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.