S.B. No. 1410
                                        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 health care liability <medical malpractice>
   1-10  claim," "health care professional," "health center," "health
   1-11  clinic," "insurer," "health care liability <medical malpractice>
   1-12  claim," and "patient encounter" have the meanings assigned by
   1-13  Section 110.001, Civil Practice and Remedies 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;
   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; or
   7-16                    (G)  a county correctional institution to inmates
   7-17  who are in custody of such county correctional institution operated
   7-18  by such county or under contract with such county.
   7-19              (2)  "Eligible health care liability <medical
   7-20  malpractice> claim" means a health care liability <medical> claim
   7-21  as defined in the Medical Liability and Insurance Improvement Act
   7-22  of Texas (Article 4590i, Vernon's Texas Civil Statutes) against a
   7-23  health care professional or health clinic that <who> renders
   7-24  charity care in at least 10 percent of the patient encounters
   7-25  engaged in by said health care professional or health clinic during
    8-1  the policy year in which the claim was made, a claim <or> against a
    8-2  health center, or a claim against a health care professional who
    8-3  participates in a Medicaid managed care project established under
    8-4  Section 32.041, Human Resources Code.
    8-5              (3)  "Health care professional" means:
    8-6                    (A)  a person who is licensed to practice
    8-7  medicine under the Medical Practice Act (Article 4495b, Vernon's
    8-8  Texas Civil Statutes);
    8-9                    (B)  a person registered by the Board of Nurse
   8-10  Examiners as an advanced nurse practitioner or a certified nurse
   8-11  midwife; <or>
   8-12                    (C)  a person recognized by the Board of Medical
   8-13  Examiners as a physician assistant; or
   8-14                    (D)  a health care professional who participates
   8-15  in a Medicaid managed care project established under Section
   8-16  32.041, Human Resources Code.
   8-17              (4)  "Health center" means a federally qualified health
   8-18  center, as that term is defined by 42 U.S.C. Section 1396d.
   8-19              (5)  "Health clinic" means a clinic or other facility
   8-20  providing health care in conjunction with an approved family
   8-21  residency practice program.
   8-22              (6)  "Insurer" means an insurance company chartered to
   8-23  write or admitted to write and writing health care liability or
   8-24  medical professional liability insurance in this state, the Texas
   8-25  Medical Liability Insurance Underwriting Association (Article
    9-1  21.49-3, Insurance Code), any self-insurance trust created under
    9-2  Article 21.49-4, Insurance Code, for the purpose of providing
    9-3  health care liability or medical professional liability insurance,
    9-4  or a purchasing group domiciled, registered, and writing health
    9-5  care liability or medical professional liability insurance for
    9-6  health centers in this state.  The term "insurer" includes <does
    9-7  not include> an institution of higher education that provides
    9-8  health care liability or medical professional liability coverage
    9-9  under Chapter 59, Education Code.
   9-10              (7)  "Health Care Liability <(6)  "Medical malpractice>
   9-11  claim" means a claim or action against a health care professional,
   9-12  <or> health center, or health clinic for treatment, lack of
   9-13  treatment, or other claimed departure from accepted standards of
   9-14  medical care or health care or safety which proximately results in
   9-15  injury to or death of a patient, whether the patient's claim or
   9-16  cause of action sounds in tort or contract <alleging one or more
   9-17  negligent acts or omissions in the diagnosis, care, or treatment of
   9-18  a patient and alleging that injury to or death of a patient
   9-19  resulted therefrom, without regard to whether said claim or action
   9-20  is based upon tort or contract principles>.
   9-21        (8) <(7)>  "Patient encounter" means an occasion on which a
   9-22  health care professional, health center, or health clinic renders
   9-23  professional health care services to a patient.
   9-24        Sec. 110.002.  State Liability:  Persons Covered.  In a
   9-25  health care liability cause of action against a health care
   10-1  professional, <or> health center, or health clinic  based on
   10-2  conduct described in Section 110.003, the state shall indemnify the
   10-3  health care professional, <or> health center, or health clinic for
   10-4  actual damages adjudged against the health care professional, <or>
   10-5  health center, or health clinic or which the health care
   10-6  professional, <or> health center, or health clinic becomes
   10-7  obligated to pay pursuant to a settlement reached in accordance
   10-8  with this chapter.
   10-9        Sec. 110.003.  State Liability:  Conduct Covered.  (a)  The
  10-10  state is liable for indemnification under this chapter only if the
  10-11  damages are based on an eligible health care liability <medical
  10-12  malpractice> claim against a health care professional, <or> health
  10-13  center, or health clinic in the course and scope of providing
  10-14  professional health care.
  10-15        (b)  The state is <not> liable for indemnification in a case
  10-16  unless the jury or, if a jury is waived, the trial judge in a cause
  10-17  of action against a health care professional, health center, or
  10-18  health clinic returns a verdict and judgment against the applicable
  10-19  defendant finding that such person or entity committed gross
  10-20  negligence or an intentional act found to be a proximate cause of
  10-21  the damages of the plaintiff <for an intentional act or an act of
  10-22  gross negligence>.
  10-23        Sec. 110.005.  TIMELY NOTICE TO ATTORNEY GENERAL REQUIRED.
  10-24  The state is not liable for indemnification for damages under this
  10-25  chapter unless the health care professional, <or> health center, or
   11-1  health clinic against whom the cause of action is asserted:
   11-2              (1)  is covered under a valid professional health care
   11-3  liability or medical liability insurance policy that is issued by
   11-4  an insurer and that provides coverage for the health care liability
   11-5  <medical malpractice> claim that is the subject of the claim or
   11-6  action with a policy limit of not less than $100,000 per occurrence
   11-7  and $300,000 aggregate for the policy period; and
   11-8              (2)  delivers or causes to be delivered to the attorney
   11-9  general a true copy of <any written notice of said medical
  11-10  malpractice claim and> any summons or citation in a health care
  11-11  liability claim served on the health care professional, <or> health
  11-12  center, or health clinic, which <written notice,> summons<,> or
  11-13  citation shall be delivered to the attorney general not later than
  11-14  the 60th <45th> day after the receipt thereof by the health care
  11-15  professional, <or> health center, or health clinic.  However,
  11-16  subsequent notification of such summons or citation shall not be a
  11-17  basis for denial of a claim for indemnification unless the attorney
  11-18  general proves by clear and convincing evidence that such delay
  11-19  would unduly prejudice the state's ability to evaluate the
  11-20  reasonableness of the settlement offer or agreement.  No such claim
  11-21  may be asserted by the state unless, within 10 days of the receipt
  11-22  of such late notification by the attorney general (or such greater
  11-23  or lesser period of time as the court in which the action is filed
  11-24  may allow), the attorney general files in said court (or, if no
  11-25  action is pending in any court, in a district court in Travis
   12-1  County, Texas) a pleading setting forth the reasons why the state's
   12-2  ability to evaluate the reasonableness of the settlement offer or
   12-3  agreement has been prejudiced.
   12-4        Sec. 110.006.  Information Provided to Attorney General;
   12-5  Settlements.  (a)  The insurer for a health care professional, <or>
   12-6  health center, or health clinic that is the subject of an eligible
   12-7  health care liability <malpractice> claim shall designate an
   12-8  attorney or other representative assigned to the claim who shall
   12-9  keep the attorney general or his designee reasonably informed of
  12-10  significant developments in the claim or action, including all
  12-11  settings for trials or dispositive motions, all settlement offers
  12-12  and demands, all pleadings by or against the health care
  12-13  professional, <or> health center, or health clinic, all judgments
  12-14  or other dispositive orders, and all written recommendations of
  12-15  counsel for the health care professional, <or> health center, or
  12-16  health clinic regarding settlement.
  12-17        (b)  If a settlement agreement is reached between the health
  12-18  care professional, <or> health center, or health clinic and a
  12-19  claimant, the insurer for the health care professional, <or> health
  12-20  center, or health clinic shall promptly notify the attorney general
  12-21  of same.  The settlement shall become final and binding upon the
  12-22  state unless, within 10 days of the receipt of said notice by the
  12-23  attorney general (or such greater or lesser period of time as the
  12-24  court in which the action is filed may allow), the attorney general
  12-25  files in said court (or, if no action is pending in any court, in a
   13-1  district court of Travis County, Texas) a written objection to the
   13-2  settlement setting forth in detail why <the court should find that>
   13-3  the reasonable settlement value of the total claim being settled is
   13-4  significantly less than the amount for which the state would be
   13-5  liable for indemnification if the settlement were to be consummated
   13-6  and any other reason why the state should not be liable for
   13-7  indemnification under this chapter based upon all the facts and
   13-8  circumstances of the case.  A hearing shall promptly be held upon
   13-9  any such objection, either before the court or a special master
  13-10  appointed by the court for that purpose.  At any such hearing, the
  13-11  burden shall be upon the attorney general to prove by clear and
  13-12  convincing evidence that the reasonable settlement value of the
  13-13  total claim being settled is significantly less than the amount for
  13-14  which the state would be liable for indemnification if the
  13-15  settlement were to be consummated or any other reason why the state
  13-16  should not be liable for indemnification under this chapter based
  13-17  upon all the facts and circumstances of the case.  Unless the court
  13-18  finds that the reasonable settlement value of the total claim being
  13-19  settled is significantly less than the amount for which the state
  13-20  would be liable for indemnification if the settlement were to be
  13-21  consummated or that there are other reasons why the state should
  13-22  not be liable for indemnification under this chapter based upon all
  13-23  the  facts and circumstances of the case, the court shall enter an
  13-24  order approving the settlement and directing the state to make the
  13-25  required indemnity payment thereunder.  Such an order shall be
   14-1  reviewable by an appellate court only upon the filing of an
   14-2  application for writ of mandamus within 15 days of the date said
   14-3  order is signed, and only for an abuse of discretion by the trial
   14-4  court.  Any such application for writ of mandamus shall be given
   14-5  priority in the appellate court in which it is filed above all
   14-6  other applications for writ of mandamus docketed in said court.
   14-7        (c)  If the attorney general files an objection under
   14-8  Subsection (b), the court may, with the agreement of the parties to
   14-9  the settlement agreement, permit the payment of any other sums due
  14-10  to be paid under said agreement by parties other than the state
  14-11  while the objection of the attorney general is pending
  14-12  adjudication.
  14-13        (d)  If a suit involving an eligible health care liability
  14-14  <medical malpractice> claim is imminently scheduled for jury trial
  14-15  or alternative dispute resolution, or if the defendant seeking
  14-16  indemnity is subject to a time limit under the Stowers Doctrine or
  14-17  other applicable law to respond to a settlement proposal, or is
  14-18  being tried before a jury, and settlement negotiations are ongoing
  14-19  between the health care professional, <or> health center, or health
  14-20  clinic and any claimant, either of those parties may request the
  14-21  court to require the attorney general or his designee to assign an
  14-22  attorney to monitor such negotiations so that if a settlement
  14-23  agreement is reached between the parties, the attorney so assigned
  14-24  by the attorney general can immediately advise the court of any
  14-25  objection, in which event the hearing described in Subsection (b)
   15-1  <regarding the reasonableness of the settlement amount> shall be
   15-2  held immediately after the settlement agreement is reduced to
   15-3  writing or announced on the record in open court, so that the trial
   15-4  court may render its determination before the petit jury or jury
   15-5  panel is discharged.
   15-6        (e)  Except to the extent that the attorney general is
   15-7  authorized under this section to object to the reasonableness of a
   15-8  settlement, the attorney general shall not be authorized to
   15-9  intervene in any court proceeding involving an eligible health care
  15-10  liability <medical malpractice> claim.  The insurer for the health
  15-11  care professional, <or> health center, or health clinic shall be in
  15-12  charge of the defense of any such claim.
  15-13        (f)  Upon final disposition of an eligible health care
  15-14  liability <medical malpractice> claim by settlement or judgment,
  15-15  funds shall be paid by the comptroller on vouchers that shall be
  15-16  promptly prepared, verified, and signed by the attorney general.
  15-17        Sec. 110.007.  Expiration.  Unless continued in existence,
  15-18  this chapter expires September 1, 1997 <1995>.
  15-19        SECTION 3.  (a)  Section 2 of this Act applies to any cause
  15-20  of action or claim for indemnification which was filed before or
  15-21  after the effective date of this Act.
  15-22        (b)  Section 1 of this Act applies only to professional
  15-23  liability or health care liability insurance policies delivered,
  15-24  issued for delivery, or renewed on or after January 1, 1994.
  15-25  Policies delivered, issued for delivery, or renewed before January
   16-1  1, 1994, are governed by the law that existed immediately before
   16-2  the effective date of this Act, and that law is continued in effect
   16-3  for that purpose.
   16-4        SECTION 4.  This Act takes effect September 1, 1993.
   16-5        SECTION 5.  The importance of this legislation and the
   16-6  crowded condition of the calendars in both houses create an
   16-7  emergency and an imperative public necessity that the
   16-8  constitutional rule requiring bills to be read on three several
   16-9  days in each house be suspended, and this rule is hereby suspended.