orally, in simple, nontechnical terms in the
61-2 person's primary language, if possible; or
61-3 (B) through the use of a means reasonably
61-4 calculated to communicate with a hearing impaired or visually
61-5 impaired person, if applicable;
61-6 (4) the patient or the patient's guardian of the
61-7 person, as appropriate, signs a copy of the consent form stating
61-8 that the person has read the consent form and the written
61-9 supplement and understands the information included in the
61-10 documents; and
61-11 (5) the signed copy is made a part of the patient's
61-12 clinical record.
61-13 (d) Consent given under this section is not valid unless the
61-14 person giving the consent understands the information presented and
61-15 consents voluntarily and without coercion or undue influence.
61-16 Sec. 578.004. WITHDRAWAL OF CONSENT. (a) A patient or
61-17 guardian who consents to the administration of electroconvulsive
61-18 therapy may revoke the consent for any reason and at any time.
61-19 (b) Revocation of consent is effective immediately.
61-20 Sec. 578.005. PHYSICIAN REQUIREMENT. (a) Only a physician
61-21 may administer electroconvulsive therapy.
61-22 (b) A physician may not delegate the act of administering
61-23 the therapy. A nonphysician who administers electroconvulsive
61-24 therapy is considered to be practicing medicine in violation of the
61-25 Medical Practice Act (Article 4495b, Vernon's Texas Civil
61-26 Statutes).
61-27 Sec. 578.006. REGISTRATION OF EQUIPMENT. (a) A person may
62-1 not administer electroconvulsive therapy unless the equipment used
62-2 to administer the therapy is registered with the department.
62-3 (b) A mental hospital or facility administering
62-4 electroconvulsive therapy or a private physician administering the
62-5 therapy on an outpatient basis must file an application for
62-6 registration under this section. The applicant must submit the
62-7 application to the department on a form prescribed by the
62-8 department.
62-9 (c) The application must be accompanied by a nonrefundable
62-10 application fee. The board shall set the fee in a reasonable
62-11 amount not to exceed the cost to the department to administer this
62-12 section.
62-13 (d) The application must contain:
62-14 (1) the model, manufacturer, and age of each piece of
62-15 equipment used to administer the therapy; and
62-16 (2) any other information required by the department.
62-17 (e) The department may conduct an investigation as
62-18 considered necessary after receiving the proper application and the
62-19 required fee.
62-20 (f) The board by rule may prohibit the registration and use
62-21 of equipment of a type, model, or age the board determines is
62-22 dangerous.
62-23 (g) The department may deny, suspend, or revoke a
62-24 registration if the department determines that the equipment is
62-25 dangerous. The denial, suspension, or revocation of a registration
62-26 is a contested case under the Administrative Procedure and Texas
62-27 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
63-1 Sec. 578.007. REPORTS. (a) A mental hospital or facility
63-2 administering electroconvulsive therapy, psychosurgery, pre-frontal
63-3 sonic sound treatment, or any other convulsive or coma-producing
63-4 therapy administered to treat mental illness or a physician
63-5 administering the therapy on an outpatient basis shall submit to
63-6 the department quarterly reports relating to the administration of
63-7 the therapy in the hospital or facility or by the physician.
63-8 (b) A report must state for each quarter:
63-9 (1) the number of patients who received the therapy,
63-10 including:
63-11 (A) the number of persons voluntarily receiving
63-12 mental health services who consented to the therapy;
63-13 (B) the number of involuntary patients who
63-14 consented to the therapy; and
63-15 (C) the number of involuntary patients for whom
63-16 a guardian of the person consented to the therapy;
63-17 (2) the age, sex, and race of the persons receiving
63-18 the therapy;
63-19 (3) the source of the treatment payment;
63-20 (4) the average number of nonelectroconvulsive
63-21 treatments;
63-22 (5) the average number of electroconvulsive treatments
63-23 administered for each complete series of treatments, but not
63-24 including maintenance treatments;
63-25 (6) the average number of maintenance
63-26 electroconvulsive treatments administered per month;
63-27 (7) the number of fractures, reported memory losses,
64-1 incidents of apnea, and cardiac arrests without death;
64-2 (8) autopsy findings if death followed within 14 days
64-3 after the date of the administration of the therapy; and
64-4 (9) any other information required by the department.
64-5 Sec. 578.008. USE OF INFORMATION; REPORT. (a) The
64-6 department shall use the information received under Sections
64-7 578.006 and 578.007 to analyze, audit, and monitor the use of
64-8 electroconvulsive therapy, psychosurgery, pre-frontal sonic sound
64-9 treatment, or any other convulsive or coma-producing therapy
64-10 administered to treat mental illness.
64-11 (b) The department shall file annually with the governor and
64-12 the presiding officer of each house of the legislature a written
64-13 report summarizing by facility the information received under
64-14 Sections 578.006 and 578.007. If the therapy is administered by a
64-15 private physician on an outpatient basis, the report must include
64-16 that information but may not identify the physician. The
64-17 department may not directly or indirectly identify in a report
64-18 issued under this section a patient who received the therapy.
64-19 SECTION 5.02. This article takes effect September 1, 1993,
64-20 except:
64-21 (1) Subsection (a), Section 578.002 and Section
64-22 578.005, Health and Safety Code, as added by this article, take
64-23 effect immediately;
64-24 (2) equipment in use to administer electroconvulsive
64-25 therapy on the effective date of Section 578.006, Health and Safety
64-26 Code, as added by this article, is not required to be registered
64-27 under that section before January 1, 1994;
65-1 (3) a person administering electroconvulsive therapy
65-2 shall file an initial report as prescribed by Section 578.007,
65-3 Health and Safety Code, as added by this article, not later than
65-4 September 15, 1993, for the period beginning June 1, 1993, and
65-5 ending August 31, 1993; and
65-6 (4) the Texas Department of Mental Health and Mental
65-7 Retardation shall file the initial report required under Subsection
65-8 (b), Section 578.008, Health and Safety Code, as added by this
65-9 article, not later than February 15, 1994, which report must
65-10 summarize the information the department receives on or before
65-11 January 1, 1994.
65-12 ARTICLE 6
65-13 SECTION 6.01. Subdivision (3), Section 311.031, Health and
65-14 Safety Code, is amended to read as follows:
65-15 (3) "Hospital" means:
65-16 (A) a general or special hospital licensed under
65-17 Chapter 241;
65-18 (B) a private mental hospital licensed under
65-19 Chapter 577; and
65-20 (C) a treatment facility licensed under Chapter
65-21 464 <(Texas Hospital Licensing Law)>.
65-22 SECTION 6.02. Subchapter C, Chapter 311, Health and Safety
65-23 Code, is amended by adding Section 311.0335 to read as follows:
65-24 Sec. 311.0335. MENTAL HEALTH AND CHEMICAL DEPENDENCY DATA.
65-25 (a) A hospital that provides mental health or chemical dependency
65-26 services shall submit to the department financial and utilization
65-27 data relating to the mental health and chemical dependency services
66-1 provided by the hospital, including data for inpatient and
66-2 outpatient services relating to:
66-3 (1) patient demographics, including race, ethnicity,
66-4 age, gender, and county of residence;
66-5 (2) admissions;
66-6 (3) discharges, including length of inpatient
66-7 treatment;
66-8 (4) specific diagnoses and procedures according to
66-9 criteria prescribed by the Diagnostic and Statistical Manual of
66-10 Mental Disorders, 3rd Edition, Revised, or a later version
66-11 prescribed by the department;
66-12 (5) total charges and the components of the charges;
66-13 (6) payor sources; and
66-14 (7) use of mechanical restraints.
66-15 (b) The data must be submitted in the form and at the time
66-16 established by the department.
66-17 SECTION 6.03. Section 311.035, Health and Safety Code, is
66-18 amended by adding Subsection (c) to read as follows:
66-19 (c) The department shall enter into an interagency agreement
66-20 with the Texas Department of Mental Health and Mental Retardation,
66-21 Texas Commission on Alcohol and Drug Abuse, and Texas Department of
66-22 Insurance relating to the mental health and chemical dependency
66-23 hospital discharge data collected under Section 311.0335. The
66-24 agreement shall address the collection, analysis, and sharing of
66-25 the data by the agencies.
66-26 SECTION 6.04. Subsection (b), Section 311.038, Health and
66-27 Safety Code, is amended to read as follows:
67-1 (b) The advisory committee must include representatives
67-2 from:
67-3 (1) the hospital industry, including private mental
67-4 hospitals and chemical dependency treatment facilities;
67-5 (2) private business;
67-6 (3) the insurance industry;
67-7 (4) state agencies, such as the Texas Department of
67-8 Human Services, <and> Employees Retirement System of Texas, Texas
67-9 Department of Mental Health and Mental Retardation, Texas
67-10 Commission on Alcohol and Drug Abuse, and Texas Department of
67-11 Insurance;
67-12 (5) consumer organizations; and
67-13 (6) the Statewide Health Coordinating Council.
67-14 ARTICLE 7
67-15 SECTION 7.01. Section 11.52, Education Code, is amended by
67-16 adding Subsections (p) and (q) to read as follows:
67-17 (p) The commissioner of education shall adopt rules
67-18 governing the relationship between a school district and an outside
67-19 counselor to whom a student may be referred for care or treatment
67-20 of an emotional, psychological, or chemical dependency condition,
67-21 including rules that:
67-22 (1) require the school district and the outside
67-23 counselor to disclose to the student and the parent, managing
67-24 conservator, or guardian of the student the relationship between
67-25 the district and the outside counselor to whom the student is
67-26 referred for care or treatment;
67-27 (2) require the school to inform the student and the
68-1 parent, managing conservator, or guardian of the student, as
68-2 appropriate, of any public and private alternative sources of care
68-3 or treatment reasonably available in the area;
68-4 (3) require the approval of appropriate school
68-5 district personnel before the counselor refers a student for care
68-6 or treatment or suggests to or advises a student that a referral is
68-7 warranted; and
68-8 (4) specifically prohibit the disclosure of student
68-9 records if the disclosure violates state or federal law.
68-10 (q) The commissioner of education shall adopt rules that
68-11 specify procedures to be followed in an emergency or crisis
68-12 situation in which a district may request counseling services from
68-13 a private treatment facility.
68-14 SECTION 7.02. Chapter 4, Education Code, is amended by
68-15 adding Section 4.36 to read as follows:
68-16 Sec. 4.36. ILLEGAL REFERRAL FOR CARE OR TREATMENT. A person
68-17 who violates a rule adopted under Section 11.52(p) of this code:
68-18 (1) is subject to a civil penalty of not less than $50
68-19 or more than $25,000 recoverable by an aggrieved student or parent
68-20 or by the Central Education Agency in a court located in the county
68-21 in which the student or defendant resides or in Travis County; and
68-22 (2) commits a misdemeanor offense punishable by a fine
68-23 of not less than $50 or more than $25,000, confinement in jail for
68-24 not more than one year, or both fine and confinement.
68-25 ARTICLE 8
68-26 SECTION 8.01. Except as otherwise provided by this Act, this
68-27 Act takes effect September 1, 1993.
69-1 SECTION 8.02. (a) The changes in law made by this Act apply
69-2 only to an offense committed or a violation that occurs on or after
69-3 the effective date of this Act. For the purposes of this Act, an
69-4 offense is committed or a violation occurs before the effective
69-5 date of this Act if any element of the offense or violation occurs
69-6 before that date.
69-7 (b) An offense committed or violation that occurs before the
69-8 effective date of this Act is covered by the law in effect when the
69-9 offense was committed or the violation occurred, and the former law
69-10 is continued in effect for this purpose.
69-11 SECTION 8.03. The importance of this legislation and the
69-12 crowded condition of the calendars in both houses create an
69-13 emergency and an imperative public necessity that the
69-14 constitutional rule requiring bills to be read on three several
69-15 days in each house be suspended, and this rule is hereby suspended,
69-16 and that this Act take effect and be in force according to its
69-17 terms, and it is so enacted.