TMA Letter on Senate Bill 944
Senate Committee on Business and Commerce
Senate Bill 944 by Sen. Kirk Watson
March 26, 2019
The Texas Medical Association (TMA), representing nearly 53,000 physician and medical students, thanks Sen. Kirk Watson for inviting input and collaboration on Senate Bill 944. The author of the companion legislation, Rep. Giovanni Capriglione, also has welcomed input. As drafted, the bill improves on the public’s right to know and the importance of government transparency through the Texas Public Information Act. The current legislation and substitute for Senate Bill 944 may raise confusion and imprecision with regard to physician requirements when protecting an individual’s private health information.
Like the authors of this legislation, TMA is an ardent supporter of protecting patient privacy. TMA believes that with the following recommendations, Senate Bill 944 will provide parity and consistency in current statute regarding a physician’s absolute requirements to protect a Texan’s confidential, protected health information (PHI) under state and federal privacy laws, particularly given the potential that under House Bill 2189 more covered entities (although not fully governmental entities) could fall under the purview of Chapter 552.
Presently, as drafted, Senate Bill 944 provides for Section 552.159 (EXCEPTION. CONFIDENTIALITY OF HEALTHCARE INFORMATION), which reflects the current definition of patient-physician communication in Occupations Code, Section 159.002, although it is not specifically incorporated by reference (a “record of the identity, diagnosis, evaluation, or treatment of a patient”). Section 552.159 would provide that such information is confidential and excepted from the requirements of Chapter 552, Government Code.
The definition of a patient-physician communication, however, does not encompass all “protected health information” currently excepted from the requirements of Chapter 552 for covered entities that are governmental units. Respectfully, TMA proposes that for consistency purposes, the focus of the protection should be on “protected health information” defined in Section 181.006 of the Texas Health and Safety Code (Medical Records Privacy Act), which specifically refers to Chapter 552.
PHI is not defined statutorily in Texas statute, but it is generally understood to include more than a patient-physician communication and might include information related to payment and health plan information. Section181.006 specifically provides that PHI is not public information and not subject to disclosure under Chapter 552, Government Code.
Generally, any health care provider is on high alert when he or she receives a request for PHI, particularly given the safeguards and potential penalties for violations in the federal HIPAA Privacy Rule. When a physician’s office receives a request for PHI, whether from a patient, relative of a patient, lawyer, or insurer, or even when someone presents a valid release, Chapter 181 sets the benchmark and guidelines for when and how PHI may be disclosed. Section 181.006 specifically exempts the PHI completely from a public information request under Chapter 552 and allows the physician’s office instead to focus on current requirements under HIPAA and the Texas Medical Records Privacy Act (Chapter 181, Texas Health and Safety Code).
To maintain consistency across statutes for all health care providers, whether the health care provider is a governmental unit or not, TMA proposes including the following language in SB 944 for Section 552.159:
Sec. 552.159. EXCEPTION. PROTECTED HEALTH INFORMATION NOT PUBLIC. An individual’s protected health information is not public information. An individual’s protected health information:
(1) includes any information that reflects that an individual received health care from the covered entity, as defined in Chapter 181, Texas Health and Safety Code; and
(2) is not public information and is not subject to disclosure under Chapter 552, Government Code.
We thank Senator Watson and the committee for considering this issue – and please know we are ready to assist in this important effort.
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