OCCUPATIONS CODE
CHAPTER 102. SOLICITATION OF PATIENTS
SUBCHAPTER A. GENERAL PROVISIONS
§ 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.
(c) An offense under this section is a felony of the third
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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 1276, § 10A.542, eff. Sept. 1, 2003.
§ 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.
(c) An offense under this section is a felony of the third
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, § 1, eff. Sept. 1, 1999.
§ 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;
(C) significant dissatisfaction of consumers of
the health care 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;
(C) providing directly to a consumer, at the
request of that 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; or
(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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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.
(c) A penalty collected under this section by the attorney
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, § 1, eff. Sept. 1, 1999.
§ 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.
(c) The civil penalty and injunction authorized by this
subchapter are in addition to any other civil, administrative, or
criminal action provided by law.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
SUBCHAPTER B. HEALING ARTS
§ 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.
(c) An offense under this section is a misdemeanor
punishable by 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
