Texas 2021 - 87th Regular

Texas House Bill HB3331 Compare Versions

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Version 2 (New)

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	1	+	87R9290 KKR-F
1	2		By: Murr H.B. No. 3331
2	3
3	4
4	5		A BILL TO BE ENTITLED
5	6		AN ACT
6	7		relating to solicitation of patients and other prohibited marketing
7	8		practices and the establishment of the task force on patient
8	9		solicitation; increasing criminal penalties.
9	10		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	11		SECTION 1. Subtitle E, Title 2, Health and Safety Code, is
11	12		amended by adding Chapter 110 to read as follows:
12	13		CHAPTER 110. TASK FORCE ON PATIENT SOLICITATION
13	14		Sec. 110.001. DEFINITION. In this chapter, "task force"
14	15		means the task force on patient solicitation created under this
15	16		chapter.
16	17		Sec. 110.002. PURPOSE. The task force is established to
17	18		study and make recommendations on preventing conduct that violates
18	19		Chapter 164 of this code or Chapter 102, Occupations Code, and to
19	20		improve enforcement of those chapters.
20	21		Sec. 110.003. MEMBERSHIP. (a) The task force is composed of
21	22		eight members as follows:
22	23		(1) four members appointed by the executive
23	24		commissioner; and
24	25		(2) four members appointed by the attorney general.
25	26		(b) Each task force member must have expertise in the field
26	27		of health care or advertising.
27	28		(c) Task force members serve without compensation.
28	29		Sec. 110.004. ADMINISTRATIVE ATTACHMENT. The task force is
29	30		administratively attached to the commission.
30	31		Sec. 110.005. ACCESS TO INFORMATION; CONFIDENTIALITY OF
31	32		PROVIDED INFORMATION. The attorney general and the commission shall
32	33		provide the task force with information requested by the task force
33	34		to allow the task force to fulfil its duties. Information provided
34	35		under this section is confidential and is not subject to disclosure
35	36		under Chapter 552, Government Code.
36	37		Sec. 110.006. REPORT. Not later than December 1, of each
37	38		even-numbered year, the task force shall submit to the legislature
38	39		a report that includes:
39	40		(1) a summary of civil or criminal actions brought on
40	41		behalf of the state and administrative actions by state regulatory
41		-	agencies in the preceding biennium for ~~conduct that violates~~
42		-	~~Chapter 164 of~~ this code or Chapter 102, Occupations Code; and
	42	+	agencies in the preceding biennium for violations of Chapter 164 of
	43	+	this code or Chapter 102, Occupations Code; and
43	44		(2) legislative recommendations for preventing
44	45		conduct that violates Chapter 164 of this code or Chapter 102,
45	46		Occupations Code, and improving enforcement of those chapters.
46	47		SECTION 2. Section 164.002, Health and Safety Code, is
47	48		amended to read as follows:
48	49		Sec. 164.002. LEGISLATIVE PURPOSE. The purpose of this
49	50		chapter is to safeguard the public against fraud, deceit, and
50	51		misleading marketing practices and to foster and encourage
51	52		competition and fair dealing by mental health facilities and
52	53		chemical dependency treatment facilities by prohibiting or
53	54		restricting practices by which the public has been injured in
54	55		connection with the marketing and advertising of mental health
55	56		services and the admission of patients. Nothing in this chapter
56	57		should be construed to prohibit a mental health facility from
57	58		advertising its services in a general way or promoting its
58	59		specialized services. However, the public should be able to clearly
59	60		distinguish between the marketing activities of the facility and
60	61		its clinical functions.
61	62		SECTION 3. Section 164.003(1), Health and Safety Code, is
62	63		amended to read as follows:
63	64		(1) "Advertising" or "advertise" means a solicitation
64	65		or inducement, through print or electronic media, including radio,
65	66		television, the Internet, or direct mail, to purchase the services
66	67		provided by a treatment facility.
67	68		SECTION 4. Section 164.006, Health and Safety Code, is
68	69		amended to read as follows:
69	70		Sec. 164.006. SOLICITING AND CONTRACTING WITH CERTAIN
70	71		REFERRAL SOURCES. A treatment facility or a person employed or
71	72		under contract with a treatment facility, if acting on behalf of the
72	73		treatment facility, may not:
73	74		(1) contact a referral source or potential client for
74	75		the purpose of soliciting, directly or indirectly, a referral of a
75	76		patient to the treatment facility without disclosing its soliciting
76	77		agent's, employee's, or contractor's affiliation with the treatment
77	78		facility;
78	79		(2) offer to provide or provide mental health or
79	80		chemical dependency services to a public or private school in this
80	81		state, on a part-time or full-time basis, the services of any of its
81	82		employees or agents who make, or are in a position to make, a
82	83		referral, if the services are provided on an individual basis to
83	84		individual students or their families. Nothing herein prohibits a
84	85		treatment facility from:
85	86		(A) offering or providing educational programs
86	87		in group settings to public schools in this state if the affiliation
87	88		between the educational program and the treatment facility is
88	89		disclosed;
89	90		(B) providing counseling services to a public
90	91		school in this state in an emergency or crisis situation if the
91	92		services are provided in response to a specific request by a school;
92	93		provided that, under no circumstances may a student be referred to
93	94		the treatment facility offering the services; or
94	95		(C) entering into a contract under Section
95	96		464.020 with the board of trustees of a school district with a
96	97		disciplinary alternative education program, or with the board's
97	98		designee, for the provision of chemical dependency treatment
98	99		services;
99	100		(3) provide to an entity of state or local government,
100	101		on a part-time or full-time basis, the mental health or chemical
101	102		dependency services of any of its employees, agents, or contractors
102	103		who make or are in a position to make referrals unless:
103	104		(A) the treatment facility discloses to the
104	105		governing authority of the entity:
105	106		(i) the employee's, agent's, or
106	107		contractor's relationship to the facility; and
107	108		(ii) the fact that the employee, agent, or
108	109		contractor might make a referral, if permitted, to the facility;
109	110		and
110	111		(B) the employee, agent, or contractor makes a
111	112		referral only if:
112	113		(i) the treatment facility obtains the
113	114		governing authority's authorization in writing for the employee,
114	115		agent, or contractor to make the referrals; and
115	116		(ii) the employee, agent, or contractor
116	117		discloses to the prospective patient the employee's, agent's, or
117	118		contractor's relationship to the facility at initial contact; [or]
118	119		(4) in relation to intervention and assessment
119	120		services, contract with, offer to remunerate, or remunerate a
120	121		person who operates an intervention and assessment service that
121	122		makes referrals to a treatment facility for inpatient treatment of
122	123		mental illness or chemical dependency unless the intervention and
123	124		assessment service is:
124	125		(A) operated by a community mental health and
125	126		intellectual disability center funded by the department and the
126	127		Department of Aging and Disability Services;
127	128		(B) operated by a county or regional medical
128	129		society;
129	130		(C) a qualified mental health referral service as
130	131		defined by Section 164.007; or
131	132		(D) owned and operated by a nonprofit or
132	133		not-for-profit organization offering counseling concerning family
133	134		violence, help for runaway children, or rape; or
134	135		(5) contract with a marketing provider who agrees to
135	136		provide general referrals or leads for the placement of patients
136	137		with a service provider or in a recovery residence through a call
137	138		center or Internet website presence, unless the terms of that
138	139		contract are disclosed to the prospective patient.
139	140		SECTION 5. Section 164.010, Health and Safety Code, is
140	141		amended to read as follows:
141	142		Sec. 164.010. PROHIBITED ACTS. It is a violation of this
142	143		chapter, in connection with the marketing of mental health
143	144		services, for a person to:
144	145		(1) advertise, expressly or impliedly, the services of
145	146		a treatment facility through the use of:
146	147		(A) promises of cure or guarantees of treatment
147	148		results that cannot be substantiated; or
148	149		(B) any unsubstantiated claims;
149	150		(2) advertise, expressly or impliedly, the
150	151		availability of intervention and assessment services unless and
151	152		until the services are available and are provided by mental health
152	153		professionals licensed or certified to provide the particular
153	154		service;
154	155		(3) fail to disclose before soliciting a referral
155	156		source or prospective patient to induce a person to use the services
156	157		of the treatment facility an affiliation between a treatment
157	158		facility and its soliciting agents, employees, or contractors;
158	159		(4) obtain information considered confidential by
159	160		state or federal law regarding a person for the purpose of
160	161		soliciting that person to use the services of a treatment facility
161	162		unless and until consent is obtained from the person or, in the case
162	163		of a minor, the person's parent, managing conservator, or legal
163	164		guardian or another person with authority to give that
164	165		authorization; [or]
165	166		(5) represent that a referral service is a qualified
166	167		mental health referral service unless and until the referral
167	168		service complies with Section 164.007;
168	169		(6) make a false or misleading statement or provide
169	170		false or misleading information about the facility's services or
170	171		location in the facility's advertising media or on its Internet
171	172		website; or
172	173		(7) provide a link on the facility's Internet website
173	174		that redirects the user to another Internet website containing
174	175		false or misleading statements or information described by
175	176		Subdivision (6).
176	177		SECTION 6. Section 164.011(a), Health and Safety Code, is
177	178		amended to read as follows:
178	179		(a) If it appears that a person is in violation of this
179	180		chapter, the attorney general, a district attorney, or a county
180	181		attorney may institute an action for injunctive relief to restrain
181	182		the person from continuing the violation and for civil penalties of
182	183		not less than $2,000 [$1,000] and not more than $25,000 per
183	184		violation.
184	185		SECTION 7. Section 102.001, Occupations Code, is amended to
185	186		read as follows:
186	187		Sec. 102.001. SOLICITING PATIENTS; OFFENSE. (a) A person
187	188		commits an offense if the person knowingly offers to pay or agrees
188	189		to accept, directly or indirectly, overtly or covertly any
189	190		remuneration in cash or in kind or any benefit or commission to or
190	191		from another for securing or soliciting a patient or patronage for
191	192		or from a person licensed, certified, or registered by a state
192	193		health care regulatory agency.
193	194		(b) Except as provided by Subsection (c), an offense under
194	195		this section is a state jail felony [Class A misdemeanor].
195	196		(c) An offense under this section is a felony of the second
196	197		[third] degree if it is shown on the trial of the offense that the
197	198		person:
198	199		(1) has previously been convicted of an offense under
199	200		this section; or
200	201		(2) was employed by a federal, state, or local
201	202		government at the time of the offense.
202	203		SECTION 8. Section 102.004, Occupations Code, is amended to
203	204		read as follows:
204	205		Sec. 102.004. APPLICABILITY TO ADVERTISING. Section
205	206		102.001 does not prohibit advertising, unless the advertising is:
206	207		(1) false, misleading, or deceptive; [or]
207	208		(2) not readily subject to verification, if the
208	209		advertising claims professional superiority or the performance of a
209	210		professional service in a superior manner; or
210	211		(3) prohibited under Chapter 164, Health and Safety
211	212		Code, as applicable.
212	213		SECTION 9. Section 102.006, Occupations Code, is amended to
213	214		read as follows:
214	215		Sec. 102.006. FAILURE TO DISCLOSE; OFFENSE. (a) A person
215	216		commits an offense if:
216	217		(1) the person, in a manner otherwise permitted under
217	218		Section 102.001, accepts remuneration, a benefit, or a commission
218	219		to secure or solicit a patient or patronage for a person licensed,
219	220		certified, or registered by a state health care regulatory agency;
220	221		and
221	222		(2) does not, at the time of initial contact and at the
222	223		time of referral, disclose to the patient:
223	224		(A) the person's affiliation, if any, with the
224	225		person for whom the patient is secured or solicited; and
225	226		(B) that the person will receive, directly or
226	227		indirectly, remuneration, a benefit, or a commission for securing
227	228		or soliciting the patient.
228	229		(b) Except as provided by Subsection (c), an offense under
229	230		this section is a state jail felony [Class A misdemeanor].
230	231		(c) An offense under this section is a felony of the second
231	232		[third] degree if it is shown on the trial of the offense that the
232	233		person:
233	234		(1) has previously been convicted of an offense under
234	235		this section; or
235	236		(2) was employed by a federal, state, or local
236	237		government at the time of the offense.
237	238		SECTION 10. Sections 102.051(a), (b), and (c), Occupations
238	239		Code, are amended to read as follows:
239	240		(a) A person commits an offense if the person:
240	241		(1) practices the art of healing with or without the
241	242		use of medicine; and
242	243		(2) employs or agrees to employ, pays or promises to
243	244		pay, or rewards or promises to reward or provide any benefit or
244	245		commission to another for soliciting or securing a patient or
245	246		patronage.
246	247		(b) A person commits an offense if the person accepts or
247	248		agrees to accept anything of value or any benefit or commission for
248	249		soliciting or securing a patient or patronage for a person who
249	250		practices the art of healing with or without the use of medicine.
250	251		(c) An offense under this section is a Class B misdemeanor
251	252		[punishable by a fine of not less than $100 or more than $200]. Each
252	253		violation of this section is a separate offense.
253	254		SECTION 11. The changes in law made by this Act apply only
254	255		to an offense committed on or after the effective date of this Act.
255	256		An offense committed before the effective date of this Act is
256	257		governed by the law in effect on the date the offense was committed,
257	258		and the former law is continued in effect for that purpose. For
258	259		purposes of this section, an offense was committed before the
259	260		effective date of this Act if any element of the offense occurred
260	261		before that date.
261	262		SECTION 12. This Act takes effect September 1, 2021.