By: Schwertner, et al. S.B. No. 207
(Bonnen, Leach, et al.)
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.