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 -------------------------------------------------------------------