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