CHAPTER 102. SOLICITATION OF PATIENTS

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OCCUPATIONS CODE

TITLE 3. HEALTH PROFESSIONS

SUBTITLE A. PROVISIONS APPLYING TO HEALTH PROFESSIONS GENERALLY

CHAPTER 102. SOLICITATION OF PATIENTS

SUBCHAPTER A. GENERAL PROVISIONS

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 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 Class A misdemeanor.

degree if it is shown on the trial of the offense that the

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.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 102.002. REBUTTABLE PRESUMPTION. It is a rebuttable

presumption that a person violated Section 102.001 if:

(1) the person refers or accepts a referral of a patient to an

inpatient mental health facility or chemical dependency treatment

facility;

(2) before the patient is discharged or furloughed from the

facility, the person pays the referring person or accepts payment

from the facility for outpatient services to be provided by the

referring person after the patient is discharged or furloughed

from the facility; and

(3) the referring person does not provide the outpatient

services for which payment was made and does not return to the

facility the payment received for those services.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 102.003. FEDERAL LAW; CONSTRUCTION. Section 102.001

permits any payment, business arrangement, or payment practice

permitted by 42 U.S.C. Section 1320a-7b(b) or any regulation

adopted under that law.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 102.004. APPLICABILITY TO ADVERTISING. Section 102.001

does not prohibit advertising, unless the advertising is:

(1) false, misleading, or deceptive; or

(2) not readily subject to verification, if the advertising

claims professional superiority or the performance of a

professional service in a superior manner.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 102.005. APPLICABILITY TO CERTAIN ENTITIES. Section

102.001 does not apply to:

(1) a licensed insurer;

(2) a governmental entity, including:

(A) an intergovernmental risk pool established under Chapter

172, Local Government Code; and

(B) a system as defined by Section 1601.003, Insurance Code;

(3) a group hospital service corporation; or

(4) a health maintenance organization that reimburses, provides,

offers to provide, or administers hospital, medical, dental, or

other health-related benefits under a health benefits plan for

which it is the payor.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 10A.542, eff.

Sept. 1, 2003.

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 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 for securing or soliciting the patient.

(b) Except as provided by Subsection (c), an offense under this

section is a Class A misdemeanor.

degree if it is shown on the trial of the offense that the

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.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 102.007. APPLICABILITY. (a) This subchapter does not

apply to a health care information service that:

(1) provides its services to a consumer only by telephone

communication on request initiated by the consumer and without

charge to the consumer;

(2) provides information about health care providers to enable

consumer selection of health care provider services without any

direct influence by a health care provider on actual consumer

selection of those services;

(3) in response to each consumer inquiry, on a nondiscriminatory

basis, provides information identifying health care providers who

substantially meet the consumer's detailed criteria based on

consumer responses to standard questions designed to elicit a

consumer's criteria for a health care provider, including

criteria concerning location of the practice, practice

specialties, costs and payment policies, acceptance of insurance

coverage, general background and practice experience, and various

personal characteristics;

(4) does not attempt through its standard questions for

solicitation of consumer criteria or through any other means to

lead a consumer to select or consider selection of a particular

health care provider for health care provider services;

(5) identifies to a consumer:

(A) all health care providers substantially meeting the

consumer's stated criteria who are located within the zip code

area in which the consumer elects to obtain services from a

health care provider; or

(B) all health care providers substantially meeting the

consumer's stated criteria who are located in zip code areas in

the closest proximity to the elected zip code area if no health

care provider substantially meeting the consumer's criteria is

located within that zip code area;

(6) discloses to each consumer the relationship between the

health care information service and health care providers

participating in its services;

(7) does not provide or represent itself as providing diagnostic

or counseling services or assessment of illness or injury and

does not make any promise of cure or guarantee of treatment;

(8) does not provide or arrange for transportation of a consumer

to or from the location of a health care provider;

(9) does not limit the scope of or direct its advertising or

other marketing of its services to a particular health care

provider specialty, to a particular segment of the population, or

to persons suffering from a particular illness, condition, or

infirmity;

(10) charges to and collects a fee from a health care provider

participating in its services that is set in advance, is

consistent with the fair market value for those information

services, and is not based on the potential value of a patient to

a health care provider or on the value of or a percentage of the

value of a professional service provided by the health care

provider;

(11) does not limit participation by a health care provider in

its services to a particular health care specialty or to a

particular service provided by a health care provider;

(12) does not limit participation by a health care provider in

its services for a reason other than:

(A) failure to have a current license without limitation to

practice in this state;

(B) failure to maintain professional liability insurance while

participating in the service;

information service that is documented and can be proved;

(D) a decision by a peer review committee that the health care

provider has failed to meet prescribed standards or has not acted

in a professional or ethical manner; or

(E) termination of the contract between the health care provider

and the health care information service by either party under the

terms of the contract;

(13) maintains a customer service department to handle

complaints and answer questions for consumers;

(14) maintains a customer follow-up system to monitor consumer

satisfaction; and

(15) does not use, maintain, distribute, or provide for any

purpose any information that will identify a particular consumer,

such as a name, address, or telephone number, obtained from a

consumer seeking its services other than for the purposes of:

(A) providing the information to the health care provider with

whom an appointment is made;

(B) performing administrative functions necessary to operate the

health care information service;

consumer on that consumer's initial contact with the health care

information service, information relating to health-related

support groups or providers of health-care-related services or

equipment within the area of interest requested by the consumer;

(D) conducting analytical research on data obtained through

provision of services and preparing statistical reports that

generally analyze that data but do not in any manner identify one

or more specific consumers.

(b) In this section:

(1) "Health care information service" means a person who

provides information to a consumer regarding health care

providers that can enable the consumer to select one or more

health care providers to furnish health care services.

(2) "Health care provider" means a person licensed, certified,

or registered by a state health care regulatory agency other

than:

(A) a mental health facility as defined by Section 571.003,

Health and Safety Code; or

(B) a treatment facility as defined by Section 464.001, Health

and Safety Code.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 102.008. DISCIPLINARY ACTION. A violation of Section

102.001 or 102.006 is grounds for disciplinary action by the

regulatory agency that issued a license, certification, or

registration to the person who committed the violation.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 102.009. INJUNCTION. (a) The attorney general or the

appropriate district or county attorney, in the name of the

state, may institute and conduct an action in a district court of

Travis County or of a county in which any part of the violation

occurs for an injunction or other process against a person who is

violating this subchapter.

(b) The district court may grant any prohibitory or mandatory

relief warranted by the facts, including a temporary restraining

order, temporary injunction, or permanent injunction.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 102.010. CIVIL PENALTIES. (a) A person who violates this

subchapter is subject to a civil penalty of not more than $10,000

for each day of violation and each act of violation. In

determining the amount of the civil penalty, the court shall

consider:

(1) the person's previous violations;

(2) the seriousness of the violation, including the nature,

circumstances, extent, and gravity of the violation;

(3) whether the health and safety of the public was threatened

by the violation;

(4) the demonstrated good faith of the person; and

(5) the amount necessary to deter future violations.

(b) The attorney general or the appropriate district or county

attorney, in the name of the state, may institute and conduct an

action authorized by this section in a district court of Travis

County or of a county in which any part of the violation occurs.

general shall be deposited to the credit of the general revenue

fund. A penalty collected under this section by a district or

county attorney shall be deposited to the credit of the general

fund of the county in which the suit was heard.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 102.011. SUIT FOR INJUNCTIVE RELIEF OR ASSESSMENT OF CIVIL

PENALTY. (a) The party bringing a suit under this subchapter

may:

(1) combine a suit to assess and recover civil penalties with a

suit for injunctive relief; or

(2) file a suit to assess and recover civil penalties

independently of a suit for injunctive relief.

(b) The party bringing the suit may recover reasonable expenses

incurred in obtaining civil penalties, injunctive relief, or

both, including investigation costs, court costs, reasonable

attorney's fees, witness fees, and deposition expenses.

subchapter are in addition to any other civil, administrative, or

criminal action provided by law.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

SUBCHAPTER B. HEALING ARTS

Sec. 102.051. SOLICITING PATIENTS; OFFENSE. (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 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 for soliciting or securing a patient

or patronage for a person who practices the art of healing with

or without the use of medicine.

a fine of not less than $100 or more than $200. Each violation of

this section is a separate offense.

(d) For purposes of this section, a person who practices the art

of healing includes a masseur and an optometrist.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 102.052. APPLICABILITY TO PHYSICIANS. This subchapter does

not apply to a practitioner of medicine subject to regulation

under Subtitle B.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 102.053. EXCEPTION FOR CERTAIN ADVERTISING. Section

102.051 does not prohibit:

(1) placement in a newspaper of an advertisement of the person's

profession, business, or place of business; or

(2) advertisement by handbill and payment for services in

distributing the handbill.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 102.054. ACCESSIBILITY AND USE OF WITNESS TESTIMONY. (a)

A person is not exempt from giving testimony in a proceeding to

enforce Section 102.051.

(b) The testimony a person gives in a proceeding to enforce

Section 102.051 may not be used against that person in any

criminal action or proceeding. A criminal action or proceeding

may not be brought against a person because of the testimony

given by that person in a proceeding to enforce Section 102.051.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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