By: Madla S.B. No. 667
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the disclosure of health and mental health care
1-2 information by a provider.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 241.003, Health and Safety Code, is
1-5 amended by adding Subdivisions (12)-(16) to read as follows:
1-6 (12) "Directory information" means information
1-7 disclosing the presence, nature of injury or illness, age, sex,
1-8 occupation, municipality of residence, and general health status as
1-9 described in terms of "critical", "poor", "fair", "good",
1-10 "excellent", or similar terms, of a patient who is an inpatient in
1-11 a hospital or who is currently receiving emergency care in a
1-12 hospital.
1-13 (13) "Health care information" means information
1-14 recorded in any form or medium that identifies a patient and
1-15 relates to the history, diagnosis, treatment, or prognosis of a
1-16 patient.
1-17 (14) "Health care provider" means a person who is
1-18 licensed, certified, or otherwise authorized by the laws of this
1-19 state to provide health care in the ordinary course of business or
1-20 practice of a profession.
1-21 (15) "Institutional review board" means a board,
1-22 committee, or other group formally designated by an institution, or
1-23 authorized under federal or state law to review approve the
2-1 initiation of, or conduct periodic review or research programs to
2-2 assure the protection of the rights and welfare of human research
2-3 subjects.
2-4 (16) "Legally authorized representative" means parent
2-5 or legal guardian if the patient is a minor, a legal guardian if
2-6 the patient has been adjudicated incompetent to manage the
2-7 patient's personal affairs, an agent of the patient authorized
2-8 under a durable power of attorney for health care, an attorney ad
2-9 litem appointed for the patient, or a personal representative if
2-10 the patient is deceased.
2-11 SECTION 2. Subchapter E, Chapter 241, Health and Safety
2-12 Code, is amended by adding Section 241.105 to read as follows:
2-13 Sec. 241.105. DISCLOSURE OF CERTAIN HEALTH CARE INFORMATION.
2-14 (a) Except as authorized by Subsection (f), a hospital or an
2-15 agent or employee of a hospital may not disclose health care
2-16 information about a patient to any other person without the written
2-17 authorization of the patient or the patient's legally authorized
2-18 representative.
2-19 (b) A disclosure authorization to a hospital is valid only
2-20 if it:
2-21 (1) is in writing;
2-22 (2) is dated and signed by the patient or legally
2-23 authorized representative;
2-24 (3) identifies the information to be disclosed;
2-25 (4) identifies the person or entity to whom the
3-1 information is to be disclosed; and
3-2 (5) states the purpose of the disclosure.
3-3 (c) A disclosure authorization is valid for 90 days after
3-4 the date it is signed unless it provides otherwise or unless it is
3-5 revoked.
3-6 (d) A patient or legally authorized representative may
3-7 revoke a disclosure authorization to a hospital at any time. A
3-8 revocation is valid only if it is in writing dated with a date that
3-9 is later than the date on the original authorization, and signed by
3-10 the patient or legally authorized representative. A patient may
3-11 not revoke a disclosure that is required for purposes of making
3-12 payment to the hospital for health care provided to the patient.
3-13 (e) A patient may not maintain an action against a hospital
3-14 for a disclosure made by the hospital in good-faith reliance on an
3-15 authorization if the hospital's medical record director did not
3-16 have written notice of the revocation of the authorization.
3-17 (f) A patient's health care information may be disclosed
3-18 without the patient's authorization if the disclosure is:
3-19 (1) to a health care provider who is rendering health
3-20 care to the patient when the request is made;
3-21 (2) to any employee or agent of the hospital who
3-22 requires health care information for health care education, quality
3-23 assurance or peer review, or to assist the hospital in the delivery
3-24 of health care or in complying with statutory, licensing,
3-25 accreditation or certification requirements, and the hospital takes
4-1 appropriate action to ensure that the employee or agent:
4-2 (A) will not use or disclose the health care
4-3 information for any other purpose; and
4-4 (B) will take appropriate steps to protect the
4-5 health care information;
4-6 (3) to any federal, state or local governmental agency
4-7 or authority to the extent authorized or required by law;
4-8 (4) to a hospital that is the successor in interest to
4-9 the hospital maintaining the health care information;
4-10 (5) for use in a research project authorized by an
4-11 institutional review board according to federal law;
4-12 (6) to health care personnel of a penal or other
4-13 custodial institution in which the patient is detained but only for
4-14 purposes of providing health care to the patient;
4-15 (7) directory information, unless the patient has
4-16 instructed the hospital not to make the disclosure or unless the
4-17 directory information is otherwise protected by Chapter 611 or
4-18 federal regulations concerning the confidentiality of alcohol and
4-19 drug abuse patient records (42 C.F.R. Part 2);
4-20 (8) pursuant to compulsory process in accordance with
4-21 Subsection (g);
4-22 (9) to facilitate reimbursement by a health benefit
4-23 plan to a hospital, other health care provider or the patient for
4-24 medical services or supplies; or
4-25 (10) to a health maintenance organization for purposes
5-1 of maintaining a statistical reporting system as required by
5-2 Chapter 119 Title 25, Texas Administrative Code, or regulations
5-3 adopted under the Federal Health Maintenance Organization Act.
5-4 (g) Health care information may not be disclosed by a
5-5 hospital pursuant to compulsory legal process or discovery in any
5-6 judicial, legislative, or administrative proceeding unless:
5-7 (1) the patient has authorized in writing the release
5-8 of the health care information;
5-9 (2) there is an attempt to recover monetary damages
5-10 for any physical or mental conditions, including death of the
5-11 patient, in any civil litigation or administrative proceeding, if
5-12 relevant, brought by the patient or a person on the patient's
5-13 behalf;
5-14 (3) the patient's physical or mental condition is
5-15 relevant to the execution of a will;
5-16 (4) the health care information is to be used in an
5-17 involuntary commitment proceeding for court-ordered treatment or
5-18 for a probable cause hearing under:
5-19 (A) Subtitle C, Title 7;
5-20 (B) Subtitle D, Title 7; or
5-21 (C) Chapter 462;
5-22 (5) the health care information is for use in a law
5-23 enforcement proceeding or investigation in which a health care
5-24 provider is the subject or a party, except that health care
5-25 information obtained under this subdivision may not be used in any
6-1 proceeding against the patient unless the matter relates to payment
6-2 for the patient's health care or unless authorized under
6-3 Subdivision (8);
6-4 (6) the health care information is relevant to a
6-5 proceeding brought under Subsection (g);
6-6 (7) the health care information is relevant to a
6-7 criminal prosecution where the patient is a victim, witness, or
6-8 defendant, subject to the limitation that the records are not
6-9 discoverable until the court in which the prosecution is pending
6-10 makes an in camera determination as to the relevance of the records
6-11 or communications, or any portion of the records or communications,
6-12 and further provided that this determination does not constitute a
6-13 determination as to the admissibility of those records or
6-14 communications or any portion of the records or communications; or
6-15 (8) a court has determined that the health care
6-16 information of a party or a person who has placed his mental or
6-17 physical condition at issue is subject to compulsory legal process
6-18 or discovery because the party seeking the information has
6-19 demonstrated by clear and convincing evidence that the interest in
6-20 access outweighs the patient's privacy interest.
6-21 (h) If health care information is sought under Subsection
6-22 (g), unless the court, for good cause shown, determines that the
6-23 notification should be waived or modified, the person seeking
6-24 discovery or compulsory process shall mail a notice by first-class
6-25 mail to the patient, the patient's legally authorized
7-1 representative, or the patient's attorney of record of the
7-2 compulsory process or discovery request not later than the 10th day
7-3 before the date the certificate required by this subsection is
7-4 presented to the hospital. Service of compulsory process or
7-5 discovery request on a hospital must be accompanied by a written
7-6 certification, signed by the person seeking to obtain health care
7-7 information, or the person's legally authorized representative,
7-8 identifying at least one subdivision under Subsection (g) under
7-9 which compulsory process or discovery is being sought. The
7-10 certification must also state that the requirements for notice of
7-11 the compulsory process or discovery request have been met. A
7-12 person may sign the certification only if the person reasonably
7-13 believes that a legitimate basis for the use of discovery or
7-14 compulsory process is provided by a subdivision under Subsection
7-15 (g). Production of health care information under Subsection (g)
7-16 does not constitute a waiver of any privilege, objection, or
7-17 defense existing under other law, rule of evidence, or procedure.
7-18 A hospital is not required to seek a protective order on behalf of
7-19 the patient to prevent or limit discovery or compulsory process of
7-20 health care information requested under Subsection (g).
7-21 (i) On receipt of a written authorization from a patient or
7-22 legally authorized representative to examine or copy all or part of
7-23 the patient's recorded health care information, a hospital, as
7-24 promptly as required under the circumstances, but not later than
7-25 the 15th day after the date of receiving the request, shall:
8-1 (1) make the information available for examination
8-2 during regular business hours, and provide a copy to the authorized
8-3 requestor, if requested;
8-4 (2) inform the authorized requestor if the information
8-5 does not exist or cannot be found; or
8-6 (3) if the information is in use or unusual
8-7 circumstances have delayed handling the request, inform the
8-8 authorized requestor and specify in writing the reasons for the
8-9 delay and the earliest time for examination or copying or when the
8-10 request will be otherwise disposed of.
8-11 (j) If a record of the health care information requested is
8-12 not maintained by the hospital in the requested form, the hospital
8-13 is not required to create a new record or reformulate an existing
8-14 record to make the health care information available in the
8-15 requested format.
8-16 (k) The hospital may charge a reasonable fee for providing
8-17 the health care information and is not required to permit
8-18 examination or copying until the fee is paid except in the case of
8-19 a medical emergency. For purposes of this subsection, a reasonable
8-20 fee is one that does not exceed the actual cost of reproduction and
8-21 may not include any costs that are otherwise recouped as a part of
8-22 charges for health care.
8-23 (l) A hospital may deny a patient access to the patient's
8-24 health care information if a member of the hospital medical staff
8-25 responsible for the care and management of the patient reasonably
9-1 concludes that access to the information would be harmful to the
9-2 physical, mental, or emotional health of the patient and clearly
9-3 documents that conclusion in the patient's health care information.
9-4 The member of the hospital medical staff may delete confidential
9-5 information about another person who has not consented to the
9-6 release. If a member of the hospital medical staff denies a
9-7 patient's request for examination and copying, in whole or in part,
9-8 the hospital shall permit examination and copying of the record by
9-9 another health care provider, selected by the patient, who is
9-10 licensed, certified or otherwise authorized by state law to treat
9-11 the patient for the same condition as the member of the hospital
9-12 medical staff denying the request.
9-13 (m) A hospital may deny access to health care information if
9-14 the health care information is made confidential by law.
9-15 (n) A person authorized to act for a patient shall act in
9-16 good faith to represent the best interest of the patient and is
9-17 immune from liability for an action taken in good faith.
9-18 (o) A hospital is immune from liability for a disclosure
9-19 taken in good faith in reliance on the representations and actions
9-20 of the patient's legally authorized representative.
9-21 (p) A hospital shall adopt and implement reasonable
9-22 safeguards for the security of all health care information it
9-23 maintains.
9-24 (q) a patient aggrieved by a violation of this section
9-25 relating to the unauthorized release of confidential health care
10-1 information may petition the district court of the county in which
10-2 the patient resides, or if the patient is not a resident of this
10-3 state, the district court of Travis county, for appropriate
10-4 injunctive relief, and the petition takes precedence over all civil
10-5 matters on the docketed court except those matters to which equal
10-6 precedence on the docket is granted by law. A patient aggrieved by
10-7 a violation of this section relating to the unauthorized release of
10-8 confidential health care information may sue for damages caused by
10-9 that release in a district court of the county in which the patient
10-10 resides, or if the patient is not a resident of this state, the
10-11 district court of Travis county.
10-12 (r) To the extent that this section conflicts with the Rules
10-13 of Civil Evidence or the Rules of Criminal Evidence, this section
10-14 controls. The supreme court may not amend or adopt rules in
10-15 conflict with this section.
10-16 SECTION 3. Section 1.03(a), Medical Practice Act (Article
10-17 4495b, Vernon's Texas Civil Statutes), is amended by adding
10-18 Subdivisions (17) and (18) to read as follows:
10-19 (17) "Legally authorized representative" means a
10-20 parent or legal guardian if the patient is a minor, a legal
10-21 guardian if the patient has been adjudicated incompetent to manage
10-22 the patient's personal affairs, an agent of the patient authorized
10-23 under a durable power of attorney for health care, an attorney ad
10-24 litem appointed for the patient, or a personal representative if
10-25 the patient is deceased.
11-1 (18) "Medical records" means any records pertaining to
11-2 the history, diagnosis, treatment, or prognosis of the patient.
11-3 SECTION 4. Sections 5.08 (g), (h), and (k), Medical Practice
11-4 Act (Article 4495b, Vernon's Texas Civil Statutes), are amended to
11-5 read as follows:
11-6 (g) Exceptions to confidentiality or privilege in court or
11-7 administrative proceedings exist:
11-8 (1) when the proceedings are brought by the patient
11-9 against a physician, including but not limited to malpractice
11-10 proceedings, and any criminal or license revocation proceeding in
11-11 which the patient is a complaining witness and in which disclosure
11-12 is relevant to the claims or defense of a physician;
11-13 (2) when the patient or someone authorized to act on
11-14 his behalf submits a written consent to the release of any
11-15 confidential information, as provided in Subsection (j) of this
11-16 section;
11-17 (3) when the purpose of the proceedings is to
11-18 substantiate and collect on a claim for medical services rendered
11-19 to the patient;
11-20 (4) in any civil litigation or administrative
11-21 proceeding, if relevant, brought by the patient or someone on his
11-22 behalf if the patient is attempting to recover monetary damages for
11-23 any physical or mental condition including death of the patient.
11-24 Any information is discoverable in any court or administrative
11-25 proceeding in this state if the court or administrative body has
12-1 jurisdiction over the subject matter, pursuant to rules of
12-2 procedure specified for the matters;
12-3 (5) in any disciplinary investigation or proceeding of
12-4 a physician conducted under or pursuant to this Act, provided that
12-5 the board shall protect the identity of any patient whose medical
12-6 records are examined, except for those patients covered under
12-7 Subdivision (1) of Subsection (g) of this section or those patients
12-8 who have submitted written consent to the release of their medical
12-9 records as provided by Subsection (j) of this section;
12-10 (6) in any criminal investigation of a physician in
12-11 which the board is participating or assisting in the investigation
12-12 or proceeding by providing certain medical records obtained from
12-13 the physician, provided that the board shall protect the identity
12-14 of any patient whose medical records are provided in the
12-15 investigation or proceeding, except for those patients covered
12-16 under Subdivision (1) of Subsection (g) of this section or those
12-17 patients who have submitted written consent to the release of their
12-18 medical records as provided by Subsection (j) of this section.
12-19 This subsection does not authorize the release of any confidential
12-20 information for the purpose of instigating or substantiating
12-21 criminal charges against a patient;
12-22 (7) in an involuntary civil commitment proceeding,
12-23 proceeding for court-ordered treatment, or probable cause hearing
12-24 under:
12-25 (A) Subtitle C, Title 7, Health and Safety Code;
13-1 (B) Subtitle D, Title 7, Health and Safety Code;
13-2 or
13-3 (C) Chapter 462, Health and Safety Code; <or>
13-4 (8) in any criminal prosecution where the patient is a
13-5 victim, witness, or defendant. Records are not discoverable until
13-6 the court in which the prosecution is pending makes an in camera
13-7 determination as to the relevance of the records or communications
13-8 or any portion thereof. Such determination shall not constitute a
13-9 determination as to the admissibility of such records or
13-10 communications or any portion thereof;
13-11 (9) when the patient's physical or mental condition is
13-12 relevant to the execution of a will;
13-13 (10) when the information is relevant to a proceeding
13-14 brought under Subsection (l); or
13-15 (11) when a court has determined that the medical
13-16 records of a party or person who has placed his mental or physical
13-17 condition at issue are subject to compulsory legal process or
13-18 discovery because the party seeking the information has
13-19 demonstrated by clear and convincing evidence that the interest in
13-20 access outweighs the patient's privacy interest.
13-21 (h) Exceptions to the privilege of confidentiality, in other
13-22 than court or administrative proceedings, allowing disclosure of
13-23 confidential information by a physician, exist only to the
13-24 following:
13-25 (1) governmental agencies if the disclosures are
14-1 required or authorized by law;
14-2 (2) medical or law enforcement personnel if the
14-3 physician determines that there is a probability of imminent
14-4 physical injury to the patient, to himself, or to others, or if
14-5 there is a probability of immediate mental or emotional injury to
14-6 the patient;
14-7 (3) qualified personnel for the purpose of management
14-8 audits, financial audits, program evaluations, or research, but the
14-9 personnel may not identify, directly or indirectly, a patient in
14-10 any report of the research, audit, or evaluation or otherwise
14-11 disclose identity in any manner;
14-12 (4) those parts of the medical records reflecting
14-13 charges and specific services rendered when necessary in the
14-14 collection of fees for medical services provided by a physician or
14-15 physicians or professional associations or other entities qualified
14-16 to render or arrange for medical services;
14-17 (5) any person who bears a written consent of the
14-18 patient or other person authorized to act on the patient's behalf
14-19 for the release of confidential information, as provided by
14-20 Subsection (j) of this section;
14-21 (6) individuals, corporations, or governmental
14-22 agencies involved in the payment or collection of fees for medical
14-23 services rendered by a physician;
14-24 (7) other physicians and personnel under the direction
14-25 of the physician who are participating in the diagnosis,
15-1 evaluation, or treatment of the patient; <or>
15-2 (8) in any official legislative inquiry regarding
15-3 state hospitals or state schools, provided that no information or
15-4 records which identify a patient or client shall be released for
15-5 any purpose unless proper consent to the release is given by the
15-6 patient, and only records created by the state hospital or school
15-7 or its employees shall be included under this subsection; or
15-8 (9) any employee or agent of the physician who
15-9 requires medical records for health care education, quality
15-10 assurance or peer review, or to assist the physician in the
15-11 delivery of health care or in complying with statutory, licensing,
15-12 or accreditation requirements, and the physician takes appropriate
15-13 action to ensure that the employee or agent:
15-14 (A) will not use or disclose the information for
15-15 any other purpose; and
15-16 (B) will take appropriate steps to protect the
15-17 information.
15-18 (k) A physician shall furnish copies of medical records
15-19 requested, or a summary or narrative of the records, pursuant to a
15-20 written consent for release of the information as provided by
15-21 Subsection (j) of this section, except if the physician determines
15-22 that access to the information would be harmful to the physical,
15-23 mental, or emotional health of the patient, and the physician may
15-24 delete confidential information about another person who has not
15-25 consented to the release. The information shall be furnished by
16-1 the physician within 30 days after the receipt of the request. The
16-2 original medical record created and maintained or received and
16-3 maintained by the physician remains the property of the physician.
16-4 If a medical record requested is not maintained by the physician in
16-5 the requested form, the physician is not required to create a new
16-6 medical record or reformulate an existing medical record to make
16-7 the information available in the requested format <and reasonable
16-8 fees for furnishing the information shall be paid by the patient or
16-9 someone on his behalf>. If the physician denies the request, in
16-10 whole or in part, the physician shall furnish the patient a written
16-11 statement, signed and dated, stating the reason for the denial. A
16-12 copy of the statement denying the request shall be placed in the
16-13 patient's medical records. <In this subsection, "medical records"
16-14 means any records pertaining to the history, diagnosis, treatment,
16-15 or prognosis of the patient.>
16-16 SECTION 5. Section 5.08(j)(2), Medical Practice Act (Article
16-17 4495b, Vernon's Texas Civil Statutes), is amended to read as
16-18 follows:
16-19 (2) The patient, or other person authorized to
16-20 consent, has the right to withdraw his consent to the release of
16-21 any information. Withdrawal of consent does not affect any
16-22 information disclosed prior to the written notice of the
16-23 withdrawal. A patient may not maintain an action against a
16-24 physician for a disclosure made by the physician in good-faith
16-25 reliance on an authorization if the physician did not have written
17-1 notice of the revocation of the authorization.
17-2 SECTION 6. Section 5.08, Medical Practice Act (Article
17-3 4495b, Vernon's Texas Civil Statutes), is amended by adding
17-4 Subsections (o)-(s) to read as follows:
17-5 (o) The physician may charge a reasonable fee for copying
17-6 medical records and is not required to permit examination or
17-7 copying until the fee is paid except in the case of a medical
17-8 emergency. For purposes of this subsection, a reasonable fee is
17-9 one that does not exceed the actual cost of reproduction and may
17-10 not include any costs that are otherwise recouped as a part of
17-11 charges for health care.
17-12 (p) If medical records are sought under Subsection (g),
17-13 unless the court, for good cause shown, determines that the
17-14 notification should be waived or modified, the person seeking
17-15 discovery or compulsory process shall mail a notice by first-class
17-16 mail to the patient, the patient's legally authorized
17-17 representative, or the patient's attorney of record of the
17-18 compulsory process or discovery request not later than the 10th day
17-19 before the date the certificate required by this subsection is
17-20 presented to the physician. Service of compulsory process or
17-21 discovery requests on a physician must be accompanied by a written
17-22 certification, signed by the person seeking to obtain medical
17-23 records, or the person's legally authorized representative,
17-24 identifying at least one subdivision under Subsection (g) under
17-25 which compulsory process or discovery is being sought. The
18-1 certification must also state that the requirements for notice of
18-2 the compulsory process or discovery request have been met. A
18-3 person may sign the certification only if the person reasonably
18-4 believes that a legitimate basis for the use of discovery or
18-5 compulsory process is provided by a subdivision under Subsection
18-6 (g). Production of medical records under Subsection (g) does not
18-7 constitute a waiver of any privilege, objection, or defense
18-8 existing under other law, rule of evidence, or procedure. A
18-9 physician is not required to seek a protective order on behalf of a
18-10 patient to prevent or limit discovery or compulsory process of
18-11 medical records requested under Subsection (g).
18-12 (q) A person authorized to act for a patient shall act in
18-13 good faith to represent the best interest of the patient and is
18-14 immune from liability for an action taken in good faith.
18-15 (r) A physician is immune from liability for an action taken
18-16 in good faith in reliance on the representations and actions of the
18-17 patient's legally authorized representative.
18-18 (s) To the extent that this section conflicts with the Rules
18-19 of Civil Evidence or the Rules of Criminal Evidence, this section
18-20 controls. The supreme court may not amend or adopt rules in
18-21 conflict with this section.
18-22 SECTION 7. Section 611.004, Health and Safety Code, is
18-23 amended to read as follows:
18-24 Sec. 611.004. AUTHORIZED DISCLOSURE OF CONFIDENTIAL
18-25 INFORMATION IN OTHER THAN COURT PROCEEDINGS. (a) A professional
19-1 may disclose confidential information only:
19-2 (1) to a governmental agency if the disclosure is
19-3 required or authorized by law;
19-4 (2) to medical or law enforcement personnel if the
19-5 professional determines that there is a probability of imminent
19-6 physical injury by the patient to the patient or others or there is
19-7 a probability of immediate mental or emotional injury to the
19-8 patient;
19-9 (3) to qualified personnel for management audits,
19-10 financial audits, program evaluations, or research, in accordance
19-11 with Subsection (b);
19-12 (4) to a person who has the written consent of the
19-13 patient, or a parent if the patient is a minor, or a guardian if
19-14 the patient has been adjudicated as incompetent to manage the
19-15 patient's personal affairs;
19-16 (5) to the patient's personal representative if the
19-17 patient is deceased;
19-18 (6) to individuals, corporations, or governmental
19-19 agencies involved in paying or collecting fees for mental or
19-20 emotional health services provided by a professional;
19-21 (7) to other professionals and personnel under the
19-22 professionals' direction who participate in the diagnosis,
19-23 evaluation, or treatment of the patient;
19-24 (8) in an official legislative inquiry relating to a
19-25 state hospital or state school as provided by Subsection (c); or
20-1 (9) to any other person who requires mental health
20-2 care information for mental health care education, quality
20-3 assurance, or peer review, or to assist the professional in the
20-4 delivery of mental health care services or in complying with
20-5 statutory, licensing, or accreditation requirements, if the
20-6 professional has taken appropriate action to ensure that the
20-7 person:
20-8 (A) will not use or disclose the information for
20-9 any other purposes; and
20-10 (B) will take appropriate steps to protect the
20-11 information <in a civil action or in a criminal case or criminal
20-12 law matter as otherwise allowed by law or rule>.
20-13 (b) Personnel who receive confidential information under
20-14 Subsection (a)(3) may not directly or indirectly identify or
20-15 otherwise disclose the identity of a patient in a report or in any
20-16 other manner.
20-17 (c) The exception in Subsection (a)(8) applies only to
20-18 records created by the state hospital or state school or by the
20-19 employees of the hospital or school. Information or records that
20-20 identify a patient may be released only with the patient's proper
20-21 consent.
20-22 (d) A person who receives information from confidential
20-23 communications or records may not disclose the information except
20-24 to the extent that disclosure is consistent with the authorized
20-25 purposes for which the person first obtained the information. This
21-1 subsection does not apply to a person listed in Subsection (a)(4)
21-2 or (a)(5) who is acting on the patient's behalf.
21-3 SECTION 8. Chapter 611, Health and Safety Code, is amended
21-4 by adding Sections 611.006-611.012 to read as follows:
21-5 Sec. 611.006. AUTHORIZED DISCLOSURE OF CONFIDENTIAL
21-6 INFORMATION IN COURT PROCEEDINGS. (a) A professional may disclose
21-7 confidential information in a court proceeding:
21-8 (1) when the proceedings are brought by the patient
21-9 against a professional, including malpractice proceedings;
21-10 (2) in a license revocation proceeding in which the
21-11 patient is a complaining witness and in which disclosure is
21-12 relevant to the claim or defense of a professional;
21-13 (3) when the patient waives the patient's right in
21-14 writing to the privilege of confidentiality of any information, or
21-15 when a representative of the patient acting on the patient's behalf
21-16 submits a written waiver to the confidentiality privilege;
21-17 (4) when the purpose of the proceeding is to
21-18 substantiate and collect on a claim for mental or emotional health
21-19 services rendered to the patient;
21-20 (5) when the judge finds that the patient after having
21-21 been previously informed that communications would not be
21-22 privileged has made communications to a professional in the course
21-23 of a court-ordered examination relating to the patient's mental or
21-24 emotional condition or disorder, except that those communications
21-25 may be disclosed only with respect to issues involving the
22-1 patient's mental or emotional health;
22-2 (6) when the disclosure is relevant in a suit
22-3 affecting the parent-child relationship;
22-4 (7) in any criminal proceeding;
22-5 (8) in any proceeding regarding the abuse or neglect,
22-6 or the cause of abuse or neglect, of a resident of an institution,
22-7 as that term is defined by Chapter 242;
22-8 (9) when the patient's physical or mental condition is
22-9 relevant to the execution of a will;
22-10 (10) when the information is to be used in an
22-11 involuntary commitment proceeding for court-ordered treatment or
22-12 for a probable cause hearing under;
22-13 (A) Subtitle C;
22-14 (B) Subtitle D; or
22-15 (C) Chapter 462; or
22-16 (11) when a court has determined that the information
22-17 of a party or person who has placed his mental or physical
22-18 condition at issue is subject to compulsory legal process or
22-19 discovery because the party seeking the information has
22-20 demonstrated by a preponderance of the evidence that the interest
22-21 in access outweighs the patient's privacy interest.
22-22 (b) On granting an order under Subsection (a)(5), the court,
22-23 in determining the extent to which any disclosure of all or any
22-24 part of any communication is necessary, shall impose appropriate
22-25 safeguards against unauthorized disclosure.
23-1 Sec. 611.007. DISCOVERY OR COMPULSORY PROCESS. (a) If
23-2 mental health care information is sought under Section 611.006,
23-3 unless the court, for good cause shown, determines that the
23-4 notification should be waived or modified, the person seeking
23-5 discovery or compulsory process shall mail a notice by first-class
23-6 mail to the patient or the patient's attorney of record of the
23-7 compulsory process or discovery request not later than the 10th day
23-8 before the date the certificate required by this section is
23-9 presented to the professional.
23-10 (b) Service of compulsory process or discovery requests on a
23-11 professional must be accompanied by a written certification, signed
23-12 by the person seeking to obtain information, or the person's
23-13 authorized representative, identifying at least one subdivision of
23-14 Section 611.006 under which compulsory process or discovery is
23-15 being sought. The certification must also state that the
23-16 requirements for notice of the compulsory process or discovery
23-17 request have been met.
23-18 (c) A person may sign the certification only if the person
23-19 reasonably believes that a legitimate basis for the use of
23-20 discovery or compulsory process is provided by a subdivision of
23-21 Section 611.006.
23-22 (d) Production of information under Section 611.006 does not
23-23 constitute a waiver of any privilege, objection, or defense
23-24 existing under other law, rule of evidence, or procedure.
23-25 (e) A professional is not required to seek a protective
24-1 order on behalf of the patient to prevent or limit discovery or
24-2 compulsory process of mental health care information requested
24-3 under Section 611.006.
24-4 Sec. 611.008. REVOCATION OF CONSENT. (a) A patient or
24-5 legally authorized representative may revoke a disclosure consent
24-6 to a professional at any time. A revocation is valid only if it is
24-7 written, dated, and signed by the patient or legally authorized
24-8 representative. A patient may not revoke a disclosure that is
24-9 required for purposes of making payment to the professional for
24-10 mental health care services provided to the patient.
24-11 (b) A patient may not maintain an action against a
24-12 professional for a disclosure made by the professional in
24-13 good-faith reliance on an authorization if the professional did not
24-14 have written notice of the revocation of the consent.
24-15 Sec. 611.009. REQUEST BY PATIENT. (a) On receipt of a
24-16 written request from a patient to examine or copy all or part of
24-17 the patient's recorded mental health care information, a
24-18 professional, as promptly as required under the circumstances, but
24-19 not later than the 15th day after the date of receiving the
24-20 request, shall:
24-21 (1) make the information available for examination
24-22 during regular business hours and provide a copy to the patient, if
24-23 requested:
24-24 (2) inform the patient if the information does not
24-25 exist or cannot be found; or
25-1 (3) if the information is in use or unusual
25-2 circumstances have delayed handling the request, inform the patient
25-3 and specify in writing the reasons for the delay and the earliest
25-4 time for examination or copying or when the request will be
25-5 otherwise disposed of.
25-6 (b) If a record of the information requested is not
25-7 maintained by the professional in the requested format, the
25-8 professional is not required to create a new record or reformulate
25-9 an existing record to make the information available in the
25-10 requested format.
25-11 (c) Unless provided for by other state law, the professional
25-12 may charge a reasonable fee for copying mental health care
25-13 information and is not required to permit examination or copying
25-14 until the fee is paid except in the case if a medical emergency.
25-15 For purposes of this subsection, a reasonable fee is one that does
25-16 not exceed the actual cost of reproduction and may not include any
25-17 costs that are otherwise recouped as a part of charges for care.
25-18 Sec. 611.010. DENIAL OF ACCESS; INFORMATION MADE
25-19 CONFIDENTIAL BY LAW. A professional may deny access to mental
25-20 health care information if the information is made confidential by
25-21 law.
25-22 Sec. 611.011. RIGHTS OF OTHERS. (a) A person authorized to
25-23 act for a patient shall act in good faith to represent the best
25-24 interest of the patient and is immune from liability for an action
25-25 taken in good faith.
26-1 (b) A professional is immune from liability for an action
26-2 taken in good faith in reliance on the representations and actions
26-3 of the mental health care representative.
26-4 Sec. 611.012. EFFECT ON RULES OF CIVIL EVIDENCE AND CRIMINAL
26-5 EVIDENCE. To the extent that this Chapter conflicts with the Rules
26-6 of Civil Evidence or the Rules of Criminal Evidence, this Chapter
26-7 controls. The supreme court may not amend or adopt rules in
26-8 conflict with this Chapter.
26-9 SECTION 9. This Act applies to the disclosure of health care
26-10 information, medical records, and mental health care information on
26-11 or after January 1, 1996.
26-12 SECTION 10. This Act takes effect September 1, 1995.
26-13 SECTION 11. The importance of this legislation and the
26-14 crowded condition of the calendars in both houses create an
26-15 emergency and an imperative public necessity that the
26-16 constitutional rule requiring bills to be read on three several
26-17 days in each house be suspended, and this rule is hereby suspended.