1-1  By:  Madla                                            S.B. No. 1098
    1-2        (In the Senate - Filed March 12, 1993; March 15, 1993, read
    1-3  first time and referred to Committee on Health and Human Services;
    1-4  April 21, 1993, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 6, Nays 0; April 21, 1993,
    1-6  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 S.B. No. 1098                   By:  Madla
   1-19                         A BILL TO BE ENTITLED
   1-20                                AN ACT
   1-21  relating to the disclosure of health and mental health care
   1-22  information by a provider.
   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) through (16) to read as
   1-26  follows:
   1-27              (12)  "Directory information" means information
   1-28  disclosing the presence, nature of injury, age, sex, occupation,
   1-29  municipality of residence, and general health status, as described
   1-30  in terms of "critical," "poor," "fair," "good," "excellent," or
   1-31  similar terms, of a patient who is an inpatient in a hospital or
   1-32  who is currently receiving emergency care in a hospital.
   1-33              (13)  "Health care information" means information
   1-34  recorded in any form or medium that identifies a patient and
   1-35  relates to the history, diagnosis, treatment, or prognosis of a
   1-36  patient.
   1-37              (14)  "Health care provider" means a person who is
   1-38  licensed, certified, or otherwise authorized by the laws of this
   1-39  state to provide health care in the ordinary course of business or
   1-40  practice of a profession.
   1-41              (15)  "Institutional review board" means a board,
   1-42  committee, or other group formally designated by an institution or
   1-43  authorized under federal or state law to review, approve the
   1-44  initiation of, or conduct periodic review or research programs to
   1-45  assure the protection of the rights and welfare of human research
   1-46  subjects.
   1-47              (16)  "Legally authorized representative" means a
   1-48  parent or legal guardian if the patient is a minor, a legal
   1-49  guardian if the patient has been adjudicated incompetent to manage
   1-50  the patient's personal affairs, an agent of the patient authorized
   1-51  under a durable power of attorney for health care, an attorney ad
   1-52  litem appointed for the patient, or a personal representative if
   1-53  the patient is deceased.
   1-54        SECTION 2.  Subchapter E, Chapter 241, Health and Safety
   1-55  Code, is amended by adding Section 241.105 to read as follows:
   1-56        Sec. 241.105.  DISCLOSURE OF CERTAIN HEALTH CARE INFORMATION.
   1-57  (a)  Except as authorized by Subsection (f), a hospital or an agent
   1-58  or employee of a hospital may not disclose health care information
   1-59  about a patient to any other person without the written
   1-60  authorization of the patient or the patient's legally authorized
   1-61  representative.
   1-62        (b)  A disclosure authorization to a hospital is valid only
   1-63  if it:
   1-64              (1)  is in writing;
   1-65              (2)  is dated and signed by the patient or legally
   1-66  authorized representative;
   1-67              (3)  identifies the information to be disclosed;
   1-68              (4)  identifies the person or entity to whom the
    2-1  information is to be disclosed; and
    2-2              (5)  states the purpose of the disclosure.
    2-3        (c)  A disclosure authorization is valid for 90 days after
    2-4  the date it is signed unless it provides otherwise or unless it is
    2-5  revoked.
    2-6        (d)  A patient or legally authorized representative may
    2-7  revoke a disclosure authorization to a hospital at any time.  A
    2-8  revocation is valid only if it is in writing, dated with a date
    2-9  that is later than the date on the original authorization, and
   2-10  signed by the patient or legally authorized representative.  A
   2-11  patient may not revoke a disclosure that is required for purposes
   2-12  of making payment to the hospital for health care provided to the
   2-13  patient.
   2-14        (e)  A patient may not maintain an action against a hospital
   2-15  for a disclosure made by the hospital in good-faith reliance on an
   2-16  authorization if the hospital's medical record director did not
   2-17  have written notice of the revocation of the authorization.
   2-18        (f)  A patient's health care information may be disclosed
   2-19  without the patient's authorization if the disclosure is:
   2-20              (1)  to a health care provider who is rendering health
   2-21  care to the  patient when the request is made;
   2-22              (2)  to any employee or agent of the hospital who
   2-23  requires health care information for health care education, quality
   2-24  assurance, or peer review or to assist the hospital in the delivery
   2-25  of health care or in complying with statutory, licensing,
   2-26  accreditation, or certification requirements and the hospital takes
   2-27  appropriate action to ensure that the employee or agent:
   2-28                    (A)  will not use or disclose the health care
   2-29  information for any other purpose; and
   2-30                    (B)  will take appropriate steps to protect the
   2-31  health care information;
   2-32              (3)  to any federal, state, or local governmental
   2-33  agency or authority to the extent authorized or required by law;
   2-34              (4)  to a hospital that is the successor in interest to
   2-35  the hospital maintaining the health care information;
   2-36              (5)  for use in a research project authorized by an
   2-37  institutional review board according to federal law;
   2-38              (6)  to health care personnel of a penal or other
   2-39  custodial institution in which the patient is detained, but only
   2-40  for purposes of providing health care to the patient;
   2-41              (7)  directory information, unless the patient has
   2-42  instructed the hospital not to make the disclosure or unless the
   2-43  directory information is otherwise protected by Chapter 611 or
   2-44  federal regulations concerning the confidentiality of alcohol and
   2-45  drug abuse patient records (42 C.F.R. Part 2);
   2-46              (8)  pursuant to compulsory process in accordance with
   2-47  Subsection (g);
   2-48              (9)  to facilitate reimbursement by a health benefit
   2-49  plan to a hospital, another health care provider, or the patient
   2-50  for medical services or supplies;
   2-51              (10)  to a health maintenance organization for the
   2-52  purpose of maintaining a statistical reporting system as required
   2-53  by Chapter 119, Title 25, Texas Administrative Code, or regulations
   2-54  adopted under the Health Maintenance Organization Act of 1973 (42
   2-55  U.S.C. Section 201 et seq.); or
   2-56              (11)  to a parent, spouse, or adult child of a deceased
   2-57  or incapacitated person.
   2-58        (g)  Health care information may not be disclosed by a
   2-59  hospital pursuant to compulsory legal process or discovery in any
   2-60  judicial, legislative, or administrative proceeding unless:
   2-61              (1)  the patient has authorized in writing the release
   2-62  of the health care information;
   2-63              (2)  there is an attempt to recover monetary damages
   2-64  for any physical or mental conditions, including death of the
   2-65  patient, in any civil litigation or administrative proceeding, if
   2-66  relevant, brought by the patient or a person on the patient's
   2-67  behalf;
   2-68              (3)  the patient's physical or mental condition is
   2-69  relevant to the execution of a will;
   2-70              (4)  the physical or mental condition of a deceased
    3-1  patient is placed in issue by any person claiming or defending
    3-2  through or as a beneficiary of the patient;
    3-3              (5)  the health care information is to be used in an
    3-4  involuntary commitment proceeding for court-ordered treatment or
    3-5  for a probable cause hearing under:
    3-6                    (A)  Subtitle C, Title 7;
    3-7                    (B)  Subtitle D, Title 7; or
    3-8                    (C)  Chapter 462;
    3-9              (6)  the health care information is for use in a law
   3-10  enforcement proceeding or investigation in which a health care
   3-11  provider is the subject or a party, except that health care
   3-12  information obtained under this subdivision may not be used in any
   3-13  proceeding against the patient unless the matter relates to payment
   3-14  for the patient's health care or unless authorized under
   3-15  Subdivision (9);
   3-16              (7)  the health care information is relevant to a
   3-17  proceeding brought under Subsection (p);
   3-18              (8)  the health care information is relevant to a
   3-19  criminal prosecution where the patient is a victim, witness, or
   3-20  defendant, subject to the limitation that the records are not
   3-21  discoverable until the court in which the prosecution is pending
   3-22  makes an in camera determination as to the relevance of the records
   3-23  or communications or any portion of the records or communications,
   3-24  provided that this determination does not constitute a
   3-25  determination as to the admissibility of those records or
   3-26  communications or any portion of the records or communications; or
   3-27              (9)  a court has made an in camera determination that
   3-28  the health care information of a party or a person who has placed
   3-29  his or her mental or physical condition at issue is subject to
   3-30  compulsory legal process or discovery because the party seeking the
   3-31  information has demonstrated by a preponderance of the evidence
   3-32  that the interest in access outweighs the patient's privacy
   3-33  interest.
   3-34        (h)  If health care information is sought under Subsections
   3-35  (g)(2) through (9), unless the court, for good cause shown,
   3-36  determines that the notification should be waived or modified, the
   3-37  person seeking discovery or compulsory process shall mail a notice
   3-38  by first-class mail to the patient, the patient's legally
   3-39  authorized representative, or the patient's attorney of record of
   3-40  the compulsory process or discovery request not later than the 10th
   3-41  day before the date the certificate required by this subsection is
   3-42  presented to the hospital.  Service of compulsory process or
   3-43  discovery requests on a hospital pursuant to Subsections (g)(2)
   3-44  through (9) must be accompanied by a written certification, signed
   3-45  by the person seeking to obtain health care information or the
   3-46  person's legally authorized representative, identifying at least
   3-47  one subdivision under Subsections (g)(2) through (9) under which
   3-48  compulsory process or discovery is being sought.  The certification
   3-49  must also state that the requirements for notice of the compulsory
   3-50  process or discovery request have been met.  A person may sign the
   3-51  certification only if the person reasonably believes that a
   3-52  legitimate basis for the use of discovery or compulsory process is
   3-53  provided by a subdivision under Subsection (g).  Production of
   3-54  health care information under Subsection (g) does not constitute a
   3-55  waiver of any privilege, objection, or defense existing under other
   3-56  law, rule of evidence, or procedure.  A hospital is not required to
   3-57  seek a protection order on behalf of the patient to prevent or
   3-58  limit discovery or compulsory process of health care information
   3-59  requested under Subsection (g).
   3-60        (i)  On receipt of a written authorization from a patient or
   3-61  legally authorized representative to examine or copy all or part of
   3-62  the patient's recorded health care information, a hospital, as
   3-63  promptly as required under the circumstances but not later than the
   3-64  15th day after the date of receiving the request, shall:
   3-65              (1)  make the information available for examination
   3-66  during regular business hours and provide a copy to the authorized
   3-67  requestor, if requested;
   3-68              (2)  inform the authorized requestor if the information
   3-69  does not exist or cannot be found; or
   3-70              (3)  if the information is in use or unusual
    4-1  circumstances have delayed handling the request, inform the
    4-2  authorized requestor and specify in writing the reasons for the
    4-3  delay and the earliest time for examination or copying or when the
    4-4  request will be otherwise disposed of.
    4-5        (j)  A hospital may provide a record of health care
    4-6  information in any format agreed to by the hospital and the person
    4-7  who requests the record.  If a record of the health care
    4-8  information requested is not maintained by the hospital in the
    4-9  requested format, the hospital is not required to create a new
   4-10  record or reformulate an existing record to make the health care
   4-11  information available in the requested format.
   4-12        (k)  Unless precluded by contract, the hospital may charge a
   4-13  reasonable fee for providing the health care information and is not
   4-14  required to permit examination or copying until the fee is paid
   4-15  except in the case of a medical emergency.  For purposes of this
   4-16  subsection, a reasonable fee is one that does not exceed the cost
   4-17  of copying set by rule of the Texas Workers' Compensation
   4-18  Commission for records and may not include any costs that are
   4-19  otherwise recouped as a part of charges for health care.
   4-20        (l)  A hospital may deny a patient access to the patient's
   4-21  health care information if a member of the hospital medical staff
   4-22  responsible for the care and management of the patient reasonably
   4-23  concludes that access to the information would be harmful to the
   4-24  physical, mental, or emotional health of the patient and clearly
   4-25  documents that conclusion in the patient's health care information.
   4-26  The member of the hospital medical staff may delete confidential
   4-27  information about another person who has not consented to the
   4-28  release.  If a member of the hospital medical staff denies a
   4-29  patient's request for examination and copying, in whole or in part,
   4-30  the hospital shall permit examination and copying of the record by
   4-31  another health care provider, selected by the patient, who is
   4-32  licensed, certified, or otherwise authorized by state law to treat
   4-33  the patient for the same condition as that being treated by the
   4-34  member of the hospital medical staff denying the request.
   4-35        (m)  A hospital may deny access to health care information if
   4-36  the health care information is made confidential by law and is not
   4-37  subject to any exception to confidentiality contained in this
   4-38  section or any common or statutory law.
   4-39        (n)  A hospital is immune from liability for a disclosure
   4-40  made in good faith in reliance on the representations and actions
   4-41  of the patient's legally authorized representative.
   4-42        (o)  A hospital shall adopt and implement reasonable
   4-43  safeguards for the security of all health care information it
   4-44  maintains.
   4-45        (p)  A patient aggrieved by a violation of this section
   4-46  relating to the unauthorized release of confidential health care
   4-47  information may petition the district court of the county in which
   4-48  the patient resides or, if the patient is not a resident of this
   4-49  state, the district court of Travis County for appropriate
   4-50  injunctive relief.  A patient aggrieved by a violation of this
   4-51  section relating to the unauthorized release of confidential health
   4-52  care information may sue for damages caused by that release in a
   4-53  district court of the county in which the patient resides or, if
   4-54  the the patient is not a resident of this state, the district court
   4-55  of Travis County.
   4-56        SECTION 3.  Subsection (a), Section 1.03, Medical Practice
   4-57  Act (Article 4495b, Vernon's Texas Civil Statutes), is amended by
   4-58  adding Subdivisions (15) and (16) to read as follows:
   4-59              (15)  "Legally authorized representative" means a
   4-60  parent or legal guardian if the patient is a minor, a legal
   4-61  guardian if the patient has been adjudicated incompetent to manage
   4-62  the patient's personal affairs, an agent of the patient authorized
   4-63  under a durable power of attorney for health care, an attorney ad
   4-64  litem appointed for the patient, or a personal representative if
   4-65  the patient is deceased.
   4-66              (16)  "Medical records" means any records pertaining to
   4-67  the history, diagnosis, treatment, or prognosis of the patient.
   4-68        SECTION 4.  Subsections (g), (h), and (k), Section 5.08,
   4-69  Medical Practice Act (Article 4495b, Vernon's Texas Civil
   4-70  Statutes), are amended to read as follows:
    5-1        (g)  Exceptions to confidentiality or privilege in court or
    5-2  administrative proceedings exists:
    5-3              (1)  when the proceedings are brought by the patient
    5-4  against a physician, including but not limited to malpractice
    5-5  proceedings, and any criminal or license revocation proceeding in
    5-6  which the patient is a complaining witness and in which disclosure
    5-7  is relevant to the claims or defense of a physician;
    5-8              (2)  when the patient or someone authorized to act on
    5-9  the patient's <his> behalf submits a written consent to the release
   5-10  of any confidential information, as provided in Subsection (j) of
   5-11  this section;
   5-12              (3)  when the purpose of the proceedings is to
   5-13  substantiate and collect on a claim for medical services rendered
   5-14  to the patient;
   5-15              (4)  in any civil litigation or administrative
   5-16  proceeding, if relevant, brought by the patient or someone on the
   5-17  patient's <his> behalf if the patient is attempting to recover
   5-18  monetary damages for any physical or mental condition including
   5-19  death of the patient.  Any information is discoverable in any court
   5-20  or administrative proceeding in this state if the court or
   5-21  administrative body has jurisdiction over the subject matter,
   5-22  pursuant to rules of procedure specified for the matters;
   5-23              (5)  in any disciplinary investigation or proceeding of
   5-24  a physician conducted under or pursuant to this Act, provided that
   5-25  the board shall protect the identity of any patient whose medical
   5-26  records are examined, except for those patients covered under
   5-27  Subdivision (1) of this subsection <Subsection (g) of this section>
   5-28  or those patients who have submitted written consent to the release
   5-29  of their medical records as provided by Subsection (j) of this
   5-30  section;
   5-31              (6)  in any criminal investigation of a physician in
   5-32  which the board is participating or assisting in the investigation
   5-33  or proceeding by providing certain medical records obtained from
   5-34  the physician, provided that the board shall protect the identity
   5-35  of any patient whose medical records are provided in the
   5-36  investigation or proceeding, except for those patients covered
   5-37  under Subdivision (1) of this subsection <Subsection (g) of this
   5-38  section> or those patients who have submitted written consent to
   5-39  the release of their medical records as provided by Subsection (j)
   5-40  of this section.  This subsection does not authorize the release of
   5-41  any confidential information for the purpose of instigating or
   5-42  substantiating criminal charges against a patient;
   5-43              (7)  in an involuntary civil commitment proceeding,
   5-44  proceeding for court-ordered treatment, or probable cause hearing
   5-45  under:
   5-46                    (A)  Subtitle C, Title 7, Health and Safety Code
   5-47  <the Texas Mental Health Code (Article 5547-1 et seq., Vernon's
   5-48  Texas Civil Statutes)>;
   5-49                    (B)  Subtitle D, Title 7, Health and Safety Code
   5-50  <the Mentally Retarded Persons Act of 1977 (Article 5547-300,
   5-51  Vernon's Texas Civil Statutes)>; or
   5-52                    (C)  Chapter 462, Health and Safety Code <Section
   5-53  9, Chapter 411, Acts of the 53rd Legislature, Regular Session, 1953
   5-54  (Article 5561c, Vernon's Texas Civil Statutes)>;
   5-55                    <(D)  Section 2, Chapter 543, Acts of the 61st
   5-56  Legislature, Regular Session, 1969 (Article 5561c-1, Vernon's Texas
   5-57  Civil Statutes); or>
   5-58              (8)  in any criminal prosecution where the patient is a
   5-59  victim, witness, or defendant.  Records are not discoverable until
   5-60  the court in which the prosecution is pending makes an in camera
   5-61  determination as to the relevancy of the records or communications
   5-62  or any portion thereof.  Such determination shall not constitute a
   5-63  determination as to the admissibility of such records or
   5-64  communications or any portion thereof;
   5-65              (9)  when the patient's physical or mental condition is
   5-66  relevant to the execution of a will;
   5-67              (10)  when the physical or mental condition of a
   5-68  deceased patient is placed in issue by any person claiming or
   5-69  defending through or as a beneficiary of the patient;
   5-70              (11)  when the information is relevant to a proceeding
    6-1  brought under Subsection (l) of this section;
    6-2              (12)  when a court has made an in camera determination
    6-3  that the medical records of a party or person who has placed his or
    6-4  her mental or physical condition at issue are subject to compulsory
    6-5  legal process or discovery because the party seeking the
    6-6  information has demonstrated by a preponderance of the evidence
    6-7  that the interest in access outweighs the patient's privacy
    6-8  interest; or
    6-9              (13)  to satisfy a request for medical records by a
   6-10  parent, spouse, or adult child of a deceased or incapacitated
   6-11  person.
   6-12        (h)  Exceptions to the privilege of confidentiality, in other
   6-13  than court or administrative proceedings, allowing disclosure of
   6-14  confidential information by a physician, exist only to the
   6-15  following:
   6-16              (1)  governmental agencies if the disclosures are
   6-17  required or authorized by law;
   6-18              (2)  medical or law enforcement personnel if the
   6-19  physician determines that there is a probability of imminent
   6-20  physical injury to the patient, to himself, or to others, or if
   6-21  there is a probability of immediate mental or emotional injury to
   6-22  the patient;
   6-23              (3)  qualified personnel for the purpose of management
   6-24  audits, financial audits, program evaluations, or research, but the
   6-25  personnel may not identify, directly or indirectly, a patient in
   6-26  any report of the research, audit, or evaluation or otherwise
   6-27  disclose identity in any manner;
   6-28              (4)  those parts of the medical records reflecting
   6-29  charges and specific services rendered when necessary in the
   6-30  collection of fees for medical services provided by a physician or
   6-31  physicians or professional associations or other entities qualified
   6-32  to render or arrange for medical services;
   6-33              (5)  any person who bears a written consent of the
   6-34  patient or other person authorized to act on the patient's behalf
   6-35  for the release of confidential information, as provided by
   6-36  Subsection (j) of this section;
   6-37              (6)  individuals, corporations, or governmental
   6-38  agencies involved in the payment or collection of fees for medical
   6-39  services rendered by a physician;
   6-40              (7)  other physicians and personnel under the direction
   6-41  of the physician who are participating in the diagnosis,
   6-42  evaluation, or treatment of the patient; <or>
   6-43              (8)  in any official legislative inquiry regarding
   6-44  state hospitals or state schools, provided that no information or
   6-45  records which identify a patient or client shall be released for
   6-46  any purpose unless proper consent to the release is given by the
   6-47  patient, and only records created by the state hospital or school
   6-48  or its employees shall be included under this subsection;
   6-49              (9)  any employee or agent of the physician who
   6-50  requires medical records for health care education, quality
   6-51  assurance, or peer review or to assist the physician in the
   6-52  delivery of health care or in complying with statutory, licensing,
   6-53  or accreditation requirements and the physician takes appropriate
   6-54  action to ensure that the employee or agent:
   6-55                    (A)  will not use or disclose the information for
   6-56  any other purpose; and
   6-57                    (B)  will take appropriate steps to protect the
   6-58  information; or
   6-59              (10)  a parent, spouse, or adult child of a deceased or
   6-60  incapacitated person.
   6-61        (k)  A physician shall furnish copies of medical records
   6-62  requested, or a summary or narrative of the records, pursuant to a
   6-63  written consent for release of the information as provided by
   6-64  Subsection (j) of this section, except if the physician determines
   6-65  that access to the information would be harmful to the physical,
   6-66  mental, or emotional health of the patient, and the physician may
   6-67  delete confidential information about another person who has not
   6-68  consented to the release.  The information shall be furnished by
   6-69  the physician within a reasonable period of time.  The original
   6-70  medical record created and maintained or received and maintained by
    7-1  the physician remains the property of the physician <and reasonable
    7-2  fees for furnishing the information shall be paid by the patient or
    7-3  someone on his behalf.  In this subsection, "medical records" means
    7-4  any records pertaining to the history, diagnosis, treatment, or
    7-5  prognosis of the patient>.
    7-6        SECTION 5.  Subdivision (2), Subsection (j), Section 5.08,
    7-7  Medical Practice Act (Article 4495b, Vernon's Texas Civil
    7-8  Statutes), is amended to read as follows:
    7-9              (2)  The patient, or other person authorized to
   7-10  consent, has the right to withdraw the patient's <his> consent to
   7-11  the release of any information.  Withdrawal of consent does not
   7-12  affect any information disclosed prior to the written notice of the
   7-13  withdrawal.  A patient may not maintain an action against a
   7-14  physician for a disclosure made by the physician in good-faith
   7-15  reliance on an authorization if the physician did not have written
   7-16  notice of the revocation of the authorization.
   7-17        SECTION 6.  Section 5.08, Medical Practice Act (Article
   7-18  4495b, Vernon's Texas Civil Statutes), is amended by adding
   7-19  Subsections (n) through (q) to read as follows:
   7-20        (n)  A physician may provide a record of health care
   7-21  information in any format agreed to by the physician and the person
   7-22  who requests the record.  If a medical record requested is not
   7-23  maintained by the physician in the requested format, the physician
   7-24  is not required to create a new medical record or reformulate an
   7-25  existing medical record to make the information available in the
   7-26  requested format.
   7-27        (o)  Unless precluded by contract, the physician may charge a
   7-28  reasonable fee for copying medical records and is not required to
   7-29  permit examination or copying until the fee is paid except in the
   7-30  case of a medical emergency.  For purposes of this subsection, a
   7-31  reasonable fee is one that does not exceed the actual cost of
   7-32  reproduction and may not include any costs that are otherwise
   7-33  recouped as a part of charges for health care.
   7-34        (p)  If medical records are sought under Subsection (g) of
   7-35  this section, unless the court, for good cause shown, determines
   7-36  that the notification should be waived or modified, the person
   7-37  seeking discovery or compulsory process shall mail a notice by
   7-38  first-class mail to the patient, the patient's legally authorized
   7-39  representative, or the patient's attorney of record of the
   7-40  compulsory process or discovery request not later than the 10th day
   7-41  before the date the certificate required by this subsection is
   7-42  presented to the physician.  Service of compulsory process or
   7-43  discovery requests on a physician must be accompanied by a written
   7-44  certification, signed by the person seeking to obtain medical
   7-45  records or the person's legally authorized representative,
   7-46  identifying at least one subdivision under Subsection (g) of this
   7-47  section under which compulsory process or discovery is being
   7-48  sought.  The certification must also state that the requirements
   7-49  for notice of the compulsory process or discovery request have been
   7-50  met.  A person may sign the certification only if the person
   7-51  reasonably believes that a legitimate basis for the use of
   7-52  discovery or compulsory process is provided by a subdivision under
   7-53  Subsection (g) of this section.  Production of medical records
   7-54  under Subsection (g) of this section does not constitute a waiver
   7-55  of any privilege, objection, or defense existing under other law,
   7-56  rule of evidence, or procedure.  A physician is not required to
   7-57  seek a protective order on behalf of a patient to prevent or limit
   7-58  discovery or compulsory process of medical records requested under
   7-59  Subsection (g) of this section.
   7-60        (q)  A physician is immune from liability for a disclosure
   7-61  made in good faith in reliance on the representations and actions
   7-62  of the patient's legally authorized representative.
   7-63        SECTION 7.  Section 611.004, Health and Safety Code, is
   7-64  amended to read as follows:
   7-65        Sec. 611.004.  AUTHORIZED DISCLOSURE OF CONFIDENTIAL
   7-66  INFORMATION IN OTHER THAN COURT PROCEEDINGS.  (a)  A professional
   7-67  may disclose confidential information only:
   7-68              (1)  to a governmental agency if the disclosure is
   7-69  required or authorized by law;
   7-70              (2)  to medical or law enforcement personnel if the
    8-1  professional determines that there is a probability of imminent
    8-2  physical injury by the patient to the patient or others or there is
    8-3  a probability of immediate mental or emotional injury to the
    8-4  patient;
    8-5              (3)  to qualified personnel for management audits,
    8-6  financial audits, program evaluations, or research, in accordance
    8-7  with Subsection (b);
    8-8              (4)  to a person who has the written consent of the
    8-9  patient, or a parent if the patient is a minor, or a guardian if
   8-10  the patient has been adjudicated as incompetent to manage the
   8-11  patient's personal affairs;
   8-12              (5)  to the patient's personal representative if the
   8-13  patient is deceased;
   8-14              (6)  to individuals, corporations, or governmental
   8-15  agencies involved in paying or collecting fees for mental or
   8-16  emotional health services provided by a professional;
   8-17              (7)  to other professionals and personnel under the
   8-18  professionals' direction who participate in the diagnosis,
   8-19  evaluation, or treatment of the patient;
   8-20              (8)  in an official legislative inquiry relating to a
   8-21  state hospital or state school as provided by Subsection (c); <or>
   8-22              (9)  to any other person who requires mental health
   8-23  care information for mental health care education, quality
   8-24  assurance, or peer review or to assist the professional in the
   8-25  delivery of mental health care services or in complying with
   8-26  statutory, licensing, or accreditation requirements, if the
   8-27  professional has taken appropriate action to ensure that the
   8-28  person:
   8-29                    (A)  will not use or disclose the information for
   8-30  any other purposes; and
   8-31                    (B)  will take appropriate steps to protect the
   8-32  information; or
   8-33              (10)  to a parent, spouse, or adult child of a deceased
   8-34  or incapacitated person <in a civil action or in a criminal case or
   8-35  criminal law matter as otherwise allowed by law or rule>.
   8-36        (b)  Personnel who receive confidential information under
   8-37  Subsection (a)(3) may not directly or indirectly identify or
   8-38  otherwise disclose the identity of a patient in a report or in any
   8-39  other manner.
   8-40        (c)  The exception in Subsection (a)(8) applies only to
   8-41  records created by the state hospital or state school or by the
   8-42  employees of the hospital or school.  Information or records that
   8-43  identify a patient may be released only with the patient's proper
   8-44  consent.
   8-45        (d)  A person who receives information from confidential
   8-46  communications or records may not disclose the information except
   8-47  to the extent that disclosure is consistent with the authorized
   8-48  purposes for which the person first obtained the information.  This
   8-49  subsection does not apply to a person listed in Subsection (a)(4)
   8-50  or (a)(5) who is acting on the patient's behalf.
   8-51        SECTION 8.  Chapter 611, Health and Safety Code, is amended
   8-52  by adding Section 611.0045 to read as follows:
   8-53        Sec. 611.0045.  RIGHT TO MENTAL HEALTH RECORD.  (a)  Except
   8-54  as otherwise provided by this section, a patient is entitled to
   8-55  have access to the content of a confidential record made about the
   8-56  patient.
   8-57        (b)  The professional may deny access to any portion of a
   8-58  record if the professional determines that release of that portion
   8-59  would be harmful to the patient's physical, mental, or emotional
   8-60  health.
   8-61        (c)  If the professional denies access to any portion of a
   8-62  record, the professional shall give the patient a signed and dated
   8-63  written statement that having access to the record would be harmful
   8-64  to the patient's physical, mental, or emotional health and shall
   8-65  include a copy of the written statement in the patient's records.
   8-66  The statement must specify the portion of the record to which
   8-67  access is denied, the reason for denial, and the duration of the
   8-68  denial.
   8-69        (d)  The professional who denies access to a portion of a
   8-70  record under this section shall redetermine the necessity for the
    9-1  denial at least quarterly and each time a request for the denied
    9-2  portion is made.  If the professional again denies access, the
    9-3  professional shall notify the patient of the denial and document
    9-4  the denial as prescribed by Subsection (c).
    9-5        (e)  If the professional denies access to a portion of a
    9-6  confidential record, the professional shall allow examination and
    9-7  copying of the record by another professional if the patient
    9-8  selects the professional to treat the patient for the same or a
    9-9  related condition as that being treated by the professional denying
   9-10  access.
   9-11        (f)  The content of a confidential record shall be made
   9-12  available to a person listed by Section 611.004(a)(4) or (5) who is
   9-13  acting on the patient's behalf.
   9-14        (g)  A professional shall delete confidential information
   9-15  about another person who has not consented to the release but may
   9-16  not delete information relating to the patient that another person
   9-17  has provided, the identity of the person responsible for that
   9-18  information, or the identity of any person who provided information
   9-19  that resulted in the patient's commitment, admission, or treatment.
   9-20        (h)  If a summary or narrative of a confidential record is
   9-21  requested by the patient or other person requesting release under
   9-22  this section, the professional shall prepare the summary or
   9-23  narrative.
   9-24        (i)  The professional or other entity that has possession or
   9-25  control of the record shall grant access to any portion of the
   9-26  record to which access is not specifically denied under this
   9-27  section within a reasonable time and may charge a reasonable fee.
   9-28        (j)  Notwithstanding Section 5.08, Medical Practice Act
   9-29  (Article 4495b, Vernon's Texas Civil Statutes), this section
   9-30  applies to the release of a confidential record created or
   9-31  maintained by a professional, including a physician, that relates
   9-32  to the diagnosis, evaluation, or treatment of a mental or emotional
   9-33  condition or disorder, including alcoholism or drug addiction.
   9-34        (k)  The denial of a patient's access to any portion of a
   9-35  record by the professional or other entity that has possession or
   9-36  control of the record suspends, until the release of that portion
   9-37  of the record, the running of an applicable statute of limitations
   9-38  on a cause of action in which evidence relevant to the cause of
   9-39  action is in that portion of the record.
   9-40        SECTION 9.  Chapter 611, Health and Safety Code, is amended
   9-41  by adding Sections 611.006 through 611.008 to read as follows:
   9-42        Sec. 611.006.  AUTHORIZED DISCLOSURE OF CONFIDENTIAL
   9-43  INFORMATION IN COURT PROCEEDINGS.  (a)  A professional may disclose
   9-44  confidential information in a court proceeding:
   9-45              (1)  when the proceedings are brought by the patient
   9-46  against a professional, including malpractice proceedings;
   9-47              (2)  In a license revocation proceeding in which the
   9-48  patient is a complaining witness and in which disclosure is
   9-49  relevant to the claim or defense of a professional;
   9-50              (3)  When the patient waives in writing the patient's
   9-51  right to the privilege of confidentiality of any information or
   9-52  when a representative of the patient acting on the patient's behalf
   9-53  submits a written waiver to the confidentiality privilege;
   9-54              (4)  when the purpose of the proceeding is to
   9-55  substantiate and collect on a claim for mental or emotional health
   9-56  services rendered to the patient;
   9-57              (5)  when the judge finds that the patient, after
   9-58  having been previously informed that communications would not be
   9-59  privileged, has made communications to a professional in the course
   9-60  of a court-ordered examination relating to the patient's mental or
   9-61  emotional condition or disorder, except that those communications
   9-62  may be disclosed only with respect to issues involving the
   9-63  patient's mental or emotional health;
   9-64              (6)  when the disclosure is relevant in a suit
   9-65  affecting the parent-child relationship;
   9-66              (7)  in any criminal proceeding;
   9-67              (8)  in any proceeding regarding the abuse or neglect,
   9-68  or the cause of abuse or neglect, of a resident of an institution,
   9-69  as that term is defined by Chapter 242;
   9-70              (9)  when the patient's physical or mental condition is
   10-1  relevant to the execution of a will;
   10-2              (10)  when the physical or mental condition of a
   10-3  deceased patient is placed in issue by any person claiming or
   10-4  defending through or as a beneficiary of the patient;
   10-5              (11)  when the information is to be used in an
   10-6  involuntary commitment proceeding for court-ordered treatment or
   10-7  for a probable cause hearing under:
   10-8                    (A)  Subtitle C;
   10-9                    (B)  Subtitle D; or
  10-10                    (C)  Chapter 462;
  10-11              (12)  when a court has made an in camera determination
  10-12  that the information of a party or person has placed his or her
  10-13  mental or physical condition at issue is subject to compulsory
  10-14  legal process or discovery because the party seeking the
  10-15  information has demonstrated by a preponderance of the evidence
  10-16  that the interest in access outweighs the patient's privacy
  10-17  interest; or
  10-18              (13)  to a parent, spouse, or adult child of a deceased
  10-19  or incapacitated person.
  10-20        (b)  On granting an order under Subsection (a)(5), the court,
  10-21  in determining the extent to which any disclosure of all or any
  10-22  part of any communication is necessary, shall impose appropriate
  10-23  safeguards against unauthorized disclosure.
  10-24        Sec. 611.007.  DISCOVERY OR COMPULSORY PROCESS.  (a)  If
  10-25  mental health care information is sought under Section 611.006,
  10-26  unless the court, for good cause shown, determines that the
  10-27  notification should be waived or modified, the person seeking
  10-28  discovery or compulsory process shall mail a notice by first-class
  10-29  mail to the patient or the patient's attorney of record of the
  10-30  compulsory process or discovery request not later than the 10th day
  10-31  before the date the certificate required by this section is
  10-32  presented to the professional.
  10-33        (b)  Service of compulsory process or discovery requests on a
  10-34  professional must be accompanied by a written certification, signed
  10-35  by the person seeking to obtain information or the person's
  10-36  authorized representative, identifying at least one subdivision of
  10-37  Section 611.006(a) under which compulsory process or discovery is
  10-38  being sought.  The certification must also state that the
  10-39  requirements for notice of the compulsory process or discovery
  10-40  request have been met.
  10-41        (c)  A person may sign the certification only if the person
  10-42  reasonably believes that a legitimate basis for the use of
  10-43  discovery of compulsory process is provided by a subdivision of
  10-44  Section 611.006(a).
  10-45        (d)  Production of information under Section 611.006 does not
  10-46  constitute a waiver of any privilege, objection, or defense
  10-47  existing under other law, rule of evidence, or procedure.
  10-48        (e)  A professional is not required to seek a protective
  10-49  order on behalf of the patient to prevent or limit discovery or
  10-50  compulsory process of mental health care information requested
  10-51  under Section 611.006.
  10-52        Sec. 611.008.  REVOCATION OF CONSENT.  (a)  A patient or
  10-53  legally authorized representative may revoke a disclosure consent
  10-54  to a professional at any time.  A revocation is valid only if it is
  10-55  written, dated, and signed by the patient or legally authorized
  10-56  representative.  A patient may not revoke a disclosure that is
  10-57  required for purposes of making payment to the professional for
  10-58  mental health care services provided to the patient.
  10-59        (b)  A patient may not maintain an action against a
  10-60  professional for a disclosure made by the professional in
  10-61  good-faith reliance on an authorization if the professional did not
  10-62  have written notice of the revocation of the consent.
  10-63        SECTION 10.  (a)  Except as provided by Subsection (b) of
  10-64  this section, this Act applies to the disclosure of health care
  10-65  information, medical records, and mental health care information on
  10-66  or after January 1, 1994.
  10-67        (b)  Section 8 of this Act applies to the disclosure of
  10-68  health care information, medical records, and mental health care
  10-69  information on or after the date of passage of this Act.
  10-70        SECTION 11.  This Act takes effect September 1, 1993, except
   11-1  that Section 8 takes effect immediately.
   11-2        SECTION 12.  The importance of this legislation and the
   11-3  crowded condition of the calendars in both houses create an
   11-4  emergency and an imperative public necessity that the
   11-5  constitutional rule requiring bills to be read on three several
   11-6  days in each house be suspended, and this rule is hereby suspended,
   11-7  and that this Act take effect and be in force according to its
   11-8  terms, and it is so enacted.
   11-9                               * * * * *
  11-10                                                         Austin,
  11-11  Texas
  11-12                                                         April 21, 1993
  11-13  Hon. Bob Bullock
  11-14  President of the Senate
  11-15  Sir:
  11-16  We, your Committee on Health and Human Services to which was
  11-17  referred S.B. No. 1098, have had the same under consideration, and
  11-18  I am instructed to report it back to the Senate with the
  11-19  recommendation that it do not pass, but that the Committee
  11-20  Substitute adopted in lieu thereof do pass and be printed.
  11-21                                                         Zaffirini,
  11-22  Chair
  11-23                               * * * * *
  11-24                               WITNESSES
  11-25                                                  FOR   AGAINST  ON
  11-26  ___________________________________________________________________
  11-27  Name:  Julia R. "Becky" Beechinor                              x
  11-28  Representing:  Tx Dept. of Health
  11-29  City:  Austin
  11-30  -------------------------------------------------------------------
  11-31  Name:  Barbara Snipes                            x
  11-32  Representing:  Tx Health Info Mgt Asso
  11-33  City:  Austin
  11-34  -------------------------------------------------------------------
  11-35  Name:  Matthew Wall                              x
  11-36  Representing:  Tx Hospital Asso.
  11-37  City:  Austin
  11-38  -------------------------------------------------------------------
  11-39  Name:  Sharon Murdoch                                          x
  11-40  Representing:  Tx Dept of Health
  11-41  City:  Austin
  11-42  -------------------------------------------------------------------