2003 Montana Legislature

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HOUSE BILL NO. 647

INTRODUCED BY B. THOMAS

 

AN ACT GENERALLY REVISING THE LAWS GOVERNING HEALTH CARE INFORMATION TO CONFORM TO FEDERAL HEALTH CARE PRIVACY LEGISLATION, INCLUDING THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996; IMPOSING A DUTY ON A PERSON AUTHORIZED TO ACT AS A HEALTH CARE REPRESENTATIVE FOR AN INDIVIDUAL WITH RESPECT TO THE INDIVIDUAL'S HEALTH CARE INFORMATION TO ACT IN GOOD FAITH TO REPRESENT THE BEST INTERESTS OF THE INDIVIDUAL; AMENDING SECTIONS 41-1-401, 41-1-402, 41-1-403, 50-5-106, 50-16-201, 50-16-502, 50-16-504, 50-16-535, 50-16-1009, 50-19-402, 50-19-405, 50-19-406, AND 53-24-306, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

 

     Section 1.  Section 41-1-401, MCA, is amended to read:

     "41-1-401.  Health professional defined Definitions. As used in this part, the following definitions apply:

     (1) "Emancipated minor" means an individual under 18 years of age who:

     (a) is or has been married;

     (b) is separated from the individual's parent, parents, or legal guardian and is self-supporting; or

     (c) has been granted the right to consent to medical treatment pursuant to an order of limited emancipation granted by a court pursuant to 41-3-438.

     (2) "Health care facility" has the meaning provided in 50-5-101.

     (3) "Health professional" as used in this part shall include includes only those persons licensed in Montana as physicians, psychiatrists, psychologists, advanced practice registered nurses, or dentists, physician assistants-certified, professional counselors, or social workers."

 

     Section 2.  Section 41-1-402, MCA, is amended to read:

     "41-1-402.  Validity of consent of minor for health services. (1) This part does not limit the right of an emancipated minor to consent to the provision of health services or to control access to protected health care information under applicable law.

     (1)(2) The consent to the provision of medical or surgical care or health services and to control access to protected health care information by a hospital or public clinic health care facility or to the performance of medical or surgical care or health services by a physician licensed to practice medicine in this state a health professional may be given by a a minor who professes or is found to meet any of the following descriptions:

     (a)  a minor who is or was ever professes to be or to have been married or has to have had a child or graduated from high school or is emancipated;

     (b)  a minor who has been professes to be or is found to be separated from the minor's parent, parents, or legal guardian for whatever reason and is providing self-support by whatever means;

     (c)  a minor who professes or is found to be pregnant or afflicted with any reportable communicable disease, including a sexually transmitted disease, or drug and substance abuse, including alcohol. This self-consent applies only to the prevention, diagnosis, and treatment of those conditions specified in this subsection. The self-consent in the case of pregnancy, a sexually transmitted disease, or drug and substance abuse also obliges the health professional, if the health professional accepts the responsibility for treatment, to counsel the minor or to refer the minor to another health professional for counseling.

     (d)  a minor who needs emergency care, including transfusions, without which the minor's health will be jeopardized. If emergency care is rendered, the parent, parents, or legal guardian must be informed as soon as practical except under the circumstances mentioned in this subsection (1) (2).

     (2)(3)  A minor who has had a child may give effective consent to health service for the child.

     (3)(4)  A minor may give consent for health care for the minor's spouse if the spouse is unable to give consent by reason of physical or mental incapacity."

 

     Section 3.  Section 41-1-403, MCA, is amended to read:

     "41-1-403.  Release of information by physician health professional. (1) A treating physician or other Except with regard to an emancipated minor, a health professional may, but shall not be obligated to, inform the spouse, parent, custodian, or guardian of any such a minor in the circumstances as enumerated in 41-1-402 of any treatment given or needed when:

     (a)  in the judgment of the health professional, severe complications are present or anticipated;

     (b)  major surgery or prolonged hospitalization is needed;

     (c)  failure to inform the parent, parents, or legal guardian would seriously jeopardize the safety and health of the minor patient, younger siblings, or the public;

     (d)  to inform informing them would benefit the minor's physical and mental health and family harmony; or

     (e)  the hospital health professional or health care facility providing treatment desires a third-party commitment to pay for services rendered or to be rendered.

     (2)  Notification or disclosure to the spouse, parent, parents, or legal guardian by the health professional shall may not constitute libel or slander, a violation of the right of privacy, a violation of the rule of privileged communication, or any other legal basis of liability. When If the minor is found not to be pregnant or not afflicted with a sexually transmitted disease or not suffering from drug abuse or substance abuse, including alcohol, then no information with respect to any appointment, examination, test, or other health procedure shall may not be given to the parent, parents, or legal guardian, if they have not been already been informed as permitted in this part, without the consent of the minor."

 

     Section 4.  Section 50-5-106, MCA, is amended to read:

     "50-5-106.  Records and reports required of health care facilities -- confidentiality. Health care facilities shall keep records and make reports as required by the department. Before February 1 of each year, every licensed health care facility shall submit an annual report for the preceding calendar year to the department. The report must be on forms and contain information specified by the department. Information received by the department through reports, inspections, or provisions of parts 1 and 2 may not be disclosed in a way which would identify patients. A department employee who discloses information that would identify a patient must be dismissed from employment and subject to the provisions of 45-7-401 and 50-16-551, if applicable, unless the disclosure was authorized in writing by the patient, the patient's guardian, or the patient's agent in accordance with Title 50, chapter 16, part 5 as permitted by law. Information and statistical reports from health care facilities which are considered necessary by the department for health planning and resource development activities must be made available to the public and the health planning agencies within the state. Applications by health care facilities for certificates of need and any information relevant to review of these applications, pursuant to part 3, must be accessible to the public."

 

     Section 5.  Section 50-16-201, MCA, is amended to read:

     "50-16-201.  Definitions. As used in this part, the following definitions apply:

     (1)  (a) "Data" means written reports, notes, or records or oral reports or proceedings created by or at the request of a utilization review, peer review, medical ethics review, quality assurance, or quality improvement committee of a health care facility that are used exclusively in connection with quality assessment or improvement activities, including the professional training, supervision, or discipline of a medical practitioner by a health care facility.

     (b)  The term does not include:

     (i) incident reports or occurrence reports; or

     (ii) health care information that is used in whole or in part to make decisions about an individual who is the subject of the health care information.

     (2)  "Health care facility" has the meaning provided in 50-5-101.

     (3) (a) "Incident reports" or "occurrence reports" means a written business record of a health care facility, created in response to an untoward event, such as a patient injury, adverse outcome, or interventional error, in order to ensure a prompt evaluation of the event.

     (b) The terms do not include any subsequent evaluation of the event in response to an incident report or occurrence report by a utilization review, peer review, medical ethics review, quality assurance, or quality improvement committee.

     (4)  "Medical practitioner" means an individual licensed by the state of Montana to engage in the practice of medicine, osteopathy, podiatry, optometry, or a nursing specialty described in 37-8-202(5) or licensed as a physician assistant-certified pursuant to 37-20-203."

 

     Section 6.  Section 50-16-502, MCA, is amended to read:

     "50-16-502.  Legislative findings. The legislature finds that:

     (1)  health care information is personal and sensitive information that if improperly used or released may do significant harm to a patient's interests in privacy and health care or other interests;

     (2)  patients need access to their own health care information as a matter of fairness, to enable them to make informed decisions about their health care and to correct inaccurate or incomplete information about themselves;

     (3)  in order to retain the full trust and confidence of patients, health care providers have an interest in assuring ensuring that health care information is not improperly disclosed and in having clear and certain rules for the disclosure of health care information;

     (4)  persons other than health care providers obtain, use, and disclose health record information in many different contexts and for many different purposes. It is the public policy of this state that a patient's interest in the proper use and disclosure of his the patient's health care information survives even when the information is held by persons other than health care providers.

     (5)  the movement of patients and their health care information across state lines, access to and exchange of health care information from automated data banks, and the emergence of multistate health care providers creates a compelling need for uniform law, rules, and procedures governing the use and disclosure of health care information.

     (6) the enactment of federal health care privacy legislation and the adoption of rules pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d, et seq., require health care providers subject to that legislation to provide significant privacy protection for health care information and the provisions of this part are no longer necessary for those health care providers; and

     (7) because the provisions of HIPAA do not apply to some health care providers, it is important that these health care providers continue to adhere to this part."

 

     Section 7.  Section 50-16-504, MCA, is amended to read:

     "50-16-504.  Definitions. As used in this part, unless the context indicates otherwise, the following definitions apply:

     (1)  "Audit" means an assessment, evaluation, determination, or investigation of a health care provider by a person not employed by or affiliated with the provider, to determine compliance with:

     (a)  statutory, regulatory, fiscal, medical, or scientific standards;

     (b)  a private or public program of payments to a health care provider; or

     (c)  requirements for licensing, accreditation, or certification.

     (2)  "Directory information" means information disclosing the presence and the general health condition of a patient who is an inpatient in a health care facility or who is receiving emergency health care in a health care facility.

     (3)  "General health condition" means the patient's health status described in terms of critical, poor, fair, good, excellent, or terms denoting similar conditions.

     (4) "Health care" means any care, service, or procedure provided by a health care provider, including medical or psychological diagnosis, treatment, evaluation, advice, or other services that affect the structure or any function of the human body.

     (5) "Health care facility" means a hospital, clinic, nursing home, laboratory, office, or similar place where a health care provider provides health care to patients.

     (6)  "Health care information" means any information, whether oral or recorded in any form or medium, that identifies or can readily be associated with the identity of a patient and relates to the patient's health care. The term includes any record of disclosures of health care information.

     (7) "Health care provider" means a person who is licensed, certified, or otherwise authorized by the laws of this state to provide health care in the ordinary course of business or practice of a profession. The term does not include a person who provides health care solely through the sale or dispensing of drugs or medical devices.

     (8)  "Institutional review board" means a board, committee, or other group formally designated by an institution or authorized under federal or state law to review, approve the initiation of, or conduct periodic review of research programs to assure the protection of the rights and welfare of human research subjects.

     (9)  "Maintain", as related to health care information, means to hold, possess, preserve, retain, store, or control that information.

     (10) "Patient" means an individual who receives or has received health care. The term includes a deceased individual who has received health care.

     (11) "Peer review" means an evaluation of health care services by a committee of a state or local professional organization of health care providers or a committee of medical staff of a licensed health care facility. The committee must be:

     (a)  authorized by law to evaluate health care services; and

     (b)  governed by written bylaws approved by the governing board of the health care facility or an organization of health care providers.

     (12) "Person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity.

     (13) "Reasonable fee" means the charge, as provided for in 50-16-540, for duplicating, searching for, or handling recorded health care information."

 

     Section 8.  Limit on applicability. The provisions of this part apply only to a health care provider that is not subject to the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d, et seq., and administrative rules adopted in connection with HIPAA.

 

     Section 9.  Section 50-16-535, MCA, is amended to read:

     "50-16-535.  When health care information available by compulsory process. (1) Health care information may not be disclosed by a health care provider pursuant to compulsory legal process or discovery in any judicial, legislative, or administrative proceeding unless:

     (a)  the patient has consented authorized in writing to the release of the health care information in response to compulsory process or a discovery request;

     (b)  the patient has waived the right to claim confidentiality for the health care information sought;

     (c)  the patient is a party to the proceeding and has placed his the patient's physical or mental condition in issue;

     (d)  the patient's physical or mental condition is relevant to the execution or witnessing of a will or other document;

     (e)  the physical or mental condition of a deceased patient is placed in issue by any person claiming or defending through or as a beneficiary of the patient;

     (f)  a patient's health care information is to be used in the patient's commitment proceeding;

     (g)  the health care information is for use in any law enforcement proceeding or investigation in which a health care provider is the subject or a party, except that health care information so obtained may not be used in any proceeding against the patient unless the matter relates to payment for his the patient's health care or unless authorized under subsection (1)(i);

     (h)  the health care information is relevant to a proceeding brought under 50-16-551 through 50-16-553;

     (i)  a court has determined that particular health care information is subject to compulsory legal process or discovery because the party seeking the information has demonstrated that there is a compelling state interest that outweighs the patient's privacy interest; or

     (j)  the health care information is requested pursuant to an investigative subpoena issued under 46-4-301 or a similar federal law.

     (2)  Nothing in this part authorizes the disclosure of health care information by compulsory legal process or discovery in any judicial, legislative, or administrative proceeding where disclosure is otherwise prohibited by law."

 

     Section 10.  Section 50-16-1009, MCA, is amended to read:

     "50-16-1009.  Confidentiality of records -- notification of contacts -- penalty for unlawful disclosure. (1) Except as provided in subsection (2), a A person may not disclose or be compelled to disclose the identity of a subject of an HIV-related test or the results of a test in a manner that permits identification of the subject of the test, except to the extent allowed under the Uniform Health Care Information Act, Title 50, chapter 16, part 5, the Government Health Care Information Act, Title 50, chapter 16, part 6, or applicable federal law.

     (2)  A local board, local health officer, or the department may disclose the identity of the subject of an HIV-related test or the test results only to the extent allowed by the Government Health Care Information Act, Title 50, chapter 16, part 6, unless it is in possession of that information because a health care provider employed by it provided health care to the subject, in which case the Uniform Health Care Information Act governs the release of that information.

     (3)(2)  If a health care provider informs the subject of an HIV-related test that the results are positive, the provider shall encourage the subject to notify persons who are potential contacts. If the subject is unable or unwilling to notify all contacts, the health care provider may ask the subject to disclose voluntarily the identities of the contacts and to authorize notification of those contacts by a health care provider. A notification may state only that the contact may have been exposed to HIV and may not include the time or place of possible exposure or the identity of the subject of the test.

     (4)(3)  A person who discloses or compels another to disclose confidential health care information in violation of this section is guilty of a misdemeanor punishable by a fine of $1,000 or imprisonment for 1 year, or both."

 

     Section 11.  Section 50-19-402, MCA, is amended to read:

     "50-19-402.  Statement of policy -- access to information. (1) The prevention of fetal, infant, and child deaths is both the policy of the state of Montana and a community responsibility. Many community professionals have expertise that can be used to promote the health, safety, and welfare of fetuses, infants, and children. The use of these professionals in reviewing fetal, infant, and child deaths can lead to a greater understanding of the causes of death and the methods of preventing deaths. It is the intent of the legislature to encourage local communities to establish voluntary multidisciplinary fetal, infant, and child mortality review teams to study the incidence and causes of fetal, infant, and child deaths.

     (2)  A health care provider may disclose information about a patient without the patient's authorization or without the authorization of the representative of a patient who is deceased upon request of a local fetal, infant, and child mortality review team. The review team may request and may receive information from a county attorney as provided in 44-5-303(4) and from a health care provider as provided permitted in 50-16-525 after the review team has considered whether the disclosure of the information by the provider satisfies the criteria provided in 50-16-529(6) Title 50, chapter 16, part 5, or applicable federal law. The review team shall maintain the confidentiality of the information received.

     (3)  The local fetal, infant, and child mortality review team may only:

     (a)  compile statistics of fetal, infant, and child mortality;

     (b)  analyze the preventable causes of fetal, infant, and child deaths, including child abuse and neglect; and

     (c)  recommend measures to prevent future fetal, infant, and child deaths."

 

     Section 12.  Section 50-19-405, MCA, is amended to read:

     "50-19-405.  Unauthorized disclosure by review team member -- civil penalty. A person aggrieved by the use of information obtained pursuant to 50-19-402(2) for a purpose not authorized by 50-19-402(3) or by a disclosure of that information in violation of 50-19-402(2) by a member of a local fetal, infant, and child mortality review team may bring a civil action in the district court of the county of the person's residence for damages, costs, and fees as provided in 50-16-553(6) through (8) or [section 23]."

 

     Section 13.  Section 50-19-406, MCA, is amended to read:

     "50-19-406.  Unauthorized disclosure by review team member -- misdemeanor. A member of a local fetal, infant, and child mortality review team who knowingly uses information obtained pursuant to 50-19-402(2) for a purpose not authorized by 50-19-402(3) or who discloses that information in violation of 50-19-402(2) is guilty of a misdemeanor and upon conviction is punishable as provided in 50-16-551 46-18-212."

 

     Section 14.  Section 53-24-306, MCA, is amended to read:

     "53-24-306.  Records of chemically dependent persons, intoxicated persons, and family members. (1) The registration and other records of treatment facilities shall remain confidential and are privileged to the patient.

     (2)  Notwithstanding subsection (1), the department may make available in accordance with Title 50, chapter 16, part 5, or other applicable law information from patients' records for purposes of research into the causes and treatment of chemical dependency. Information under this subsection shall may not be published in a way that discloses patients' names or other identifying information."

 

     Section 15.  Legislative findings. The legislature finds that:

     (1)  health care information is personal and sensitive information that if improperly used or released may do significant harm to a patient's interests in privacy and health care or other interests;

     (2) the enactment of federal health care privacy legislation and the adoption of rules pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d, et seq., provide significant privacy protection for health care information with respect to health care providers subject to HIPAA;

     (3) for health care providers subject to the health care information privacy protections of HIPAA, the applicability of the provisions of Title 50, chapter 16, part 5, relating to health care privacy is unnecessary and may result in significant practical difficulties;

     (4) it is in the best interest of the citizens of Montana to have certain requirements, with respect to the use or release of health care information by health care providers, that are more restrictive than or additional to the health care privacy protections of HIPAA.

 

     Section 16.  Applicability. [Sections 15 through 24] apply only to health care providers subject to the health care information privacy protections of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d, et seq., and administrative rules adopted in connection with HIPAA.

 

     Section 17.  Definitions. As used in [sections 15 through 24], unless the context indicates otherwise, the following definitions apply:

     (1)  "Health care" means care, services, or supplies provided by a health care provider that are related to the health of an individual. Health care includes but is not limited to the following:

     (a) preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care and counseling, service, assessment, or procedure with respect to an individual's physical or mental condition; or

     (b) the sale or dispensing of any drug, device, equipment, or other item in accordance with a prescription.

     (2)  "Health care facility" means a hospital, clinic, nursing home, laboratory, office, or similar place where a health care provider provides health care to patients.

     (3)  "Health care information" means any information, whether oral or recorded in any form or medium, that:

     (a) is created or received by a health care provider;

     (b) relates to the past, present, or future physical or mental health or condition of an individual or to the past, present, or future payment for the provision of health care to the individual; and

     (c) identifies or with respect to which there is a reasonable basis to believe the information can be used to identify the individual.

     (4)  "Health care provider" means a person who is licensed, certified, or otherwise authorized by the laws of this state to provide health care in the ordinary course of business or practice of a profession.

     (5) "Patient" means an individual who receives or has received health care. The term includes a deceased individual who has received health care.

     (6) "Person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity.

     (7) "Reasonable fee" means the charge, as provided for in [section 22], for duplicating, searching for, or handling recorded health care information.

 

     Section 18.  Representative of deceased patient's estate. A personal representative of a deceased patient's estate may exercise all of the deceased patient's rights under this part. If there is no personal representative or upon discharge of the personal representative, a deceased patient's rights under this part may be exercised by the surviving spouse, a parent, an adult child, an adult sibling, or any other person who is authorized by law to act for the deceased person.

 

     Section 19.  Disclosure of information for workers' compensation and occupational disease claims and law enforcement purposes. (1) To the extent provided in 39-71-604 and 50-16-527, a signed claim for workers' compensation or occupational disease benefits authorizes disclosure to the workers' compensation insurer, as defined in 39-71-116, by the health care provider.

     (2) A health care provider may disclose health care information about an individual for law enforcement purposes if the disclosure is to:

     (a) federal, state, or local law enforcement authorities to the extent required by law; or

     (b) a law enforcement officer about the general physical condition of a patient being treated in a health care facility if the patient was injured by the possible criminal act of another.

 

     Section 20.  When health care information available by compulsory process. (1) Health care information may not be disclosed by a health care provider pursuant to compulsory legal process or discovery in any judicial, legislative, or administrative proceeding unless:

     (a)  the patient has authorized in writing the release of the health care information in response to compulsory process or a discovery request;

     (b)  the patient has waived the right to claim confidentiality for the health care information sought;

     (c)  the patient is a party to the proceeding and has placed the patient's physical or mental condition in issue;

     (d)  the patient's physical or mental condition is relevant to the execution or witnessing of a will or other document;

     (e)  the physical or mental condition of a deceased patient is placed in issue by any person claiming or defending through or as a beneficiary of the patient;

     (f)  a patient's health care information is to be used in the patient's commitment proceeding;

     (g)  the health care information is for use in any law enforcement proceeding or investigation in which a health care provider is the subject or a party, except that health care information so obtained may not be used in any proceeding against the patient unless the matter relates to payment for the patient's health care or unless authorized under subsection (1)(i);

     (h)  a court has determined that particular health care information is subject to compulsory legal process or discovery because the party seeking the information has demonstrated that there is a compelling state interest that outweighs the patient's privacy interest; or

     (i)  the health care information is requested pursuant to an investigative subpoena issued under 46-4-301 or similar federal law.

     (2)  [Sections 15 through 24] do not authorize the disclosure of health care information by compulsory legal process or discovery in any judicial, legislative, or administrative proceeding where disclosure is otherwise prohibited by law.

 

     Section 21.  Method of compulsory process. (1) Unless the court for good cause shown determines that the notification should be waived or modified, if health care information is sought under [section 20(1)(b), (1)(d), or (1)(e)] or in a civil proceeding or investigation under [section 20(1)(h)], the person seeking compulsory process or discovery shall mail a notice by first-class mail to the patient or the patient's attorney of record of the compulsory process or discovery request at least 10 days before presenting the certificate required under subsection (2) of this section to the health care provider.

     (2)  Service of compulsory process or discovery requests upon a health care provider must be accompanied by a written certification, signed by the person seeking to obtain health care information or by the person's authorized representative, identifying at least one subsection of [section 20] under which compulsory process or discovery is being sought. The certification must also state, in the case of information sought under [section 20(1)(b), (1)(d), or (1)(e)] or in a civil proceeding under [section 20(1)(h)], that the requirements of subsection (1) of this section for notice have been met. A person may sign the certification only if the person reasonably believes that the subsection of [section 20] identified in the certification provides an appropriate basis for the use of compulsory process or discovery. Unless otherwise ordered by the court, the health care provider shall maintain a copy of the process and the written certification as a permanent part of the patient's health care information.

     (3)  In response to service of compulsory process or discovery requests, when authorized by law, a health care provider may deny access to the requested health care information. If access to requested health care information is denied by the health care provider, the health care provider shall submit to the court by affidavit or other reasonable means an explanation of why the health care provider believes that the information should be protected from disclosure.

     (4)  When access to health care information is denied, the court may order disclosure of health care information, with or without restrictions as to its use, as the court considers necessary. In deciding whether to order disclosure, the court shall consider the explanation submitted by the health care provider and any arguments presented by interested parties.

     (5)  A health care provider required to disclose health care information pursuant to compulsory process may charge a reasonable fee, not to exceed the fee provided for in [section 22], and may deny examination or copying of the information until the fee is paid.

     (6)  Production of health care information under [section 20] and this section does not in itself constitute a waiver of any privilege, objection, or defense existing under other law or rule of evidence or procedure.

 

     Section 22.  Reasonable fees. Unless prohibited by federal law, a reasonable fee for providing copies of health care information may not exceed 50 cents for each page for a paper copy or photocopy. A reasonable fee may include an administrative fee that may not exceed $15 for searching and handling recorded health care information.

 

     Section 23.  Civil remedies. (1) A person aggrieved by a violation of [sections 15 through 24] may maintain an action for relief as provided in this section.

     (2)  The court may order the health care provider or other person to comply with [sections 15 through 24] and may order any other appropriate relief.

     (3)  A disciplinary or punitive action may not be taken against a health care provider or the provider's employee or agent who brings evidence of a violation of [sections 15 through 24] to the attention of the patient or an appropriate authority.

     (4)  If the court determines that there is a violation of [sections 15 through 24], the aggrieved person is entitled to recover damages for pecuniary losses sustained as a result of the violation and, in addition, if the violation results from willful or grossly negligent conduct, the aggrieved person may recover not in excess of $5,000, exclusive of any pecuniary loss.

     (5)  If a plaintiff prevails, the court may assess reasonable attorney fees and all other expenses reasonably incurred in the litigation.

     (6)  An action under [sections 15 through 24] is barred unless the action is commenced within 3 years after the cause of action accrues.

     (7) A health care provider who relies in good faith upon certification pursuant to [section 21] is considered to have received reasonable assurances and is not liable for disclosures made in reliance on that certification.

 

     Section 24.  Good faith. A person authorized to act as a health care representative for an individual with respect to the individual's health care information shall act in good faith to represent the best interests of the individual.

 

     Section 25.  Codification instruction. (1) [Section 8] is intended to be codified as an integral part of Title 50, chapter 16, part 5, and the provisions of Title 50, chapter 16, part 5, apply to [section 8].

     (2) [Sections 15 through 24] are intended to be codified as an integral part of Title 50, chapter 16, and the provisions of Title 50, chapter 16, apply to [sections 15 through 24].

 

     Section 26.  Effective date. [This act] is effective on passage and approval.

- END -

 


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