By: Zaffirini, Moncrief S.B. No. 211
Harris of Tarrant
A BILL TO BE ENTITLED
AN ACT
1-1 relating to illegal remuneration; creating an offense; providing
1-2 penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subchapter I, Chapter 161, Health and Safety
1-5 Code, as added by Chapter 15, Acts of the 72nd Legislature, 1st
1-6 Called Session, 1991, is amended to read as follows:
1-7 SUBCHAPTER I. ILLEGAL REMUNERATION
1-8 Sec. 161.091. PROHIBITION ON ILLEGAL REMUNERATION. (a) A
1-9 person <licensed, certified, or registered by a health care
1-10 regulatory agency of this state> commits an offense if the person
1-11 intentionally or knowingly offers to pay or agrees to accept any
1-12 remuneration directly or indirectly, overtly or covertly, in cash
1-13 or in kind, to or from any person, firm, association of persons,
1-14 partnership, or corporation for securing or soliciting patients or
1-15 patronage for or from a person licensed, certified, or registered
1-16 by a state health care regulatory agency.
1-17 (b) It is a rebuttable presumption that a person has
1-18 violated this section if:
1-19 (1) the person refers or accepts a referral of a
1-20 person to an inpatient mental health facility or chemical
1-21 dependency treatment facility;
1-22 (2) before the patient is discharged or furloughed
1-23 from the inpatient facility, the person pays the referring person
1-24 or accepts payment from the inpatient facility for outpatient
2-1 services to be provided by the referring person after the patient
2-2 is discharged or furloughed from the inpatient facility; and
2-3 (3) the referring person does not provide the
2-4 outpatient services for which payment was made and does not return
2-5 to the inpatient facility the payment for the services not
2-6 provided.
2-7 (c) This section shall not be construed to prohibit
2-8 advertising except that which is false, misleading, or deceptive or
2-9 that which advertises professional superiority or the performance
2-10 of a professional service in a superior manner and that is not
2-11 readily subject to verification.
2-12 (d) <(c)> Except as provided by this section, an offense
2-13 under this section is a Class A misdemeanor. If it is shown on
2-14 <in> the trial of a person under <violation of> this section that
2-15 the person has previously been convicted of an offense under <a
2-16 violation of> this section or that the person was employed by a
2-17 federal, state, or local government at the time the offense
2-18 occurred, the offense is<, on conviction the person shall be
2-19 punished for> a felony of the third degree. In addition to any
2-20 other penalties or remedies provided, a violation of this section
2-21 shall be grounds for disciplinary action by a <the> regulatory
2-22 agency that has issued a license, certification, or registration to
2-23 the person.
2-24 (e) <(d) The appropriate health care regulatory agency may
2-25 institute an action to enjoin a violation or potential violation of
2-26 this section. The action for an injunction shall be in addition to
2-27 any other action, proceeding, or remedy authorized by law. The
3-1 regulatory agency shall be represented by the attorney general.>
3-2 <(e) This section shall not be construed to prohibit
3-3 remuneration for advertising, marketing, or other services that are
3-4 provided for the purpose of securing or soliciting patients
3-5 provided the remuneration is set in advance, is consistent with the
3-6 fair market value of the services, and is not based on the volume
3-7 or value of any patient referrals or business otherwise generated
3-8 between the parties.>
3-9 <(f)> This section shall <not> be construed to permit
3-10 <prohibit> any payment, business arrangements, or payments practice
3-11 permitted <not prohibited> by 42 U.S.C. Section 1320a-7b(b) or any
3-12 regulations promulgated pursuant thereto.
3-13 (f) <(g)> This section shall not apply to licensed insurers,
3-14 governmental entities, including intergovernmental risk pools
3-15 established under Chapter 172, Local Government Code, and
3-16 institutions as defined in the Texas State College and University
3-17 Employees Uniform Insurance Benefits Act (Article 3.50-3, Vernon's
3-18 Texas Insurance Code), group hospital service corporations, or
3-19 health maintenance organizations which reimburse, provide, offer to
3-20 provide, or administer hospital, medical, dental, or other
3-21 health-related benefits under a health benefits plan for which it
3-22 is the payor.
3-23 Sec. 161.0915. EXEMPTION. (a) This subchapter does not
3-24 apply to a health care information service that:
3-25 (1) provides its services to a consumer only by
3-26 telephone communication on request initiated by the consumer and
3-27 without charge to the consumer;
4-1 (2) provides information about health care providers
4-2 to enable consumer selection of health care provider services
4-3 without any direct influence by a health care provider on actual
4-4 consumer selection of those services;
4-5 (3) in response to each consumer inquiry, on a
4-6 nondiscriminatory basis, provides information identifying health
4-7 care providers who substantially meet the consumer's detailed
4-8 criteria based on consumer responses to standard questions designed
4-9 to elicit a consumer's criteria for a health care provider,
4-10 including criteria concerning location of the practice, practice
4-11 specialties, costs and payment policies, acceptance of insurance
4-12 coverage, general background and practice experience, and various
4-13 personal characteristics;
4-14 (4) does not attempt through its standard questions
4-15 for solicitation of consumer criteria or through any other means or
4-16 methods to steer or lead a consumer to select or consider selection
4-17 of a particular health care provider for health care provider
4-18 services;
4-19 (5) identifies to a consumer:
4-20 (A) all health care providers who substantially
4-21 meet the consumer's stated criteria and who are located within the
4-22 zip code area in which the consumer elects to obtain services from
4-23 a health care provider; or
4-24 (B) all health care providers substantially
4-25 meeting the consumer's stated criteria who are located in zip code
4-26 areas in the closest proximity to the elected zip code area if no
4-27 health care provider substantially meeting the consumer's criteria
5-1 is located within that zip code area;
5-2 (6) discloses to each consumer the relationship
5-3 between the health care information service and health care
5-4 providers participating in its services;
5-5 (7) does not provide or represent itself as providing
5-6 diagnostic or counseling services or assessment of illness or
5-7 injury and does not make any promises of cure or guarantees of
5-8 treatment;
5-9 (8) does not provide or arrange for transportation of
5-10 a consumer to or from the location of a health care provider;
5-11 (9) does not limit the scope of or direct its
5-12 advertising or other marketing of its services to a particular
5-13 health care provider specialty, to a particular segment of the
5-14 population, or to persons suffering from a particular illness,
5-15 condition, or infirmity;
5-16 (10) charges to and collects fees from a health care
5-17 provider participating in its services that are set in advance, are
5-18 consistent with the fair market value for those information
5-19 services, and are not based on the potential value of a patient or
5-20 patients to a health care provider or on the value of or a
5-21 percentage of the value of a professional service provided by the
5-22 health care provider;
5-23 (11) does not limit participation by a health care
5-24 provider in its services to a particular health care specialty or
5-25 to a particular service provided by a health care provider;
5-26 (12) does not limit participation by a health care
5-27 provider in its services for a reason other than:
6-1 (A) failure to have a current, valid license
6-2 without limitation to practice in this state;
6-3 (B) failure to maintain professional liability
6-4 insurance while participating in the service;
6-5 (C) significant dissatisfaction of consumers of
6-6 the health care information service that is documented and can be
6-7 proved;
6-8 (D) a decision by a peer review committee that
6-9 the health care provider has failed to meet prescribed standards or
6-10 has not acted in a professional or ethical manner; or
6-11 (E) termination of the contract between the
6-12 health care provider and the health care information service by
6-13 either party under the terms of the contract;
6-14 (13) maintains a customer service department to handle
6-15 complaints and answer questions for consumers;
6-16 (14) maintains a customer follow-up system to monitor
6-17 consumer satisfaction; and
6-18 (15) does not use, maintain, distribute, or provide
6-19 for any purpose any information that will identify a particular
6-20 consumer, such as a name, address, or telephone number, obtained
6-21 from a consumer seeking its services other than for the purposes
6-22 of:
6-23 (A) providing the information to the health care
6-24 provider with whom an appointment is made;
6-25 (B) performing administrative functions
6-26 necessary to operate the health care information service;
6-27 (C) providing directly to a consumer, at the
7-1 request of that consumer on that consumer's initial contact with
7-2 the health care information service, information relating to
7-3 health-related support groups or providers of health-care-related
7-4 services or equipment within the area or areas of interest
7-5 requested by the consumer; or
7-6 (D) conducting analytical research on data
7-7 obtained through provision of services and preparing statistical
7-8 reports that generally analyze that data but do not in any manner
7-9 identify one or more specific consumers.
7-10 (b) In this section:
7-11 (1) "Health care information service" means a person
7-12 who provides information to a consumer regarding health care
7-13 providers that can enable the consumer to select one or more health
7-14 care providers to furnish health care services.
7-15 (2) "Health care provider" means a person licensed,
7-16 certified, or registered by a state health care regulatory agency
7-17 other than a:
7-18 (A) mental health facility as defined by Section
7-19 571.003; or
7-20 (B) treatment facility as defined by Section
7-21 464.001.
7-22 Sec. 161.092. NOTIFICATION OF REMUNERATION. (a) A person
7-23 commits an offense if:
7-24 (1) the person, in a manner otherwise permitted under
7-25 Section 161.091, accepts remuneration to secure or solicit patients
7-26 or patronage for a person licensed, certified, or registered by a
7-27 state health care regulatory agency; and
8-1 (2) does not, at the time of initial contact and at
8-2 the time of referral, disclose to the patient:
8-3 (A) the person's affiliation, if any, with the
8-4 person for whom the patient is secured or solicited; and
8-5 (B) that the person will receive remuneration,
8-6 directly or indirectly, for securing or soliciting the patient.
8-7 (b) Except as otherwise provided by this section, an offense
8-8 under this section is a Class A misdemeanor. If it is shown on the
8-9 trial of a person under this section that the person has previously
8-10 been convicted of an offense under this section or that the person
8-11 was employed by a federal, state, or local government at the time
8-12 the offense occurred, the offense is a felony of the third degree.
8-13 (c) In addition to other penalties or remedies provided by
8-14 this subchapter, a violation of this section is grounds for
8-15 disciplinary action by a regulatory agency that has issued a
8-16 license, certification, or registration to the person.
8-17 Sec. 161.093. INJUNCTION. (a) The attorney general or the
8-18 appropriate district or county attorney, in the name of the state,
8-19 may institute and conduct an action in a district court of Travis
8-20 County or of a county in which any part of the violation occurs for
8-21 an injunction or other process against a person who is violating
8-22 this subchapter.
8-23 (b) The district court may grant any prohibitory or
8-24 mandatory relief warranted by the facts, including a temporary
8-25 restraining order, temporary injunction, or permanent injunction.
8-26 Sec. 161.094. CIVIL PENALTIES. (a) A person who violates
8-27 this subchapter is subject to a civil penalty of not more than
9-1 $10,000 for each day of violation and each act of violation. In
9-2 determining the amount of the civil penalty, the court shall
9-3 consider:
9-4 (1) the person's previous violations;
9-5 (2) the seriousness of the violation, including the
9-6 nature, circumstances, extent, and gravity of the violation;
9-7 (3) whether the health and safety of the public was
9-8 threatened by the violation;
9-9 (4) the demonstrated good faith of the person; and
9-10 (5) the amount necessary to deter future violations.
9-11 (b) The attorney general or the appropriate district or
9-12 county attorney, in the name of the state, may institute and
9-13 conduct an action authorized by this section in a district court of
9-14 Travis County or of a county in which any part of the violation
9-15 occurs.
9-16 (c) The party bringing the suit may:
9-17 (1) combine a suit to assess and recover civil
9-18 penalties with a suit for injunctive relief brought under Section
9-19 161.093; or
9-20 (2) file a suit to assess and recover civil penalties
9-21 independently of a suit for injunctive relief.
9-22 (d) The party bringing the suit may recover reasonable
9-23 expenses incurred in obtaining injunctive relief, civil penalties,
9-24 or both, including investigation costs, court costs, reasonable
9-25 attorney fees, witness fees, and deposition expenses.
9-26 (e) A penalty collected under this section by the attorney
9-27 general shall be deposited to the credit of the general revenue
10-1 fund. A penalty collected under this section by a district or
10-2 county attorney shall be deposited to the credit of the general
10-3 fund of the county in which the suit was heard.
10-4 (f) The civil penalty and injunction authorized by this
10-5 subchapter are in addition to any other civil, administrative, or
10-6 criminal action provided by law.
10-7 SECTION 2. (a) The changes in law made by this Act apply
10-8 only to an offense or violation committed on or after the effective
10-9 date of this Act. For purposes of this Act, an offense or
10-10 violation is committed before the effective date of this Act if any
10-11 element of the offense or violation occurs before that date.
10-12 (b) An offense or violation committed before the effective
10-13 date of this Act is covered by the law in effect when the offense
10-14 or violation was committed, and the former law is continued in
10-15 effect for that purpose.
10-16 SECTION 3. The importance of this legislation and the
10-17 crowded condition of the calendars in both houses create an
10-18 emergency and an imperative public necessity that the
10-19 constitutional rule requiring bills to be read on three several
10-20 days in each house be suspended, and this rule is hereby suspended,
10-21 and that this Act take effect and be in force from and after its
10-22 passage, and it is so enacted.