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