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H.R. 2062: Overdose Prevention and Patient Safety Act

The text of the bill below is as of Apr 3, 2019 (Introduced).


I

116th CONGRESS

1st Session

H. R. 2062

IN THE HOUSE OF REPRESENTATIVES

April 3, 2019

(for himself, Mr. Mullin, Ms. DelBene, Mr. Walden, Mr. Peters, Mr. Carter of Georgia, Ms. Bonamici, Mr. Kelly of Pennsylvania, Mr. Moulton, Mr. Joyce of Pennsylvania, Mr. Rouda, Mr. Wright, Mr. Suozzi, Mr. Holding, Mr. Panetta, Mr. Crenshaw, Mr. Larsen of Washington, Mr. Johnson of Ohio, Mr. Evans, Mr. Bilirakis, and Ms. Sewell of Alabama) introduced the following bill; which was referred to the Committee on Energy and Commerce

A BILL

To amend the Public Health Service Act to protect the confidentiality of substance use disorder patient records.

1.

Short title

This Act may be cited as the Overdose Prevention and Patient Safety Act.

2.

Confidentiality and disclosure of records relating to substance use disorder

(a)

Conforming changes relating to substance use disorder

Subsections (a) and (h) of section 543 of the Public Health Service Act (42 U.S.C. 290dd–2) are each amended by striking substance abuse and inserting substance use disorder.

(b)

Disclosures to covered entities consistent with HIPAA

Paragraph (2) of section 543(b) of the Public Health Service Act (42 U.S.C. 290dd–2(b)) is amended by adding at the end the following:

(D)

To a covered entity or to a program or activity described in subsection (a), for the purposes of treatment, payment, and health care operations, so long as such disclosure is made in accordance with HIPAA privacy regulation. Any redisclosure of information so disclosed may only be made in accordance with this section.

.

(c)

Disclosures of de-Identified health information to public health authorities

Paragraph (2) of section 543(b) of the Public Health Service Act (42 U.S.C. 290dd–2(b)), as amended by subsection (b), is further amended by adding at the end the following:

(E)

To a public health authority, so long as such content meets the standards established in section 164.514(b) of title 45, Code of Federal Regulations (or successor regulations) for creating de-identified information.

.

(d)

Definitions

Subsection (b) of section 543 of the Public Health Service Act (42 U.S.C. 290dd–2) is amended by adding at the end the following:

(3)

Definitions

For purposes of this subsection:

(A)

Covered entity

The term covered entity has the meaning given such term for purposes of HIPAA privacy regulation.

(B)

Health care operations

The term health care operations has the meaning given such term for purposes of HIPAA privacy regulation.

(C)

HIPAA privacy regulation

The term HIPAA privacy regulation has the meaning given such term under section 1180(b)(3) of the Social Security Act.

(D)

Individually identifiable health information

The term individually identifiable health information has the meaning given such term for purposes of HIPAA privacy regulation.

(E)

Payment

The term payment has the meaning given such term for purposes of HIPAA privacy regulation.

(F)

Public health authority

The term public health authority has the meaning given such term for purposes of HIPAA privacy regulation.

(G)

Treatment

The term treatment has the meaning given such term for purposes of HIPAA privacy regulation.

.

(e)

Use of records in criminal, civil, or administrative investigations, actions, or proceedings

Subsection (c) of section 543 of the Public Health Service Act (42 U.S.C. 290dd–2) is amended to read as follows:

(c)

Use of records in criminal, civil, or administrative contexts

Except as otherwise authorized by a court order under subsection (b)(2)(C) or by the consent of the patient, a record referred to in subsection (a) may not, in connection with any investigation of, or criminal, civil, or administrative proceeding against, a patient—

(1)

be entered into evidence in any criminal prosecution or civil action before a Federal or State court;

(2)

form part of the record for decision or otherwise be taken into account in any proceeding before a Federal agency;

(3)

be used by any Federal, State, or local agency for a law enforcement purpose or to conduct any law enforcement investigation; or

(4)

be used in any application for a warrant.

.

(f)

Penalties

Subsection (f) of section 543 of the Public Health Service Act (42 U.S.C. 290dd–2) is amended to read as follows:

(f)

Penalties

The provisions of sections 1176 and 1177 of the Social Security Act shall apply to a violation of this section to the extent and in the same manner as such provisions apply to a violation of part C of title XI of such Act. In applying the previous sentence—

(1)

the reference to this subsection in subsection (a)(2) of such section 1176 shall be treated as a reference to this subsection (including as applied pursuant to section 543(f) of the Public Health Service Act); and

(2)

in subsection (b) of such section 1176—

(A)

each reference to a penalty imposed under subsection (a) shall be treated as a reference to a penalty imposed under subsection (a) (including as applied pursuant to section 543(f) of the Public Health Service Act); and

(B)

each reference to no damages obtained under subsection (d) shall be treated as a reference to no damages obtained under subsection (d) (including as applied pursuant to section 543(f) of the Public Health Service Act).

.

(g)

Antidiscrimination

Section 543 of the Public Health Service Act (42 U.S.C. 290dd–2) is amended by adding at the end the following:

(i)

Antidiscrimination

(1)

In general

No entity shall discriminate against an individual on the basis of information received by such entity pursuant to a disclosure made under subsection (b) in—

(A)

admission or treatment for health care;

(B)

hiring or terms of employment;

(C)

the sale or rental of housing; or

(D)

access to Federal, State, or local courts.

(2)

Recipients of Federal funds

No recipient of Federal funds shall discriminate against an individual on the basis of information received by such recipient pursuant to a disclosure made under subsection (b) in affording access to the services provided with such funds.

.

(h)

Notification in case of breach

Section 543 of the Public Health Service Act (42 U.S.C. 290dd–2), as amended by subsection (g), is further amended by adding at the end the following:

(j)

Notification in case of breach

(1)

Application of HITECH notification of breach provisions

The provisions of section 13402 of the HITECH Act (42 U.S.C. 17932) shall apply to a program or activity described in subsection (a), in case of a breach of records described in subsection (a), to the same extent and in the same manner as such provisions apply to a covered entity in the case of a breach of unsecured protected health information.

(2)

Definitions

In this subsection, the terms covered entity and unsecured protected health information have the meanings given to such terms for purposes of such section 13402.

.

(i)

Sense of Congress

It is the sense of the Congress that any person treating a patient through a program or activity with respect to which the confidentiality requirements of section 543 of the Public Health Service Act (42 U.S.C. 290dd–2) apply should access the applicable State-based prescription drug monitoring program as a precaution against substance use disorder.

(j)

Regulations

(1)

In general

The Secretary of Health and Human Services, in consultation with appropriate Federal agencies, shall make such revisions to regulations as may be necessary for implementing and enforcing the amendments made by this section, such that such amendments shall apply with respect to uses and disclosures of information occurring on or after the date that is 12 months after the date of enactment of this Act.

(2)

Easily understandable notice of privacy practices

Not later than 1 year after the date of enactment of this Act, the Secretary of Health and Human Services, in consultation with appropriate experts, shall update section 164.520 of title 45, Code of Federal Regulations, so that covered entities provide notice, written in plain language, of privacy practices regarding patient records referred to in section 543(a) of the Public Health Service Act (42 U.S.C. 290dd–2(a)), including—

(A)

a statement of the patient’s rights, including self-pay patients, with respect to protected health information and a brief description of how the individual may exercise these rights (as required by paragraph (b)(1)(iv) of such section 164.520); and

(B)

a description of each purpose for which the covered entity is permitted or required to use or disclose protected health information without the patient’s written authorization (as required by paragraph (b)(2) of such section 164.520).

(k)

Rules of construction

Nothing in this Act or the amendments made by this Act shall be construed to limit—

(1)

a patient’s right, as described in section 164.522 of title 45, Code of Federal Regulations, or any successor regulation, to request a restriction on the use or disclosure of a record referred to in section 543(a) of the Public Health Service Act (42 U.S.C. 290dd–2(a)) for purposes of treatment, payment, or health care operations; or

(2)

a covered entity’s choice, as described in section 164.506 of title 45, Code of Federal Regulations, or any successor regulation, to obtain the consent of the individual to use or disclose a record referred to in such section 543(a) to carry out treatment, payment, or health care operation.

(l)

Sense of Congress

It is the sense of the Congress that—

(1)

patients have the right to request a restriction on the use or disclosure of a record referred to in section 543(a) of the Public Health Service Act (42 U.S.C. 290dd–2(a)) for treatment, payment, or health care operations; and

(2)

covered entities should make every reasonable effort to the extent feasible to comply with a patient’s request for a restriction regarding such use or disclosure.