By Janek H.B. No. 2594
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the disclosure of health and mental health care
1-3 information by a provider.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 241.003, Health and Safety Code, is
1-6 amended by adding Subdivisions (12)-(16) to read as follows:
1-7 (12) "Directory information" means information
1-8 disclosing the presence, nature of injury or illness, age, sex,
1-9 occupation, municipality of residence, and general health status as
1-10 described in terms of "critical", "poor", "fair", "good",
1-11 "excellent", or similar terms, of a patient who is an inpatient in
1-12 a hospital or who is currently receiving emergency care in a
1-13 hospital.
1-14 (13) "Health care information" means information
1-15 recorded in any form or medium that identifies a patient and
1-16 relates to the history, diagnosis, treatment, or prognosis of a
1-17 patient.
1-18 (14) "Health care provider" means a person who is
1-19 licensed, certified, or otherwise authorized by the laws of this
1-20 state to provide health care in the ordinary course of business or
1-21 practice of a profession.
1-22 (15) "Institutional review board" means a board,
1-23 committee, or other group formally designated by an institution, or
2-1 authorized under federal or state law to review approve the
2-2 initiation of, or conduct periodic review or research programs to
2-3 assure the protection of the rights and welfare of human research
2-4 subjects.
2-5 (16) "Legally authorized representative" means parent
2-6 or legal guardian if the patient is a minor, a legal guardian if
2-7 the patient has been adjudicated incompetent to manage the
2-8 patient's personal affairs, an agent of the patient authorized
2-9 under a durable power of attorney for health care, an attorney ad
2-10 litem appointed for the patient, or a personal representative if
2-11 the patient is deceased.
2-12 SECTION 2. Subchapter E, Chapter 241, Health and Safety
2-13 Code, is amended by adding Section 241.105 to read as follows:
2-14 Sec. 241.105. DISCLOSURE OF CERTAIN HEALTH CARE INFORMATION.
2-15 (a) Except as authorized by Subsection (f), a hospital or an agent
2-16 or employee of a hospital may not disclose health care information
2-17 about a patient to any other person without the written
2-18 authorization of the patient or the patient's legally authorized
2-19 representative.
2-20 (b) A disclosure authorization to a hospital is valid only
2-21 if it:
2-22 (1) is in writing;
2-23 (2) is dated and signed by the patient or legally
2-24 authorized representative;
2-25 (3) identifies the information to be disclosed;
3-1 (4) identifies the person or entity to whom the
3-2 information is to be disclosed; and
3-3 (5) states the purpose of the disclosure.
3-4 (c) A disclosure authorization is valid for 90 days after
3-5 the date it is signed unless it provides otherwise or unless it is
3-6 revoked.
3-7 (d) A patient or legally authorized representative may
3-8 revoke a disclosure authorization to a hospital at any time. A
3-9 revocation is valid only if it is in writing dated with a date that
3-10 is later than the date on the original authorization, and signed by
3-11 the patient or legally authorized representative. A patient may
3-12 not revoke a disclosure that is required for purposes of making
3-13 payment to the hospital for health care provided to the 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, quality
3-24 assurance or peer review, or to assist the hospital in the delivery
3-25 of health care or in complying with statutory, licensing,
4-1 accreditation, or certification requirements, and the hospital
4-2 takes appropriate action to ensure that the employee or agent:
4-3 (A) will not use or disclose the health care
4-4 information for any other purpose; and
4-5 (B) will take appropriate steps to protect the
4-6 health care information;
4-7 (3) to any federal, state, or local governmental
4-8 agency or authority to the extent authorized or required by law;
4-9 (4) to a hospital that is the successor in interest to
4-10 the hospital maintaining the health care information;
4-11 (5) for use in a research project authorized by an
4-12 institutional review board according to federal law;
4-13 (6) to health care personnel of a penal or other
4-14 custodial institution in which the patient is detained but only for
4-15 purposes of providing health care to the patient;
4-16 (7) directory information, unless the patient has
4-17 instructed the hospital not to make the disclosure or unless the
4-18 directory information is otherwise protected by Chapter 611 or
4-19 federal regulations concerning the confidentiality of alcohol and
4-20 drug abuse patient records (42 C.F.R. Part 2);
4-21 (8) pursuant to compulsory process in accordance with
4-22 Subsection (g);
4-23 (9) to facilitate reimbursement by a health benefit
4-24 plan to a hospital, other health care provider or the patient for
4-25 medical services or supplies; or
5-1 (10) to a health maintenance organization for purposes
5-2 of maintaining a statistical reporting system as required by
5-3 Chapter 119, Title 25, Texas Administrative Code, or regulations
5-4 adopted under the Federal Health Maintenance Organization Act.
5-5 (g) Health care information may not be disclosed by a
5-6 hospital pursuant to compulsory legal process or discovery in any
5-7 judicial, legislative, or administrative proceeding unless:
5-8 (1) the patient has authorized in writing the release
5-9 of the health care information;
5-10 (2) there is an attempt to recover monetary damages
5-11 for any physical or mental conditions, including death of the
5-12 patient, in any civil litigation or administrative proceeding, if
5-13 relevant, brought by the patient or a person on the patient's
5-14 behalf;
5-15 (3) the patient's physical or mental condition is
5-16 relevant to the execution of a will;
5-17 (4) the health care information is to be used in an
5-18 involuntary commitment proceeding for court-ordered treatment or
5-19 for a probable cause hearing under:
5-20 (A) Subtitle C, Title 7;
5-21 (B) Subtitle D, Title 7; or
5-22 (C) Chapter 462;
5-23 (5) the health care information is for use in a law
5-24 enforcement proceeding or investigation in which a health care
5-25 provider is the subject or a party, except that health care
6-1 information obtained under this subdivision may not be used in any
6-2 proceeding against the patient unless the matter relates to payment
6-3 for the patient's health care or unless authorized under
6-4 Subdivision (8);
6-5 (6) the health care information is relevant to a
6-6 proceeding brought under Subsection (g);
6-7 (7) the health care information is relevant to a
6-8 criminal prosecution where the patient is a victim, witness, or
6-9 defendant, subject to the limitation that the records are not
6-10 discoverable until the court in which the prosecution is pending
6-11 makes an in camera determination as to the relevance of the records
6-12 or communications, or any portion of the records or communications,
6-13 and further provided that this determination does not constitute a
6-14 determination as to the admissibility of those records or
6-15 communications or any portion of the records or communications; or
6-16 (8) a court has determined that the health care
6-17 information of a party or a person who has placed his mental or
6-18 physical condition at issue is subject to compulsory legal process
6-19 or discovery because the party seeking the information has
6-20 demonstrated by clear and convincing evidence that the interest in
6-21 access outweighs the patient's privacy interest.
6-22 (h) If health care information is sought under Subsection
6-23 (g), unless the court, for good cause shown, determines that the
6-24 notification should be waived or modified, the person seeking
6-25 discovery or compulsory process shall mail a notice by first-class
7-1 mail to the patient, the patient's legally authorized
7-2 representative, or the patient's attorney of record of the
7-3 compulsory process or discovery request not later than the 10th day
7-4 before the date the certificate required by this subsection is
7-5 presented to the hospital. Service of compulsory process or
7-6 discovery requests on a hospital must be accompanied by a written
7-7 certification, signed by the person seeking to obtain health care
7-8 information, or the person's legally authorized representative,
7-9 identifying at least one subdivision under Subsection (g) under
7-10 which compulsory process or discovery is being sought. The
7-11 certification must also state that the requirements for notice of
7-12 the compulsory process or discovery request have been met. A
7-13 person may sign the certification only if the person reasonably
7-14 believes that a legitimate basis for the use of discovery or
7-15 compulsory process is provided by a subdivision under Subsection
7-16 (g). Production of health care information under Subsection (g)
7-17 does not constitute a waiver of any privilege, objection, or
7-18 defense existing under other law, rule of evidence, or procedure.
7-19 A hospital is not required to seek a protective order on behalf of
7-20 the patient to prevent or limit discovery or compulsory process of
7-21 health care information requested under Subsection (g).
7-22 (i) On receipt of a written authorization from a patient or
7-23 legally authorized representative to examine or copy all or part of
7-24 the patient's recorded health care information, a hospital, as
7-25 promptly as required under the circumstances, but not later than
8-1 the 15th day after the date of receiving the request, shall:
8-2 (1) make the information available for examination
8-3 during regular business hours, and provide a copy to the authorized
8-4 requestor, if requested;
8-5 (2) inform the authorized requestor if the information
8-6 does not exist or cannot be found; or
8-7 (3) if the information is in use or unusual
8-8 circumstances have delayed handling the request, inform the
8-9 authorized requestor and specify in writing the reasons for the
8-10 delay and the earliest time for examination or copying or when the
8-11 request will be otherwise disposed of.
8-12 (j) If a record of the health care information requested is
8-13 not maintained by the hospital in the requested form, the hospital
8-14 is not required to create a new record or reformulate an existing
8-15 record to make the health care information available in the
8-16 requested format.
8-17 (k) The hospital may charge a reasonable fee for providing
8-18 the health care information and is not required to permit
8-19 examination or copying until the fee is paid except in the case of
8-20 a medical emergency. For purposes of this subsection, a reasonable
8-21 fee is one that does not exceed the actual cost of reproduction and
8-22 may not include any costs that are otherwise recouped as a part of
8-23 charges for health care.
8-24 (l) A hospital may deny a patient access to the patient's
8-25 health care information if a member of the hospital medical staff
9-1 responsible for the care and management of the patient reasonably
9-2 concludes that access to the information would be harmful to the
9-3 physical, mental, or emotional health of the patient and clearly
9-4 documents that conclusion in the patient's health care information.
9-5 The member of the hospital medical staff may delete confidential
9-6 information about another person who has not consented to the
9-7 release. If a member of the hospital medical staff denies a
9-8 patient's request for examination and copying, in whole or in part,
9-9 the hospital shall permit examination and copying of the record by
9-10 another health care provider, selected by the patient, who is
9-11 licensed, certified, or otherwise authorized by state law to treat
9-12 the patient for the same condition as the member of the hospital
9-13 medical staff denying the request.
9-14 (m) A hospital may deny access to health care information if
9-15 the health care information is made confidential by law.
9-16 (n) A person authorized to act for a patient shall act in
9-17 good faith to represent the best interest of the patient and is
9-18 immune from liability for an action taken in good faith.
9-19 (o) A hospital is immune from liability for a disclosure
9-20 taken in good faith in reliance on the representations and actions
9-21 of the patient's legally authorized representative.
9-22 (p) A hospital shall adopt and implement reasonable
9-23 safeguards for the security of all health care information it
9-24 maintains.
9-25 (q) A patient aggrieved by a violation of this section
10-1 relating to the unauthorized release of confidential health care
10-2 information may petition the district court of the county in which
10-3 the patient resides, or if the patient is not a resident of this
10-4 state, the district court of Travis County, for appropriate
10-5 injunctive relief, and the petition takes precedence over all civil
10-6 matters on the docketed court except those matters to which equal
10-7 precedence on the docket is granted by law. A patient aggrieved by
10-8 a violation of this section relating to the unauthorized release of
10-9 confidential health care information may sue for damages caused by
10-10 that release in a district court of the county in which the patient
10-11 resides, or if the the patient is not a resident of this state, the
10-12 district court of Travis County.
10-13 (r) To the extent that this section conflicts with the Rules
10-14 of Civil Evidence or the Rules of Criminal Evidence, this section
10-15 controls. The supreme court may not amend or adopt rules in
10-16 conflict with this section.
10-17 SECTION 3. Section 1.03(a), Medical Practice Act (Article
10-18 4495b, Vernon's Texas Civil Statutes), is amended by adding
10-19 Subdivisions (17) and (18) to read as follows:
10-20 (17) "Legally authorized representative" means a
10-21 parent or legal guardian if the patient is a minor, a legal
10-22 guardian if the patient has been adjudicated incompetent to manage
10-23 the patient's personal affairs, an agent of the patient authorized
10-24 under a durable power of attorney for health care, an attorney ad
10-25 litem appointed for the patient, or a personal representative if
11-1 the patient is deceased.
11-2 (18) "Medical records" means any records pertaining to
11-3 the history, diagnosis, treatment, or prognosis of the patient.
11-4 SECTION 4. Sections 5.08(g), (h), and (k), Medical Practice
11-5 Act (Article 4495b, Vernon's Texas Civil Statutes), are amended to
11-6 read as follows:
11-7 (g) Exceptions to confidentiality or privilege in court or
11-8 administrative proceedings exist:
11-9 (1) when the proceedings are brought by the patient
11-10 against a physician, including but not limited to malpractice
11-11 proceedings, and any criminal or license revocation proceeding in
11-12 which the patient is a complaining witness and in which disclosure
11-13 is relevant to the claims or defense of a physician;
11-14 (2) when the patient or someone authorized to act on
11-15 his behalf submits a written consent to the release of any
11-16 confidential information, as provided in Subsection (j) of this
11-17 section;
11-18 (3) when the purpose of the proceedings is to
11-19 substantiate and collect on a claim for medical services rendered
11-20 to the patient;
11-21 (4) in any civil litigation or administrative
11-22 proceeding, if relevant, brought by the patient or someone on his
11-23 behalf if the patient is attempting to recover monetary damages for
11-24 any physical or mental condition including death of the patient.
11-25 Any information is discoverable in any court or administrative
12-1 proceeding in this state if the court or administrative body has
12-2 jurisdiction over the subject matter, pursuant to rules of
12-3 procedure specified for the matters;
12-4 (5) in any disciplinary investigation or proceeding of
12-5 a physician conducted under or pursuant to this Act, provided that
12-6 the board shall protect the identity of any patient whose medical
12-7 records are examined, except for those patients covered under
12-8 Subdivision (1) of Subsection (g) of this section or those patients
12-9 who have submitted written consent to the release of their medical
12-10 records as provided by Subsection (j) of this section;
12-11 (6) in any criminal investigation of a physician in
12-12 which the board is participating or assisting in the investigation
12-13 or proceeding by providing certain medical records obtained from
12-14 the physician, provided that the board shall protect the identity
12-15 of any patient whose medical records are provided in the
12-16 investigation or proceeding, except for those patients covered
12-17 under Subdivision (1) of Subsection (g) of this section or those
12-18 patients who have submitted written consent to the release of their
12-19 medical records as provided by Subsection (j) of this section.
12-20 This subsection does not authorize the release of any confidential
12-21 information for the purpose of instigating or substantiating
12-22 criminal charges against a patient;
12-23 (7) in an involuntary civil commitment proceeding,
12-24 proceeding for court-ordered treatment, or probable cause hearing
12-25 under:
13-1 (A) Subtitle C, Title 7, Health and Safety Code;
13-2 (B) Subtitle D, Title 7, Health and Safety Code;
13-3 or
13-4 (C) Chapter 462, Health and Safety Code; <or>
13-5 (8) in any criminal prosecution where the patient is a
13-6 victim, witness, or defendant. Records are not discoverable until
13-7 the court in which the prosecution is pending makes an in camera
13-8 determination as to the relevance of the records or communications
13-9 or any portion thereof. Such determination shall not constitute a
13-10 determination as to the admissibility of such records or
13-11 communications or any portion thereof;
13-12 (9) when the patient's physical or mental condition is
13-13 relevant to the execution of a will;
13-14 (10) when the information is relevant to a proceeding
13-15 brought under Subsection (l); or
13-16 (11) when a court has determined that the medical
13-17 records of a party or person who has placed his mental or physical
13-18 condition at issue are subject to compulsory legal process or
13-19 discovery because the party seeking the information has
13-20 demonstrated by clear and convincing evidence that the interest in
13-21 access outweighs the patient's privacy interest.
13-22 (h) Exceptions to the privilege of confidentiality, in other
13-23 than court or administrative proceedings, allowing disclosure of
13-24 confidential information by a physician, exist only to the
13-25 following:
14-1 (1) governmental agencies if the disclosures are
14-2 required or authorized by law;
14-3 (2) medical or law enforcement personnel if the
14-4 physician determines that there is a probability of imminent
14-5 physical injury to the patient, to himself, or to others, or if
14-6 there is a probability of immediate mental or emotional injury to
14-7 the patient;
14-8 (3) qualified personnel for the purpose of management
14-9 audits, financial audits, program evaluations, or research, but the
14-10 personnel may not identify, directly or indirectly, a patient in
14-11 any report of the research, audit, or evaluation or otherwise
14-12 disclose identity in any manner;
14-13 (4) those parts of the medical records reflecting
14-14 charges and specific services rendered when necessary in the
14-15 collection of fees for medical services provided by a physician or
14-16 physicians or professional associations or other entities qualified
14-17 to render or arrange for medical services;
14-18 (5) any person who bears a written consent of the
14-19 patient or other person authorized to act on the patient's behalf
14-20 for the release of confidential information, as provided by
14-21 Subsection (j) of this section;
14-22 (6) individuals, corporations, or governmental
14-23 agencies involved in the payment or collection of fees for medical
14-24 services rendered by a physician;
14-25 (7) other physicians and personnel under the direction
15-1 of the physician who are participating in the diagnosis,
15-2 evaluation, or treatment of the patient; <or>
15-3 (8) in any official legislative inquiry regarding
15-4 state hospitals or state schools, provided that no information or
15-5 records which identify a patient or client shall be released for
15-6 any purpose unless proper consent to the release is given by the
15-7 patient, and only records created by the state hospital or school
15-8 or its employees shall be included under this subsection; or
15-9 (9) any employee or agent of the physician who
15-10 requires medical records for health care education, quality
15-11 assurance or peer review, or to assist the physician in the
15-12 delivery of health care or in complying with statutory, licensing,
15-13 or accreditation requirements, and the physician takes appropriate
15-14 action to ensure that the employee or agent:
15-15 (A) will not use or disclose the information for
15-16 any other purpose; and
15-17 (B) will take appropriate steps to protect the
15-18 information.
15-19 (k) A physician shall furnish copies of medical records
15-20 requested, or a summary or narrative of the records, pursuant to a
15-21 written consent for release of the information as provided by
15-22 Subsection (j) of this section, except if the physician determines
15-23 that access to the information would be harmful to the physical,
15-24 mental, or emotional health of the patient, and the physician may
15-25 delete confidential information about another person who has not
16-1 consented to the release. The information shall be furnished by
16-2 the physician within 30 days after the receipt of the request. The
16-3 original medical record created and maintained or received and
16-4 maintained by the physician remains the property of the physician.
16-5 If a medical record requested is not maintained by the physician in
16-6 the requested form, the physician is not required to create a new
16-7 medical record or reformulate an existing medical record to make
16-8 the information available in the requested format <and reasonable
16-9 fees for furnishing the information shall be paid by the patient or
16-10 someone on his behalf>. If the physician denies the request, in
16-11 whole or in part, the physician shall furnish the patient a written
16-12 statement, signed and dated, stating the reason for the denial. A
16-13 copy of the statement denying the request shall be placed in the
16-14 patient's medical records. <In this subsection, "medical records"
16-15 means any records pertaining to the history, diagnosis, treatment,
16-16 or prognosis of the patient.>
16-17 SECTION 5. Section 5.08(j)(2), Medical Practice Act (Article
16-18 4495b, Vernon's Texas Civil Statutes), is amended to read as
16-19 follows:
16-20 (2) The patient, or other person authorized to
16-21 consent, has the right to withdraw his consent to the release of
16-22 any information. Withdrawal of consent does not affect any
16-23 information disclosed prior to the written notice of the
16-24 withdrawal. A patient may not maintain an action against a
16-25 physician for a disclosure made by the physician in good-faith
17-1 reliance on an authorization if the physician did not have written
17-2 notice of the revocation of the authorization.
17-3 SECTION 6. Section 5.08, Medical Practice Act (Article
17-4 4495b, Vernon's Texas Civil Statutes), is amended by adding
17-5 Subsections (o)-(s) to read as follows:
17-6 (o) The physician may charge a reasonable fee for copying
17-7 medical records and is not required to permit examination or
17-8 copying until the fee is paid except in the case of a medical
17-9 emergency. For purposes of this subsection, a reasonable fee is
17-10 one that does not exceed the actual cost of reproduction and may
17-11 not include any costs that are otherwise recouped as a part of
17-12 charges for health care.
17-13 (p) If medical records are sought under Subsection (g),
17-14 unless the court, for good cause shown, determines that the
17-15 notification should be waived or modified, the person seeking
17-16 discovery or compulsory process shall mail a notice by first-class
17-17 mail to the patient, the patient's legally authorized
17-18 representative, or the patient's attorney of record of the
17-19 compulsory process or discovery request not later than the 10th day
17-20 before the date the certificate required by this subsection is
17-21 presented to the physician. Service of compulsory process or
17-22 discovery requests on a physician must be accompanied by a written
17-23 certification, signed by the person seeking to obtain medical
17-24 records, or the person's legally authorized representative,
17-25 identifying at least one subdivision under Subsection (g) under
18-1 which compulsory process or discovery is being sought. The
18-2 certification must also state that the requirements for notice of
18-3 the compulsory process or discovery request have been met. A
18-4 person may sign the certification only if the person reasonably
18-5 believes that a legitimate basis for the use of discovery or
18-6 compulsory process is provided by a subdivision under Subsection
18-7 (g). Production of medical records under Subsection (g) does not
18-8 constitute a waiver of any privilege, objection, or defense
18-9 existing under other law, rule of evidence, or procedure. A
18-10 physician is not required to seek a protective order on behalf of a
18-11 patient to prevent or limit discovery or compulsory process of
18-12 medical records requested under Subsection (g).
18-13 (q) A person authorized to act for a patient shall act in
18-14 good faith to represent the best interest of the patient and is
18-15 immune from liability for an action taken in good faith.
18-16 (r) A physician is immune from liability for an action taken
18-17 in good faith in reliance on the representations and actions of the
18-18 patient's legally authorized representative.
18-19 (s) To the extent that this section conflicts with the Rules
18-20 of Civil Evidence or the Rules of Criminal Evidence, this section
18-21 controls. The supreme court may not amend or adopt rules in
18-22 conflict with this section.
18-23 SECTION 7. Section 611.004, Health and Safety Code, is
18-24 amended to read as follows:
18-25 Sec. 611.004. AUTHORIZED DISCLOSURE OF CONFIDENTIAL
19-1 INFORMATION IN OTHER THAN COURT PROCEEDINGS. (a) A professional
19-2 may disclose confidential information only:
19-3 (1) to a governmental agency if the disclosure is
19-4 required or authorized by law;
19-5 (2) to medical or law enforcement personnel if the
19-6 professional determines that there is a probability of imminent
19-7 physical injury by the patient to the patient or others or there is
19-8 a probability of immediate mental or emotional injury to the
19-9 patient;
19-10 (3) to qualified personnel for management audits,
19-11 financial audits, program evaluations, or research, in accordance
19-12 with Subsection (b);
19-13 (4) to a person who has the written consent of the
19-14 patient, or a parent if the patient is a minor, or a guardian if
19-15 the patient has been adjudicated as incompetent to manage the
19-16 patient's personal affairs;
19-17 (5) to the patient's personal representative if the
19-18 patient is deceased;
19-19 (6) to individuals, corporations, or governmental
19-20 agencies involved in paying or collecting fees for mental or
19-21 emotional health services provided by a professional;
19-22 (7) to other professionals and personnel under the
19-23 professionals' direction who participate in the diagnosis,
19-24 evaluation, or treatment of the patient;
19-25 (8) in an official legislative inquiry relating to a
20-1 state hospital or state school as provided by Subsection (c); or
20-2 (9) to any other person who requires mental health
20-3 care information for mental health care education, quality
20-4 assurance, or peer review, or to assist the professional in the
20-5 delivery of mental health care services or in complying with
20-6 statutory, licensing, or accreditation requirements, if the
20-7 professional has taken appropriate action to ensure that the
20-8 person:
20-9 (A) will not use or disclose the information for
20-10 any other purposes; and
20-11 (B) will take appropriate steps to protect the
20-12 information <in a civil action or in a criminal case or criminal
20-13 law matter as otherwise allowed by law or rule>.
20-14 (b) Personnel who receive confidential information under
20-15 Subsection (a)(3) may not directly or indirectly identify or
20-16 otherwise disclose the identity of a patient in a report or in any
20-17 other manner.
20-18 (c) The exception in Subsection (a)(8) applies only to
20-19 records created by the state hospital or state school or by the
20-20 employees of the hospital or school. Information or records that
20-21 identify a patient may be released only with the patient's proper
20-22 consent.
20-23 (d) A person who receives information from confidential
20-24 communications or records may not disclose the information except
20-25 to the extent that disclosure in consistent with the authorized
21-1 purposes for which the person first obtained the information. This
21-2 subsection does not apply to a person listed in Subsection (a)(4)
21-3 or (a)(5) who is acting on the patient's behalf.
21-4 SECTION 8. Chapter 611, Health and Safety Code, is amended
21-5 by adding Section 611.006-611.012 to read as follows:
21-6 Sec. 611.006. AUTHORIZED DISCLOSURE OF CONFIDENTIAL
21-7 INFORMATION IN COURT PROCEEDINGS. (a) A professional may disclose
21-8 confidential information in a court proceeding:
21-9 (1) when the proceedings are brought by the patient
21-10 against a professional, including malpractice proceedings;
21-11 (2) In a license revocation proceeding in which the
21-12 patient is a complaining witness and in which disclosure is
21-13 relevant to the claim or defense of a professional;
21-14 (3) When the patient waives the patient's right in
21-15 writing to the privilege of confidentiality of any information, or
21-16 when a representative of the patient acting on the patient's behalf
21-17 submits a written waiver to the confidentiality privilege;
21-18 (4) when the purpose of the proceeding is to
21-19 substantiate and collect on a claim for mental or emotional health
21-20 services rendered to the patient;
21-21 (5) when the judge finds that the patient after having
21-22 been previously informed that communications would not be
21-23 privileged has made communications to a professional in the course
21-24 of a court-ordered examination relating to the patient's mental or
21-25 emotional condition or disorder, except that those communications
22-1 may be disclosed only with respect to issues involving the
22-2 patient's mental or emotional health;
22-3 (6) when the disclosure is relevant in a suit
22-4 affecting the parent-child relationship;
22-5 (7) in any criminal proceeding;
22-6 (8) in any proceeding regarding the abuse or neglect,
22-7 or the cause of abuse or neglect, of a resident of an institution,
22-8 as that term is defined by Chapter 242;
22-9 (9) when the patient's physical or mental condition is
22-10 relevant to the execution of a will;
22-11 (10) when the information is to be used in an
22-12 involuntary commitment proceeding for court-ordered treatment or
22-13 for a probable cause hearing under:
22-14 (A) Subtitle C;
22-15 (B) Subtitle D; or
22-16 (C) Chapter 462; or
22-17 (11) when a court has determined that the information
22-18 of a party or person who has placed his mental or physical
22-19 condition at issue is subject to compulsory legal process or
22-20 discovery because the party seeking the information has
22-21 demonstrated by a preponderance of the evidence that the interest
22-22 in access outweighs the patient's privacy interest.
22-23 (b) On granting an order under Subsection (a)(5), the court,
22-24 in determining the extent to which any disclosure of all or any
22-25 part of any communication is necessary, shall impose appropriate
23-1 safeguards against unauthorized disclosure.
23-2 Sec. 611.007. DISCOVERY OR COMPULSORY PROCESS. (a) If
23-3 mental health care information is sought under Section 611.006,
23-4 unless the court, for good cause shown, determines that the
23-5 notification should be waived or modified, the person seeking
23-6 discovery or compulsory process shall mail a notice by first-class
23-7 mail to the patient or the patient's attorney of record of the
23-8 compulsory process or discovery request not later than the 10th day
23-9 before the date the certificate required by this section is
23-10 presented to the professional.
23-11 (b) Service of compulsory process or discovery requests on a
23-12 professional must be accompanied by a written certification, signed
23-13 by the person seeking to obtain information, or the person's
23-14 authorized representative, identifying at least one subdivision of
23-15 Section 611.006 under which compulsory process or discovery is
23-16 being sought. The certification must also state that the
23-17 requirements for notice of the compulsory process or discovery
23-18 request have been met.
23-19 (c) A person may sign the certification only if the person
23-20 reasonably believes that a legitimate basis for the use of
23-21 discovery or compulsory process is provided by a subdivision of
23-22 Section 611.006.
23-23 (d) Production of information under Section 611.006 does not
23-24 constitute a waiver of any privilege, objection, or defense
23-25 existing under other law, rule of evidence, or procedure.
24-1 (e) A professional is not required to seek a protective
24-2 order on behalf of the patient to prevent or limit discovery or
24-3 compulsory process of mental health care information requested
24-4 under Section 611.006.
24-5 Sec. 611.008. REVOCATION OF CONSENT. (a) A patient or
24-6 legally authorized representative may revoke a disclosure consent
24-7 to a professional at any time. A revocation is valid only if it is
24-8 written, dated, and signed by the patient or legally authorized
24-9 representative. A patient may not revoke a disclosure that is
24-10 required for purposes of making payment to the professional for
24-11 mental health care services provided to the patient.
24-12 (b) A patient may not maintain an action against a
24-13 professional for a disclosure made by the professional in
24-14 good-faith reliance on an authorization if the professional did not
24-15 have written notice of the revocation of the consent.
24-16 Sec. 611.009. REQUEST BY PATIENT. (a) On receipt of a
24-17 written request from a patient to examine or copy all or part of
24-18 the patient's recorded mental health care information, a
24-19 professional, as promptly as required under the circumstances, but
24-20 not later than the 15th day after the date of receiving the
24-21 request, shall:
24-22 (1) make the information available for examination
24-23 during regular business hours and provide a copy to the patient, if
24-24 requested:
24-25 (2) inform the patient if the information does not
25-1 exist or cannot be found; or
25-2 (3) if the information is in use or unusual
25-3 circumstances have delayed handling the request, inform the patient
25-4 and specify in writing the reasons for the delay and the earliest
25-5 time for examination or copying or when the request will be
25-6 otherwise disposed of.
25-7 (b) If a record of the information requested is not
25-8 maintained by the professional in the requested format, the
25-9 professional is not required to create a new record or reformulate
25-10 an existing record to make the information available in the
25-11 requested format.
25-12 (c) Unless provided for by other state law, the professional
25-13 may charge a reasonable fee for copying mental health care
25-14 information and is not required to permit examination or copying
25-15 until the fee is paid except in the case of a medical emergency.
25-16 For purposes of this subsection, a reasonable fee is one that does
25-17 not exceed the actual cost of reproduction and may not include any
25-18 costs that are otherwise recouped as a part of charges for care.
25-19 Sec. 611.010. DENIAL OF ACCESS; INFORMATION MADE
25-20 CONFIDENTIAL BY LAW. A professional may deny access to mental
25-21 health care information if the information is made confidential by
25-22 law.
25-23 Sec. 611.011. RIGHTS OF OTHERS. (a) A person authorized to
25-24 act for a patient shall act in good faith to represent the best
25-25 interest of the patient and is immune from liability for an action
26-1 taken in good faith.
26-2 (b) A professional is immune from liability for an action
26-3 taken in good faith in reliance on the representations and actions
26-4 of the mental health care representative.
26-5 Sec. 611.012. EFFECT ON RULES OF CIVIL EVIDENCE AND CRIMINAL
26-6 EVIDENCE. To the extent that this Chapter conflicts with the Rules
26-7 of Civil Evidence or the Rules of Criminal Evidence, this Chapter
26-8 controls. The supreme court may not amend or adopt rules in
26-9 conflict with this Chapter.
26-10 SECTION 9. This Act applies to the disclosure of health care
26-11 information, medical records, and mental health care information on
26-12 or after January 1, 1996.
26-13 SECTION 10. This Act takes effect September 1, 1995.
26-14 SECTION 11. The importance of this legislation and the
26-15 crowded condition of the calendars in both houses create an
26-16 emergency and an imperative public necessity that the
26-17 constitutional rule requiring bills to be read on three several
26-18 days in each house be suspended, and this rule is hereby suspended.