86R8532 SCL-F
By: Allison H.B. No. 3519
A BILL TO BE ENTITLED
AN ACT
relating to disclosure of confidential patient information by a
physician or mental health professional.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) The legislature finds that the privilege of
confidentiality between a physician and a patient and between a
mental health professional and a patient is essential to foster
trust and candid communication. This confidentiality should not be
breached absent a compelling interest. Over the years, the
legislature has created exceptions to the privilege of
confidentiality, authorizing physicians and mental health
professionals to disclose confidential information in certain
circumstances. These exceptions recognize the importance of
providing physicians and mental health professionals with
discretion, rather than imposing a mandate, to disclose certain
patient information to satisfy certain compelling interests.
(b) In light of recent events involving and affecting
individuals living with mental health issues, the legislature
finds there is a greater need to afford physicians and mental
health professionals discretion to disclose patient information
when that disclosure could help mitigate harm to the patient or
others.
(c) The legislature supports the Supreme Court of Texas
holding in Thapar v. Zezulka, 994 S.W.2d 635 (Tex. 1999),
concluding that when law states a health professional "may"
perform an action, the law grants discretion rather than imposes a
requirement. The legislature intends for the exceptions created
under this Act to be construed in the same manner, as providing
discretion to disclose, but not imposing a duty to disclose. The
legislature reiterates this intent by including express language to
that effect in the law.
SECTION 2. Section 611.002(b), Health and Safety Code, is
amended to read as follows:
(b) Confidential communications or records may not be
disclosed except as provided by Section 611.004, 611.0041, or
611.0045.
SECTION 3. Section 611.004, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsection (e) to
read as follows:
(a) A professional may disclose confidential information
only:
(1) to a governmental agency if the disclosure is
required or authorized by law;
(2) to a person reasonably able to prevent or mitigate
a threat, including the subject of the threat, [medical or law
enforcement personnel] if the professional, in good faith, believes
[determines] that disclosure is necessary to prevent or mitigate a
serious and [there is a probability of] imminent threat [physical
injury by the patient] to the health or safety of a person or the
public [patient or others or there is a probability of immediate
mental or emotional injury to the patient];
(3) to qualified personnel for management audits,
financial audits, program evaluations, or research, in accordance
with Subsection (b);
(4) to a person who has the written consent of the
patient, or a parent if the patient is a minor, or a guardian if the
patient has been adjudicated as incompetent to manage the patient's
personal affairs;
(5) to the patient's personal representative if the
patient is deceased;
(6) to individuals, corporations, or governmental
agencies involved in paying or collecting fees for mental or
emotional health services provided by a professional;
(7) to other professionals and personnel under the
professionals' direction who participate in the diagnosis,
evaluation, or treatment of the patient;
(8) in an official legislative inquiry relating to a
state hospital or state school as provided by Subsection (c);
(9) to designated persons or personnel of a
correctional facility in which a person is detained if the
disclosure is for the sole purpose of providing treatment and
health care to the person in custody;
(10) to an employee or agent of the professional who
requires mental health care information to provide mental health
care services or in complying with statutory, licensing, or
accreditation requirements, if the professional has taken
appropriate action to ensure that the employee or agent:
(A) will not use or disclose the information for
any other purposes; and
(B) will take appropriate steps to protect the
information; [or]
(11) to satisfy a request for medical records of a
deceased or incompetent person pursuant to Section 74.051(e), Civil
Practice and Remedies Code; or
(12) to a person in accordance with Section 611.0041.
(e) A professional who discloses confidential information
under Subsection (a)(2) is presumed to have acted in good faith with
regard to a belief described by that subsection if the belief is
based on the professional's actual knowledge or in reliance on a
credible representation by a person with apparent knowledge or
authority.
SECTION 4. Chapter 611, Health and Safety Code, is amended
by adding Sections 611.0041 and 611.0042 to read as follows:
Sec. 611.0041. DISCLOSURE OF CONFIDENTIAL INFORMATION FOR
NOTICE AND PATIENT'S CARE. (a) For a patient who is available and
has the capacity to make health care decisions, a professional may
disclose confidential information in accordance with this section
if the professional:
(1) obtains the patient's consent;
(2) provides the patient with the opportunity to
object to the disclosure, and the patient does not object; or
(3) reasonably infers from the circumstances, based on
the exercise of professional judgment, that the patient does not
object to the disclosure.
(b) For a patient who is not available or for whom the
opportunity to consent or for objection to the use or disclosure
under Subsection (a) cannot practicably be provided because of the
patient's incapacity or an emergency, a professional may, in the
exercise of professional judgment, determine whether the
disclosure is in the best interests of the patient and disclose the
patient's confidential information in accordance with this section
if determined to be in the patient's best interests.
(c) A professional authorized to disclose confidential
information under this section may only disclose a patient's
confidential information that, in the exercise of professional
judgment, is directly relevant to:
(1) the recipient's involvement with the patient's
health care, including obtaining prescriptions, medical supplies,
test results, or other similar forms of confidential information;
(2) the recipient's involvement with payment for the
patient's health care; or
(3) notification to the patient's family member, the
patient's legally authorized representative, or a person
responsible for the patient's care of the patient's location,
general condition, or death.
(d) A professional may disclose a patient's confidential
information under this section only to:
(1) the patient's relative;
(2) the patient's close personal friend;
(3) a person identified by the patient to receive the
disclosure;
(4) the patient's legally authorized representative;
(5) a person responsible for the patient's care; or
(6) a governmental or private entity authorized by law
to assist in disaster relief efforts for the purpose described by
Subsection (c)(3).
(e) A professional may disclose a patient's confidential
information to a person described by Subsection (d)(6) without
complying with Subsection (a) or (b) to the extent the
professional, in the exercise of professional judgment, determines
that the requirements interfere with the professional's ability to
respond to the disaster.
(f) A professional may disclose a deceased patient's
confidential information to a person described by Subsection (d)
who is involved in the patient's care or with payment of the
patient's health care that is relevant to the recipient's
involvement unless the patient informed the professional that the
patient preferred that the information not be disclosed.
Sec. 611.0042. CONSTRUCTION OF AUTHORIZED DISCLOSURE
PROVISIONS. The authorization to disclose confidential
information described by Sections 611.004 and 611.0041 may not be
construed to create an independent duty or requirement to disclose
the information.
SECTION 5. Section 159.004, Occupations Code, is amended to
read as follows:
Sec. 159.004. EXCEPTIONS TO CONFIDENTIALITY IN OTHER
SITUATIONS. (a) An exception to the privilege of confidentiality in
a situation other than a court or administrative proceeding,
allowing disclosure of confidential information by a physician,
exists only with respect to the following:
(1) a governmental agency, if the disclosure is
required or authorized by law;
(2) a person reasonably able to prevent or mitigate a
threat, including the subject of the threat [medical or law
enforcement personnel], if the physician, in good faith, believes
[determines] that disclosure is necessary to prevent or mitigate a
serious and [there is a probability of:
[(A)] imminent threat [physical injury] to the
health or safety of a [patient, the physician, or another] person or
the public [; or
[(B) immediate mental or emotional injury to the
patient];
(3) qualified personnel for research or for a
management audit, financial audit, or program evaluation, but the
personnel may not directly or indirectly identify a patient in any
report of the research, audit, or evaluation or otherwise disclose
identity in any manner;
(4) those parts of the medical records reflecting
specific services provided if necessary in the collection of fees
for medical services provided by a physician, professional
association, or other entity qualified to provide or arrange for
medical services;
(5) a person who has consent, as provided by Section
159.005;
(6) a person, corporation, or governmental agency
involved in the payment or collection of fees for medical services
provided by a physician;
(7) another physician or other personnel acting under
the direction of the physician who participate in the diagnosis,
evaluation, or treatment of the patient;
(8) an official legislative inquiry regarding state
hospitals or state schools, if:
(A) information or a record that identifies a
patient or client is not released for any purpose unless proper
consent to the release is given by the patient; and
(B) only records created by the state hospital or
school or its employees are included; [or]
(9) health care personnel of a penal or other
custodial institution in which the patient is detained if the
disclosure is for the sole purpose of providing health care to the
patient; or
(10) a person in accordance with Section 159.0043.
(b) A physician who discloses confidential information
under Subsection (a)(2) is presumed to have acted in good faith with
regard to a belief described by that subsection if the belief is
based on the physician's actual knowledge or in reliance on a
credible representation by a person with apparent knowledge or
authority.
SECTION 6. Chapter 159, Occupations Code, is amended by
adding Sections 159.0043 and 159.0047 to read as follows:
Sec. 159.0043. DISCLOSURE OF CONFIDENTIAL INFORMATION FOR
NOTICE AND PATIENT'S CARE. (a) For a patient who is available and
has the capacity to make health care decisions, a physician may
disclose confidential information in accordance with this section
if the physician:
(1) obtains the patient's consent;
(2) provides the patient with the opportunity to
object to the disclosure, and the patient does not object; or
(3) reasonably infers from the circumstances, based on
the exercise of professional judgment, that the patient does not
object to the disclosure.
(b) For a patient who is not available or for whom the
opportunity to consent or for objection to the use or disclosure
under Subsection (a) cannot practicably be provided because of the
patient's incapacity or an emergency, a physician may, in the
exercise of professional judgment, determine whether the
disclosure is in the best interests of the patient and disclose the
patient's confidential information in accordance with this section
if determined to be in the patient's best interests.
(c) A physician authorized to disclose confidential
information under this section may only disclose a patient's
confidential information that, in the exercise of professional
judgment, is directly relevant to:
(1) the recipient's involvement with the patient's
health care, including obtaining prescriptions, medical supplies,
test results, or other similar forms of confidential information;
(2) the recipient's involvement with payment for the
patient's health care; or
(3) notification to the patient's family member, the
patient's legally authorized representative, or a person
responsible for the patient's care of the patient's location,
general condition, or death.
(d) A physician may disclose a patient's confidential
information under this section only to:
(1) the patient's relative;
(2) the patient's close personal friend;
(3) a person identified by the patient to receive the
disclosure;
(4) the patient's legally authorized representative;
(5) a person responsible for the patient's care; or
(6) a governmental or private entity authorized by law
to assist in disaster relief efforts for the purpose described by
Subsection (c)(3).
(e) A physician may disclose a patient's confidential
information to a person described by Subsection (d)(6) without
complying with Subsection (a) or (b) to the extent the physician, in
the exercise of professional judgment, determines that the
requirements interfere with the physician's ability to respond to
the disaster.
(f) A physician may disclose a deceased patient's
confidential information to a person described by Subsection (d)
who is involved in the patient's care or with payment of the
patient's health care that is relevant to the recipient's
involvement unless the patient informed the physician that the
patient preferred that the information not be disclosed.
Sec. 159.0047. CONSTRUCTION OF AUTHORIZED DISCLOSURE
PROVISIONS. The authorization to disclose confidential
information described by Sections 159.003, 159.004, and 159.0043
may not be construed to create an independent duty or requirement to
disclose the information.
SECTION 7. The change in law made by this Act applies only
to confidential information provided on or after the effective date
of this Act. Confidential information provided before the
effective date of this Act is governed by the law in effect
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
SECTION 8. This Act takes effect September 1, 2019.