Protecting Jessica Grubb’s Legacy Act

II 116TH CONGRESS 1ST SESSION S. 1012 To amend the Public Health Service Act to protect the confidentiality of substance use disorder patient records. IN THE SENATE OF THE UNITED STATES APRIL 3, 2019 Mr. MANCHIN (for himself, Mrs. CAPITO, Mr. WHITEHOUSE, Ms. HARRIS, Ms. KLOBUCHAR, Mrs. FEINSTEIN, Mr. KING, Mr. TILLIS, Ms. COLLINS, Mr. CASSIDY, and Mr. CRAMER) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To amend the Public Health Service Act to protect the confidentiality of substance use disorder patient records. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Protecting Jessica 4 Grubb’s Legacy Act’’. 5 SEC. 2. CONFIDENTIALITY AND DISCLOSURE OF RECORDS 6 RELATING TO SUBSTANCE USE DISORDER. 7 (a) CONFORMING CHANGES RELATING TO SUB- 8 STANCE USE DISORDER.—Subsections (a) and (h) of sec- 9 VerDate Sep 11 2014 01:18 Apr 09, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1012.IS S1012 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1012 IS tion 543 of the Public Health Service Act (42 U.S.C. 1 290dd–2) are each amended by striking ‘‘substance 2 abuse’’ and inserting ‘‘substance use disorder’’. 3 (b) DISCLOSURES TO COVERED ENTITIES CON- 4 SISTENT WITH HIPAA.—Paragraph (2) of section 543(b) 5 of the Public Health Service Act (42 U.S.C. 290dd–2(b)) 6 is amended by adding at the end the following: 7 ‘‘(D) To a covered entity or to a program 8 or activity described in subsection (a), for the 9 purposes of treatment, payment, and health 10 care operations, so long as such disclosure is 11 made in accordance with HIPAA privacy regu- 12 lation. Any redisclosure of information so dis- 13 closed may only be made in accordance with 14 this section.’’. 15 (c) DISCLOSURES OF DE-IDENTIFIED HEALTH IN- 16 FORMATION TO PUBLIC HEALTH AUTHORITIES.—Para- 17 graph (2) of section 543(b) of the Public Health Service 18 Act (42 U.S.C. 290dd–2(b)), as amended by subsection 19 (b), is further amended by adding at the end the following: 20 ‘‘(E) To a public health authority, so long 21 as such content meets the standards established 22 in section 164.514(b) of title 45, Code of Fed- 23 eral Regulations (or successor regulations) for 24 creating de-identified information.’’. 25 VerDate Sep 11 2014 01:18 Apr 09, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1012.IS S1012 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1012 IS (d) DEFINITIONS.—Subsection (b) of section 543 of 1 the Public Health Service Act (42 U.S.C. 290dd–2) is 2 amended by adding at the end the following: 3 ‘‘(3) DEFINITIONS.—For purposes of this sub- 4 section: 5 ‘‘(A) COVERED ENTITY.—The term ‘cov- 6 ered entity’ has the meaning given such term 7 for purposes of HIPAA privacy regulation. 8 ‘‘(B) HEALTH CARE OPERATIONS.—The 9 term ‘health care operations’ has the meaning 10 given such term for purposes of HIPAA privacy 11 regulation. 12 ‘‘(C) HIPAA PRIVACY REGULATION.—The 13 term ‘HIPAA privacy regulation’ has the mean- 14 ing given such term under section 1180(b)(3) of 15 the Social Security Act. 16 ‘‘(D) INDIVIDUALLY IDENTIFIABLE 17 HEALTH INFORMATION.—The term ‘individually 18 identifiable health information’ has the meaning 19 given such term for purposes of HIPAA privacy 20 regulation. 21 ‘‘(E) PAYMENT.—The term ‘payment’ has 22 the meaning given such term for purposes of 23 HIPAA privacy regulation. 24 VerDate Sep 11 2014 01:18 Apr 09, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1012.IS S1012 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1012 IS ‘‘(F) PUBLIC HEALTH AUTHORITY.—The 1 term ‘public health authority’ has the meaning 2 given such term for purposes of HIPAA privacy 3 regulation. 4 ‘‘(G) TREATMENT.—The term ‘treatment’ 5 has the meaning given such term for purposes 6 of HIPAA privacy regulation.’’. 7 (e) USE OF RECORDS IN CRIMINAL, CIVIL, OR AD- 8 MINISTRATIVE INVESTIGATIONS, ACTIONS, OR PRO- 9 CEEDINGS.—Subsection (c) of section 543 of the Public 10 Health Service Act (42 U.S.C. 290dd–2) is amended to 11 read as follows: 12 ‘‘(c) USE OF RECORDS IN CRIMINAL, CIVIL, OR AD- 13 MINISTRATIVE CONTEXTS.—Except as otherwise author- 14 ized by a court order under subsection (b)(2)(C) or by the 15 consent of the patient, a record referred to in subsection 16 (a) may not— 17 ‘‘(1) be entered into evidence in any criminal 18 prosecution or civil action before a Federal or State 19 court; 20 ‘‘(2) form part of the record for decision or oth- 21 erwise be taken into account in any proceeding be- 22 fore a Federal agency; 23 VerDate Sep 11 2014 01:18 Apr 09, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1012.IS S1012 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1012 IS ‘‘(3) be used by any Federal, State, or local 1 agency for a law enforcement purpose or to conduct 2 any law enforcement investigation of a patient; or 3 ‘‘(4) be used in any application for a warrant.’’. 4 (f) PENALTIES.—Subsection (f) of section 543 of the 5 Public Health Service Act (42 U.S.C. 290dd–2) is amend- 6 ed to read as follows: 7 ‘‘(f) PENALTIES.—The provisions of sections 1176 8 and 1177 of the Social Security Act shall apply to a viola- 9 tion of this section to the extent and in the same manner 10 as such provisions apply to a violation of part C of title 11 XI of such Act. In applying the previous sentence— 12 ‘‘(1) the reference to ‘this subsection’ in sub- 13 section (a)(2) of such section 1176 shall be treated 14 as a reference to ‘this subsection (including as ap- 15 plied pursuant to section 543(f) of the Public Health 16 Service Act)’; and 17 ‘‘(2) in subsection (b) of such section 1176— 18 ‘‘(A) each reference to ‘a penalty imposed 19 under subsection (a)’ shall be treated as a ref- 20 erence to ‘a penalty imposed under subsection 21 (a) (including as applied pursuant to section 22 543(f) of the Public Health Service Act)’; and 23 ‘‘(B) each reference to ‘no damages ob- 24 tained under subsection (d)’ shall be treated as 25 VerDate Sep 11 2014 01:18 Apr 09, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1012.IS S1012 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1012 IS a reference to ‘no damages obtained under sub- 1 section (d) (including as applied pursuant to 2 section 543(f) of the Public Health Service 3 Act)’.’’. 4 (g) ANTIDISCRIMINATION.—Section 543 of the Public 5 Health Service Act (42 U.S.C. 290dd–2) is amended by 6 adding at the end the following: 7 ‘‘(i) ANTIDISCRIMINATION.— 8 ‘‘(1) IN GENERAL.—No entity shall discrimi- 9 nate against an individual on the basis of informa- 10 tion received by such entity pursuant to a disclosure 11 made under subsection (b) in— 12 ‘‘(A) admission or treatment for health 13 care; 14 ‘‘(B) hiring or terms of employment; 15 ‘‘(C) the sale or rental of housing; or 16 ‘‘(D) access to Federal, State, or local 17 courts. 18 ‘‘(2) RECIPIENTS OF FEDERAL FUNDS.—No re- 19 cipient of Federal funds shall discriminate against 20 an individual on the basis of information received by 21 such recipient pursuant to a disclosure made under 22 subsection (b) in affording access to the services 23 provided with such funds.’’. 24 VerDate Sep 11 2014 01:18 Apr 09, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1012.IS S1012 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1012 IS (h) NOTIFICATION IN CASE OF BREACH.—Section 1 543 of the Public Health Service Act (42 U.S.C. 290dd– 2 2), as amended by subsection (g), is further amended by 3 adding at the end the following: 4 ‘‘(j) NOTIFICATION IN CASE OF BREACH.— 5 ‘‘(1) APPLICATION OF HITECH NOTIFICATION 6 OF BREACH PROVISIONS.—The provisions of section 7 13402 of the HITECH Act (42 U.S.C. 17932) shall 8 apply to a program or activity described in sub- 9 section (a), in case of a breach of records described 10 in subsection (a), to the same extent and in the 11 same manner as such provisions apply to a covered 12 entity in the case of a breach of unsecured protected 13 health information. 14 ‘‘(2) DEFINITIONS.—In this subsection, the 15 terms ‘covered entity’ and ‘unsecured protected 16 health information’ have the meanings given to such 17 terms for purposes of such section 13402.’’. 18 (i) SENSE OF CONGRESS.—It is the sense of the Con- 19 gress that any person treating a patient through a pro- 20 gram or activity with respect to which the confidentiality 21 requirements of section 543 of the Public Health Service 22 Act (42 U.S.C. 290dd–2) apply should access the applica- 23 ble State-based prescription drug monitoring program as 24 a precaution against substance use disorder. 25 VerDate Sep 11 2014 01:18 Apr 09, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1012.IS S1012 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1012 IS (j) REGULATIONS.— 1 (1) IN GENERAL.—The Secretary of Health and 2 Human Services, in consultation with appropriate 3 Federal agencies, shall make such revisions to regu- 4 lations as may be necessary for implementing and 5 enforcing the amendments made by this section, 6 such that such amendments shall apply with respect 7 to uses and disclosures of information occurring on 8 or after the date that is 12 months after the date 9 of enactment of this Act. 10 (2) EASILY UNDERSTANDABLE NOTICE OF PRI- 11 VACY PRACTICES.—Not later than 1 year after the 12 date of enactment of this Act, the Secretary of 13 Health and Human Services, in consultation with 14 appropriate experts, shall update section 164.520 of 15 title 45, Code of Federal Regulations, so that cov- 16 ered entities provide notice, written in plain lan- 17 guage, of privacy practices regarding patient records 18 referred to in section 543(a) of the Public Health 19 Service Act (42 U.S.C. 290dd–2(a)), including— 20 (A) a statement of the patient’s rights, in- 21 cluding self-pay patients, with respect to pro- 22 tected health information and a brief descrip- 23 tion of how the individual may exercise these 24 VerDate Sep 11 2014 01:18 Apr 09, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1012.IS S1012 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1012 IS rights (as required by paragraph (b)(1)(iv) of 1 such section 164.520); and 2 (B) a description of each purpose for 3 which the covered entity is permitted or re- 4 quired to use or disclose protected health infor- 5 mation without the patient’s written authoriza- 6 tion (as required by paragraph (b)(2) of such 7 section 164.520). 8 (k) DEVELOPMENT AND DISSEMINATION OF MODEL 9 TRAINING PROGRAMS FOR SUBSTANCE USE DISORDER 10 PATIENT RECORDS.— 11 (1) INITIAL PROGRAMS AND MATERIALS.—Not 12 later than 1 year after the date of the enactment of 13 this Act, the Secretary of Health and Human Serv- 14 ices (referred to in this subsection as the ‘‘Sec- 15 retary’’), in consultation with appropriate experts, 16 shall identify the following model programs and ma- 17 terials (or if no such programs or materials exist, 18 recognize private or public entities to develop and 19 disseminate such programs and materials): 20 (A) Model programs and materials for 21 training health care providers (including physi- 22 cians, emergency medical personnel, psychia- 23 trists, psychologists, counselors, therapists, 24 nurse practitioners, physician assistants, behav- 25 VerDate Sep 11 2014 01:18 Apr 09, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1012.IS S1012 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1012 IS ioral health facilities and clinics, care managers, 1 and hospitals, including individuals such as gen- 2 eral counsels or regulatory compliance staff who 3 are responsible for establishing provider privacy 4 policies) concerning the permitted uses and dis- 5 closures, consistent with the standards and reg- 6 ulations governing the privacy and security of 7 substance use disorder patient records promul- 8 gated by the Secretary under section 543 of the 9 Public Health Service Act (42 U.S.C. 290dd– 10 2), as amended by this section, for the con- 11 fidentiality of patient records. 12 (B) Model programs and materials for 13 training patients and their families regarding 14 their rights to protect and obtain information 15 under the standards and regulations described 16 in subparagraph (A). 17 (2) REQUIREMENTS.—The model programs and 18 materials described in subparagraphs (A) and (B) of 19 paragraph (1) shall address circumstances under 20 which disclosure of substance use disorder patient 21 records is needed to— 22 (A) facilitate communication between sub- 23 stance use disorder treatment providers and 24 VerDate Sep 11 2014 01:18 Apr 09, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1012.IS S1012 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1012 IS other health care providers to promote and pro- 1 vide the best possible integrated care; 2 (B) avoid inappropriate prescribing that 3 can lead to dangerous drug interactions, over- 4 dose, or relapse; and 5 (C) notify and involve families and care- 6 givers when individuals experience an overdose. 7 (3) PERIODIC UPDATES.—The Secretary 8 shall— 9 (A) periodically review and update the 10 model programs and materials identified or de- 11 veloped under paragraph (1); and 12 (B) disseminate such updated programs 13 and materials to the individuals described in 14 paragraph (1)(A). 15 (4) INPUT OF CERTAIN ENTITIES.—In identi- 16 fying, reviewing, or updating the model programs 17 and materials under this subsection, the Secretary 18 shall solicit the input of relevant stakeholders. 19 (l) RULES OF CONSTRUCTION.—Nothing in this Act 20 or the amendments made by this Act shall be construed 21 to limit— 22 (1) a patient’s right, as described in section 23 164.522 of title 45, Code of Federal Regulations, or 24 any successor regulation, to request a restriction on 25 VerDate Sep 11 2014 01:18 Apr 09, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1012.IS S1012 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 1012 IS the use or disclosure of a record referred to in sec- 1 tion 543(a) of the Public Health Service Act (42 2 U.S.C. 290dd–2(a)) for purposes of treatment, pay- 3 ment, or health care operations; or 4 (2) a covered entity’s choice, as described in 5 section 164.506 of title 45, Code of Federal Regula- 6 tions, or any successor regulation, to obtain the con- 7 sent of the individual to use or disclose a record re- 8 ferred to in such section 543(a) to carry out treat- 9 ment, payment, or health care operation. 10 (m) SENSE OF CONGRESS.—It is the sense of the 11 Congress that— 12 (1) patients have the right to request a restric- 13 tion on the use or [Text truncated for display. 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