By: Sibley, Nelson, S.B. No. 386
Harris, Madla, Cain
97S0206/1
A BILL TO BE ENTITLED
AN ACT
1-1 relating to health care liability claims.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Title 4, Civil Practice and Remedies Code, is
1-4 amended by adding Chapter 88 to read as follows:
1-5 CHAPTER 88. HEALTH CARE LIABILITY
1-6 Sec. 88.001. DEFINITIONS. In this chapter:
1-7 (1) "Appropriate and medically necessary" means the
1-8 standard for health care services as determined by physicians and
1-9 health care providers in accordance with the prevailing practices
1-10 and standards of the medical profession and community.
1-11 (2) "Enrollee" means an individual who is enrolled in
1-12 a health care plan, including covered dependents.
1-13 (3) "Health care plan" means any plan whereby any
1-14 person undertakes to provide, arrange for, pay for, or reimburse
1-15 any part of the cost of any health care services.
1-16 (4) "Health care provider" means a person or entity as
1-17 defined in Section 1.03(a)(3), Medical Liability and Insurance
1-18 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
1-19 Statutes).
1-20 (5) "Health care treatment decision" means a
1-21 determination made when medical services are actually provided by
1-22 the health care plan and a decision which affects the quality of
1-23 the diagnosis, care, or treatment provided to the plan's insureds
2-1 or enrollees.
2-2 (6) "Health insurance carrier" means a company that is
2-3 authorized to issue a policy of accident and sickness insurance
2-4 under Section 1, Chapter 397, Acts of the 54th Legislature, 1955
2-5 (Article 3.70-1, Vernon's Texas Insurance Code).
2-6 (7) "Health maintenance organization" means an
2-7 organization licensed under the Texas Health Maintenance
2-8 Organization Act (Chapter 20A, Vernon's Texas Insurance Code).
2-9 (8) "Managed care entity" means any entity which
2-10 delivers, administers, or assumes risk for health care services
2-11 with systems or techniques to control or influence the quality,
2-12 accessibility, utilization, or costs and prices of such services
2-13 to a defined enrollee population.
2-14 (9) "Physician" means:
2-15 (A) an individual licensed to practice medicine
2-16 in this state;
2-17 (B) a professional association organized under
2-18 the Texas Professional Association Act (Article 1528f, Vernon's
2-19 Texas Civil Statutes) or a nonprofit health corporation certified
2-20 under Section 5.01, Medical Practice Act (Article 4495b, Vernon's
2-21 Texas Civil Statutes); or
2-22 (C) another person wholly owned by physicians.
2-23 Sec. 88.002. APPLICATION. (a) A health insurance carrier,
2-24 health maintenance organization, or other managed care entity for a
2-25 health care plan has the duty to exercise ordinary care when making
3-1 health care treatment decisions which affect the diagnosis, care,
3-2 or treatment of an enrollee.
3-3 (b) A health insurance carrier, health maintenance
3-4 organization, or other managed care entity for a health care plan
3-5 is also responsible for the decisions of its employees, agents,
3-6 ostensible agents, or representatives who are acting on its behalf
3-7 and over whom it has the right to exercise influence or control, or
3-8 has actually exercised influence or control, respecting decisions
3-9 which may affect the quality of the diagnosis, care, or treatment
3-10 provided to its enrollees.
3-11 (c) The standards in Subsections (a) and (b) create no
3-12 obligation on the part of the health insurance carrier, health
3-13 maintenance organization, or other managed care entity to provide
3-14 treatment to an enrollee which is not covered by the health care
3-15 plan of the entity.
3-16 (d) A health insurance carrier, health maintenance
3-17 organization, or managed care entity may not remove a physician or
3-18 health care provider from its plan or refuse to renew the physician
3-19 or health care provider with its plan for advocating on behalf of
3-20 an enrollee for appropriate and medically necessary health care for
3-21 the enrollee.
3-22 (e) A health insurance carrier, health maintenance
3-23 organization, or other managed care entity may not enter into a
3-24 contract with a physician, hospital, or other health care provider
3-25 or pharmaceutical company which includes an indemnification or hold
4-1 harmless clause for the acts or conduct of the health insurance
4-2 carrier, health maintenance organization, or other managed care
4-3 entity. Any such indemnification or hold harmless clause in an
4-4 existing contract is hereby declared void.
4-5 (f) Nothing in any law of this state prohibiting a health
4-6 insurance carrier, health maintenance organization, or other
4-7 managed care entity from practicing medicine or being licensed to
4-8 practice medicine may be asserted as a defense by such health
4-9 insurance carrier, health maintenance organization, or other
4-10 managed care entity in an action brought against it pursuant to
4-11 this section or any other law.
4-12 SECTION 2. This Act takes effect September 1, 1997, and
4-13 applies only to a cause of action that accrues on or after that
4-14 date. An action that accrues before the effective date of this Act
4-15 is governed by the law applicable to the action immediately before
4-16 the effective date of this Act, and that law is continued in effect
4-17 for that purpose.
4-18 SECTION 3. The importance of this legislation and the
4-19 crowded condition of the calendars in both houses create an
4-20 emergency and an imperative public necessity that the
4-21 constitutional rule requiring bills to be read on three several
4-22 days in each house be suspended, and this rule is hereby suspended.