BILL ANALYSIS

 

 

 

C.S.H.B. 3468

By: Capriglione

Public Health

Committee Report (Substituted)

 

 

 

BACKGROUND AND PURPOSE

 

Access to health information is critical for improving health care decisions and health outcomes and for lowering costs. Allowing access to health information benefits both the patient and provider as it has the potential for improving care coordination and results in more informed care through the patient's health care journey. However, information blocking is a barrier to interoperability. Because of this practice, Congress created laws that prohibited information blocking, including it as a central tenet of the 21st Century Cures Act. While the Cures Act created a framework, federal rules had to be promulgated to focus on interoperability. The Centers for Medicare and Medicaid Services Interoperability and Patient Access rule requires payers to make patient health care data available to their patients in an interoperable manner using an application programming interface. Largely due to COVID-19 and industry readiness, the implementation was delayed over several years. Further, the federal government has yet to promulgate a rule that would contain the enforcement mechanism necessary to provide financial penalties for violations of the new information blocking rule. Industry representatives report that information blocking is still occurring and, without enforcement penalties, it will likely continue to harm patients. C.S.H.B. 3468 seeks to make it clear that the State of Texas takes patient health data seriously and to ensure its use solely for the benefit of the patient by emphasizing that patients are the owners of their health information, enforcing federal information blocking rules to ensure that patients and those authorized to act on their behalf have access to patient health information, and changing the financial incentives to favor compliance over noncompliance.

 

CRIMINAL JUSTICE IMPACT

 

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

 

RULEMAKING AUTHORITY

 

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

 

ANALYSIS

 

C.S.H.B. 3468 amends the Health and Safety Code to authorize a covered entity, as that term is defined for purposes of state law relating to medical records privacy, that receives a request from a patient or the patient's legally authorized representative for a copy of the patient's health records to charge a fee to produce the records in an amount consistent with federal regulations regarding an individual's access to protected health information. However, the bill prohibits a covered entity from charging an aggregate amount that exceeds $100 dollars to produce the records if the patient is a Medicaid recipient or the patient's household income is at or below 200 percent of the federal poverty level. The bill requires a covered entity to post in a conspicuous location for patients requesting health records notice of the option to obtain a copy of the patient's health records subject to a fee, as applicable. The bill replaces the specified maximum retrieval and processing fees that a hospital or its agent may charge for providing health care information on receipt of a written authorization from a patient or a legally authorized representative with that maximum aggregate amount provided by the bill.

 

C.S.H.B. 3468 establishes that the health information of a patient contained in a patient's physical or electronic health records is considered the patient's property and, subject to the payment of such fees, a patient or the patient's legally authorized representative on request is entitled to copies of those health records. The bill, with respect to the 15-day deadline for a health care provider to provide a person's electronic health record on written request by the person if the provider is using an electronic health records system that is capable of fulfilling the request, specifies that the records must be provided as soon as practicable.

 

C.S.H.B. 3468 authorizes a covered entity to require a patient or the patient's legally authorized representative to submit a written or electronic request for copies of the patient's health records but prohibits the entity from requiring a patient or the patient's representative to submit a request by facsimile. The bill prohibits a covered entity from entering into a contract with a person that includes terms restricting a patient or the patient's legally authorized representative from accessing the patient's health records unless explicitly authorized by state or federal law and makes any contract clause or provision that restricts a patient or the patient's legally authorized representative from accessing the patient's health records unenforceable.

 

C.S.H.B. 3468 requires a covered entity, as defined by reference to federal regulations regarding administrative data standards and related requirements, to comply with federal laws regulating information blocking, defined by reference to federal regulations as a practice that is likely to interfere with access, exchange, or use of electronic health information and that the applicable entity conducting the practice knows or should know, as applicable, that the practice is unreasonable or likely to cause such interference. The bill makes a health care provider's violation of such federal laws a violation of statutory provisions relating to consumer access to health records.

 

C.S.H.B. 3468 authorizes the attorney general, in addition to the injunctive relief to restrain a violation of provisions regarding medical records privacy, to institute an action for civil penalties against a covered entity, as defined under those provisions, for a violation of provisions relating to consumer access to health records. A civil penalty assessed may not exceed the following:

·         $10,000 for each negligent violation, regardless of the length of time the violation continues during any year; or

·         $250,000 for each intentional violation committed for the purpose of financial gain, regardless of the length of time the violation continues during any year.

The bill requires the court, in determining the amount of the imposed penalty, to consider the same factors required to be considered by a court in assessing civil penalties for other violations under medical records privacy provisions and additionally requires the court, in considering the seriousness of the violation, to consider the nature, circumstances, extent, and gravity of the information blocking. The bill additionally includes among the factors that the court must consider in all such violations the size and geographic location of the covered entity and the financial impact the penalty would have on the covered entity's financial viability and ability to adequately serve an underserved community or population. The bill authorizes the court in a pending action against a covered entity with respect to consumer access to health records that finds the violations occurred with a frequency constituting a pattern or practice to assess additional civil penalties for each violation.

 

C.S.H.B. 3468 amends the Business & Commerce Code to make it unlawful for a person to place a restraint on trade or commerce by intentionally violating federal laws regulating information blocking.

 

C.S.H.B. 3468 applies only to a violation of law that occurs on or after the bill's effective date.

EFFECTIVE DATE

 

September 1, 2023.

 

COMPARISON OF INTRODUCED AND SUBSTITUTE

 

While C.S.H.B. 3468 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.

 

While both the introduced and the substitute provide for patient access to the patient's health records, the introduced established that the health records of a patient, including electronic health records, and the medical information contained in those records is considered the patient's property. The substitute does not include this provision and instead establishes that the health information of a patient contained in the patient's physical or electronic health records is considered the patient's property.

 

While both the introduced and the substitute entitle a patient to copies of the patient's health information on request and on the payment of certain fees and authorizes a covered entity to require such a person to submit a written or electronic request, but not a request by facsimile, for those copies, the substitute extends that entitlement and request process to the patient's legally authorized representative, whereas the introduced did not.

 

While both the introduced and the substitute provide for a covered entity's authority to charge a fee to produce requested health records, the versions differ in the following manner:

·         the substitute does not include provisions from the introduced providing the following schedule of fees:

o   for a physical copy of the records, a fee in an amount not to exceed the lesser of $15 or 50 cents per page;

o   for a copy of a filmed record, including a radiogram, X-ray, and sonogram, a fee in a reasonable amount determined by the Health and Human Services Commission (HHSC); and

o   for an electronic copy of the records, no fee to the extent the entity maintains the health records in an electronic format or a fee in a reasonable amount determined by HHSC to the extent the entity does not maintain the health records in an electronic format;

·         the substitute includes provisions not in the introduced establishing that such a fee is in an amount consistent with federal regulations, and prohibits a covered entity from charging an aggregate amount that exceeds $100 dollars to produce the records if the patient is a Medicaid recipient or if the patient's household income is at or below 200 percent of the federal poverty level; and

·         the substitute, and not the introduced, requires a covered entity to post in a conspicuous location for patients requesting health records a notice of the option to obtain a copy of the records subject to the applicable fees.

 

While both the introduced and the substitute prohibit a covered entity from entering into a contract with a person that includes terms restricting a patient or the patient's representative from accessing the patient's health records, the substitute includes a specification that the representative be legally authorized and an exception for such a contract that is explicitly authorized by a state or federal law, whereas the introduced did not.

 

The substitute includes a provision not included in the introduced, with respect to the 15-day deadline for a health care provider to provide a person's electronic health record on written request by the person if the provider is using an electronic health records system that is capable of fulfilling the request, specifying that the records must be provided as soon as practicable.

 

While both the introduced and the substitute provide for a civil penalty capped at $250,000 for each intentional violation of provisions relating to consumer access to information, the substitute specifies that the violation must be committed for the purpose of financial gain, whereas the introduced did not.

 

The substitute includes provisions not included in the introduced expanding the factors a court must consider in determining the amount of a penalty for any violation relating to medical records privacy.

 

The substitute includes provisions not in the introduced replacing the specified maximum retrieval and processing fees that a hospital or its agent may charge for providing health care information on receipt of a written authorization from a patient or a legally authorized representative with a maximum aggregate amount provided by the bill.