By: Madla S.B. No. 1098
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the disclosure of health and mental health care
1-2 information by a provider.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 241.003, Health and Safety Code, is
1-5 amended by adding Subdivisions (12)-(16) to read as follows:
1-6 (12) "Directory information" means information
1-7 disclosing the presence, nature of injury or illness, age, sex,
1-8 occupation, municipality of residence, and general health status,
1-9 as described in terms of "critical," "poor," "fair," "good,"
1-10 "excellent," or similar terms, of a patient who is an inpatient in
1-11 a hospital or who is currently receiving emergency care in a
1-12 hospital.
1-13 (13) "Health care information" means information
1-14 recorded in any form or medium that identifies a patient and
1-15 relates to the history, diagnosis, treatment, or prognosis of a
1-16 patient.
1-17 (14) "Health care provider" means a person who is
1-18 licensed, certified, or otherwise authorized by the laws of this
1-19 state to provide health care in the ordinary course of business or
1-20 practice of a profession.
1-21 (15) "Institutional review board" means a board,
1-22 committee, or other group formally designated by an institution, or
1-23 authorized under federal or state law, to review, approve the
2-1 initiation of, or conduct periodic review or research programs to
2-2 assure the protection of the rights and welfare of human research
2-3 subjects.
2-4 (16) "Legally authorized representative" means a
2-5 parent or legal guardian if the patient is a minor, a legal
2-6 guardian if the patient has been adjudicated incompetent to manage
2-7 the patient's personal affairs, an agent of the patient authorized
2-8 under a durable power of attorney for health care, an attorney ad
2-9 litem appointed for the patient, or a personal representative if
2-10 the patient is deceased.
2-11 SECTION 2. Subchapter E, Chapter 241, Health and Safety
2-12 Code, is amended by adding Section 241.105 to read as follows:
2-13 Sec. 241.105. DISCLOSURE OF CERTAIN HEALTH CARE INFORMATION.
2-14 (a) Except as authorized by Subsection (f), a hospital or an agent
2-15 or employee of a hospital may not disclose health care information
2-16 about a patient to any other person without the written
2-17 authorization of the patient or the patient's legally authorized
2-18 representative.
2-19 (b) A disclosure authorization to a hospital is valid only
2-20 if it:
2-21 (1) is in writing;
2-22 (2) is dated and signed by the patient or legally
2-23 authorized representative;
2-24 (3) identifies the information to be disclosed;
2-25 (4) identifies the person or entity to whom the
3-1 information is to be disclosed; and
3-2 (5) states the purpose of the disclosure.
3-3 (c) A disclosure authorization is valid for 90 days after
3-4 the date it is signed unless it provides otherwise or unless it is
3-5 revoked.
3-6 (d) A patient or legally authorized representative may
3-7 revoke a disclosure authorization to a hospital at any time. A
3-8 revocation is valid only if it is in writing, dated with a date
3-9 that is later than the date on the original authorization, and
3-10 signed by the patient or legally authorized representative. A
3-11 patient may not revoke a disclosure that is required for purposes
3-12 of making payment to the hospital for health care provided to the
3-13 patient.
3-14 (e) A patient may not maintain an action against a hospital
3-15 for a disclosure made by the hospital in good-faith reliance on an
3-16 authorization if the hospital's medical record director did not
3-17 have written notice of the revocation of the authorization.
3-18 (f) A patient's health care information may be disclosed
3-19 without the patient's authorization if the disclosure is:
3-20 (1) to a health care provider who is rendering health
3-21 care to the patient when the request is made;
3-22 (2) to any employee or agent of the hospital who
3-23 requires health care information for health care education, or to
3-24 provide planning, quality assurance, peer review, or
3-25 administrative, legal, financial, or actuarial services to the
4-1 hospital, or to assist the hospital in the delivery of health care
4-2 or in complying with statutory, licensing, accreditation, or
4-3 certification requirements, and the hospital takes appropriate
4-4 action to ensure that the employee or agent:
4-5 (A) will not use or disclose the health care
4-6 information for any other purpose; and
4-7 (B) will take appropriate steps to protect the
4-8 health care information;
4-9 (3) to any federal, state, or local governmental
4-10 agency or authority to the extent authorized or required by law;
4-11 (4) to a hospital that is the successor in interest to
4-12 the hospital maintaining the health care information;
4-13 (5) for use in a research project authorized by an
4-14 institutional review board according to federal law;
4-15 (6) to health care personnel of a penal or other
4-16 custodial institution in which the patient is detained, but only
4-17 for purposes of providing health care to the patient;
4-18 (7) directory information, unless the patient has
4-19 instructed the hospital not to make the disclosure or unless the
4-20 directory information is otherwise protected by Chapter 239, Acts
4-21 of the 66th Legislature, Regular Session, 1979 (Article 5561h,
4-22 Vernon's Texas Civil Statutes), or federal regulations concerning
4-23 the confidentiality of alcohol and drug abuse patient records (42
4-24 C.F.R. Part 2);
4-25 (8) pursuant to compulsory process in accordance with
5-1 Subsection (g) of this section;
5-2 (9) to facilitate reimbursement by a health benefit
5-3 plan to a hospital, other health care provider, or the patient for
5-4 medical services or supplies; or
5-5 (10) to a health maintenance organization for purposes
5-6 of maintaining a statistical reporting system as required by
5-7 Chapter 119, Title 25, Texas Administrative Code, or regulations
5-8 adopted under the Federal Health Maintenance Organization Act.
5-9 (g) Health care information may not be disclosed by a
5-10 hospital pursuant to compulsory legal process or discovery in any
5-11 judicial, legislative, or administrative proceeding unless:
5-12 (1) the patient has authorized in writing the release
5-13 of the health care information in response to compulsory process or
5-14 a discovery request;
5-15 (2) there is an attempt to recover monetary damages
5-16 for any physical or mental conditions, including death of the
5-17 patient, in any civil litigation or administrative proceeding, if
5-18 relevant, brought by the patient or a person on the patient's
5-19 behalf;
5-20 (3) the patient's physical or mental condition is
5-21 relevant to the execution of a will;
5-22 (4) the physical or mental condition of a deceased
5-23 patient is placed in issue by any person claiming or defending
5-24 through or as a beneficiary of the patient;
5-25 (5) the health care information is to be used in an
6-1 involuntary commitment proceeding for court-ordered treatment or
6-2 for a probable cause hearing under:
6-3 (A) the Texas Mental Health Code (Article 5547-1
6-4 et seq., Vernon's Texas Civil Statutes);
6-5 (B) the Mentally Retarded Persons Act of 1977
6-6 (Article 5547-300, Vernon's Texas Civil Statutes); or
6-7 (C) Chapter 462;
6-8 (6) the health care information is for use in a law
6-9 enforcement proceeding or investigation in which a health care
6-10 provider is the subject or a party, except that health care
6-11 information obtained under this subdivision may not be used in any
6-12 proceeding against the patient unless the matter relates to payment
6-13 for the patient's health care or unless authorized under
6-14 Subdivision (9);
6-15 (7) the health care information is relevant to a
6-16 proceeding brought under Subsection (q);
6-17 (8) the health care information is relevant to a
6-18 criminal prosecution where the patient is a victim, witness, or
6-19 defendant, subject to the limitation that the records are not
6-20 discoverable until the court in which the prosecution is pending
6-21 makes an in camera determination as to the relevancy of the records
6-22 or communications, or any portion of the records or communications,
6-23 and further provided that this determination does not constitute a
6-24 determination as to the admissibility of those records or
6-25 communications or any portion of the records or communications; or
7-1 (9) a court has determined that the health care
7-2 information of a party or a person who has placed his mental or
7-3 physical condition at issue is subject to compulsory legal process
7-4 or discovery because the party seeking the information has
7-5 demonstrated by clear and convincing evidence that the interest in
7-6 access outweighs the patient's privacy interest.
7-7 (h) If health care information is sought under Subsection
7-8 (g) of this section, unless the court, for good cause shown,
7-9 determines that the notification should be waived or modified, the
7-10 person seeking discovery or compulsory process shall mail a notice
7-11 by first-class mail to the patient, the patient's legally
7-12 authorized representative, or the patient's attorney of record of
7-13 the compulsory process or discovery request not later than the 10th
7-14 day before the date the certificate required by this subsection is
7-15 presented to the hospital. Service of compulsory process or
7-16 discovery requests on a hospital must be accompanied by a written
7-17 certification, signed by the person seeking to obtain health care
7-18 information, or the person's legally authorized representative,
7-19 identifying at least one subdivision under Subsection (g) of this
7-20 section under which compulsory process or discovery is being
7-21 sought. The certification must also state that the requirements
7-22 for notice of the compulsory process or discovery request have been
7-23 met. A person may sign the certification only if the person
7-24 reasonably believes that a legitimate basis for the use of
7-25 discovery or compulsory process is provided by a subdivision under
8-1 Subsection (g) of this section. Production of health care
8-2 information under Subsection (g) of this section does not
8-3 constitute a waiver of any privilege, objection, or defense
8-4 existing under other law, rule of evidence, or procedure. A
8-5 hospital is not required to seek a protective order on behalf of
8-6 the patient to prevent or limit discovery or compulsory process of
8-7 health care information requested under Subsection (g) of this
8-8 section.
8-9 (i) On receipt of a written authorization from a patient or
8-10 legally authorized representative to examine or copy all or part of
8-11 the patient's recorded health care information, a hospital, as
8-12 promptly as required under the circumstances, but not later than
8-13 the 15th day after the date of receiving the request, shall:
8-14 (1) make the information available for examination
8-15 during regular business hours and provide a copy to the authorized
8-16 requestor, if requested;
8-17 (2) inform the authorized requestor if the information
8-18 does not exist or cannot be found; or
8-19 (3) if the information is in use or unusual
8-20 circumstances have delayed handling the request, inform the
8-21 authorized requestor and specify in writing the reasons for the
8-22 delay and the earliest time for examination or copying or when the
8-23 request will be otherwise disposed of.
8-24 (j) If a record of the health care information requested is
8-25 not maintained by the hospital in the requested form, the hospital
9-1 is not required to create a new record or reformulate an existing
9-2 record to make the health care information available in the
9-3 requested form.
9-4 (k) Unless precluded by contract, the hospital may charge a
9-5 reasonable fee for providing the health care information and is not
9-6 required to permit examination or copying until the fee is paid
9-7 except in the case of a medical emergency. For purposes of this
9-8 subsection, a reasonable fee is one that does not exceed the cost
9-9 of copying set by rule of the Texas Workers' Compensation
9-10 Commission for records and may not include any costs that are
9-11 otherwise recouped as a part of charges for health care.
9-12 (l) A hospital may deny a patient access to the patient's
9-13 health care information if a member of the hospital medical staff
9-14 responsible for the care and management of the patient reasonably
9-15 concludes that access to the information would be harmful to the
9-16 physical, mental, or emotional health of the patient and clearly
9-17 documents that conclusion in the patient's health care information.
9-18 The member of the hospital medical staff may delete confidential
9-19 information about another person who has not consented to the
9-20 release. If a member of the hospital medical staff denies a
9-21 patient's request for examination and copying, in whole or in part,
9-22 the hospital shall permit examination and copying of the record by
9-23 another health care provider, selected by the patient, who is
9-24 licensed, certified, or otherwise authorized by state law to treat
9-25 the patient for the same condition as the member of the hospital
10-1 medical staff denying the request.
10-2 (m) A hospital may deny access to health care information
10-3 if:
10-4 (1) the health care information is compiled and used
10-5 solely for litigation, quality assurance, peer review, or
10-6 administrative purposes; or
10-7 (2) access to the health care information is otherwise
10-8 prohibited by law.
10-9 (n) A person authorized to act for a patient shall act in
10-10 good faith to represent the best interest of the patient and is
10-11 immune from liability for an action taken in good faith.
10-12 (o) A hospital is immune from liability for an action taken
10-13 in good faith in reliance on the representations and actions of the
10-14 patient's legally authorized representative.
10-15 (p) A hospital shall adopt and implement reasonable
10-16 safeguards for the security of all health care information it
10-17 maintains. In adopting the policy on release of directory
10-18 information, a hospital may use the American Hospital Association
10-19 booklet "General Guide for the Release of Patient Information by
10-20 the Hospital."
10-21 (q) A patient aggrieved by a violation of this section
10-22 relating to the unauthorized release of confidential health care
10-23 information may petition the district court of the county in which
10-24 the patient resides, or if the patient is not a resident of this
10-25 state, the district court of Travis County, for appropriate
11-1 injunctive relief. The petition takes precedence over all civil
11-2 matters on the docket of the court except those matters to which
11-3 equal precedence on the docket is granted by law. A patient
11-4 aggrieved by a violation of this section relating to the
11-5 unauthorized release of confidential health care information may
11-6 sue for damages caused by that release in a district court of the
11-7 county in which the patient resides, or if the patient is not a
11-8 resident of this state, the district court of Travis County.
11-9 (r) To the extent that this section conflicts with the Rules
11-10 of Civil Evidence or the Rules of Criminal Evidence, this section
11-11 controls. The supreme court may not amend or adopt rules in
11-12 conflict with this section.
11-13 SECTION 3. Section 1.03(a), Medical Practice Act (Article
11-14 4495b, Vernon's Texas Civil Statutes), is amended by adding
11-15 Subdivisions (15) and (16) to read as follows:
11-16 (15) "Legally authorized representative" means a
11-17 parent or legal guardian if the patient is a minor, a legal
11-18 guardian if the patient has been adjudicated incompetent to manage
11-19 the patient's personal affairs, an agent of the patient authorized
11-20 under a durable power of attorney for health care, an attorney ad
11-21 litem appointed for the patient, or a personal representative if
11-22 the patient is deceased.
11-23 (16) "Medical records" means any records pertaining to
11-24 the history, diagnosis, treatment, or prognosis of the patient.
11-25 SECTION 4. Sections 5.08(g), (h), and (k), Medical Practice
12-1 Act (Article 4495b, Vernon's Texas Civil Statutes), are amended to
12-2 read as follows:
12-3 (g) Exceptions to confidentiality or privilege in court or
12-4 administrative proceedings exist:
12-5 (1) when the proceedings are brought by the patient
12-6 against a physician, including but not limited to malpractice
12-7 proceedings, and any criminal or license revocation proceeding in
12-8 which the patient is a complaining witness and in which disclosure
12-9 is relevant to the claims or defense of a physician;
12-10 (2) when the patient or someone authorized to act on
12-11 his behalf submits a written consent to the release of any
12-12 confidential information, as provided in Subsection (j) of this
12-13 section;
12-14 (3) when the purpose of the proceedings is to
12-15 substantiate and collect on a claim for medical services rendered
12-16 to the patient;
12-17 (4) in any civil litigation or administrative
12-18 proceeding, if relevant, brought by the patient or someone on his
12-19 behalf if the patient is attempting to recover monetary damages for
12-20 any physical or mental condition including death of the patient.
12-21 Any information is discoverable in any court or administrative
12-22 proceeding in this state if the court or administrative body has
12-23 jurisdiction over the subject matter, pursuant to rules of
12-24 procedure specified for the matters;
12-25 (5) in any disciplinary investigation or proceeding of
13-1 a physician conducted under or pursuant to this Act, provided that
13-2 the board shall protect the identity of any patient whose medical
13-3 records are examined, except for those patients covered under
13-4 Subdivision (1) of Subsection (g) of this section or those patients
13-5 who have submitted written consent to the release of their medical
13-6 records as provided by Subsection (j) of this section;
13-7 (6) in any criminal investigation of a physician in
13-8 which the board is participating or assisting in the investigation
13-9 or proceeding by providing certain medical records obtained from
13-10 the physician, provided that the board shall protect the identity
13-11 of any patient whose medical records are provided in the
13-12 investigation or proceeding, except for those patients covered
13-13 under Subdivision (1) of Subsection (g) of this section or those
13-14 patients who have submitted written consent to the release of their
13-15 medical records as provided by Subsection (j) of this section.
13-16 This subsection does not authorize the release of any confidential
13-17 information for the purpose of instigating or substantiating
13-18 criminal charges against a patient;
13-19 (7) in an involuntary civil commitment proceeding,
13-20 proceeding for court-ordered treatment, or probable cause hearing
13-21 under:
13-22 (A) the Texas Mental Health Code (Article 5547-1
13-23 et seq., Vernon's Texas Civil Statutes);
13-24 (B) the Mentally Retarded Persons Act of 1977
13-25 (Article 5547-300, Vernon's Texas Civil Statutes);
14-1 (C) Section 9, Chapter 411, Acts of the 53rd
14-2 Legislature, Regular Session, 1953 (Article 5561c, Vernon's Texas
14-3 Civil Statutes);
14-4 (D) Section 2, Chapter 543, Acts of the 61st
14-5 Legislature, Regular Session, 1969 (Article 5561c-1, Vernon's Texas
14-6 Civil Statutes); <or>
14-7 (8) in any criminal prosecution where the patient is a
14-8 victim, witness, or defendant. Records are not discoverable until
14-9 the court in which the prosecution is pending makes an in camera
14-10 determination as to the relevancy of the records or communications
14-11 or any portion thereof. Such determination shall not constitute a
14-12 determination as to the admissibility of such records or
14-13 communications or any portion thereof;
14-14 (9) when the patient's physical or mental condition is
14-15 relevant to the execution of a will;
14-16 (10) when the physical or mental condition of a
14-17 deceased patient is placed in issue by any person claiming or
14-18 defending through or as a beneficiary of the patient;
14-19 (11) when the information is relevant to a proceeding
14-20 brought under Subsection (l) of this section; or
14-21 (12) when a court has determined that the medical
14-22 records of a party or person who has placed his mental or physical
14-23 condition at issue are subject to compulsory legal process or
14-24 discovery because the party seeking the information has
14-25 demonstrated by clear and convincing evidence that the interest in
15-1 access outweighs the patient's privacy interest.
15-2 (h) Exceptions to the privilege of confidentiality, in other
15-3 than court or administrative proceedings, allowing disclosure of
15-4 confidential information by a physician, exist only to the
15-5 following:
15-6 (1) governmental agencies if the disclosures are
15-7 required or authorized by law;
15-8 (2) medical or law enforcement personnel if the
15-9 physician determines that there is a probability of imminent
15-10 physical injury to the patient, to himself, or to others, or if
15-11 there is a probability of immediate mental or emotional injury to
15-12 the patient;
15-13 (3) qualified personnel for the purpose of management
15-14 audits, financial audits, program evaluations, or research, but the
15-15 personnel may not identify, directly or indirectly, a patient in
15-16 any report of the research, audit, or evaluation or otherwise
15-17 disclose identity in any manner;
15-18 (4) those parts of the medical records reflecting
15-19 charges and specific services rendered when necessary in the
15-20 collection of fees for medical services provided by a physician or
15-21 physicians or professional associations or other entities qualified
15-22 to render or arrange for medical services;
15-23 (5) any person who bears a written consent of the
15-24 patient or other person authorized to act on the patient's behalf
15-25 for the release of confidential information, as provided by
16-1 Subsection (j) of this section;
16-2 (6) individuals, corporations, or governmental
16-3 agencies involved in the payment or collection of fees for medical
16-4 services rendered by a physician;
16-5 (7) other physicians and personnel under the direction
16-6 of the physician who are participating in the diagnosis,
16-7 evaluation, or treatment of the patient; <or>
16-8 (8) in any official legislative inquiry regarding
16-9 state hospitals or state schools, provided that no information or
16-10 records which identify a patient or client shall be released for
16-11 any purpose unless proper consent to the release is given by the
16-12 patient, and only records created by the state hospital or school
16-13 or its employees shall be included under this subsection; or
16-14 (9) any employee or agent of the physician who
16-15 requires medical records for health care education, or to provide
16-16 planning, quality assurance, peer review, or administrative, legal,
16-17 financial, or actuarial services to the physician, or to assist the
16-18 physician in the delivery of health care or in complying with
16-19 statutory, licensing, or accreditation requirements, and the
16-20 physician takes appropriate action to ensure that the employee or
16-21 agent:
16-22 (A) will not use or disclose the information for
16-23 any other purpose; and
16-24 (B) will take appropriate steps to protect the
16-25 information.
17-1 (k) A physician shall furnish copies of medical records
17-2 requested, or a summary or narrative of the records, pursuant to a
17-3 written consent for release of the information as provided by
17-4 Subsection (j) of this section, except if the physician determines
17-5 that access to the information would be harmful to the physical,
17-6 mental, or emotional health of the patient, and the physician may
17-7 delete confidential information about another person who has not
17-8 consented to the release. The information shall be furnished by
17-9 the physician within a reasonable period of time. The original
17-10 medical record created and maintained or received and maintained by
17-11 the physician remains the property of the physician. If a medical
17-12 record requested is not maintained by the physician in the
17-13 requested form, the physician is not required to create a new
17-14 medical record or reformulate an existing medical record to make
17-15 the information available in the requested form <and reasonable
17-16 fees for furnishing the information shall be paid by the patient or
17-17 someone on his behalf. In this subsection, "medical records" means
17-18 any records pertaining to the history, diagnosis, treatment, or
17-19 prognosis of the patient>.
17-20 SECTION 5. Section 5.08(j)(2), Medical Practice Act (Article
17-21 4495b, Vernon's Texas Civil Statutes), is amended to read as
17-22 follows:
17-23 (2) The patient, or other person authorized to
17-24 consent, has the right to withdraw his consent to the release of
17-25 any information. Withdrawal of consent does not affect any
18-1 information disclosed prior to the written notice of the
18-2 withdrawal. A patient may not maintain an action against a
18-3 physician for a disclosure made by the physician in good-faith
18-4 reliance on an authorization if the physician did not have written
18-5 notice of the revocation of the authorization.
18-6 SECTION 6. Section 5.08, Medical Practice Act (Article
18-7 4495b, Vernon's Texas Civil Statutes), is amended by adding
18-8 Subsections (n)-(r) to read as follows:
18-9 (n) Unless precluded by contract, the physician may charge a
18-10 reasonable fee for copying medical records and is not required to
18-11 permit examination or copying until the fee is paid except in the
18-12 case of a medical emergency. For purposes of this subsection, a
18-13 reasonable fee is one that does not exceed the actual cost of
18-14 reproduction and may not include any costs that are otherwise
18-15 recouped as a part of charges for health care.
18-16 (o) If medical records are sought under Subsection (g) of
18-17 this section, unless the court, for good cause shown, determines
18-18 that the notification should be waived or modified, the person
18-19 seeking discovery or compulsory process shall mail a notice by
18-20 first-class mail to the patient, the patient's legally authorized
18-21 representative, or the patient's attorney of record of the
18-22 compulsory process or discovery request not later than the 10th day
18-23 before the date the certificate required by this subsection is
18-24 presented to the physician. Service of compulsory process or
18-25 discovery requests on a physician must be accompanied by a written
19-1 certification, signed by the person seeking to obtain medical
19-2 records, or the person's legally authorized representative,
19-3 identifying at least one subdivision under Subsection (g) of this
19-4 section under which compulsory process or discovery is being
19-5 sought. The certification must also state that the requirements
19-6 for notice of the compulsory process or discovery request have been
19-7 met. A person may sign the certification only if the person
19-8 reasonably believes that a legitimate basis for the use of
19-9 discovery or compulsory process is provided by a subdivision under
19-10 Subsection (g) of this section. Production of medical records
19-11 under Subsection (g) of this section does not constitute a waiver
19-12 of any privilege, objection, or defense existing under other law,
19-13 rule of evidence, or procedure. A physician is not required to
19-14 seek a protective order on behalf of a patient to prevent or limit
19-15 discovery or compulsory process of medical records requested under
19-16 Subsection (g) of this section.
19-17 (p) A person authorized to act for a patient shall act in
19-18 good faith to represent the best interest of the patient and is
19-19 immune from liability for an action taken in good faith.
19-20 (q) A physician is immune from liability for an action taken
19-21 in good faith in reliance on the representations and actions of the
19-22 patient's legally authorized representative.
19-23 (r) To the extent that this section conflicts with the Rules
19-24 of Civil Evidence or the Rules of Criminal Evidence, this section
19-25 controls. The supreme court may not amend or adopt rules in
20-1 conflict with this section.
20-2 SECTION 7. Section 4, Chapter 239, Acts of the 66th
20-3 Legislature, Regular Session, 1979 (Article 5561h, Vernon's Texas
20-4 Civil Statutes), is amended to read as follows:
20-5 Sec. 4. EXCEPTIONS TO THE PRIVILEGE OF CONFIDENTIALITY.
20-6 (a) Exceptions to the privilege in court proceedings exist:
20-7 (1) when the proceedings are brought by the
20-8 patient/client against a professional, including but not limited to
20-9 malpractice proceedings, and in any <criminal or> license
20-10 revocation proceedings in which the patient/client is a complaining
20-11 witness and in which disclosure is relevant to the claim or defense
20-12 of a professional;
20-13 (2) when the patient/client waives his right in
20-14 writing to the privilege of confidentiality of any information, or
20-15 when a representative of the patient/client <other persons listed
20-16 in Subsection (b)(4) of Section 4 who are> acting on the
20-17 patient's/client's behalf submits <submit> a written waiver to the
20-18 confidentiality privilege;
20-19 (3) when the purpose of the proceeding is to
20-20 substantiate and collect on a claim for mental or emotional health
20-21 services rendered to the patient/client;
20-22 (4) when the judge finds that the patient/client after
20-23 having been previously informed that communications would not be
20-24 privileged, has made communications to a professional in the course
20-25 of a court-ordered examination relating to the patient's/client's
21-1 mental or emotional condition or disorder, providing that such
21-2 communications shall not be privileged only with respect to issues
21-3 involving the patient's/client's mental or emotional health. On
21-4 granting of the order, the court, in determining the extent to
21-5 which any disclosure of all or any part of any communication is
21-6 necessary, shall impose appropriate safeguards against unauthorized
21-7 disclosure; <or>
21-8 (5) as to a communication or record relevant to an
21-9 issue of the physical, mental, or emotional condition of a patient
21-10 or any proceeding in which the party relies on the condition as a
21-11 part of the party's claim or defense;
21-12 (6) when the disclosure is relevant in a suit
21-13 affecting the parent-child relationship;
21-14 (7) in any criminal proceeding;
21-15 (8) in any proceeding regarding the abuse or neglect,
21-16 or the cause of abuse or neglect, of a resident of an institution,
21-17 as that term is defined by Chapter 242, Health and Safety Code;
21-18 (9) when the patient's/client's physical or mental
21-19 condition is relevant to the execution of a will;
21-20 (10) when the physical or mental condition of a
21-21 deceased patient/client is placed in issue by any person claiming
21-22 or defending through or as a beneficiary of the patient/client;
21-23 (11) when the information is to be used in an
21-24 involuntary commitment proceeding for court-ordered treatment or
21-25 for a probable cause hearing under:
22-1 (A) the Texas Mental Health Code (Article 5547-1
22-2 et seq., Vernon's Texas Civil Statutes);
22-3 (B) the Mentally Retarded Persons Act of 1977
22-4 (Article 5547-300, Vernon's Texas Civil Statutes); or
22-5 (C) Chapter 462, Health and Safety Code; or
22-6 (12) when a court has determined that the information
22-7 of a party or person who has placed his mental or physical
22-8 condition at issue is subject to compulsory legal process or
22-9 discovery because the party seeking the information has
22-10 demonstrated by clear and convincing evidence that the interest in
22-11 access outweighs the patient's/client's privacy interest
22-12 <prosecution where the patient is a victim, witness, or defendant.
22-13 Records are not discoverable until the court in which the
22-14 prosecution is pending makes an in camera determination as to the
22-15 relevancy of the records or communications or any portion thereof.
22-16 Such determination shall not constitute a determination as to the
22-17 admissibility of such records or communications or any portion
22-18 thereof>.
22-19 (b) Exceptions to the privilege of confidentiality, in other
22-20 than court proceedings, allowing disclosure of confidential
22-21 information by a professional, exist only to the following:
22-22 (1) to governmental agencies where such disclosures
22-23 are required or authorized by law;
22-24 (2) to medical or law enforcement personnel where the
22-25 professional determines that there is a probability of imminent
23-1 physical injury by the patient/client to himself or to others, or
23-2 where there is a probability of immediate mental or emotional
23-3 injury to the patient/client;
23-4 (3) to qualified personnel for the purpose of
23-5 management audits, financial audits, program evaluations, or
23-6 research, but such personnel may not identify, directly or
23-7 indirectly, a patient/client in any report of such research, audit,
23-8 or evaluation, or otherwise disclose identities in any manner;
23-9 (4) to any person bearing the written consent of the
23-10 patient/client, or a parent if the patient/client is a minor, or a
23-11 guardian if the patient/client has been adjudicated incompetent to
23-12 manage his personal affairs, or to the patient's/client's personal
23-13 representative if the patient/client is deceased;
23-14 (5) to individuals, corporations, or governmental
23-15 agencies involved in the payment or collection of fees for mental
23-16 or emotional health services performed by a professional as
23-17 defined in Section 1 of this Act;
23-18 (6) to other professionals and personnel under the
23-19 direction of the professional who are participating in the
23-20 diagnosis, evaluation, or treatment of the patient/client; <or>
23-21 (7) in any official legislative inquiry regarding
23-22 state hospitals or state schools, provided that no information or
23-23 records which identify a patient/client shall be released for any
23-24 purpose unless proper consent to the release is given by the
23-25 patient/client, and only records created by the state hospital or
24-1 school or its employees shall be included under this subsection; or
24-2 (8) to any other person who requires mental health
24-3 care information for mental health care education, or to provide
24-4 planning, quality assurance, peer review, or administrative, legal,
24-5 financial, or actuarial services to the professional, or to assist
24-6 the professional in the delivery of mental health care services or
24-7 in complying with statutory, licensing, or accreditation
24-8 requirements, and the professional has taken appropriate action to
24-9 ensure that the person:
24-10 (A) will not use or disclose the information for
24-11 any other purpose; and
24-12 (B) will take appropriate steps to protect the
24-13 information.
24-14 (c) If mental health care information is sought under
24-15 Subsection (a) of this section, unless the court, for good cause
24-16 shown, determines that the notification should be waived or
24-17 modified, the person seeking discovery or compulsory process shall
24-18 mail a notice by first-class mail to the patient/client or the
24-19 patient's/client's attorney of record of the compulsory process or
24-20 discovery request not later than the 10th day before the date the
24-21 certificate required by this subsection is presented to the
24-22 professional. Service of compulsory process or discovery requests
24-23 on a professional must be accompanied by a written certification,
24-24 signed by the person seeking to obtain information, or the person's
24-25 authorized representative, identifying at least one subdivision
25-1 under Subsection (a) of this section under which compulsory process
25-2 or discovery is being sought. The certification must also state
25-3 that the requirements for notice of the compulsory process or
25-4 discovery request have been met. A person may sign the
25-5 certification only if the person reasonably believes that a
25-6 legitimate basis for the use of discovery or compulsory process is
25-7 provided by a subdivision under Subsection (a) of this section.
25-8 Production of information under Subsection (a) of this section does
25-9 not constitute a waiver of any privilege, objection, or defense
25-10 existing under other law, rule of evidence, or procedure. The
25-11 professional is not required to seek a protective order on behalf
25-12 of the patient/client to prevent or limit discovery or compulsory
25-13 process of mental health care information requested under
25-14 Subsection (a) of this section.
25-15 SECTION 8. Chapter 239, Acts of the 66th Legislature,
25-16 Regular Session, 1979 (Article 5561h, Vernon's Texas Civil
25-17 Statutes), is amended by adding Sections 4A, 5A, 5B, and 5C to read
25-18 as follows:
25-19 Sec. 4A. REVOCATION OF CONSENT. (a) A patient/client or
25-20 legally authorized representative may revoke a disclosure consent
25-21 to a professional at any time. A revocation is valid only if it is
25-22 written, dated, and signed by the patient/client or legally
25-23 authorized representative. A patient/client may not revoke a
25-24 disclosure that is required for purposes of making payment to the
25-25 professional for mental health care services provided to the
26-1 patient/client.
26-2 (b) A patient/client may not maintain an action against a
26-3 professional for a disclosure made by the professional in
26-4 good-faith reliance on an authorization if the professional did not
26-5 have written notice of the revocation of the consent.
26-6 Sec. 5A. REQUEST BY PATIENT/CLIENT. (a) On receipt of a
26-7 written request from a patient/client to examine or copy all or
26-8 part of the patient's/client's recorded mental health care
26-9 information, a professional, as promptly as required under the
26-10 circumstances, but not later than the 15th day after the date of
26-11 receiving the request, shall:
26-12 (1) make the information available for examination
26-13 during regular business hours and provide a copy to the
26-14 patient/client, if requested;
26-15 (2) inform the patient/client if the information does
26-16 not exist or cannot be found; or
26-17 (3) if the information is in use or unusual
26-18 circumstances have delayed handling the request, inform the
26-19 patient/client and specify in writing the reasons for the delay and
26-20 the earliest time for examination or copying or when the request
26-21 will be otherwise disposed of.
26-22 (b) If a record of the information requested is not
26-23 maintained by the professional in the requested form, the
26-24 professional is not required to create a new record or reformulate
26-25 an existing record to make the information available in the
27-1 requested form.
27-2 (c) Unless precluded by contract or unless provided for by
27-3 other state law, the professional may charge a reasonable fee for
27-4 copying mental health care information and is not required to
27-5 permit examination or copying until the fee is paid except in the
27-6 case of a medical emergency. For purposes of this subsection, a
27-7 reasonable fee is one that does not exceed the cost of copying set
27-8 by rule of the Texas Workers' Compensation Commission for records,
27-9 and may not include any costs that are otherwise recouped as a part
27-10 of charges for care.
27-11 (d) A professional may deny a patient/client access to the
27-12 patient's/client's mental health care information if the
27-13 professional or other health care provider responsible for the care
27-14 and management of the patient/client reasonably concludes that
27-15 access to the information would be harmful to the physical, mental,
27-16 or emotional health of the patient/client and clearly documents
27-17 that conclusion in the patient's/client's mental health care
27-18 information. The professional may delete confidential information
27-19 about another person who has not consented to the release. If a
27-20 professional denies a patient's/client's request for examination
27-21 and copying, in whole or in part, the professional shall permit
27-22 examination and copying of the record by another health care
27-23 provider, selected by the patient/client, who is licensed,
27-24 certified, or otherwise authorized by state law to treat the
27-25 patient/client for the same condition as the professional denying
28-1 the request.
28-2 (e) A professional may deny access to mental health care
28-3 information if:
28-4 (1) the information is compiled and used solely for
28-5 litigation, quality assurance, peer review, or administrative
28-6 purposes; or
28-7 (2) access to the information is otherwise prohibited
28-8 by law.
28-9 Sec. 5B. RIGHTS OF OTHERS. (a) A person authorized to act
28-10 for a patient/client shall act in good faith to represent the best
28-11 interest of the patient/client and is immune from liability for an
28-12 action taken in good faith.
28-13 (b) A professional is immune from liability for an action
28-14 taken in good faith in reliance on the representations and actions
28-15 of the mental health care representative.
28-16 Sec. 5C. EFFECT ON RULES OF CIVIL EVIDENCE AND CRIMINAL
28-17 EVIDENCE. To the extent that this Act conflicts with the Rules of
28-18 Civil Evidence or the Rules of Criminal Evidence, this Act
28-19 controls. The supreme court may not amend or adopt rules in
28-20 conflict with this Act.
28-21 SECTION 9. This Act applies to the disclosure of health care
28-22 information, medical records, and mental health care information on
28-23 or after January 1, 1992.
28-24 SECTION 10. This Act takes effect September 1, 1991.
28-25 SECTION 11. The importance of this legislation and the
29-1 crowded condition of the calendars in both houses create an
29-2 emergency and an imperative public necessity that the
29-3 constitutional rule requiring bills to be read on three several
29-4 days in each house be suspended, and this rule is hereby suspended.