By:  Madla                                                        S.B. No. 1241

A BILL TO BE ENTITLED
AN ACT
relating to financial arrangements between referring health care providers and providers of designated health services in rural areas; providing penalties. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS SECTION 1. Subtitle A, Title 3, Occupations Code is amended by adding Chapter 111 to read as follows:
CHAPTER 111. SELF-REFERRAL BY HEALTH CARE PROVIDERS
Sec. 111.001. SHORT TITLE. This chapter may be cited as the "Rural Access to Health Care Act." Sec. 111.002. APPLICATION OF CHAPTER. This chapter applies only to an entity located in a county with a population of 50,000 or less. Sec. 111.003. LEGISLATIVE FINDINGS. (a) It is recognized by the Legislature that the referral of a patient by a health care provider of designated health services in which the referring health care provider has an interest represents a potential conflict of interest. (b) The Legislature finds these referral practices may limit or eliminate access to health care services in rural areas, may result in over-utilization of health care services, may increase costs to the health care system, and may adversely affect the quality of health care. (c) The Legislature also recognizes, however, that it may be necessary under certain market conditions for providers to own entities providing health care services, and to refer patients to such entities, as long as certain safeguards are present in the arrangement. (d) It is the intent of the Legislature to provide guidance to health care providers regarding prohibited patient referrals between health care providers and entities providing health care services in rural communities and to protect the people of rural Texas from unnecessary and costly health care expenditures. Sec. 111.004. DEFINITIONS. For the purpose of this chapter, the word, phrase, or term: (1) "Designated health services" means: (A) ambulatory surgery center services; (B) clinical laboratory services; (C) diagnostic imaging services; (D) dialysis services; (E) durable medical equipment and supplies; (F) endoscopic services; (G) electromyogram and other neurological testing; (H) home health services; (I) inpatient and outpatient hospital services; (J) lithotripsy; (K) occupational therapy services; (L) outpatient prescription drugs; (M) parental and enteral nutrients, equipment and supplies; (N) physical rehabilitation and therapy services; (O) prosthetics, orthotics, and prosthetic devices and supplies; (P) radiation oncology and chemotherapy oncology services; and (Q) speech-language pathology services. (2) "Diagnostic imaging services" means general radiography, magnetic resonance imaging, nuclear medicine, angiography, computed tomography, positron emission tomography, and ultrasound to include cardiac echo and obstetrical ultrasound. (3) "Entity" means a sole proprietorship, partnership, corporation, foundation, trust, unincorporated association or other business entity. (4) "Health care provider" means any individual or entity licensed as a health professional or authorized to practice in health care under Title 3, Subtitles B and C of this Code. (5) "Immediate family member" means a health care provider's spouse, child, child's spouse, grandchild, grandchild's spouse, parent, parent-in-law, or sibling. (6) "Investment interest" means an equity or debt security issued by an entity, including, without limitation, shares of stock in a corporation, units or other interests in a partnership, bonds, debentures, notes, or other equity interests or debt instruments; provided, however, that an investment interest in real property resulting in a landlord-tenant relationship between the health care provider and the entity in which the equity interest is held, unless the rent is determined, in whole or in part, by the business volume or profitability of the tenant or exceeds fair market value shall be excepted from this definition. (7) "Investor" means a person or entity owning a legal or beneficial ownership or investment interest, directly or indirectly, including, without limitation, through an immediate family member, trust, or another entity related to the investor within the meaning of 42 C.F.R. Section 413.17, in an entity. (8) "Licensing authority" means the department, board, office or other agency of the state that regulates health care providers that are subject to this chapter. (9) "Patient" means a person who receives a physical examination, evaluation, diagnosis, or treatment by a health care provider. (10) "Payor" means an entity, including a third party payor or other insurance company, a health maintenance organization or another organization that pays a health care provider to provide designated health services. (11) "Referral" means a request by a health care provider for, or ordering of, designated health care services for a patient. The term does not include the performance of a designated health service for a patient by a health care provider or an entity which provides or supplies the designated health service (i) under the direct supervision of the patient's health care provider; (ii) performed in the same building in which the patient's health care provider operates his or her medical practice; and (iii) where the performance or supply of the designated health service results in a total financial cost to the patient or the patient's payor or third party payor of no more than $250 per year per patient. (12) "Third party payor" means: (A) a company authorized to engage in business involving the payment of money or another thing of value in the event of loss resulting from disability incurred as a result of sickness or ill health, as defined in the Insurance Code; (B) a health insurance plan offered by an employer under the provisions of the Employee Retirement and Insurance Security Act of 1974; or (C) a publicly funded program of health care services, including but not limited to Medicaid or the Children's Health Insurance Program. Sec. 111.005. PROHIBITED REFERRALS AND CLAIMS FOR PAYMENT. (a) A health care provider may not refer a patient for the provision of designated health services to an entity: (1) in which the health care provider or the health care provider's immediate family member is directly or indirectly an investor or has an investment interest; and (2) which is located within a 30-mile radius of a hospital which is: (i) located in a county with a population of 50,000 or less; or (ii) designated as a critical access hospital under the authority of and in compliance with 42 U.S.C. Section 1395i-4; or (iii) designated as a sole community hospital under the authority of and in compliance with 42 U.S.C. Section 1395ww(d)(5)(D)(iii). (b) No claim for payment may be presented by a health care provider or entity to any individual, payor, third party payor or other entity for a service furnished pursuant to a referral prohibited under this section. Sec. 111.006. EXCEPTIONS. The provisions of Section 111.005 shall not apply where the health care provider's investment interest is in registered securities purchased on a national exchange and issued by a publicly held corporation: (1) whose shares are traded on a national exchange; and (2) whose total assets at the end of the corporation's most recent fiscal quarter exceeded $200 million. Sec. 111.007. ENFORCEMENT. (a) Any health care provider or entity that presents or causes to be presented a bill or a claim for service for a service for which payment may not be made under Section 111.005(b) shall be subject to a civil penalty of not more than $15,000 for each such service to be imposed and collected by the licensing authority that regulates the health care provider or entity against whom the civil penalty is being imposed. All penalties collected hereunder shall be maintained in a segregated account by the licensing authority to be used in the enforcement of the provisions of this chapter. If there is no licensing authority that regulates the health care provider or entity against whom the civil penalty described herein should be imposed, the penalties collected hereunder shall be maintained in a segregated account by the Office of the Attorney General to be used in the enforcement of the provisions of this chapter and other statutes for protection of health care consumers. (b) Any health care provider or entity that enters into an agreement or scheme, such as a cross-referral arrangement, which the health care provider or entity knows or should know has a material purpose of assuring referrals by the health care provider to a particular entity which, if the health care provider directly made referrals to such entity, would be in violation of this chapter, shall be subject to a civil penalty of not more than $100,000 for each such circumvention arrangement or scheme to be imposed and collected by the licensing authority that regulates the health care provider or entity against whom the civil penalty is being imposed. All penalties collected hereunder shall be maintained in a segregated account by the licensing authority to be used in the enforcement of the provisions of this chapter. If there is no licensing authority that regulates the health care provider or entity against whom the civil penalty described herein should be imposed, the penalties collected hereunder shall be maintained in a segregated account by the Office of the Attorney General to be used in the enforcement of the provisions of this chapter and other statutes for protection of health care consumers. (c) If a health care provider or entity collects any amount that was billed in violation of this chapter, the health care provider or entity shall refund such amount within 45 days of receipt of payment to the payor, third party payor or patient, whichever is applicable. (d) Notwithstanding the penalties or any other remedy contained in this chapter, the Attorney General may maintain an action for an injunction or other relief to enforce the provisions of this chapter. (e) An action for an injunction or other relief to enforce the provisions of this chapter may be brought by the Attorney General in the name of the State and against the health care provider or other entity alleged to have violated a provision of this chapter to restrain such a violation by temporary restraining order, temporary injunction, or permanent injunction. (f) An action brought under this section may be commenced in the district court of the county in which the health care provider or entity against whom it is brought resides, has its principal place of business or has done business, or in the district court of the county where the transaction occurred, or, on the consent of the parties, in a district court of Travis County. The court may issue temporary orders and temporary or permanent injunctions to restrain and prevent violations of this chapter and such injunctive relief shall be issued without bond. (g) In addition to the request for a temporary restraining order or permanent injunction in a proceeding brought under this section, the Attorney General may request, and the trier of fact may award, the civil penalties to be paid to the State as contained in this section or as otherwise contained in this chapter. (h) The court may make such additional orders or judgments as are necessary to compensate a payor, third party payor or patient as contained in this section. (i) Any person who violates the terms of an injunction under this section shall forfeit and pay to the State a civil penalty of not more than $10,000 per violation, not to exceed a total of $50,000. For the purposes of this section, the district court issuing the injunction shall retain jurisdiction and the cause shall be continued and in these cases the Attorney General, acting in the name of the State, may petition for recovery of civil penalties under this section. All penalties collected hereunder shall be maintained in a segregated account by the licensing authority that regulates the person against whom the civil penalty is being imposed to be used in the enforcement of the provisions of this chapter. If there is no licensing authority that regulates the health care provider or entity against whom the civil penalty described herein should be imposed, the penalties collected hereunder shall be maintained in a segregated account by the Office of the Attorney General to be used in the enforcement of the provisions of this chapter and other statutes for protection of health care consumers. (j) In bringing an action under this section, the Attorney General acts in the name of the State and does not establish an attorney-client relationship with another person, including a third party payor or patient. (k) A payor, third party payor or another health care provider may maintain an action against a health care provider or other entity that violates a provision of this chapter. (l) In a suit filed under this section, a payor or third party payor may obtain: (1) The amount of money paid by the payor or third party payor to the health care provider for a service furnished pursuant to a referral prohibited by this chapter. If the trier of fact finds that the conduct of the defendant was committed knowingly, the payor or third party payor may also recover an award of not more than three times the amount of the payment; (2) An order enjoining a violation of this chapter; (3) All orders necessary to restore to the payor or third party payor all sums of money which were acquired by the health care provider in violation of this chapter; and (4) Any other relief which the court deems proper. (m) In a suit filed under this section a health care provider may obtain: (1) An order enjoining a violation of this chapter; and (2) Any other relief which the court deems proper. (n) Each payor, third party payor or health care provider filing an action under this section and who prevails in that action under this section shall be awarded court costs and reasonable and necessary attorney's fees. (o) The court, on a showing of good cause, may allow the Attorney General, as a representative of the public, to intervene in the action to which this section applies. The Attorney General shall file its motion for intervention with the court before which the action is pending and serve a copy of the motion on each party to the action. Sec. 111.008. LIMITATION ON FILING SUIT. (a) An action under Section 111.007 must be brought within four years after the date on which a violation of a provision of this chapter has occurred. (b) Not later than the 61st day before the date a payor, third party payor or health care provider files an action under Section 111.007, the payor, third party payor or health care provider shall give the health care provider written notice of its intention to maintain the action, stating in reasonable detail the nature of the alleged violation. (c) A health care provider who receives a notice under this section may correct the violation as provided by Section 111.009 during the period beginning on the date the notice is received and ending on the 60th day after that date. A health care provider who corrects a violation as provided in Section 111.009 is not liable to a payor or third party payor for the violation. Sec. 111.009. EXCEPTION FROM LIABILITY. A health care provider is not liable to a payor or third party payor for a violation of this chapter if, prior to or during the 60-day period of time following its receipt of the notice described in Section 111.008, the health care provider pays to all payors and third party payors the amount of money paid by all payors and third party payors to the health care provider for a service furnished pursuant to a referral prohibited by this chapter. Sec. 111.010. DISCIPLINARY ACTION. A violation of this chapter by a health care provider shall constitute grounds for disciplinary action to be taken by the licensing authority that regulates the health care provider pursuant to Occupations Code, Title 3, Subtitles B and C. SECTION 2. EFFECTIVE DATE. (a) This Act takes effect on September 1, 2005. (b) This Act applies to patient referrals for designated health services that are provided on or after September 1, 2006.