BG C.S.S.B. 443 75(R) BILL ANALYSIS
PUBLIC HEALTH
C.S.S.B. 443
By: Moncrief (Naishtat)
4-17-97
Committee Report (Substituted)
BACKGROUND
Currently, Texas law provides no remedy for individuals who are wrongly
referred to psychiatric facilities and receive medically unnecessary
services. An interim study prior to the 73rd Legislature uncovered
significant abuses by psychiatric facilities, including fraudulent
referrals and admissions of individuals not in need of psychiatric
services. Although the legislature passed several psychiatric hospital
reform measures during the 73rd legislative session, problems remain
concerning the medical records of those individuals.
PURPOSE
C.S.S.B. 443 provides a mechanism whereby persons can expunge information
regarding medically unnecessary psychiatric admissions and services from
their medical records. The bill establishes the right to petition a court
for an order to seal or destroy records related to certain admissions to a
mental health facility; and it provides a criminal penalty.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Title 6, Civil Practice and Remedies Code, by adding
Chapter 144, entitled "DESTRUCTION OF CERTAIN RECORDS" as follows:
Sec. 144.001. DEFINITIONS. Defines "former mental health patient,"
"record," and "court" as used in this chapter.
Sec. 144.002. SUIT AND ORDER FOR DESTRUCTION OF ADMISSION RECORDS. Allows
a former mental health patient to bring suit for an order that all records
related to the individual's admission to or treatment at a mental health
facility be sealed or destroyed. Provides that if the former mental
patient has attained majority at the time the suit is brought, the person
is entitled to the court order to destroy the records if the court finds,
based on competent medical evidence, that the admission or treatment was
medically unnecessary. Sets forth the procedure regarding suit and order
for destruction of admission records if the former mental patient is a
minor at the time the suit is brought.
Sec. 144.003. PROCEDURE FOR PETITION, NOTICE, HEARING, AND ORDER.
Requires a petitioner to provide a list of each health care provider, as
specified, and other person or facility believed to have possession of a
record subject to sealing or destruction if the court order is granted.
Requires the court to set a hearing and give notice, as specified.
Requires the court to issue an order directing that the records be sent to
the court or otherwise destroyed if found that the petitioner is so
entitled. Requires the court or its clerk to send each person listed in
the petition a certified copy of the order, an order to destroy or return
to the court any information pertaining to the proceedings, and an
explanation of the orders as specified.
Sec. 144.004. ACTIONS FOLLOWING COURT ORDER. Requires a person to delete
all index references identifying the former mental patient as specified
upon receipt of an order issued under this chapter. Requires destruction
of each portion of an identifying record if removal is impracticable, and
notification to the court as specified. Requires the court to destroy all
records presented when all appeals are exhausted.
Sec. 144.005. COURT RECORDS CONCERNING ORDER. Requires the court to
seal records concerning an order and ensure that the court's records are
not open for inspection by any person except the former mental patient or
on further court order, as specified.
Sec. 144.006. COLLATERAL EFFECTS OF ORDER. Allows a former mental
patient who successfully petitions for an order to deny the existence of
any record subject to the order; the existence of the order; and the
admission to a mental health facility or any admission-related treatment
if the records are subject to the order. Provides that a former mental
patient who makes such a denial is not liable for perjury, as specified.
Sec. 144.007. LIMITATION ON CERTAIN LAWSUITS. Prohibits a former mental
patient who successfully petitions a court for an order or a person acting
on the patient's behalf from filing a suit or complaint against a facility
or health care provider an action related to an event or activity that
formed the basis of a record subject to the court's order. Allows a
juvenile former mental patient whose records have been sealed to file an
action or complaint as specified.
Sec. 144.008. DISCLOSURE OF INFORMATION SUBJECT TO ORDER; PENALTY.
Establishes that a person commits a Class B misdemeanor if the person
knows of a former mental patient's admission and of a court order that
relates to that admission, and intentionally releases, or otherwise uses a
record or index reference subject to that order. Establishes that a Class
B misdemeanor is also committed if the person knowingly fails to delete,
seal, destroy, or present to the court a record or index reference as
specified.
Sec. 144.009. APPICABILITY OF OTHER LAW. Establishes that this chapter
supersedes other state law regarding retention or destruction of patient
records.
Sec. 144.010. EXPIRATION OF CERTAIN PROVISIONS. Provides that Sections
144.002, 144.003, and 144.004 expire January 1, 1999.
SECTION 2. Establishes that this Act applies only to actions filed on or
before January 1, 1999. Any action that is pending on that date is
governed by Chapter 144, Civil Practice and Remedies Code, as existed
immediately before the expiration as provided by Sec. 144.009 and that law
is continued in effect for that purpose.
SECTION 3. Establishes September 1, 1997 as the effective date of this
Act and that it is applicable to records created before, on or after that
date.
SECTION 4. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The House Committee Substitute of Senate Bill 443 is different from the
engrossed version of Senate Bill 443 in that it has been drafted by
Legislative Council. The committee substitute does not include any
substantive changes.