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A BILL TO BE ENTITLED
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AN ACT
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relating to disclosure of confidential patient information by a |
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physician or mental health professional. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. (a) The legislature finds that the privilege of |
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confidentiality between a physician and a patient and between a |
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mental health professional and a patient is essential to foster |
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trust and candid communication. This confidentiality should not be |
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breached absent a compelling interest. Over the years, the |
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legislature has created exceptions to the privilege of |
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confidentiality, authorizing physicians and mental health |
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professionals to disclose confidential information in certain |
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circumstances. These exceptions recognize the importance of |
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providing physicians and mental health professionals with |
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discretion, rather than imposing a mandate, to disclose certain |
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patient information to satisfy certain compelling interests. |
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(b) In light of recent events involving and affecting |
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individuals living with mental health issues, the legislature |
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finds there is a greater need to afford physicians and mental |
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health professionals discretion to disclose patient information |
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when that disclosure could help mitigate harm to the patient or |
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others. |
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(c) The legislature supports the Supreme Court of Texas |
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holding in Thapar v. Zezulka, 994 S.W.2d 635 (Tex. 1999), |
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concluding that when law states a health professional "may" |
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perform an action, the law grants discretion rather than imposes a |
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requirement. The legislature intends for the exceptions created |
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under this Act to be construed in the same manner, as providing |
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discretion to disclose, but not imposing a duty to disclose. The |
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legislature reiterates this intent by including express language to |
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that effect in the law. |
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SECTION 2. Section 611.002(b), Health and Safety Code, is |
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amended to read as follows: |
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(b) Confidential communications or records may not be |
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disclosed except as provided by Section 611.004, 611.0041, or |
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611.0045. |
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SECTION 3. Section 611.004, Health and Safety Code, is |
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amended by amending Subsection (a) and adding Subsection (e) to |
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read as follows: |
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(a) A professional may disclose confidential information |
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only: |
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(1) to a governmental agency if the disclosure is |
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required or authorized by law; |
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(2) to a person reasonably able to prevent or mitigate |
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a threat, including the subject of the threat, [medical or law
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enforcement personnel] if the professional, in good faith, believes |
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[determines] that disclosure is necessary to prevent or mitigate a |
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serious and [there is a probability of] imminent threat [physical
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injury by the patient] to the health or safety of a person or the |
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public [patient or others or there is a probability of immediate
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mental or emotional injury to the patient]; |
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(3) to qualified personnel for management audits, |
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financial audits, program evaluations, or research, in accordance |
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with Subsection (b); |
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(4) to a person who has the written consent of the |
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patient, or a parent if the patient is a minor, or a guardian if the |
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patient has been adjudicated as incompetent to manage the patient's |
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personal affairs; |
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(5) to the patient's personal representative if the |
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patient is deceased; |
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(6) to individuals, corporations, or governmental |
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agencies involved in paying or collecting fees for mental or |
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emotional health services provided by a professional; |
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(7) to other professionals and personnel under the |
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professionals' direction who participate in the diagnosis, |
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evaluation, or treatment of the patient; |
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(8) in an official legislative inquiry relating to a |
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state hospital or state school as provided by Subsection (c); |
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(9) to designated persons or personnel of a |
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correctional facility in which a person is detained if the |
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disclosure is for the sole purpose of providing treatment and |
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health care to the person in custody; |
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(10) to an employee or agent of the professional who |
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requires mental health care information to provide mental health |
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care services or in complying with statutory, licensing, or |
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accreditation requirements, if the professional has taken |
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appropriate action to ensure that the employee or agent: |
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(A) will not use or disclose the information for |
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any other purposes; and |
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(B) will take appropriate steps to protect the |
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information; [or] |
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(11) to satisfy a request for medical records of a |
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deceased or incompetent person pursuant to Section 74.051(e), Civil |
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Practice and Remedies Code; or |
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(12) to a person in accordance with Section 611.0041. |
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(e) A professional who discloses confidential information |
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under Subsection (a)(2) is presumed to have acted in good faith with |
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regard to a belief described by that subsection if the belief is |
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based on the professional's actual knowledge or in reliance on a |
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credible representation by a person with apparent knowledge or |
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authority. |
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SECTION 4. Chapter 611, Health and Safety Code, is amended |
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by adding Sections 611.0041 and 611.0042 to read as follows: |
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Sec. 611.0041. DISCLOSURE OF CONFIDENTIAL INFORMATION FOR |
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NOTICE AND PATIENT'S CARE. (a) For a patient who is available and |
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has the capacity to make health care decisions, a professional may |
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disclose confidential information in accordance with this section |
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if the professional: |
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(1) obtains the patient's consent; |
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(2) provides the patient with the opportunity to |
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object to the disclosure, and the patient does not object; or |
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(3) reasonably infers from the circumstances, based on |
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the exercise of professional judgment, that the patient does not |
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object to the disclosure. |
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(b) For a patient who is not available or for whom the |
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opportunity to consent or for objection to the use or disclosure |
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under Subsection (a) cannot practicably be provided because of the |
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patient's incapacity or an emergency, a professional may, in the |
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exercise of professional judgment, determine whether the |
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disclosure is in the best interests of the patient and disclose the |
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patient's confidential information in accordance with this section |
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if determined to be in the patient's best interests. |
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(c) A professional authorized to disclose confidential |
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information under this section may only disclose a patient's |
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confidential information that, in the exercise of professional |
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judgment, is directly relevant to: |
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(1) the recipient's involvement with the patient's |
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health care, including obtaining prescriptions, medical supplies, |
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test results, or other similar forms of confidential information; |
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(2) the recipient's involvement with payment for the |
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patient's health care; or |
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(3) notification to the patient's family member, the |
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patient's legally authorized representative, or a person |
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responsible for the patient's care of the patient's location, |
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general condition, or death. |
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(d) A professional may disclose a patient's confidential |
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information under this section only to: |
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(1) the patient's relative; |
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(2) the patient's close personal friend; |
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(3) a person identified by the patient to receive the |
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disclosure; |
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(4) the patient's legally authorized representative; |
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(5) a person responsible for the patient's care; or |
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(6) a governmental or private entity authorized by law |
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to assist in disaster relief efforts for the purpose described by |
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Subsection (c)(3). |
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(e) A professional may disclose a patient's confidential |
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information to a person described by Subsection (d)(6) without |
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complying with Subsection (a) or (b) to the extent the |
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professional, in the exercise of professional judgment, determines |
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that the requirements interfere with the professional's ability to |
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respond to the disaster. |
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(f) A professional may disclose a deceased patient's |
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confidential information to a person described by Subsection (d) |
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who is involved in the patient's care or with payment of the |
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patient's health care that is relevant to the recipient's |
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involvement unless the patient informed the professional that the |
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patient preferred that the information not be disclosed. |
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Sec. 611.0042. CONSTRUCTION OF AUTHORIZED DISCLOSURE |
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PROVISIONS. The authorization to disclose confidential |
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information described by Sections 611.004 and 611.0041 may not be |
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construed to create an independent duty or requirement to disclose |
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the information. |
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SECTION 5. Section 159.004, Occupations Code, is amended to |
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read as follows: |
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Sec. 159.004. EXCEPTIONS TO CONFIDENTIALITY IN OTHER |
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SITUATIONS. (a) An exception to the privilege of confidentiality in |
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a situation other than a court or administrative proceeding, |
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allowing disclosure of confidential information by a physician, |
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exists only with respect to the following: |
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(1) a governmental agency, if the disclosure is |
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required or authorized by law; |
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(2) a person reasonably able to prevent or mitigate a |
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threat, including the subject of the threat [medical or law
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enforcement personnel], if the physician, in good faith, believes |
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[determines] that disclosure is necessary to prevent or mitigate a |
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serious and [there is a probability of:
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[(A)] imminent threat [physical injury] to the |
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health or safety of a [patient, the physician, or another] person or |
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the public [; or
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[(B) immediate mental or emotional injury to the
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patient]; |
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(3) qualified personnel for research or for a |
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management audit, financial audit, or program evaluation, but the |
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personnel may not directly or indirectly identify a patient in any |
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report of the research, audit, or evaluation or otherwise disclose |
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identity in any manner; |
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(4) those parts of the medical records reflecting |
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specific services provided if necessary in the collection of fees |
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for medical services provided by a physician, professional |
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association, or other entity qualified to provide or arrange for |
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medical services; |
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(5) a person who has consent, as provided by Section |
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159.005; |
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(6) a person, corporation, or governmental agency |
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involved in the payment or collection of fees for medical services |
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provided by a physician; |
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(7) another physician or other personnel acting under |
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the direction of the physician who participate in the diagnosis, |
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evaluation, or treatment of the patient; |
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(8) an official legislative inquiry regarding state |
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hospitals or state schools, if: |
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(A) information or a record that identifies a |
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patient or client is not released for any purpose unless proper |
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consent to the release is given by the patient; and |
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(B) only records created by the state hospital or |
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school or its employees are included; [or] |
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(9) health care personnel of a penal or other |
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custodial institution in which the patient is detained if the |
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disclosure is for the sole purpose of providing health care to the |
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patient; or |
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(10) a person in accordance with Section 159.0043. |
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(b) A physician who discloses confidential information |
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under Subsection (a)(2) is presumed to have acted in good faith with |
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regard to a belief described by that subsection if the belief is |
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based on the physician's actual knowledge or in reliance on a |
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credible representation by a person with apparent knowledge or |
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authority. |
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SECTION 6. Chapter 159, Occupations Code, is amended by |
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adding Sections 159.0043 and 159.0047 to read as follows: |
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Sec. 159.0043. DISCLOSURE OF CONFIDENTIAL INFORMATION FOR |
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NOTICE AND PATIENT'S CARE. (a) For a patient who is available and |
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has the capacity to make health care decisions, a physician may |
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disclose confidential information in accordance with this section |
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if the physician: |
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(1) obtains the patient's consent; |
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(2) provides the patient with the opportunity to |
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object to the disclosure, and the patient does not object; or |
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(3) reasonably infers from the circumstances, based on |
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the exercise of professional judgment, that the patient does not |
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object to the disclosure. |
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(b) For a patient who is not available or for whom the |
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opportunity to consent or for objection to the use or disclosure |
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under Subsection (a) cannot practicably be provided because of the |
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patient's incapacity or an emergency, a physician may, in the |
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exercise of professional judgment, determine whether the |
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disclosure is in the best interests of the patient and disclose the |
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patient's confidential information in accordance with this section |
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if determined to be in the patient's best interests. |
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(c) A physician authorized to disclose confidential |
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information under this section may only disclose a patient's |
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confidential information that, in the exercise of professional |
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judgment, is directly relevant to: |
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(1) the recipient's involvement with the patient's |
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health care, including obtaining prescriptions, medical supplies, |
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test results, or other similar forms of confidential information; |
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(2) the recipient's involvement with payment for the |
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patient's health care; or |
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(3) notification to the patient's family member, the |
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patient's legally authorized representative, or a person |
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responsible for the patient's care of the patient's location, |
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general condition, or death. |
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(d) A physician may disclose a patient's confidential |
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information under this section only to: |
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(1) the patient's relative; |
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(2) the patient's close personal friend; |
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(3) a person identified by the patient to receive the |
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disclosure; |
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(4) the patient's legally authorized representative; |
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(5) a person responsible for the patient's care; or |
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(6) a governmental or private entity authorized by law |
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to assist in disaster relief efforts for the purpose described by |
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Subsection (c)(3). |
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(e) A physician may disclose a patient's confidential |
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information to a person described by Subsection (d)(6) without |
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complying with Subsection (a) or (b) to the extent the physician, in |
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the exercise of professional judgment, determines that the |
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requirements interfere with the physician's ability to respond to |
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the disaster. |
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(f) A physician may disclose a deceased patient's |
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confidential information to a person described by Subsection (d) |
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who is involved in the patient's care or with payment of the |
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patient's health care that is relevant to the recipient's |
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involvement unless the patient informed the physician that the |
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patient preferred that the information not be disclosed. |
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Sec. 159.0047. CONSTRUCTION OF AUTHORIZED DISCLOSURE |
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PROVISIONS. The authorization to disclose confidential |
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information described by Sections 159.003, 159.004, and 159.0043 |
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may not be construed to create an independent duty or requirement to |
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disclose the information. |
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SECTION 7. The change in law made by this Act applies only |
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to confidential information provided on or after the effective date |
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of this Act. Confidential information provided before the |
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effective date of this Act is governed by the law in effect |
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immediately before the effective date of this Act, and that law is |
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continued in effect for that purpose. |
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SECTION 8. This Act takes effect September 1, 2019. |