88R11260 LRM-F
By: Capriglione H.B. No. 3468
A BILL TO BE ENTITLED
AN ACT
relating to a patient's access to health records; 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 181.004(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, as
that term is defined by 45 C.F.R. Section 171.103.
SECTION 3. Section 181.102, Health and Safety Code, is
amended by adding Subsection (a-1) to read as follows:
(a-1) Except as provided by Subsection (b), a health care
provider's violation of federal laws regulating information
blocking, as that term is defined by 45 C.F.R. Section 171.103,
constitutes a violation of Subsection (a).
SECTION 4. Subchapter C, Chapter 181, Health and Safety
Code, is amended by adding Section 181.1025 to read as follows:
Sec. 181.1025. PATIENT OWNERSHIP OF AND ACCESS TO HEALTH
RECORDS. (a) The health records of a patient, including electronic
health records, and the medical information contained in those
records is considered the patient's property. Subject to payment
of any required fees under this section, a patient is entitled to
copies of the patient's health records on request.
(b) A covered entity that receives a request from a patient
for a copy of the patient's health records may charge a fee to
produce those records as follows:
(1) for a physical copy of the records, a fee in an
amount not to exceed the lesser of $15 or 50 cents per page;
(2) for a copy of a filmed record, including a
radiogram, X-ray, and sonogram, a fee in a reasonable amount
determined by the commission; and
(3) for an electronic copy of the records:
(A) no fee to the extent the entity maintains the
health records in an electronic format; or
(B) a fee in a reasonable amount determined by
the commission to the extent the entity does not maintain the health
records in an electronic format.
(c) A covered entity may require a patient to submit a
written or electronic request for copies of the patient's health
records but may not require a patient to submit a request by
facsimile.
(d) A covered entity may not enter into a contract with a
person that includes terms restricting a patient or the patient's
representative from accessing the patient's health records. Any
contract clause or provision that restricts a patient's access to
the patient's health records is unenforceable.
SECTION 5. 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 Sections 181.102 and
181.1025. 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;
(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.
(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
Sections 181.102 and 181.1025. A civil penalty assessed under this
subsection may not exceed:
(1) $10,000 for each negligent violation, regardless
of the length of time the violation continues during any year; or
(2) $250,000 for each intentional violation,
regardless of the length of time the violation continues during any
year.
(h) If the court in a pending action under Subsection (g)
finds that the violations occurred with a frequency as to
constitute a pattern or practice, the court may assess additional
civil penalties for each violation.
SECTION 6. If any provision of this Act or its application
to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this Act which can be
given effect without the invalid provision or application, and to
this end the provisions of this Act are severable.
SECTION 7. The changes in law made by this Act apply only to
a violation of law that occurs on or after the effective date of
this Act. A violation that occurs before the effective date of this
Act is governed by the law in effect on the date the violation
occurred, and the former law is continued in effect for that
purpose. For purposes of this section, a violation of law occurred
before the effective date of this Act if any element of the
violation occurred before that date.
SECTION 8. This Act takes effect September 1, 2023.