HB4855 - Relating to a patient's access to health records and access to and exchange of certain health benefit plan information; authorizing a civil penalty; authorizing fees.

  89R3601 LRM-F     By: Phelan H.B. No. 4855       A BILL TO BE ENTITLED   AN ACT   relating to a patient's access to health records and access to and   exchange of certain health benefit plan information; authorizing a   civil penalty; authorizing fees.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 15.05, Business & Commerce Code, is   amended by adding Subsection (a-1) to read as follows:           (a-1)     It is unlawful for a person to place a restraint on   trade or commerce by intentionally violating federal laws   regulating information blocking, as that term is defined by 45   C.F.R. Section 171.103.          SECTION 2.  Section 181.001(b), Health and Safety Code, is   amended by adding Subdivision (3-a) to read as follows:                 (3-a)     "Information blocking"   has the meaning assigned   by 45 C.F.R. Section 171.103.          SECTION 3.  Section 181.004(a), Health and Safety Code, is   amended to read as follows:          (a)  A covered entity, as that term is defined by 45 C.F.R.   Section 160.103, shall comply with :                 (1)   the Health Insurance Portability and   Accountability Act and Privacy Standards ; and                 (2)  federal laws regulating information blocking .          SECTION 4.  Section 181.102, Health and Safety Code, is   amended to read as follows:          Sec. 181.102.  CONSUMER ACCESS TO [ ELECTRONIC ] HEALTH   RECORDS.  (a)   Subject to the payment of fees required under this   section, a patient or the patient's legally authorized   representative on request is entitled to copies of the patient's   physical or electronic health records.           (b)   Except as provided by Subsection (d) [ (b) ], if a health   care provider is using an electronic health records system that is   capable of fulfilling the request, the health care provider, as   soon as practicable but not later than the 15th business day after   the date the health care provider receives a written request from a   person for the person's electronic health record, shall provide the   requested record to the person in electronic form unless the person   agrees to accept the record in another form.           (c)     Except as provided by Subsection (d) and Section   181.105, a health care provider's violation of federal laws   regulating information blocking constitutes a violation of this   section.           (d)  [ (b) ]  A health care provider is not required to provide   access to a person's protected health information that is excepted   from access, or to which access may be denied, under 45 C.F.R.   Section 164.524.           (e)  [ (c) ]  For purposes of this section [ Subsection (a) ],   the executive commissioner, in consultation with the department,   the Texas Medical Board, and the Texas Department of Insurance, by   rule may recommend a standard electronic format for the release of   requested health records.  The standard electronic format   recommended under this section must be consistent, if feasible,   with federal law regarding the release of electronic health   records.           (f)     A covered entity that receives a request from a patient   or the patient's legally authorized representative for a copy of   the patient's health records may charge a fee to produce those   records in an amount consistent with the requirements under 45   C.F.R. Section 164.524, except a covered entity may not charge an   aggregate amount that exceeds $100 to produce the records if:                 (1)  the patient is a Medicaid recipient; or                 (2)     the patient's household income is at or below 200   percent of the federal poverty level.           (g)     A covered entity shall post in a conspicuous location   for patients requesting health records notice of the option to   obtain a copy of the patient's health records under Subsection (f).           (h)     A covered entity may 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 may not   require a patient or the patient's legally authorized   representative to submit a request by facsimile.           (i)     Unless explicitly authorized by state or federal law, a   covered entity may not enter into a contract with terms restricting   a patient or the patient's legally authorized representative from   accessing the patient's health records. Any contract clause or   provision that restricts a patient or the patient's legally   authorized representative from accessing the patient's health   records is unenforceable.          SECTION 5.  Subchapter C, Chapter 181, Health and Safety   Code, is amended by adding Section 181.105 to read as follows:           Sec.   181.105.     DISCLOSURE OF SENSITIVE TEST RESULT. (a) In   this section, "sensitive test result" means a:                 (1)     pathology or radiology report reasonably likely to   show a malignancy;                   (2)  test result revealing a genetic marker;                 (3)     positive test for the human immunodeficiency virus   if the patient has not been previously informed of a positive test   result for the virus; or                 (4)     result showing a presence of antigens indicating a   hepatitis infection.             (b)     A health care provider may not electronically disclose a   sensitive test result to a patient before the third day after the   date the results are finalized unless the provider directs the   release of the results before that date.          SECTION 6.  Section 181.201, Health and Safety Code, is   amended by amending Subsections (b) and (d) and adding Subsections   (g) and (h) to read as follows:          (b)  In addition to the injunctive relief provided by   Subsection (a), the attorney general may institute an action for   civil penalties against a covered entity for a violation of this   chapter , other than a violation of Section 181.102 .  A civil   penalty assessed under this section may not exceed:                (1)  $5,000 for each violation that occurs in one year,   regardless of how long the violation continues during that year,   committed negligently;                (2)  $25,000 for each violation that occurs in one   year, regardless of how long the violation continues during that   year, committed knowingly or intentionally; or                (3)  $250,000 for each violation in which the covered   entity knowingly or intentionally used protected health   information for financial gain.          (d)  In determining the amount of a penalty imposed under   Subsections [ Subsection ] (b) and (g) , the court shall consider:                (1)  the seriousness of the violation, including the   nature, circumstances, extent, and gravity of the disclosure or   information blocking ;                (2)  the covered entity's compliance history;                (3)  whether the violation poses a significant risk of   financial, reputational, or other harm to an individual whose   protected health information is involved in the violation;                (4)  whether the covered entity was certified at the   time of the violation as described by Section 182.108;                (5)  the amount necessary to deter a future violation;   [ and ]                (6)  the covered entity's efforts to correct the   violation ;                 (7)     the size and geographic location of the covered   entity; and                 (8)     the financial impact of the penalty on the covered   entity's financial viability and ability to adequately serve an   underserved community or population .           (g)     In addition to the injunctive relief provided by   Subsection (a), the attorney general may institute an action for   civil penalties against a covered entity for a violation of Section   181.102. A civil penalty assessed under this subsection may not   exceed:                 (1)     $10,000 for each negligent violation, regardless   of the time the violation continues during any year; or                 (2)     $250,000 for each intentional violation committed   for the purpose of financial gain, regardless of the time the   violation continues during any year.           (h)     If the court in a pending action under Subsection (g)   finds the violations occurred with a frequency constituting a   pattern or practice, the court may assess additional civil   penalties for each violation.          SECTION 7.  Section 241.154(b), Health and Safety Code, is   amended to read as follows:          (b)  Except as provided by Subsection (d), the hospital or   its agent may charge a reasonable fee for providing the health care   information except payment information and is not required to   permit the examination, copying, or release of the information   requested until the fee is paid unless there is a medical   emergency.  The fee may not exceed the aggregate amount specified   under Section 181.102(f) and [ sum of:                [ (1)     a basic retrieval or processing fee, which must   include the fee for providing the first 10 pages of the copies and   which may not exceed $30; and                      [ (A)  a charge for each page of:                            [ (i)     $1 for the 11th through the 60th page   of the provided copies;                            [ (ii)     50 cents for the 61st through the   400th page of the provided copies; and                            [ (iii)     25 cents for any remaining pages of   the provided copies; and                      [ (B)     the actual cost of mailing, shipping, or   otherwise delivering the provided copies;                [ (2)     if the requested records are stored on microform,   a retrieval or processing fee, which must include the fee for   providing the first 10 pages of the copies and which may not exceed   $45; and                      [ (A)  $1 per page thereafter; and                      [ (B)     the actual cost of mailing, shipping, or   otherwise delivering the provided copies; or                [ (3)     if the req [Text truncated for display. 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