1-1                                   AN ACT
 1-2     relating to protecting the privacy of medical records; providing
 1-3     penalties.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Title 2, Health and Safety Code, is amended by
 1-6     adding Subtitle I to read as follows:
 1-7                        SUBTITLE I.  MEDICAL RECORDS
 1-8                    CHAPTER 181.  MEDICAL RECORDS PRIVACY
 1-9                      SUBCHAPTER A.  GENERAL PROVISIONS
1-10           Sec. 181.001.  DEFINITIONS.  (a)  Unless otherwise defined in
1-11     this chapter, each term that is used in this chapter has the
1-12     meaning assigned by the Health Insurance Portability and
1-13     Accountability Act and Privacy Standards.
1-14           (b)  In this chapter:
1-15                 (1)  "Covered entity" means any person who:
1-16                       (A)  for commercial, financial, or professional
1-17     gain, monetary fees, or dues, or on a cooperative, nonprofit, or
1-18     pro bono basis, engages, in whole or in part, and with real or
1-19     constructive knowledge, in the practice of assembling, collecting,
1-20     analyzing, using, evaluating, storing, or transmitting protected
1-21     health information.  The term includes a business associate, health
1-22     care payer, governmental unit, information or computer management
1-23     entity, school, health researcher, health care facility, clinic,
1-24     health care provider, or person who maintains an Internet site;
1-25                       (B)  comes into possession of protected health
 2-1     information;
 2-2                       (C)  obtains or stores protected health
 2-3     information under this chapter; or
 2-4                       (D)  is an employee, agent, or contractor of a
 2-5     person described by Paragraph (A), (B), or (C) insofar as the
 2-6     employee, agent, or contractor creates, receives, obtains,
 2-7     maintains, uses, or transmits protected health information.
 2-8                 (2)  "Health care operations" has the meaning assigned
 2-9     by the Health Insurance Portability and Accountability Act and
2-10     Privacy Standards.  The term does not include marketing as
2-11     described in 45 C.F.R.  Section 164.514(e) and any subsequent
2-12     amendments.
2-13                 (3)  "Health Insurance Portability and Accountability
2-14     Act and Privacy Standards" means the privacy requirements of the
2-15     Administrative Simplification subtitle of the Health Insurance
2-16     Portability and Accountability Act of 1996 (Pub. L. No. 104-191)
2-17     and the final rules adopted on December 28, 2000, and published at
2-18     65 Fed. Reg. 82798 et seq., and any subsequent amendments.
2-19                 (4)  "Marketing" means the promotion or advertisement,
2-20     by a covered entity, of specific products or services if the
2-21     covered entity receives, directly or indirectly, a financial
2-22     incentive or remuneration for the use, access, or disclosure of
2-23     protected health information.  Marketing does not include a
2-24     communication for treatment or health care operations by a health
2-25     care provider, health plan, or participants in an organized health
2-26     care arrangement or their affiliated covered entities or business
 3-1     associates.
 3-2                 (5)  "Protected health information" means individually
 3-3     identifiable health information, including demographic information
 3-4     collected from an individual, that:
 3-5                       (A)  relates to:
 3-6                             (i)  the past, present, or future physical
 3-7     or mental health or condition of an individual;
 3-8                             (ii)  the provision of health care to an
 3-9     individual; or
3-10                             (iii)  the past, present, or future payment
3-11     for the provision of health care to an individual; and
3-12                       (B)  identifies the individual or with respect to
3-13     which there is a reasonable basis to believe the information can be
3-14     used to identify the individual.
3-15           Sec. 181.002.  APPLICABILITY.  (a)  This chapter does not
3-16     affect the validity of another statute of this state that provides
3-17     greater confidentiality for information made confidential by this
3-18     chapter.
3-19           (b)  To the extent that this chapter conflicts with another
3-20     law with respect to protected health information collected by a
3-21     governmental body or unit, this chapter controls.
3-22           Sec. 181.003.  SOVEREIGN IMMUNITY.  This chapter does not
3-23     waive sovereign immunity to suit or liability.
3-24           Sec. 181.004.  RULES.  A state agency that licenses or
3-25     regulates a covered entity may adopt rules as necessary to carry
3-26     out the purposes of this chapter.
 4-1              (Sections 181.005-181.050 reserved for expansion
 4-2                          SUBCHAPTER B.  EXEMPTIONS
 4-3           Sec. 181.051.  PARTIAL EXEMPTION.  Except for Subchapter D,
 4-4     this chapter does not apply to:
 4-5                 (1)  a licensee as defined in Article 28B.01, Insurance
 4-6     Code;
 4-7                 (2)  an entity established under Article 5.76-3,
 4-8     Insurance Code; or
 4-9                 (3)  an employer.
4-10           Sec. 181.052.  PROCESSING PAYMENT TRANSACTIONS BY FINANCIAL
4-11     INSTITUTIONS.  (a)  In this section, "financial institution" has
4-12     the meaning assigned by Section 1101, Right to Financial Privacy
4-13     Act of 1978 (12 U.S.C. Section 3401), and its subsequent
4-14     amendments.
4-15           (b)  To the extent that a covered entity engages in
4-16     activities of a financial institution, or authorizes, processes,
4-17     clears, settles, bills, transfers, reconciles, or collects payments
4-18     for a financial institution, this chapter and any rule adopted
4-19     under this chapter does not apply to the covered entity with
4-20     respect to those activities, including the following:
4-21                 (1)  using or disclosing information to authorize,
4-22     process, clear, settle, bill, transfer, reconcile, or collect a
4-23     payment for, or related to, health plan premiums or health care, if
4-24     the payment is made by any means, including a credit, debit, or
4-25     other payment card, an account, a check, or an electronic funds
4-26     transfer; and
 5-1                 (2)  requesting, using, or disclosing information with
 5-2     respect to a payment described by Subdivision (1):
 5-3                       (A)  for transferring receivables;
 5-4                       (B)  for auditing;
 5-5                       (C)  in connection with a customer dispute or an
 5-6     inquiry from or to a customer;
 5-7                       (D)  in a communication to a customer of the
 5-8     entity regarding the customer's transactions, payment card,
 5-9     account, check, or electronic funds transfer;
5-10                       (E)  for reporting to consumer reporting
5-11     agencies; or
5-12                       (F)  for complying with a civil or criminal
5-13     subpoena or a federal or state law regulating the covered entity.
5-14           Sec. 181.053.  NONPROFIT AGENCIES.  The department shall by
5-15     rule exempt from this chapter a nonprofit agency that pays for
5-16     health care services or prescription drugs for an indigent person
5-17     only if the agency's primary business is not the provision of
5-18     health care or reimbursement for health care services.
5-19           Sec. 181.054.  WORKERS' COMPENSATION.  This chapter does not
5-20     apply to:
5-21                 (1)  workers' compensation insurance or a function
5-22     authorized by Title 5, Labor Code; or
5-23                 (2)  any person or entity in connection with providing,
5-24     administering, supporting, or coordinating any of the benefits
5-25     under a self-insured program for workers' compensation.
5-26           Sec. 181.055.  EMPLOYEE BENEFIT PLAN.  This chapter does not
 6-1     apply to:
 6-2                 (1)  an employee benefit plan; or
 6-3                 (2)  any covered entity or other person, insofar as the
 6-4     entity or person is acting in connection with an employee benefit
 6-5     plan.
 6-6           Sec. 181.056.  AMERICAN RED CROSS.  This chapter does not
 6-7     prohibit the American Red Cross from accessing any information
 6-8     necessary to perform its duties to provide disaster relief,
 6-9     disaster communication, or emergency leave verification services
6-10     for military personnel.
6-11           Sec. 181.057.  INFORMATION RELATING TO OFFENDERS WITH MENTAL
6-12     IMPAIRMENTS.  This chapter does not apply to an agency described by
6-13     Section 614.017 with respect to the disclosure, receipt, transfer,
6-14     or exchange of medical and health information and records relating
6-15     to individuals in the custody of an agency or in community
6-16     supervision.
6-17           Sec. 181.058.  EDUCATIONAL RECORDS.  In this chapter,
6-18     protected health information does not include:
6-19                 (1)  education records covered by the Family
6-20     Educational Rights and Privacy Act of 1974 (20 U.S.C. Section
6-21     1232g) and its subsequent amendments; or
6-22                 (2)  records described by 20 U.S.C. Section
6-23     1232g(a)(4)(B)(iv) and its subsequent amendments.
 7-1              (Sections 181.059-181.100 reserved for expansion
 7-2         SUBCHAPTER C.  ACCESS TO AND USE OF HEALTH CARE INFORMATION
 7-3           Sec. 181.101.  COMPLIANCE WITH FEDERAL REGULATIONS.  A
 7-4     covered entity shall comply with the Health Insurance Portability
 7-5     and Accountability Act and Privacy Standards relating to:
 7-6                 (1)  an individual's access to the individual's
 7-7     protected health information;
 7-8                 (2)  amendment of protected health information;
 7-9                 (3)  uses and disclosures of protected health
7-10     information, including requirements relating to consent; and
7-11                 (4)  notice of privacy practices for protected health
7-12     information.
7-13           Sec. 181.102.  INFORMATION FOR RESEARCH.  (a)  A covered
7-14     entity may disclose protected health information to a person
7-15     performing health research, regardless of the source of funding of
7-16     the research, for the purpose of conducting health research, only
7-17     if the person performing health research has obtained:
7-18                 (1)  individual consent or authorization for use or
7-19     disclosure of protected health information for research required by
7-20     federal law;
7-21                 (2)  the express written authorization of the
7-22     individual required by this chapter;
7-23                 (3)  documentation that a waiver of individual consent
7-24     or authorization required for use or disclosure of protected health
7-25     information has been granted by an institutional review board or
7-26     privacy board as required under federal law; or
 8-1                 (4)  documentation that a waiver of the individual's
 8-2     express written authorization required by this chapter has been
 8-3     granted by a privacy board established under this section.
 8-4           (b)  A privacy board:
 8-5                 (1)  must consist of members with varying backgrounds
 8-6     and appropriate professional competency as necessary to review the
 8-7     effect of the research protocol for the project or projects on the
 8-8     privacy rights and related interests of the individuals whose
 8-9     protected health information would be used or disclosed;
8-10                 (2)  must include at least one member who is not
8-11     affiliated with the covered entity or an entity conducting or
8-12     sponsoring the research and not related to any person who is
8-13     affiliated with an entity described by this subsection; and
8-14                 (3)  may not have any member participating in the
8-15     review of any project in which the member has a conflict of
8-16     interest.
8-17           (c)  A privacy board may grant a waiver of the express
8-18     written authorization for the use of protected health information
8-19     if the privacy board obtains the following documentation:
8-20                 (1)  a statement identifying the privacy board and the
8-21     date on which the waiver of the express written authorization was
8-22     approved by the privacy board;
8-23                 (2)  a statement that the privacy board has determined
8-24     that the waiver satisfies the following criteria:
8-25                       (A)  the use or disclosure of protected health
8-26     information involves no more than minimal risk to the affected
 9-1     individuals;
 9-2                       (B)  the waiver will not adversely affect the
 9-3     privacy rights and welfare of those individuals;
 9-4                       (C)  the research could not practicably be
 9-5     conducted without the waiver;
 9-6                       (D)  the research could not practicably be
 9-7     conducted without access to and use of the protected health
 9-8     information;
 9-9                       (E)  the privacy risks to individuals whose
9-10     protected health information is to be used or disclosed are
9-11     reasonable in relation to the anticipated benefits, if any, to the
9-12     individuals and the importance of the knowledge that may reasonably
9-13     be expected to result from the research;
9-14                       (F)  there is an adequate plan to protect the
9-15     identifiers from improper use and disclosure;
9-16                       (G)  there is an adequate plan to destroy the
9-17     identifiers at the earliest opportunity consistent with conduct of
9-18     the research, unless there is a health or research justification
9-19     for retaining the identifiers or the retention is otherwise
9-20     required by law; and
9-21                       (H)  there are adequate written assurances that
9-22     the protected health information will not be reused or disclosed to
9-23     another person or entity, except:
9-24                             (i)  as required by law;
9-25                             (ii)  for authorized oversight of the
9-26     research project; or
 10-1                            (iii)  for other research for which the use
 10-2    or disclosure of protected health information would be permitted by
 10-3    state or federal law;
 10-4                (3)  a brief description of the protected health
 10-5    information for which use or access has been determined to be
 10-6    necessary by the privacy board under Subdivision (2)(D); and
 10-7                (4)  a statement that the waiver of express written
 10-8    authorization has been approved by the privacy board following the
 10-9    procedures under Subsection (e).
10-10          (d)  A waiver must be signed by the presiding officer of the
10-11    privacy board or the presiding officer's designee.
10-12          (e)  The privacy board must review the proposed research at a
10-13    convened meeting at which a majority of the privacy board members
10-14    are present, including at least one member who satisfies the
10-15    requirements of Subsection (b)(2).  The waiver of express written
10-16    authorization must be approved by the majority of the privacy board
10-17    members present at the meeting, unless the privacy board elects to
10-18    use an expedited review procedure.  The privacy board may use an
10-19    expedited review procedure only if the research involves no more
10-20    than minimal risk to the privacy of the individual who is the
10-21    subject of the protected health information of which use or
10-22    disclosure is being sought.  If the privacy board elects to use an
10-23    expedited review procedure, the review and approval of the waiver
10-24    of express written authorization may be made by the presiding
10-25    officer of the privacy board or by one or more members of the
10-26    privacy board as designated by the presiding officer.
 11-1          (f)  A covered entity may disclose protected health
 11-2    information to a person performing health research if the covered
 11-3    entity obtains from the person performing the health research
 11-4    representations that:
 11-5                (1)  use or disclosure is sought solely to review
 11-6    protected health information as necessary to prepare a research
 11-7    protocol or for similar purposes preparatory to research;
 11-8                (2)  no protected health information is to be removed
 11-9    from the covered entity by the person performing the health
11-10    research in the course of the review; and
11-11                (3)  the protected health information for which use or
11-12    access is sought is necessary for the research purposes.
11-13          (g)  A person who is the subject of protected health
11-14    information collected or created in the course of a clinical
11-15    research trial may access the information at the conclusion of the
11-16    research trial.
11-17          Sec. 181.103.  DISCLOSURE OF INFORMATION TO PUBLIC HEALTH
11-18    AUTHORITY.  A covered entity may use or disclose protected health
11-19    information without the express written authorization of the
11-20    individual for public health activities or to comply with the
11-21    requirements of any federal or state health benefit program or any
11-22    federal or state law.  A covered entity may disclose protected
11-23    health information:
11-24                (1)  to a public health authority that is authorized by
11-25    law to collect or receive such information for the purpose of
11-26    preventing or controlling disease, injury, or disability, including
 12-1    the reporting of disease, injury, vital events such as birth or
 12-2    death, and the conduct of public health surveillance, public health
 12-3    investigations, and public interventions;
 12-4                (2)  to a public health authority or other appropriate
 12-5    government authority authorized by law to receive reports of child
 12-6    or adult abuse, neglect, or exploitation; and
 12-7                (3)  to any state agency in conjunction with a federal
 12-8    or state health benefit program.
 12-9             (Sections 181.104-181.150 reserved for expansion
12-10                      SUBCHAPTER D.  PROHIBITED ACTS
12-11          Sec. 181.151.  REIDENTIFIED INFORMATION.  A person may not
12-12    reidentify or attempt to reidentify an individual who is the
12-13    subject of any protected health information without obtaining the
12-14    individual's consent or authorization if required under this
12-15    chapter or other state or federal law.
12-16          Sec. 181.152.  MARKETING USES OF INFORMATION.  (a)  A covered
12-17    entity may not disclose, use, or sell or coerce an individual to
12-18    consent to the disclosure, use, or sale of protected health
12-19    information, including prescription patterns, for marketing
12-20    purposes without the consent or authorization of the individual who
12-21    is the subject of the protected health information.
12-22          (b)  A written marketing communication must be sent in an
12-23    envelope showing only the addresses of sender and recipient and
12-24    must:
12-25                (1)  state the name and toll-free number of the health
12-26    care entity sending the marketing communication; and
 13-1                (2)  explain the recipient's right to have the
 13-2    recipient's name removed from the sender's mailing list.
 13-3          (c)  A person who receives a request under Subsection (b)(2)
 13-4    to remove a person's name from a mailing list shall remove the
 13-5    person's name not later than the fifth day after the date the
 13-6    person receives the request.
 13-7             (Sections 181.153-181.200 reserved for expansion
 13-8                        SUBCHAPTER E.  ENFORCEMENT
 13-9          Sec. 181.201.  INJUNCTIVE RELIEF; CIVIL PENALTY.  (a)  The
13-10    attorney general may institute an action for injunctive relief to
13-11    restrain a violation of this chapter.
13-12          (b)  In addition to the injunctive relief provided by
13-13    Subsection (a), the attorney general may institute an action for
13-14    civil penalties against a covered entity for a violation of this
13-15    chapter.  A civil penalty assessed under this section may not
13-16    exceed $3,000 for each violation.
13-17          (c)  If the court in which an action under Subsection (b) is
13-18    pending finds that the violations have occurred with a frequency as
13-19    to constitute a pattern or practice, the court may assess a civil
13-20    penalty not to exceed $250,000.
13-21          Sec. 181.202.  DISCIPLINARY ACTION.  In addition to the
13-22    penalties prescribed by this chapter, a violation of this chapter
13-23    by an individual or facility that is licensed by an agency of this
13-24    state is subject to investigation and disciplinary proceedings,
13-25    including probation or suspension by the licensing agency.  If
13-26    there is evidence that the violations of this chapter constitute a
 14-1    pattern or practice, the agency may revoke the individual's or
 14-2    facility's license.
 14-3          Sec. 181.203.  EXCLUSION FROM STATE PROGRAMS.  In addition to
 14-4    the penalties prescribed by this chapter, a covered entity shall be
 14-5    excluded from participating in any state-funded health care program
 14-6    if a court finds the covered entity engaged in a pattern or
 14-7    practice of violating this chapter.
 14-8          Sec. 181.204.  AVAILABILITY OF OTHER REMEDIES.  This chapter
 14-9    does not affect any right of a person under other law to bring a
14-10    cause of action or otherwise seek relief with respect to conduct
14-11    that is a violation of this chapter.
14-12          SECTION 2.  Title 1, Insurance Code, is amended by adding
14-13    Chapter 28B to read as follows:
14-14                CHAPTER 28B.  PRIVACY OF HEALTH INFORMATION
14-15                     SUBCHAPTER A.  GENERAL PROVISIONS
14-16          Art. 28B.01.  DEFINITIONS.  In this chapter:
14-17                (1)  "Health information" means any information or data
14-18    regarding an individual, other than age or gender, whether oral or
14-19    recorded in any form or medium, that is created by or derived from
14-20    a health care provider or the individual and that relates to:
14-21                      (A)  the past, present, or future physical,
14-22    mental, or behavioral health or condition of an individual;
14-23                      (B)  the provision of health care to an
14-24    individual; or
14-25                      (C)  payment for the provision of health care to
14-26    an individual.
 15-1                (2)  "Licensee" means a person who holds or is required
 15-2    to hold a license, registration, certificate of authority, or other
 15-3    authority under this code or another insurance law of this state.
 15-4    The term includes an insurance company, group hospital service
 15-5    corporation, mutual insurance company, local mutual aid
 15-6    association, statewide mutual assessment company, stipulated
 15-7    premium insurance company, health maintenance organization,
 15-8    reciprocal or interinsurance exchange, Lloyd's plan, fraternal
 15-9    benefit society, county mutual insurer, farm mutual insurer, or
15-10    insurance agent.
15-11                (3)  "Nonpublic personal health information" means
15-12    health information:
15-13                      (A)  that identifies an individual who is the
15-14    subject of the information; or
15-15                      (B)  with respect to which there is a reasonable
15-16    basis to believe that the information could be used to identify an
15-17    individual.
15-18          Art. 28B.02.  PERSONALLY IDENTIFIABLE HEALTH INFORMATION:
15-19    PRIVACY NOTICE AND DISCLOSURE AUTHORIZATION.  (a)  A licensee must
15-20    obtain an authorization to disclose any nonpublic personal health
15-21    information before making such a disclosure.
15-22          (b)  The request for authorization required by this article
15-23    may be in written or electronic form and must:
15-24                (1)  state the identity of the consumer or customer who
15-25    is the subject of the nonpublic personal health information;
15-26                (2)  describe:
 16-1                      (A)  the types of nonpublic personal health
 16-2    information to be disclosed;
 16-3                      (B)  the parties to whom the licensee discloses
 16-4    nonpublic personal health information;
 16-5                      (C)  the purpose of the disclosure;
 16-6                      (D)  how the information will be used; and
 16-7                      (E)  the procedure for revoking the
 16-8    authorization;
 16-9                (3)  include the signature and date signed of:
16-10                      (A)  the consumer or customer who is the subject
16-11    of the nonpublic personal health information; or
16-12                      (B)  the individual who is legally empowered to
16-13    grant authority;
16-14                (4)  provide notice:
16-15                      (A)  of the length of time for which the
16-16    authorization is valid; and
16-17                      (B)  that the consumer or customer may revoke the
16-18    authorization at any time; and
16-19                (5)  specify the amount of time that the authorization
16-20    remains valid, which may not exceed 24 months.
16-21          (c)  The right of a consumer or customer to revoke an
16-22    authorization at any time is subject to the rights of an individual
16-23    who acted in reliance on the authorization before receiving notice
16-24    of a revocation.
16-25          (d)  The licensee shall retain the original or a copy of the
16-26    authorization in the record of the individual who is the subject of
 17-1    the nonpublic personal health information.
 17-2          Art. 28B.03.  DELIVERY OF AUTHORIZATION.  (a)  A request for
 17-3    authorization and an authorization form may be delivered to a
 17-4    consumer or a customer if the request and the authorization form
 17-5    are clear and conspicuous.
 17-6          (b)  A licensee must include delivery of the authorization in
 17-7    a notice to the consumer or customer only if the licensee intends
 17-8    to disclose protected health information under this chapter.
 17-9          Art. 28B.04.  EXCEPTIONS.  A licensee may disclose nonpublic
17-10    personal health information to the extent that the disclosure is
17-11    necessary to perform the following insurance functions on behalf of
17-12    that licensee:
17-13                (1)  the investigation or reporting of actual or
17-14    potential fraud, misrepresentation, or criminal activity;
17-15                (2)  underwriting;
17-16                (3)  the placement or issuance of an insurance policy;
17-17                (4)  loss control services;
17-18                (5)  ratemaking and guaranty fund functions;
17-19                (6)  reinsurance and excess loss insurance;
17-20                (7)  risk management;
17-21                (8)  case management;
17-22                (9)  disease management;
17-23                (10)  quality assurance;
17-24                (11)  quality improvement;
17-25                (12)  performance evaluation;
17-26                (13)  health care provider credentialing verification;
 18-1                (14)  utilization review;
 18-2                (15)  peer review activities;
 18-3                (16)  actuarial, scientific, medical, or public policy
 18-4    research;
 18-5                (17)  grievance procedures;
 18-6                (18)  the internal administration of compliance,
 18-7    managerial, and information systems;
 18-8                (19)  policyholder services;
 18-9                (20)  auditing;
18-10                (21)  reporting;
18-11                (22)  database security;
18-12                (23)  the administration of consumer disputes and
18-13    inquiries;
18-14                (24)  external accreditation standards;
18-15                (25)  the replacement of a group benefit plan or
18-16    workers' compensation policy or program;
18-17                (26)  activities in connection with a sale, merger,
18-18    transfer, or exchange of all or part of a business or operating
18-19    unit;
18-20                (27)  any activity that permits disclosure without
18-21    authorization under the federal Health Insurance Portability and
18-22    Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.), as
18-23    amended;
18-24                (28)  disclosure that is required, or is a lawful or
18-25    appropriate method to enforce the licensee's rights or the rights
18-26    of other persons engaged, in carrying out a transaction or
 19-1    providing a product or service that the consumer requests or
 19-2    authorizes;
 19-3                (29)  claims administration, adjustment, and
 19-4    management;
 19-5                (30)  any activity otherwise permitted by law, required
 19-6    pursuant to a governmental reporting authority, or required to
 19-7    comply with legal process; and
 19-8                (31)  any other insurance functions that the
 19-9    commissioner approves that are:
19-10                      (A)  necessary for appropriate performance of
19-11    insurance functions; and
19-12                      (B)  fair and reasonable to the interests of
19-13    consumers.
19-14          Art. 28B.05.  EXCEPTION FOR COMPLIANCE WITH FEDERAL RULES.
19-15    This subchapter does not apply to a licensee who is required to
19-16    comply with the standards governing the privacy of individually
19-17    identifiable health information adopted by the United States
19-18    Secretary of Health and Human Services under Section 262(a), Health
19-19    Insurance Portability and Accountability Act of 1996 (42 U.S.C.
19-20    Sections 1320d-1320d-8).
19-21          Art. 28B.06.  PROTECTION OF FAIR CREDIT REPORTING ACTS.
19-22    (a)  This chapter may not be construed to modify, limit, or
19-23    supersede the operation of the Fair Credit Reporting Act (15 U.S.C.
19-24    Section 1681 et seq.) and an inference may not be drawn based on
19-25    this chapter regarding whether information is transaction or
19-26    experience information under Section 603 of that Act (15 U.S.C.
 20-1    Section 1681a).
 20-2          (b)  This chapter does not preempt or supersede a state law
 20-3    related to medical record, health, or insurance information privacy
 20-4    that is in effect on July 1, 2002.
 20-5          Art. 28B.07.  VIOLATION; PENALTIES.  A licensee may not
 20-6    knowingly or wilfully violate this chapter.
 20-7          Art. 28B.08.  RULES.  The commissioner may adopt rules as
 20-8    necessary to implement this chapter.
 20-9          Art. 28B.09.  INJUNCTIVE RELIEF;  CIVIL PENALTY.  (a)  The
20-10    attorney general may institute an action for injunctive relief to
20-11    restrain a violation of this chapter.
20-12          (b)  In addition to the injunctive relief provided by
20-13    Subsection (a), the attorney general may institute an action for
20-14    civil penalties against a covered entity or health care entity for
20-15    a violation of this chapter.  A civil penalty assessed under this
20-16    section may not be less than $3,000 for each violation.
20-17          (c)  If the court in which an action under Subsection (b) is
20-18    pending finds that the violations have occurred with a frequency as
20-19    to constitute a pattern or practice, the court may assess a civil
20-20    penalty not to exceed $250,000.
20-21          (d)  The civil penalty authorized by this article is in
20-22    addition to any other civil, administrative, or criminal action
20-23    provided by law.
20-24          Art. 28B.10.  DISCIPLINARY ACTION.  In addition to the
20-25    penalties prescribed by this chapter, a violation of this chapter
20-26    by a licensee is subject to investigation and disciplinary
 21-1    proceedings, including probation or suspension.  Evidence of a
 21-2    pattern or practice of violations under this chapter may subject
 21-3    the licensee to license revocation.
 21-4          Art. 28B.11.  EXCLUSION FROM STATE PROGRAMS.  In addition to
 21-5    the penalties prescribed by this chapter, a licensee shall be
 21-6    excluded from participating in any state-funded health care program
 21-7    if there is evidence that the licensee engaged in a pattern or
 21-8    practice of violating this chapter.
 21-9          Art. 28B.12.  AVAILABILITY OF OTHER REMEDIES.  This chapter
21-10    does not affect any right of a person under other law to bring a
21-11    cause of action or otherwise seek relief with respect to conduct
21-12    that is a violation of this chapter.
21-13          SECTION 3.  Section 161.032, Health and Safety Code, is
21-14    amended to read as follows:
21-15          Sec. 161.032.  RECORDS AND PROCEEDINGS CONFIDENTIAL.
21-16    (a)  The records and proceedings of a medical committee are
21-17    confidential and are not subject to court subpoena.
21-18          (b)  Notwithstanding Section 551.002, Government Code, the
21-19    following proceedings may be held in a closed meeting following the
21-20    procedures prescribed by Subchapter E, Chapter 551, Government
21-21    Code:
21-22                (1)  a [A] proceeding of a medical peer review
21-23    committee, as defined by Section 151.002, Occupations Code [1.03,
21-24    Medical Practice Act (Article 4495b, Vernon's Texas Civil
21-25    Statutes)], or medical committee;[,] or
21-26                (2)  a meeting of the governing body of a public
 22-1    hospital, hospital district, [or] hospital authority, or health
 22-2    maintenance organization of a public hospital, hospital authority,
 22-3    hospital district, or state-owned teaching hospital at which the
 22-4    governing body receives records, information, or reports provided
 22-5    by a medical committee, [or] medical peer review committee, or
 22-6    compliance officer [is not subject to Chapter 551, Government
 22-7    Code].
 22-8          (c)  Records, information, or reports of a medical committee,
 22-9    [or] medical peer review committee, or compliance officer and
22-10    records, information, or reports provided by a medical committee,
22-11    [or] medical peer review committee, or compliance officer to the
22-12    governing body of a public hospital, hospital district, or hospital
22-13    authority are not subject to disclosure under Chapter 552,
22-14    Government Code.
22-15          (d) [(b)]  The records and proceedings may be used by the
22-16    committee and the committee members only in the exercise of proper
22-17    committee functions.
22-18          (e)  The records, information, and reports received or
22-19    maintained by a compliance officer retain the protection provided
22-20    by this section only if the records, information, or reports are
22-21    received, created, or maintained in the exercise of a proper
22-22    function of the compliance officer as provided by the Office of
22-23    Inspector General of the United States Department of Health and
22-24    Human Services.
22-25          (f) [(c)]  This section and Subchapter A, Chapter 160,
22-26    Occupations Code [Section 5.06, Medical Practice Act (Article
 23-1    4495b, Vernon's Texas Civil Statutes)], do not apply to records
 23-2    made or maintained in the regular course of business by a hospital,
 23-3    health maintenance organization, medical organization, university
 23-4    medical center or health science center, hospital district,
 23-5    hospital authority, or extended care facility.
 23-6          SECTION 4.  The heading to Subchapter D, Chapter 161, Health
 23-7    and Safety Code, is amended to read as follows:
 23-8             SUBCHAPTER D.  MEDICAL COMMITTEES, [AND] MEDICAL
 23-9              PEER REVIEW COMMITTEES, AND COMPLIANCE OFFICERS
23-10          SECTION 5.  (a)  Except as provided by Subsection (c), this
23-11    Act takes effect September 1, 2001.
23-12          (b)  A covered entity shall comply with the requirements of
23-13    Chapter 181, Health and Safety Code, as added by this Act, not
23-14    later than September 1, 2003.
23-15          (c)  Chapter 28B, Insurance Code, as added by this Act, takes
23-16    effect January 1, 2002.
23-17          (d)  The commissioner of insurance may delay the date for
23-18    compliance with Chapter 28B, Insurance Code, as added by this Act,
23-19    if the commissioner determines that an entity needs more time to
23-20    establish policies and systems to comply with the requirements of
23-21    that chapter.
23-22          (e)  An authorization or consent granting access to an
23-23    individual's health care records executed before the effective date
23-24    of this Act is governed by the law in effect when the authorization
23-25    or consent was executed, and the former law continues in effect for
23-26    that purpose.
                                                                 S.B. No. 11
            _______________________________     _______________________________
                President of the Senate              Speaker of the House
                  I hereby certify that S.B. No. 11 passed the Senate on
            March 21, 2001, by a viva-voce vote; May 25, 2001, Senate refused
            to concur in House amendments and requested appointment of
            Conference Committee; May 25, 2001, House granted request of the
            Senate; May 27, 2001, Senate adopted Conference Committee Report by
            a viva-voce vote.
                                                _______________________________
                                                    Secretary of the Senate
                  I hereby certify that S.B. No. 11 passed the House, with
            amendments, on May 23, 2001, by a non-record vote; May 25, 2001,
            House granted request of the Senate for appointment of Conference
            Committee; May 27, 2001, House adopted Conference Committee Report
            by a non-record vote.
                                                _______________________________
                                                    Chief Clerk of the House
            Approved:
            _______________________________
                         Date
            _______________________________
                       Governor