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.