By: Zaffirini S.B. No. 210
73R2133 JJT/CBH-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the provision of services to persons
1-3 with certain disabilities; providing civil and criminal penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1
1-6 SECTION 1.01. Chapter 161, Health and Safety Code, is
1-7 amended by adding Subchapter K to read as follows:
1-8 SUBCHAPTER K. ABUSE, NEGLECT, AND UNPROFESSIONAL OR
1-9 UNETHICAL CONDUCT IN HEALTH CARE FACILITIES
1-10 Sec. 161.131. DEFINITIONS. In this subchapter:
1-11 (1) "Abuse" has the meaning assigned by the federal
1-12 Protection and Advocacy for Mentally Ill Individuals Act of 1986
1-13 (42 U.S.C. Sec. 10801 et seq.).
1-14 (2) "Comprehensive medical rehabilitation services"
1-15 means a combination of rehabilitation services provided to a person
1-16 with a spinal cord injury, a brain injury, a stroke, multiple
1-17 sclerosis, cerebral palsy, hemiplegia, quadriplegia, paraplegia, a
1-18 chronic illness, a congenital defect, or another severe physical
1-19 disability that requires an integrated and coordinated program of
1-20 services to reduce the impact of the disability on the person.
1-21 (3) "Hospital" has the meaning assigned by Section
1-22 241.003.
1-23 (4) "Illegal conduct" means conduct prohibited by law.
1-24 (5) "Inpatient mental health facility" has the meaning
2-1 assigned by Section 571.003.
2-2 (6) "License" means a state agency permit,
2-3 certificate, approval, registration, or other form of permission
2-4 required by state law.
2-5 (7) "Mental health facility" has the meaning assigned
2-6 by Section 571.003.
2-7 (8) "Neglect" has the meaning assigned by the federal
2-8 Protection and Advocacy for Mentally Ill Individuals Act of 1986
2-9 (42 U.S.C. Sec. 10801 et seq.).
2-10 (9) "Rehabilitation services" includes physical
2-11 therapy, occupational therapy, audiology, speech-language
2-12 pathology, psychology, neuropsychology, vocational rehabilitation,
2-13 and the evaluation, diagnosis, or therapeutic or restorative
2-14 treatment of the physical, psychosocial, vocational, or educational
2-15 needs of a person with a disability to minimize the person's
2-16 physical or cognitive impairments, prevent the person's
2-17 institutionalization, maximize the person's functional ability, or
2-18 restore the person's lost functional capacity.
2-19 (10) "State health care regulatory agency" means a
2-20 state agency that licenses a health care professional.
2-21 (11) "Treatment facility" has the meaning assigned by
2-22 Section 464.001.
2-23 (12) "Unethical conduct" means conduct prohibited by
2-24 the ethical standards adopted by state or national professional
2-25 organizations for their respective professions or by rules
2-26 established by the state licensing agency for the respective
2-27 profession.
3-1 (13) "Unprofessional conduct" means conduct prohibited
3-2 under rules adopted by the state licensing agency for the
3-3 respective profession.
3-4 Sec. 161.132. REPORTS OF ABUSE AND NEGLECT OR OF ILLEGAL,
3-5 UNPROFESSIONAL, OR UNETHICAL CONDUCT. (a) A person, including an
3-6 employee or other person associated with an inpatient mental health
3-7 facility, a treatment facility, or a hospital that provides
3-8 comprehensive medical rehabilitation services, who reasonably
3-9 believes or who knows of information that would reasonably cause a
3-10 person to believe that the physical or mental health or welfare of
3-11 a patient or client of the facility who is receiving chemical
3-12 dependency, mental health, or rehabilitation services has been, is,
3-13 or will be adversely affected by abuse or neglect caused by any
3-14 person shall as soon as possible report the information supporting
3-15 the belief to the agency that licenses the facility or to the
3-16 appropriate state health care regulatory agency.
3-17 (b) An employee of or other person associated with an
3-18 inpatient mental health facility, a treatment facility, or a
3-19 hospital that provides comprehensive medical rehabilitation
3-20 services, including a health care professional, who reasonably
3-21 believes or who knows of information that would reasonably cause a
3-22 person to believe that the facility or an employee of or health
3-23 care professional associated with the facility has, is, or will be
3-24 engaged in conduct that is or might be illegal, unprofessional, or
3-25 unethical and that relates to the operation of the facility or
3-26 mental health, chemical dependency, or rehabilitation services
3-27 provided in the facility shall as soon as possible report the
4-1 information supporting the belief to the agency that licenses the
4-2 facility or to the appropriate state health care regulatory agency.
4-3 (c) The requirement prescribed by this section is in
4-4 addition to the requirements provided by Chapter 34, Family Code,
4-5 and Chapter 48, Human Resources Code.
4-6 (d) The Texas Board of Mental Health and Mental Retardation,
4-7 Texas Board of Health, Texas Commission on Alcohol and Drug Abuse,
4-8 and each state health care regulatory agency by rule shall:
4-9 (1) prescribe procedures for the investigation of
4-10 reports received under Subsection (a) or (b) and for coordination
4-11 with and referral of reports to law enforcement agencies or other
4-12 appropriate agencies; and
4-13 (2) prescribe follow-up procedures to ensure that a
4-14 report referred to another agency receives appropriate action.
4-15 (e) Each hospital, inpatient mental health facility, and
4-16 treatment facility shall prominently and conspicuously post for
4-17 display in a public area of the facility that is readily available
4-18 to patients, residents, employees, and visitors a statement of the
4-19 duty to report under this section. The statement must be in
4-20 English and in a second language and contain a toll-free telephone
4-21 number that a person may call to report.
4-22 (f) Each state health care regulatory agency by rule shall
4-23 provide for appropriate disciplinary action against a health care
4-24 professional licensed by the agency who fails to report as required
4-25 by this section.
4-26 (g) An individual who in good faith reports under this
4-27 section is immune from civil or criminal liability arising from the
5-1 report. That immunity extends to participation in an
5-2 administrative or judicial proceeding resulting from the report but
5-3 does not extend to an individual who caused the abuse or neglect or
5-4 who engaged in the illegal, unprofessional, or unethical conduct.
5-5 (h) A person commits an offense if the person:
5-6 (1) intentionally, maliciously, or recklessly reports
5-7 false material information under this section; or
5-8 (2) fails to report as required by Subsection (a).
5-9 (i) An offense under Subsection (h) is a Class A
5-10 misdemeanor.
5-11 (j) In this section, "abuse" includes coercive or
5-12 restrictive actions that are illegal or not justified by the
5-13 patient's condition and that are in response to the patient's
5-14 request for discharge or refusal of medication, therapy, or
5-15 treatment.
5-16 Sec. 161.133. MEMORANDUM OF UNDERSTANDING ON INSERVICE
5-17 TRAINING. (a) The Texas Board of Mental Health and Mental
5-18 Retardation, Texas Board of Health, and Texas Commission on Alcohol
5-19 and Drug Abuse by rule shall adopt a joint memorandum of
5-20 understanding that requires each inpatient mental health facility,
5-21 treatment facility, or hospital that provides comprehensive medical
5-22 rehabilitation services to annually provide as a condition of
5-23 continued licensure a minimum of eight hours of inservice training
5-24 designed to assist employees and health care professionals
5-25 associated with the facility in identifying patient abuse or
5-26 neglect and illegal, unprofessional, or unethical conduct by or in
5-27 the facility.
6-1 (b) The memorandum must prescribe:
6-2 (1) minimum standards for the training program; and
6-3 (2) a means for monitoring compliance with the
6-4 requirement.
6-5 (c) Each agency shall review and modify the memorandum as
6-6 necessary not later than the last month of each state fiscal year.
6-7 Sec. 161.134. RETALIATION PROHIBITED. (a) A hospital,
6-8 mental health facility, or treatment facility may not suspend or
6-9 terminate the employment of, discipline, or otherwise discriminate
6-10 against an employee for reporting to the employee's supervisor, an
6-11 administrator of the facility, a state regulatory agency, or a law
6-12 enforcement agency a violation of law, including a violation of
6-13 this chapter, a rule adopted under this chapter, or a rule adopted
6-14 by the Texas Board of Mental Health and Mental Retardation, the
6-15 Texas Board of Health, or the Texas Commission on Alcohol and Drug
6-16 Abuse.
6-17 (b) A hospital, mental health facility, or treatment
6-18 facility that violates Subsection (a) is liable to the person
6-19 discriminated against. A person who has been discriminated against
6-20 in violation of Subsection (a) may sue for injunctive relief,
6-21 damages, or both.
6-22 (c) A court shall award to a plaintiff who prevails in a
6-23 suit under this section not less than the greater of $1,000 or
6-24 actual damages, including damages for mental anguish even if an
6-25 injury other than mental anguish is not shown.
6-26 (d) In addition to an award under Subsection (c), a court
6-27 may award to a plaintiff who prevails in a suit under this section:
7-1 (1) exemplary damages;
7-2 (2) court costs; and
7-3 (3) reasonable attorney's fees.
7-4 (e) In addition to amounts recovered under Subsections (c)
7-5 and (d), a plaintiff is entitled to, if applicable:
7-6 (1) reinstatement in the plaintiff's former position;
7-7 (2) compensation for lost wages; and
7-8 (3) reinstatement of lost fringe benefits or seniority
7-9 rights.
7-10 (f) A plaintiff suing under this section has the burden of
7-11 proof, except that it is a rebuttable presumption that the
7-12 plaintiff's employment was suspended or terminated, or that the
7-13 employee was disciplined or discriminated against, for making a
7-14 report related to a violation if the suspension, termination,
7-15 discipline, or discrimination occurs before the 60th day after the
7-16 date on which the plaintiff made a report in good faith.
7-17 (g) A suit under this section may be brought in the district
7-18 court of the county in which:
7-19 (1) the plaintiff resides;
7-20 (2) the plaintiff was employed by the defendant; or
7-21 (3) the defendant conducts business.
7-22 (h) A person who alleges a violation of Subsection (a) must
7-23 sue under this section before the 180th day after the date the
7-24 alleged violation occurred or was discovered by the employee
7-25 through the use of reasonable diligence.
7-26 (i) This section does not abrogate any other right to sue or
7-27 interfere with any other cause of action.
8-1 (j) Each hospital, mental health facility, and treatment
8-2 facility shall prominently and conspicuously post for display in a
8-3 public area of the facility that is readily available to patients,
8-4 residents, employees, and visitors a statement that employees and
8-5 staff are protected from discrimination or retaliation for
8-6 reporting a violation of law. The statement must be in English and
8-7 in a second language.
8-8 Sec. 161.135. PENALTIES. In addition to the penalties
8-9 prescribed by this subchapter, a violation of a provision of this
8-10 subchapter by an individual or facility that is licensed by a state
8-11 health care regulatory agency is subject to the same consequence as
8-12 a violation of the licensing law applicable to the individual or
8-13 facility or of a rule adopted under that licensing law.
8-14 SECTION 1.02. The changes in law made by this article apply
8-15 only to a cause of action that accrues on or after the effective
8-16 date of this article. A cause of action that accrues before the
8-17 effective date of this article is governed by the law in effect on
8-18 the date the cause of action accrues, and that law is continued in
8-19 effect for this purpose.
8-20 ARTICLE 2
8-21 SECTION 2.01. Title 4, Civil Practice and Remedies Code, is
8-22 amended by adding Chapter 81 to read as follows:
8-23 CHAPTER 81. SEXUAL EXPLOITATION BY MENTAL HEALTH SERVICES PROVIDER
8-24 Sec. 81.001. DEFINITIONS. In this chapter:
8-25 (1) "Mental health services" means assessment,
8-26 diagnosis, treatment, or counseling in a professional relationship
8-27 to assist an individual or group in:
9-1 (A) alleviating mental or emotional illness,
9-2 symptoms, conditions, or disorders, including alcohol or drug
9-3 addiction;
9-4 (B) understanding conscious or subconscious
9-5 motivations;
9-6 (C) resolving emotional, attitudinal, or
9-7 relationship conflicts; or
9-8 (D) modifying feelings, attitudes, or behaviors
9-9 that interfere with effective emotional, social, or intellectual
9-10 functioning.
9-11 (2) "Mental health services provider" means an
9-12 individual, licensed or unlicensed, who performs or purports to
9-13 perform mental health services, including a:
9-14 (A) "certified social worker" as defined by
9-15 Section 50.001, Human Resources Code;
9-16 (B) "chemical dependency counselor" as defined
9-17 by Section 1, Chapter 635, Acts of the 72nd Legislature, Regular
9-18 Session, 1991 (Article 4512o, Vernon's Texas Civil Statutes);
9-19 (C) "licensed professional counselor" as defined
9-20 by Section 2, Licensed Professional Counselor Act (Article 4512g,
9-21 Vernon's Texas Civil Statutes);
9-22 (D) "licensed marriage and family therapist" as
9-23 defined by Section 2, Licensed Marriage and Family Therapist Act
9-24 (Article 4512c-1, Vernon's Texas Civil Statutes);
9-25 (E) member of the clergy;
9-26 (F) "physician" who is "practicing medicine" as
9-27 defined by Section 1.03, Medical Practice Act (Article 4495b,
10-1 Vernon's Texas Civil Statutes); and
10-2 (G) "psychologist" offering "psychological
10-3 services" as defined by Section 2, Psychologists' Certification and
10-4 Licensing Act (Article 4512c, Vernon's Texas Civil Statutes).
10-5 (3) "Patient" means an individual who seeks or obtains
10-6 mental health services.
10-7 (4) "Sexual contact" means:
10-8 (A) "deviate sexual intercourse" as defined by
10-9 Section 21.01, Penal Code;
10-10 (B) "sexual contact" as defined by
10-11 Section 21.01, Penal Code;
10-12 (C) "sexual intercourse" as defined by
10-13 Section 21.01, Penal Code; or
10-14 (D) requests by the mental health services
10-15 provider for conduct described by Paragraph (A), (B), or (C).
10-16 "Sexual contact" does not include conduct described by Paragraph
10-17 (A) or (B) that is a part of a professionally recognized medical
10-18 treatment of a patient.
10-19 (5) "Sexual exploitation" means a pattern, practice,
10-20 or scheme of conduct, which may include sexual contact, that can
10-21 reasonably be construed as being for the purposes of sexual arousal
10-22 or gratification or sexual abuse of any person. The term does not
10-23 include obtaining information about a patient's sexual history
10-24 within standard accepted practice while treating a sexual or
10-25 marital dysfunction.
10-26 (6) "Therapeutic deception" means a representation by
10-27 a mental health services provider that sexual contact with, or
11-1 sexual exploitation by, the mental health services provider is
11-2 consistent with, or a part of, a patient's or former patient's
11-3 treatment.
11-4 Sec. 81.002. SEXUAL EXPLOITATION CAUSE OF ACTION. A mental
11-5 health services provider is liable to a patient or former patient
11-6 of the mental health services provider for damages for sexual
11-7 exploitation if the patient or former patient suffers, directly or
11-8 indirectly, a physical, mental, or emotional injury caused by,
11-9 resulting from, or arising out of:
11-10 (1) sexual contact between the patient or former
11-11 patient and the mental health services provider;
11-12 (2) sexual exploitation of the patient or former
11-13 patient by the mental health services provider; or
11-14 (3) therapeutic deception of the patient or former
11-15 patient by the mental health services provider.
11-16 Sec. 81.003. LIABILITY OF EMPLOYER. (a) An employer of a
11-17 mental health services provider is liable to a patient or former
11-18 patient of the mental health services provider for damages if the
11-19 patient or former patient is injured as described by Section 81.002
11-20 and the employer:
11-21 (1) fails to make inquiries of an employer or former
11-22 employer, whose name and address have been disclosed to the
11-23 employer and who employed the mental health services provider as a
11-24 mental health services provider within the five years before the
11-25 date of disclosure, concerning the possible occurrence of sexual
11-26 exploitation by the mental health services provider of patients or
11-27 former patients of the mental health services provider; or
12-1 (2) knows or has reason to know that the mental health
12-2 services provider engaged in the sexual exploitation of the patient
12-3 or former patient and the employer failed to:
12-4 (A) report the suspected sexual exploitation as
12-5 required by Section 81.006; or
12-6 (B) take necessary action to prevent or stop the
12-7 sexual exploitation by the mental health services provider.
12-8 (b) An employer or former employer of a mental health
12-9 services provider is liable to a patient or former patient of the
12-10 mental health services provider for damages if the patient or
12-11 former patient is injured as described by Section 81.002 and the
12-12 employer or former employer:
12-13 (1) knows of the occurrence of the sexual exploitation
12-14 by the mental health services provider of the patient or former
12-15 patient;
12-16 (2) receives a specific request by an employer or
12-17 prospective employer of the mental health services provider,
12-18 engaged in the business of providing mental health services,
12-19 concerning the possible existence or nature of sexual exploitation
12-20 by the mental health services provider; and
12-21 (3) fails to disclose the occurrence of the sexual
12-22 exploitation.
12-23 (c) An employer or former employer is liable under this
12-24 section only to the extent that the failure to take the action
12-25 described by Subsection (a) or (b) was a proximate and actual cause
12-26 of damages sustained.
12-27 Sec. 81.004. DAMAGES. (a) A court shall award to a
13-1 plaintiff who prevails in a suit under this chapter not less than
13-2 the greater of $1,000 or actual damages, including damages for
13-3 mental anguish even if an injury other than mental anguish is not
13-4 shown.
13-5 (b) In addition to an award under Subsection (a), a court
13-6 may award to a plaintiff who prevails in a suit under this chapter:
13-7 (1) exemplary damages;
13-8 (2) court costs; and
13-9 (3) reasonable attorney's fees.
13-10 Sec. 81.005. DEFENSES. (a) It is not a defense to an
13-11 action brought under Section 81.002 or 81.003 that the sexual
13-12 exploitation of the patient or former patient occurred:
13-13 (1) with the consent of the patient or former patient;
13-14 (2) outside the therapy or treatment sessions of the
13-15 patient or former patient; or
13-16 (3) off the premises regularly used by the mental
13-17 health services provider for the therapy or treatment sessions of
13-18 the patient or former patient.
13-19 (b) It is a defense to an action brought under
13-20 Section 81.002 or 81.003 by a former patient that the person was
13-21 not emotionally dependent on the mental health services provider
13-22 when the sexual exploitation began and the mental health services
13-23 provider terminated mental health services with the patient more
13-24 than two years before the date the sexual exploitation began.
13-25 (c) A person is considered not emotionally dependent for
13-26 purposes of this chapter if the nature of the patient's or former
13-27 patient's emotional condition and the nature of the treatment
14-1 provided by the mental health services provider are not such that
14-2 the mental health services provider knows or has reason to believe
14-3 that the patient or former patient is unable to withhold consent to
14-4 the sexual exploitation.
14-5 Sec. 81.006. DUTY TO REPORT. (a) If a mental health
14-6 services provider or the employer of a mental health services
14-7 provider has reasonable cause to suspect that a patient has been
14-8 the victim of sexual exploitation by a mental health services
14-9 provider during the course of treatment, or if a patient alleges
14-10 sexual exploitation by a mental health services provider during the
14-11 course of treatment, the mental health services provider or the
14-12 employer shall report the alleged conduct not later than the 30th
14-13 day after the date the person became aware of the conduct or the
14-14 allegations to:
14-15 (1) the prosecuting attorney in the county in which
14-16 the alleged sexual exploitation occurred; and
14-17 (2) any state licensing board that has responsibility
14-18 for the mental health services provider's licensing.
14-19 (b) Before making a report under this section, the reporter
14-20 shall inform the alleged victim of the reporter's duty to report
14-21 and shall determine if the alleged victim wants to remain
14-22 anonymous.
14-23 (c) A report under this section need contain only the
14-24 information needed to:
14-25 (1) identify the reporter;
14-26 (2) identify the alleged victim, unless the alleged
14-27 victim has requested anonymity; and
15-1 (3) express suspicion that sexual exploitation has
15-2 occurred.
15-3 (d) Information in a report is privileged information and is
15-4 for the exclusive use of the prosecuting attorney or state
15-5 licensing board that receives the information. A person who
15-6 receives privileged information may not disclose the information
15-7 except to the extent that disclosure is consistent with the
15-8 authorized purposes for which the person first obtained the
15-9 information. The identity of an alleged victim of sexual
15-10 exploitation by a mental health services provider may not be
15-11 disclosed by the reporter, or by a person who has received or has
15-12 access to a report or record, unless the alleged victim has
15-13 consented to the disclosure in writing.
15-14 (e) A person who intentionally violates Subsection (a) or
15-15 (d) is subject to disciplinary action by that person's appropriate
15-16 licensing board and also commits an offense. An offense under this
15-17 subsection is a Class C misdemeanor.
15-18 Sec. 81.007. LIMITED IMMUNITY FROM LIABILITY. (a) A person
15-19 who, in good faith, makes a report required by Section 81.006 is
15-20 immune from civil or criminal liability resulting from the filing
15-21 of that report.
15-22 (b) Reporting under this chapter is presumed to be done in
15-23 good faith.
15-24 (c) The immunity provided by this section does not apply to
15-25 liability resulting from sexual exploitation by a mental health
15-26 services provider of a patient or former patient.
15-27 Sec. 81.008. ADMISSION OF EVIDENCE. (a) In an action for
16-1 sexual exploitation, evidence of the plaintiff's sexual history and
16-2 reputation is not admissible unless:
16-3 (1) the plaintiff claims damage to sexual functioning;
16-4 or
16-5 (2)(A) the defendant requests a hearing before trial
16-6 and makes an offer of proof of the relevancy of the history or
16-7 reputation; and
16-8 (B) the court finds that the history or
16-9 reputation is relevant and that the probative value of the evidence
16-10 outweighs its prejudicial effect.
16-11 (b) The court may allow the admission only of specific
16-12 information or examples of the plaintiff's conduct that are
16-13 determined by the court to be relevant. The court's order shall
16-14 detail the information or conduct that is admissible and no other
16-15 such evidence may be introduced.
16-16 Sec. 81.009. LIMITATIONS. (a) Except as otherwise provided
16-17 by this section, an action under this chapter must be filed before
16-18 the third anniversary of the date the patient or former patient
16-19 understood or should have understood the conduct for which
16-20 liability is established under Section 81.002 or 81.003.
16-21 (b) If a patient or former patient entitled to file an
16-22 action under this chapter is unable to bring the action because of
16-23 the effects of the sexual exploitation, continued emotional
16-24 dependence on the mental health services provider, or threats,
16-25 instructions, or statements by the mental health services provider,
16-26 the deadline for filing an action under this chapter is tolled
16-27 during that period, except that the deadline may not be tolled for
17-1 more than 15 years.
17-2 (c) This section does not apply to a patient or former
17-3 patient who is a "child" or a "minor" as defined by Section 11.01,
17-4 Family Code, until that patient or former patient has reached the
17-5 age of 18. If the action is brought by a parent, guardian, or
17-6 other person having custody of the child or minor, it must be
17-7 brought within the period set forth in this section.
17-8 SECTION 2.02. Chapter 21, Penal Code, is amended by adding
17-9 Section 21.14 to read as follows:
17-10 Sec. 21.14. SEXUAL EXPLOITATION BY MENTAL HEALTH SERVICES
17-11 PROVIDER. (a) In this section:
17-12 (1) "Mental health services" means assessment,
17-13 diagnosis, treatment, or counseling in a professional relationship
17-14 to assist an individual or group in:
17-15 (A) alleviating mental or emotional illness,
17-16 symptoms, conditions, or disorders, including alcohol or drug
17-17 addiction;
17-18 (B) understanding conscious or subconscious
17-19 motivations;
17-20 (C) resolving emotional, attitudinal, or
17-21 relationship conflicts; or
17-22 (D) modifying feelings, attitudes, or behaviors
17-23 that interfere with effective emotional, social, or intellectual
17-24 functioning.
17-25 (2) "Mental health services provider" means an
17-26 individual, licensed or unlicensed, who performs or purports to
17-27 perform mental health services, including a:
18-1 (A) "certified social worker" as defined by
18-2 Section 50.001, Human Resources Code;
18-3 (B) "chemical dependency counselor" as defined
18-4 by Section 1, Chapter 635, Acts of the 72nd Legislature, Regular
18-5 Session, 1991 (Article 4512o, Vernon's Texas Civil Statutes);
18-6 (C) "licensed professional counselor" as defined
18-7 by Section 2, Licensed Professional Counselor Act (Article 4512g,
18-8 Vernon's Texas Civil Statutes);
18-9 (D) "licensed marriage and family therapist" as
18-10 defined by Section 2, Licensed Marriage and Family Therapist Act
18-11 (Article 4512c-1, Vernon's Texas Civil Statutes);
18-12 (E) member of the clergy;
18-13 (F) "physician" who is "practicing medicine" as
18-14 defined by Section 1.03, Medical Practice Act (Article 4495b,
18-15 Vernon's Texas Civil Statutes); and
18-16 (G) "psychologist" offering "psychological
18-17 services" as defined by Section 2, Psychologists' Certification and
18-18 Licensing Act (Article 4512c, Vernon's Texas Civil Statutes).
18-19 (3) "Patient" means an individual who seeks or obtains
18-20 mental health services.
18-21 (4) "Sexually exploitive behavior" means a pattern,
18-22 practice, or scheme of conduct, which may include sexual contact,
18-23 that can reasonably be construed as being for the purposes of
18-24 sexual arousal or gratification or sexual abuse of any person.
18-25 The term does not include obtaining information about a patient's
18-26 sexual history within standard accepted practice while treating a
18-27 sexual or marital dysfunction.
19-1 (b) A person commits an offense if the person is a mental
19-2 health services provider and intentionally:
19-3 (1) engages in sexual contact with a patient or former
19-4 patient; or
19-5 (2) engages in sexually exploitive behavior with a
19-6 patient or former patient.
19-7 (c) It is not a defense to prosecution under this section
19-8 that the sexual contact or sexually exploitive behavior with the
19-9 patient or former patient occurred:
19-10 (1) with the consent of the patient or former patient;
19-11 (2) outside the therapy or treatment sessions of the
19-12 patient or former patient; or
19-13 (3) off the premises regularly used by the mental
19-14 health services provider for the therapy or treatment sessions of
19-15 the patient or former patient.
19-16 (d) It is a defense to prosecution under this section that
19-17 the former patient was not emotionally dependent on the mental
19-18 health services provider when the sexual contact occurred or the
19-19 sexually exploitive behavior began and the mental health services
19-20 provider terminated psychotherapy with the patient more than two
19-21 years before the date the sexual contact occurred or the sexually
19-22 exploitive behavior began.
19-23 (e) A person is considered emotionally dependent for
19-24 purposes of this section if the nature of the patient's or former
19-25 patient's emotional condition and the nature of the treatment
19-26 provided by the mental health services provider are such that the
19-27 mental health services provider knows or has reason to believe that
20-1 the patient or former patient is unable to withhold consent to the
20-2 sexual contact or the sexually exploitive behavior.
20-3 (f) It is a defense to prosecution under this section that
20-4 the sexual contact is a part of a professionally recognized medical
20-5 treatment of a patient.
20-6 (g) Except as provided by Subsection (h) of this section, an
20-7 offense under this section is a Class A misdemeanor.
20-8 (h) If it is shown on the trial of an offense under this
20-9 section that the defendant has been previously convicted of an
20-10 offense under this section, the offense is a felony of the third
20-11 degree.
20-12 SECTION 2.03. Section 50.021, Human Resources Code, is
20-13 amended to read as follows:
20-14 Sec. 50.021. Revocation and Suspension. The department may
20-15 refuse to issue or to renew a certificate or order of recognition,
20-16 may place on probation a person whose certificate or order of
20-17 recognition has been suspended, may reprimand a person with a
20-18 certificate or order of recognition, or may revoke or suspend a
20-19 certificate or order of recognition issued under this chapter for
20-20 any of the following reasons:
20-21 (1) violating a provision of this chapter or a rule of
20-22 the department;
20-23 (2) circumventing or attempting to circumvent this
20-24 chapter or a rule of the department;
20-25 (3) participating, directly or indirectly, in a plan,
20-26 scheme, or arrangement attempting or having as its purpose the
20-27 evasion of this chapter or a rule of the department;
21-1 (4) engaging in unethical conduct;
21-2 (5) engaging in conduct which discredits or tends to
21-3 discredit the profession of social work;
21-4 (6) performing an act, allowing an omission, or making
21-5 an assertion or representation that is fraudulent, deceitful, or
21-6 misleading or that in any manner tends to create a misleading
21-7 impression;
21-8 (7) knowingly associating with or permitting or
21-9 allowing the use of any certified person's professional services or
21-10 professional identification in a project or enterprise that the
21-11 person knows or with the exercise of reasonable diligence should
21-12 know is a practice that violates this chapter or a rule of the
21-13 department pertaining to the practice of social work;
21-14 (8) knowingly associating with or permitting the use
21-15 of a certified person's name, professional services, professional
21-16 identification, or endorsement in connection with a venture or
21-17 enterprise that the person knows or with the exercise of reasonable
21-18 diligence should know is a trade, business, or professional
21-19 practice of a fraudulent, deceitful, misleading, or dishonest
21-20 nature;
21-21 (9) revealing, directly or indirectly, or causing to
21-22 be revealed a confidential communication transmitted to the
21-23 certified person by a client or recipient of his services except as
21-24 may be required by law;
21-25 (10) having a certificate or a license to practice
21-26 social work in another jurisdiction denied, suspended, or revoked
21-27 for reasons or causes the department finds would constitute a
22-1 violation of this chapter or a rule pertaining to the practice of
22-2 social work adopted by the department;
22-3 (11) having been convicted of a felony in an American
22-4 jurisdiction; <or>
22-5 (12) refusing to do or perform any act or service for
22-6 which the person is certified under this chapter solely on the
22-7 basis of the recipient's age, sex, race, religion, national origin,
22-8 color, or political affiliation; or
22-9 (13) committing an act in violation of Section 21.14,
22-10 Penal Code, or for which liability exists under Chapter 81, Civil
22-11 Practice and Remedies Code.
22-12 SECTION 2.04. Section 16, Chapter 635, Acts of the 72nd
22-13 Legislature, Regular Session, 1991 (Article 4512o, Vernon's Texas
22-14 Civil Statutes), is amended to read as follows:
22-15 Sec. 16. LICENSE REFUSAL; DISCIPLINARY ACTIONS. The
22-16 commission may refuse to issue or renew a license, place on
22-17 probation a license holder whose license has been suspended,
22-18 reprimand a license holder, or revoke or suspend a license issued
22-19 under this Act for:
22-20 (1) violating or assisting another to violate this Act
22-21 or a rule of the commission adopted under this Act;
22-22 (2) circumventing or attempting to circumvent this Act
22-23 or a rule of the commission adopted under this Act;
22-24 (3) participating, directly or indirectly, in a plan
22-25 the purpose of which is the evasion of this Act or a rule of the
22-26 commission adopted under this Act;
22-27 (4) engaging in false, misleading, or deceptive
23-1 conduct as defined by Section 17.46, Business & Commerce Code;
23-2 (5) engaging in conduct that discredits or tends to
23-3 discredit the profession of chemical dependency counseling;
23-4 (6) revealing or causing to be revealed, directly or
23-5 indirectly, a confidential communication made to the licensed
23-6 chemical dependency counselor by a client or recipient of services,
23-7 except as required by law;
23-8 (7) having a license to practice chemical dependency
23-9 counseling in another jurisdiction refused, suspended, or revoked
23-10 for a reason that the commission finds would constitute a violation
23-11 of this Act or a commission rule established under this Act; <or>
23-12 (8) refusing to perform an act or service for which
23-13 the person is licensed to perform under this Act on the basis of
23-14 the client's or recipient's age, sex, race, religion, national
23-15 origin, color, or political affiliation; or
23-16 (9) committing an act in violation of Section 21.14,
23-17 Penal Code, or for which liability exists under Chapter 81, Civil
23-18 Practice and Remedies Code.
23-19 SECTION 2.05. Section 25, Licensed Marriage and Family
23-20 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
23-21 amended to read as follows:
23-22 Sec. 25. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
23-23 After a hearing, the board may deny, suspend, or revoke a license
23-24 or otherwise discipline a license holder if the applicant for
23-25 license or the license holder has:
23-26 (1) been convicted of a felony or a misdemeanor
23-27 involving moral turpitude;
24-1 (2) obtained or attempted to obtain registration by
24-2 fraud or deception;
24-3 (3) used drugs or alcohol to an extent that affects
24-4 professional competence;
24-5 (4) been grossly negligent in performing professional
24-6 duties;
24-7 (5) been adjudicated mentally incompetent by a court
24-8 of competent jurisdiction;
24-9 (6) practiced in a manner detrimental to the public
24-10 health or welfare;
24-11 (7) advertised in a manner that tends to deceive or
24-12 defraud the public;
24-13 (8) had a license or certification revoked by a
24-14 licensing agency or by a certifying professional organization; <or>
24-15 (9) otherwise violated this Act or a rule or code of
24-16 ethics adopted under this Act; or
24-17 (10) committed an act in violation of Section 21.14,
24-18 Penal Code, or for which liability exists under Chapter 81, Civil
24-19 Practice and Remedies Code.
24-20 SECTION 2.06. Section 16(a), Licensed Professional Counselor
24-21 Act (Article 4512g, Vernon's Texas Civil Statutes), is amended to
24-22 read as follows:
24-23 (a) The board may revoke, <or> suspend, or refuse to renew
24-24 the license of a counselor on proof that the counselor:
24-25 (1) has committed an act in violation of Section
24-26 21.14, Penal Code, or for which liability exists under Chapter 81,
24-27 Civil Practice and Remedies Code;
25-1 (2) has violated this Act or a rule or code of ethics
25-2 adopted by the board; or
25-3 (3) <(2)> is legally committed to an institution
25-4 because of mental incompetence from any cause.
25-5 SECTION 2.07. Section 23(a), Psychologists' Certification
25-6 and Licensing Act (Article 4512c, Vernon's Texas Civil Statutes),
25-7 is amended to read as follows:
25-8 (a) The Texas State Board of Examiners of Psychologists
25-9 shall have the right to cancel, revoke, suspend, or refuse to renew
25-10 the license or certification of any psychologist or the certificate
25-11 of any psychological associate or reprimand any psychologist upon
25-12 proof that the psychologist:
25-13 (1) has been convicted of a felony or of a violation
25-14 of the law involving moral turpitude by any court; the conviction
25-15 of a felony shall be the conviction of any offense which if
25-16 committed within this state would constitute a felony under the
25-17 laws of this state; <or>
25-18 (2) uses drugs or intoxicating liquors to an extent
25-19 that affects his professional competency; <or>
25-20 (3) has been guilty of fraud or deceit in connection
25-21 with his services rendered as a psychologist; <or>
25-22 (4) except as provided by Section 15B of this Act, has
25-23 aided or abetted a person, not a licensed psychologist, in
25-24 representing that person as a psychologist within this state; <or>
25-25 (5) except as provided by Section 15B of this Act, has
25-26 represented himself or herself to be a psychologist licensed in
25-27 this state at a time he or she was not licensed to practice
26-1 psychology in this state, or practiced psychology in this state
26-2 without a license to practice psychology in this state; <or>
26-3 (6) has been guilty of unprofessional conduct as
26-4 defined by the rules established by the Board; <or>
26-5 (7) for any cause for which the Board shall be
26-6 authorized to take that action by another section of this Act; or
26-7 (8) has committed an act in violation of Section
26-8 21.14, Penal Code, or for which liability exists under Chapter 81,
26-9 Civil Practice and Remedies Code.
26-10 SECTION 2.08. Chapter 81, Civil Practice and Remedies Code,
26-11 as added by this article, applies only to a cause of action
26-12 accruing on or after the effective date of this article. A cause
26-13 of action accruing before that date is governed by the law in
26-14 effect at the time the cause of action accrued, and that law is
26-15 continued in effect for that purpose.
26-16 ARTICLE 3
26-17 SECTION 3.01. (a) Chapter 571, Health and Safety Code, is
26-18 amended by adding Section 571.0065 to read as follows:
26-19 Sec. 571.0065. TREATMENT METHODS ADVISORY COMMITTEE. (a)
26-20 The board shall appoint an advisory committee on treatment
26-21 standards that is composed of at least the following persons:
26-22 (1) one licensed psychiatrist;
26-23 (2) one licensed psychologist;
26-24 (3) one certified social worker;
26-25 (4) one licensed professional counselor;
26-26 (5) one licensed chemical dependency counselor;
26-27 (6) two persons who have received mental health
27-1 services, either voluntarily or involuntarily, during the two years
27-2 preceding the date of the person's appointment; and
27-3 (7) one member from each of two private associations
27-4 of persons who advocate on the behalf of or in the interest of
27-5 persons with mental illness.
27-6 (b) The board may appoint additional members as it considers
27-7 appropriate.
27-8 (c) The committee shall:
27-9 (1) review treatment methods used in inpatient mental
27-10 health facilities;
27-11 (2) recommend to the board the treatment methods that
27-12 should not be allowed, such as "rage therapy," "trust development
27-13 therapy," "rough signing," and any other treatment method that the
27-14 committee determines is physically or emotionally abusive and not
27-15 clearly defined in established, professionally accepted clinical
27-16 standards; and
27-17 (3) consider reports from state agencies on possible
27-18 abusive treatment methods and on complaints relating to treatment
27-19 methods.
27-20 (d) The committee shall meet at least once every six months.
27-21 (e) The board shall either adopt by rule or reject a
27-22 committee recommendation not later than the 120th day after the
27-23 date on which the recommendation is made. A standard established
27-24 by rule under this section that applies to a private mental
27-25 hospital may not be less restrictive than a standard that applies
27-26 to a state mental hospital.
27-27 (f) A state agency that has knowledge of or receives a
28-1 complaint relating to an abusive treatment method shall report that
28-2 knowledge or forward a copy of the complaint to the committee.
28-3 (g) An inpatient mental health facility, physician, or other
28-4 mental health professional is not liable for an injury or other
28-5 damages sustained by a person as a result of the failure of the
28-6 facility, physician, or professional to administer or perform a
28-7 treatment prohibited by statute or rules adopted by the board under
28-8 this section or that the board specifically refuses by rule to
28-9 prohibit or authorize.
28-10 (b) Not later than October 31, 1994, the Texas Board of
28-11 Mental Health and Mental Retardation shall appoint the advisory
28-12 committee on treatment standards as prescribed by Section 571.0065,
28-13 Health and Safety Code, as added by this section. The committee
28-14 shall make its initial recommendations to the board not later than
28-15 February 1, 1994.
28-16 SECTION 3.02. Chapter 241, Health and Safety Code, is
28-17 amended by adding Section 241.0265 to read as follows:
28-18 Sec. 241.0265. STANDARDS FOR CARE FOR MENTAL HEALTH AND
28-19 CHEMICAL DEPENDENCY. (a) The care and treatment of a patient
28-20 receiving mental health or chemical dependency treatment in a
28-21 facility licensed by the department under this chapter are governed
28-22 by the same standards that govern the care and treatment of a
28-23 patient receiving mental health or chemical dependency treatment in
28-24 a mental health facility licensed under Chapter 577 and that are
28-25 adopted by the Texas Department of Mental Health and Mental
28-26 Retardation, and by the standards that govern the care and
28-27 treatment of a patient receiving treatment in a treatment facility
29-1 licensed under Chapter 464 and that are adopted by the Texas
29-2 Commission on Alcohol and Drug Abuse, to the same extent as if the
29-3 standards adopted by those agencies were rules adopted by the board
29-4 under this chapter.
29-5 (b) The department shall enforce the standards provided by
29-6 Subsection (a). A violation of a standard is subject to the same
29-7 consequence as a violation of a rule adopted by the board under
29-8 this chapter. The department is not required to enforce a standard
29-9 if the enforcement violates a federal law, rule, or regulation.
29-10 SECTION 3.03. (a) Section 462.022, Health and Safety Code,
29-11 is amended by amending Subsection (a) and adding Subsection (c) to
29-12 read as follows:
29-13 (a) A facility may admit a minor for treatment and
29-14 rehabilitation if:
29-15 (1) the facility is:
29-16 (A) a treatment facility licensed by the
29-17 commission to provide the necessary services to minors; or
29-18 (B) a facility licensed or operated by the Texas
29-19 Department of Mental Health and Mental Retardation;
29-20 (2) the admission is appropriate under the facility's
29-21 admission policies; and
29-22 (3) the admission is requested by:
29-23 (A) a parent, managing conservator, or guardian
29-24 if the minor is younger than 16 years of age <or other person
29-25 authorized to consent to medical treatment of a minor under Section
29-26 35.01, Family Code>; or
29-27 (B) the minor, without parental consent, if the
30-1 minor is 16 years of age or older <under Section 35.03, Family
30-2 Code>.
30-3 (c) A person or agency appointed as the guardian or a
30-4 managing conservator of a minor younger than 16 years of age and
30-5 acting as an employee or agent of the state or a political
30-6 subdivision of the state may request admission of the minor only
30-7 with the minor's consent.
30-8 (b) The changes in law made by this section apply only to
30-9 consent for a minor's admission to a treatment facility or mental
30-10 health facility given on or after the effective date of this
30-11 section. Valid consent for a minor's admission given before the
30-12 effective date of this section remains valid and continues in
30-13 effect until withdrawn by the person who consented or by the minor,
30-14 if the minor is 16 years of age or older.
30-15 SECTION 3.04. Section 11.52, Education Code, is amended by
30-16 adding Subsection (p) to read as follows:
30-17 (p) The commissioner of education shall adopt rules
30-18 governing the relationship between a school district and a private
30-19 treatment center or outside counselor to which a student may be
30-20 referred for care or treatment of an emotional, psychological, or
30-21 chemical dependency condition, including rules that:
30-22 (1) require the school district and the private
30-23 treatment facility or outside counselor to disclose to the student
30-24 and the parent, managing conservator, or guardian of the student
30-25 the relationship between the district and the facility or outside
30-26 counselor to which the student is referred for care or treatment;
30-27 (2) require a person who refers a student for care or
31-1 treatment of an emotional, psychological, or chemical dependency
31-2 condition to inform the student of any public and private
31-3 alternative sources of care or treatment reasonably available in
31-4 the area;
31-5 (3) require a private treatment facility or outside
31-6 counselor to obtain the approval of appropriate school district
31-7 personnel before the facility or counselor refers a student for
31-8 care or treatment or suggests to or advises a student that a
31-9 referral is warranted; and
31-10 (4) specifically prohibit the disclosure of student
31-11 records if the disclosure violates state or federal law.
31-12 SECTION 3.05. Chapter 4, Education Code, is amended by
31-13 adding Section 4.36 to read as follows:
31-14 Sec. 4.36. ILLEGAL REFERRAL FOR CARE OR TREATMENT. A person
31-15 who violates a rule adopted under Section 11.52(p) of this code:
31-16 (1) is subject to a civil penalty of not less
31-17 than $50 or more than $25,000 recoverable by an aggrieved student
31-18 or parent or by the Central Education Agency in a court located in
31-19 the county in which the student or defendant resides or in Travis
31-20 County; and
31-21 (2) commits a misdemeanor offense punishable by a fine
31-22 of not less than $50 or more than $25,000, confinement in jail for
31-23 not more than one year, or both fine and confinement.
31-24 ARTICLE 4
31-25 SECTION 4.01. This Act takes effect September 1, 1993.
31-26 SECTION 4.02. (a) The changes in law made by this Act apply
31-27 only to an offense committed or a violation that occurs on or after
32-1 the effective date of this Act. For the purposes of this Act, an
32-2 offense is committed or a violation occurs before the effective
32-3 date of this Act if any element of the offense or violation occurs
32-4 before that date.
32-5 (b) An offense committed or violation that occurs before the
32-6 effective date of this Act is covered by the law in effect when the
32-7 offense was committed or the violation occurred, and the former law
32-8 is continued in effect for this purpose.
32-9 SECTION 4.03. The importance of this legislation and the
32-10 crowded condition of the calendars in both houses create an
32-11 emergency and an imperative public necessity that the
32-12 constitutional rule requiring bills to be read on three several
32-13 days in each house be suspended, and this rule is hereby suspended.