1-1  By:  Van de Putte (Senate Sponsor - Wentworth)        H.B. No. 1462
    1-2        (In the Senate - Received from the House May 3, 1993;
    1-3  May 4, 1993, read first time and referred to Committee on Health
    1-4  and Human Services; May 11, 1993, reported adversely, with
    1-5  favorable Committee Substitute by the following vote:  Yeas 9, Nays
    1-6  0; May 11, 1993, sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Zaffirini          x                               
   1-10        Ellis              x                               
   1-11        Madla              x                               
   1-12        Moncrief           x                               
   1-13        Nelson             x                               
   1-14        Patterson          x                               
   1-15        Shelley            x                               
   1-16        Truan              x                               
   1-17        Wentworth          x                               
   1-18  COMMITTEE SUBSTITUTE FOR H.B. No. 1462               By:  Wentworth
   1-19                         A BILL TO BE ENTITLED
   1-20                                AN ACT
   1-21  relating to the disclosure of certain information about certain
   1-22  patients of a physician.
   1-23        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-24        SECTION 1.  Section 241.003, Health and Safety Code, is
   1-25  amended by adding Subdivisions (12) - (16) to read as follows:
   1-26              (12)  "Directory information" means information
   1-27  disclosing the presence, nature of injury, age, sex, occupation,
   1-28  municipality of residence, and general health status as described
   1-29  in terms of "critical", "serious", "fair", "good", or similar
   1-30  terms, of a patient who is an inpatient in a hospital or who is
   1-31  currently receiving emergency care in a hospital.
   1-32              (13)  "Health care information" means information
   1-33  recorded in any form or medium that identifies a patient and
   1-34  relates to the history, diagnosis, treatment, or prognosis of a
   1-35  patient.
   1-36              (14)  "Health care provider" means a person who is
   1-37  licensed, certified, or otherwise authorized by the laws of this
   1-38  state to provide health care in the ordinary course of business or
   1-39  practice of a profession.
   1-40              (15)  "Institutional review board" means a board,
   1-41  committee, or other group formally designated by an institution, or
   1-42  authorized under federal or state law to review, approve the
   1-43  initiation of, or conduct periodic review or research programs to
   1-44  assure the protection of the rights and welfare of human research
   1-45  subjects.
   1-46              (16)  "Legally authorized representative" means:
   1-47                    (A)  a parent or legal guardian if the patient is
   1-48  a minor, a legal guardian if the patient has been adjudicated
   1-49  incompetent to manage the patient's personal affairs;
   1-50                    (B)  an agent of the patient authorized under a
   1-51  durable power of attorney for health care;
   1-52                    (C)  an attorney ad litem appointed for the
   1-53  patient; or
   1-54                    (D)  a parent, spouse, adult child, or personal
   1-55  representative if the patient is deceased.
   1-56        SECTION 2.  Subchapter E, Chapter 241, Health and Safety
   1-57  Code, is amended by adding Section 241.105 to read as follows:
   1-58        Sec. 241.105.  DISCLOSURE OF CERTAIN HEALTH CARE INFORMATION.
   1-59  (a)  Except as authorized by Subsection (f), a hospital or an agent
   1-60  or employee of a hospital may not disclose health care information
   1-61  about a patient to any other person without the written
   1-62  authorization of the patient or the patient's legally authorized
   1-63  representative.
   1-64        (b)  A disclosure authorization to a hospital is valid only
   1-65  if it:
   1-66              (1)  is in writing;
   1-67              (2)  is dated and signed by the patient or legally
   1-68  authorized representative;
    2-1              (3)  identifies the information to be disclosed;
    2-2              (4)  identifies the person or entity to whom the
    2-3  information is to be disclosed; and
    2-4              (5)  states the purpose of the disclosure.
    2-5        (c)  A disclosure authorization is valid for 90 days after
    2-6  the date it is signed unless it provides otherwise or unless it is
    2-7  revoked.
    2-8        (d)  A patient or legally authorized representative may
    2-9  revoke a disclosure authorization to a hospital at any time.  A
   2-10  revocation is valid only if it is in writing, dated with a date
   2-11  that is later than the date on the original authorization, and
   2-12  signed by the patient or legally authorized representative.  A
   2-13  patient may not revoke a disclosure that is required for purposes
   2-14  of making payment to the hospital for health care provided to the
   2-15  patient.
   2-16        (e)  A patient may not maintain an action against a hospital
   2-17  for a disclosure made by the hospital in good-faith reliance on an
   2-18  authorization if the hospital's medical record director did not
   2-19  have written notice of the revocation of the authorization.
   2-20        (f)  A patient's health care information may be disclosed
   2-21  without the patient's authorization if the disclosure is:
   2-22              (1)  to a health care provider who is rendering health
   2-23  care to the patient when the request is made;
   2-24              (2)  to any employee or agent of the hospital who
   2-25  requires health care information for health care education, quality
   2-26  assurance, or peer review, or to assist the hospital in the
   2-27  delivery of health care or in complying with statutory, licensing,
   2-28  accreditation or certification requirements, and the hospital takes
   2-29  appropriate action to ensure that the employee or agent:
   2-30                    (A)  will not use or disclose the health care
   2-31  information for any other purpose; and
   2-32                    (B)  will take appropriate steps to protect the
   2-33  health care information;
   2-34              (3)  to any federal, state, or local governmental
   2-35  agency or authority to the extent authorized or required by law;
   2-36              (4)  to a hospital that is the successor in interest to
   2-37  the hospital maintaining the health care information;
   2-38              (5)  for use in a research project authorized by an
   2-39  institutional review board according to federal law;
   2-40              (6)  to health care personnel of a cancer treatment
   2-41  center or hospital involved in the recognition, prevention, cure,
   2-42  and control of cancer pursuant to Chapter 82, provided that the
   2-43  cancer treatment center or hospital takes appropriate action to
   2-44  ensure that the health care personnel:
   2-45                    (A)  will not use or disclose the health care
   2-46  information for any other purpose; and
   2-47                    (B)  will take appropriate steps to protect the
   2-48  health care information;
   2-49              (7)  to health care personnel of a penal or other
   2-50  custodial institution in which the patient is detained, but only
   2-51  for purposes of providing health care to the patient;
   2-52              (8)  directory information, unless the patient has
   2-53  instructed the hospital not to make the disclosure or unless the
   2-54  directory information is otherwise protected by Chapter 611 or
   2-55  federal regulations concerning the confidentiality of alcohol and
   2-56  drug abuse patient records (42 C.F.R. Part 2);
   2-57              (9)  pursuant to compulsory process in accordance with
   2-58  Subsection (g);
   2-59              (10)  to substantiate or collect on a claim for medical
   2-60  services or supplies;
   2-61              (11)  to a health maintenance organization for purposes
   2-62  of maintaining a statistical reporting system as required by
   2-63  Chapter 119, Title 25, Texas Administrative Code, or regulations
   2-64  adopted under the Federal Health Maintenance Organization Act; or
   2-65              (12)  to the patient's legally authorized
   2-66  representative.
   2-67        (g)  Health care information may not be disclosed by a
   2-68  hospital pursuant to compulsory legal process or discovery in any
   2-69  judicial, legislative, or administrative proceeding unless:
   2-70              (1)  the patient has authorized in writing the release
    3-1  of the health care information;
    3-2              (2)  there is an attempt to recover monetary damages
    3-3  for any physical or mental conditions, including death of the
    3-4  patient, in any civil litigation or administrative proceeding, if
    3-5  relevant, brought by the patient or a person on the patient's
    3-6  behalf;
    3-7              (3)  the patient's physical or mental condition is
    3-8  relevant to the execution of a will;
    3-9              (4)  the physical or mental condition of a deceased
   3-10  patient is placed in issue by any person claiming or defending
   3-11  through or as a beneficiary of the patient;
   3-12              (5)  the health care information is to be used in an
   3-13  involuntary commitment proceeding for court-ordered treatment or
   3-14  for a probable cause hearing under:
   3-15                    (A)  Subtitle C, Title 7;
   3-16                    (B)  Subtitle D, Title 7; or
   3-17                    (C)  Chapter 462;
   3-18              (6)  the health care information is for use in a law
   3-19  enforcement proceeding or investigation in which a health care
   3-20  provider is the subject or a party, except that health care
   3-21  information obtained under this subdivision may not be used in any
   3-22  proceeding against the patient unless the matter relates to payment
   3-23  for the patient's health care or unless authorized under
   3-24  Subdivision (9);
   3-25              (7)  the health care information is relevant to a
   3-26  proceeding brought under Subsection (p);
   3-27              (8)  the health care information is relevant to a
   3-28  criminal prosecution where the patient is a victim, witness, or
   3-29  defendant, subject to the limitation that the records are not
   3-30  discoverable until the court in which the prosecution is pending
   3-31  makes an in camera determination as to the relevancy of the records
   3-32  or communications, or any portion of the records or communications,
   3-33  and further provided that this determination does not constitute a
   3-34  determination as to the admissibility of those records or
   3-35  communications or any portion of the records or communications; or
   3-36              (9)  a court has made an in camera determination that
   3-37  the health care information of a party or a person who has placed
   3-38  his or her mental or physical condition at issue is subject to
   3-39  compulsory legal process or discovery because the party seeking the
   3-40  information has demonstrated by a preponderance of the evidence
   3-41  that the interest in access outweighs the patient's privacy
   3-42  interest.
   3-43        (h)  If health care information is sought under Subsections
   3-44  (g)(2) through (9) of this section, unless the court, for good
   3-45  cause shown, determines that the notification should be waived or
   3-46  modified, the person seeking discovery or compulsory process shall
   3-47  mail a notice by first-class mail to the patient, the patient's
   3-48  legally authorized representative, or the patient's attorney of
   3-49  record of the compulsory process or discovery request not later
   3-50  than the 10th day before the date the certificate required by this
   3-51  subsection is presented to the hospital.  Service of compulsory
   3-52  process or discovery requests on a hospital pursuant to Subsections
   3-53  (g)(2) through (9) must be accompanied by a written certification,
   3-54  signed by the person seeking to obtain health care information, or
   3-55  the person's legally authorized representative, identifying at
   3-56  least one subdivision under Subsection (g)(2) through (9) under
   3-57  which compulsory process or discovery is being sought.  The
   3-58  certification must also state that the requirements for notice of
   3-59  the compulsory process or discovery request have been met.  A
   3-60  person may sign the certification only if the person reasonably
   3-61  believes that a legitimate basis for the use of discovery or
   3-62  compulsory process is provided by a subdivision under Subsection
   3-63  (g).  Production of health care information under Subsection (g)
   3-64  does not constitute a waiver of any privilege, objection, or
   3-65  defense existing under other law, rule of evidence, or procedure.
   3-66  A hospital is not required to seek a protective order on behalf of
   3-67  the patient to prevent or limit discovery or compulsory process of
   3-68  health care information requested under Subsection (g).
   3-69        (i)  On receipt of a written authorization from a patient or
   3-70  legally authorized representative to examine or copy all or part of
    4-1  the patient's recorded health care information, a hospital, as
    4-2  promptly as required under the circumstances, but not later than
    4-3  the 15th day after the date of receiving the request, shall:
    4-4              (1)  make the information available for examination
    4-5  during regular business hours, and provide a copy to the authorized
    4-6  requestor, if requested;
    4-7              (2)  inform the authorized requestor if the information
    4-8  does not exist or cannot be found; or
    4-9              (3)  if the information is in use or unusual
   4-10  circumstances have delayed handling the request, inform the
   4-11  authorized requestor and specify in writing the reasons for the
   4-12  delay and the earliest time for examination or copying or when the
   4-13  request will be otherwise disposed of.
   4-14        (j)  A hospital may provide a record of health care
   4-15  information on paper or in any format agreed to by the hospital and
   4-16  the person who requests the record.  If a record of the health care
   4-17  information requested is not maintained by the hospital in the
   4-18  requested format, the hospital is not required to create a new
   4-19  record or reformulate an existing record to make the health care
   4-20  information available in the requested format.
   4-21        (k)  Unless precluded by contract, the hospital may charge a
   4-22  reasonable fee for providing the health care information and is not
   4-23  required to permit copying until the fee is paid except in the case
   4-24  of a medical emergency.  For purposes of this subsection, a
   4-25  reasonable fee is one that does not exceed the cost of copying set
   4-26  by rule of the Texas Workers' Compensation Commission for records
   4-27  and may not include any costs that are otherwise recouped as a part
   4-28  of charges for health care.
   4-29        (l)  A hospital may deny a patient access to the patient's
   4-30  health care information if a member of the hospital medical staff
   4-31  responsible for the care and management of the patient reasonably
   4-32  concludes that access to the information would be harmful to the
   4-33  physical, mental, or  emotional health of the patient and clearly
   4-34  documents that conclusion in the patient's health care information.
   4-35  The hospital medical staff shall delete confidential information
   4-36  about another person who has not consented to the release, but may
   4-37  not delete information relating to the patient that another person
   4-38  has provided, the identity of the person responsible for that
   4-39  information, or the identity of any person who provided information
   4-40  that resulted in the patient's commitment, admission, or treatment.
   4-41  If a member of the hospital medical staff denies a patient's
   4-42  request for examination and copying, in whole or in part, the
   4-43  hospital shall permit examination and copying of the record by
   4-44  another health care provider, selected by the patient, who is
   4-45  licensed, certified or otherwise authorized by state law to treat
   4-46  the patient for the same condition as the member of the hospital
   4-47  medical staff denying the request.
   4-48        (m)  A hospital shall deny access to health care information
   4-49  if the health care information is made confidential by law, and is
   4-50  not subject to any exception to confidentiality contained in this
   4-51  section or any common or statutory law.
   4-52        (n)  A hospital is immune from liability for a disclosure
   4-53  made in good faith in reliance on the representations and actions
   4-54  of the patient's legally authorized representative.
   4-55        (o)  A hospital shall adopt and implement reasonable
   4-56  safeguards for the security of all health care information it
   4-57  maintains.
   4-58        (p)  A patient aggrieved by a violation of this section
   4-59  relating to the unauthorized release of confidential health care
   4-60  information may petition the district court of the county in which
   4-61  the patient resides, or if the patient is not a resident of this
   4-62  state, the district court of Travis County, for appropriate
   4-63  injunctive relief.  A patient aggrieved by a violation of this
   4-64  section relating to the unauthorized release of confidential health
   4-65  care information may sue for damages caused by that release in a
   4-66  district court of the county in which the patient resides, or if
   4-67  the patient is not a resident of this state, the district court of
   4-68  Travis County.
   4-69        SECTION 3.  Section 576.005, Health and Safety Code, is
   4-70  amended to read as follows:
    5-1        Sec. 576.005.  Confidentiality of Records.  (a)  Records of a
    5-2  mental health facility that directly or indirectly identify a
    5-3  present, former, or proposed patient are confidential unless
    5-4  disclosure is permitted by other state law.
    5-5        (b)  If a treating physician determines that it is in the
    5-6  best interest of a patient under the treating physician's care, the
    5-7  treating physician may disclose necessary information that may
    5-8  identify the patient, but only to a:
    5-9              (1)  law enforcement officer; or
   5-10              (2)  the patient's legally authorized representative.
   5-11        (c)  A disclosure under Subsection (b) may not be made if the
   5-12  patient gives contrary written instructions to the treating
   5-13  physician.
   5-14        SECTION 4.  Section 1.03(a), Medical Practice Act (Article
   5-15  4495b, Vernon's Texas Civil Statutes), is amended by adding
   5-16  Subdivisions (15) and (16) to read as follows:
   5-17              (15)  "Legally authorized representative" means:
   5-18                    (A)  a parent or legal guardian if the patient is
   5-19  a minor, a legal guardian if the patient has been adjudicated
   5-20  incompetent to manage the patient's personal affairs;
   5-21                    (B)  an agent of the patient authorized under a
   5-22  durable power of attorney for health care;
   5-23                    (C)  an attorney ad litem appointed for the
   5-24  patient; or
   5-25                    (D)  a parent, spouse, adult child, or personal
   5-26  representative if the patient is deceased.
   5-27              (16)  "Medical records" means any records pertaining to
   5-28  the history, diagnosis, treatment, or prognosis of the patient.
   5-29        SECTION 5.  Sections 5.08 (g), (h), and (k), Medical Practice
   5-30  Act (Article 4495b, Vernon's Texas Civil Statutes), are amended to
   5-31  read as follows:
   5-32        (g)  Exceptions to confidentiality or privilege in court or
   5-33  administrative proceedings exist:
   5-34              (1)  when the proceedings are brought by the patient
   5-35  against a physician, including malpractice proceedings, and any
   5-36  criminal or license revocation proceeding in which the patient is a
   5-37  complaining witness and in which disclosure is relevant to the
   5-38  claims or defense of a physician;
   5-39              (2)  when the patient or someone authorized to act on
   5-40  the patient's <his> behalf submits a written consent to the release
   5-41  of any confidential information, as provided in Subsection (j) of
   5-42  this section;
   5-43              (3)  when the purpose of the proceedings is to
   5-44  substantiate and collect on a claim for medical services rendered
   5-45  to the patient;
   5-46              (4)  in any civil litigation or administrative
   5-47  proceeding, if relevant, brought by the patient or someone on the
   5-48  patient's <his> behalf if the patient is attempting to recover
   5-49  monetary damages for any physical or mental condition including
   5-50  death of the patient.  Any information is discoverable in any court
   5-51  or administrative proceeding in this state if the court or
   5-52  administrative body has jurisdiction over the subject matter,
   5-53  pursuant to rules of procedure specified for the matters;
   5-54              (5)  in any disciplinary investigation or proceeding of
   5-55  a physician conducted under or pursuant to this Act, provided that
   5-56  the board shall protect the identity of any patient whose medical
   5-57  records are examined, except for those patients covered under
   5-58  Subdivision (1) of this subsection <Subsection (g) of this section>
   5-59  or those patients who have submitted written consent to the release
   5-60  of their medical records as provided by Subsection (j) of this
   5-61  section;
   5-62              (6)  in any criminal investigation of a physician in
   5-63  which the board is participating or assisting in the investigation
   5-64  or proceeding by providing certain medical records obtained from
   5-65  the physician, provided that the board shall protect the identity
   5-66  of any patient whose medical records are provided in the
   5-67  investigation or proceeding, except for those patients covered
   5-68  under Subdivision (1) of this subsection <Subsection (g) of this
   5-69  section> or those patients who have submitted written consent to
   5-70  the release of their medical records as provided by Subsection (j)
    6-1  of this section.  This subsection does not authorize the release of
    6-2  any confidential information for the purpose of instigating or
    6-3  substantiating criminal charges against a patient;
    6-4              (7)  in an involuntary civil commitment proceeding,
    6-5  proceeding for court-ordered treatment, or probable cause hearing
    6-6  under:
    6-7                    (A)  Subtitle C, Title 7, Health and Safety Code
    6-8  <the Texas Mental Health Code (Article 5547-1 et seq., Vernon's
    6-9  Texas Civil Statutes)>;
   6-10                    (B)  Subtitle D, Title 7, Health and Safety Code
   6-11  <the Mentally Retarded Persons Act of 1977 (Article 5547-300,
   6-12  Vernon's Texas Civil Statutes)>; or
   6-13                    (C)  Chapter 462, Health and Safety Code;
   6-14  <Section 9, Chapter 411, Acts of the 53rd Legislature, Regular
   6-15  Session, 1953 (Article 5561c, Vernon's Texas Civil Statutes)>;
   6-16                    <(D)  Section 2, Chapter 543, Acts of the 61st
   6-17  Legislature, Regular Session, 1969 (Article 5561c-1, Vernon's Texas
   6-18  Civil Statutes); or>
   6-19              (8)  in any criminal prosecution where the patient is a
   6-20  victim, witness, or defendant.  Records are not discoverable until
   6-21  the court in which the prosecution is pending makes an in camera
   6-22  determination as to the relevance of the records or communications
   6-23  or any portion thereof.  Such determination shall not constitute a
   6-24  determination as to the admissibility of such records or
   6-25  communications or any portion thereof;
   6-26              (9)  when the patient's physical or mental condition is
   6-27  relevant to the execution of a will;
   6-28              (10)  when the physical or mental condition of a
   6-29  deceased patient is placed in issue by any person claiming or
   6-30  defending through or as a beneficiary of the patient;
   6-31              (11)  when the information is relevant to a proceeding
   6-32  brought under Subsection (1) of this section;
   6-33              (12)  when a court has made an in camera determination
   6-34  that the medical records of a party or person who has placed his or
   6-35  her mental or physical condition at issue are subject to compulsory
   6-36  legal process or discovery because the party seeking the
   6-37  information has demonstrated by a preponderance of the evidence
   6-38  that the interest in access outweighs the patient's privacy
   6-39  interest; or
   6-40              (13)  to satisfy a request for medical records by the
   6-41  patient's legally authorized representative.
   6-42        (h)  Exceptions to the privilege of confidentiality, in other
   6-43  than court or administrative proceedings, allowing disclosure of
   6-44  confidential information by a physician, exist only to the
   6-45  following:
   6-46              (1)  governmental agencies if the disclosures are
   6-47  required or authorized by law;
   6-48              (2)  medical or law enforcement personnel if the
   6-49  physician determines that there is a probability of imminent
   6-50  physical injury to the patient, to himself, or to others, or if
   6-51  there is a probability of immediate mental or emotional injury to
   6-52  the patient;
   6-53              (3)  qualified personnel for the purpose of management
   6-54  audits, financial audits, program evaluations, or research, but the
   6-55  personnel may not identify, directly or indirectly, a patient in
   6-56  any report of the research, audit, or evaluation or otherwise
   6-57  disclose identity in any manner;
   6-58              (4)  those parts of the medical records reflecting
   6-59  charges and specific services rendered when necessary in the
   6-60  collection of fees for medical services provided by a physician or
   6-61  physicians or professional associations or other entities qualified
   6-62  to render or arrange for medical services;
   6-63              (5)  any person who bears a written consent of the
   6-64  patient or other person authorized to act on the patient's behalf
   6-65  for the release of confidential information, as provided by
   6-66  Subsection (j) of this section;
   6-67              (6)  individuals, corporations, or governmental
   6-68  agencies involved in the payment or collection of fees for medical
   6-69  services rendered by a physician;
   6-70              (7)  other physicians and personnel under the direction
    7-1  of the physician who are participating in the diagnosis,
    7-2  evaluation, or treatment of the patient; <or>
    7-3              (8)  in any official legislative inquiry regarding
    7-4  state hospitals or state schools, provided that no information or
    7-5  records which identify a patient or client shall be released for
    7-6  any purpose unless proper consent to the release is given by the
    7-7  patient, and only records created by the state hospital or school
    7-8  or its employees shall be included under this subsection;
    7-9              (9)  any employee or agent of the physician who
   7-10  requires medical records for health care education, quality
   7-11  assurance, or peer review, or to assist the physician in the
   7-12  delivery of health care or in complying with statutory, licensing,
   7-13  or accreditation requirements, and the physician takes appropriate
   7-14  action to ensure that the employee or agent:
   7-15                    (A)  will not use or disclose the information for
   7-16  any other purpose; and
   7-17                    (B)  will take appropriate steps to protect the
   7-18  information; or
   7-19              (10)  a patient's legally authorized representative.
   7-20        (k)  A physician shall furnish copies of medical records
   7-21  requested, or a summary or narrative of the records, pursuant to a
   7-22  written consent for release of the information as provided by
   7-23  Subsection (j) of this section, except if the physician determines
   7-24  that access to the information would be harmful to the physical,
   7-25  mental, or emotional health of the patient, and the physician may
   7-26  delete confidential information about another person who has not
   7-27  consented to the release.  The information shall be furnished by
   7-28  the physician within a reasonable period of time.  The original
   7-29  medical record created and maintained or received and maintained by
   7-30  the physician remains the property of the physician. <and
   7-31  reasonable fees for furnishing the information shall be paid by the
   7-32  patient or someone on his behalf.  In this subsection, "medical
   7-33  records" means any records pertaining to the history, diagnosis,
   7-34  treatment, or prognosis of the patient>.
   7-35        SECTION 6.  Section 5.08(j)(2), Medical Practice Act (Article
   7-36  4495b, Vernon's Texas Civil Statutes), is amended to read as
   7-37  follows:
   7-38              (2)  The patient, or other person authorized to
   7-39  consent, has the right to withdraw the patient's <his> consent to
   7-40  the release of any information.  Withdrawal of consent does not
   7-41  affect any information disclosed prior to the written notice of the
   7-42  withdrawal.  A patient may not maintain an action against a
   7-43  physician for a disclosure made by the physician in good-faith
   7-44  reliance on an authorization if the physician did not have written
   7-45  notice of the revocation of the authorization.
   7-46        SECTION 7.  Section 5.08, Medical Practice Act (Article
   7-47  4495b, Vernon's Texas Civil Statutes), is amended by adding
   7-48  Subsections (n)-(q) to read as follows:
   7-49        (n)  A physician may provide a record of health care
   7-50  information on paper or in any format agreed to by the physician
   7-51  and the person who requests the record.  If a medical record
   7-52  requested is not maintained by the physician in the requested
   7-53  format, the physician is not required to create a new medical
   7-54  record or reformulate an existing medical record to make the
   7-55  information available in the requested format.
   7-56        (o)  Unless precluded by contract, the physician may charge a
   7-57  reasonable fee for copying medical records and is not required to
   7-58  permit copying until the fee is paid except in the case of a
   7-59  medical emergency.  For purposes of this subsection, a reasonable
   7-60  fee is one that does not exceed the actual cost of reproduction and
   7-61  may not include any costs that are otherwise recouped as a part of
   7-62  charges for health care.
   7-63        (p)  If medical records are sought under Subsection (g) of
   7-64  this section, unless the court, for good cause shown, determines
   7-65  that the notification should be waived or modified, the person
   7-66  seeking discovery or compulsory process shall mail a notice by
   7-67  first-class mail to the patient, the patient's legally authorized
   7-68  representative, or the patient's attorney of record of the
   7-69  compulsory process or discovery request not later than the 10th day
   7-70  before the date the certificate required by this subsection is
    8-1  presented to the physician.  Service of compulsory process or
    8-2  discovery requests on a physician must be accompanied by a written
    8-3  certification, signed by the person seeking to obtain medical
    8-4  records, or the person's legally authorized representative,
    8-5  identifying at least one subdivision under Subsection (g) of this
    8-6  section under which compulsory process or discovery is being
    8-7  sought.  The certification must also state that the requirements
    8-8  for notice of the compulsory process or discovery request have been
    8-9  met.  A person may sign the certification only if the person
   8-10  reasonably believes that a legitimate basis for the use of
   8-11  discovery or compulsory process is provided by a subdivision under
   8-12  Subsection (g) of this section.  Production of medical records
   8-13  under Subsection (g) of this section does not constitute a waiver
   8-14  of any privilege, objection, or defense existing under other law,
   8-15  rule of evidence, or procedure.  A physician is not required to
   8-16  seek a protective order on behalf of a patient to prevent or limit
   8-17  discovery or compulsory process of medical records requested under
   8-18  Subsection (g) of this section.
   8-19        (q)  A physician is immune from liability for a disclosure
   8-20  made in good faith in reliance on the representations and actions
   8-21  of the patient's legally authorized representative.
   8-22        SECTION 8.  Section 611.004, Health and Safety Code, is
   8-23  amended to read as follows:
   8-24        Sec. 611.004.  AUTHORIZED DISCLOSURE OF CONFIDENTIAL
   8-25  INFORMATION OTHER THAN COURT PROCEEDINGS.  (a)  A professional may
   8-26  disclose confidential information only:
   8-27              (1)  to a governmental agency if the disclosure is
   8-28  required or authorized by law;
   8-29              (2)  to medical or law enforcement personnel if the
   8-30  professional determines that there is a probability of imminent
   8-31  physical injury by the patient to the patient or others or there is
   8-32  a probability of immediate mental or emotional injury to the
   8-33  patient;
   8-34              (3)  to qualified personnel for management audits,
   8-35  financial audits, program evaluations, or research, in accordance
   8-36  with Subsection (b);
   8-37              (4)  to a person who has the written consent of the
   8-38  patient<, or a parent if the patient is a minor, or a guardian if
   8-39  the patient has been adjudicated as incompetent to manage the
   8-40  patient's personal affairs>;
   8-41              (5)  to the patient's legally authorized representative
   8-42  <personal representative if the patient is deceased>;
   8-43              (6)  to individuals, corporations, or governmental
   8-44  agencies involved in paying or collecting fees for mental or
   8-45  emotional health services provided by a professional;
   8-46              (7)  to other professionals and personnel under the
   8-47  professionals' direction who participate in the diagnosis,
   8-48  evaluation, or treatment of the patient or who require mental
   8-49  health care information for mental health care education, quality
   8-50  assurance, or peer review, or to assist the professional in the
   8-51  delivery of mental health care services or in complying with
   8-52  statutory, licensing, or accreditation requirements, if the
   8-53  professional has taken appropriate action to ensure that the
   8-54  person:
   8-55                    (A)  will not use or disclose the information for
   8-56  any other purposes; and
   8-57                    (B)  will take appropriate steps to protect the
   8-58  information; or
   8-59              (8)  in an official legislative inquiry relating to a
   8-60  state hospital or state school as provided by Subsection (c).<; or>
   8-61              <(9)  in a civil action or in a criminal case or
   8-62  criminal law matter as otherwise allowed by law or rule.>
   8-63        (b)  Personnel who receive confidential information under
   8-64  Subsection (a)(3) may not directly or indirectly identify or
   8-65  otherwise disclose the identity of a patient in a report or in any
   8-66  other manner.
   8-67        (c)  The exception in Subsection (a)(8) applies only to
   8-68  records created by the state hospital or state school or by the
   8-69  employees of the hospital or school.  Information or records that
   8-70  identify a patient may be released only with the patient's proper
    9-1  consent.
    9-2        (d)  A person who receives information from confidential
    9-3  communications or records may not disclose the information except
    9-4  to the extent that disclosure is consistent with the authorized
    9-5  purposes for which the person first obtained the information.  This
    9-6  subsection does not apply to a person listed in Subsection (a)(4)
    9-7  or (a)(5) who is acting on the patient's behalf.
    9-8        SECTION 9.  Chapter 611, Health and Safety Code, is amended
    9-9  by adding Section 611.0045 to read as follows:
   9-10        Sec. 611.0045.  RIGHT TO MENTAL HEALTH RECORD.  (a)  Except
   9-11  as otherwise provided by this section, a patient is entitled to
   9-12  have access to the content of a confidential record made about the
   9-13  patient.
   9-14        (b)  The professional may deny access to any portion of a
   9-15  record if the professional determines that release of that portion
   9-16  would be harmful to the patient's physical, mental, or emotional
   9-17  health.
   9-18        (c)  If the professional denies access to any portion of a
   9-19  record, the professional shall give the patient a signed and dated
   9-20  written statement that having access to the record would be harmful
   9-21  to the patient's physical, mental, or emotional health and shall
   9-22  include a copy of the written statement in the patient's records.
   9-23  The statement must specify the portion of the record to which
   9-24  access is denied, the reason for denial, and the duration of the
   9-25  denial.
   9-26        (d)  The professional who denies access to a portion of a
   9-27  record under this section shall redetermine the necessity for the
   9-28  denial at least quarterly and at each time a request for the denied
   9-29  portion is made.  If the professional again denies access, the
   9-30  professional shall notify the patient of the denial and document
   9-31  the denial as prescribed by Subsection (c).
   9-32        (e)  If the professional denies access to a portion of a
   9-33  confidential record, the professional shall allow examination and
   9-34  copying of the record by another professional if the patient
   9-35  selects the professional to treat the patient for the same or a
   9-36  related condition as the professional denying access.
   9-37        (f)  The content of a confidential record shall be made
   9-38  available to a person listed by Section 611.004(a)(4) or (5) who is
   9-39  acting on the patient's behalf.
   9-40        (g)  A professional shall delete confidential information
   9-41  about another person who has not consented to the release, but may
   9-42  not delete information relating to the patient that another person
   9-43  has provided, the identity of the person responsible for that
   9-44  information, or the identity of any person who provided information
   9-45  that resulted in the patient's commitment, admission, or treatment.
   9-46        (h)  If a summary or narrative of a confidential record is
   9-47  requested by the patient or other person requesting release under
   9-48  this section, the professional shall prepare the summary or
   9-49  narrative.
   9-50        (i)  The professional or other entity that has possession or
   9-51  control of the record shall grant access to any portion of the
   9-52  record to which access is not specifically denied under this
   9-53  section within a reasonable time and may charge a reasonable fee.
   9-54        (j)  Notwithstanding Section 5.08, Medical Practice Act
   9-55  (Article 4495b, Vernon's Texas Civil Statutes), this section
   9-56  applies to the release of a confidential record created or
   9-57  maintained by a professional, including a physician, that relates
   9-58  to the diagnosis, evaluation, or treatment of a mental or emotional
   9-59  condition or disorder, including alcoholism or drug addiction.
   9-60        (k)  The denial of a patient's access to any portion of a
   9-61  record by the professional or other entity that has possession or
   9-62  control of the record suspends, until the release of that portion
   9-63  of the record, the running of an applicable statute of limitations
   9-64  on a cause of action in which evidence relevant to the cause of
   9-65  action is in that portion of the record.
   9-66        SECTION 10.  Chapter 611, Health and Safety Code, is amended
   9-67  by adding Sections 611.006-611.008 to read as follows:
   9-68        Sec. 611.006.  AUTHORIZED DISCLOSURE OF CONFIDENTIAL
   9-69  INFORMATION IN COURT PROCEEDINGS.  (a)  A professional may disclose
   9-70  confidential information in a court proceeding:
   10-1              (1)  when the proceedings are brought by the patient
   10-2  against a professional, including malpractice proceedings;
   10-3              (2)  in a license revocation proceeding in which the
   10-4  patient is a complaining witness and in which disclosure is
   10-5  relevant to the claim or defense of a professional;
   10-6              (3)  when the patient waives the patient's right in
   10-7  writing to the privilege of confidentiality of any information, or
   10-8  when the patient's legally authorized representative acting on the
   10-9  patient's behalf submits a written waiver to the confidentiality
  10-10  privilege;
  10-11              (4)  when the purpose of the proceeding is to
  10-12  substantiate and collect on a claim for mental or emotional health
  10-13  services rendered to the patient;
  10-14              (5)  when the judge finds that the patient after having
  10-15  been previously informed that communications would not be
  10-16  privileged has made communications to a professional in the course
  10-17  of a court-ordered examination relating to the patient's mental or
  10-18  emotional condition or disorder, except that those communications
  10-19  may be disclosed only with respect to issues involving the
  10-20  patient's mental or emotional health;
  10-21              (6)  when the disclosure is relevant in a suit
  10-22  affecting the parent-child relationship;
  10-23              (7)  in any criminal proceeding;
  10-24              (8)  in any proceeding regarding the abuse or neglect,
  10-25  or the cause of abuse or neglect, of a resident of an institution,
  10-26  as that term is defined by Chapter 242;
  10-27              (9)  when the patient's physical or mental condition is
  10-28  relevant to the execution of a will;
  10-29              (10)  when the physical or mental condition of a
  10-30  deceased patient is placed in issue by any person claiming or
  10-31  defending through or as a beneficiary of the patient;
  10-32              (11)  when the information is to be used in an
  10-33  involuntary commitment proceeding for court-ordered treatment or
  10-34  for a probably cause hearing under;
  10-35                    (A)  Subtitle C;
  10-36                    (B)  Subtitle D; or
  10-37                    (C)  Chapter 462;
  10-38              (12)  when a court has made an in camera determination
  10-39  that the information of a party or person who has placed his or her
  10-40  mental or physical condition at issue is subject to compulsory
  10-41  legal process or discovery because the party seeking the
  10-42  information has demonstrated by a preponderance of the evidence
  10-43  that the interest in access outweighs the patient's privacy
  10-44  interest; or
  10-45              (13)  to a patient's legally authorized representative.
  10-46        (b)  On granting an order under Subsection (a)(5), the court,
  10-47  in determining the extent to which any disclosure of all or any
  10-48  party of any communication is necessary, shall impose appropriate
  10-49  safeguards against unauthorized disclosure.
  10-50        Sec. 611.007.  DISCOVERY OR COMPULSORY PROCESS.  (a)  If
  10-51  mental health care information is sought under Section 611.006,
  10-52  unless the court, for good cause shown, determines that the
  10-53  notification should be waived or modified, the person seeking
  10-54  discovery or compulsory process shall mail a notice by first-class
  10-55  mail to the patient or the patient's attorney of record of the
  10-56  compulsory process or discovery request not later than the 10th day
  10-57  before the date the certificate required by this section is
  10-58  presented to the professional.
  10-59        (b)  Service of compulsory process or discovery requests on a
  10-60  professional must be accompanied by a written certification, signed
  10-61  by the person seeking to obtain information, or the person's
  10-62  legally authorized representative, identifying at least one
  10-63  subdivision of Section 611.006 under which compulsory process or
  10-64  discovery is being sought.  The certification must also state that
  10-65  the requirements for notice of the compulsory process or discovery
  10-66  request have been met.
  10-67        (c)  A person may sign the certification only if the person
  10-68  reasonably believes that a legitimate basis for the use of
  10-69  discovery or compulsory process is provided by a subdivision of
  10-70  Section 611.006.
   11-1        (d)  Production of information under Section 611.006 does not
   11-2  constitute a waiver of any privilege, objection, or defense
   11-3  existing under other law, rule of evidence, or procedure.
   11-4        (e)  A professional is not required to seek a protective
   11-5  order on behalf of the patient to prevent or limit discovery or
   11-6  compulsory process of mental health care information requested
   11-7  under Section 611.006.
   11-8        Sec. 611.008.  REVOCATION OF CONSENT.  (a)  A patient or
   11-9  legally authorized representative may revoke a disclosure consent
  11-10  to a professional at any time.  A revocation is valid only if it is
  11-11  written, dated, and signed by the patient or legally authorized
  11-12  representative.  A patient may not revoke a disclosure that is
  11-13  required for purposes of making payment to the professional for
  11-14  mental health care services provided to the patient.
  11-15        (b)  A patient may not maintain an action against
  11-16  professional for a disclosure made by the professional in
  11-17  good-faith reliance on an authorization if the professional did not
  11-18  have written notice of the revocation of the consent.
  11-19        SECTION 11.  (a)  Except as provided by Subsection (b) of
  11-20  this section, this Act applies to the disclosure of health care
  11-21  information, medical records, and mental health care information on
  11-22  or after January 1, 1994.
  11-23        (b)  Section 9 of this Act applies to the disclosure of
  11-24  health care information, medical records, and mental health care
  11-25  information on or after the date of passage of this Act.
  11-26        SECTION 12.  This Act takes effect September 1, 1993, except
  11-27  that Section 9 takes effect immediately.
  11-28        SECTION 13.  The importance of this legislation and the
  11-29  crowded condition of the calendars in both houses create an
  11-30  emergency and an imperative public necessity that the
  11-31  constitutional rule requiring bills to be read on three several
  11-32  days in each house be suspended, and this rule is hereby suspended,
  11-33  and that this Act take effect and be in force according to its
  11-34  terms, and it is so enacted.
  11-35                               * * * * *
  11-36                                                         Austin,
  11-37  Texas
  11-38                                                         May 11, 1993
  11-39  Hon. Bob Bullock
  11-40  President of the Senate
  11-41  Sir:
  11-42  We, your Committee on Health and Human Services to which was
  11-43  referred H.B. No. 1462, have had the same under consideration, and
  11-44  I am instructed to report it back to the Senate with the
  11-45  recommendation that it do not pass, but that the Committee
  11-46  Substitute adopted in lieu thereof do pass and be printed.
  11-47                                                         Zaffirini,
  11-48  Chair
  11-49                               * * * * *
  11-50                               WITNESSES
  11-51                                                  FOR   AGAINST  ON
  11-52  ___________________________________________________________________
  11-53  Name:  Charlotte Provencher                      x
  11-54  Representing:  Tx Alliance for the Mentally Ill
  11-55  City:  Austin
  11-56  -------------------------------------------------------------------
  11-57  Name:  Deborah Berndt                                    x
  11-58  Representing:  Mental Health Association
  11-59  City:  Austin
  11-60  -------------------------------------------------------------------