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Massachusetts Senate Bill S174

Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S174 Compare Versions

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22 SENATE DOCKET, NO. 1432 FILED ON: 1/19/2023
33 SENATE . . . . . . . . . . . . . . No. 174
44 The Commonwealth of Massachusetts
55 _________________
66 PRESENTED BY:
77 Barry R. Finegold
88 _________________
99 To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
1010 Court assembled:
1111 The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
1212 An Act to protect patient privacy and prevent unfair and deceptive advertising of pregnancy-
1313 related services.
1414 _______________
1515 PETITION OF:
1616 NAME:DISTRICT/ADDRESS :Barry R. FinegoldSecond Essex and Middlesex 1 of 12
1717 SENATE DOCKET, NO. 1432 FILED ON: 1/19/2023
1818 SENATE . . . . . . . . . . . . . . No. 174
1919 By Mr. Finegold, a petition (accompanied by bill, Senate, No. 174) of Barry R. Finegold for
2020 legislation to protect patient privacy and prevent unfair and deceptive advertising of pregnancy-
2121 related services. Consumer Protection and Professional Licensure.
2222 The Commonwealth of Massachusetts
2323 _______________
2424 In the One Hundred and Ninety-Third General Court
2525 (2023-2024)
2626 _______________
2727 An Act to protect patient privacy and prevent unfair and deceptive advertising of pregnancy-
2828 related services.
2929 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
3030 of the same, as follows:
3131 1 SECTION 1. The General Laws are hereby amended by inserting after chapter 93A the
3232 2following chapter:-
3333 3 CHAPTER 93A½.
3434 4 Section 1. Definitions
3535 5 As used in this chapter, the following words shall have the following meanings, unless
3636 6the context clearly requires otherwise:
3737 7 “Abortion” shall have the same meaning as defined in section 12K of chapter 112.
3838 8 “Client”, an individual who is inquiring about or seeking services at a pregnancy services
3939 9center. 2 of 12
4040 10 “Clinical laboratory services”, the microbiological, serological, chemical, hematological,
4141 11biophysical, cytological or pathological examination of materials derived from the human body
4242 12for the purpose of obtaining information for the diagnosis, prevention or treatment of disease or
4343 13the assessment of a health condition.
4444 14 “Collect”, buying, renting, gathering, obtaining, receiving or otherwise accessing any
4545 15personal information pertaining to an individual by any means, including, but not limited to,
4646 16obtaining information from an individual, either actively or passively, or by observing an
4747 17individual’s behavior.
4848 18 “Consent”, a clear affirmative act signifying an individual’s freely given, specific,
4949 19informed, and unambiguous agreement to allow the processing of personal information relating
5050 20to the individual for a narrowly defined particular purpose; provided, however, that “consent”
5151 21may include a written statement, including a statement written by electronic means, or any other
5252 22unambiguous affirmative action; provided, however, that the following shall not constitute
5353 23“consent”:
5454 24 (i) acceptance of a general or broad terms of use or similar document that contains
5555 25descriptions of personal information processing along with other, unrelated information; or
5656 26 (ii) agreement obtained through: (1) a false, fictitious, fraudulent or materially misleading
5757 27statement or representation; or (2) a user interface designed or manipulated with the substantial
5858 28effect of subverting or impairing user autonomy, decision-making or choice.
5959 29 “Emergency contraception”, one or more prescription drugs:
6060 30 (i) used separately or in combination for the purpose of preventing pregnancy; 3 of 12
6161 31 (ii) administered to or self-administered by a patient within a medically recommended
6262 32amount of time after sexual intercourse;
6363 33 (iii) dispensed for such purpose in accordance with professional standards of practice;
6464 34and
6565 35 (iv) determined by the United States Food and Drug Administration to be safe for such
6666 36purpose.
6767 37 “Health information”, any oral or written information in any form or medium that relates
6868 38to health insurance or the past, present or future physical or mental health or condition of a
6969 39client.
7070 40 “Identified or identifiable individual”, an individual who can be readily identified,
7171 41directly or indirectly.
7272 42 “Individual”, a natural person residing in the commonwealth or whose personal
7373 43information is collected in the commonwealth; provided, however, that “individual” shall not
7474 44include a natural person acting in an employment or commercial context.
7575 45 "Licensed health care provider”, a person licensed under the provisions of federal or state
7676 46law to provide health care or other medical services.
7777 47 “Limited services pregnancy center”, a pregnancy services center that does not directly
7878 48provide, or provide referrals for, abortions or emergency contraception.
7979 49 “Personal information”, information that identifies, relates to, describes, is reasonably
8080 50capable of being associated with or could reasonably be linked, directly or indirectly, with an
8181 51identified or identifiable individual. 4 of 12
8282 52 “Pregnancy-related service”, any medical or health counseling service related to
8383 53pregnancy or pregnancy prevention, including, but not limited to, contraception and
8484 54contraceptive counseling, pregnancy testing, pregnancy diagnosis, pregnancy options counseling,
8585 55obstetric ultrasound, obstetric sonogram and prenatal care.
8686 56 “Pregnancy services center”, a facility, including a mobile facility, whose primary
8787 57purpose is to provide services to clients who are or have reason to believe they may be pregnant
8888 58and that:
8989 59 (i) offers obstetric ultrasounds, obstetric sonograms, pregnancy testing or diagnosis or
9090 60prenatal care to pregnant clients; or
9191 61 (ii) has the appearance of a medical facility by virtue of having two or more of the
9292 62following factors present:
9393 63 (1) staff or volunteers who wear medical attire and uniforms;
9494 64 (2) one or more examination tables;
9595 65 (3) a private or semiprivate room or area containing medical supplies or medical
9696 66instruments;
9797 67 (4) staff or volunteers who collect health information from clients; or
9898 68 (5) the facility is located on the same premises as a licensed health care facility or
9999 69licensed health care provider or shares facility space with a licensed health care provider.
100100 70 “Premises”, land and improvements or appurtenances or any part thereof. 5 of 12
101101 71 “Prenatal care”, services consisting of a physical examination, pelvic examination or
102102 72clinical laboratory services provided to a client during pregnancy.
103103 73 “Process”, any operation or set of operations performed on personal information or on
104104 74sets of personal information, whether or not by automated means, such as the collection, use,
105105 75storage, disclosure, sharing, analysis, prediction, deletion or modification of personal
106106 76information.
107107 77 Section 2. Deceptive Advertising of Pregnancy-Related Services
108108 78 No limited services pregnancy center, with the intent to perform a pregnancy-related
109109 79service, shall make or disseminate before the public, or cause to be made or disseminated before
110110 80the public, in any newspaper or other publication, through any advertising device, or in any other
111111 81manner, including, but not limited to, through use of the internet, any statement concerning any
112112 82pregnancy-related service or the provision of any pregnancy-related service that:
113113 83 (i) is deceptive, whether by statement or omission; and
114114 84 (ii) a limited services pregnancy center knows or reasonably should know to be
115115 85deceptive.
116116 86 Section 3. Privacy Standards for Pregnancy-Related Services
117117 87 (a) A pregnancy services center shall process an individual’s personal information:
118118 88 (i) lawfully, fairly and in a transparent manner in relation to the individual;
119119 89 (ii) for specified, explicit and legitimate purposes and not further process the personal
120120 90information in a manner that is incompatible with those purposes; 6 of 12
121121 91 (iii) in a manner that is adequate, relevant and limited to what is reasonably necessary in
122122 92relation to the purposes for which it is processed;
123123 93 (iv) in a form which permits identification of individuals for no longer than is necessary
124124 94for the purposes for which the information is processed; and
125125 95 (v) in a manner that ensures that the information remains appropriately secure.
126126 96 (b) A pregnancy services center shall not process an individual’s personal information
127127 97unless the center has obtained the individual’s consent.
128128 98 (c) Prior to processing an individual’s personal information, a pregnancy services center
129129 99shall provide the individual with a reasonably accessible, clear and meaningful privacy notice
130130 100that shall include:
131131 101 (i) the pregnancy services center’s specific purposes for processing such information;
132132 102 (ii) the categories of personal information processed by the pregnancy services center;
133133 103and
134134 104 (iii) the categories of third parties and other entities to whom the pregnancy services
135135 105center discloses personal information.
136136 106 (d) A pregnancy services center shall not process the personal information of an
137137 107individual for purposes incompatible with the disclosed purposes for which the information was
138138 108collected without first: (i) obtaining the individual's consent; and (ii) providing the individual
139139 109with notice consistent with this section. 7 of 12
140140 110 (e) A pregnancy services center shall provide an effective, clear and conspicuous
141141 111mechanism for an individual to revoke consent that the individual previously provided pursuant
142142 112to this section. Upon revocation of such consent, the pregnancy services center shall cease to
143143 113process the individual’s personal information as soon as practicable, but not later than fifteen
144144 114days after the receipt of such request.
145145 115 (f) A pregnancy services center shall exercise reasonable due diligence in:
146146 116 (i) selecting an entity to process an individual’s personal information on behalf of the
147147 117pregnancy services center; and
148148 118 (ii) deciding whether to disclose personal information to a third party.
149149 119 Section 4. Limitations
150150 120 (a) Section 3 shall not apply to:
151151 121 (i) a covered entity or business associate, as such terms are defined in 45 CFR 160.103;
152152 122 (ii) health information processed pursuant to 45 C.F.R. 160, 162 and 164;
153153 123 (iii) patient identifying information for purposes of 42 C.F.R. 2, established pursuant to
154154 12442 U.S.C. 290dd-2;
155155 125 (iv) information and documents created for purposes of the federal Health Care Quality
156156 126Improvement Act of 1986, 42 U.S.C. 11101 et seq.;
157157 127 (v) patient safety work product for purposes of the federal Patient Safety and Quality
158158 128Improvement Act, 42 U.S.C. 299b-21 et seq.; 8 of 12
159159 129 (vi) information that is: (1) derived from any of the health care-related information listed
160160 130in this subsection; and (2) de-identified in accordance with the requirements for de-identification
161161 131pursuant to 45 C.F.R. 164;
162162 132 (vii) information that is treated in the same manner as, or that originates from and is
163163 133intermingled to be indistinguishable with, information exempt under this subsection that is
164164 134maintained by: (1) a covered entity or business associate, as defined in 45 CFR 160.103; or (2) a
165165 135program of a qualified service organization as defined by 42 U.S.C. 290dd-2;
166166 136 (viii) publicly available information about an individual that:
167167 137 (1) is lawfully made available from federal, state or local government records; or
168168 138 (2) a pregnancy services center has a reasonable basis to believe is lawfully and
169169 139intentionally made available to the general public: (A) through widely distributed media; or (B)
170170 140by the individual, unless the individual has restricted the information to a specific audience; and
171171 141 (ix) de-identified information that cannot reasonably be used to infer information about,
172172 142or otherwise be linked to, an identified or identifiable individual, or a device linked to such
173173 143individual; provided, however, that the pregnancy services center that possesses the information:
174174 144 (1) takes reasonable technical and organizational measures to ensure that the information
175175 145cannot, at any point, be associated with or used to re-identify an identified or identifiable
176176 146individual;
177177 147 (2) publicly commits to process the information solely in a de-identified fashion; 9 of 12
178178 148 (3) does not attempt to re-identify the information; provided, however, that the pregnancy
179179 149services center may attempt to re-identify the information solely for the purpose of determining
180180 150whether its de-identification procedures satisfy the provisions of this definition; and
181181 151 (4) contractually obligates any recipients of the information to comply with the
182182 152provisions of this clause with respect to the information and requires that such obligations be
183183 153included contractually in all subsequent instances for which the information may be received.
184184 154 (b) Section 3 shall not apply where compliance by the pregnancy services center would
185185 155violate an evidentiary privilege under the laws of the Commonwealth or be construed to prevent
186186 156the pregnancy services center from providing personal information concerning an individual to a
187187 157person covered by an evidentiary privilege under the laws of the Commonwealth as part of a
188188 158privileged communication.
189189 159 (c) Nothing in section 3 shall be construed to restrict a pregnancy services center’s ability
190190 160to:
191191 161 (i) comply with federal, state or local laws, rules or regulations;
192192 162 (ii) comply with a civil, criminal or regulatory inquiry, subpoena or summons by federal,
193193 163state, local or other governmental authorities;
194194 164 (iii) cooperate with law enforcement agencies concerning conduct or activity that the
195195 165pregnancy services center reasonably and in good faith believes may violate federal, state or
196196 166local laws, rules or regulations;
197197 167 (iv) investigate, establish, exercise, prepare for or defend legal claims; or 10 of 12
198198 168 (v) take immediate steps to protect the security or protection of a natural person, if that
199199 169natural person is at risk or danger of death or serious physical injury.
200200 170 Section 5. Enforcement by the Attorney General
201201 171 (a) Whenever the attorney general has reasonable cause to believe that a pregnancy
202202 172services center has engaged in, is engaging in or is about to engage in a violation of this chapter,
203203 173the attorney general may issue a civil investigative demand. The provisions of section 6 of
204204 174chapter 93A of the General Laws shall apply mutatis mutandis to civil investigative demands
205205 175under this chapter.
206206 176 (b) The attorney general may apply to any court of competent jurisdiction for injunctive
207207 177relief to compel compliance with the provisions of this chapter and, with respect to violations of
208208 178section 2, to correct the effects of the deceptive advertising; provided, however, that the attorney
209209 179general shall give written notice to the pregnancy services center in accordance with subsection
210210 180(c) of this section.
211211 181 (c) Prior to commencing an action pursuant to this section, the attorney general shall give
212212 182written notice to the pregnancy services center of the violation of this chapter and allow the
213213 183pregnancy services center to cure such violation not later than 10 days after receipt of the written
214214 184notice. The attorney general may file an action pursuant to this section after such period if the
215215 185pregnancy services center does not respond to the written notice or refuses to cure such violation.
216216 186 (d) Upon a finding by the court that a pregnancy services center has violated any
217217 187provision of this chapter, the state shall be entitled to recover:
218218 188 (i) civil penalties of up to one thousand dollars per violation; and 11 of 12
219219 189 (ii) reasonable attorneys' fees and costs.
220220 190 (e) In determining the overall amount of civil penalties to seek or assess against a
221221 191pregnancy services center, the attorney general or the court shall include, but not be limited to,
222222 192the following in its consideration:
223223 193 (i) the nature and severity of the violation;
224224 194 (ii) the size, scope, and type of the pregnancy services center; and
225225 195 (iii) the good faith cooperation of the pregnancy services center with any investigations
226226 196conducted by the attorney general pursuant to this section.
227227 197 (f) Any injunctive relief ordered by the court in response to a violation of section 2 may
228228 198include requiring the limited service pregnancy center to:
229229 199 (i) pay for and disseminate appropriate corrective advertising in the same form and using
230230 200the same advertising device as used in the deceptive advertising;
231231 201 (ii) post a remedial notice that corrects the effects of the deceptive advertising; or
232232 202 (iii) provide such other narrowly tailored relief as the court deems necessary to remedy
233233 203the adverse effects of the deceptive advertising on any clients seeking pregnancy-related
234234 204services.
235235 205 (g) Nothing in this section shall prohibit the state or any political subdivision thereof
236236 206from seeking any administrative, legal or equitable relief permitted by law, including, but not
237237 207limited to, relief permitted by chapter 93A of the General Laws. 12 of 12
238238 208 SECTION 2. Chapter 93A½ of the General Laws shall take effect 6 months after the
239239 209passage of this act.