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.