By: Nelson, Moncrief, Bernsen S.B. No. 782
A BILL TO BE ENTITLED
AN ACT
1-1 relating to disclosure requirements for certain patient health
1-2 information; providing a criminal penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Title 71, Revised Statutes, is amended by adding
1-5 Article 4590k to read as follows:
1-6 Art. 4590k. DISCLOSURE REQUIREMENTS FOR CERTAIN PATIENT
1-7 HEALTH INFORMATION
1-8 Sec. 1. DEFINITIONS. In this article:
1-9 (1) "Device" means an instrument, apparatus,
1-10 implement, machine, contrivance, implant, in vitro reagent, or
1-11 other similar or related article, including any component part or
1-12 accessory, that is required under federal or state law to be
1-13 ordered or prescribed by a practitioner.
1-14 (2) "Insurer" means a health insurance company, a
1-15 health maintenance organization, a preferred provider organization,
1-16 or other entity that offers a health benefit plan.
1-17 (3) "Patient prescription information" means
1-18 information conveyed by a practitioner in ordering a prescription
1-19 drug or device before the drug or device is dispensed and that
1-20 identifies a specific patient as the recipient of the prescription
1-21 drug or device. The term includes any information concerning the
1-22 dispensing of a drug or device that identifies a patient as having
1-23 been a recipient of a prescription drug or device, whether the
1-24 information is held by a practitioner, pharmacy, or other person.
2-1 (4) "Person" means an individual, corporation,
2-2 partnership, association, and any other legal entity.
2-3 (5) "Practitioner" means a licensed health care
2-4 professional who is authorized under the laws of this state to
2-5 prescribe, distribute, administer, order, or dispense a
2-6 prescription drug or device.
2-7 (6) "Prescription drug" means:
2-8 (A) a substance for which federal or state law
2-9 requires a prescription before it may be legally dispensed to the
2-10 public;
2-11 (B) a drug or device that under federal law is
2-12 required, before being dispensed or delivered, to be labeled with
2-13 the following statements, as appropriate:
2-14 (i) "Caution: federal law prohibits
2-15 dispensing without prescription" or, at a minimum, "Rx only"; or
2-16 (ii) "Caution: federal law restricts this
2-17 drug to use by or on the order of a licensed veterinarian"; or
2-18 (C) a drug or device that is required by any
2-19 applicable federal or state law or regulation to be dispensed on
2-20 prescription only or is restricted to use by a practitioner only.
2-21 Sec. 2. TRANSFER WITHOUT CONSENT PROHIBITED. (a) A person
2-22 may not transfer patient-identifying prescription information to
2-23 another person without the written consent of that patient.
2-24 (b) The consent required under this section must be made on
2-25 a separate consent form designed solely for the purpose of
2-26 obtaining consent under this section and may not be included in any
3-1 other form that the patient may be required to sign to obtain the
3-2 prescription.
3-3 (c) A person subject to this article may not waive a
3-4 prohibition created under this section by requesting or requiring a
3-5 patient to sign a consent form authorizing the disclosure.
3-6 (d) For the purposes of this section, "consent form"
3-7 includes an electronic document.
3-8 Sec. 3. EXCEPTIONS. (a) Section 2 of this article does not
3-9 apply to:
3-10 (1) direct transmission of the order, whether in a
3-11 written, electronic, or verbal format, by a practitioner to a
3-12 licensed pharmacist;
3-13 (2) communications among licensed practitioners,
3-14 licensed pharmacists, and other health care professionals who are:
3-15 (A) currently treating the patient who received
3-16 the prescription drug or device; or
3-17 (B) requested by a person described by Paragraph
3-18 (A) of this subdivision to provide a professional consultation;
3-19 (3) communications between insurers and practitioners
3-20 to establish prescription drug usage by a patient as necessary to
3-21 avoid adverse drug interactions or other adverse health conditions;
3-22 (4) information material regarding a prescription drug
3-23 or device obtained on request from the manufacturer or a vendor of
3-24 the prescription drug or device;
3-25 (5) information necessary to effect a recall of a
3-26 defective prescription drug or device or otherwise necessary to
4-1 protect the health and welfare of a specific person or the public
4-2 generally;
4-3 (6) information the release or transfer of which is
4-4 subject to other state or federal laws or rules, including
4-5 accreditation or licensure requirements;
4-6 (7) information necessary to adjudicate or process
4-7 payment claims for health care services, whether under a health
4-8 insurance benefits payment program or other payment system, if the
4-9 recipient makes no other use or further disclosure of the
4-10 information;
4-11 (8) information voluntarily disclosed by a patient to
4-12 a person outside the patient-provider relationship, including a
4-13 person who collects a prescribed drug or device on the request of
4-14 the patient;
4-15 (9) information used in clinical research monitored by
4-16 an institutional review board;
4-17 (10) information that does not identify a patient by
4-18 name, or that is encoded in a manner under which information
4-19 identifying a specific patient by name or address is not generally
4-20 obtainable, and that is used for epidemiological studies, research,
4-21 statistical analysis, medical outcomes, or pharmacoeconomic
4-22 research;
4-23 (11) information transferred to a person solely to
4-24 provide encoding or encryption of the information by that person;
4-25 (12) information transferred in connection with the
4-26 sale of a business or medical practice to a successor in interest;
5-1 or
5-2 (13) information transferred to an agent, employee, or
5-3 contractor as necessary to conduct a disclosure of information
5-4 authorized under this article or another law regulating the
5-5 provision of health care or the processing of a claim related to
5-6 that care by an insurer or other person regulated by the Texas
5-7 Department of Insurance.
5-8 (b) This article does not prohibit:
5-9 (1) general advertising about a specific
5-10 pharmaceutical or other health care product or service;
5-11 (2) a person from requesting and receiving information
5-12 regarding a specific pharmaceutical or other health care product or
5-13 service;
5-14 (3) a person from requesting and receiving
5-15 information regarding the records or claims of that person or that
5-16 person's dependent; or
5-17 (4) a practitioner from providing information
5-18 regarding a specific pharmaceutical or other health care product or
5-19 service to a patient of that practitioner in the course of
5-20 providing patient counseling.
5-21 Sec. 4. INFORMATION PROVIDED BY INSURERS; REGULATION BY
5-22 DEPARTMENT OF INSURANCE. (a) Notwithstanding any other provision
5-23 of this article, an insurer or other person regulated by the Texas
5-24 Department of Insurance who provides a health benefit plan to
5-25 policyholders or enrollees may provide information to its
5-26 policyholders or enrollees regarding health care programs relating
6-1 to specific diseases or conditions that the insurer offers through
6-2 the health benefit plan if the information is provided to all of
6-3 its policyholders or enrollees.
6-4 (b) This article does not affect the authority of an insurer
6-5 to notify a policyholder or enrollee about a change in the health
6-6 benefit plan, including a change in benefits or the adoption of or
6-7 a change in a formulary used by the insurer.
6-8 (c) The commissioner of insurance may adopt rules as
6-9 necessary to regulate the activities of insurers under this
6-10 section.
6-11 Sec. 5. GROUNDS FOR DISCIPLINARY ACTION. In addition to any
6-12 other penalty provided by law, a violation of this article by a
6-13 practitioner, insurer, or other person subject to this article who
6-14 holds a professional license or other authority to engage in an
6-15 activity affected by this article that is issued by an agency of
6-16 this state, constitutes a ground for appropriate disciplinary
6-17 action by that state agency.
6-18 Sec. 6. PENALTY. A person who knowingly violates Section 2
6-19 of this article commits an offense. An offense under this section
6-20 is a misdemeanor punishable by a fine not to exceed $10,000.
6-21 SECTION 2. This Act takes effect September 1, 1999.
6-22 SECTION 3. The importance of this legislation and the
6-23 crowded condition of the calendars in both houses create an
6-24 emergency and an imperative public necessity that the
6-25 constitutional rule requiring bills to be read on three several
6-26 days in each house be suspended, and this rule is hereby suspended.