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A BILL TO BE ENTITLED
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AN ACT
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relating to the establishment of a full disclosure protocol for |
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hospitals. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. DEFINITIONS. In this Act: |
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(a) "Civil or administrative proceeding" includes a health |
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care liability claim, an arbitration or mediation relating to a |
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health care liability claim, or a licensing proceeding. |
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(b) "Communication" means: |
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(1) an oral statement; |
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(2) a writing; or |
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(3) a gesture. |
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(c) "Health care provider," "health care liability claim," |
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and "physician" have the meanings assigned by Section 74.001, Civil |
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Practice and Remedies Code. |
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(d) "Patient's representative" means: |
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(1) a person related to a patient within the second |
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degree by consanguinity or affinity, as determined under Subchapter |
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B, Chapter 573, Government Code; or |
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(2) a legal guardian, an attorney, or a person legally |
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authorized to make health care decisions for a patient. |
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(e) "Covered event" means any event that caused |
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unanticipated harm to the patient, including that which resulted |
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from a medical error, while the patient was receiving care at or |
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through a hospital that was participating in the full disclosure |
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protocol pilot program at the time of the event. |
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(f) "Affiliated provider" with respect to any hospital |
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participating in the full disclosure protocol pilot program means |
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any health care provider, including a physician, who is a member of |
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the hospital's medical staff or who holds clinical privileges to |
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practice at the hospital, or who is an independent contractor of the |
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hospital. |
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SECTION 2. FULL DISCLOSURE PROTOCOL PILOT |
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PROGRAM. (a) The full disclosure protocol pilot program is a |
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program established to promote the use of a full disclosure |
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protocol in hospitals. |
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(b) A hospital participating in the pilot program: |
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(1) shall adopt a policy of prompt and complete |
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disclosure to patients or patients' representatives of any |
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occurrence of a covered event; |
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(2) shall include in such disclosures, or in |
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subsequent discussions about a covered event: |
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(A) an explanation of the event; and |
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(B) an acknowledgement of fault, if appropriate; |
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and |
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(C) an explanation of the steps the hospital is |
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taking to prevent a similar event from occurring in the future, if |
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appropriate; |
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(3) shall encourage the patient or patient's |
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representative to retain legal counsel if an offer of fair |
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compensation is made in connection with the covered event, at the |
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time that the offer is made; |
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(4) shall require that all hospital employees and |
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affiliated providers must adhere to this policy; |
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(5) shall provide notice to all hospital employees and |
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affiliated providers that: |
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(A) the hospital has adopted this policy; and |
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(B) that by adopting this policy, the hospital |
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and all hospital employees and affiliated providers have obtained |
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the protection conferred by Section 5 of this Act; |
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(6) shall provide notice to patients that the hospital |
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has adopted this policy; |
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(7) shall refer all covered events to the hospital's |
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existing peer review, quality improvement, or performance |
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improvement process, as applicable; and |
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(8) shall track the financial impact of the program, |
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and collect other information about the impact of the program to |
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share with the Department of State Health Services. |
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SECTION 3. ADMINISTRATION. The Department of State Health |
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Services shall: |
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(1) develop, implement, and oversee the full |
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disclosure protocol pilot program; |
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(2) communicate with hospitals that are interested in |
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participating in the program; and |
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(3) develop standards and guidelines to compare costs |
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for health care liability claims handled by traditional means with |
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costs for those cases handled under the full disclosure protocol |
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pilot program. |
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SECTION 4. PARTICIPATION. (a) A hospital may participate |
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in the full disclosure protocol pilot program only if the senior |
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administrator of the hospital signs an affidavit committing the |
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hospital to the policy outlined in Section 2(b), and files that |
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affidavit with the Department of State Health Services. |
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(b) The Department of State Health Services shall designate |
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each hospital participating in the full disclosure protocol pilot |
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program in writing, certifying that an affidavit as specified in |
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Section 4(a) has been received from the participating hospital, and |
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that, by filing such an affidavit, the participating hospital has |
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obtained the privilege of confidentiality conferred by Section 5 of |
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this Act. The determination of the Department of State Health |
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Services on this issue shall be final and conclusive. The |
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designation expires September 1, 2011. |
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(c) A hospital that has been designated for participation in |
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the full disclosure protocol pilot program may discontinue |
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participation in the program by filing a notification of |
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discontinuation with the Department of State Health Services and by |
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providing notice of the discontinuation to all hospital employees |
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and affiliated providers. A discontinuation in the program by a |
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hospital does not affect the admissibility in a civil or |
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administrative proceeding of a communication described by Section 5 |
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of this Act. |
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(d) A hospital's insurer may require the hospital to enter |
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into an agreement with the insurer in order to participate in the |
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program if the insurer determines such an agreement is required |
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under the terms of the hospital's insurance agreements. |
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SECTION 5. INADMISSIBILITY OF COMMUNICATIONS OF SYMPATHY, |
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APOLOGY, FAULT, OR EXPLANATION. |
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(a) A communication that expresses sympathy, regret, |
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compassion, a general sense of benevolence, apology, or fault |
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relating to the pain, suffering, or death of an individual is not |
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discoverable and is not admissible in a civil or administrative |
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proceeding if: |
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(1) the communication is made in connection with a |
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covered event, or made to explain the occurrence of a covered event; |
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and |
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(2) the communication is made by an employee or other |
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representative of the hospital, or by an affiliated provider; and |
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(3) the communication is made to the individual, to a |
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person related to the individual within the second degree by |
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consanguinity or affinity, as determined under Subchapter B, |
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Chapter 573, Government Code, or to a legal representative of the |
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individual; and |
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(4) the communication is offered to prove liability, |
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in relation to the individual, of a hospital that participates in |
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the full disclosure protocol pilot program in accordance with |
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Section 4(a) of this Act, or any of such hospital's employees, |
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affiliated providers, officers, directors, or trustees. |
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(b) Neither the hospital nor any of its employees, officers, |
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directors, trustees, or affiliated providers shall be deemed to |
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have waived any privilege that may apply to any of the information |
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that is disclosed by making a communication as described by this |
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Section. |
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(c) Any communication made by the patient or the patient's |
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representative at any meeting covered by the full disclosure |
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protocol is also not admissible in any civil or administrative |
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proceeding. |
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(d) The protection conferred in this section extends only to |
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the discoverability or admissibility of the communications |
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described in Subsection (a) and Subsection (c), and not to the |
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underlying covered event. |
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SECTION 6. REPORTING. (a) Not later than August 1 of each |
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year in which the full disclosure protocol pilot program is in |
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operation, the Department of State Health Services shall submit a |
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report detailing the status of the program to the governor, the |
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lieutenant governor, and the speaker of the house of |
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representatives. The report may include: |
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(1) the number of participating hospitals; |
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(2) the number of covered events disclosed; |
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(3) the effect of the full disclosure protocol on |
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patient satisfaction; |
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(4) the effect of the full disclosure protocol on |
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patient safety and injury; |
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(5) the financial impact of the full disclosure |
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protocol; and |
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(6) a summary of the problems or barriers to |
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implementation from the hospitals' perspective. |
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(b) By September 1, 2009, and again by September 1, 2011, a |
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participating hospital shall publish a report containing the |
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results of the hospital's use of a full disclosure protocol under |
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the program, and will share all data relevant to that report or |
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collected in accordance with Section 2(b) of this Act, with the |
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Department of State Health Services. At a minimum, this report |
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shall include: |
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(1) the number of covered events disclosed; |
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(2) the effect of the full disclosure protocol on |
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patient satisfaction; |
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(3) the effect of the full disclosure protocol on |
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patient safety and injury; |
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(4) the financial impact of the full disclosure |
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protocol, including: |
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(A) health care liability or other related costs; |
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(B) legal defense costs; and |
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(C) settlements or judgments awarding damages to |
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patients; |
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(5) a summary profile of the types and frequency of |
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events being disclosed; and |
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(6) a summary of problems or barriers to |
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implementation from the hospital's perspective. |
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(c) The Department of State Health Services shall make |
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public all data collected under Section 6(b) of this Act for the |
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purpose of studying the results of the full disclosure protocol |
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pilot program. |
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SECTION 7. PRIVATE RIGHT OF ACTION. This Act does not |
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create a private right of action or establish a standard of care. |
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SECTION 8. TRANSITION. The expiration of Sections 1-9 of |
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this Act and the termination of the full disclosure protocol pilot |
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program do not affect the admissibility in a civil or |
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administrative proceeding of a communication described by Section 5 |
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of this Act. |
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SECTION 9. EXPIRATION. Sections 1-8 of this Act expire and |
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the full disclosure protocol pilot program is terminated September |
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1, 2011. |
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SECTION 10. EFFECTIVE DATE. This Act takes effect |
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September 1, 2007. |