Bill Text: TX HB248 | 2023-2024 | 88th Legislature | Comm Sub
Bill Title: Relating to solicitation of patients and other prohibited marketing practices and the establishment of the task force on patient solicitation; increasing criminal penalties.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Engrossed - Dead) 2023-05-24 - Removed from local & uncontested calendar [HB248 Detail]
Download: Texas-2023-HB248-Comm_Sub.html
By: Murr (Senate Sponsor - Kolkhorst) | H.B. No. 248 | |
(In the Senate - Received from the House May 10, 2023; | ||
May 11, 2023, read first time and referred to Committee on Health & | ||
Human Services; May 19, 2023, reported favorably by the following | ||
vote: Yeas 8, Nays 0; May 19, 2023, sent to printer.) | ||
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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 the executive commissioner appoints; | ||
and | ||
(2) four members the attorney general appoints. | ||
(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 the task force requests to | ||
allow the task force to fulfill 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 conduct that violates | ||
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 [ |
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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 or | ||
chemical dependency 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; [ |
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(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 or outpatient | ||
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 the commission funds [ |
||
(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 prospective | ||
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 or disclose 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; [ |
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(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 [ |
||
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 [ |
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(c) An offense under this section is a felony of the second | ||
[ |
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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; [ |
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(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 [ |
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(c) An offense under this section is a felony of the second | ||
[ |
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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 | ||
[ |
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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, 2023. | ||
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