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