1-1     By:  Nelson                                            S.B. No. 782
 1-2           (In the Senate - Filed March 2, 1999; March 3, 1999, read
 1-3     first time and referred to Committee on Health Services;
 1-4     April 8, 1999, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 5, Nays 0; April 8, 1999,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 782                   By:  Nelson
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to disclosure requirements for certain patient health
1-11     information; providing a criminal penalty.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Title 71, Revised Statutes, is amended by adding
1-14     Article 4590k to read as follows:
1-15           Art. 4590k.  DISCLOSURE REQUIREMENTS FOR CERTAIN PATIENT
1-16     HEALTH INFORMATION
1-17           Sec. 1.  DEFINITIONS.  In this article:
1-18                 (1)  "Device" means an instrument, apparatus,
1-19     implement, machine, contrivance, implant, in vitro reagent, or
1-20     other similar or related article, including any component part or
1-21     accessory, that is required under federal or state law to be
1-22     ordered or prescribed by a practitioner.
1-23                 (2)  "Insurer" means a health insurance company, a
1-24     health maintenance organization, a preferred provider organization,
1-25     or other entity that offers a health benefit plan.
1-26                 (3)  "Patient prescription information" means
1-27     information conveyed by a practitioner in ordering a prescription
1-28     drug or device before the drug or device is dispensed and that
1-29     identifies a specific patient as the recipient of the prescription
1-30     drug or device.  The term includes any information concerning the
1-31     dispensing of a drug or device that identifies a patient as having
1-32     been a recipient of a prescription drug or device, whether the
1-33     information is held by a practitioner, pharmacy, or other person.
1-34                 (4)  "Person" means an individual, corporation,
1-35     partnership, association, and any other legal entity.
1-36                 (5)  "Practitioner" means a licensed health care
1-37     professional who is authorized under the laws of this state to
1-38     prescribe, distribute, administer, order, or dispense a
1-39     prescription drug or device.
1-40                 (6)  "Prescription drug" means:
1-41                       (A)  a substance for which federal or state law
1-42     requires a prescription before it may be legally dispensed to the
1-43     public;
1-44                       (B)  a drug or device that under federal law is
1-45     required, before being dispensed or delivered, to be labeled with
1-46     the following statements, as appropriate:
1-47                             (i)  "Caution:  federal law prohibits
1-48     dispensing without prescription" or, at a minimum, "Rx only"; or
1-49                             (ii)  "Caution:  federal law restricts this
1-50     drug to use by or on the order of a licensed veterinarian"; or
1-51                       (C)  a drug or device that is required by any
1-52     applicable federal or state law or regulation to be dispensed on
1-53     prescription only or is restricted to use by a practitioner only.
1-54           Sec. 2.  TRANSFER WITHOUT CONSENT PROHIBITED.  (a)  A person
1-55     may not transfer patient-identifying prescription information to
1-56     another person without the written consent of that patient.
1-57           (b)  The consent required under this section must be made on
1-58     a separate consent form designed solely for the purpose of
1-59     obtaining consent under this section and may not be included in any
1-60     other form that the patient may be required to sign to obtain the
1-61     prescription.
1-62           (c)  A person subject to this article may not waive a
1-63     prohibition created under this section by requesting or requiring a
1-64     patient to sign a consent form authorizing the disclosure.
 2-1           (d)  For the purposes of this section, "consent form"
 2-2     includes an electronic document.
 2-3           Sec. 3.  EXCEPTIONS.  (a)  Section 2 of this article does not
 2-4     apply to:
 2-5                 (1)  direct transmission of the order, whether in a
 2-6     written, electronic, or verbal format, by a practitioner to a
 2-7     licensed pharmacist;
 2-8                 (2)  communications among licensed practitioners,
 2-9     licensed pharmacists, and other health care professionals who are:
2-10                       (A)  currently treating the patient who received
2-11     the prescription drug or device; or
2-12                       (B)  requested by a person described by Paragraph
2-13     (A) of this subdivision to provide a professional consultation;
2-14                 (3)  communications between insurers and practitioners
2-15     to establish prescription drug usage by a patient as necessary to
2-16     avoid adverse drug interactions or other adverse health conditions;
2-17                 (4)  information material regarding a prescription drug
2-18     or device obtained on request from the manufacturer or a vendor of
2-19     the prescription drug or device;
2-20                 (5)  information necessary to effect a recall of a
2-21     defective prescription drug or device or otherwise necessary to
2-22     protect the health and welfare of a specific person or the public
2-23     generally;
2-24                 (6)  information the release or transfer of which is
2-25     subject to other state or federal laws or rules, including
2-26     accreditation or licensure requirements;
2-27                 (7)  information necessary to adjudicate or process
2-28     payment claims for health care services, whether under a health
2-29     insurance benefits payment program or other payment system, if the
2-30     recipient makes no other use or further disclosure of the
2-31     information;
2-32                 (8)  information voluntarily disclosed by a patient to
2-33     a person outside the patient-provider relationship, including a
2-34     person who collects a prescribed drug or device on the request of
2-35     the patient;
2-36                 (9)  information used in clinical research monitored by
2-37     an institutional review board;
2-38                 (10)  information that does not identify a patient by
2-39     name, or that is encoded in a manner under which information
2-40     identifying a specific patient by name or address is not generally
2-41     obtainable, and that is used for epidemiological studies, research,
2-42     statistical analysis, medical outcomes, or pharmacoeconomic
2-43     research;
2-44                 (11)  information transferred to a person solely to
2-45     provide encoding or encryption of the information by that person;
2-46                 (12)  information transferred in connection with the
2-47     sale of a business or medical practice to a successor in interest;
2-48     or
2-49                 (13)  information transferred to an agent, employee, or
2-50     contractor as necessary to conduct a disclosure of information
2-51     authorized under this article or another law regulating the
2-52     provision of health care or the processing of a claim related to
2-53     that care by an insurer or other person regulated by the Texas
2-54     Department of Insurance.
2-55           (b)  This article does not prohibit:
2-56                 (1)  general advertising about a specific
2-57     pharmaceutical or other health care product or service;
2-58                 (2)  a person from requesting and receiving information
2-59     regarding a specific pharmaceutical or other health care product or
2-60     service;
2-61                 (3)  a person from requesting and receiving
2-62     information regarding the records or claims of that person or that
2-63     person's dependent; or
2-64                 (4)  a practitioner from providing information
2-65     regarding a specific pharmaceutical or other health care product or
2-66     service to a patient of that practitioner in the course of
2-67     providing patient counseling.
2-68           Sec. 4.  INFORMATION PROVIDED BY INSURERS; REGULATION BY
2-69     DEPARTMENT OF INSURANCE.  (a)  Notwithstanding any other provision
 3-1     of this article, an insurer or other person regulated by the Texas
 3-2     Department of Insurance who provides a health benefit plan to
 3-3     policyholders or enrollees may provide information to its
 3-4     policyholders or enrollees regarding health care programs relating
 3-5     to specific diseases or conditions that the insurer offers through
 3-6     the health benefit plan if the information is provided to all of
 3-7     its policyholders or enrollees.
 3-8           (b)  This article does not affect the authority of an insurer
 3-9     to notify a policyholder or enrollee about a change in the health
3-10     benefit plan, including a change in benefits or the adoption of or
3-11     a change in a formulary used by the insurer.
3-12           (c)  The commissioner of insurance may adopt rules as
3-13     necessary to regulate the activities of insurers under this
3-14     section.
3-15           Sec. 5.  GROUNDS FOR DISCIPLINARY ACTION.  In addition to any
3-16     other penalty provided by law, a violation of this article by a
3-17     practitioner, insurer, or other person subject to this article who
3-18     holds a professional license or other authority to engage in an
3-19     activity affected by this article that is issued by an agency of
3-20     this state, constitutes a ground for appropriate disciplinary
3-21     action by that state agency.
3-22           Sec. 6.  PENALTY.  A person who knowingly violates Section 2
3-23     of this article commits an offense.  An offense under this section
3-24     is a misdemeanor punishable by a fine not to exceed $10,000.
3-25           SECTION 2.  This Act takes effect September 1, 1999.
3-26           SECTION 3.  The importance of this legislation and the
3-27     crowded condition of the calendars in both houses create an
3-28     emergency and an imperative public necessity that the
3-29     constitutional rule requiring bills to be read on three several
3-30     days in each house be suspended, and this rule is hereby suspended.
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