87R9290 KKR-F
 
  By: Murr H.B. No. 3331
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to solicitation of patients and other prohibited marketing
  practices and the establishment of the task force on patient
  solicitation; increasing criminal penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle E, Title 2, Health and Safety Code, is
  amended by adding Chapter 110 to read as follows:
  CHAPTER 110. TASK FORCE ON PATIENT SOLICITATION
         Sec. 110.001.  DEFINITION. In this chapter, "task force"
  means the task force on patient solicitation created under this
  chapter.
         Sec. 110.002.  PURPOSE. The task force is established to
  study and make recommendations on preventing conduct that violates
  Chapter 164 of this code or Chapter 102, Occupations Code, and to
  improve enforcement of those chapters.
         Sec. 110.003.  MEMBERSHIP. (a) The task force is composed of
  eight members as follows:
               (1)  four members appointed by the executive
  commissioner; and
               (2)  four members appointed by the attorney general.
         (b)  Each task force member must have expertise in the field
  of health care or advertising.
         (c)  Task force members serve without compensation.
         Sec. 110.004.  ADMINISTRATIVE ATTACHMENT. The task force is
  administratively attached to the commission.
         Sec. 110.005.  ACCESS TO INFORMATION; CONFIDENTIALITY OF
  PROVIDED INFORMATION. The attorney general and the commission shall
  provide the task force with information requested by the task force
  to allow the task force to fulfil its duties. Information provided
  under this section is confidential and is not subject to disclosure
  under Chapter 552, Government Code.
         Sec. 110.006.  REPORT. Not later than December 1, of each
  even-numbered year, the task force shall submit to the legislature
  a report that includes:
               (1)  a summary of civil or criminal actions brought on
  behalf of the state and administrative actions by state regulatory
  agencies in the preceding biennium for violations of Chapter 164 of
  this code or Chapter 102, Occupations Code; and
               (2)  legislative recommendations for preventing
  conduct that violates Chapter 164 of this code or Chapter 102,
  Occupations Code, and improving enforcement of those chapters.
         SECTION 2.  Section 164.002, Health and Safety Code, is
  amended to read as follows:
         Sec. 164.002.  LEGISLATIVE PURPOSE. The purpose of this
  chapter is to safeguard the public against fraud, deceit, and
  misleading marketing practices and to foster and encourage
  competition and fair dealing by mental health facilities and
  chemical dependency treatment facilities by prohibiting or
  restricting practices by which the public has been injured in
  connection with the marketing and advertising of mental health
  services and the admission of patients. Nothing in this chapter
  should be construed to prohibit a mental health facility from
  advertising its services in a general way or promoting its
  specialized services. However, the public should be able to clearly
  distinguish between the marketing activities of the facility and
  its clinical functions.
         SECTION 3.  Section 164.003(1), Health and Safety Code, is
  amended to read as follows:
               (1)  "Advertising" or "advertise" means a solicitation
  or inducement, through print or electronic media, including radio,
  television, the Internet, or direct mail, to purchase the services
  provided by a treatment facility.
         SECTION 4.  Section 164.006, Health and Safety Code, is
  amended to read as follows:
         Sec. 164.006.  SOLICITING AND CONTRACTING WITH CERTAIN
  REFERRAL SOURCES. A treatment facility or a person employed or
  under contract with a treatment facility, if acting on behalf of the
  treatment facility, may not:
               (1)  contact a referral source or potential client for
  the purpose of soliciting, directly or indirectly, a referral of a
  patient to the treatment facility without disclosing its soliciting
  agent's, employee's, or contractor's affiliation with the treatment
  facility;
               (2)  offer to provide or provide mental health or
  chemical dependency services to a public or private school in this
  state, on a part-time or full-time basis, the services of any of its
  employees or agents who make, or are in a position to make, a
  referral, if the services are provided on an individual basis to
  individual students or their families. Nothing herein prohibits a
  treatment facility from:
                     (A)  offering or providing educational programs
  in group settings to public schools in this state if the affiliation
  between the educational program and the treatment facility is
  disclosed;
                     (B)  providing counseling services to a public
  school in this state in an emergency or crisis situation if the
  services are provided in response to a specific request by a school;
  provided that, under no circumstances may a student be referred to
  the treatment facility offering the services; or
                     (C)  entering into a contract under Section
  464.020 with the board of trustees of a school district with a
  disciplinary alternative education program, or with the board's
  designee, for the provision of chemical dependency treatment
  services;
               (3)  provide to an entity of state or local government,
  on a part-time or full-time basis, the mental health or chemical
  dependency services of any of its employees, agents, or contractors
  who make or are in a position to make referrals unless:
                     (A)  the treatment facility discloses to the
  governing authority of the entity:
                           (i)  the employee's, agent's, or
  contractor's relationship to the facility; and
                           (ii)  the fact that the employee, agent, or
  contractor might make a referral, if permitted, to the facility;
  and
                     (B)  the employee, agent, or contractor makes a
  referral only if:
                           (i)  the treatment facility obtains the
  governing authority's authorization in writing for the employee,
  agent, or contractor to make the referrals; and
                           (ii)  the employee, agent, or contractor
  discloses to the prospective patient the employee's, agent's, or
  contractor's relationship to the facility at initial contact; [or]
               (4)  in relation to intervention and assessment
  services, contract with, offer to remunerate, or remunerate a
  person who operates an intervention and assessment service that
  makes referrals to a treatment facility for inpatient treatment of
  mental illness or chemical dependency unless the intervention and
  assessment service is:
                     (A)  operated by a community mental health and
  intellectual disability center funded by the department and the
  Department of Aging and Disability Services;
                     (B)  operated by a county or regional medical
  society;
                     (C)  a qualified mental health referral service as
  defined by Section 164.007; or
                     (D)  owned and operated by a nonprofit or
  not-for-profit organization offering counseling concerning family
  violence, help for runaway children, or rape; or
               (5)  contract with a marketing provider who agrees to
  provide general referrals or leads for the placement of patients
  with a service provider or in a recovery residence through a call
  center or Internet website presence, unless the terms of that
  contract are disclosed to the prospective patient.
         SECTION 5.  Section 164.010, Health and Safety Code, is
  amended to read as follows:
         Sec. 164.010.  PROHIBITED ACTS. It is a violation of this
  chapter, in connection with the marketing of mental health
  services, for a person to:
               (1)  advertise, expressly or impliedly, the services of
  a treatment facility through the use of:
                     (A)  promises of cure or guarantees of treatment
  results that cannot be substantiated; or
                     (B)  any unsubstantiated claims;
               (2)  advertise, expressly or impliedly, the
  availability of intervention and assessment services unless and
  until the services are available and are provided by mental health
  professionals licensed or certified to provide the particular
  service;
               (3)  fail to disclose before soliciting a referral
  source or prospective patient to induce a person to use the services
  of the treatment facility an affiliation between a treatment
  facility and its soliciting agents, employees, or contractors;
               (4)  obtain information considered confidential by
  state or federal law regarding a person for the purpose of
  soliciting that person to use the services of a treatment facility
  unless and until consent is obtained from the person or, in the case
  of a minor, the person's parent, managing conservator, or legal
  guardian or another person with authority to give that
  authorization; [or]
               (5)  represent that a referral service is a qualified
  mental health referral service unless and until the referral
  service complies with Section 164.007;
               (6)  make a false or misleading statement or provide
  false or misleading information about the facility's services or
  location in the facility's advertising media or on its Internet
  website; or
               (7)  provide a link on the facility's Internet website
  that redirects the user to another Internet website containing
  false or misleading statements or information described by
  Subdivision (6).
         SECTION 6.  Section 164.011(a), Health and Safety Code, is
  amended to read as follows:
         (a)  If it appears that a person is in violation of this
  chapter, the attorney general, a district attorney, or a county
  attorney may institute an action for injunctive relief to restrain
  the person from continuing the violation and for civil penalties of
  not less than $2,000 [$1,000] and not more than $25,000 per
  violation.
         SECTION 7.  Section 102.001, Occupations Code, is amended to
  read as follows:
         Sec. 102.001.  SOLICITING PATIENTS; OFFENSE. (a) A person
  commits an offense if the person knowingly offers to pay or agrees
  to accept, directly or indirectly, overtly or covertly any
  remuneration in cash or in kind or any benefit or commission to or
  from another for securing or soliciting a patient or patronage for
  or from a person licensed, certified, or registered by a state
  health care regulatory agency.
         (b)  Except as provided by Subsection (c), an offense under
  this section is a state jail felony [Class A misdemeanor].
         (c)  An offense under this section is a felony of the second
  [third] degree if it is shown on the trial of the offense that the
  person:
               (1)  has previously been convicted of an offense under
  this section; or
               (2)  was employed by a federal, state, or local
  government at the time of the offense.
         SECTION 8.  Section 102.004, Occupations Code, is amended to
  read as follows:
         Sec. 102.004.  APPLICABILITY TO ADVERTISING. Section
  102.001 does not prohibit advertising, unless the advertising is:
               (1)  false, misleading, or deceptive; [or]
               (2)  not readily subject to verification, if the
  advertising claims professional superiority or the performance of a
  professional service in a superior manner; or
               (3)  prohibited under Chapter 164, Health and Safety
  Code, as applicable.
         SECTION 9.  Section 102.006, Occupations Code, is amended to
  read as follows:
         Sec. 102.006.  FAILURE TO DISCLOSE; OFFENSE. (a) A person
  commits an offense if:
               (1)  the person, in a manner otherwise permitted under
  Section 102.001, accepts remuneration, a benefit, or a commission
  to secure or solicit a patient or patronage for a person licensed,
  certified, or registered by a state health care regulatory agency;
  and
               (2)  does not, at the time of initial contact and at the
  time of referral, disclose to the patient:
                     (A)  the person's affiliation, if any, with the
  person for whom the patient is secured or solicited; and
                     (B)  that the person will receive, directly or
  indirectly, remuneration, a benefit, or a commission for securing
  or soliciting the patient.
         (b)  Except as provided by Subsection (c), an offense under
  this section is a state jail felony [Class A misdemeanor].
         (c)  An offense under this section is a felony of the second
  [third] degree if it is shown on the trial of the offense that the
  person:
               (1)  has previously been convicted of an offense under
  this section; or
               (2)  was employed by a federal, state, or local
  government at the time of the offense.
         SECTION 10.  Sections 102.051(a), (b), and (c), Occupations
  Code, are amended to read as follows:
         (a)  A person commits an offense if the person:
               (1)  practices the art of healing with or without the
  use of medicine; and
               (2)  employs or agrees to employ, pays or promises to
  pay, or rewards or promises to reward or provide any benefit or
  commission to another for soliciting or securing a patient or
  patronage.
         (b)  A person commits an offense if the person accepts or
  agrees to accept anything of value or any benefit or commission for
  soliciting or securing a patient or patronage for a person who
  practices the art of healing with or without the use of medicine.
         (c)  An offense under this section is a Class B misdemeanor
  [punishable by a fine of not less than $100 or more than $200]. Each
  violation of this section is a separate offense.
         SECTION 11.  The changes in law made by this Act apply only
  to an offense committed on or after the effective date of this Act.
  An offense committed before the effective date of this Act is
  governed by the law in effect on the date the offense was committed,
  and the former law is continued in effect for that purpose. For
  purposes of this section, an offense was committed before the
  effective date of this Act if any element of the offense occurred
  before that date.
         SECTION 12.  This Act takes effect September 1, 2021.