Texas 2019 - 86th Regular

Texas House Bill HB3519 Compare Versions

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

Old	New	Differences
1	1	86R8532 SCL-F
2	2	By: Allison H.B. No. 3519
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to disclosure of confidential patient information by a
8	8	physician or mental health professional.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. (a) The legislature finds that the privilege of
11	11	confidentiality between a physician and a patient and between a
12	12	mental health professional and a patient is essential to foster
13	13	trust and candid communication. This confidentiality should not be
14	14	breached absent a compelling interest. Over the years, the
15	15	legislature has created exceptions to the privilege of
16	16	confidentiality, authorizing physicians and mental health
17	17	professionals to disclose confidential information in certain
18	18	circumstances. These exceptions recognize the importance of
19	19	providing physicians and mental health professionals with
20	20	discretion, rather than imposing a mandate, to disclose certain
21	21	patient information to satisfy certain compelling interests.
22	22	(b) In light of recent events involving and affecting
23	23	individuals living with mental health issues, the legislature
24	24	finds there is a greater need to afford physicians and mental
25	25	health professionals discretion to disclose patient information
26	26	when that disclosure could help mitigate harm to the patient or
27	27	others.
28	28	(c) The legislature supports the Supreme Court of Texas
29	29	holding in Thapar v. Zezulka, 994 S.W.2d 635 (Tex. 1999),
30	30	concluding that when law states a health professional "may"
31	31	perform an action, the law grants discretion rather than imposes a
32	32	requirement. The legislature intends for the exceptions created
33	33	under this Act to be construed in the same manner, as providing
34	34	discretion to disclose, but not imposing a duty to disclose. The
35	35	legislature reiterates this intent by including express language to
36	36	that effect in the law.
37	37	SECTION 2. Section 611.002(b), Health and Safety Code, is
38	38	amended to read as follows:
39	39	(b) Confidential communications or records may not be
40	40	disclosed except as provided by Section 611.004, 611.0041, or
41	41	611.0045.
42	42	SECTION 3. Section 611.004, Health and Safety Code, is
43	43	amended by amending Subsection (a) and adding Subsection (e) to
44	44	read as follows:
45	45	(a) A professional may disclose confidential information
46	46	only:
47	47	(1) to a governmental agency if the disclosure is
48	48	required or authorized by law;
49	49	(2) to a person reasonably able to prevent or mitigate
50	50	a threat, including the subject of the threat, [medical or law
51	51	enforcement personnel] if the professional, in good faith, believes
52	52	[determines] that disclosure is necessary to prevent or mitigate a
53	53	serious and [there is a probability of] imminent threat [physical
54	54	injury by the patient] to the health or safety of a person or the
55	55	public [patient or others or there is a probability of immediate
56	56	mental or emotional injury to the patient];
57	57	(3) to qualified personnel for management audits,
58	58	financial audits, program evaluations, or research, in accordance
59	59	with Subsection (b);
60	60	(4) to a person who has the written consent of the
61	61	patient, or a parent if the patient is a minor, or a guardian if the
62	62	patient has been adjudicated as incompetent to manage the patient's
63	63	personal affairs;
64	64	(5) to the patient's personal representative if the
65	65	patient is deceased;
66	66	(6) to individuals, corporations, or governmental
67	67	agencies involved in paying or collecting fees for mental or
68	68	emotional health services provided by a professional;
69	69	(7) to other professionals and personnel under the
70	70	professionals' direction who participate in the diagnosis,
71	71	evaluation, or treatment of the patient;
72	72	(8) in an official legislative inquiry relating to a
73	73	state hospital or state school as provided by Subsection (c);
74	74	(9) to designated persons or personnel of a
75	75	correctional facility in which a person is detained if the
76	76	disclosure is for the sole purpose of providing treatment and
77	77	health care to the person in custody;
78	78	(10) to an employee or agent of the professional who
79	79	requires mental health care information to provide mental health
80	80	care services or in complying with statutory, licensing, or
81	81	accreditation requirements, if the professional has taken
82	82	appropriate action to ensure that the employee or agent:
83	83	(A) will not use or disclose the information for
84	84	any other purposes; and
85	85	(B) will take appropriate steps to protect the
86	86	information; [or]
87	87	(11) to satisfy a request for medical records of a
88	88	deceased or incompetent person pursuant to Section 74.051(e), Civil
89	89	Practice and Remedies Code; or
90	90	(12) to a person in accordance with Section 611.0041.
91	91	(e) A professional who discloses confidential information
92	92	under Subsection (a)(2) is presumed to have acted in good faith with
93	93	regard to a belief described by that subsection if the belief is
94	94	based on the professional's actual knowledge or in reliance on a
95	95	credible representation by a person with apparent knowledge or
96	96	authority.
97	97	SECTION 4. Chapter 611, Health and Safety Code, is amended
98	98	by adding Sections 611.0041 and 611.0042 to read as follows:
99	99	Sec. 611.0041. DISCLOSURE OF CONFIDENTIAL INFORMATION FOR
100	100	NOTICE AND PATIENT'S CARE. (a) For a patient who is available and
101	101	has the capacity to make health care decisions, a professional may
102	102	disclose confidential information in accordance with this section
103	103	if the professional:
104	104	(1) obtains the patient's consent;
105	105	(2) provides the patient with the opportunity to
106	106	object to the disclosure, and the patient does not object; or
107	107	(3) reasonably infers from the circumstances, based on
108	108	the exercise of professional judgment, that the patient does not
109	109	object to the disclosure.
110	110	(b) For a patient who is not available or for whom the
111	111	opportunity to consent or for objection to the use or disclosure
112	112	under Subsection (a) cannot practicably be provided because of the
113	113	patient's incapacity or an emergency, a professional may, in the
114	114	exercise of professional judgment, determine whether the
115	115	disclosure is in the best interests of the patient and disclose the
116	116	patient's confidential information in accordance with this section
117	117	if determined to be in the patient's best interests.
118	118	(c) A professional authorized to disclose confidential
119	119	information under this section may only disclose a patient's
120	120	confidential information that, in the exercise of professional
121	121	judgment, is directly relevant to:
122	122	(1) the recipient's involvement with the patient's
123	123	health care, including obtaining prescriptions, medical supplies,
124	124	test results, or other similar forms of confidential information;
125	125	(2) the recipient's involvement with payment for the
126	126	patient's health care; or
127	127	(3) notification to the patient's family member, the
128	128	patient's legally authorized representative, or a person
129	129	responsible for the patient's care of the patient's location,
130	130	general condition, or death.
131	131	(d) A professional may disclose a patient's confidential
132	132	information under this section only to:
133	133	(1) the patient's relative;
134	134	(2) the patient's close personal friend;
135	135	(3) a person identified by the patient to receive the
136	136	disclosure;
137	137	(4) the patient's legally authorized representative;
138	138	(5) a person responsible for the patient's care; or
139	139	(6) a governmental or private entity authorized by law
140	140	to assist in disaster relief efforts for the purpose described by
141	141	Subsection (c)(3).
142	142	(e) A professional may disclose a patient's confidential
143	143	information to a person described by Subsection (d)(6) without
144	144	complying with Subsection (a) or (b) to the extent the
145	145	professional, in the exercise of professional judgment, determines
146	146	that the requirements interfere with the professional's ability to
147	147	respond to the disaster.
148	148	(f) A professional may disclose a deceased patient's
149	149	confidential information to a person described by Subsection (d)
150	150	who is involved in the patient's care or with payment of the
151	151	patient's health care that is relevant to the recipient's
152	152	involvement unless the patient informed the professional that the
153	153	patient preferred that the information not be disclosed.
154	154	Sec. 611.0042. CONSTRUCTION OF AUTHORIZED DISCLOSURE
155	155	PROVISIONS. The authorization to disclose confidential
156	156	information described by Sections 611.004 and 611.0041 may not be
157	157	construed to create an independent duty or requirement to disclose
158	158	the information.
159	159	SECTION 5. Section 159.004, Occupations Code, is amended to
160	160	read as follows:
161	161	Sec. 159.004. EXCEPTIONS TO CONFIDENTIALITY IN OTHER
162	162	SITUATIONS. (a) An exception to the privilege of confidentiality in
163	163	a situation other than a court or administrative proceeding,
164	164	allowing disclosure of confidential information by a physician,
165	165	exists only with respect to the following:
166	166	(1) a governmental agency, if the disclosure is
167	167	required or authorized by law;
168	168	(2) a person reasonably able to prevent or mitigate a
169	169	threat, including the subject of the threat [medical or law
170	170	enforcement personnel], if the physician, in good faith, believes
171	171	[determines] that disclosure is necessary to prevent or mitigate a
172	172	serious and [there is a probability of:
173	173	[(A)] imminent threat [physical injury] to the
174	174	health or safety of a [patient, the physician, or another] person or
175	175	the public [; or
176	176	[(B) immediate mental or emotional injury to the
177	177	patient];
178	178	(3) qualified personnel for research or for a
179	179	management audit, financial audit, or program evaluation, but the
180	180	personnel may not directly or indirectly identify a patient in any
181	181	report of the research, audit, or evaluation or otherwise disclose
182	182	identity in any manner;
183	183	(4) those parts of the medical records reflecting
184	184	specific services provided if necessary in the collection of fees
185	185	for medical services provided by a physician, professional
186	186	association, or other entity qualified to provide or arrange for
187	187	medical services;
188	188	(5) a person who has consent, as provided by Section
189	189	159.005;
190	190	(6) a person, corporation, or governmental agency
191	191	involved in the payment or collection of fees for medical services
192	192	provided by a physician;
193	193	(7) another physician or other personnel acting under
194	194	the direction of the physician who participate in the diagnosis,
195	195	evaluation, or treatment of the patient;
196	196	(8) an official legislative inquiry regarding state
197	197	hospitals or state schools, if:
198	198	(A) information or a record that identifies a
199	199	patient or client is not released for any purpose unless proper
200	200	consent to the release is given by the patient; and
201	201	(B) only records created by the state hospital or
202	202	school or its employees are included; [or]
203	203	(9) health care personnel of a penal or other
204	204	custodial institution in which the patient is detained if the
205	205	disclosure is for the sole purpose of providing health care to the
206	206	patient; or
207	207	(10) a person in accordance with Section 159.0043.
208	208	(b) A physician who discloses confidential information
209	209	under Subsection (a)(2) is presumed to have acted in good faith with
210	210	regard to a belief described by that subsection if the belief is
211	211	based on the physician's actual knowledge or in reliance on a
212	212	credible representation by a person with apparent knowledge or
213	213	authority.
214	214	SECTION 6. Chapter 159, Occupations Code, is amended by
215	215	adding Sections 159.0043 and 159.0047 to read as follows:
216	216	Sec. 159.0043. DISCLOSURE OF CONFIDENTIAL INFORMATION FOR
217	217	NOTICE AND PATIENT'S CARE. (a) For a patient who is available and
218	218	has the capacity to make health care decisions, a physician may
219	219	disclose confidential information in accordance with this section
220	220	if the physician:
221	221	(1) obtains the patient's consent;
222	222	(2) provides the patient with the opportunity to
223	223	object to the disclosure, and the patient does not object; or
224	224	(3) reasonably infers from the circumstances, based on
225	225	the exercise of professional judgment, that the patient does not
226	226	object to the disclosure.
227	227	(b) For a patient who is not available or for whom the
228	228	opportunity to consent or for objection to the use or disclosure
229	229	under Subsection (a) cannot practicably be provided because of the
230	230	patient's incapacity or an emergency, a physician may, in the
231	231	exercise of professional judgment, determine whether the
232	232	disclosure is in the best interests of the patient and disclose the
233	233	patient's confidential information in accordance with this section
234	234	if determined to be in the patient's best interests.
235	235	(c) A physician authorized to disclose confidential
236	236	information under this section may only disclose a patient's
237	237	confidential information that, in the exercise of professional
238	238	judgment, is directly relevant to:
239	239	(1) the recipient's involvement with the patient's
240	240	health care, including obtaining prescriptions, medical supplies,
241	241	test results, or other similar forms of confidential information;
242	242	(2) the recipient's involvement with payment for the
243	243	patient's health care; or
244	244	(3) notification to the patient's family member, the
245	245	patient's legally authorized representative, or a person
246	246	responsible for the patient's care of the patient's location,
247	247	general condition, or death.
248	248	(d) A physician may disclose a patient's confidential
249	249	information under this section only to:
250	250	(1) the patient's relative;
251	251	(2) the patient's close personal friend;
252	252	(3) a person identified by the patient to receive the
253	253	disclosure;
254	254	(4) the patient's legally authorized representative;
255	255	(5) a person responsible for the patient's care; or
256	256	(6) a governmental or private entity authorized by law
257	257	to assist in disaster relief efforts for the purpose described by
258	258	Subsection (c)(3).
259	259	(e) A physician may disclose a patient's confidential
260	260	information to a person described by Subsection (d)(6) without
261	261	complying with Subsection (a) or (b) to the extent the physician, in
262	262	the exercise of professional judgment, determines that the
263	263	requirements interfere with the physician's ability to respond to
264	264	the disaster.
265	265	(f) A physician may disclose a deceased patient's
266	266	confidential information to a person described by Subsection (d)
267	267	who is involved in the patient's care or with payment of the
268	268	patient's health care that is relevant to the recipient's
269	269	involvement unless the patient informed the physician that the
270	270	patient preferred that the information not be disclosed.
271	271	Sec. 159.0047. CONSTRUCTION OF AUTHORIZED DISCLOSURE
272	272	PROVISIONS. The authorization to disclose confidential
273	273	information described by Sections 159.003, 159.004, and 159.0043
274	274	may not be construed to create an independent duty or requirement to
275	275	disclose the information.
276	276	SECTION 7. The change in law made by this Act applies only
277	277	to confidential information provided on or after the effective date
278	278	of this Act. Confidential information provided before the
279	279	effective date of this Act is governed by the law in effect
280	280	immediately before the effective date of this Act, and that law is
281	281	continued in effect for that purpose.
282	282	SECTION 8. This Act takes effect September 1, 2019.