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. 3-31 * * * * *