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