1-1 AN ACT 1-2 relating to the privacy of certain information provided by 1-3 consumers to insurers and other related entities; providing a civil 1-4 penalty. 1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-6 SECTION 1. Title 1, Insurance Code, is amended by adding 1-7 Chapter 28A to read as follows: 1-8 CHAPTER 28A. PRIVACY 1-9 SUBCHAPTER A. GENERAL PROVISIONS 1-10 Art. 28A.01. DEFINITIONS. In this chapter: 1-11 (1) "Affiliate" means any company that controls, is 1-12 controlled by, or is under common control with another company; and 1-13 the term "control," including the terms "controls," "controlled 1-14 by," and "under common control," has the meaning assigned that term 1-15 by Section 2(d), Article 21.49-1, of this code. 1-16 (2) "Authorization" has the meaning assigned by 1-17 Section 82.001 of this code. 1-18 (3) "Covered entity" means an individual or entity who 1-19 receives an authorization from the department. The term includes 1-20 any individual or entity described by Section 82.002 of this code. 1-21 (4) "Nonaffiliated third party" means an entity that 1-22 is not an affiliate of, or related to by common ownership or 1-23 affiliated by corporate control with, the covered entity. The term 1-24 does not include a joint employee of the entity. 1-25 Art. 28A.02. COMPLIANCE WITH FEDERAL LAW REQUIRED. (a) A 2-1 covered entity shall comply with 15 U.S.C. Sections 6802 and 6803, 2-2 as amended, in the same manner as a financial institution under 2-3 those sections. 2-4 (b) An entity that is a nonaffiliated third party in 2-5 relation to a covered entity shall comply with 15 U.S.C. Section 2-6 6802(c), as amended. 2-7 Art. 28A.03. EXCEPTION. Article 28A.02(a) of this code does 2-8 not apply to a covered entity to the extent that the entity is 2-9 acting solely as the insurance agent, employee, or other authorized 2-10 representative for another covered entity. 2-11 Art. 28A.04. HEALTH INFORMATION. This chapter does not 2-12 affect the authority of the department or another state agency to 2-13 adopt stricter rules governing the treatment of health information 2-14 by a covered entity, if another law gives the department or agency 2-15 that authority, including any laws or rules of this state related 2-16 to the privacy of individually identifiable health information 2-17 under the federal Health Insurance Portability and Accountability 2-18 Act of 1996 (42 U.S.C. Section 1320d et seq.), as amended. 2-19 (Articles 28A.05-28A.50 reserved for expansion 2-20 SUBCHAPTER B. DEPARTMENT POWERS AND DUTIES 2-21 Art. 28A.51. RULEMAKING AUTHORITY. (a) The commissioner 2-22 shall adopt rules to implement this chapter. 2-23 (b) The commissioner shall adopt any other rules necessary 2-24 to carry out 15 U.S.C. Subchapter I, Chapter 94 (15 U.S.C. Section 2-25 6801 et seq.), as amended, to make this state eligible to override 2-26 federal regulations, as described by 15 U.S.C. Section 6805(c), as 3-1 amended. 3-2 (c) In adopting rules under this chapter, the commissioner 3-3 shall attempt to keep state privacy requirements consistent with 3-4 federal regulations adopted under 15 U.S.C. Subchapter I, Chapter 3-5 94 (15 U.S.C. Section 6801 et seq.), as amended. 3-6 Art. 28A.52. STANDARDS. The department shall implement 3-7 standards as required by 15 U.S.C. Section 6805(b), as amended. 3-8 (Articles 28A.53-28A.100 reserved for expansion 3-9 SUBCHAPTER C. ENFORCEMENT 3-10 Art. 28A.101. DUTY TO ENFORCE. The department shall enforce 3-11 15 U.S.C. Sections 6801-6805, as amended, to the extent required by 3-12 15 U.S.C. Section 6805, as amended, and this chapter. 3-13 Art. 28A.102. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The 3-14 attorney general, after conferring with the commissioner, may 3-15 institute an action for injunctive or declaratory relief to 3-16 restrain a violation of this chapter. 3-17 (b) In addition to the injunctive relief provided by 3-18 Subsection (a) of this article, the attorney general, after 3-19 conferring with the commissioner, may institute an action for civil 3-20 penalties against a covered entity or a nonaffiliated third party 3-21 for a violation of this chapter. A civil penalty assessed under 3-22 this article may not exceed $3,000 for each violation. 3-23 (c) If the court in which an action under Subsection (b) of 3-24 this article is pending finds that the violations have occurred 3-25 with a frequency as to constitute a pattern or practice, the court 3-26 may assess a civil penalty not to exceed $250,000. 4-1 (d) If the attorney general substantially prevails in an 4-2 action for injunctive relief or a civil penalty under this article, 4-3 the attorney general may recover reasonable attorney's fees, costs, 4-4 and expenses incurred obtaining the relief or penalty, including 4-5 court costs and witness fees. 4-6 SECTION 2. Not later than 30 days after the effective date 4-7 of this Act, the commissioner of insurance shall adopt the rules 4-8 required by Article 28A.51, Insurance Code, as added by this Act. 4-9 The commissioner may adopt these initial rules on an emergency 4-10 basis. 4-11 SECTION 3. This Act takes effect immediately if it receives 4-12 a vote of two-thirds of all the members elected to each house, as 4-13 provided by Section 39, Article III, Texas Constitution. If this 4-14 Act does not receive the vote necessary for immediate effect, this 4-15 Act takes effect September 1, 2001. _______________________________ _______________________________ President of the Senate Speaker of the House I hereby certify that S.B. No. 712 passed the Senate on March 15, 2001, by the following vote: Yeas 30, Nays 0, one present not voting; and that the Senate concurred in House amendments on May 26, 2001, by the following vote: Yeas 30, Nays 0, one present not voting. _______________________________ Secretary of the Senate I hereby certify that S.B. No. 712 passed the House, with amendments, on May 23, 2001, by the following vote: Yeas 136, Nays 0, one present not voting. _______________________________ Chief Clerk of the House Approved: _______________________________ Date _______________________________ Governor