76R11550 DLF-D By Maxey, Dukes H.B. No. 1928 Substitute the following for H.B. No. 1928: By Wise C.S.H.B. No. 1928 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to limitations on disclosure of certain patient health 1-3 information; providing penalties. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Title 71, Revised Statutes, is amended by adding 1-6 Article 4590j to read as follows: 1-7 Art. 4590j. LIMITATIONS ON DISCLOSURE OF CERTAIN PATIENT 1-8 HEALTH INFORMATION 1-9 Sec. 1. DEFINITIONS. In this article: 1-10 (1) "Benefit manager" means a person who has access to 1-11 and reviews patient health information, including information 1-12 related to patient prescription dispensing records, for the purpose 1-13 of administering a health care program operated by a health benefit 1-14 plan, including utilization review and determination of coverage 1-15 issues. The term includes a third-party administrator. 1-16 (2) "Health benefit plan" means a plan that provides 1-17 benefits for medical or surgical expenses incurred as a result of 1-18 a health condition, accident, or sickness, including an individual, 1-19 group, blanket, or franchise insurance policy or insurance 1-20 agreement, a group hospital service contract, or an individual or 1-21 group evidence of coverage or similar coverage document that is 1-22 offered by: 1-23 (A) an insurance company; 1-24 (B) a group hospital service corporation 2-1 operating under Chapter 20, Insurance Code; 2-2 (C) a fraternal benefit society operating under 2-3 Chapter 10, Insurance Code; 2-4 (D) a stipulated premium insurance company 2-5 operating under Chapter 22, Insurance Code; 2-6 (E) a reciprocal exchange operating under 2-7 Chapter 19, Insurance Code; 2-8 (F) a health maintenance organization operating 2-9 under the Texas Health Maintenance Organization Act (Chapter 20A, 2-10 Vernon's Texas Insurance Code); 2-11 (G) a multiple employer welfare arrangement that 2-12 holds a certificate of authority under Article 3.95-2, Insurance 2-13 Code; or 2-14 (H) an approved nonprofit health corporation 2-15 that holds a certificate of authority issued by the commissioner 2-16 under Article 21.52F, Insurance Code. 2-17 (3) "Health care provider" means a person who holds a 2-18 license, certificate, or other authority issued by a state agency 2-19 that regulates the provision of health care and who has access to 2-20 patient health information in the ordinary scope of the person's 2-21 practice or employment. The term includes a mental health 2-22 professional. 2-23 (4) "Patient health information" means any information 2-24 compiled during the course of patient treatment that could 2-25 reasonably be used to determine the identity of a specific patient, 2-26 including: 2-27 (A) a medical record; 3-1 (B) genetic test information; 3-2 (C) clinical research records; 3-3 (D) mental health therapy notes; and 3-4 (E) prescription records. 3-5 (5) "Person" means an individual, corporation, 3-6 partnership, association, and any other legal entity. 3-7 (6) "Third-party administrator" has the meaning 3-8 assigned by Article 21.07-6, Insurance Code. 3-9 Sec. 2. APPLICATION; EFFECT ON OTHER LAWS. (a) This 3-10 article applies to a health care provider, health benefit plan, 3-11 benefit manager, and any other person who, in the course and scope 3-12 of the person's employment, business, or professional practice, has 3-13 access to patient health information. 3-14 (b) This article does not supersede or otherwise affect any 3-15 requirement regarding confidentiality of personal information 3-16 regarding a patient that is established under another law of this 3-17 state or a federal law. 3-18 Sec. 3. PROHIBITED ACTS; EXCEPTIONS. (a) A person subject 3-19 to this article may not sell, share, or use, for marketing 3-20 purposes, any individually identifying patient health information, 3-21 including selling, sharing, or using patient health information 3-22 describing patients who have certain diagnoses or use certain types 3-23 of drugs in order to solicit an individual patient to use another 3-24 type or brand of drugs. 3-25 (b) A person subject to this article may not request or 3-26 require a patient to sign a consent form authorizing the disclosure 3-27 or otherwise waive the confidentiality of information described by 4-1 this section. 4-2 (c) This section does not prohibit the transmission of 4-3 patient health information: 4-4 (1) from one health care provider to another in the 4-5 course of providing treatment or referring the patient to another 4-6 provider for treatment; 4-7 (2) from a health care provider to the operator of a 4-8 health benefit plan or person authorized by the operator of a 4-9 health benefit plan as necessary to process a claim relating to 4-10 coverage under the health benefit plan; 4-11 (3) by a health care provider to a state agency 4-12 authorized by law to collect the information, including the Texas 4-13 Health Care Information Council or the Texas Department of Health; 4-14 or 4-15 (4) by the issuer of a health benefit plan as 4-16 necessary to obtain reinsurance. 4-17 (d) This section does not prohibit: 4-18 (1) general advertising about a specific health care 4-19 product or service; 4-20 (2) a person from requesting and receiving information 4-21 regarding a particular health-related product; 4-22 (3) a person from requesting and receiving 4-23 information regarding the person's own treatment or claims, or 4-24 those regarding the person's dependent; or 4-25 (4) a health care provider from recommending a 4-26 specific treatment, product, or service to an individual patient of 4-27 that health care provider. 5-1 Sec. 4. CAUSE OF ACTION. (a) A person subject to this 5-2 article is liable for damages to a person whose individual patient 5-3 health information is disclosed in violation of this article. 5-4 (b) A plaintiff who prevails in an action brought under this 5-5 section is entitled to recover compensatory damages, exemplary 5-6 damages if authorized under Chapter 41, Civil Practice and Remedies 5-7 Code, court costs, and reasonable attorney's fees. 5-8 Sec. 5. GROUNDS FOR DISCIPLINARY ACTION. (a) In addition 5-9 to any other penalty provided by law, a health care provider who 5-10 violates Section 3 of this article commits an act that constitutes 5-11 a ground for appropriate disciplinary action by the state agency 5-12 that licenses, certifies, or otherwise regulates the practice of 5-13 that health care provider. 5-14 (b) An insurer, health maintenance organization, or other 5-15 person regulated by the Texas Department of Insurance who violates 5-16 Section 3 of this article commits an unfair or deceptive act or 5-17 practice in the business of insurance and is subject to the 5-18 penalties imposed under Article 21.21, Insurance Code. 5-19 Sec. 6. CRIMINAL PENALTY. (a) A person commits an offense 5-20 if the person knowingly violates Section 3 of this article. Each 5-21 violation constitutes a separate offense. 5-22 (b) An offense under this section is a Class C misdemeanor. 5-23 SECTION 2. Article 4590j, Revised Statutes, as added by this 5-24 Act, applies only to a cause of action that accrues on or after the 5-25 effective date of this Act. A cause of action that accrues before 5-26 that date is governed by the law as it existed immediately before 5-27 the effective date of this Act, and that law is continued in effect 6-1 for that purpose. 6-2 SECTION 3. This Act takes effect September 1, 1999. 6-3 SECTION 4. The importance of this legislation and the 6-4 crowded condition of the calendars in both houses create an 6-5 emergency and an imperative public necessity that the 6-6 constitutional rule requiring bills to be read on three several 6-7 days in each house be suspended, and this rule is hereby suspended.