Bill Would Set Health Information Exchange Guidelines

TMA Testimony: House Bill 2641

House Public Health Committee

April 14, 2015

 

The Texas Medical Association (TMA) appreciates the work of Representative Zerwas as sponsor of House Bill 2641. This bill details some key provisions that enhance the value of health information exchange in Texas, which represents important data at the point of care for all Texans. Over the past several years, both the federal and state governments have spurred physicians and providers to enhance exchange of electronic health records. Thus as more physicians enter the arena of electronic record exchange, it is critical that Texas law ensures a secure environment for these transactions.

TMA supports the provisions of the bill that mandate that the executive commissioner ensure that all systems set for future procurement have the needed capabilities to exchange health information securely, in accordance with applicable data exchange standards, to promote interoperability. 

Additionally, TMA appreciates the effort in HB 2641 to define in statute a “health information exchange” (HIE). This definition will provide clarity regarding which entities are health information exchanges and which are not for the purposes specified in the bill. This becomes important because the public desires trust and understanding regarding the entities that transmit sensitive and protected health information. 

Understandably, physicians desire and need that same trust. It is important that physicians, as custodians of patient data, fully understand which entities fall within the definition of a “health information exchange” for the purposes expressed in the bill. 

Physicians also desire assurance that legal protections will be in place for them, as the source of patient data, when they submit that data to an HIE. This is important, for example, in the unfortunate event of a data breach that violates state and/or federal laws. Physicians are especially concerned in cases where a breach occurs on the HIE side of operations after the physician has properly provided data to the HIE.

In 2013, TMA worked with Texas e-Health Alliance, the Texas Association of Healthcare Information Organizations, and other stakeholders to develop agreed-upon language that would provide much-needed legal protections for physicians and health care providers participating in HIEs. TMA respectfully requests that the committee consider amending the bill to provide that: 

  • The use of, failure to use, or existence of a health information exchange does not establish a standard of care applicable to a “health care provider” (to be defined as including a physician for all the bullet points herein) for obtaining, using, or disclosing patient information.
  • Unless a health care provider acts with gross negligence, a claimant may not commence an action against the health care provider concerning patient information as described in (1) –(4) below, and the health care provider is not liable for any damages, penalties, or other relief related to: 

      (1) The health care provider’s or another health care provider’s obtainment of or failure to obtain patient information from a health information exchange; 

      (2) The health care provider’s or another health care provider’s disclosure of or failure to disclose patient information to a health information exchange; 

      (3) The health care provider’s or another health care provider’s reliance on inaccurate patient information obtained from or disclosed by a health information exchange; or 

      (4) The obtainment, use, or disclosure by a health information exchange, another health care provider, or any other person, in violation of federal or state law, of any patient information that the health care provider provided to a health information exchange or to another health care provider in compliance with HIPAA and other applicable federal and state law. 

  • Nothing in the aforementioned language should be construed to create a cause of action or to create a standard of care, obligation, or duty that provides a basis for a cause of action.
  • The limitations of liability provided above are in addition to any other immunity or limitations of liability provided by law. 

Thank you for the opportunity to submit comments on this important bill. We look forward to working with the author and members to make the needed changes that will pave the way for safe exchange of health information and serve to protect Texans as physicians and other providers use new technologies to share vital medical information.  

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