Representative Maxey offered the following amendment to SB 1237: On page ___, line ___. amend C.S.S.B.1237 by inserting a new SECTION ___ to read as follows: SECTION ___. Title 71, Revised Statues, is amended by adding Article 4590j. Art. 4590j. LIMITATIONS ON DISCLOSURE OF CERTAIN PATIENT HEALTH INFORMATION Sec. 1. DEFINITIONS. In this article: (1) "Benefit manager" means a person who has access to and reviews patient health information, including information related to patient prescription dispensing records, for the purpose of administering a health care program operated by a health benefit plan, including utilization review and determination of coverage issues. The term includes a thirdparty administrator. (2) "Health benefit plan" means a plan that provides benefits for medical or surgical expenses incurred as a result of a health condition, accident, or sickness, including an individual, group, blanket, or franchise insurance policy or insurance agreement, a group hospital service contract, or an individual or group evidence of coverage or similar coverage document that is offered by: (A) an insurance company; (B) a group hospital service corporation operating under Chapter 20, Insurance Code; (C) a fraternal benefit society operating under Chapter 10, Insurance Code; (D) a stipulated premium insurance company operating under Chapter 22, Insurance Code; (E) a reciprocal exchange operating under Chapter 19, Insurance Code; (F) a health maintenance organization operating under the Texas Health Maintenance Organization Act (Chapter 20A, Vernon's Texas Insurance Code); (G) a multiple employer welfare arrangement that holds a certificate of authority under Article 3.952, Insurance Code; or (H) an approved nonprofit health corporation that holds a certificate of authority issued by the commissioner under Article 21.52F, Insurance Code. (3) "Health care provider" means a person who holds a license, certificate, or other authority issued by an agency of this state or another state that regulates the provision of health care and who has access to patient health information in the ordinary scope of the person's practice or employment. The term includes a mental health professional. (4) "Patient health information" means any information, whether communicated orally or recorded in writing or in an electronic medium, visual medium, or other format, that relates to a person's past, present, or future physical or mental health status, condition, treatment, receipt of health services or health care, or purchase of equipment or medications used in a person's health care and that reveals the identity of the person or tends to reveal the identity of the person if used alone or in conjunction with other information that it is reasonable to believe would be available to others. The term does not include a patient's name, address, telephone number, age, gender, or insurance status, if that information is compiled in a manner that is not based on, through sorting or other means, or does not otherwise make reference to, a patient's health status, health condition, or insurance claims data. The term does not include any information that would be found on a birth or death record. (5) "Person" means an individual, corporation, partnership, association, and any other legal entity. (6) "Thirdparty administrator" has the meaning assigned by Article 21.076, Insurance Code. Sec. 2. APPLICATION; EFFECT ON OTHER LAWS. (a) This article applies to a health care provider, health benefit plan, benefit manager, and any other person who, in the course and scope of the person's employment, business, or professional practice, has access to patient health information. (b) This article does not supersede or otherwise affect any requirement regarding confidentiality of personal information regarding a patient that is established under another law of this state or a federal law. Sec.3. PROHIBITED ACTS; EXCEPTIONS. (a) A person subject to this article may not sell, share, or use, for marketing purposes, any individually identifying patient health information, including selling, sharing, or using patient health information describing patients who have certain diagnoses or use certain types of drugs in order to solicit an individual patient to use another type or brand of drugs. (b) A person subject to this article may not request or require a patient to sign a consent form authorizing the disclosure or otherwise waive the confidentiality of information described by this section. (c) This section does not prohibit the transmission of patient health information: (1) from one health care provider to another in the course of providing treatment or referring the patient to another provider for treatment; (2) from a health care provider to the operator of a health benefit plan or person authorized by the operator of a health benefit plan as necessary to process a claim relating to coverage under the health benefit plan; (3) by a health care provider to a state agency authorized by law to collect the information, including the Texas Health Care Information Council or the Texas Department of Health; or (4) by the issuer of a health benefit plan as necessary to obtain reinsurance. (d) This section does not prohibit: (1) general advertising about a specific health care product or service; (2) a person from requesting and receiving information regarding a particular healthrelated product; (3) a person from requesting and receiving information regarding the person's own treatment or claims, or those regarding the person's dependent; or (4) a health care provider from recommending a specific treatment, product, or service to an individual patient of that health care provider. (e) This section does not prohibit a person subject to this article from using the experience, likeness, voice, or physical presence of a patient or former patient in patient testimonials or as "poster children" or other analogous representatives in conjunction with telethons or other fund-raising or marketing activities to promote a health care treatment, product, or service if the person obtains specific written consent of the patient or former patient in conjunction with all other applicable laws and does not use the patient or former patient's health information to market directly to that patient or former patient. Sec. 4. CAUSE OF ACTION. (a) A person subject to this article is liable for damages to a person whose individual patient health information is disclosed in violation of this article. (b) A plaintiff who prevails in an action brought under this section is entitled to recover compensatory damages, exemplary damages if authorized under Chapter 41, Civil Practice and Remedies Code, court costs, and reasonable attorney's fees. Sec. 5. GROUNDS FOR DISCIPLINARY ACTION. (a) In addition to any other penalty provided by law, a health care provider who violates Section 3 of this article commits an act that constitutes a ground for appropriate disciplinary action by the state agency that licenses, certifies, or otherwise regulates the practice of that health care provider. (b) An insurer, health maintenance organization, or other person regulated by the Texas Department of Insurance who violates Section 3 of this article commits an unfair or deceptive act or practice in the business of insurance and is subject to the penalties imposed under Article 21.21, Insurance Code. Sec. 6. CRIMINAL PENALTY. (a) A person commits an offense if the person knowingly violates Section 3 of this article. Each violation constitutes a separate offense. (b) An offense under this section is a Class C