By Eiland H.B. No. 3476
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to admissibility of nursing facility survey and license
1-3 documents.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 32.021, Human Resources Code, is amended
1-6 to read as follows:
1-7 (i) [Except as provided by Subsections (j) and (k),] a
1-8 department survey, complaint investigation, incident investigation,
1-9 [or] survey report or any other department generated document
1-10 containing findings (hereinafter collectively referred to as
1-11 findings) documenting [that documents] that an institution has
1-12 violated a standard for participation in the state Medicaid
1-13 program, or the assessment or payment of a monetary penalty [by the
1-14 department or the payment of a monetary penalty by the
1-15 institution,] under this section, is not admissible as evidence in
1-16 a civil action [to prove that the institution has committed a
1-17 violation] unless:
1-18 (1) within the two (2) years of the department's
1-19 notice of the findings, the findings have been affirmed by the
1-20 entry of a final, adjudicated and unappealable order of the
1-21 department after a formal appeal;
1-22 (2) the findings directly involve a resident whose
1-23 care is the subject of the civil action in which the information is
2-1 sought to be admitted or involve substantially similar conduct that
2-2 has occurred at the institution within the previous two (2) years;
2-3 and
2-4 (3) the findings are otherwise admissible under the
2-5 Texas Rules of Civil Evidence.
2-6 This subsection does not apply in an action or related
2-7 proceeding in which the state or an agency or political subdivision
2-8 of the state is a party.
2-9 [(j) Subsection (i) does not:]
2-10 [(1) apply to an enforcement action or related
2-11 proceeding in which the state or an agency or political subdivision
2-12 of the state is a party;]
2-13 [(2) prohibit or limit the testimony of a department
2-14 surveyor or investigator in a civil action; or]
2-15 [(3) bar the admission into evidence in a civil action
2-16 of a written finding, survey report, complaint investigation,
2-17 incident investigation, or inspection report of the department that
2-18 is offered:]
2-19 [(A) to establish warning or notice to an
2-20 institution of a relevant finding; or]
2-21 [(B) under any rule or evidentiary predicate of
2-22 the Texas Rules of Civil Evidence.]
2-23 [(k) A department surveyor or investigator may testify in a
2-24 civil action as to observations, factual findings, conclusions, or
2-25 violations of requirements for licensure or for certification for
2-26 participation in the state Medicaid program that were made in the
3-1 discharge of official duties for the department, in accordance with
3-2 the Texas Rules of Civil Evidence.]
3-3 SECTION 2. Section 242.049, Health and Safety Code, is
3-4 amended by adding subsection (j) to read as follows:
3-5 (j) A department survey, complaint investigation, incident
3-6 investigation, survey report or any other department generated
3-7 document containing findings (hereinafter collectively referred to
3-8 as findings) documenting that an institution has violated this
3-9 chapter or a rule adopted under this chapter, or the assessment or
3-10 payment of any penalty under this chapter, is not admissible as
3-11 evidence in a civil action unless:
3-12 (1) within the two (2) years of the department's
3-13 notice of the findings, the findings have been affirmed by the
3-14 entry of a final, adjudicated and unappealable order of the
3-15 department after a formal appeal;
3-16 (2) the findings directly involve a resident whose
3-17 care is the subject of the civil action in which the information is
3-18 sought to be admitted or involve substantially similar conduct that
3-19 has occurred at the institution within the previous two (2) years;
3-20 and
3-21 (3) the findings are otherwise admissible under the
3-22 Texas Rules of Civil Evidence.
3-23 This subsection does not apply in an action or related
3-24 proceeding in which the state or an agency or political subdivision
3-25 of the state is a party.
3-26 SECTION 3. This Act takes effect September 1, 2001, and
4-1 applies only to an action filed on or after that date. An action
4-2 filed before September 1, 2001, is governed by the law in effect
4-3 immediately before that date, and that law is continued in effect
4-4 for that purpose.