1-1  By:  Parker, Lucio                                    S.B. No. 1410
    1-2        (In the Senate - Filed April 22, 1993; April 22, 1993, read
    1-3  first time and referred to Committee on Economic Development;
    1-4  May 5, 1993, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 9, Nays 0; May 5, 1993,
    1-6  sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Parker             x                               
   1-10        Lucio              x                               
   1-11        Ellis                                          x   
   1-12        Haley              x                               
   1-13        Harris of Dallas   x                               
   1-14        Harris of Tarrant  x                               
   1-15        Leedom                                         x   
   1-16        Madla              x                               
   1-17        Rosson             x                               
   1-18        Shapiro            x                               
   1-19        Wentworth          x                               
   1-20  COMMITTEE SUBSTITUTE FOR S.B. No. 1410                  By:  Parker
   1-21                         A BILL TO BE ENTITLED
   1-22                                AN ACT
   1-23  relating to state indemnification of and liability insurance
   1-24  premiums for certain health care claims.
   1-25        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-26        SECTION 1.  Article 5.15-4, Insurance Code, is amended to
   1-27  read as follows:
   1-28        Art. 5.15-4.  Reduction in Certain Professional Liability
   1-29  Insurance Premiums
   1-30        Sec. 1.  Definitions.  In this article, "charity care or
   1-31  services," "eligible <medical> malpractice claim," "health care
   1-32  professional," "health center," "health clinic," "hospital,"
   1-33  "insurer," "<medical> malpractice claim," and "patient encounter"
   1-34  have the meanings assigned by Section 110.001, Civil Practice and
   1-35  Remedies Code.
   1-36        Sec. 2.  Qualification for discount.  A health care
   1-37  professional, <or> health center, health clinic, or hospital is
   1-38  entitled to a premium discount for medical professional liability
   1-39  insurance coverage if the professional, <or> center, health clinic,
   1-40  or hospital meets the criteria stated in Section 4 of this article.
   1-41        Sec. 3.  Amount of premium discount.  The Texas Department
   1-42  <State Board> of Insurance shall approve premium discounts to be
   1-43  used by each insurer on premiums to be charged to a health care
   1-44  professional, <or> health center, health clinic, or hospital
   1-45  covered by this section.  Each insurer shall file proposed premium
   1-46  discounts and any loss and statistical data required by department
   1-47  <board> rule.  The insurer has the burden of demonstrating to the
   1-48  department <board>, by a preponderance of the evidence, that the
   1-49  proposed premium discount is adequate to reflect the reduction in
   1-50  the insurer's liability exposure based on the state's
   1-51  indemnification of the first $100,000 or $25,000 under Chapter 110,
   1-52  Civil Practice and Remedies Code, of an eligible malpractice claim
   1-53  against a health care professional, <or> health center, health
   1-54  clinic, or hospital.  The information required to be filed with the
   1-55  Texas Department <State Board> of Insurance under this section is
   1-56  public information and shall be made available to the public on
   1-57  written request.
   1-58        Sec. 4.  Qualification for premium discount.  (a)  A health
   1-59  care professional is entitled to a premium discount for medical
   1-60  professional liability insurance coverage if:
   1-61              (1)  the projected patient encounters of the health
   1-62  care professional during the policy year will involve providing
   1-63  charity care or services in 10 percent or more of the health care
   1-64  professional's patient encounters; and
   1-65              (2)  the health care professional completes 15 hours of
   1-66  continuing education during the calendar year in which the policy
   1-67  is in effect <term of the policy> on patient safety and risk
   1-68  reduction subjects related to the health care professional's
    2-1  practice that are sponsored, approved, endorsed, or accredited by
    2-2  the Texas Department <State Board> of Insurance or the health care
    2-3  professional's licensing or certifying agency, an "insurer" as
    2-4  defined in this Act, or state or nationally recognized accrediting
    2-5  organizations or continuing medical or nurse education programs.
    2-6        (b)  A health center is entitled to a premium discount for
    2-7  <medical> professional liability coverage if the health center
    2-8  adopts a quality assurance program.
    2-9        (c)  A health clinic, hospital, or health care professional
   2-10  under Section 110.001(3)(D), Civil Practice and Remedies Code, is
   2-11  entitled to a premium discount for professional liability coverage
   2-12  if the health clinic, hospital, or health care professional under
   2-13  Section 110.001(3)(D), Civil Practice and Remedies Code, provides
   2-14  at least 10 percent or more of charity care or services and adopts
   2-15  a quality assurance program.
   2-16        (d)  The Texas Department <State Board> of Insurance may
   2-17  adopt rules governing health center, health clinic, or hospital
   2-18  quality assurance programs.
   2-19        Sec. 5.  Request for premium discount.  A health care
   2-20  professional, <or> health center, health clinic, or hospital that
   2-21  desires a premium discount for medical professional liability
   2-22  insurance coverage shall submit to the insurer, at the time
   2-23  coverage is applied for, a written verified application for a new
   2-24  policy or a verified statement for a policy to be renewed stating
   2-25  that the health care professional, <or> health center, health
   2-26  clinic, or hospital desires a premium discount and qualifies for a
   2-27  premium discount under this article.  The application or statement
   2-28  also shall provide for each policy for which a discount is
   2-29  requested necessary information to determine the eligibility of the
   2-30  health care professional, <or> health center, health clinic, or
   2-31  hospital and the amount of the discount.
   2-32        Sec. 6.  Audit; penalty.  (a)  At the end of a policy year,
   2-33  an insurer may audit the records of any health care professional,
   2-34  <or> health center, health clinic, or hospital to which the insurer
   2-35  has provided a discount under this article to determine if the
   2-36  health care professional, <or> health center, health clinic, or
   2-37  hospital provided the charity care and services necessary under
   2-38  Section 4 of this article to qualify for the premium discount
   2-39  during the preceding policy year.
   2-40        (b)  To conduct the audit, the insurer is entitled to access
   2-41  to any books and records necessary to determine if the verified
   2-42  application or statement submitted for the coverage was correct and
   2-43  the health care professional, <or> health center, health clinic, or
   2-44  hospital was eligible for the premium discount.  If a health care
   2-45  professional, <or> health center, health clinic, or hospital denies
   2-46  access to the property or to the books and records, the insurer may
   2-47  obtain an appropriate court order from a court of competent
   2-48  jurisdiction to gain access to the books and the records.
   2-49        (c)  If an insurer's audit indicates that a health care
   2-50  professional, <or> health center, health clinic, or hospital did
   2-51  not provide charity care or services as required under Section 4 of
   2-52  this article <in 10 percent or more of the health care
   2-53  professional's or health center's patient encounters>, the insurer
   2-54  may charge the health care professional, <or> health center, health
   2-55  clinic, or hospital an amount equal to the difference between the
   2-56  premium paid and the premium that would have been due if the health
   2-57  care professional, <or> health center, health clinic, or hospital
   2-58  had not received the premium discount plus 20 percent of the amount
   2-59  of the premium that would have been due without the premium
   2-60  discount.
   2-61        (d)  If a health care professional, <or> health center,
   2-62  health clinic, or hospital that has received the premium discount
   2-63  for the policy year submits the difference between the premium paid
   2-64  and the premium that would have been due if the health care
   2-65  professional, <or> health center, health clinic, or hospital had
   2-66  not received the premium discount plus interest at the legal rate
   2-67  for the unpaid premium prior to 30 days before the expiration of
   2-68  the policy year, the health care professional, <or> health center,
   2-69  health clinic, or hospital will not be subject to the penalty
   2-70  provided in Subsection (c).
    3-1        Sec. 7.  Prohibitions on insurer; sanctions.  (a)  An insurer
    3-2  may not cancel or refuse to renew <medical> professional liability
    3-3  insurance coverage solely on the basis that the covered health care
    3-4  professional, <or> health center, health clinic, or hospital is
    3-5  eligible for a premium discount under this article except for the
    3-6  following reasons:
    3-7              (1)  fraud or misrepresentation in obtaining coverage;
    3-8              (2)  failure to pay premiums when due; or
    3-9              (3)  the insurer's being placed under supervision or in
   3-10  conservatorship or receivership, if the cancellation or nonrenewal
   3-11  is approved by the supervisor, conservator, or receiver.
   3-12        (b)  A health care professional, <or> health center, health
   3-13  clinic, or hospital who files the appropriate verified application
   3-14  or statement under this article will be entitled to a premium
   3-15  discount as approved by the department <board> under Section 3 of
   3-16  this article.  When consent to rate is used, a health care
   3-17  professional, <or> health center, health clinic, or hospital will
   3-18  be entitled to the appropriate discount from the rate agreed to by
   3-19  consent.
   3-20        (c)  An insurer who violates this article is subject to the
   3-21  sanctions authorized under Section 7, Article 1.10, of this code.
   3-22        Sec. 8.  AUTHORITY OF TEXAS DEPARTMENT <STATE BOARD> OF
   3-23  INSURANCE.  The Texas Department <State Board> of Insurance shall
   3-24  administer this article and shall adopt necessary rules, forms,
   3-25  endorsements, and procedures to carry out this article.
   3-26        Sec. 9.  Expiration.  Unless continued in existence this
   3-27  article expires September 1, 1997 <1995>.
   3-28        SECTION 2.  Sections 110.001 through 110.003 and 110.005
   3-29  through 110.007, Civil Practice and Remedies Code, are amended to
   3-30  read as follows:
   3-31        Sec. 110.001.  Definitions.  In this chapter:
   3-32              (1)  "Charity care or services" means care or services
   3-33  provided by a health care professional, health clinic, or hospital
   3-34  under:
   3-35                    (A)  Chapter 31, 32, 35, or 61, Health and Safety
   3-36  Code;
   3-37                    (B)  the Medicaid program under Chapter 32, Human
   3-38  Resources Code;
   3-39                    (C)  a contract with a migrant, community, or
   3-40  homeless health center that receives funds under 42 U.S.C. Section
   3-41  254b, 254c, or 256; <or>
   3-42                    (D)  Subchapter B, Chapter 311, Health and Safety
   3-43  Code, or 42 U.S.C. Section 1395dd, to the extent the professional
   3-44  or the hospital in which the care or services are provided is not
   3-45  compensated;
   3-46                    (E)  an approved family practice residency
   3-47  training program established under Subchapter I, Chapter 66,
   3-48  Education Code, to the extent the professional is not compensated
   3-49  for the services; or
   3-50                    (F)  an indigent health care program of a
   3-51  hospital district created under the authority of Article IX,
   3-52  Sections 4 through 11, of the Texas Constitution.
   3-53              (2)  "Eligible <medical> malpractice claim" means a
   3-54  <medical> claim against a health care professional, health clinic,
   3-55  or hospital that <who> renders charity care in at least 10 percent
   3-56  of the patient encounters engaged in by said health care
   3-57  professional, health clinic, or hospital during the policy year in
   3-58  which the claim was made, a claim <or> against a health center, or
   3-59  a claim against a health care professional who participates in a
   3-60  Medicaid managed care project established under Section 32.041,
   3-61  Human Resources Code.
   3-62              (3)  "Health care professional" means:
   3-63                    (A)  a person who is licensed to practice
   3-64  medicine under the Medical Practice Act (Article 4495b, Vernon's
   3-65  Texas Civil Statutes);
   3-66                    (B)  a person registered by the Board of Nurse
   3-67  Examiners as an advanced nurse practitioner or a certified nurse
   3-68  midwife; <or>
   3-69                    (C)  a person recognized by the Board of Medical
   3-70  Examiners as a physician assistant; or
    4-1                    (D)  a health care professional who participates
    4-2  in a Medicaid managed care project established under Section
    4-3  32.041, Human Resources Code.
    4-4              (4)  "Health center" means a federally qualified health
    4-5  center, as that term is defined by 42 U.S.C. Section 1396d.
    4-6              (5)  "Health clinic" means a clinic or other facility
    4-7  providing health care in conjunction with an approved family
    4-8  residency practice program.
    4-9              (6)  "Hospital" means a general or special hospital
   4-10  licensed under Chapter 241, Health and Safety Code.
   4-11              (7)  "Insurer" means an insurance company chartered to
   4-12  write or admitted to write and writing medical professional
   4-13  liability insurance in this state, the Texas Medical Liability
   4-14  Insurance Underwriting Association (Article 21.49-3, Insurance
   4-15  Code), any self-insurance trust created under Article 21.49-4,
   4-16  Insurance Code, for the purpose of providing medical professional
   4-17  liability insurance, or a purchasing group domiciled, registered,
   4-18  and writing medical professional liability insurance for health
   4-19  centers in this state.  The term "insurer" does not include an
   4-20  institution of higher education that provides medical professional
   4-21  liability coverage under Chapter 59, Education Code.
   4-22              (8)  "Malpractice <(6)  "Medical malpractice> claim"
   4-23  means a claim or action against a health care professional, <or>
   4-24  health center, health clinic, or hospital alleging one or more
   4-25  negligent acts or omissions in the diagnosis, care, or treatment of
   4-26  a patient and alleging that injury to or death of a patient
   4-27  resulted therefrom, without regard to whether said claim or action
   4-28  is based upon tort or contract principles.
   4-29              (9) <(7)>  "Patient encounter" means an occasion on
   4-30  which a health care professional, health center, health clinic, or
   4-31  hospital renders professional health care services to a patient.
   4-32  For purposes of determining the number of patient encounters and
   4-33  amount of charity care provided by a hospital or a health care
   4-34  professional employed by or under contract with a hospital, the
   4-35  calculations will be based on the hospital's emergency room visits
   4-36  or inpatient admissions, as appropriate.
   4-37        Sec. 110.002.  STATE LIABILITY:  PERSONS COVERED.  In a cause
   4-38  of action against a health care professional, <or> health center,
   4-39  health clinic, or hospital based on conduct described in Section
   4-40  110.003, the state shall indemnify the health care professional,
   4-41  <or> health center, health clinic, or hospital for actual damages
   4-42  adjudged against the health care professional, <or> health center,
   4-43  health clinic, or hospital or which the health care professional,
   4-44  <or> health center, health clinic, or hospital becomes obligated to
   4-45  pay pursuant to a settlement reached in accordance with this
   4-46  chapter.
   4-47        Sec. 110.003.  State Liability:  Conduct Covered.  (a)  The
   4-48  state is liable for indemnification under this chapter only if the
   4-49  damages are based on an eligible <medical> malpractice claim
   4-50  against a health care professional, <or> health center, health
   4-51  clinic, or hospital in the course and scope of providing
   4-52  professional health care.
   4-53        (b)  The state is not liable for indemnification in a case in
   4-54  which the finder of fact determines that the defendant committed
   4-55  gross negligence or an intentional act found to be a proximate
   4-56  cause of the damages <for an intentional act or an act of gross
   4-57  negligence>.
   4-58        Sec. 110.005.  TIMELY NOTICE TO ATTORNEY GENERAL REQUIRED.
   4-59  The state is not liable for indemnification for damages under this
   4-60  chapter unless the health care professional, <or> health center,
   4-61  health clinic, or hospital against whom the cause of action is
   4-62  asserted:
   4-63              (1)  is covered under a valid professional liability
   4-64  insurance policy that is issued by an insurer and that provides
   4-65  coverage for the <medical> malpractice claim that is the subject of
   4-66  the claim or action with a policy limit of not less than $100,000
   4-67  per occurrence and $300,000 aggregate for the policy period; and
   4-68              (2)  delivers or causes to be delivered to the attorney
   4-69  general a true copy of any written notice of said <medical>
   4-70  malpractice claim and any summons or citation served on the health
    5-1  care professional, <or> health center, health clinic, or hospital,
    5-2  which written notice, summons, or citation shall be delivered to
    5-3  the attorney general not later than  the 60th <45th> day after the
    5-4  receipt thereof by the health care professional, <or> health
    5-5  center, health clinic, or hospital.  However, subsequent notice
    5-6  shall not be a basis for denial of a claim for indemnification
    5-7  unless the attorney general proves by clear and convincing evidence
    5-8  that such delay would unduly prejudice the state's ability to
    5-9  evaluate the reasonableness of the settlement offer or agreement.
   5-10        Sec. 110.006.  INFORMATION PROVIDED TO ATTORNEY GENERAL;
   5-11  SETTLEMENTS.  (a)  The insurer for a health care professional, <or>
   5-12  health center, health clinic, or hospital that is the subject of an
   5-13  eligible malpractice claim shall designate an attorney or other
   5-14  representative assigned to the claim who shall keep the attorney
   5-15  general or his designee reasonably informed of significant
   5-16  developments in the claim or action, including all settings for
   5-17  trials or dispositive motions, all settlement offers and demands,
   5-18  all pleadings by or against the health care professional, <or>
   5-19  health center, health clinic, or hospital, all judgments or other
   5-20  dispositive orders, and all written recommendations of counsel for
   5-21  the health care professional, <or> health center, health clinic, or
   5-22  hospital regarding settlement.
   5-23        (b)  If a settlement agreement is reached between the health
   5-24  care professional, <or> health center, health clinic, or hospital
   5-25  and a claimant, the insurer for the health care professional, <or>
   5-26  health center, health clinic, or hospital shall promptly notify the
   5-27  attorney general of same.  The settlement shall become final and
   5-28  binding upon the state unless, within 10 days of the receipt of
   5-29  said notice by the attorney general (or such greater or lesser
   5-30  period of time as the court in which the action is filed may
   5-31  allow), the attorney general files in said court (or, if no action
   5-32  is pending in any court, in a district court of Travis County,
   5-33  Texas) a written objection to the settlement setting forth in
   5-34  detail why the court should find that the reasonable settlement
   5-35  value of the total claim being settled is significantly less than
   5-36  the amount for which the state would be liable for indemnification
   5-37  if the settlement were to be consummated based upon all the facts
   5-38  and circumstances of the case.  A hearing shall promptly be held
   5-39  upon any such objection, either before the court or a special
   5-40  master appointed by the court for that purpose.  At any such
   5-41  hearing, the burden shall be upon the attorney general to prove by
   5-42  clear and convincing evidence that the reasonable settlement value
   5-43  of the total claim being settled is significantly less than the
   5-44  amount for which the state would be liable for indemnification if
   5-45  the settlement were to be consummated based upon all the facts and
   5-46  circumstances of the case.  Unless the court finds that the
   5-47  reasonable settlement value of the total claim being settled is
   5-48  significantly less than the amount for which the state would be
   5-49  liable for indemnification if the settlement were to be consummated
   5-50  based upon all the facts and circumstances of the case, the court
   5-51  shall enter an order approving the settlement and directing the
   5-52  state to make the required indemnity payment thereunder.  Such an
   5-53  order shall be reviewable by an appellate court only upon the
   5-54  filing of an application for writ of mandamus within 15 days of the
   5-55  date said order is signed, and only for an abuse of discretion by
   5-56  the trial court.  Any such application for writ of mandamus shall
   5-57  be given priority in the appellate court in which it is filed above
   5-58  all other applications for writ of mandamus docketed in said court.
   5-59        (c)  If the attorney general files an objection under
   5-60  Subsection (b), the court may, with the agreement of the parties to
   5-61  the settlement agreement, permit the payment of any other sums due
   5-62  to be paid under said agreement by parties other than the state
   5-63  while the objection of the attorney general is pending
   5-64  adjudication.
   5-65        (d)  If a suit involving an eligible <medical> malpractice
   5-66  claim is imminently scheduled for jury trial or alternative dispute
   5-67  resolution, or if the defendant seeking indemnity is subject to a
   5-68  time limit under the Stowers Doctrine to respond to a settlement
   5-69  proposal, or is being tried before a jury, and settlement
   5-70  negotiations are ongoing between the health care professional, <or>
    6-1  health center, health clinic, or hospital and any claimant, either
    6-2  of those parties may request the court to require the attorney
    6-3  general or his designee to assign an attorney to monitor such
    6-4  negotiations so that if a settlement agreement is reached between
    6-5  the parties, the attorney so assigned by the attorney general can
    6-6  immediately advise the court of any objection, in which event the
    6-7  hearing described in Subsection (b) regarding the reasonableness of
    6-8  the settlement amount shall be held immediately after the
    6-9  settlement agreement is reduced to writing or announced on the
   6-10  record in open court, so that the trial court may render its
   6-11  determination before the petit jury or jury panel is discharged.
   6-12        (e)  Except to the extent that the attorney general is
   6-13  authorized under this section to object to the reasonableness of a
   6-14  settlement, the attorney general shall not be authorized to
   6-15  intervene in any court proceeding involving an eligible <medical>
   6-16  malpractice claim.  The insurer for the health care professional,
   6-17  <or> health center, health clinic, or hospital shall be in charge
   6-18  of the defense of any such claim.
   6-19        (f)  Upon final disposition of an eligible <medical>
   6-20  malpractice claim by settlement or judgment, funds shall be paid by
   6-21  the comptroller on vouchers that shall be promptly prepared,
   6-22  verified, and signed by the attorney general.
   6-23        Sec. 110.007.  EXPIRATION.  Unless continued in existence,
   6-24  this chapter expires September 1, 1997 <1995>.
   6-25        SECTION 3.  (a)  Section 2 of this Act applies to any cause
   6-26  of action in which no final judgment has been entered prior to the
   6-27  effective date of this Act.
   6-28        (b)  Section 1 of this Act applies only to professional
   6-29  liability insurance policies delivered, issued for delivery, or
   6-30  renewed on or after January 1, 1994.  Policies delivered, issued
   6-31  for delivery, or renewed before January 1, 1994, are governed by
   6-32  the law that existed immediately before the effective date of this
   6-33  Act, and that law is continued in effect for that purpose.
   6-34        SECTION 4.  This Act takes effect September 1, 1993.
   6-35        SECTION 5.  The importance of this legislation and the
   6-36  crowded condition of the calendars in both houses create an
   6-37  emergency and an imperative public necessity that the
   6-38  constitutional rule requiring bills to be read on three several
   6-39  days in each house be suspended, and this rule is hereby suspended.
   6-40                               * * * * *
   6-41                                                         Austin,
   6-42  Texas
   6-43                                                         May 5, 1993
   6-44  Hon. Bob Bullock
   6-45  President of the Senate
   6-46  Sir:
   6-47  We, your Committee on Economic Development to which was referred
   6-48  S.B. No. 1410, have had the same under consideration, and I am
   6-49  instructed to report it back to the Senate with the recommendation
   6-50  that it do not pass, but that the Committee Substitute adopted in
   6-51  lieu thereof do pass and be printed.
   6-52                                                         Parker,
   6-53  Chairman
   6-54                               * * * * *
   6-55                               WITNESSES
   6-56                                                  FOR   AGAINST  ON
   6-57  ___________________________________________________________________
   6-58  Name:  Edwin H. Fisher, Jr.                      x
   6-59  Representing:  The Medical Protective Co.
   6-60  City:  Ft. Wayne
   6-61  -------------------------------------------------------------------
   6-62  Name:  Bob Fields                                x
   6-63  Representing:  TX Medical Liability Trust
   6-64  City:  Austin
   6-65  -------------------------------------------------------------------