75R11575 E By Moncrief S.B. No. 443 Substitute the following for S.B. No. 443: By Berlanga C.S.S.B. No. 443 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to a right to petition a court for an order to seal or 1-3 destroy records related to certain admissions to a mental health 1-4 facility; providing a criminal penalty. 1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-6 SECTION 1. Title 6, Civil Practice and Remedies Code, is 1-7 amended by adding Chapter 144 to read as follows: 1-8 CHAPTER 144. DESTRUCTION OF CERTAIN RECORDS 1-9 Sec. 144.001. DEFINITIONS. In this chapter: 1-10 (1) "Former mental health patient" means an individual 1-11 who: 1-12 (A) between January 1, 1985, and December 31, 1-13 1993, was admitted to a mental health facility that has pled 1-14 guilty, or whose parent or affiliate corporation has so pled, to 1-15 unlawfully conspiring to offer and pay remuneration to any person 1-16 to induce that person to refer individuals for services to a mental 1-17 health facility; and 1-18 (B) has been released from that mental health 1-19 facility; but 1-20 (C) was not admitted to the facility on the 1-21 basis of a court proceeding that included a commitment hearing that 1-22 was on the record. 1-23 (2) "Record" includes a medical record. 1-24 (3) "Court" means a district or statutory probate 2-1 court. 2-2 Sec. 144.002. SUIT AND ORDER FOR DESTRUCTION OF ADMISSION 2-3 RECORDS. (a) A former mental health patient may bring suit for an 2-4 order that all records related to the individual's admission to or 2-5 treatment at a mental health facility be sealed or destroyed. 2-6 (b) If the former mental health patient has attained 2-7 majority at the time the suit is brought, the person is entitled to 2-8 the court order to destroy the records if the court finds, based on 2-9 competent medical evidence, that the admission or treatment for 2-10 which the destruction of records is sought was not medically 2-11 necessary. 2-12 (c) If the former mental health patient is a minor at the 2-13 time the suit is brought, the person is entitled to the court order 2-14 to seal the records until the second anniversary of the person 2-15 attaining majority if the court finds, based on competent medical 2-16 evidence, that the admission or treatment for which the sealing of 2-17 records is sought was not medically necessary. Records sealed 2-18 pursuant to this subsection are not open for inspection by any 2-19 person except the former mental health patient. If, after 2-20 attaining majority, the person does not petition the court to not 2-21 destroy the records, the court shall order destruction of the 2-22 sealed records on the second anniversary of the person attaining 2-23 majority. 2-24 Sec. 144.003. PROCEDURE FOR PETITION, NOTICE, HEARING, AND 2-25 ORDER. (a) A petitioner under this chapter shall provide a list 2-26 of each health care provider, agency, hospital, and other person or 2-27 facility that the petitioner has reason to believe has possession 3-1 of a record subject to sealing or destruction if the court orders 3-2 the sealing or destruction under Section 144.002. 3-3 (b) The court shall: 3-4 (1) set a hearing on the petition; and 3-5 (2) give to each person the petitioner lists in the 3-6 petition reasonable notice of the hearing. 3-7 (c) If after the hearing the court finds that the petitioner 3-8 is entitled to an order directing that records be sealed or 3-9 destroyed: 3-10 (1) the court shall issue an order directing that the 3-11 records be sent to the court or otherwise sealed or destroyed, as 3-12 appropriate, in accordance with Section 144.004; and 3-13 (2) the court or the clerk of the court shall send to 3-14 each person the petitioner lists in the petition: 3-15 (A) a certified copy of the order; 3-16 (B) an order that any record or information 3-17 regarding the proceedings to obtain the order be sealed or 3-18 destroyed, as appropriate, or sent to the court; and 3-19 (C) an explanation of the effect of the order. 3-20 Sec. 144.004. ACTIONS FOLLOWING COURT ORDER. On a person's 3-21 receipt of an order issued under this chapter, the person shall 3-22 delete all index references that identify the former mental patient 3-23 in relation to the admission to a mental health facility from the 3-24 person's records and record storage systems and shall: 3-25 (1) remove each record that identifies the former 3-26 mental patient in relation to the admission and present each record 3-27 to the court; or 4-1 (2) if the removal of the record is impracticable, 4-2 seal or destroy, as appropriate, each portion of a record that 4-3 identifies the former mental patient in relation to the admission 4-4 and notify the court by sworn affidavit of the person's action. 4-5 Sec. 144.005. COURT RECORDS CONCERNING ORDER. The court 4-6 shall seal records concerning an order issued under this chapter 4-7 and ensure that the court's records are not open for inspection by 4-8 any person except the former mental patient or on further order of 4-9 the court after notice to the former mental patient and a finding 4-10 of good cause. 4-11 Sec. 144.006. COLLATERAL EFFECTS OF ORDER. (a) A former 4-12 mental patient who successfully petitions for an order under this 4-13 chapter may deny: 4-14 (1) the existence of any record subject to the order; 4-15 (2) the existence of the order itself; 4-16 (3) the occurrence of the former mental patient's 4-17 admission to a mental health facility if the records of the 4-18 admission are subject to the order; and 4-19 (4) the occurrence of any treatment related to the 4-20 admission if the records of the admission are subject to the order. 4-21 (b) A former mental patient who makes a denial under 4-22 Subsection (a) is not liable for a civil or criminal penalty for 4-23 perjury. 4-24 Sec. 144.007. LIMITATION ON CERTAIN LAWSUITS. (a) Except 4-25 as provided by Subsection (b), a former mental patient who 4-26 successfully petitions a court for an order under this chapter or a 4-27 person acting on the former mental patient's behalf may not file an 5-1 action against a facility or health care provider related to an 5-2 event or activity that formed the basis of a record subject to the 5-3 court's order. 5-4 (b) A juvenile former mental health patient whose records 5-5 have been sealed under this chapter may file an action or complaint 5-6 at any time before the records have been destroyed under Section 5-7 144.002(c). 5-8 Sec. 144.008. DISCLOSURE OF INFORMATION SUBJECT TO ORDER; 5-9 PENALTY. (a) A person commits an offense if the person: 5-10 (1) knows of a former mental patient's admission to a 5-11 mental health facility; 5-12 (2) knows of a court order issued under this chapter 5-13 that relates to that admission; and 5-14 (3) intentionally releases, disseminates, publishes, 5-15 or otherwise uses a record or index reference subject to that 5-16 order. 5-17 (b) A person commits an offense if the person: 5-18 (1) knowingly fails to delete, seal, destroy, or 5-19 present to the court a record or index reference subject to an 5-20 order issued under this chapter; and 5-21 (2) knows or should know that the record or index 5-22 reference is subject to that order. 5-23 (c) An offense under this chapter is a Class B misdemeanor. 5-24 Sec. 144.009. APPLICABILITY OF OTHER LAW. This chapter 5-25 supersedes other state law regarding the retention or destruction 5-26 of patient records. 5-27 Sec. 144.010. EXPIRATION OF CERTAIN PROVISIONS. Sections 6-1 144.002, 144.003, and 144.004 expire January 1, 1999. 6-2 SECTION 2. The changes in law made by this Act apply only to 6-3 an action filed on or before January 1, 1999. An action filed on 6-4 or before January 1, 1999, that is pending on January 1, 1999, is 6-5 governed by Chapter 144, Civil Practice and Remedies Code, as that 6-6 chapter existed immediately before the expiration of Sections 6-7 144.002, 144.003, and 144.004 of that chapter, and that law is 6-8 continued in effect for that purpose. 6-9 SECTION 3. This Act takes effect September 1, 1997, and 6-10 applies to a record created before, on, or after that date. 6-11 SECTION 4. The importance of this legislation and the 6-12 crowded condition of the calendars in both houses create an 6-13 emergency and an imperative public necessity that the 6-14 constitutional rule requiring bills to be read on three several 6-15 days in each house be suspended, and this rule is hereby suspended.