1-1  By:  Zaffirini, Moncrief, Harris of Tarrant            S.B. No. 211
    1-2        (In the Senate - Filed February 1, 1993; February 1, 1993,
    1-3  read first time and referred to Committee on Health and Human
    1-4  Services; March 19, 1993, reported adversely, with favorable
    1-5  Committee Substitute by the following vote:  Yeas 8, Nays 0;
    1-6  March 19, 1993, sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Zaffirini          x                               
   1-10        Ellis              x                               
   1-11        Madla                                         x    
   1-12        Moncrief           x                               
   1-13        Nelson             x                               
   1-14        Patterson          x                               
   1-15        Shelley            x                               
   1-16        Truan              x                               
   1-17        Wentworth          x                               
   1-18  COMMITTEE SUBSTITUTE FOR S.B. No. 211                By:  Zaffirini
   1-19                         A BILL TO BE ENTITLED
   1-20                                AN ACT
   1-21  relating to illegal remuneration; creating an offense; providing
   1-22  penalties.
   1-23        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-24        SECTION 1.  Subchapter I, Chapter 161, Health and Safety
   1-25  Code, as added by Chapter 15, Acts of the 72nd Legislature, 1st
   1-26  Called Session, 1991, is amended to read as follows:
   1-27                  SUBCHAPTER I.  ILLEGAL REMUNERATION
   1-28        Sec. 161.091.  PROHIBITION ON ILLEGAL REMUNERATION.  (a)  A
   1-29  person <licensed, certified, or registered by a health care
   1-30  regulatory agency of this state> commits an offense if the person
   1-31  intentionally or knowingly offers to pay or agrees to accept any
   1-32  remuneration directly or indirectly, overtly or covertly, in cash
   1-33  or in kind, to or from any person, firm, association of persons,
   1-34  partnership, or corporation for securing or soliciting patients or
   1-35  patronage for or from a person licensed, certified, or registered
   1-36  by a state health care regulatory agency.
   1-37        (b)  It is a rebuttable presumption that a person has
   1-38  violated this section if:
   1-39              (1)  the person refers or accepts a referral of a
   1-40  person to an inpatient mental health facility or chemical
   1-41  dependency treatment facility;
   1-42              (2)  before the patient is discharged or furloughed
   1-43  from the inpatient facility, the person pays the referring person
   1-44  or accepts payment from the inpatient facility for outpatient
   1-45  services to be provided by the referring person after the patient
   1-46  is discharged or furloughed from the inpatient facility; and
   1-47              (3)  the referring person does not provide the
   1-48  outpatient services for which payment was made and does not return
   1-49  to the inpatient facility the payment for the services not
   1-50  provided.
   1-51        (c)  This section shall not be construed to prohibit
   1-52  advertising except that which is false, misleading, or deceptive or
   1-53  that which advertises professional superiority or the performance
   1-54  of a professional service in a superior manner and that is not
   1-55  readily subject to verification.
   1-56        (d) <(c)>  Except as provided by this section, an offense
   1-57  under this section is a Class A misdemeanor.  If it is shown on
   1-58  <in> the trial of a person under <violation of> this section that
   1-59  the person has previously been convicted of an offense under <a
   1-60  violation of> this section or that the person was employed by a
   1-61  federal, state, or local government at the time the offense
   1-62  occurred, the offense is<, on conviction the person shall be
   1-63  punished for> a felony of the third degree.  In addition to any
   1-64  other penalties or remedies provided, a violation of this section
   1-65  shall be grounds for disciplinary action by a <the> regulatory
   1-66  agency that has issued a license, certification, or registration to
   1-67  the person.
   1-68        (e) <(d)  The appropriate health care regulatory agency may
    2-1  institute an action to enjoin a violation or potential violation of
    2-2  this section.  The action for an injunction shall be in addition to
    2-3  any other action, proceeding, or remedy authorized by law.  The
    2-4  regulatory agency shall be represented by the attorney general.>
    2-5        <(e)  This section shall not be construed to prohibit
    2-6  remuneration for advertising, marketing, or other services that are
    2-7  provided for the purpose of securing or soliciting patients
    2-8  provided the remuneration is set in advance, is consistent with the
    2-9  fair market value of the services, and is not based on the volume
   2-10  or value of any patient referrals or business otherwise generated
   2-11  between the parties.>
   2-12        <(f)>  This section shall <not> be construed to permit
   2-13  <prohibit> any payment, business arrangements, or payments practice
   2-14  permitted <not prohibited> by 42 U.S.C. Section 1320a-7b(b) or any
   2-15  regulations promulgated pursuant thereto.
   2-16        (f) <(g)>  This section shall not apply to licensed insurers,
   2-17  governmental entities, including intergovernmental risk pools
   2-18  established under Chapter 172, Local Government Code, and
   2-19  institutions as defined in the Texas State College and University
   2-20  Employees Uniform Insurance Benefits Act (Article 3.50-3, Vernon's
   2-21  Texas Insurance Code), group hospital service corporations, or
   2-22  health maintenance organizations which reimburse, provide, offer to
   2-23  provide, or administer hospital, medical, dental, or other
   2-24  health-related benefits under a health benefits plan for which it
   2-25  is the payor.
   2-26        Sec. 161.0915.  EXEMPTION.  (a)  This subchapter does not
   2-27  apply to a health care information service that:
   2-28              (1)  provides its services to a consumer only by
   2-29  telephone communication on request initiated by the consumer and
   2-30  without charge to the consumer;
   2-31              (2)  provides information about health care providers
   2-32  to enable consumer selection of health care provider services
   2-33  without any direct influence by a health care provider on actual
   2-34  consumer selection of those services;
   2-35              (3)  in response to each consumer inquiry, on a
   2-36  nondiscriminatory basis, provides information identifying health
   2-37  care providers who substantially meet the consumer's detailed
   2-38  criteria based on consumer responses to standard questions designed
   2-39  to elicit a consumer's criteria for a health care provider,
   2-40  including criteria concerning location of the practice, practice
   2-41  specialties, costs and payment policies, acceptance of insurance
   2-42  coverage, general background and practice experience, and various
   2-43  personal characteristics;
   2-44              (4)  does not attempt through its standard questions
   2-45  for solicitation of consumer criteria or through any other means or
   2-46  methods to steer or lead a consumer to select or consider selection
   2-47  of a particular health care provider for health care provider
   2-48  services;
   2-49              (5)  identifies to a consumer:
   2-50                    (A)  all health care providers who substantially
   2-51  meet the consumer's stated criteria and who are located within the
   2-52  zip code area in which the consumer elects to obtain services from
   2-53  a health care provider; or
   2-54                    (B)  all health care providers substantially
   2-55  meeting the consumer's stated criteria who are located in zip code
   2-56  areas in the closest proximity to the elected zip code area if no
   2-57  health care provider substantially meeting the consumer's criteria
   2-58  is located within that zip code area;
   2-59              (6)  discloses to each consumer the relationship
   2-60  between the health care information service and health care
   2-61  providers participating in its services;
   2-62              (7)  does not provide or represent itself as providing
   2-63  diagnostic or counseling services or assessment of illness or
   2-64  injury and does not make any promises of cure or guarantees of
   2-65  treatment;
   2-66              (8)  does not provide or arrange for transportation of
   2-67  a consumer to or from the location of a health care provider;
   2-68              (9)  does not limit the scope of or direct its
   2-69  advertising or other marketing of its services to a particular
   2-70  health care provider specialty, to a particular segment of the
    3-1  population, or to persons suffering from a particular illness,
    3-2  condition, or infirmity;
    3-3              (10)  charges to and collects fees from a health care
    3-4  provider participating in its services that are set in advance, are
    3-5  consistent with the fair market value for those information
    3-6  services, and are not based on the potential value of a patient or
    3-7  patients to a health care provider or on the value of or a
    3-8  percentage of the value of a professional service provided by the
    3-9  health care provider;
   3-10              (11)  does not limit participation by a health care
   3-11  provider in its services to a particular health care specialty or
   3-12  to a particular service provided by a health care provider;
   3-13              (12)  does not limit participation by a health care
   3-14  provider in its services for a reason other than:
   3-15                    (A)  failure to have a current, valid license
   3-16  without limitation to practice in this state;
   3-17                    (B)  failure to maintain professional liability
   3-18  insurance while participating in the service;
   3-19                    (C)  significant dissatisfaction of consumers of
   3-20  the health care information service that is documented and can be
   3-21  proved;
   3-22                    (D)  a decision by a peer review committee that
   3-23  the health care provider has failed to meet prescribed standards or
   3-24  has not acted in a professional or ethical manner; or
   3-25                    (E)  termination of the contract between the
   3-26  health care provider and the health care information service by
   3-27  either party under the terms of the contract;
   3-28              (13)  maintains a customer service department to handle
   3-29  complaints and answer questions for consumers;
   3-30              (14)  maintains a customer follow-up system to monitor
   3-31  consumer satisfaction; and
   3-32              (15)  does not use, maintain, distribute, or provide
   3-33  for any purpose any information that will identify a particular
   3-34  consumer, such as a name, address, or telephone number, obtained
   3-35  from a consumer seeking its services other than for the purposes
   3-36  of:
   3-37                    (A)  providing the information to the health care
   3-38  provider with whom an appointment is made;
   3-39                    (B)  performing administrative functions
   3-40  necessary to operate the health care information service;
   3-41                    (C)  providing directly to a consumer, at the
   3-42  request of that consumer on that consumer's initial contact with
   3-43  the health care information service, information relating to
   3-44  health-related support groups or providers of health-care-related
   3-45  services or equipment within the area or areas of interest
   3-46  requested by the consumer; or
   3-47                    (D)  conducting analytical research on data
   3-48  obtained through provision of services and preparing statistical
   3-49  reports that generally analyze that data but do not in any manner
   3-50  identify one or more specific consumers.
   3-51        (b)  In this section:
   3-52              (1)  "Health care information service" means a person
   3-53  who provides information to a consumer regarding health care
   3-54  providers that can enable the consumer to select one or more health
   3-55  care providers to furnish health care services.
   3-56              (2)  "Health care provider" means a person licensed,
   3-57  certified, or registered by a state health care regulatory agency
   3-58  other than a:
   3-59                    (A)  mental health facility as defined by Section
   3-60  571.003; or
   3-61                    (B)  treatment facility as defined by Section
   3-62  464.001.
   3-63        Sec. 161.092.  NOTIFICATION OF REMUNERATION.  (a)  A person
   3-64  commits an offense if:
   3-65              (1)  the person, in a manner otherwise permitted under
   3-66  Section 161.091, accepts remuneration to secure or solicit patients
   3-67  or patronage for a person licensed, certified, or registered by a
   3-68  state health care regulatory agency; and
   3-69              (2)  does not, at the time of initial contact and at
   3-70  the time of referral, disclose to the patient:
    4-1                    (A)  the person's affiliation, if any, with the
    4-2  person for whom the patient is secured or solicited; and
    4-3                    (B)  that the person will receive remuneration,
    4-4  directly or indirectly, for securing or soliciting the patient.
    4-5        (b)  Except as otherwise provided by this section, an offense
    4-6  under this section is a Class A misdemeanor.  If it is shown on the
    4-7  trial of a person under this section that the person has previously
    4-8  been convicted of an offense under this section or that the person
    4-9  was employed by a federal, state, or local government at the time
   4-10  the offense occurred, the offense is a felony of the third degree.
   4-11        (c)  In addition to other penalties or remedies provided by
   4-12  this subchapter, a violation of this section is grounds for
   4-13  disciplinary action by a regulatory agency that has issued a
   4-14  license, certification, or registration to the person.
   4-15        Sec. 161.093.  INJUNCTION.  (a)  The attorney general or the
   4-16  appropriate district or county attorney, in the name of the state,
   4-17  may institute and conduct an action in a district court of Travis
   4-18  County or of a county in which any part of the violation occurs for
   4-19  an injunction or other process against a person who is violating
   4-20  this subchapter.
   4-21        (b)  The district court may grant any prohibitory or
   4-22  mandatory relief warranted by the facts, including a temporary
   4-23  restraining order, temporary injunction, or permanent injunction.
   4-24        Sec. 161.094.  CIVIL PENALTIES.  (a)  A person who violates
   4-25  this subchapter is subject to a civil penalty of not more than
   4-26  $10,000 for each day of violation and each act of violation.  In
   4-27  determining the amount of the civil penalty, the court shall
   4-28  consider:
   4-29              (1)  the person's previous violations;
   4-30              (2)  the seriousness of the violation, including the
   4-31  nature, circumstances, extent, and gravity of the violation;
   4-32              (3)  whether the health and safety of the public was
   4-33  threatened by the violation;
   4-34              (4)  the demonstrated good faith of the person; and
   4-35              (5)  the amount necessary to deter future violations.
   4-36        (b)  The attorney general or the appropriate district or
   4-37  county attorney, in the name of the state, may institute and
   4-38  conduct an action authorized by this section in a district court of
   4-39  Travis County or of a county in which any part of the violation
   4-40  occurs.
   4-41        (c)  The party bringing the suit may:
   4-42              (1)  combine a suit to assess and recover civil
   4-43  penalties with a suit for injunctive relief brought under Section
   4-44  161.093; or
   4-45              (2)  file a suit to assess and recover civil penalties
   4-46  independently of a suit for injunctive relief.
   4-47        (d)  The party bringing the suit may recover reasonable
   4-48  expenses incurred in obtaining injunctive relief, civil penalties,
   4-49  or both, including investigation costs, court costs, reasonable
   4-50  attorney fees, witness fees, and deposition expenses.
   4-51        (e)  A penalty collected under this section by the attorney
   4-52  general shall be deposited to the credit of the general revenue
   4-53  fund.  A penalty collected under this section by a district or
   4-54  county attorney shall be deposited to the credit of the general
   4-55  fund of the county in which the suit was heard.
   4-56        (f)  The civil penalty and injunction authorized by this
   4-57  subchapter are in addition to any other civil, administrative, or
   4-58  criminal action provided by law.
   4-59        SECTION 2.  (a)  The changes in law made by this Act apply
   4-60  only to an offense or violation committed on or after the effective
   4-61  date of this Act.  For purposes of this Act, an offense or
   4-62  violation is committed before the effective date of this Act if any
   4-63  element of the offense or violation occurs before that date.
   4-64        (b)  An offense or violation committed before the effective
   4-65  date of this Act is covered by the law in effect when the offense
   4-66  or violation was committed, and the former law is continued in
   4-67  effect for that purpose.
   4-68        SECTION 3.  The importance of this legislation and the
   4-69  crowded condition of the calendars in both houses create an
   4-70  emergency and an imperative public necessity that the
    5-1  constitutional rule requiring bills to be read on three several
    5-2  days in each house be suspended, and this rule is hereby suspended,
    5-3  and that this Act take effect and be in force from and after its
    5-4  passage, and it is so enacted.
    5-5                               * * * * *
    5-6                                                         Austin,
    5-7  Texas
    5-8                                                         March 19, 1993
    5-9  Hon. Bob Bullock
   5-10  President of the Senate
   5-11  Sir:
   5-12  We, your Committee on Health and Human Services to which was
   5-13  referred S.B. No. 211, have had the same under consideration, and I
   5-14  am instructed to report it back to the Senate with the
   5-15  recommendation that it do not pass, but that the Committee
   5-16  Substitute adopted in lieu thereof do pass and be printed.
   5-17                                                         Zaffirini,
   5-18  Chair
   5-19                               * * * * *
   5-20                               WITNESSES
   5-21                                                  FOR   AGAINST  ON
   5-22  ___________________________________________________________________
   5-23  Name:  Dan Morales                                             x
   5-24  Representing:  State of Texas
   5-25  City:  Austin
   5-26  -------------------------------------------------------------------
   5-27  Name:  Dr. Charles Arnold                        x
   5-28  Representing:  Self
   5-29  City:  San Antonio
   5-30  -------------------------------------------------------------------
   5-31  Name:  David F. Briones, M.D.                                  x
   5-32  Representing:  TSPP & TMA
   5-33  City:  El Paso
   5-34  -------------------------------------------------------------------
   5-35  Name:  Florence Winn-Salmon                      x
   5-36  Representing:  TAMI
   5-37  City:  Austin
   5-38  -------------------------------------------------------------------
   5-39  Name:  Ben Marroquin                                           x
   5-40  Representing:  MHMR
   5-41  City:  Austin
   5-42  -------------------------------------------------------------------
   5-43  Name:  Matt Donaldson                            x
   5-44  Representing:  Consumer Health Services
   5-45  City:  Austin
   5-46  -------------------------------------------------------------------
   5-47  Name:  Tom Wright                                              x
   5-48  Representing:  Citizens Comm on Human
   5-49      Rights
   5-50  City:  Houston
   5-51  -------------------------------------------------------------------
   5-52  Name:  Wylie Jordan, M.D.                                      x
   5-53  Representing:  Self
   5-54  City:  Austin
   5-55  -------------------------------------------------------------------
   5-56  Name:  Don Cavness                                             x
   5-57  Representing:  Tx Psychological Asso.
   5-58  City:  Austin
   5-59  -------------------------------------------------------------------
   5-60  Name:  Nancy Sims                                x
   5-61  Representing:  Tx Business Group on Health
   5-62  City:  Houston
   5-63  -------------------------------------------------------------------
   5-64  Name:  Paul Mascot                                             x
   5-65  Representing:  TXMHMR
   5-66  City:  Austin
   5-67  -------------------------------------------------------------------
   5-68                                                  FOR   AGAINST  ON
   5-69  ___________________________________________________________________
   5-70  Name:  Mike Ezzell                                             x
    6-1  Representing:  TCADA
    6-2  City:  Austin
    6-3  -------------------------------------------------------------------
    6-4  Name:  Aaryce Hayes                              x
    6-5  Representing:  Advocacy, Inc.
    6-6  City:  Austin
    6-7  -------------------------------------------------------------------
    6-8  Name:  Sandra Pelton, P.T.                       x
    6-9  Representing:  Tx Physical Therapy Asso.
   6-10  City:  Richmond
   6-11  -------------------------------------------------------------------
   6-12  Name:  Marcia Baum                               x
   6-13  Representing:  NASW
   6-14  City:  Austin
   6-15  -------------------------------------------------------------------
   6-16  Name:  Christine Devall                          x
   6-17  Representing:  Mental Health Assn.
   6-18  City:  Austin
   6-19  -------------------------------------------------------------------
   6-20  Name:  Kevin O'Hanlon                                          x
   6-21  Representing:  TEA
   6-22  City:  Austin
   6-23  -------------------------------------------------------------------
   6-24  Name:  G. K. Sprinkle                            x
   6-25  Representing:  Tx Counseling Assoc
   6-26  City:  Austin
   6-27  -------------------------------------------------------------------
   6-28  Name:  Mark Chouteau                             x
   6-29  Representing:  Attorney General
   6-30  City:  Austin
   6-31  -------------------------------------------------------------------
   6-32  Name:  Lisa McGiffert                            x
   6-33  Representing:  Consumers Union
   6-34  City:  Austin
   6-35  -------------------------------------------------------------------