By:  Parker, Lucio                                    S.B. No. 1410
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to state indemnification of and liability insurance
    1-2  premiums for certain health care claims.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Article 5.15-4, Insurance Code, is amended to
    1-5  read as follows:
    1-6        Art. 5.15-4.  Reduction in Certain Professional Liability
    1-7  Insurance Premiums
    1-8        Sec. 1.  Definitions.  In this article, "charity care or
    1-9  services," "eligible <medical> malpractice claim," "health care
   1-10  professional," "health center," "health clinic," "insurer,"
   1-11  "<medical> malpractice claim," and "patient encounter" have the
   1-12  meanings assigned by Section 110.001, Civil Practice and Remedies
   1-13  Code.
   1-14        Sec. 2.  Qualification for discount.  A health care
   1-15  professional, <or> health center, or health clinic is entitled to a
   1-16  premium discount for medical professional liability insurance
   1-17  coverage if the professional, <or> center, or health clinic meets
   1-18  the criteria stated in Section 4 of this article.
   1-19        Sec. 3.  Amount of premium discount.  The Texas Department
   1-20  <State Board> of Insurance shall approve premium discounts to be
   1-21  used by each insurer on premiums to be charged to a health care
   1-22  professional, <or> health center, or health clinic covered by this
   1-23  section.  Each insurer shall file proposed premium discounts and
    2-1  any loss and statistical data required by department <board> rule.
    2-2  The insurer has the burden of demonstrating to the department
    2-3  <board>, by a preponderance of the evidence, that the proposed
    2-4  premium discount is adequate to reflect the reduction in the
    2-5  insurer's liability exposure based on the state's indemnification
    2-6  of the first $100,000 or $25,000 under Chapter 110, Civil Practice
    2-7  and Remedies Code, of an eligible malpractice claim against a
    2-8  health care professional, <or> health center, or health clinic.
    2-9  The information required to be filed with the Texas Department
   2-10  <State Board> of Insurance under this section is public information
   2-11  and shall be made available to the public on written request.
   2-12        Sec. 4.  Qualification for premium discount.  (a)  A health
   2-13  care professional is entitled to a premium discount for medical
   2-14  professional liability insurance coverage if:
   2-15              (1)  the projected patient encounters of the health
   2-16  care professional during the policy year will involve providing
   2-17  charity care or services in 10 percent or more of the health care
   2-18  professional's patient encounters; and
   2-19              (2)  the health care professional completes 15 hours of
   2-20  continuing education during the calendar year in which the policy
   2-21  is in effect <term of the policy> on patient safety and risk
   2-22  reduction subjects related to the health care professional's
   2-23  practice that are sponsored, approved, endorsed, or accredited by
   2-24  the Texas Department <State Board> of Insurance or the health care
   2-25  professional's licensing or certifying agency, an "insurer" as
    3-1  defined in this Act, or state or nationally recognized accrediting
    3-2  organizations or continuing medical or nurse education programs.
    3-3        (b)  A health center is entitled to a premium discount for
    3-4  <medical> professional liability coverage if the health center
    3-5  adopts a quality assurance program.
    3-6        (c)  A health clinic or health care professional under
    3-7  Section 110.001(3)(D), Civil Practice and Remedies Code, is
    3-8  entitled to a premium discount for professional liability coverage
    3-9  if the health clinic or health care professional under Section
   3-10  110.001(3)(D), Civil Practice and Remedies Code, provides at least
   3-11  10 percent or more of charity care or services and adopts a quality
   3-12  assurance program.
   3-13        (d)  The Texas Department <State Board> of Insurance may
   3-14  adopt rules governing health center or health clinic quality
   3-15  assurance programs.
   3-16        Sec. 5.  Request for premium discount.  A health care
   3-17  professional, <or> health center, or health clinic that desires a
   3-18  premium discount for medical professional liability insurance
   3-19  coverage shall submit to the insurer, at the time coverage is
   3-20  applied for, a written verified application for a new policy or a
   3-21  verified statement for a policy to be renewed stating that the
   3-22  health care professional, <or> health center, or health clinic
   3-23  desires a premium discount and qualifies for a premium discount
   3-24  under this article.  The application or statement also shall
   3-25  provide for each policy for which a discount is requested necessary
    4-1  information to determine the eligibility of the health care
    4-2  professional, <or> health center, or health clinic and the amount
    4-3  of the discount.
    4-4        Sec. 6.  Audit; penalty.  (a)  At the end of a policy year,
    4-5  an insurer may audit the records of any health care professional,
    4-6  <or> health center, or health clinic to which the insurer has
    4-7  provided a discount under this article to determine if the health
    4-8  care professional, <or> health center, or health clinic provided
    4-9  the charity care and services necessary under Section 4 of this
   4-10  article to qualify for the premium discount during the preceding
   4-11  policy year.
   4-12        (b)  To conduct the audit, the insurer is entitled to access
   4-13  to any books and records necessary to determine if the verified
   4-14  application or statement submitted for the coverage was correct and
   4-15  the health care professional, <or> health center, or health clinic
   4-16  was eligible for the premium discount.  If a health care
   4-17  professional, <or> health center, or health clinic denies access to
   4-18  the property or to the books and records, the insurer may obtain an
   4-19  appropriate court order from a court of competent jurisdiction to
   4-20  gain access to the books and the records.
   4-21        (c)  If an insurer's audit indicates that a health care
   4-22  professional, <or> health center, or health clinic did not provide
   4-23  charity care or services as required under Section 4 of this
   4-24  article <in 10 percent or more of the health care professional's or
   4-25  health center's patient encounters>, the insurer may charge the
    5-1  health care professional, <or> health center, or health clinic an
    5-2  amount equal to the difference between the premium paid and the
    5-3  premium that would have been due if the health care professional,
    5-4  <or> health center, or health clinic had not received the premium
    5-5  discount plus 20 percent of the amount of the premium that would
    5-6  have been due without the premium discount.
    5-7        (d)  If a health care professional, <or> health center, or
    5-8  health clinic that has received the premium discount for the policy
    5-9  year submits the difference between the premium paid and the
   5-10  premium that would have been due if the health care professional,
   5-11  <or> health center, or health clinic had not received the premium
   5-12  discount plus interest at the legal rate for the unpaid premium
   5-13  prior to 30 days before the expiration of the policy year, the
   5-14  health care professional, <or> health center, or health clinic will
   5-15  not be subject to the penalty provided in Subsection (c).
   5-16        Sec. 7.  Prohibitions on insurer; sanctions.  (a)  An insurer
   5-17  may not cancel or refuse to renew <medical> professional liability
   5-18  insurance coverage solely on the basis that the covered health care
   5-19  professional, <or> health center, or health clinic is eligible for
   5-20  a premium discount under this article except for the following
   5-21  reasons:
   5-22              (1)  fraud or misrepresentation in obtaining coverage;
   5-23              (2)  failure to pay premiums when due; or
   5-24              (3)  the insurer's being placed under supervision or in
   5-25  conservatorship or receivership, if the cancellation or nonrenewal
    6-1  is approved by the supervisor, conservator, or receiver.
    6-2        (b)  A health care professional, <or> health center, or
    6-3  health clinic who files the appropriate verified application or
    6-4  statement under this article will be entitled to a premium discount
    6-5  as approved by the department <board> under Section 3 of this
    6-6  article.  When consent to rate is used, a health care professional,
    6-7  <or> health center, or health clinic will be entitled to the
    6-8  appropriate discount from the rate agreed to by consent.
    6-9        (c)  An insurer who violates this article is subject to the
   6-10  sanctions authorized under Section 7, Article 1.10, of this code.
   6-11        Sec. 8.  AUTHORITY OF TEXAS DEPARTMENT <STATE BOARD> OF
   6-12  INSURANCE.  The Texas Department <State Board> of Insurance shall
   6-13  administer this article and shall adopt necessary rules, forms,
   6-14  endorsements, and procedures to carry out this article.
   6-15        Sec. 9.  Expiration.  Unless continued in existence this
   6-16  article expires September 1, 1997 <1995>.
   6-17        SECTION 2.  Sections 110.001 through 110.003 and 110.005
   6-18  through 110.007, Civil Practice and Remedies Code, are amended to
   6-19  read as follows:
   6-20        Sec. 110.001.  Definitions.  In this chapter:
   6-21              (1)  "Charity care or services" means care or services
   6-22  provided by a health care professional or health clinic under:
   6-23                    (A)  Chapter 31, 32, 35, or 61, Health and Safety
   6-24  Code;
   6-25                    (B)  the Medicaid program under Chapter 32, Human
    7-1  Resources Code;
    7-2                    (C)  a contract with a migrant, community, or
    7-3  homeless health center that receives funds under 42 U.S.C. Section
    7-4  254b, 254c, or 256; <or>
    7-5                    (D)  Subchapter B, Chapter 311, Health and Safety
    7-6  Code, or 42 U.S.C. Section 1395dd, to the extent the professional
    7-7  <or the hospital in which the care or services are provided> is not
    7-8  compensated;
    7-9                    (E)  an approved family practice residency
   7-10  training program established under Subchapter I, Chapter 66,
   7-11  Education Code, to the extent the professional is not compensated
   7-12  for the services; or
   7-13                    (F)  an indigent health care program of a
   7-14  hospital district created under the authority of Article IX,
   7-15  Sections 4 through 11, of the Texas Constitution.
   7-16              (2)  "Eligible <medical> malpractice claim" means a
   7-17  <medical> claim against a health care professional or health clinic
   7-18  that <who> renders charity care in at least 10 percent of the
   7-19  patient encounters engaged in by said health care professional or
   7-20  health clinic during the policy year in which services were
   7-21  rendered which resulted in a <the> claim <was made or> against the
   7-22  health care professional or <a> health center or a claim against a
   7-23  health care professional who participates in a Medicaid managed
   7-24  care project established under Section 32.041, Human Resources
   7-25  Code.
    8-1              (3)  "Health care professional" means:
    8-2                    (A)  a person who is licensed to practice
    8-3  medicine under the Medical Practice Act (Article 4495b, Vernon's
    8-4  Texas Civil Statutes);
    8-5                    (B)  a person registered by the Board of Nurse
    8-6  Examiners as an advanced nurse practitioner or a certified nurse
    8-7  midwife; <or>
    8-8                    (C)  a person recognized by the Board of Medical
    8-9  Examiners as a physician assistant; or
   8-10                    (D)  a health care professional who participates
   8-11  in a Medicaid managed care project established under Section
   8-12  32.041, Human Resources Code.
   8-13              (4)  "Health center" means a federally qualified health
   8-14  center, as that term is defined by 42 U.S.C. Section 1396d.
   8-15              (5)  "Health clinic" means a clinic or other facility
   8-16  providing health care in conjunction with an approved family
   8-17  residency practice program.
   8-18              (6)  "Insurer" means an insurance company chartered to
   8-19  write or admitted to write and writing medical professional
   8-20  liability insurance in this state, the Texas Medical Liability
   8-21  Insurance Underwriting Association (Article 21.49-3, Insurance
   8-22  Code), any self-insurance trust created under Article 21.49-4,
   8-23  Insurance Code, for the purpose of providing medical professional
   8-24  liability insurance, or a purchasing group domiciled, registered,
   8-25  and writing medical professional liability insurance for health
    9-1  centers in this state.  The term "insurer" does not include an
    9-2  institution of higher education that provides medical professional
    9-3  liability coverage under Chapter 59, Education Code.
    9-4              (7)  "Malpractice <(6)  "Medical malpractice> claim"
    9-5  means a claim or action against a health care professional, <or>
    9-6  health center, or health clinic alleging one or more negligent acts
    9-7  or omissions in the diagnosis, care, or treatment of a patient and
    9-8  alleging that injury to or death of a patient resulted therefrom,
    9-9  without regard to whether said claim or action is based upon tort
   9-10  or contract principles.
   9-11              (8) <(7)>  "Patient encounter" means an occasion on
   9-12  which a health care professional, health center, or health clinic
   9-13  renders professional health care services to a patient.
   9-14        Sec. 110.002.  STATE LIABILITY:  PERSONS COVERED.  In a cause
   9-15  of action against a health care professional, <or> health center,
   9-16  or health clinic based on conduct described in Section 110.003, the
   9-17  state shall indemnify the health care professional, <or> health
   9-18  center, or health clinic for actual damages adjudged against the
   9-19  health care professional, <or> health center, or health clinic or
   9-20  which the health care professional, <or> health center, or health
   9-21  clinic becomes obligated to pay pursuant to a settlement reached in
   9-22  accordance with this chapter.
   9-23        Sec. 110.003.  State Liability:  Conduct Covered.  (a)  The
   9-24  state is liable for indemnification under this chapter only if the
   9-25  damages are based on an eligible <medical> malpractice claim
   10-1  against a health care professional, <or> health center, or health
   10-2  clinic in the course and scope of providing professional health
   10-3  care.
   10-4        (b)  The state is not liable for indemnification in a case in
   10-5  which the finder of fact determines that the defendant committed
   10-6  gross negligence or an intentional act found to be a proximate
   10-7  cause of the damages <for an intentional act or an act of gross
   10-8  negligence>.
   10-9        Sec. 110.005.  TIMELY NOTICE TO ATTORNEY GENERAL REQUIRED.
  10-10  The state is not liable for indemnification for damages under this
  10-11  chapter unless the health care professional, <or> health center, or
  10-12  health clinic against whom the cause of action is asserted:
  10-13              (1)  is covered under a valid professional liability
  10-14  insurance policy that is issued by an insurer and that provides
  10-15  coverage for the <medical> malpractice claim that is the subject of
  10-16  the claim or action with a policy limit of not less than $100,000
  10-17  per occurrence and $300,000 aggregate for the policy period; and
  10-18              (2)  delivers or causes to be delivered to the attorney
  10-19  general a true copy of any written notice of said <medical>
  10-20  malpractice claim and any summons or citation served on the health
  10-21  care professional, <or> health center, or health clinic, which
  10-22  written notice, summons, or citation shall be delivered to the
  10-23  attorney general not later than  the 60th <45th> day after the
  10-24  receipt thereof by the health care professional, <or> health
  10-25  center, or health clinic.  However, subsequent notice shall not be
   11-1  a basis for denial of a claim for indemnification unless the
   11-2  attorney general proves by clear and convincing evidence that such
   11-3  delay would unduly prejudice the state's ability to evaluate the
   11-4  reasonableness of the settlement offer or agreement.
   11-5        Sec. 110.006.  INFORMATION PROVIDED TO ATTORNEY GENERAL;
   11-6  SETTLEMENTS.  (a)  The insurer for a health care professional, <or>
   11-7  health center, or health clinic that is the subject of an eligible
   11-8  malpractice claim shall designate an attorney or other
   11-9  representative assigned to the claim who shall keep the attorney
  11-10  general or his designee reasonably informed of significant
  11-11  developments in the claim or action, including all settings for
  11-12  trials or dispositive motions, all settlement offers and demands,
  11-13  all pleadings by or against the health care professional, <or>
  11-14  health center, or health clinic, all judgments or other dispositive
  11-15  orders, and all written recommendations of counsel for the health
  11-16  care professional, <or> health center, or health clinic regarding
  11-17  settlement.
  11-18        (b)  If a settlement agreement is reached between the health
  11-19  care professional, <or> health center, or health clinic and a
  11-20  claimant, the insurer for the health care professional, <or> health
  11-21  center, or health clinic shall promptly notify the attorney general
  11-22  of same.  The settlement shall become final and binding upon the
  11-23  state unless, within 10 days of the receipt of said notice by the
  11-24  attorney general (or such greater or lesser period of time as the
  11-25  court in which the action is filed may allow), the attorney general
   12-1  files in said court (or, if no action is pending in any court, in a
   12-2  district court of Travis County, Texas) a written objection to the
   12-3  settlement setting forth in detail why the court should find that
   12-4  the reasonable settlement value of the total claim being settled is
   12-5  significantly less than the amount for which the state would be
   12-6  liable for indemnification if the settlement were to be consummated
   12-7  based upon all the facts and circumstances of the case.  A hearing
   12-8  shall promptly be held upon any such objection, either before the
   12-9  court or a special master appointed by the court for that purpose.
  12-10  At any such hearing, the burden shall be upon the attorney general
  12-11  to prove by clear and convincing evidence that the reasonable
  12-12  settlement value of the total claim being settled is significantly
  12-13  less than the amount for which the state would be liable for
  12-14  indemnification if the settlement were to be consummated based upon
  12-15  all the facts and circumstances of the case.  Unless the court
  12-16  finds that the reasonable settlement value of the total claim being
  12-17  settled is significantly less than the amount for which the state
  12-18  would be liable for indemnification if the settlement were to be
  12-19  consummated based upon all the facts and circumstances of the case,
  12-20  the court shall enter an order approving the settlement and
  12-21  directing the state to make the required indemnity payment
  12-22  thereunder.  Such an order shall be reviewable by an appellate
  12-23  court only upon the filing of an application for writ of mandamus
  12-24  within 15 days of the date said order is signed, and only for an
  12-25  abuse of discretion by the trial court.  Any such application for
   13-1  writ of mandamus shall be given priority in the appellate court in
   13-2  which it is filed above all other applications for writ of mandamus
   13-3  docketed in said court.
   13-4        (c)  If the attorney general files an objection under
   13-5  Subsection (b), the court may, with the agreement of the parties to
   13-6  the settlement agreement, permit the payment of any other sums due
   13-7  to be paid under said agreement by parties other than the state
   13-8  while the objection of the attorney general is pending
   13-9  adjudication.
  13-10        (d)  If a suit involving an eligible <medical> malpractice
  13-11  claim is imminently scheduled for jury trial or alternative dispute
  13-12  resolution, or if the defendant seeking indemnity is subject to a
  13-13  time limit under the Stowers Doctrine to respond to a settlement
  13-14  proposal, or is being tried before a jury, and settlement
  13-15  negotiations are ongoing between the health care professional, <or>
  13-16  health center, or health clinic and any claimant, either of those
  13-17  parties may request the court to require the attorney general or
  13-18  his designee to assign an attorney to monitor such negotiations so
  13-19  that if a settlement agreement is reached between the parties, the
  13-20  attorney so assigned by the attorney general can immediately advise
  13-21  the court of any objection, in which event the hearing described in
  13-22  Subsection (b) regarding the reasonableness of the settlement
  13-23  amount shall be held immediately after the settlement agreement is
  13-24  reduced to writing or announced on the record in open court, so
  13-25  that the trial court may render its determination before the petit
   14-1  jury or jury panel is discharged.
   14-2        (e)  Except to the extent that the attorney general is
   14-3  authorized under this section to object to the reasonableness of a
   14-4  settlement, the attorney general shall not be authorized to
   14-5  intervene in any court proceeding involving an eligible <medical>
   14-6  malpractice claim.  The insurer for the health care professional,
   14-7  <or> health center, or health clinic shall be in charge of the
   14-8  defense of any such claim.
   14-9        (f)  Upon final disposition of an eligible <medical>
  14-10  malpractice claim by settlement or judgment, funds shall be paid by
  14-11  the comptroller on vouchers that shall be promptly prepared,
  14-12  verified, and signed by the attorney general.
  14-13        Sec. 110.007.  EXPIRATION.  Unless continued in existence,
  14-14  this chapter expires September 1, 1997 <1995>.
  14-15        SECTION 3.  (a)  Section 2 of this Act applies to any cause
  14-16  of action in which no final judgment has been entered prior to the
  14-17  effective date of this Act.
  14-18        (b)  Section 1 of this Act applies only to professional
  14-19  liability insurance policies delivered, issued for delivery, or
  14-20  renewed on or after January 1, 1994.  Policies delivered, issued
  14-21  for delivery, or renewed before January 1, 1994, are governed by
  14-22  the law that existed immediately before the effective date of this
  14-23  Act, and that law is continued in effect for that purpose.
  14-24        SECTION 4.  This Act takes effect September 1, 1993.
  14-25        SECTION 5.  The importance of this legislation and the
   15-1  crowded condition of the calendars in both houses create an
   15-2  emergency and an imperative public necessity that the
   15-3  constitutional rule requiring bills to be read on three several
   15-4  days in each house be suspended, and this rule is hereby suspended.