By:  Moncrief                                          S.B. No. 589
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to the Health Care Provider Referral Act; creating
    1-2  offenses and providing penalties.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Chapter 161, Health and Safety Code, is amended
    1-5  by adding Subchapter K to read as follows:
    1-6                  SUBCHAPTER K.  HEALTH CARE PROVIDER
    1-7                             REFERRAL ACT
    1-8        Sec. 161.111.  SHORT TITLE.  This subchapter shall be known
    1-9  and may be cited as the Health Care Provider Referral Act.
   1-10        Sec. 161.112.  DEFINITIONS.  In this subchapter:
   1-11              (1)  "Entity" means any individual, partnership, firm,
   1-12  corporation or other business entity.
   1-13              (2)  "Family member" means a health care provider's
   1-14  relationship to a person within the second degree of consanguinity
   1-15  or affinity.
   1-16              (3)  "Group practice" means a group of two or more
   1-17  licensed health care providers legally organized as a partnership,
   1-18  professional corporation, or similar association for which:
   1-19                    (A)  each member of the group provides a full
   1-20  range of health care services, including medical care,
   1-21  consultation, diagnosis, or treatment through the joint use of
   1-22  shared office space, facilities, equipment, and personnel;
   1-23                    (B)  substantially all of the services of the
    2-1  members of the group are provided through the group and are billed
    2-2  under a billing number assigned to the group, and payments received
    2-3  are treated as receipts of the group; and
    2-4                    (C)  the overhead expenses of and the income from
    2-5  the practice are distributed in accordance with methods previously
    2-6  determined.
    2-7              (4)  "Health care facility" means an ambulatory
    2-8  surgical center, a hospice, a nursing home, a home health agency, a
    2-9  diagnostic imaging center, a freestanding radiation therapy center,
   2-10  an infusion center, a pharmacy, a clinical laboratory, a
   2-11  psychiatric treatment facility, a cardiac catheterization
   2-12  laboratory, a medical equipment supplier, an alcohol or chemical
   2-13  dependency treatment center, a physical rehabilitation center, an
   2-14  ambulatory care center, a birth center, a subacute care facility, a
   2-15  nursing home component licensed under Subchapter B, Chapter 242,
   2-16  within a continuing care facility certified under Chapter 246, or a
   2-17  mental health care center, which health care facility provides or
   2-18  supplies health care goods or services used in the treatment of
   2-19  patients.
   2-20              (5)  "Health care goods or services" means health care
   2-21  procedures, including treatment, diagnosis, and medical care,
   2-22  provided by or through a health care provider or health care
   2-23  facility or medical equipment, supplies, drugs, or other items used
   2-24  in the treatment of a patient.  For the purposes of this
   2-25  subchapter, "health care goods and services" may refer to either
    3-1  health care goods or health care services or both health care goods
    3-2  and services.
    3-3              (6)  "Health care provider" means a individual who
    3-4  furnishes health care goods or services under a license,
    3-5  certificate, regulation, or other similar evidence of regulation
    3-6  issued by this state or another state of the United States.
    3-7              (7)  "Investor" means a person or entity owning,
    3-8  directly or indirectly, a legal or beneficial ownership or
    3-9  investment interest, including without limitation through a family
   3-10  member, trust, or another entity related to the investor within the
   3-11  meaning of 42 C.F.R. Section 413.17.
   3-12              (8)  "Ownership or investment interest" means an equity
   3-13  or debt security issued by an entity, including without limitation,
   3-14  shares of stock in a corporation, units or other interest in a
   3-15  partnership, bonds, debentures, notes, or other equity interest or
   3-16  debt instruments.  "Ownership or investment interest" includes any
   3-17  consideration paid as compensation or in any manner which is a
   3-18  product of or incident to or in any way related to such equity or
   3-19  debt security, shares of stock in a corporation, units or other
   3-20  interest in a partnership, bonds, debentures, notes, or other
   3-21  equity interest or debt instruments.  "Ownership or investment
   3-22  interest" does not include an investment interest in an entity that
   3-23  is the sole provider of health goods or services in a rural area.
   3-24              (9)  "Referral" means any referral of a patient for
   3-25  health care goods or services by a health care provider with the
    4-1  authority to order such health care goods or services, including:
    4-2                    (A)  the forwarding of a patient by a health care
    4-3  provider to another health care provider, a health care facility,
    4-4  or a health care supplier; or
    4-5                    (B)  the request or establishment of a plan of
    4-6  care by a health care provider, which includes the provision of
    4-7  health care goods or services.
    4-8              (10)  "Rural area" means a county with a population
    4-9  density of no more than 100 persons per square mile as defined by
   4-10  the United State Department of Commerce Bureau of the Census.
   4-11        Sec. 161.113.  PROHIBITED AND MANDATORY ACTS AND PRACTICES.
   4-12  (a)  A health care provider shall not refer a patient for the
   4-13  provision of any health care good or service to a health care
   4-14  facility in which the health care provider or a family member of
   4-15  the health care provider is an investor.
   4-16        (b)  A health care provider or health care facility shall not
   4-17  present to any individual, third-party payor, or other person a
   4-18  bill or claim for payment for a health care good or service
   4-19  furnished pursuant to a referral prohibited by this subchapter.
   4-20        (c)  If a health care provider or health care facility
   4-21  receives any amount billed or claimed in violation of this section,
   4-22  the health care provider or health care facility shall refund
   4-23  promptly to the applicable payor or individual the amount received.
   4-24        (d)  A hospital, licensed pursuant to Chapter 241, shall not
   4-25  discriminate against or otherwise penalize a health care provider
    5-1  for complying with this Act.
    5-2        (e)  A health care provider who is an investor in a health
    5-3  care facility shall disclose any ownership or investment interest
    5-4  in the health care facility to:
    5-5              (1)  a patient when making a referral to the health
    5-6  care facility; and
    5-7              (2)  a third-party payor on request.
    5-8        Sec. 161.114.  EXEMPTIONS.  Section 161.113 does not apply
    5-9  to:
   5-10              (1)  a health care provider whose ownership or
   5-11  investment interest in a health care facility is permitted by 42
   5-12  U.S.C. Section 1320a-7b(b) or any regulations promulgated pursuant
   5-13  thereto;
   5-14              (2)  a referral made for health care goods or services
   5-15  within a group practice by one member of the group practice to
   5-16  another member of the group practice acting within the member's
   5-17  licensure, area of competence, and recognized scope of practice or
   5-18  specialty;
   5-19              (3)  a health care provider or health care facility
   5-20  which furnishes health care goods or services in a rural area;
   5-21              (4)  a health care provider who provides health care
   5-22  goods or services at a health care facility by or under the
   5-23  personal supervision of the health care provider, if the health
   5-24  care goods or services are within the health care provider's
   5-25  licensure, area of competence, and recognized scope of practice or
    6-1  specialty.  If the health care provider is a member of a group
    6-2  practice, the health care provider may refer a patient to another
    6-3  member of the group practice for the provision of health care goods
    6-4  or services at a health care facility if the health care goods or
    6-5  services are furnished by or under the personal supervision of the
    6-6  health care provider to whom the patient is referred and the health
    6-7  care goods or services are within the health care provider's
    6-8  licensure, area of competence, and recognized scope of practice or
    6-9  specialty; or
   6-10              (5)  a referral made pursuant to an arrangement between
   6-11  the referring health care provider and a health maintenance
   6-12  organization, competitive medical plan, prepaid health plan, or
   6-13  another health plan permitted by 42 U.S.C. Section 1320a-7b(b) or
   6-14  any regulation promulgated pursuant thereto.
   6-15        Sec. 161.115.  VIOLATIONS.  (a)  It is a violation of this
   6-16  subchapter for a person to:
   6-17              (1)  make a referral prohibited by this subchapter;
   6-18              (2)  present or cause to be presented a bill or a claim
   6-19  for a good or service which is prohibited by this subchapter; or
   6-20              (3)  fail to refund an amount received in violation of
   6-21  this subchapter.
   6-22        (b)  It is a violation of this subchapter for a hospital,
   6-23  licensed pursuant to Chapter 241, to discriminate against or
   6-24  otherwise penalize a health care provider for complying with this
   6-25  Act.
    7-1        (c)  It is a violation of this subchapter for a health care
    7-2  provider to enter into an arrangement or scheme which the health
    7-3  care provider knew or should have known has the principal purpose
    7-4  of assuring referrals by the health care provider to a particular
    7-5  health care facility which, if the health care provider made
    7-6  referrals to such health care facility, would be a violation of
    7-7  this subchapter.
    7-8        Sec. 161.116.  DECEPTIVE TRADE PRACTICES.  A violation of
    7-9  this subchapter constitutes a false, misleading, or deceptive act
   7-10  or practice within the meaning of Section 17.46(a), Subchapter E,
   7-11  Chapter 17, Business & Commerce Code, and any remedy prescribed by
   7-12  that subchapter may be used by the attorney general or a district
   7-13  or county attorney to enforce this subchapter.  Nothing in this
   7-14  section shall be construed to permit a private cause of action
   7-15  under Subchapter E, Chapter 17, Business & Commerce Code.
   7-16        Sec. 161.117.  CIVIL PENALTY AND INJUNCTION.  (a)  A person
   7-17  is subject to a civil penalty of not more than $15,000 for each
   7-18  violation of this subchapter.  Each bill or claim submitted for a
   7-19  health care good or service constitutes a separate violation.  Each
   7-20  referral of a patient constitutes a separate violation.
   7-21        (b)  A person is subject to a civil penalty of not more than
   7-22  $100,000 for each violation of Section 161.115(c).  Each agreement,
   7-23  arrangement, or scheme constitutes a separate violation.
   7-24        (c)  In determining the amount of the civil penalty, the
   7-25  court shall consider:
    8-1              (1)  the person's, facility's, or supplier's previous
    8-2  violations;
    8-3              (2)  the seriousness of the violation, including the
    8-4  nature, circumstances, extent, and gravity of the violation;
    8-5              (3)  whether the health and safety of the public was
    8-6  threatened by the violation;
    8-7              (4)  the demonstrated good faith of the person,
    8-8  facility, or supplier; and
    8-9              (5)  the amount necessary to deter future violations.
   8-10        (d)  The attorney general or a district or county attorney
   8-11  may maintain an action for a violation of this subchapter in the
   8-12  name of the state.
   8-13        (e)  Venue may be maintained in Travis County or in the
   8-14  county in which the violation occurred.
   8-15        (f)  The district court may grant any prohibitory or
   8-16  mandatory injunctive relief warranted by the facts, including a
   8-17  temporary restraining order, temporary injunction, or permanent
   8-18  injunction.
   8-19        (g)  The party bringing the suit may:
   8-20              (1)  combine a suit to assess and recover civil
   8-21  penalties with a suit for injunctive relief; or
   8-22              (2)  file a suit to assess and recover civil penalties
   8-23  independently of a suit for injunctive relief.
   8-24        (h)  The party bringing the suit may recover reasonable
   8-25  expenses incurred in obtaining injunctive relief, civil penalties,
    9-1  or both, including investigative costs, court costs, reasonable
    9-2  attorney fees, witness fees, and deposition expenses.  A penalty
    9-3  collected under this section by the attorney general shall be
    9-4  deposited to the credit of the general revenue fund.  A penalty
    9-5  collected under this section by a district or county attorney shall
    9-6  be deposited to the credit of the general fund of the county which
    9-7  has brought the suit.
    9-8        (i)  The injunctive relief and civil penalty authorized by
    9-9  this subchapter are in addition to any other civil, administrative,
   9-10  or criminal remedies provided by law.
   9-11        Sec. 161.118.  DISCIPLINARY ACTION.  In addition to the
   9-12  penalties prescribed by this subchapter, a violation of a provision
   9-13  of this subchapter by an individual or facility that is licensed by
   9-14  a state regulatory agency constitutes grounds for disciplinary
   9-15  action by the appropriate regulatory agency.
   9-16        Sec. 161.119.  MARKUP ON CHARGES PROHIBITED.  (a)  A bill,
   9-17  claim, or other request for payment presented by a health care
   9-18  provider for health care goods or services that includes a charge
   9-19  for an ancillary service that was not furnished by or under the
   9-20  personal supervision of the health care provider or by or under the
   9-21  personal supervision of another member of the group practice acting
   9-22  within the member's licensure, area of competence, and recognized
   9-23  scope of practice or specialty shall not exceed:
   9-24              (1)  the health care provider's actual acquisition
   9-25  cost, after deducting any discounts; and
   10-1              (2)  a reasonable charge for billing expenses or
   10-2  administrative expenses incurred in the collection, delivery,
   10-3  receipt, or storage of any specimen, test material, or result
   10-4  utilized by the health care provider, or for interpretation of
   10-5  reports or data made in conjunction with diagnosis or the
   10-6  establishment of a regimen of treatment for the health care
   10-7  provider's patient.
   10-8        SECTION 2.  Section 161.091, Health and Safety Code, is
   10-9  amended to read as follows:
  10-10        Sec. 161.091.  PROHIBITION ON ILLEGAL REMUNERATION.  (a)  A
  10-11  person <licensed, certified, or registered by a health care
  10-12  regulatory agency of this state> commits an offense if the person
  10-13  intentionally or knowingly accepts <offers to pay> or agrees to
  10-14  accept any remuneration directly or indirectly, overtly or
  10-15  covertly, in cash or in kind, <to or> from any person, firm,
  10-16  association of persons, partnership, or corporation in exchange
  10-17  for:
  10-18              (1)  securing or soliciting patients for a person
  10-19  licensed, certified, or registered by a state health care
  10-20  regulatory agency; or
  10-21              (2)  purchasing, leasing, ordering, or arranging for or
  10-22  recommending any purchase, lease, or order of health care goods or
  10-23  services <or patronage>.
  10-24        (b)  A person commits an offense if the person intentionally
  10-25  or knowingly offers to pay, agrees to pay, or pays any remuneration
   11-1  directly or indirectly, overtly or covertly, in cash or in kind, to
   11-2  any person, firm, association of persons, partnership, or
   11-3  corporation in exchange for:
   11-4              (1)  securing or soliciting patients for a person
   11-5  licensed, certified, or registered by a state health care
   11-6  regulatory agency; or
   11-7              (2)  purchasing, leasing, ordering, or arranging for or
   11-8  recommending any purchase, lease, or order of health care goods or
   11-9  services.  This section shall not be construed to prohibit
  11-10  advertising except that which is false, misleading, or deceptive or
  11-11  that which advertises professional superiority or the performance
  11-12  of a professional service in a superior manner and that is not
  11-13  readily subject to verification.
  11-14        (c)  Except as provided by this section, an offense under
  11-15  this section is a Class A misdemeanor.  If it is shown on <in> the
  11-16  trial of a person under <violation of> this section that the person
  11-17  has previously been convicted of an offense under <a violation of>
  11-18  this section or that the person was employed by a federal, state,
  11-19  or local government at the time the offense occurred, the offense
  11-20  is<, on conviction the person shall be punished for> a felony of
  11-21  the third degree.  In addition to any other penalties or remedies
  11-22  provided, a violation of this section shall be grounds for
  11-23  disciplinary action by a <the> regulatory agency that has issued a
  11-24  license, certification, or registration to the person.
  11-25        (d)  <The appropriate health care regulatory agency may
   12-1  institute an action to enjoin a violation or potential violation of
   12-2  this section.  The action for an injunction shall be in addition to
   12-3  any other action, proceeding, or remedy authorized by law.  The
   12-4  regulatory agency shall be represented by the attorney general.>
   12-5        <(e)  This section shall not be construed to prohibit
   12-6  remuneration for advertising, marketing, or other services that are
   12-7  provided for the purpose of securing or soliciting patients
   12-8  provided the remuneration is set in advance, is consistent with the
   12-9  fair market value of the services, and is not based on the volume
  12-10  or value of any patient referrals or business otherwise generated
  12-11  between the parties.>
  12-12        <(f)>  This section shall <not> be construed to permit
  12-13  <prohibit> any payment, business arrangements, or payments practice
  12-14  permitted <not prohibited> by 42 U.S.C. Section 1320a-7b(b) or any
  12-15  regulations promulgated pursuant thereto.
  12-16        (e) <(g)>  This section shall not apply to licensed insurers,
  12-17  governmental entities, including intergovernmental risk pools
  12-18  established under Chapter 172, Local Government Code, and
  12-19  institutions as defined in the Texas State College and University
  12-20  Employees Uniform Insurance Benefits Act (Article 3.50-3, Vernon's
  12-21  Texas Insurance Code), group hospital service corporations, or
  12-22  health maintenance organizations which reimburse, provide, offer to
  12-23  provide, or administer hospital, medical, dental, or other
  12-24  health-related benefits under a health benefits plan for which it
  12-25  is the payor.
   13-1        SECTION 3.  (a)  The change in law made by Section 2 of this
   13-2  Act applies only to an offense or violation committed on or after
   13-3  the effective date of this Act.  For purposes of this section, an
   13-4  offense or violation is committed before the effective date of this
   13-5  Act if any element of the offense or violation occurs before that
   13-6  date.
   13-7        (b)  An offense or violation committed before the effective
   13-8  date of this Act is covered by the law in effect when the offense
   13-9  or violation was committed, and the former law is continued in
  13-10  effect for that purpose.
  13-11        SECTION 4.  This Act takes effect September 1, 1993, except
  13-12  that for a health care provider who acquires an ownership or
  13-13  investment interest in a health care facility or health care
  13-14  supplier prior to May 1, 1993, Subchapter K, Chapter 161, Health
  13-15  and Safety Code, as added by this Act, does not apply to a referral
  13-16  for health care goods or services which occurs before September 1,
  13-17  1996.
  13-18        SECTION 5.  The importance of this legislation and the
  13-19  crowded condition of the calendars in both houses create an
  13-20  emergency and an imperative public necessity that the
  13-21  constitutional rule requiring bills to be read on three several
  13-22  days in each house be suspended, and this rule is hereby suspended.