Texas 2023 - 88th Regular

Texas House Bill HB3468 Compare Versions

Version 1 (Old)

Version 2 (New)

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1	1	88R24933 LRM-F
2	2	By: Capriglione, Hull, et al. H.B. No. 3468
3	3	Substitute the following for H.B. No. 3468:
4	4	By: Klick C.S.H.B. No. 3468
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to a patient's access to health records; authorizing a
10	10	civil penalty; authorizing fees.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 15.05, Business & Commerce Code, is
13	13	amended by adding Subsection (a-1) to read as follows:
14	14	(a-1) It is unlawful for a person to place a restraint on
15	15	trade or commerce by intentionally violating federal laws
16	16	regulating information blocking, as that term is defined by 45
17	17	C.F.R. Section 171.103.
18	18	SECTION 2. Section 181.001(b), Health and Safety Code, is
19	19	amended by adding Subdivision (3-a) to read as follows:
20	20	(3-a) "Information blocking" has the meaning assigned
21	21	by 45 C.F.R. Section 171.103.
22	22	SECTION 3. Section 181.004(a), Health and Safety Code, is
23	23	amended to read as follows:
24	24	(a) A covered entity, as that term is defined by 45 C.F.R.
25	25	Section 160.103, shall comply with:
26	26	(1) the Health Insurance Portability and
27	27	Accountability Act and Privacy Standards; and
28	28	(2) federal laws regulating information blocking.
29	29	SECTION 4. Section 181.102, Health and Safety Code, is
30	30	amended to read as follows:
31	31	Sec. 181.102. CONSUMER ACCESS TO [ELECTRONIC] HEALTH
32	32	RECORDS. (a) The health information of a patient contained in the
33	33	patient's physical or electronic health records is considered the
34	34	patient's property and, subject to the payment of fees required
35	35	under this section, a patient or the patient's legally authorized
36	36	representative on request is entitled to copies of those health
37	37	records.
38	38	(b) Except as provided by Subsection (d) [(b)], if a health
39	39	care provider is using an electronic health records system that is
40	40	capable of fulfilling the request, the health care provider, as
41	41	soon as practicable but not later than the 15th business day after
42	42	the date the health care provider receives a written request from a
43	43	person for the person's electronic health record, shall provide the
44	44	requested record to the person in electronic form unless the person
45	45	agrees to accept the record in another form.
46	46	(c) Except as provided by Subsection (d), a health care
47	47	provider's violation of federal laws regulating information
48	48	blocking constitutes a violation of this section.
49	49	(d) [(b)] A health care provider is not required to provide
50	50	access to a person's protected health information that is excepted
51	51	from access, or to which access may be denied, under 45 C.F.R.
52	52	Section 164.524.
53	53	(e) [(c)] For purposes of this section [Subsection (a)],
54	54	the executive commissioner, in consultation with the department,
55	55	the Texas Medical Board, and the Texas Department of Insurance, by
56	56	rule may recommend a standard electronic format for the release of
57	57	requested health records. The standard electronic format
58	58	recommended under this section must be consistent, if feasible,
59	59	with federal law regarding the release of electronic health
60	60	records.
61	61	(f) A covered entity that receives a request from a patient
62	62	or the patient's legally authorized representative for a copy of
63	63	the patient's health records may charge a fee to produce those
64	64	records in an amount consistent with the requirements under 45
65	65	C.F.R. Section 164.524, except that a covered entity may not charge
66	66	an aggregate amount that exceeds $100 to produce the records if:
67	67	(1) the patient is a Medicaid recipient; or
68	68	(2) the patient's household income is at or below 200
69	69	percent of the federal poverty level.
70	70	(g) A covered entity shall post in a conspicuous location
71	71	for patients requesting health records notice of the option to
72	72	obtain a copy of the patient's health records under Subsection (f).
73	73	(h) A covered entity may require a patient or the patient's
74	74	legally authorized representative to submit a written or electronic
75	75	request for copies of the patient's health records but may not
76	76	require a patient or the patient's legally authorized
77	77	representative to submit a request by facsimile.
78	78	(i) Unless explicitly authorized by state or federal law, a
79	79	covered entity may not enter into a contract with a person that
80	80	includes terms restricting a patient or the patient's legally
81	81	authorized representative from accessing the patient's health
82	82	records. Any contract clause or provision that restricts a patient
83	83	or the patient's legally authorized representative from accessing
84	84	the patient's health records is unenforceable.
85	85	SECTION 5. Section 181.201, Health and Safety Code, is
86	86	amended by amending Subsections (b) and (d) and adding Subsections
87	87	(g) and (h) to read as follows:
88	88	(b) In addition to the injunctive relief provided by
89	89	Subsection (a), the attorney general may institute an action for
90	90	civil penalties against a covered entity for a violation of this
91	91	chapter, other than a violation of Section 181.102. A civil
92	92	penalty assessed under this section may not exceed:
93	93	(1) $5,000 for each violation that occurs in one year,
94	94	regardless of how long the violation continues during that year,
95	95	committed negligently;
96	96	(2) $25,000 for each violation that occurs in one
97	97	year, regardless of how long the violation continues during that
98	98	year, committed knowingly or intentionally; or
99	99	(3) $250,000 for each violation in which the covered
100	100	entity knowingly or intentionally used protected health
101	101	information for financial gain.
102	102	(d) In determining the amount of a penalty imposed under
103	103	Subsections [Subsection] (b) and (g), the court shall consider:
104	104	(1) the seriousness of the violation, including the
105	105	nature, circumstances, extent, and gravity of the disclosure or
106	106	information blocking;
107	107	(2) the covered entity's compliance history;
108	108	(3) whether the violation poses a significant risk of
109	109	financial, reputational, or other harm to an individual whose
110	110	protected health information is involved in the violation;
111	111	(4) whether the covered entity was certified at the
112	112	time of the violation as described by Section 182.108;
113	113	(5) the amount necessary to deter a future violation;
114	114	[and]
115	115	(6) the covered entity's efforts to correct the
116	116	violation;
117	117	(7) the size and geographic location of the covered
118	118	entity; and
119	119	(8) the financial impact the penalty would have on the
120	120	covered entity's financial viability and ability to adequately
121	121	serve an underserved community or population.
122	122	(g) In addition to the injunctive relief provided by
123	123	Subsection (a), the attorney general may institute an action for
124	124	civil penalties against a covered entity for a violation of Section
125	125	181.102. A civil penalty assessed under this subsection may not
126	126	exceed:
127	127	(1) $10,000 for each negligent violation, regardless
128	128	of the length of time the violation continues during any year; or
129	129	(2) $250,000 for each intentional violation committed
130	130	for the purpose of financial gain, regardless of the length of time
131	131	the violation continues during any year.
132	132	(h) If the court in a pending action under Subsection (g)
133	133	finds the violations occurred with a frequency constituting a
134	134	pattern or practice, the court may assess additional civil
135	135	penalties for each violation.
136	136	SECTION 6. Section 241.154(b), Health and Safety Code, is
137	137	amended to read as follows:
138	138	(b) Except as provided by Subsection (d), the hospital or
139	139	its agent may charge a reasonable fee for providing the health care
140	140	information except payment information and is not required to
141	141	permit the examination, copying, or release of the information
142	142	requested until the fee is paid unless there is a medical
143	143	emergency. The fee may not exceed the aggregate amount specified
144	144	under Section 181.102(f) and [sum of:
145	145	[(1) a basic retrieval or processing fee, which must
146	146	include the fee for providing the first 10 pages of the copies and
147	147	which may not exceed $30; and
148	148	[(A) a charge for each page of:
149	149	[(i) $1 for the 11th through the 60th page
150	150	of the provided copies;
151	151	[(ii) 50 cents for the 61st through the
152	152	400th page of the provided copies; and
153	153	[(iii) 25 cents for any remaining pages of
154	154	the provided copies; and
155	155	[(B) the actual cost of mailing, shipping, or
156	156	otherwise delivering the provided copies;
157	157	[(2) if the requested records are stored on microform,
158	158	a retrieval or processing fee, which must include the fee for
159	159	providing the first 10 pages of the copies and which may not exceed
160	160	$45; and
161	161	[(A) $1 per page thereafter; and
162	162	[(B) the actual cost of mailing, shipping, or
163	163	otherwise delivering the provided copies; or
164	164	[(3) if the requested records are provided on a
165	165	digital or other electronic medium and the requesting party
166	166	requests delivery in a digital or electronic medium, including
167	167	electronic mail:
168	168	[(A) a retrieval or processing fee, which may not
169	169	exceed $75; and
170	170	[(B)] the actual cost of mailing, shipping, or
171	171	otherwise delivering the provided copies.
172	172	SECTION 7. If any provision of this Act or its application
173	173	to any person or circumstance is held invalid, the invalidity does
174	174	not affect other provisions or applications of this Act which can be
175	175	given effect without the invalid provision or application, and to
176	176	this end the provisions of this Act are severable.
177	177	SECTION 8. The changes in law made by this Act apply only to
178	178	a violation of law that occurs on or after the effective date of
179	179	this Act. A violation that occurs before the effective date of this
180	180	Act is governed by the law in effect on the date the violation
181	181	occurred, and the former law is continued in effect for that
182	182	purpose. For purposes of this section, a violation of law occurred
183	183	before the effective date of this Act if any element of the
184	184	violation occurred before that date.
185	185	SECTION 9. This Act takes effect September 1, 2023.