Overdose Prevention and Patient Safety Act

I 116TH CONGRESS 1ST SESSION H. R. 2062 To amend the Public Health Service Act to protect the confidentiality of substance use disorder patient records. IN THE HOUSE OF REPRESENTATIVES APRIL 3, 2019 Mr. BLUMENAUER (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. 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 ‘‘Overdose Prevention 4 and Patient Safety Act’’. 5 VerDate Sep 11 2014 21:31 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.IH H2062 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 2062 IH SEC. 2. CONFIDENTIALITY AND DISCLOSURE OF RECORDS 1 RELATING TO SUBSTANCE USE DISORDER. 2 (a) CONFORMING CHANGES RELATING TO SUB- 3 STANCE USE DISORDER.—Subsections (a) and (h) of sec- 4 tion 543 of the Public Health Service Act (42 U.S.C. 5 290dd–2) are each amended by striking ‘‘substance 6 abuse’’ and inserting ‘‘substance use disorder’’. 7 (b) DISCLOSURES TO COVERED ENTITIES CON- 8 SISTENT WITH HIPAA.—Paragraph (2) of section 543(b) 9 of the Public Health Service Act (42 U.S.C. 290dd–2(b)) 10 is amended by adding at the end the following: 11 ‘‘(D) To a covered entity or to a program 12 or activity described in subsection (a), for the 13 purposes of treatment, payment, and health 14 care operations, so long as such disclosure is 15 made in accordance with HIPAA privacy regu- 16 lation. Any redisclosure of information so dis- 17 closed may only be made in accordance with 18 this section.’’. 19 (c) DISCLOSURES OF DE-IDENTIFIED HEALTH IN- 20 FORMATION TO PUBLIC HEALTH AUTHORITIES.—Para- 21 graph (2) of section 543(b) of the Public Health Service 22 Act (42 U.S.C. 290dd–2(b)), as amended by subsection 23 (b), is further amended by adding at the end the following: 24 ‘‘(E) To a public health authority, so long 25 as such content meets the standards established 26 VerDate Sep 11 2014 21:31 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.IH H2062 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 2062 IH in section 164.514(b) of title 45, Code of Fed- 1 eral Regulations (or successor regulations) for 2 creating de-identified information.’’. 3 (d) DEFINITIONS.—Subsection (b) of section 543 of 4 the Public Health Service Act (42 U.S.C. 290dd–2) is 5 amended by adding at the end the following: 6 ‘‘(3) DEFINITIONS.—For purposes of this sub- 7 section: 8 ‘‘(A) COVERED ENTITY.—The term ‘cov- 9 ered entity’ has the meaning given such term 10 for purposes of HIPAA privacy regulation. 11 ‘‘(B) HEALTH CARE OPERATIONS.—The 12 term ‘health care operations’ has the meaning 13 given such term for purposes of HIPAA privacy 14 regulation. 15 ‘‘(C) HIPAA PRIVACY REGULATION.—The 16 term ‘HIPAA privacy regulation’ has the mean- 17 ing given such term under section 1180(b)(3) of 18 the Social Security Act. 19 ‘‘(D) INDIVIDUALLY IDENTIFIABLE 20 HEALTH INFORMATION.—The term ‘individually 21 identifiable health information’ has the meaning 22 given such term for purposes of HIPAA privacy 23 regulation. 24 VerDate Sep 11 2014 21:31 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.IH H2062 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 2062 IH ‘‘(E) PAYMENT.—The term ‘payment’ has 1 the meaning given such term for purposes of 2 HIPAA privacy regulation. 3 ‘‘(F) PUBLIC HEALTH AUTHORITY.—The 4 term ‘public health authority’ has the meaning 5 given such term for purposes of HIPAA privacy 6 regulation. 7 ‘‘(G) TREATMENT.—The term ‘treatment’ 8 has the meaning given such term for purposes 9 of HIPAA privacy regulation.’’. 10 (e) USE OF RECORDS IN CRIMINAL, CIVIL, OR AD- 11 MINISTRATIVE INVESTIGATIONS, ACTIONS, OR PRO- 12 CEEDINGS.—Subsection (c) of section 543 of the Public 13 Health Service Act (42 U.S.C. 290dd–2) is amended to 14 read as follows: 15 ‘‘(c) USE OF RECORDS IN CRIMINAL, CIVIL, OR AD- 16 MINISTRATIVE CONTEXTS.—Except as otherwise author- 17 ized by a court order under subsection (b)(2)(C) or by the 18 consent of the patient, a record referred to in subsection 19 (a) may not, in connection with any investigation of, or 20 criminal, civil, or administrative proceeding against, a pa- 21 tient— 22 ‘‘(1) be entered into evidence in any criminal 23 prosecution or civil action before a Federal or State 24 court; 25 VerDate Sep 11 2014 21:31 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.IH H2062 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 2062 IH ‘‘(2) form part of the record for decision or oth- 1 erwise be taken into account in any proceeding be- 2 fore a Federal agency; 3 ‘‘(3) be used by any Federal, State, or local 4 agency for a law enforcement purpose or to conduct 5 any law enforcement investigation; or 6 ‘‘(4) be used in any application for a warrant.’’. 7 (f) PENALTIES.—Subsection (f) of section 543 of the 8 Public Health Service Act (42 U.S.C. 290dd–2) is amend- 9 ed to read as follows: 10 ‘‘(f) PENALTIES.—The provisions of sections 1176 11 and 1177 of the Social Security Act shall apply to a viola- 12 tion of this section to the extent and in the same manner 13 as such provisions apply to a violation of part C of title 14 XI of such Act. In applying the previous sentence— 15 ‘‘(1) the reference to ‘this subsection’ in sub- 16 section (a)(2) of such section 1176 shall be treated 17 as a reference to ‘this subsection (including as ap- 18 plied pursuant to section 543(f) of the Public Health 19 Service Act)’; and 20 ‘‘(2) in subsection (b) of such section 1176— 21 ‘‘(A) each reference to ‘a penalty imposed 22 under subsection (a)’ shall be treated as a ref- 23 erence to ‘a penalty imposed under subsection 24 VerDate Sep 11 2014 21:31 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.IH H2062 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 2062 IH (a) (including as applied pursuant to section 1 543(f) of the Public Health Service Act)’; and 2 ‘‘(B) each reference to ‘no damages ob- 3 tained under subsection (d)’ shall be treated as 4 a reference to ‘no damages obtained under sub- 5 section (d) (including as applied pursuant to 6 section 543(f) of the Public Health Service 7 Act)’.’’. 8 (g) ANTIDISCRIMINATION.—Section 543 of the Public 9 Health Service Act (42 U.S.C. 290dd–2) is amended by 10 adding at the end the following: 11 ‘‘(i) ANTIDISCRIMINATION.— 12 ‘‘(1) IN GENERAL.—No entity shall discrimi- 13 nate against an individual on the basis of informa- 14 tion received by such entity pursuant to a disclosure 15 made under subsection (b) in— 16 ‘‘(A) admission or treatment for health 17 care; 18 ‘‘(B) hiring or terms of employment; 19 ‘‘(C) the sale or rental of housing; or 20 ‘‘(D) access to Federal, State, or local 21 courts. 22 ‘‘(2) RECIPIENTS OF FEDERAL FUNDS.—No re- 23 cipient of Federal funds shall discriminate against 24 an individual on the basis of information received by 25 VerDate Sep 11 2014 21:31 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.IH H2062 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 2062 IH such recipient pursuant to a disclosure made under 1 subsection (b) in affording access to the services 2 provided with such funds.’’. 3 (h) NOTIFICATION IN CASE OF BREACH.—Section 4 543 of the Public Health Service Act (42 U.S.C. 290dd– 5 2), as amended by subsection (g), is further amended by 6 adding at the end the following: 7 ‘‘(j) NOTIFICATION IN CASE OF BREACH.— 8 ‘‘(1) APPLICATION OF HITECH NOTIFICATION 9 OF BREACH PROVISIONS.—The provisions of section 10 13402 of the HITECH Act (42 U.S.C. 17932) shall 11 apply to a program or activity described in sub- 12 section (a), in case of a breach of records described 13 in subsection (a), to the same extent and in the 14 same manner as such provisions apply to a covered 15 entity in the case of a breach of unsecured protected 16 health information. 17 ‘‘(2) DEFINITIONS.—In this subsection, the 18 terms ‘covered entity’ and ‘unsecured protected 19 health information’ have the meanings given to such 20 terms for purposes of such section 13402.’’. 21 (i) SENSE OF CONGRESS.—It is the sense of the Con- 22 gress that any person treating a patient through a pro- 23 gram or activity with respect to which the confidentiality 24 requirements of section 543 of the Public Health Service 25 VerDate Sep 11 2014 21:31 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.IH H2062 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 2062 IH Act (42 U.S.C. 290dd–2) apply should access the applica- 1 ble State-based prescription drug monitoring program as 2 a precaution against substance use disorder. 3 (j) REGULATIONS.— 4 (1) IN GENERAL.—The Secretary of Health and 5 Human Services, in consultation with appropriate 6 Federal agencies, shall make such revisions to regu- 7 lations as may be necessary for implementing and 8 enforcing the amendments made by this section, 9 such that such amendments shall apply with respect 10 to uses and disclosures of information occurring on 11 or after the date that is 12 months after the date 12 of enactment of this Act. 13 (2) EASILY UNDERSTANDABLE NOTICE OF PRI- 14 VACY PRACTICES.—Not later than 1 year after the 15 date of enactment of this Act, the Secretary of 16 Health and Human Services, in consultation with 17 appropriate experts, shall update section 164.520 of 18 title 45, Code of Federal Regulations, so that cov- 19 ered entities provide notice, written in plain lan- 20 guage, of privacy practices regarding patient records 21 referred to in section 543(a) of the Public Health 22 Service Act (42 U.S.C. 290dd–2(a)), including— 23 (A) a statement of the patient’s rights, in- 24 cluding self-pay patients, with respect to pro- 25 VerDate Sep 11 2014 21:31 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.IH H2062 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 2062 IH tected health information and a brief descrip- 1 tion of how the individual may exercise these 2 rights (as required by paragraph (b)(1)(iv) of 3 such section 164.520); and 4 (B) a description of each purpose for 5 which the covered entity is permitted or re- 6 quired to use or disclose protected health infor- 7 mation without the patient’s written authoriza- 8 tion (as required by paragraph (b)(2) of such 9 section 164.520). 10 (k) RULES OF CONSTRUCTION.—Nothing in this Act 11 or the amendments made by this Act shall be construed 12 to limit— 13 (1) a patient’s right, as described in section 14 164.522 of title 45, Code of Federal Regulations, or 15 any successor regulation, to request a restriction on 16 the use or disclosure of a record referred to in sec- 17 tion 543(a) of the Public Health Service Act (42 18 U.S.C. 290dd–2(a)) for purposes of treatment, pay- 19 ment, or health care operations; or 20 (2) a covered entity’s choice, as described in 21 section 164.506 of title 45, Code of Federal Regula- 22 tions, or any successor regulation, to obtain the con- 23 sent of the individual to use or disclose a record re- 24 VerDate Sep 11 2014 21:31 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2062.IH H2062 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 2062 IH ferred to in such section 543(a) to carry out treat- 1 ment, payment, or health care operation. 2 (l) SENSE OF CONGRESS.—It is the sense of the Con- 3 gress that— 4 (1) patients have the right to request a restric- 5 tion on the use or disclosure of a record referred to 6 in section 543(a) of the Public Health Service Act 7 (42 U.S.C. 290dd–2(a)) for treatment, payment, or 8 health care operations; and 9 (2) covered entities should make every reason- 10 able effort to the extent feasible to comply with a 11 patient’s request for a restriction regarding such use 12 or disclosure. 13 Æ VerDate Sep 11 2014 21:31 Apr 15, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\H2062.IH H2062 pamtmann on DSKBFK8HB2PROD with BILLS