AN ACT
1-1 relating to a right to petition a court for an order to seal or
1-2 destroy records related to certain admissions to a mental health
1-3 facility; providing a criminal penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 6, Civil Practice and Remedies Code, is
1-6 amended by adding Chapter 144 to read as follows:
1-7 CHAPTER 144. DESTRUCTION OF CERTAIN RECORDS
1-8 Sec. 144.001. DEFINITIONS. In this chapter:
1-9 (1) "Former mental health patient" means an individual
1-10 who:
1-11 (A) between January 1, 1986, and December 31,
1-12 1993, was admitted to a mental health facility that has pled
1-13 guilty, or whose parent or affiliate corporation has so pled, to
1-14 unlawfully conspiring to offer and pay remuneration to any person
1-15 to induce that person to refer individuals for services to a mental
1-16 health facility; and
1-17 (B) has been released from that mental health
1-18 facility; but
1-19 (C) was not admitted to the facility on the
1-20 basis of a court proceeding that included a commitment hearing that
1-21 was on the record.
1-22 (2) "Record" means a medical record:
1-23 (A) that a federal statute or regulation does
2-1 not require to be retained, maintained, or preserved; or
2-2 (B) for which the requirement under a federal
2-3 statute or regulation to retain, maintain, or preserve the record
2-4 has expired.
2-5 (3) "Court" means a district or statutory probate
2-6 court.
2-7 Sec. 144.002. SUIT AND ORDER FOR DESTRUCTION OF ADMISSION
2-8 RECORDS. (a) A former mental health patient may bring suit for an
2-9 order that all records related to the individual's admission to or
2-10 treatment at a mental health facility described by Section
2-11 144.001(1)(A) be sealed or destroyed.
2-12 (b) If the former mental health patient has attained
2-13 majority at the time the suit is brought, the person is entitled to
2-14 the court order to destroy the records if the court finds, based on
2-15 competent medical evidence, that the admission or treatment for
2-16 which the destruction of records is sought was not medically
2-17 necessary.
2-18 (c) If the former mental health patient is a minor at the
2-19 time the suit is brought, the person is entitled to the court order
2-20 to seal the records until the second anniversary of the person
2-21 attaining majority if the court finds, based on competent medical
2-22 evidence, that the admission or treatment for which the sealing of
2-23 records is sought was not medically necessary. Records sealed
2-24 pursuant to this subsection are not open for inspection by any
2-25 person except:
3-1 (1) the former mental health patient; or
3-2 (2) the health care provider, the mental health
3-3 facility, or the owner, operator, parent, or affiliate of the
3-4 mental health facility, after giving notice to the patient.
3-5 (d) If, after attaining majority, the person does not
3-6 petition the court to not destroy the records, the court shall
3-7 order destruction of the sealed records on the second anniversary
3-8 of the person attaining majority.
3-9 Sec. 144.003. PROCEDURE FOR PETITION, NOTICE, HEARING, AND
3-10 ORDER. (a) A petitioner under this chapter shall provide a list
3-11 of each health care provider, agency, hospital, and other person or
3-12 facility that the petitioner has reason to believe has possession
3-13 of a record subject to sealing or destruction if the court orders
3-14 the sealing or destruction under Section 144.002.
3-15 (b) The court shall:
3-16 (1) set a hearing on the petition; and
3-17 (2) give to each person the petitioner lists in the
3-18 petition reasonable notice of the hearing.
3-19 (c) If after the hearing the court finds that the petitioner
3-20 is entitled to an order directing that records be sealed or
3-21 destroyed:
3-22 (1) the court shall issue an order directing that the
3-23 records be sent to the court or otherwise sealed or destroyed, as
3-24 appropriate, in accordance with Section 144.004; and
3-25 (2) the court or the clerk of the court shall send to
4-1 each person the petitioner lists in the petition:
4-2 (A) a certified copy of the order;
4-3 (B) an order that any record or information
4-4 regarding the proceedings to obtain the order be sealed or
4-5 destroyed, as appropriate, or sent to the court; and
4-6 (C) an explanation of the effect of the order.
4-7 Sec. 144.004. ACTIONS FOLLOWING COURT ORDER. On a person's
4-8 receipt of an order issued under this chapter, the person shall
4-9 delete all discovered index references that identify the former
4-10 mental patient in relation to the admission to a mental health
4-11 facility from the person's records and record storage systems and
4-12 shall:
4-13 (1) remove each record that identifies the former
4-14 mental patient in relation to the admission and present each record
4-15 to the court; or
4-16 (2) if the removal of the record is impracticable, as
4-17 appropriate and reasonably feasible, seal or destroy each portion
4-18 of a record that identifies the former mental patient in relation
4-19 to the admission and notify the court by sworn affidavit of the
4-20 person's action.
4-21 Sec. 144.005. COURT RECORDS CONCERNING ORDER. The court
4-22 shall seal records concerning an order issued under this chapter
4-23 and ensure that the court's records are not open for inspection by
4-24 any person except the former mental patient or on further order of
4-25 the court after notice to the former mental patient and a finding
5-1 of good cause. The institution of a suit or bringing of a claim by
5-2 or on behalf of the former mental patient or the former patient's
5-3 assignee or insurer constitutes good cause.
5-4 Sec. 144.006. COLLATERAL EFFECTS OF ORDER. (a) A former
5-5 mental health patient who successfully petitions for an order under
5-6 this chapter and a facility or health care provider, or the owner,
5-7 operator, parent, or affiliate of a facility or health care
5-8 provider, that is subject to an order under this chapter may deny:
5-9 (1) the existence of any record subject to the order;
5-10 (2) the existence of the order itself;
5-11 (3) the occurrence of the former mental patient's
5-12 admission to a mental health facility if the records of the
5-13 admission are subject to the order; and
5-14 (4) the occurrence of any treatment related to the
5-15 admission if the records of the admission are subject to the order.
5-16 (b) A former mental health patient who makes a denial under
5-17 Subsection (a) or a facility or health care provider, or the owner,
5-18 operator, parent, or affiliate of a facility or health care
5-19 provider, that is subject to an order under this chapter and that
5-20 makes a denial under Subsection (a) is not liable for a civil or
5-21 criminal penalty for perjury.
5-22 Sec. 144.007. LIMITATION ON CERTAIN LAWSUITS. (a) Except
5-23 as provided by Subsection (b), a former mental patient who
5-24 successfully petitions a court for an order under this chapter or a
5-25 person acting on the former mental patient's behalf may not file an
6-1 action against a facility or health care provider, or the owner,
6-2 operator, parent, or affiliate of a facility or health care
6-3 provider, related to an event or activity that formed the basis of
6-4 a record subject to the court's order.
6-5 (b) A juvenile former mental health patient whose records
6-6 have been sealed under this chapter may file an action or complaint
6-7 at any time before the records have been destroyed under Section
6-8 144.002(c).
6-9 (c) A finding made under this chapter is not admissible
6-10 against any party in litigation to establish liability for damages,
6-11 expenses, or other relief as an alleged result of any treatment or
6-12 admission.
6-13 Sec. 144.008. DISCLOSURE OF INFORMATION SUBJECT TO ORDER;
6-14 PENALTY. (a) A person commits an offense if the person:
6-15 (1) knows of a former mental patient's admission to a
6-16 mental health facility;
6-17 (2) knows of a court order issued under this chapter
6-18 that relates to that admission; and
6-19 (3) intentionally releases, disseminates, or publishes
6-20 a record or index reference subject to that order.
6-21 (b) A person commits an offense if the person:
6-22 (1) knowingly fails to delete, seal, destroy, or
6-23 present to the court a record or index reference subject to an
6-24 order issued under this chapter; and
6-25 (2) knows or should know that the record or index
7-1 reference is subject to that order.
7-2 (c) An offense under this chapter is a Class B misdemeanor.
7-3 (d) This chapter does not prohibit an attorney or insurer of
7-4 a provider or patient from retaining or communicating
7-5 confidentially about a privileged document as necessary to provide
7-6 legal advice regarding an actual or potential claim or issue. The
7-7 document or communication remains privileged and not subject to a
7-8 subpoena.
7-9 Sec. 144.009. APPLICABILITY OF OTHER LAW. This chapter
7-10 supersedes other state law regarding the retention or destruction
7-11 of patient records.
7-12 Sec. 144.010. EXPIRATION OF CERTAIN PROVISIONS. Sections
7-13 144.002, 144.003, and 144.004 expire January 1, 1999.
7-14 SECTION 2. The changes in law made by this Act apply only to
7-15 an action filed under Chapter 144, Civil Practice and Remedies
7-16 Code, as added by this Act, between September 1, 1997, and January
7-17 1, 1999. An action filed on or before January 1, 1999, that is
7-18 pending on January 1, 1999, is governed by Chapter 144, Civil
7-19 Practice and Remedies Code, as that chapter existed immediately
7-20 before the expiration of Sections 144.002, 144.003, and 144.004 of
7-21 that chapter, and that law is continued in effect for that purpose.
7-22 SECTION 3. This Act takes effect September 1, 1997, and
7-23 applies to a record created between January 1, 1986, and December
7-24 31, 1993, or a subsequently created record that relates directly to
7-25 a former mental patient's admission to or treatment at a mental
8-1 health facility between those dates, and to which Chapter 144,
8-2 Civil Practice and Remedies Code, as added by this Act, applies.
8-3 SECTION 4. The importance of this legislation and the
8-4 crowded condition of the calendars in both houses create an
8-5 emergency and an imperative public necessity that the
8-6 constitutional rule requiring bills to be read on three several
8-7 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 443 passed the Senate on
March 26, 1997, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendments on May 27, 1997, by a
viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 443 passed the House, with
amendments, on May 25, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor