Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H377 Compare Versions

Only one version of the bill is available at this time.

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2	2	HOUSE DOCKET, NO. 1850 FILED ON: 1/18/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 377
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Tram T. Nguyen
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to protect patient privacy and prevent unfair and deceptive advertising of pregnancy-
13	13	related services.
14	14	_______________
15	15	PETITION OF:
16	16	NAME:DISTRICT/ADDRESS :DATE ADDED:Tram T. Nguyen18th Essex1/18/2023Lindsay N. Sabadosa1st Hampshire1/19/2023 1 of 12
17	17	HOUSE DOCKET, NO. 1850 FILED ON: 1/18/2023
18	18	HOUSE . . . . . . . . . . . . . . . No. 377
19	19	By Representative Nguyen of Andover, a petition (accompanied by bill, House, No. 377) of
20	20	Tram T. Nguyen and Lindsay N. Sabadosa for legislation to protect patient privacy and prevent
21	21	unfair and deceptive advertising of pregnancy-related services. Consumer Protection and
22	22	Professional Licensure.
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act to protect patient privacy and prevent unfair and deceptive advertising of pregnancy-
29	29	related services.
30	30	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
31	31	of the same, as follows:
32	32	1 SECTION 1. The General Laws are hereby amended by inserting after chapter 93A the
33	33	2following chapter:-
34	34	3 CHAPTER 93A½ .
35	35	4 Section 1. Definitions
36	36	5 As used in this chapter, the following words shall have the following meanings, unless
37	37	6the context clearly requires otherwise:
38	38	7 “Abortion” shall have the same meaning as defined in section 12K of chapter 112.
39	39	8 “Client”, an individual who is inquiring about or seeking services at a pregnancy services
40	40	9center. 2 of 12
41	41	10 “Clinical laboratory services”, the microbiological, serological, chemical, hematological,
42	42	11biophysical, cytological or pathological examination of materials derived from the human body
43	43	12for the purpose of obtaining information for the diagnosis, prevention or treatment of disease or
44	44	13the assessment of a health condition.
45	45	14 “Collect”, buying, renting, gathering, obtaining, receiving or otherwise accessing any
46	46	15personal information pertaining to an individual by any means, including, but not limited to,
47	47	16obtaining information from an individual, either actively or passively, or by observing an
48	48	17individual’s behavior.
49	49	18 “Consent”, a clear affirmative act signifying an individual’s freely given, specific,
50	50	19informed, and unambiguous agreement to allow the processing of personal information relating
51	51	20to the individual for a narrowly defined particular purpose; provided, however, that “consent”
52	52	21may include a written statement, including a statement written by electronic means, or any other
53	53	22unambiguous affirmative action; provided, however, that the following shall not constitute
54	54	23“consent”:
55	55	24 (i) acceptance of a general or broad terms of use or similar document that contains
56	56	25descriptions of personal information processing along with other, unrelated information; or
57	57	26 (ii) agreement obtained through: (1) a false, fictitious, fraudulent or materially misleading
58	58	27statement or representation; or (2) a user interface designed or manipulated with the substantial
59	59	28effect of subverting or impairing user autonomy, decision-making or choice.
60	60	29 “Emergency contraception”, one or more prescription drugs:
61	61	30 (i) used separately or in combination for the purpose of preventing pregnancy; 3 of 12
62	62	31 (ii) administered to or self-administered by a patient within a medically recommended
63	63	32amount of time after sexual intercourse;
64	64	33 (iii) dispensed for such purpose in accordance with professional standards of practice;
65	65	34and
66	66	35 (iv) determined by the United States Food and Drug Administration to be safe for such
67	67	36purpose.
68	68	37 “Health information”, any oral or written information in any form or medium that relates
69	69	38to health insurance or the past, present or future physical or mental health or condition of a
70	70	39client.
71	71	40 “Identified or identifiable individual”, an individual who can be readily identified,
72	72	41directly or indirectly.
73	73	42 “Individual”, a natural person residing in the commonwealth or whose personal
74	74	43information is collected in the commonwealth; provided, however, that “individual” shall not
75	75	44include a natural person acting in an employment or commercial context.
76	76	45 "Licensed health care provider”, a person licensed under the provisions of federal or state
77	77	46law to provide health care or other medical services.
78	78	47 “Limited services pregnancy center”, a pregnancy services center that does not directly
79	79	48provide, or provide referrals for, abortions or emergency contraception.
80	80	49 “Personal information”, information that identifies, relates to, describes, is reasonably
81	81	50capable of being associated with or could reasonably be linked, directly or indirectly, with an
82	82	51identified or identifiable individual. 4 of 12
83	83	52 “Pregnancy-related service”, any medical or health counseling service related to
84	84	53pregnancy or pregnancy prevention, including, but not limited to, contraception and
85	85	54contraceptive counseling, pregnancy testing, pregnancy diagnosis, pregnancy options counseling,
86	86	55obstetric ultrasound, obstetric sonogram and prenatal care.
87	87	56 “Pregnancy services center”, a facility, including a mobile facility, whose primary
88	88	57purpose is to provide services to clients who are or have reason to believe they may be pregnant
89	89	58and that:
90	90	59 (i) offers obstetric ultrasounds, obstetric sonograms, pregnancy testing or diagnosis or
91	91	60prenatal care to pregnant clients; or
92	92	61 (ii) has the appearance of a medical facility by virtue of having two or more of the
93	93	62following factors present:
94	94	63 (1) staff or volunteers who wear medical attire and uniforms;
95	95	64 (2) one or more examination tables;
96	96	65 (3) a private or semiprivate room or area containing medical supplies or medical
97	97	66instruments;
98	98	67 (4) staff or volunteers who collect health information from clients; or
99	99	68 (5) the facility is located on the same premises as a licensed health care facility or
100	100	69licensed health care provider or shares facility space with a licensed health care provider.
101	101	70 “Premises”, land and improvements or appurtenances or any part thereof. 5 of 12
102	102	71 “Prenatal care”, services consisting of a physical examination, pelvic examination or
103	103	72clinical laboratory services provided to a client during pregnancy.
104	104	73 “Process”, any operation or set of operations which are performed on personal
105	105	74information or on sets of personal information, whether or not by automated means, such as the
106	106	75collection, use, storage, disclosure, sharing, analysis, prediction, deletion or modification of
107	107	76personal information.
108	108	77 Section 2. Deceptive Advertising of Pregnancy-Related Services
109	109	78 No limited services pregnancy center, with the intent to perform a pregnancy-related
110	110	79service, shall make or disseminate before the public, or cause to be made or disseminated before
111	111	80the public, in any newspaper or other publication, through any advertising device, or in any other
112	112	81manner, including, but not limited to, through use of the internet, any statement concerning any
113	113	82pregnancy-related service or the provision of any pregnancy-related service that:
114	114	83 (i) is deceptive, whether by statement or omission; and
115	115	84 (ii) a limited services pregnancy center knows or reasonably should know to be
116	116	85deceptive.
117	117	86 Section 3. Privacy Standards for Pregnancy-Related Services
118	118	87 (a) A pregnancy services center shall process an individual’s personal information:
119	119	88 (i) lawfully, fairly and in a transparent manner in relation to the individual;
120	120	89 (ii) for specified, explicit and legitimate purposes and not further process the personal
121	121	90information in a manner that is incompatible with those purposes; 6 of 12
122	122	91 (iii) in a manner that is adequate, relevant and limited to what is reasonably necessary in
123	123	92relation to the purposes for which it is processed;
124	124	93 (iv) in a form which permits identification of individuals for no longer than is necessary
125	125	94for the purposes for which the information is processed; and
126	126	95 (v) in a manner that ensures that the information remains appropriately secure.
127	127	96 (b) A pregnancy services center shall not process an individual’s personal information
128	128	97unless the center has obtained the individual’s consent.
129	129	98 (c) Prior to processing an individual’s personal information, a pregnancy services center
130	130	99shall provide the individual with a reasonably accessible, clear and meaningful privacy notice
131	131	100that shall include:
132	132	101 (i) the pregnancy services center’s specific purposes for processing such information;
133	133	102 (ii) the categories of personal information processed by the pregnancy services center;
134	134	103and
135	135	104 (iii) the categories of third parties and other entities to whom the pregnancy services
136	136	105center discloses personal information.
137	137	106 (d) A pregnancy services center shall not process personal information for purposes
138	138	107incompatible with the disclosed purposes for which the information was collected without
139	139	108providing the individual with notice consistent with this section.
140	140	109 (e) A pregnancy services center shall provide an effective, clear and conspicuous
141	141	110mechanism for an individual to revoke consent that the individual previously provided pursuant 7 of 12
142	142	111to this section. Upon revocation of such consent, the pregnancy services center shall cease to
143	143	112process the individual’s personal information as soon as practicable, but not later than fifteen
144	144	113days after the receipt of such request.
145	145	114 (f) A pregnancy services center shall exercise reasonable due diligence in:
146	146	115 (i) selecting an entity to process an individual’s personal information on behalf of the
147	147	116pregnancy services center; and
148	148	117 (ii) deciding whether to disclose personal information to a third party.
149	149	118 Section 4. Limitations
150	150	119 (a) Section 3 shall not apply to:
151	151	120 (i) a covered entity or business associate, as such terms are defined in 45 CFR 160.103;
152	152	121 (ii) health information processed pursuant to 45 C.F.R. 160, 162 and 164;
153	153	122 (iii) patient identifying information for purposes of 42 C.F.R. 2, established pursuant to
154	154	12342 U.S.C. 290dd-2;
155	155	124 (iv) information and documents created for purposes of the federal Health Care Quality
156	156	125Improvement Act of 1986, 42 U.S.C. 11101 et seq.;
157	157	126 (v) patient safety work product for purposes of the federal Patient Safety and Quality
158	158	127Improvement Act, 42 U.S.C. 299b-21 et seq.; 8 of 12
159	159	128 (vi) information that is: (1) derived from any of the health care-related information listed
160	160	129in this subsection; and (2) de-identified in accordance with the requirements for de-identification
161	161	130pursuant to 45 C.F.R. 164;
162	162	131 (vii) information that is treated in the same manner as, or that originates from and is
163	163	132intermingled to be indistinguishable with, information exempt under this subsection that is
164	164	133maintained by: (1) a covered entity or business associate, as defined in 45 CFR 160.103; or (2) a
165	165	134program of a qualified service organization as defined by 42 U.S.C. 290dd-2;
166	166	135 (viii) publicly available information about an individual that:
167	167	136 (1) is lawfully made available from federal, state or local government records; or
168	168	137 (2) a pregnancy services center has a reasonable basis to believe is lawfully and
169	169	138intentionally made available to the general public: (A) through widely distributed media; or (B)
170	170	139by the individual, unless the individual has restricted the information to a specific audience;
171	171	140 (ix) de-identified information that cannot reasonably be used to infer information about,
172	172	141or otherwise be linked to, an identified or identifiable individual, or a device linked to such
173	173	142individual; provided, however, that the pregnancy services center that possesses the information:
174	174	143 (1) takes reasonable technical and organizational measures to ensure that the information
175	175	144cannot, at any point, be associated with or used to re-identify an identified or identifiable
176	176	145individual;
177	177	146 (2) publicly commits to process the information solely in a de-identified fashion; 9 of 12
178	178	147 (3) does not attempt to re-identify the information; provided, however, that the pregnancy
179	179	148services center may attempt to re-identify the information solely for the purpose of determining
180	180	149whether its de-identification procedures satisfy the provisions of this definition; and
181	181	150 (4) contractually obligates any recipients of the information to comply with the
182	182	151provisions of this clause with respect to the information and requires that such obligations be
183	183	152included contractually in all subsequent instances for which the information may be received.
184	184	153 (b) Section 3 shall not apply where compliance by the pregnancy services center would
185	185	154violate an evidentiary privilege under the laws of the Commonwealth or be construed to prevent
186	186	155the pregnancy services center from providing personal information concerning an individual to a
187	187	156person covered by an evidentiary privilege under the laws of the Commonwealth as part of a
188	188	157privileged communication.
189	189	158 (c) Nothing in section 3 shall be construed to restrict a pregnancy services center’s ability
190	190	159to:
191	191	160 (i) comply with federal, state or local laws, rules or regulations;
192	192	161 (ii) comply with a civil, criminal or regulatory inquiry, subpoena or summons by federal,
193	193	162state, local or other governmental authorities;
194	194	163 (iii) cooperate with law enforcement agencies concerning conduct or activity that the
195	195	164pregnancy services center reasonably and in good faith believes may violate federal, state or
196	196	165local laws, rules or regulations;
197	197	166 (iv) investigate, establish, exercise, prepare for or defend legal claims; or 10 of 12
198	198	167 (v) take immediate steps to protect the security or protection of a natural person, if that
199	199	168natural person is at risk or danger of death or serious physical injury.
200	200	169 Section 5. Enforcement by the Attorney General
201	201	170 (a) Whenever the attorney general has reasonable cause to believe that a pregnancy
202	202	171services center has engaged in, is engaging in or is about to engage in a violation of this chapter,
203	203	172the attorney general may issue a civil investigative demand. The provisions of section 6 of
204	204	173chapter 93A of the General Laws shall apply mutatis mutandis to civil investigative demands
205	205	174under this chapter.
206	206	175 (b) The attorney general may apply to any court of competent jurisdiction for injunctive
207	207	176relief to compel compliance with the provisions of this chapter and, with respect to violations of
208	208	177section 2, to correct the effects of the deceptive advertising; provided, however, that the attorney
209	209	178general shall give written notice to the pregnancy services center in accordance with subsection
210	210	179(c) of this section.
211	211	180 (c) Prior to commencing an action pursuant to this section, the attorney general shall give
212	212	181written notice to the pregnancy services center of the violation of this chapter and allow the
213	213	182pregnancy services center to cure such violation not later than 10 days after receipt of the written
214	214	183notice. The attorney general may file an action pursuant to this section after such period if the
215	215	184pregnancy services center does not respond to the written notice or refuses to cure such violation.
216	216	185 (d) Upon a finding by the court that a pregnancy services center has violated any
217	217	186provision of this chapter, the state shall be entitled to recover:
218	218	187 (i) civil penalties of up to one thousand dollars per violation; and 11 of 12
219	219	188 (ii) reasonable attorney's fees and costs.
220	220	189 (e) In determining the overall amount of civil penalties to seek or assess against a
221	221	190pregnancy services center, the attorney general or the court shall include, but not be limited to,
222	222	191the following in its consideration:
223	223	192 (i) the nature and severity of the violation;
224	224	193 (ii) the size, scope, and type of the pregnancy services center; and
225	225	194 (iii) the good faith cooperation of the pregnancy services center with any investigations
226	226	195conducted by the attorney general pursuant to this section.
227	227	196 (f) Any injunctive relief ordered by the court in response to a violation of section 2 may
228	228	197include requiring the limited service pregnancy center to:
229	229	198 (i) pay for and disseminate appropriate corrective advertising in the same form and using
230	230	199the same advertising device as used in the deceptive advertising;
231	231	200 (ii) post a remedial notice that corrects the effects of the deceptive advertising; or
232	232	201 (iii) provide such other narrowly tailored relief as the court deems necessary to remedy
233	233	202the adverse effects of the deceptive advertising on any clients seeking pregnancy-related
234	234	203services.
235	235	204 (g) Nothing in this section shall prohibit the state or any political subdivision thereof
236	236	205from seeking any administrative, legal or equitable relief permitted by law, including, but not
237	237	206limited to, relief permitted by chapter 93A of the General Laws. 12 of 12
238	238	207 SECTION 2. Chapter 93A½ of the General Laws shall take effect 6 months after the
239	239	208passage of this act.