By Wohlgemuth                                         H.B. No. 3437
         77R6747 DLF-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the admissibility of certain evidence in civil actions
 1-3     against nursing institutions.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. Subchapter B, Chapter 32, Human Resources Code, is
 1-6     amended by adding Section 32.053 to read as follows:
 1-7           Sec. 32.053.  ADMISSIBILITY OF CERTAIN EVIDENCE RELATING TO
 1-8     NURSING INSTITUTIONS. (a)  Except as provided by Subsection (b),
 1-9     the following are not admissible as evidence in a civil action:
1-10                 (1)  any finding by the department that an institution
1-11     licensed under Chapter 242, Health and Safety Code, has violated a
1-12     standard for participation in the medical assistance program under
1-13     this chapter; or
1-14                 (2)  the fact of the assessment of a monetary penalty
1-15     against an institution under Section 32.021 or the payment of the
1-16     penalty by an institution.
1-17           (b)  A finding described by Subsection (a)(1) or the fact of
1-18     assessment or payment of a penalty described by Subsection (a)(2)
1-19     is admissible in a civil action only if:
1-20                 (1)  the finding or the assessment of the monetary
1-21     penalty has been affirmed by the entry of a final, adjudicated
1-22     order of the department, following formal appeal, that is not
1-23     otherwise subject to appeal;
1-24                 (2)  the finding or the assessment of the monetary
 2-1     penalty directly involves a resident whose care is the subject of
 2-2     the civil action in which the finding or fact is sought to be
 2-3     admitted as evidence; and
 2-4                 (3)  the finding or fact is otherwise admissible under
 2-5     the Texas Rules of Evidence.
 2-6           (c)  This section does not apply in an enforcement action in
 2-7     which the state or an agency or political subdivision of the state
 2-8     is a party.
 2-9           SECTION 2. Subchapter A, Chapter 242, Health and Safety Code,
2-10     is amended by adding Section 242.017 to read as follows:
2-11           Sec. 242.017.  ADMISSIBILITY OF CERTAIN EVIDENCE IN CIVIL
2-12     ACTIONS. (a) Except as provided by Subsection (b), the following
2-13     are not admissible as evidence in a civil action:
2-14                 (1)  any finding by the department that an institution
2-15     has violated this chapter or a rule adopted under this chapter; or
2-16                 (2)  the fact of the assessment of a penalty against an
2-17     institution under this chapter or the payment of the penalty by an
2-18     institution.
2-19           (b)  A finding described by Subsection (a)(1) or the fact of
2-20     assessment or payment of a penalty described by Subsection (a)(2)
2-21     is admissible in a civil action only if:
2-22                 (1)  the finding or the assessment of the penalty has
2-23     been affirmed by the entry of a final, adjudicated order of the
2-24     department, following formal appeal, that is not otherwise subject
2-25     to appeal;
2-26                 (2)  the finding or the assessment of the penalty
2-27     directly involves a resident whose care is the subject of the civil
 3-1     action in which the finding or fact is sought to be admitted as
 3-2     evidence; and
 3-3                 (3)  the finding or fact is otherwise admissible under
 3-4     the Texas Rules of Evidence.
 3-5           (c)  This section does not apply in an enforcement action in
 3-6     which the state or an agency or political subdivision of the state
 3-7     is a party.
 3-8           SECTION 3. Sections 32.021(i), (j), and (k), Human Resources
 3-9     Code, are repealed.
3-10           SECTION 4. (a)  This Act is intended to emphasize the lack of
3-11     admissibility in a civil action of documents relating to:
3-12                 (1)  a survey, inspection, or investigation conducted
3-13     with respect to an institution that is licensed under Chapter 242,
3-14     Health and Safety Code; or
3-15                 (2)  the licensing of an institution under Chapter 242,
3-16     Health and Safety Code.
3-17           (b)  The change in law made by this Act may not be construed
3-18     to mean that the documents described by Subsection (a)  of this
3-19     section were admissible in civil actions before the effective date
3-20     of this Act.
3-21           SECTION 5.  This Act takes effect immediately if it receives
3-22     a vote of two-thirds of all the members elected to each house, as
3-23     provided by Section 39, Article III, Texas Constitution.  If this
3-24     Act does not receive the vote necessary for immediate effect, this
3-25     Act takes effect September 1, 2001.