By Maxey H.B. No. 1928 76R7550 PB-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to limitations on disclosure of certain patient health 1-3 care information; providing a criminal penalty. 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 of this code; 2-2 (C) a fraternal benefit society operating under 2-3 Chapter 10 of this code; 2-4 (D) a stipulated premium insurance company 2-5 operating under Chapter 22 of this code; 2-6 (E) a reciprocal exchange operating under 2-7 Chapter 19 of this 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 of this code; 2-13 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 of this 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, a list of patients that contains information through 3-21 which the identity of individual patients is disclosed, including 3-22 selling, sharing, or using a list of patients who have certain 3-23 diagnoses or use certain types of drugs in order to solicit an 3-24 individual patient to use another 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; or 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 (d) This section does not prohibit: 4-15 (1) general advertising about a specific health care 4-16 product or service; 4-17 (2) a person from requesting and receiving information 4-18 regarding a particular health-related product; 4-19 (3) a person from requesting and receiving 4-20 information regarding the person's own treatment or claims, or 4-21 those regarding the person's dependent; or 4-22 (4) a health care provider from recommending a 4-23 specific treatment, product, or service to an individual patient of 4-24 that health care provider. 4-25 Sec. 4. CAUSE OF ACTION. (a) A person subject to this 4-26 article is liable for damages to a person whose individual patient 4-27 health information is disclosed in violation of this article. 5-1 (b) A plaintiff who prevails in an action brought under this 5-2 section is entitled to recover compensatory damages, exemplary 5-3 damages if authorized under Chapter 41, Civil Practice and Remedies 5-4 Code, court costs, and reasonable attorney's fees. 5-5 Sec. 5. GROUNDS FOR DISCIPLINARY ACTION. (a) In addition 5-6 to any other penalty provided by law, a health care provider who 5-7 violates Section 3 of this article commits an act that constitutes 5-8 a ground for appropriate disciplinary action by the state agency 5-9 that licenses, certifies, or otherwise regulates the practice of 5-10 that health care provider. 5-11 (b) An insurer, health maintenance organization, or other 5-12 person regulated by the Texas Department of Insurance who violates 5-13 Section 3 of this article commits an unfair or deceptive act or 5-14 practice in the business of insurance and is subject to the 5-15 penalties imposed under Article 21.21, Insurance Code. 5-16 Sec. 6. CRIMINAL PENALTY. A person who knowingly violates 5-17 Section 3 of this article commits an offense. An offense under 5-18 this section is a Class C misdemeanor. 5-19 SECTION 2. Article 4590j, Revised Statutes, as added by this 5-20 Act, applies only to a cause of action that accrues on or after the 5-21 effective date of this Act. A cause of action that accrues before 5-22 that date is governed by the law as it existed immediately before 5-23 the effective date of this Act, and that law is continued in effect 5-24 for that purpose. 5-25 SECTION 3. This Act takes effect September 1, 1999. 5-26 SECTION 4. The importance of this legislation and the 5-27 crowded condition of the calendars in both houses create an 6-1 emergency and an imperative public necessity that the 6-2 constitutional rule requiring bills to be read on three several 6-3 days in each house be suspended, and this rule is hereby suspended.