By: Schwertner, Buckingham, Campbell S.B. No. 207
(In the Senate - Filed November 17, 2020; March 3, 2021,
read first time and referred to Committee on State Affairs;
April 7, 2021, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 3; April 7, 2021,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 207 By: Nelson
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, a health benefit plan,
workers' compensation insurance, an employer-provided plan,
Medicaid, or Medicare, a party may introduce in evidence only the
amounts actually paid to the medical or health care 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 fair and 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, a party may introduce in evidence
the amounts paid to a medical or health care provider for services
provided to the person whose injury or death is the subject of the
action by 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 the
medical or health care provider who provided the services 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), (c), (e), (e-1), (h),
and (i) and adding Subsection (b-1) to read as follows:
(b) Unless notice of intent to controvert the
reasonableness of the amounts charged or the necessity for medical
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. The affidavit 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.
(b-1) Notwithstanding Subsection (b), the reasonableness of
charges and the necessity of services are matters for decision by
the finder of fact, and the affidavit described by Subsection (b)
has no effect except to prove the authenticity of the medical
records described by the affidavit if notice of intent to
controvert the reasonableness of the amounts charged or necessity
for medical services is served as provided by this section.
(c) The affidavit must:
(1) be taken before an officer with authority to
administer oaths;
(2) be made by:
(A) the person who provided the service; or
(B) the person in charge of records showing the
service provided and charge made; and
(3) include an itemized statement of the service and
charge using the current version of the form CMS-1450 or UB-04 or
CMS-1500 or HFCA-1500, as applicable.
(e) A party intending to controvert the reasonableness of
the amounts charged or necessity for medical 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 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. Sections 18.001(f) and (g), Civil Practice and
Remedies Code, are repealed.
SECTION 4. Sections 18.001 and 41.0105, Civil Practice and
Remedies Code, as amended 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 5. 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.
* * * * *