By: Schwertner, Buckingham S.B. No. 207
      Campbell
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to recovery of medical or health care expenses in civil
  actions.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 41.0105, Civil Practice and Remedies
  Code, is amended to read as follows:
         Sec. 41.0105.  EVIDENCE RELATING TO AMOUNT OF ECONOMIC
  DAMAGES.  (a)  In addition to any other limitation under law,
  recovery of medical or health care expenses in a civil action
  [incurred] is determined in accordance with this section [limited
  to the amount actually paid or incurred by or on behalf of the
  claimant].
         (b)  In a civil action in which medical or health care
  expenses are actually paid by the claimant, or on the claimant's
  behalf, including amounts paid by a health benefit plan, workers'
  compensation insurance, an employer-provided plan, Medicaid,
  Medicare, or another insurer or governmental payor, a party may
  introduce in evidence only the amounts actually paid to the medical
  or health care facility or provider for the services provided to the
  person whose injury or death is the subject of the action.
         (c)  In a civil action other than an action described by
  Subsection (b), a party may introduce evidence that has a tendency
  to prove the reasonable value of the necessary medical or health
  care services provided to the person whose injury or death is the
  subject of the action.
         (d)  In any civil action in which a claimant seeks recovery
  of medical or health care expenses, a party may introduce in
  evidence the amounts paid to a medical or health care facility or
  provider for services provided to the person whose injury or death
  is the subject of the action from a cafeteria plan or health savings
  account or by any person to satisfy a copayment or deductible.
         (e)  In any civil action in which a claimant seeks recovery
  of medical or health care expenses, the claimant shall disclose to
  all parties any formal or informal agreement under which a medical
  or health care facility or provider may wholly or partly refund,
  rebate, or remit any amount of money or give anything of value to
  the claimant or anyone associated with the claimant.
         SECTION 2.  Section 18.001, Civil Practice and Remedies
  Code, is amended by amending Subsections (b), (e), (e-1), (h), and
  (i) and adding Subsections (b-1) and (b-2) to read as follows:
         (b)  Unless notice of intent to controvert the
  reasonableness of the amounts charged or the necessity for medical
  or health care services [a controverting affidavit] is served as
  provided by this section, an affidavit complying with this section
  and stating that the amount a person charged for a service was
  reasonable at the time and place that the service was provided and
  that the service was necessary is sufficient evidence to support a
  finding of fact by judge or jury that the amount charged was
  reasonable or that the service was necessary.
         (b-1)  Except as provided by Section 18.0011, an affidavit
  served under Subsection (b) has no effect except to prove the
  authenticity of the medical or health care records described by the
  affidavit if notice of intent to controvert the reasonableness of
  the amounts charged or necessity for medical or health care
  services is served as provided by this section.
         (b-2)  An [The] affidavit served under Subsection (b) is not
  evidence of and does not support a finding of the causation element
  of the cause of action that is the basis for the civil action.
         (e)  A party intending to controvert the reasonableness of
  the amounts charged or necessity for medical or health care
  services [a claim reflected by the affidavit] must serve notice of
  that intent [a copy of the counteraffidavit] on each other party or
  the party's attorney of record by the earlier of:
               (1)  120 days after the date the defendant files its
  answer;
               (2)  the date the party serving notice [offering the
  counteraffidavit] must designate expert witnesses under a court
  order; or
               (3)  the date the party serving notice [offering the
  counteraffidavit] must designate any expert witness as required by
  the Texas Rules of Civil Procedure.
         (e-1)  Notwithstanding Subsection (e), if the party offering
  the affidavit [in evidence] serves a copy of the affidavit under
  Subsection (d-1), notice of intent to controvert the reasonableness
  of the amounts charged or necessity for medical or health care
  services must be served [the party offering the counteraffidavit in
  evidence or the party's attorney must serve a copy of the
  counteraffidavit] on each other party to the case by the later of:
               (1)  30 days after service of the affidavit on the party
  serving notice [offering the counteraffidavit in evidence];
               (2)  the date the party serving notice [offering the
  counteraffidavit] must designate any expert witness under a court
  order; or
               (3)  the date the party serving notice [offering the
  counteraffidavit in evidence] must designate any expert witness as
  required by the Texas Rules of Civil Procedure.
         (h)  If continuing services are provided after a relevant
  deadline under this section:
               (1)  a party may supplement an affidavit served by the
  party under Subsection (d) or (d-1) on or before the 60th day before
  the date the trial commences; and
               (2)  a party that served notice [a counteraffidavit]
  under Subsection (e) or (e-1) may serve notice related to the
  supplemental affidavit [supplement the counteraffidavit] on or
  before the 30th day before the date the trial commences.
         (i)  Notwithstanding Subsections (d), (d-1), (d-2), (e),
  (e-1), [(g),] and (h), a deadline under this section may be altered
  by all parties to an action by agreement or with leave of the court.
         SECTION 3.  Subchapter A, Chapter 18, Civil Practice and
  Remedies Code, is amended by adding Section 18.0011 to read as
  follows:
         Sec. 18.0011.  AFFIDAVIT OF HEALTH CARE FACILITY OR
  PROVIDER. (a) A party may not controvert the reasonableness of the
  charges for medical or health care services stated in an affidavit
  served under Section 18.001 by or on behalf of a health care
  facility or provider if the affidavit states one of the following
  amounts as reasonable charges for the necessary medical or health
  care services provided by the facility or provider to the person
  whose injury or death is the subject of the civil action:
               (1)  amounts actually received by the facility or
  provider from or on behalf of the claimant, including amounts
  received from a health benefit plan, workers' compensation
  insurance, an employer-provided plan, Medicaid, Medicare, or
  another insurer or governmental payor, for each medical or health
  care service provided by the facility or provider; or
               (2)  amounts that, on the date the service was
  provided, do not exceed 150 percent of the maximum allowable
  reimbursement for each medical or health care service provided as
  determined by the commissioner of workers' compensation in
  accordance with Section 413.011, Labor Code.
         (b)  If an affidavit served by a health care facility or
  provider under Section 18.001 complies with Subsection (a) and
  includes a statement that the facility or provider does not intend
  to appear at trial to testify regarding the reasonableness of the
  facility's or provider's charges or the necessity for the facility's
  or provider's services, then:
               (1)  a party may not seek to obtain through any pretrial
  discovery procedure information from the facility or provider about
  the reasonableness of the facility's or provider's charges or the
  necessity for the facility's or provider's services; and
               (2)  the trial court shall exclude trial testimony by
  the facility or provider regarding the reasonableness of the
  facility's or provider's charges or the necessity for the facility's
  or provider's services unless:
                     (A)  the court finds there is good cause to allow
  the testimony;
                     (B)  the testimony will not unfairly surprise or
  unfairly prejudice any party to the civil action; and
                     (C)  a party opposing admission of the testimony
  into evidence is given a reasonable opportunity to develop and
  present evidence relevant to the testimony to be offered by the
  facility or provider.
         (c)  An affidavit served by a health care facility or
  provider under Subsection (a) and the statements made in the
  affidavit may be used only in the civil action in which the
  affidavit is served and not in other actions or for other purposes.
         SECTION 4.  Sections 18.001(f) and (g), Civil Practice and
  Remedies Code, are repealed.
         SECTION 5.  The changes in law made by this Act apply only to
  an action commenced on or after the effective date of this Act. An
  action commenced before the effective date of this Act is governed
  by the law applicable to the action immediately before the
  effective date of this Act, and that law is continued in effect for
  that purpose.
         SECTION 6.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution.  If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2021.