HBA-NIK C.S.H.B. 3479 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 3479 By: Greenberg Civil Practices 4/29/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Persons in need of mental health services can often find themselves in vulnerable positions that may impair their ability to think clearly or use sound judgement. In some cases, the situation calls for intervention from a mental health care professional. The duty of the mental health services provider is to guide the patient or client (patient) to appropriate medical or mental assistance and to discourage ongoing dependence on the mental health care professional. However, because of the imbalance of power inherent in the provider and patient relationship, a patient can be vulnerable to sexual exploitation by the professional in whom the patient has placed his or her trust. The relationship between the special officer for a mental health assignment and the patient is not covered in the Civil Practice and Remedies Code. C.S.H.B. 3479 provides certain mental health patients protection against sexual exploitation by the health care providers in whom they place their trust by expanding the definitions of mental health services provider and patient. This bill also waives the governmental immunity for a governmental unit that employs mental health services providers and allows an individual to sue the governmental unit for damages, with certain provided limitations. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Sections 81.001(2) and (3), Civil Practice and Remedies Code, to redefine "mental health services provider" and "patient." SECTION 2. Amends Chapter 81, Civil Practice and Remedies Code, by adding Section 81.010, as follows: Sec. 81.010. WAIVER OF GOVERNMENTAL IMMUNITY; PERMISSION TO SUE. (a) Defines "governmental unit." (b) Provides that a governmental unit that is an employer of a mental health services provider, including a special officer for mental health assignment, is liable under this chapter (Sexual Exploitation by Mental Health Services Provider) to the same extent as another employer of a mental health services provider. Provides that the liability of a governmental unit under this chapter is limited to money damages in the maximum amounts established under Section 101.023 (Limitation on Amount of Liability), Civil Practice and Remedies Code. (c) Provides that governmental immunity to suit is waived and abolished to the extent of the liability created by this section. Authorizes a person having a claim under this section to sue a governmental unit for damages allowed by this section. (d) Provides that Subchapter D (Procedures), Chapter 101 (Tort Claims), Civil Practice and Remedies Code, applies to a suit brought under this section. SECTION 3. Effective date: September 1, 1999. SECTION 4. (a) Provides that this Act applies to all actions commenced on or after the effective date of this Act, or pending on that effective date and in which the trial, or any new trial or retrial following motion, appeal, or otherwise, begins on or after that effective date. (b) Provides that in an action commenced before the effective date of this Act, a trial, new trial, or retrial that is in progress on the effective date is governed by the law applicable to the trial, new trial, or retrial immediately before the effective date, and that law is continued in effect for that purpose. SECTION 5. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 3479 modifies SECTION 2 of the original bill adding text providing that the liability of a governmental unit under Chapter 81, Civil Practice and Remedies Code, is limited to money damages in the maximum amounts established under Section 101.023 (Limitation on Amount of Liability), Civil Practice and Remedies Code. The substitute also modifies the original bill by providing that governmental immunity, rather than sovereign immunity, to suit is waived and abolished to the extent of the liability created by this section. C.S.H.B. 3479 also modifies SECTION 4 of the original bill, which made the application of this Act prospective, as follows: (a) Provides that this Act applies to all actions commenced on or after the effective date of this Act, or pending on that effective date and in which the trial, or any new trial or retrial following motion, appeal, or otherwise, begins on or after that effective date. (b) Provides that in an action commenced before the effective date of this Act, a trial, new trial, or retrial that is in progress on the effective date is governed by the law applicable to the trial, new trial, or retrial immediately before the effective date, and that law is continued in effect for that purpose.