S.B. No. 210
AN ACT
1-1 relating to the regulation of the provision of health care services
1-2 and mental health services to certain persons and to referrals of
1-3 certain persons for such services; transferring certain funds;
1-4 creating offenses and providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 ARTICLE 1
1-7 SECTION 1.01. Chapter 161, Health and Safety Code, is
1-8 amended by adding Subchapter K to read as follows:
1-9 SUBCHAPTER K. ABUSE, NEGLECT, AND UNPROFESSIONAL OR
1-10 UNETHICAL CONDUCT IN HEALTH CARE FACILITIES
1-11 Sec. 161.131. DEFINITIONS. In this subchapter:
1-12 (1) "Abuse" has the meaning assigned by the federal
1-13 Protection and Advocacy for Mentally Ill Individuals Act of 1986
1-14 (42 U.S.C. Section 10801 et seq.).
1-15 (2) "Comprehensive medical rehabilitation" means the
1-16 provision of rehabilitation services that are designed to improve
1-17 or minimize a person's physical or cognitive disabilities, maximize
1-18 a person's functional ability, or restore a person's lost
1-19 functional capacity through close coordination of services,
1-20 communication, interaction, and integration among several
1-21 professions that share the responsibility to achieve team treatment
1-22 goals for the person.
1-23 (3) "Hospital" has the meaning assigned by Section
1-24 241.003.
2-1 (4) "Illegal conduct" means conduct prohibited by law.
2-2 (5) "Inpatient mental health facility" has the meaning
2-3 assigned by Section 571.003.
2-4 (6) "License" means a state agency permit,
2-5 certificate, approval, registration, or other form of permission
2-6 required by state law.
2-7 (7) "Mental health facility" has the meaning assigned
2-8 by Section 571.003.
2-9 (8) "Neglect" has the meaning assigned by the federal
2-10 Protection and Advocacy for Mentally Ill Individuals Act of 1986
2-11 (42 U.S.C. Section 10801 et seq.).
2-12 (9) "State health care regulatory agency" means a
2-13 state agency that licenses a health care professional.
2-14 (10) "Treatment facility" has the meaning assigned by
2-15 Section 464.001.
2-16 (11) "Unethical conduct" means conduct prohibited by
2-17 the ethical standards adopted by state or national professional
2-18 organizations for their respective professions or by rules
2-19 established by the state licensing agency for the respective
2-20 profession.
2-21 (12) "Unprofessional conduct" means conduct prohibited
2-22 under rules adopted by the state licensing agency for the
2-23 respective profession.
2-24 Sec. 161.132. REPORTS OF ABUSE AND NEGLECT OR OF ILLEGAL,
2-25 UNPROFESSIONAL, OR UNETHICAL CONDUCT. (a) A person, including an
2-26 employee, volunteer, or other person associated with an inpatient
2-27 mental health facility, a treatment facility, or a hospital that
3-1 provides comprehensive medical rehabilitation services, who
3-2 reasonably believes or who knows of information that would
3-3 reasonably cause a person to believe that the physical or mental
3-4 health or welfare of a patient or client of the facility who is
3-5 receiving chemical dependency, mental health, or rehabilitation
3-6 services has been, is, or will be adversely affected by abuse or
3-7 neglect caused by any person shall as soon as possible report the
3-8 information supporting the belief to the agency that licenses the
3-9 facility or to the appropriate state health care regulatory agency.
3-10 (b) An employee of or other person associated with an
3-11 inpatient mental health facility, a treatment facility, or a
3-12 hospital that provides comprehensive medical rehabilitation
3-13 services, including a health care professional, who reasonably
3-14 believes or who knows of information that would reasonably cause a
3-15 person to believe that the facility or an employee of or health
3-16 care professional associated with the facility has, is, or will be
3-17 engaged in conduct that is or might be illegal, unprofessional, or
3-18 unethical and that relates to the operation of the facility or
3-19 mental health, chemical dependency, or rehabilitation services
3-20 provided in the facility shall as soon as possible report the
3-21 information supporting the belief to the agency that licenses the
3-22 facility or to the appropriate state health care regulatory agency.
3-23 (c) The requirement prescribed by this section is in
3-24 addition to the requirements provided by Chapter 34, Family Code,
3-25 and Chapter 48, Human Resources Code.
3-26 (d) The Texas Board of Mental Health and Mental Retardation,
3-27 Texas Board of Health, Texas Commission on Alcohol and Drug Abuse,
4-1 and each state health care regulatory agency by rule shall:
4-2 (1) prescribe procedures for the investigation of
4-3 reports received under Subsection (a) or (b) and for coordination
4-4 with and referral of reports to law enforcement agencies or other
4-5 appropriate agencies; and
4-6 (2) prescribe follow-up procedures to ensure that a
4-7 report referred to another agency receives appropriate action.
4-8 (e) Each hospital, inpatient mental health facility, and
4-9 treatment facility shall prominently and conspicuously post for
4-10 display in a public area of the facility that is readily available
4-11 to patients, residents, volunteers, employees, and visitors a
4-12 statement of the duty to report under this section. The statement
4-13 must be in English and in a second language and contain a toll-free
4-14 telephone number that a person may call to report.
4-15 (f) Each state health care regulatory agency by rule shall
4-16 provide for appropriate disciplinary action against a health care
4-17 professional licensed by the agency who fails to report as required
4-18 by this section.
4-19 (g) An individual who in good faith reports under this
4-20 section is immune from civil or criminal liability arising from the
4-21 report. That immunity extends to participation in an
4-22 administrative or judicial proceeding resulting from the report but
4-23 does not extend to an individual who caused the abuse or neglect or
4-24 who engaged in the illegal, unprofessional, or unethical conduct.
4-25 (h) A person commits an offense if the person:
4-26 (1) intentionally, maliciously, or recklessly reports
4-27 false material information under this section; or
5-1 (2) fails to report as required by Subsection (a).
5-2 (i) An offense under Subsection (h) is a Class A
5-3 misdemeanor.
5-4 (j) In this section, "abuse" includes coercive or
5-5 restrictive actions that are illegal or not justified by the
5-6 patient's condition and that are in response to the patient's
5-7 request for discharge or refusal of medication, therapy, or
5-8 treatment.
5-9 Sec. 161.133. MEMORANDUM OF UNDERSTANDING ON INSERVICE
5-10 TRAINING. (a) The Texas Board of Mental Health and Mental
5-11 Retardation, Texas Board of Health, and Texas Commission on Alcohol
5-12 and Drug Abuse by rule shall adopt a joint memorandum of
5-13 understanding that requires each inpatient mental health facility,
5-14 treatment facility, or hospital that provides comprehensive medical
5-15 rehabilitation services to annually provide as a condition of
5-16 continued licensure a minimum of eight hours of inservice training
5-17 designed to assist employees and health care professionals
5-18 associated with the facility in identifying patient abuse or
5-19 neglect and illegal, unprofessional, or unethical conduct by or in
5-20 the facility.
5-21 (b) The memorandum must prescribe:
5-22 (1) minimum standards for the training program; and
5-23 (2) a means for monitoring compliance with the
5-24 requirement.
5-25 (c) Each agency shall review and modify the memorandum as
5-26 necessary not later than the last month of each state fiscal year.
5-27 Sec. 161.134. RETALIATION AGAINST EMPLOYEES PROHIBITED.
6-1 (a) A hospital, mental health facility, or treatment facility may
6-2 not suspend or terminate the employment of or discipline or
6-3 otherwise discriminate against an employee for reporting to the
6-4 employee's supervisor, an administrator of the facility, a state
6-5 regulatory agency, or a law enforcement agency a violation of law,
6-6 including a violation of this chapter, a rule adopted under this
6-7 chapter, or a rule adopted by the Texas Board of Mental Health and
6-8 Mental Retardation, the Texas Board of Health, or the Texas
6-9 Commission on Alcohol and Drug Abuse.
6-10 (b) A hospital, mental health facility, or treatment
6-11 facility that violates Subsection (a) is liable to the person
6-12 discriminated against. A person who has been discriminated against
6-13 in violation of Subsection (a) may sue for injunctive relief,
6-14 damages, or both.
6-15 (c) A plaintiff who prevails in a suit under this section
6-16 may recover actual damages, including damages for mental anguish
6-17 even if an injury other than mental anguish is not shown.
6-18 (d) In addition to an award under Subsection (c), a
6-19 plaintiff who prevails in a suit under this section may recover
6-20 exemplary damages and reasonable attorney fees.
6-21 (e) In addition to amounts recovered under Subsections (c)
6-22 and (d), a plaintiff is entitled to, if applicable:
6-23 (1) reinstatement in the plaintiff's former position;
6-24 (2) compensation for lost wages; and
6-25 (3) reinstatement of lost fringe benefits or seniority
6-26 rights.
6-27 (f) A plaintiff suing under this section has the burden of
7-1 proof, except that it is a rebuttable presumption that the
7-2 plaintiff's employment was suspended or terminated, or that the
7-3 employee was disciplined or discriminated against, for making a
7-4 report related to a violation if the suspension, termination,
7-5 discipline, or discrimination occurs before the 60th day after the
7-6 date on which the plaintiff made a report in good faith.
7-7 (g) A suit under this section may be brought in the district
7-8 court of the county in which:
7-9 (1) the plaintiff was employed by the defendant; or
7-10 (2) the defendant conducts business.
7-11 (h) A person who alleges a violation of Subsection (a) must
7-12 sue under this section before the 180th day after the date the
7-13 alleged violation occurred or was discovered by the employee
7-14 through the use of reasonable diligence.
7-15 (i) This section does not abrogate any other right to sue or
7-16 interfere with any other cause of action.
7-17 (j) Each hospital, mental health facility, and treatment
7-18 facility shall prominently and conspicuously post for display in a
7-19 public area of the facility that is readily available to patients,
7-20 residents, employees, and visitors a statement that employees and
7-21 staff are protected from discrimination or retaliation for
7-22 reporting a violation of law. The statement must be in English and
7-23 in a second language.
7-24 Sec. 161.135. RETALIATION AGAINST NONEMPLOYEES PROHIBITED.
7-25 (a) A hospital, mental health facility, or treatment facility may
7-26 not retaliate against a person who is not an employee for reporting
7-27 a violation of law, including a violation of this chapter, a rule
8-1 adopted under this chapter, or a rule adopted by the Texas Board of
8-2 Mental Health and Mental Retardation, the Texas Board of Health, or
8-3 the Texas Commission on Alcohol and Drug Abuse.
8-4 (b) A hospital, mental health facility, or treatment
8-5 facility that violates Subsection (a) is liable to the person
8-6 retaliated against. A person who has been retaliated against in
8-7 violation of Subsection (a) may sue for injunctive relief, damages,
8-8 or both.
8-9 (c) A person suing under this section has the burden of
8-10 proof, except that it is a rebuttable presumption that the
8-11 plaintiff was retaliated against if:
8-12 (1) before the 60th day after the date on which the
8-13 plaintiff made a report in good faith, the hospital, mental health
8-14 facility, or treatment facility:
8-15 (A) discriminates in violation of Section
8-16 161.134 against a relative who is an employee of the facility;
8-17 (B) transfers, disciplines, suspends,
8-18 terminates, or otherwise discriminates against the person or a
8-19 relative who is a volunteer in the facility or who is employed
8-20 under the patient work program administered by the Texas Department
8-21 of Mental Health and Mental Retardation;
8-22 (C) commits or threatens to commit, without
8-23 justification, the person or a relative of the person; or
8-24 (D) transfers, discharges, punishes, or
8-25 restricts the privileges of the person or a relative of the person
8-26 who is receiving inpatient or outpatient services in the facility;
8-27 or
9-1 (2) a person expected to testify on behalf of the
9-2 plaintiff is intentionally made unavailable through an action of
9-3 the facility, including a discharge, resignation, or transfer.
9-4 (d) A plaintiff who prevails in a suit under this section
9-5 may recover actual damages, including damages for mental anguish
9-6 even if an injury other than mental anguish is not shown.
9-7 (e) In addition to an award under Subsection (c), a
9-8 plaintiff who prevails in a suit under this section may recover
9-9 exemplary damages and reasonable attorney fees.
9-10 (f) A suit under this section may be brought in the district
9-11 court of the county in which:
9-12 (1) the plaintiff received care or treatment; or
9-13 (2) the defendant conducts business.
9-14 (g) This section does not abrogate any other right to sue or
9-15 interfere with any other cause of action.
9-16 (h) Each hospital, mental health facility, and treatment
9-17 facility shall prominently and conspicuously post for display in a
9-18 public area of the facility that is readily available to patients,
9-19 residents, employees, and visitors a statement that nonemployees
9-20 are protected from discrimination or retaliation for reporting a
9-21 violation of law. The statement must be in English and in a second
9-22 language. The sign may be combined with the sign required by
9-23 Section 161.134(j).
9-24 Sec. 161.136. BROCHURE RELATING TO SEXUAL EXPLOITATION.
9-25 (a) A state health care regulatory agency by rule may require a
9-26 mental health services provider licensed by that agency to provide
9-27 a standardized written brochure, in wording a patient can
10-1 understand, that summarizes the law prohibiting sexual exploitation
10-2 of patients. The brochure must be available in English and in a
10-3 second language.
10-4 (b) The brochure shall include:
10-5 (1) procedures for filing a complaint relating to
10-6 sexual exploitation, including any toll-free telephone number
10-7 available; and
10-8 (2) the rights of a victim of sexual exploitation.
10-9 (c) In this section, "mental health services provider" has
10-10 the meaning assigned by Section 81.001, Civil Practice and Remedies
10-11 Code.
10-12 Sec. 161.137. PENALTIES. In addition to the penalties
10-13 prescribed by this subchapter, a violation of a provision of this
10-14 subchapter by an individual or facility that is licensed by a state
10-15 health care regulatory agency is subject to the same consequence as
10-16 a violation of the licensing law applicable to the individual or
10-17 facility or of a rule adopted under that licensing law.
10-18 SECTION 1.02. The changes in law made by this article apply
10-19 only to a cause of action that accrues on or after the effective
10-20 date of this article. A cause of action that accrues before the
10-21 effective date of this article is governed by the law in effect on
10-22 the date the cause of action accrues, and that law is continued in
10-23 effect for this purpose.
10-24 ARTICLE 2
10-25 SECTION 2.01. Title 4, Civil Practice and Remedies Code, is
10-26 amended by adding Chapter 81 to read as follows:
10-27 CHAPTER 81. SEXUAL EXPLOITATION BY MENTAL HEALTH SERVICES PROVIDER
11-1 Sec. 81.001. DEFINITIONS. In this chapter:
11-2 (1) "Mental health services" means assessment,
11-3 diagnosis, treatment, or counseling in a professional relationship
11-4 to assist an individual or group in:
11-5 (A) alleviating mental or emotional illness,
11-6 symptoms, conditions, or disorders, including alcohol or drug
11-7 addiction;
11-8 (B) understanding conscious or subconscious
11-9 motivations;
11-10 (C) resolving emotional, attitudinal, or
11-11 relationship conflicts; or
11-12 (D) modifying feelings, attitudes, or behaviors
11-13 that interfere with effective emotional, social, or intellectual
11-14 functioning.
11-15 (2) "Mental health services provider" means an
11-16 individual, licensed or unlicensed, who performs or purports to
11-17 perform mental health services, including a:
11-18 (A) "certified social worker" as defined by
11-19 Section 50.001, Human Resources Code;
11-20 (B) "chemical dependency counselor" as defined
11-21 by Section 1, Chapter 635, Acts of the 72nd Legislature, Regular
11-22 Session, 1991 (Article 4512o, Vernon's Texas Civil Statutes);
11-23 (C) "licensed professional counselor" as defined
11-24 by Section 2, Licensed Professional Counselor Act (Article 4512g,
11-25 Vernon's Texas Civil Statutes);
11-26 (D) "licensed marriage and family therapist" as
11-27 defined by Section 2, Licensed Marriage and Family Therapist Act
12-1 (Article 4512c-1, Vernon's Texas Civil Statutes);
12-2 (E) member of the clergy;
12-3 (F) "physician" who is "practicing medicine" as
12-4 defined by Section 1.03, Medical Practice Act (Article 4495b,
12-5 Vernon's Texas Civil Statutes); and
12-6 (G) "psychologist" offering "psychological
12-7 services" as defined by Section 2, Psychologists' Certification and
12-8 Licensing Act (Article 4512c, Vernon's Texas Civil Statutes).
12-9 (3) "Patient" means an individual who seeks or obtains
12-10 mental health services.
12-11 (4) "Sexual contact" means:
12-12 (A) "deviate sexual intercourse" as defined by
12-13 Section 21.01, Penal Code;
12-14 (B) "sexual contact" as defined by
12-15 Section 21.01, Penal Code;
12-16 (C) "sexual intercourse" as defined by
12-17 Section 21.01, Penal Code; or
12-18 (D) requests by the mental health services
12-19 provider for conduct described by Paragraph (A), (B), or (C).
12-20 "Sexual contact" does not include conduct described by Paragraph
12-21 (A) or (B) that is a part of a professionally recognized medical
12-22 treatment of a patient.
12-23 (5) "Sexual exploitation" means a pattern, practice,
12-24 or scheme of conduct, which may include sexual contact, that can
12-25 reasonably be construed as being for the purposes of sexual arousal
12-26 or gratification or sexual abuse of any person. The term does not
12-27 include obtaining information about a patient's sexual history
13-1 within standard accepted practice while treating a sexual or
13-2 marital dysfunction.
13-3 (6) "Therapeutic deception" means a representation by
13-4 a mental health services provider that sexual contact with, or
13-5 sexual exploitation by, the mental health services provider is
13-6 consistent with, or a part of, a patient's or former patient's
13-7 treatment.
13-8 (7) "Mental health services," as defined by this
13-9 section, provided by a member of the clergy does not include
13-10 religious, moral, and spiritual counseling, teaching, and
13-11 instruction.
13-12 Sec. 81.002. SEXUAL EXPLOITATION CAUSE OF ACTION. A mental
13-13 health services provider is liable to a patient or former patient
13-14 of the mental health services provider for damages for sexual
13-15 exploitation if the patient or former patient suffers, directly or
13-16 indirectly, a physical, mental, or emotional injury caused by,
13-17 resulting from, or arising out of:
13-18 (1) sexual contact between the patient or former
13-19 patient and the mental health services provider;
13-20 (2) sexual exploitation of the patient or former
13-21 patient by the mental health services provider; or
13-22 (3) therapeutic deception of the patient or former
13-23 patient by the mental health services provider.
13-24 Sec. 81.003. LIABILITY OF EMPLOYER. (a) An employer of a
13-25 mental health services provider is liable to a patient or former
13-26 patient of the mental health services provider for damages if the
13-27 patient or former patient is injured as described by Section 81.002
14-1 and the employer:
14-2 (1) fails to make inquiries of an employer or former
14-3 employer, whose name and address have been disclosed to the
14-4 employer and who employed the mental health services provider as a
14-5 mental health services provider within the five years before the
14-6 date of disclosure, concerning the possible occurrence of sexual
14-7 exploitation by the mental health services provider of patients or
14-8 former patients of the mental health services provider; or
14-9 (2) knows or has reason to know that the mental health
14-10 services provider engaged in the sexual exploitation of the patient
14-11 or former patient and the employer failed to:
14-12 (A) report the suspected sexual exploitation as
14-13 required by Section 81.006; or
14-14 (B) take necessary action to prevent or stop the
14-15 sexual exploitation by the mental health services provider.
14-16 (b) An employer or former employer of a mental health
14-17 services provider is liable to a patient or former patient of the
14-18 mental health services provider for damages if the patient or
14-19 former patient is injured as described by Section 81.002 and the
14-20 employer or former employer:
14-21 (1) knows of the occurrence of the sexual exploitation
14-22 by the mental health services provider of the patient or former
14-23 patient;
14-24 (2) receives a specific request by an employer or
14-25 prospective employer of the mental health services provider,
14-26 engaged in the business of providing mental health services,
14-27 concerning the possible existence or nature of sexual exploitation
15-1 by the mental health services provider; and
15-2 (3) fails to disclose the occurrence of the sexual
15-3 exploitation.
15-4 (c) An employer or former employer is liable under this
15-5 section only to the extent that the failure to take the action
15-6 described by Subsection (a) or (b) was a proximate and actual cause
15-7 of damages sustained.
15-8 (d) If a mental health professional who sexually exploits a
15-9 patient or former patient is a member of the clergy and the sexual
15-10 exploitation occurs when the professional is acting as a member of
15-11 the clergy, liability if any under this section is limited to the
15-12 church, congregation, or parish in which the member of the clergy
15-13 carried out the clergy member's pastoral duties:
15-14 (1) at the time the sexual exploitation occurs, if the
15-15 liability is based on a violation of Subsection (a); or
15-16 (2) at the time of the previous occurrence of sexual
15-17 exploitation, if the liability is based on a violation of
15-18 Subsection (b).
15-19 (e) Nothing in Subsection (d) shall prevent the extension of
15-20 liability under this section beyond the local church, congregation,
15-21 or parish where the current or previous sexual exploitation
15-22 occurred, as appropriate under Subsection (d), if the patient
15-23 proves that officers or employees of the religious denomination in
15-24 question at the regional, state, or national level:
15-25 (1) knew or should have known of the occurrences of
15-26 sexual exploitation by the mental health services provider;
15-27 (2) received reports of such occurrences and failed to
16-1 take necessary action to prevent or stop such sexual exploitation
16-2 by the mental health services provider and that such failure was a
16-3 proximate and actual cause of the damages; or
16-4 (3) knew or should have known of the mental health
16-5 professional's propensity to engage in sexual exploitation.
16-6 Sec. 81.004. DAMAGES. (a) A plaintiff who prevails in a
16-7 suit under this section may recover actual damages, including
16-8 damages for mental anguish even if an injury other than mental
16-9 anguish is not shown.
16-10 (b) In addition to an award under Subsection (a), a
16-11 plaintiff who prevails in a suit under this section may recover
16-12 exemplary damages and reasonable attorney fees.
16-13 Sec. 81.005. DEFENSES. (a) It is not a defense to an
16-14 action brought under Section 81.002 or 81.003 that the sexual
16-15 exploitation of the patient or former patient occurred:
16-16 (1) with the consent of the patient or former patient;
16-17 (2) outside the therapy or treatment sessions of the
16-18 patient or former patient; or
16-19 (3) off the premises regularly used by the mental
16-20 health services provider for the therapy or treatment sessions of
16-21 the patient or former patient.
16-22 (b) It is a defense to an action brought under
16-23 Section 81.002 or 81.003 by a former patient that the person was
16-24 not emotionally dependent on the mental health services provider
16-25 when the sexual exploitation began and the mental health services
16-26 provider terminated mental health services with the patient more
16-27 than two years before the date the sexual exploitation began.
17-1 (c) A person is considered not emotionally dependent for
17-2 purposes of this chapter if the nature of the patient's or former
17-3 patient's emotional condition and the nature of the treatment
17-4 provided by the mental health services provider are not such that
17-5 the mental health services provider knows or has reason to believe
17-6 that the patient or former patient is unable to withhold consent to
17-7 the sexual exploitation.
17-8 Sec. 81.006. DUTY TO REPORT. (a) If a mental health
17-9 services provider or the employer of a mental health services
17-10 provider has reasonable cause to suspect that a patient has been
17-11 the victim of sexual exploitation by a mental health services
17-12 provider during the course of treatment, or if a patient alleges
17-13 sexual exploitation by a mental health services provider during the
17-14 course of treatment, the mental health services provider or the
17-15 employer shall report the alleged conduct not later than the 30th
17-16 day after the date the person became aware of the conduct or the
17-17 allegations to:
17-18 (1) the prosecuting attorney in the county in which
17-19 the alleged sexual exploitation occurred; and
17-20 (2) any state licensing board that has responsibility
17-21 for the mental health services provider's licensing.
17-22 (b) Before making a report under this section, the reporter
17-23 shall inform the alleged victim of the reporter's duty to report
17-24 and shall determine if the alleged victim wants to remain
17-25 anonymous.
17-26 (c) A report under this section need contain only the
17-27 information needed to:
18-1 (1) identify the reporter;
18-2 (2) identify the alleged victim, unless the alleged
18-3 victim has requested anonymity; and
18-4 (3) express suspicion that sexual exploitation has
18-5 occurred.
18-6 (d) Information in a report is privileged information and is
18-7 for the exclusive use of the prosecuting attorney or state
18-8 licensing board that receives the information. A person who
18-9 receives privileged information may not disclose the information
18-10 except to the extent that disclosure is consistent with the
18-11 authorized purposes for which the person first obtained the
18-12 information. The identity of an alleged victim of sexual
18-13 exploitation by a mental health services provider may not be
18-14 disclosed by the reporter, or by a person who has received or has
18-15 access to a report or record, unless the alleged victim has
18-16 consented to the disclosure in writing.
18-17 (e) A person who intentionally violates Subsection (a) or
18-18 (d) is subject to disciplinary action by that person's appropriate
18-19 licensing board and also commits an offense. An offense under this
18-20 subsection is a Class C misdemeanor.
18-21 Sec. 81.007. LIMITED IMMUNITY FROM LIABILITY. (a) A person
18-22 who, in good faith, makes a report required by Section 81.006 is
18-23 immune from civil or criminal liability resulting from the filing
18-24 of that report.
18-25 (b) Reporting under this chapter is presumed to be done in
18-26 good faith.
18-27 (c) The immunity provided by this section does not apply to
19-1 liability resulting from sexual exploitation by a mental health
19-2 services provider of a patient or former patient.
19-3 Sec. 81.008. ADMISSION OF EVIDENCE. (a) In an action for
19-4 sexual exploitation, evidence of the plaintiff's sexual history and
19-5 reputation is not admissible unless:
19-6 (1) the plaintiff claims damage to sexual functioning;
19-7 or
19-8 (2)(A) the defendant requests a hearing before trial
19-9 and makes an offer of proof of the relevancy of the history or
19-10 reputation; and
19-11 (B) the court finds that the history or
19-12 reputation is relevant and that the probative value of the evidence
19-13 outweighs its prejudicial effect.
19-14 (b) The court may allow the admission only of specific
19-15 information or examples of the plaintiff's conduct that are
19-16 determined by the court to be relevant. The court's order shall
19-17 detail the information or conduct that is admissible and no other
19-18 such evidence may be introduced.
19-19 Sec. 81.009. LIMITATIONS. (a) Except as otherwise provided
19-20 by this section, an action under this chapter must be filed before
19-21 the third anniversary of the date the patient or former patient
19-22 understood or should have understood the conduct for which
19-23 liability is established under Section 81.002 or 81.003.
19-24 (b) If a patient or former patient entitled to file an
19-25 action under this chapter is unable to bring the action because of
19-26 the effects of the sexual exploitation, continued emotional
19-27 dependence on the mental health services provider, or threats,
20-1 instructions, or statements by the mental health services provider,
20-2 the deadline for filing an action under this chapter is tolled
20-3 during that period, except that the deadline may not be tolled for
20-4 more than 15 years.
20-5 (c) This section does not apply to a patient or former
20-6 patient who is a "child" or a "minor" as defined by Section 11.01,
20-7 Family Code, until that patient or former patient has reached the
20-8 age of 18. If the action is brought by a parent, guardian, or
20-9 other person having custody of the child or minor, it must be
20-10 brought within the period set forth in this section.
20-11 SECTION 2.02. Chapter 21, Penal Code, is amended by adding
20-12 Section 21.14 to read as follows:
20-13 Sec. 21.14. SEXUAL EXPLOITATION BY MENTAL HEALTH SERVICES
20-14 PROVIDER. (a) In this section:
20-15 (1) "Mental health services" means assessment,
20-16 diagnosis, treatment, or counseling in a professional relationship
20-17 to assist an individual or group in:
20-18 (A) alleviating mental or emotional illness,
20-19 symptoms, conditions, or disorders, including alcohol or drug
20-20 addiction;
20-21 (B) understanding conscious or subconscious
20-22 motivations;
20-23 (C) resolving emotional, attitudinal, or
20-24 relationship conflicts; or
20-25 (D) modifying feelings, attitudes, or behaviors
20-26 that interfere with effective emotional, social, or intellectual
20-27 functioning.
21-1 (2) "Mental health services provider" means an
21-2 individual, licensed or unlicensed, who performs or purports to
21-3 perform mental health services, including a:
21-4 (A) "certified social worker" as defined by
21-5 Section 50.001, Human Resources Code;
21-6 (B) "chemical dependency counselor" as defined
21-7 by Section 1, Chapter 635, Acts of the 72nd Legislature, Regular
21-8 Session, 1991 (Article 4512o, Vernon's Texas Civil Statutes);
21-9 (C) "licensed professional counselor" as defined
21-10 by Section 2, Licensed Professional Counselor Act (Article 4512g,
21-11 Vernon's Texas Civil Statutes);
21-12 (D) "licensed marriage and family therapist" as
21-13 defined by Section 2, Licensed Marriage and Family Therapist Act
21-14 (Article 4512c-1, Vernon's Texas Civil Statutes);
21-15 (E) member of the clergy;
21-16 (F) "physician" who is "practicing medicine" as
21-17 defined by Section 1.03, Medical Practice Act (Article 4495b,
21-18 Vernon's Texas Civil Statutes); and
21-19 (G) "psychologist" offering "psychological
21-20 services" as defined by Section 2, Psychologists' Certification and
21-21 Licensing Act (Article 4512c, Vernon's Texas Civil Statutes).
21-22 (3) "Patient" means an individual who seeks or obtains
21-23 mental health services.
21-24 (4) "Sexually exploitive behavior" means a pattern,
21-25 practice, or scheme of conduct, which may include sexual contact,
21-26 that can reasonably be construed as being for the purposes of
21-27 sexual arousal or gratification or sexual abuse of any person.
22-1 The term does not include obtaining information about a patient's
22-2 sexual history within standard accepted practice while treating a
22-3 sexual or marital dysfunction.
22-4 (b) A person commits an offense if the person is a mental
22-5 health services provider and intentionally:
22-6 (1) engages in sexual contact with a patient or former
22-7 patient; or
22-8 (2) engages in sexually exploitive behavior with a
22-9 patient or former patient.
22-10 (c) It is not a defense to prosecution under this section
22-11 that the sexual contact or sexually exploitive behavior with the
22-12 patient or former patient occurred:
22-13 (1) with the consent of the patient or former patient;
22-14 (2) outside the therapy or treatment sessions of the
22-15 patient or former patient; or
22-16 (3) off the premises regularly used by the mental
22-17 health services provider for the therapy or treatment sessions of
22-18 the patient or former patient.
22-19 (d) It is a defense to prosecution under this section that
22-20 the former patient was not emotionally dependent on the mental
22-21 health services provider when the sexual contact occurred or the
22-22 sexually exploitive behavior began and the mental health services
22-23 provider terminated psychotherapy with the patient more than two
22-24 years before the date the sexual contact occurred or the sexually
22-25 exploitive behavior began.
22-26 (e) A person is considered emotionally dependent for
22-27 purposes of this section if the nature of the patient's or former
23-1 patient's emotional condition and the nature of the treatment
23-2 provided by the mental health services provider are such that the
23-3 mental health services provider knows or has reason to believe that
23-4 the patient or former patient is unable to withhold consent to the
23-5 sexual contact or the sexually exploitive behavior.
23-6 (f) It is a defense to prosecution under this section that
23-7 the sexual contact is a part of a professionally recognized medical
23-8 treatment of a patient.
23-9 (g) Except as provided by Subsection (h) of this section, an
23-10 offense under this section is a felony of the third degree.
23-11 (h) If it is shown on the trial of an offense under this
23-12 section that the defendant has been previously convicted of an
23-13 offense under this section, the offense is a felony of the second
23-14 degree.
23-15 SECTION 2.03. Section 50.021, Human Resources Code, is
23-16 amended to read as follows:
23-17 Sec. 50.021. Revocation and Suspension. The department may
23-18 refuse to issue or to renew a certificate or order of recognition,
23-19 may place on probation a person whose certificate or order of
23-20 recognition has been suspended, may reprimand a person with a
23-21 certificate or order of recognition, or may revoke or suspend a
23-22 certificate or order of recognition issued under this chapter for
23-23 any of the following reasons:
23-24 (1) violating a provision of this chapter or a rule of
23-25 the department;
23-26 (2) circumventing or attempting to circumvent this
23-27 chapter or a rule of the department;
24-1 (3) participating, directly or indirectly, in a plan,
24-2 scheme, or arrangement attempting or having as its purpose the
24-3 evasion of this chapter or a rule of the department;
24-4 (4) engaging in unethical conduct;
24-5 (5) engaging in conduct which discredits or tends to
24-6 discredit the profession of social work;
24-7 (6) performing an act, allowing an omission, or making
24-8 an assertion or representation that is fraudulent, deceitful, or
24-9 misleading or that in any manner tends to create a misleading
24-10 impression;
24-11 (7) knowingly associating with or permitting or
24-12 allowing the use of any certified person's professional services or
24-13 professional identification in a project or enterprise that the
24-14 person knows or with the exercise of reasonable diligence should
24-15 know is a practice that violates this chapter or a rule of the
24-16 department pertaining to the practice of social work;
24-17 (8) knowingly associating with or permitting the use
24-18 of a certified person's name, professional services, professional
24-19 identification, or endorsement in connection with a venture or
24-20 enterprise that the person knows or with the exercise of reasonable
24-21 diligence should know is a trade, business, or professional
24-22 practice of a fraudulent, deceitful, misleading, or dishonest
24-23 nature;
24-24 (9) revealing, directly or indirectly, or causing to
24-25 be revealed a confidential communication transmitted to the
24-26 certified person by a client or recipient of his services except as
24-27 may be required by law;
25-1 (10) having a certificate or a license to practice
25-2 social work in another jurisdiction denied, suspended, or revoked
25-3 for reasons or causes the department finds would constitute a
25-4 violation of this chapter or a rule pertaining to the practice of
25-5 social work adopted by the department;
25-6 (11) having been convicted of a felony in an American
25-7 jurisdiction; <or>
25-8 (12) refusing to do or perform any act or service for
25-9 which the person is certified under this chapter solely on the
25-10 basis of the recipient's age, sex, race, religion, national origin,
25-11 color, or political affiliation; or
25-12 (13) committing an act in violation of Section 21.14,
25-13 Penal Code, or for which liability exists under Chapter 81, Civil
25-14 Practice and Remedies Code.
25-15 SECTION 2.04. Section 16, Chapter 635, Acts of the 72nd
25-16 Legislature, Regular Session, 1991 (Article 4512o, Vernon's Texas
25-17 Civil Statutes), is amended to read as follows:
25-18 Sec. 16. LICENSE REFUSAL; DISCIPLINARY ACTIONS. The
25-19 commission may refuse to issue or renew a license, place on
25-20 probation a license holder whose license has been suspended,
25-21 reprimand a license holder, or revoke or suspend a license issued
25-22 under this Act for:
25-23 (1) violating or assisting another to violate this Act
25-24 or a rule of the commission adopted under this Act;
25-25 (2) circumventing or attempting to circumvent this Act
25-26 or a rule of the commission adopted under this Act;
25-27 (3) participating, directly or indirectly, in a plan
26-1 the purpose of which is the evasion of this Act or a rule of the
26-2 commission adopted under this Act;
26-3 (4) engaging in false, misleading, or deceptive
26-4 conduct as defined by Section 17.46, Business & Commerce Code;
26-5 (5) engaging in conduct that discredits or tends to
26-6 discredit the profession of chemical dependency counseling;
26-7 (6) revealing or causing to be revealed, directly or
26-8 indirectly, a confidential communication made to the licensed
26-9 chemical dependency counselor by a client or recipient of services,
26-10 except as required by law;
26-11 (7) having a license to practice chemical dependency
26-12 counseling in another jurisdiction refused, suspended, or revoked
26-13 for a reason that the commission finds would constitute a violation
26-14 of this Act or a commission rule established under this Act; <or>
26-15 (8) refusing to perform an act or service for which
26-16 the person is licensed to perform under this Act on the basis of
26-17 the client's or recipient's age, sex, race, religion, national
26-18 origin, color, or political affiliation; or
26-19 (9) committing an act in violation of Section 21.14,
26-20 Penal Code, or for which liability exists under Chapter 81, Civil
26-21 Practice and Remedies Code.
26-22 SECTION 2.05. Section 25, Licensed Marriage and Family
26-23 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
26-24 amended to read as follows:
26-25 Sec. 25. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
26-26 After a hearing, the board may deny, suspend, or revoke a license
26-27 or otherwise discipline a license holder if the applicant for
27-1 license or the license holder has:
27-2 (1) been convicted of a felony or a misdemeanor
27-3 involving moral turpitude;
27-4 (2) obtained or attempted to obtain registration by
27-5 fraud or deception;
27-6 (3) used drugs or alcohol to an extent that affects
27-7 professional competence;
27-8 (4) been grossly negligent in performing professional
27-9 duties;
27-10 (5) been adjudicated mentally incompetent by a court
27-11 of competent jurisdiction;
27-12 (6) practiced in a manner detrimental to the public
27-13 health or welfare;
27-14 (7) advertised in a manner that tends to deceive or
27-15 defraud the public;
27-16 (8) had a license or certification revoked by a
27-17 licensing agency or by a certifying professional organization; <or>
27-18 (9) otherwise violated this Act or a rule or code of
27-19 ethics adopted under this Act; or
27-20 (10) committed an act in violation of Section 21.14,
27-21 Penal Code, or for which liability exists under Chapter 81, Civil
27-22 Practice and Remedies Code.
27-23 SECTION 2.06. Subsection (a), Section 16, Licensed
27-24 Professional Counselor Act (Article 4512g, Vernon's Texas Civil
27-25 Statutes), is amended to read as follows:
27-26 (a) The board may revoke, <or> suspend, or refuse to renew
27-27 the license of a counselor on proof that the counselor:
28-1 (1) has committed an act in violation of Section
28-2 21.14, Penal Code, or for which liability exists under Chapter 81,
28-3 Civil Practice and Remedies Code;
28-4 (2) has violated this Act or a rule or code of ethics
28-5 adopted by the board; or
28-6 (3) <(2)> is legally committed to an institution
28-7 because of mental incompetence from any cause.
28-8 SECTION 2.07. Subsection (a), Section 23, Psychologists'
28-9 Certification and Licensing Act (Article 4512c, Vernon's Texas
28-10 Civil Statutes), is amended to read as follows:
28-11 (a) The Texas State Board of Examiners of Psychologists
28-12 shall have the right to cancel, revoke, suspend, or refuse to renew
28-13 the license or certification of any psychologist or the certificate
28-14 of any psychological associate or reprimand any psychologist upon
28-15 proof that the psychologist:
28-16 (1) has been convicted of a felony or of a violation
28-17 of the law involving moral turpitude by any court; the conviction
28-18 of a felony shall be the conviction of any offense which if
28-19 committed within this state would constitute a felony under the
28-20 laws of this state; <or>
28-21 (2) uses drugs or intoxicating liquors to an extent
28-22 that affects his professional competency; <or>
28-23 (3) has been guilty of fraud or deceit in connection
28-24 with his services rendered as a psychologist; <or>
28-25 (4) except as provided by Section 15B of this Act, has
28-26 aided or abetted a person, not a licensed psychologist, in
28-27 representing that person as a psychologist within this state; <or>
29-1 (5) except as provided by Section 15B of this Act, has
29-2 represented himself or herself to be a psychologist licensed in
29-3 this state at a time he or she was not licensed to practice
29-4 psychology in this state, or practiced psychology in this state
29-5 without a license to practice psychology in this state; <or>
29-6 (6) has been guilty of unprofessional conduct as
29-7 defined by the rules established by the Board; <or>
29-8 (7) for any cause for which the Board shall be
29-9 authorized to take that action by another section of this Act; or
29-10 (8) has committed an act in violation of Section
29-11 21.14, Penal Code, or for which liability exists under Chapter 81,
29-12 Civil Practice and Remedies Code.
29-13 SECTION 2.08. Chapter 81, Civil Practice and Remedies Code,
29-14 as added by this article, applies only to a cause of action
29-15 accruing on or after the effective date of this article. A cause
29-16 of action accruing before that date is governed by the law in
29-17 effect at the time the cause of action accrued, and that law is
29-18 continued in effect for that purpose.
29-19 ARTICLE 3
29-20 SECTION 3.01. (a) Chapter 571, Health and Safety Code, is
29-21 amended by adding Section 571.0065 to read as follows:
29-22 Sec. 571.0065. TREATMENT METHODS ADVISORY COMMITTEE.
29-23 (a) The board shall appoint an advisory committee on treatment
29-24 standards that is composed of at least the following persons:
29-25 (1) one licensed psychiatrist;
29-26 (2) one licensed psychologist;
29-27 (3) one certified social worker;
30-1 (4) one licensed professional counselor;
30-2 (5) one licensed chemical dependency counselor;
30-3 (6) one licensed occupational therapist;
30-4 (7) two persons who have received mental health
30-5 services, either voluntarily or involuntarily;
30-6 (8) one member from each of two private associations
30-7 of persons who advocate on the behalf of or in the interest of
30-8 persons with mental illness; and
30-9 (9) one person who has practiced rage therapy, trust
30-10 development therapy, or rough signing as part of a professional
30-11 practice for which the person is properly licensed or certified.
30-12 (b) The board may appoint additional members as it considers
30-13 appropriate.
30-14 (c) The committee shall:
30-15 (1) review treatment methods used in mental health
30-16 facilities;
30-17 (2) recommend to the board the treatment methods that
30-18 should not be allowed, such as "rage therapy," "trust development
30-19 therapy," "rough signing," and any other treatment method that the
30-20 committee determines is physically or emotionally abusive and not
30-21 clearly defined in established, professionally accepted clinical
30-22 standards; and
30-23 (3) consider reports from state agencies on possible
30-24 abusive treatment methods and on complaints relating to treatment
30-25 methods.
30-26 (d) The committee shall meet at least once every six months.
30-27 (e) The board shall either adopt by rule or reject a
31-1 committee recommendation not later than the 120th day after the
31-2 date on which the recommendation is made. A standard established
31-3 by rule under this section that applies to a private mental
31-4 hospital may not be less restrictive than a standard that applies
31-5 to a state mental hospital.
31-6 (f) A state agency that has knowledge of or receives a
31-7 complaint relating to an abusive treatment method shall report that
31-8 knowledge or forward a copy of the complaint to the committee.
31-9 (g) A mental health facility, physician, or other mental
31-10 health professional is not liable for an injury or other damages
31-11 sustained by a person as a result of the failure of the facility,
31-12 physician, or professional to administer or perform a treatment
31-13 prohibited by statute or rules adopted by the board under this
31-14 section or that the board specifically refuses by rule to prohibit
31-15 or authorize.
31-16 (b) Not later than February 1, 1994, the Texas Board of
31-17 Mental Health and Mental Retardation shall appoint the advisory
31-18 committee on treatment standards as prescribed by Section 571.0065,
31-19 Health and Safety Code, as added by this section. The committee
31-20 shall make its initial recommendations to the board not later than
31-21 October 31, 1994.
31-22 SECTION 3.02. Chapter 241, Health and Safety Code, is
31-23 amended by adding Section 241.0265 to read as follows:
31-24 Sec. 241.0265. STANDARDS FOR CARE FOR MENTAL HEALTH AND
31-25 CHEMICAL DEPENDENCY. (a) The care and treatment of a patient
31-26 receiving mental health services in a facility licensed by the
31-27 department under this chapter or Chapter 577 are governed by the
32-1 standards adopted by the Texas Department of Mental Health and
32-2 Mental Retardation to the same extent as if the standards adopted
32-3 by that department were rules adopted by the board under this
32-4 chapter or Chapter 577.
32-5 (b) The care and treatment of a patient receiving chemical
32-6 dependency treatment in a facility licensed by the department under
32-7 this chapter are governed by the same standards that govern the
32-8 care and treatment of a patient receiving treatment in a treatment
32-9 facility licensed under Chapter 464 and that are adopted by the
32-10 Texas Commission on Alcohol and Drug Abuse, to the same extent as
32-11 if the standards adopted by the commission were rules adopted by
32-12 the board under this chapter.
32-13 (c) The department shall enforce the standards provided by
32-14 Subsections (a) and (b). A violation of a standard is subject to
32-15 the same consequence as a violation of a rule adopted by the board
32-16 under this chapter or Chapter 577. The department is not required
32-17 to enforce a standard if the enforcement violates a federal law,
32-18 rule, or regulation.
32-19 SECTION 3.03. (a) Section 462.022, Health and Safety Code,
32-20 is amended by amending Subsection (a) and adding Subsection (c) to
32-21 read as follows:
32-22 (a) A facility may admit a minor for treatment and
32-23 rehabilitation if:
32-24 (1) the facility is:
32-25 (A) a treatment facility licensed by the
32-26 commission to provide the necessary services to minors; or
32-27 (B) a facility licensed or operated by the Texas
33-1 Department of Mental Health and Mental Retardation;
33-2 (2) the admission is appropriate under the facility's
33-3 admission policies; and
33-4 (3) the admission is requested by:
33-5 (A) a parent, managing conservator, or guardian
33-6 if the minor is younger than 16 years of age <or other person
33-7 authorized to consent to medical treatment of a minor under Section
33-8 35.01, Family Code>; or
33-9 (B) the minor, without parental consent, if the
33-10 minor is 16 years of age or older <under Section 35.03, Family
33-11 Code>.
33-12 (c) A person or agency appointed as the guardian or a
33-13 managing conservator of a minor younger than 16 years of age and
33-14 acting as an employee or agent of the state or a political
33-15 subdivision of the state may request admission of the minor only
33-16 with the minor's consent.
33-17 (b) The changes in law made by this section apply only to
33-18 consent for a minor's admission to a treatment facility or mental
33-19 health facility given on or after the effective date of this
33-20 section. Valid consent for a minor's admission given before the
33-21 effective date of this section remains valid and continues in
33-22 effect until withdrawn by the person who consented or by the minor,
33-23 if the minor is 16 years of age or older.
33-24 ARTICLE 4
33-25 SECTION 4.01. Subdivision (9), Section 571.003, Health and
33-26 Safety Code, is amended to read as follows:
33-27 (9) "Inpatient mental health facility" means a mental
34-1 health facility that can provide 24-hour residential and
34-2 psychiatric services and that is:
34-3 (A) a facility operated by the department;
34-4 (B) a private mental hospital licensed by the
34-5 Texas Department of Health <department>;
34-6 (C) a community center;
34-7 (D) a facility operated by a community center or
34-8 other entity the department designates to provide mental health
34-9 services;
34-10 (E) an identifiable part of a general hospital
34-11 in which diagnosis, treatment, and care for persons with mental
34-12 illness is provided and that is licensed by the <department or the>
34-13 Texas Department of Health; or
34-14 (F) a hospital operated by a federal agency.
34-15 SECTION 4.02. Section 577.001, Health and Safety Code, is
34-16 amended to read as follows:
34-17 Sec. 577.001. License Required. (a) A person or political
34-18 subdivision may not operate a mental hospital without a license
34-19 issued by the department under this chapter <or by the Texas
34-20 Department of Health>.
34-21 (b) A community center or other entity designated by the
34-22 Texas Department of Mental Health and Mental Retardation
34-23 <department> to provide mental health services may not operate a
34-24 mental health facility that provides court-ordered mental health
34-25 services without a license issued by the department under this
34-26 chapter <or by the Texas Department of Health>.
34-27 SECTION 4.03. Chapter 577, Health and Safety Code, is
35-1 amended by adding Section 577.0011 to read as follows:
35-2 Sec. 577.0011. DEFINITIONS. In this chapter:
35-3 (1) "Board" means the Texas Board of Health.
35-4 (2) "Department" means the Texas Department of Health.
35-5 SECTION 4.04. Sections 577.002, 577.003, and 577.009, Health
35-6 and Safety Code, are amended to read as follows:
35-7 Sec. 577.002. Exemptions from Licensing Requirement. A
35-8 mental health facility operated by the Texas Department of Mental
35-9 Health and Mental Retardation <department> or a federal agency need
35-10 not be licensed under this chapter.
35-11 Sec. 577.003. Additional License not Required. A mental
35-12 hospital licensed under this chapter that the Texas Department of
35-13 Mental Health and Mental Retardation <department> designates to
35-14 provide mental health services is not required to obtain an
35-15 additional license to provide court-ordered mental health services.
35-16 Sec. 577.009. Limitation on Certain Contracts. A community
35-17 center or other entity the Texas Department of Mental Health and
35-18 Mental Retardation <department> designates to provide mental health
35-19 services may not contract with a mental health facility to provide
35-20 court-ordered mental health services unless the facility is
35-21 licensed by the department <or the Texas Department of Health>.
35-22 SECTION 4.05. Subsection (a), Section 577.010, Health and
35-23 Safety Code, is amended to read as follows:
35-24 (a) The Texas Board of Mental Health and Mental Retardation
35-25 <board> shall adopt rules and standards the board considers
35-26 necessary and appropriate to ensure the proper care and treatment
35-27 of patients in a private mental hospital or mental health facility
36-1 required to obtain a license under this chapter.
36-2 SECTION 4.06. (a) Not later than September 1, 1993, all
36-3 functions, powers, duties, funds, and obligations of the Texas
36-4 Department of Mental Health and Mental Retardation relating to the
36-5 licensure of mental health facilities, other than the power and
36-6 duty to prescribe standards for those facilities, all employees who
36-7 perform those duties, and all relevant records are transferred to
36-8 the Texas Department of Health. A rule, form, or policy relating
36-9 to this function is a rule, form, or policy of the Texas Department
36-10 of Health on transfer of the functions under this section and
36-11 remains in effect until altered by the department.
36-12 (b) A power or duty assigned to the Texas Department of
36-13 Mental Health and Mental Retardation by an Act of the 73rd
36-14 Legislature, Regular Session, 1993, relating to licensing a
36-15 facility under Chapter 577, Health and Safety Code, as amended by
36-16 this article, including a power or duty to bring an action to
36-17 enforce state law or to collect a penalty for a violation of state
36-18 law, is a power or duty of the Texas Department of Health.
36-19 (c) Subsection (b) of this section does not apply to a power
36-20 or duty assigned to the Texas Department of Mental Health and
36-21 Mental Retardation that relates to prescribing standards for a
36-22 facility.
36-23 ARTICLE 5
36-24 SECTION 5.01. Subchapter I, Chapter 161, Health and Safety
36-25 Code, as added by Chapter 15, Acts of the 72nd Legislature, 1st
36-26 Called Session, 1991, is amended to read as follows:
36-27 SUBCHAPTER I. ILLEGAL REMUNERATION
37-1 Sec. 161.091. PROHIBITION ON ILLEGAL REMUNERATION. (a) A
37-2 person <licensed, certified, or registered by a health care
37-3 regulatory agency of this state> commits an offense if the person
37-4 intentionally or knowingly offers to pay or agrees to accept any
37-5 remuneration directly or indirectly, overtly or covertly, in cash
37-6 or in kind, to or from any person, firm, association of persons,
37-7 partnership, or corporation for securing or soliciting patients or
37-8 patronage for or from a person licensed, certified, or registered
37-9 by a state health care regulatory agency.
37-10 (b) It is a rebuttable presumption that a person has
37-11 violated this section if:
37-12 (1) the person refers or accepts a referral of a
37-13 person to an inpatient mental health facility or chemical
37-14 dependency treatment facility;
37-15 (2) before the patient is discharged or furloughed
37-16 from the inpatient facility, the person pays the referring person
37-17 or accepts payment from the inpatient facility for outpatient
37-18 services to be provided by the referring person after the patient
37-19 is discharged or furloughed from the inpatient facility; and
37-20 (3) the referring person does not provide the
37-21 outpatient services for which payment was made and does not return
37-22 to the inpatient facility the payment for the services not
37-23 provided.
37-24 (c) This section shall not be construed to prohibit
37-25 advertising except that which is false, misleading, or deceptive or
37-26 that which advertises professional superiority or the performance
37-27 of a professional service in a superior manner and that is not
38-1 readily subject to verification.
38-2 (d) <(c)> Except as provided by this section, an offense
38-3 under this section is a Class A misdemeanor. If it is shown on
38-4 <in> the trial of a person under <violation of> this section that
38-5 the person has previously been convicted of an offense under <a
38-6 violation of> this section or that the person was employed by a
38-7 federal, state, or local government at the time the offense
38-8 occurred, the offense is<, on conviction the person shall be
38-9 punished for> a felony of the third degree. In addition to any
38-10 other penalties or remedies provided, a violation of this section
38-11 shall be grounds for disciplinary action by a <the> regulatory
38-12 agency that has issued a license, certification, or registration to
38-13 the person.
38-14 (e) <(d) The appropriate health care regulatory agency may
38-15 institute an action to enjoin a violation or potential violation of
38-16 this section. The action for an injunction shall be in addition to
38-17 any other action, proceeding, or remedy authorized by law. The
38-18 regulatory agency shall be represented by the attorney general.>
38-19 <(e) This section shall not be construed to prohibit
38-20 remuneration for advertising, marketing, or other services that are
38-21 provided for the purpose of securing or soliciting patients
38-22 provided the remuneration is set in advance, is consistent with the
38-23 fair market value of the services, and is not based on the volume
38-24 or value of any patient referrals or business otherwise generated
38-25 between the parties.>
38-26 <(f)> This section shall <not> be construed to permit
38-27 <prohibit> any payment, business arrangements, or payments practice
39-1 permitted <not prohibited> by 42 U.S.C. Section 1320a-7b(b) or any
39-2 regulations promulgated pursuant thereto.
39-3 (f) <(g)> This section shall not apply to licensed insurers,
39-4 governmental entities, including intergovernmental risk pools
39-5 established under Chapter 172, Local Government Code, and
39-6 institutions as defined in the Texas State College and University
39-7 Employees Uniform Insurance Benefits Act (Article 3.50-3, Vernon's
39-8 Texas Insurance Code), group hospital service corporations, or
39-9 health maintenance organizations which reimburse, provide, offer to
39-10 provide, or administer hospital, medical, dental, or other
39-11 health-related benefits under a health benefits plan for which it
39-12 is the payor.
39-13 Sec. 161.0915. EXEMPTION. (a) This subchapter does not
39-14 apply to a health care information service that:
39-15 (1) provides its services to a consumer only by
39-16 telephone communication on request initiated by the consumer and
39-17 without charge to the consumer;
39-18 (2) provides information about health care providers
39-19 to enable consumer selection of health care provider services
39-20 without any direct influence by a health care provider on actual
39-21 consumer selection of those services;
39-22 (3) in response to each consumer inquiry, on a
39-23 nondiscriminatory basis, provides information identifying health
39-24 care providers who substantially meet the consumer's detailed
39-25 criteria based on consumer responses to standard questions designed
39-26 to elicit a consumer's criteria for a health care provider,
39-27 including criteria concerning location of the practice, practice
40-1 specialties, costs and payment policies, acceptance of insurance
40-2 coverage, general background and practice experience, and various
40-3 personal characteristics;
40-4 (4) does not attempt through its standard questions
40-5 for solicitation of consumer criteria or through any other means or
40-6 methods to steer or lead a consumer to select or consider selection
40-7 of a particular health care provider for health care provider
40-8 services;
40-9 (5) identifies to a consumer:
40-10 (A) all health care providers who substantially
40-11 meet the consumer's stated criteria and who are located within the
40-12 zip code area in which the consumer elects to obtain services from
40-13 a health care provider; or
40-14 (B) all health care providers substantially
40-15 meeting the consumer's stated criteria who are located in zip code
40-16 areas in the closest proximity to the elected zip code area if no
40-17 health care provider substantially meeting the consumer's criteria
40-18 is located within that zip code area;
40-19 (6) discloses to each consumer the relationship
40-20 between the health care information service and health care
40-21 providers participating in its services;
40-22 (7) does not provide or represent itself as providing
40-23 diagnostic or counseling services or assessment of illness or
40-24 injury and does not make any promises of cure or guarantees of
40-25 treatment;
40-26 (8) does not provide or arrange for transportation of
40-27 a consumer to or from the location of a health care provider;
41-1 (9) does not limit the scope of or direct its
41-2 advertising or other marketing of its services to a particular
41-3 health care provider specialty, to a particular segment of the
41-4 population, or to persons suffering from a particular illness,
41-5 condition, or infirmity;
41-6 (10) charges to and collects fees from a health care
41-7 provider participating in its services that are set in advance, are
41-8 consistent with the fair market value for those information
41-9 services, and are not based on the potential value of a patient or
41-10 patients to a health care provider or on the value of or a
41-11 percentage of the value of a professional service provided by the
41-12 health care provider;
41-13 (11) does not limit participation by a health care
41-14 provider in its services to a particular health care specialty or
41-15 to a particular service provided by a health care provider;
41-16 (12) does not limit participation by a health care
41-17 provider in its services for a reason other than:
41-18 (A) failure to have a current, valid license
41-19 without limitation to practice in this state;
41-20 (B) failure to maintain professional liability
41-21 insurance while participating in the service;
41-22 (C) significant dissatisfaction of consumers of
41-23 the health care information service that is documented and can be
41-24 proved;
41-25 (D) a decision by a peer review committee that
41-26 the health care provider has failed to meet prescribed standards or
41-27 has not acted in a professional or ethical manner; or
42-1 (E) termination of the contract between the
42-2 health care provider and the health care information service by
42-3 either party under the terms of the contract;
42-4 (13) maintains a customer service department to handle
42-5 complaints and answer questions for consumers;
42-6 (14) maintains a customer follow-up system to monitor
42-7 consumer satisfaction; and
42-8 (15) does not use, maintain, distribute, or provide
42-9 for any purpose any information that will identify a particular
42-10 consumer, such as a name, address, or telephone number, obtained
42-11 from a consumer seeking its services other than for the purposes
42-12 of:
42-13 (A) providing the information to the health care
42-14 provider with whom an appointment is made;
42-15 (B) performing administrative functions
42-16 necessary to operate the health care information service;
42-17 (C) providing directly to a consumer, at the
42-18 request of that consumer on that consumer's initial contact with
42-19 the health care information service, information relating to
42-20 health-related support groups or providers of health-care-related
42-21 services or equipment within the area or areas of interest
42-22 requested by the consumer; or
42-23 (D) conducting analytical research on data
42-24 obtained through provision of services and preparing statistical
42-25 reports that generally analyze that data but do not in any manner
42-26 identify one or more specific consumers.
42-27 (b) In this section:
43-1 (1) "Health care information service" means a person
43-2 who provides information to a consumer regarding health care
43-3 providers that can enable the consumer to select one or more health
43-4 care providers to furnish health care services.
43-5 (2) "Health care provider" means a person licensed,
43-6 certified, or registered by a state health care regulatory agency
43-7 other than a:
43-8 (A) mental health facility as defined by Section
43-9 571.003; or
43-10 (B) treatment facility as defined by Section
43-11 464.001.
43-12 Sec. 161.092. NOTIFICATION OF REMUNERATION. (a) A person
43-13 commits an offense if:
43-14 (1) the person, in a manner otherwise permitted under
43-15 Section 161.091, accepts remuneration to secure or solicit patients
43-16 or patronage for a person licensed, certified, or registered by a
43-17 state health care regulatory agency; and
43-18 (2) does not, at the time of initial contact and at
43-19 the time of referral, disclose to the patient:
43-20 (A) the person's affiliation, if any, with the
43-21 person for whom the patient is secured or solicited; and
43-22 (B) that the person will receive remuneration,
43-23 directly or indirectly, for securing or soliciting the patient.
43-24 (b) Except as otherwise provided by this section, an offense
43-25 under this section is a Class A misdemeanor. If it is shown on the
43-26 trial of a person under this section that the person has previously
43-27 been convicted of an offense under this section or that the person
44-1 was employed by a federal, state, or local government at the time
44-2 the offense occurred, the offense is a felony of the third degree.
44-3 (c) In addition to other penalties or remedies provided by
44-4 this subchapter, a violation of this section is grounds for
44-5 disciplinary action by a regulatory agency that has issued a
44-6 license, certification, or registration to the person.
44-7 Sec. 161.093. INJUNCTION. (a) The attorney general or the
44-8 appropriate district or county attorney, in the name of the state,
44-9 may institute and conduct an action in a district court of Travis
44-10 County or of a county in which any part of the violation occurs for
44-11 an injunction or other process against a person who is violating
44-12 this subchapter.
44-13 (b) The district court may grant any prohibitory or
44-14 mandatory relief warranted by the facts, including a temporary
44-15 restraining order, temporary injunction, or permanent injunction.
44-16 Sec. 161.094. CIVIL PENALTIES. (a) A person who violates
44-17 this subchapter is subject to a civil penalty of not more than
44-18 $10,000 for each day of violation and each act of violation. In
44-19 determining the amount of the civil penalty, the court shall
44-20 consider:
44-21 (1) the person's previous violations;
44-22 (2) the seriousness of the violation, including the
44-23 nature, circumstances, extent, and gravity of the violation;
44-24 (3) whether the health and safety of the public was
44-25 threatened by the violation;
44-26 (4) the demonstrated good faith of the person; and
44-27 (5) the amount necessary to deter future violations.
45-1 (b) The attorney general or the appropriate district or
45-2 county attorney, in the name of the state, may institute and
45-3 conduct an action authorized by this section in a district court of
45-4 Travis County or of a county in which any part of the violation
45-5 occurs.
45-6 (c) The party bringing the suit may:
45-7 (1) combine a suit to assess and recover civil
45-8 penalties with a suit for injunctive relief brought under Section
45-9 161.093; or
45-10 (2) file a suit to assess and recover civil penalties
45-11 independently of a suit for injunctive relief.
45-12 (d) The party bringing the suit may recover reasonable
45-13 expenses incurred in obtaining injunctive relief, civil penalties,
45-14 or both, including investigation costs, court costs, reasonable
45-15 attorney fees, witness fees, and deposition expenses.
45-16 (e) A penalty collected under this section by the attorney
45-17 general shall be deposited to the credit of the general revenue
45-18 fund. A penalty collected under this section by a district or
45-19 county attorney shall be deposited to the credit of the general
45-20 fund of the county in which the suit was heard.
45-21 (f) The civil penalty and injunction authorized by this
45-22 subchapter are in addition to any other civil, administrative, or
45-23 criminal action provided by law.
45-24 ARTICLE 6
45-25 SECTION 6.01. This Act takes effect September 1, 1993.
45-26 SECTION 6.02. (a) The changes in law made by this Act apply
45-27 only to an offense committed or a violation that occurs on or after
46-1 the effective date of this Act. For the purposes of this Act, an
46-2 offense is committed or a violation occurs before the effective
46-3 date of this Act if any element of the offense or violation occurs
46-4 before that date.
46-5 (b) An offense committed or violation that occurs before the
46-6 effective date of this Act is covered by the law in effect when the
46-7 offense was committed or the violation occurred, and the former law
46-8 is continued in effect for this purpose.
46-9 SECTION 6.03. The importance of this legislation and the
46-10 crowded condition of the calendars in both houses create an
46-11 emergency and an imperative public necessity that the
46-12 constitutional rule requiring bills to be read on three several
46-13 days in each house be suspended, and this rule is hereby suspended.