[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3374 Introduced in Senate (IS)]

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116th CONGRESS
  2d Session
                                S. 3374

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 3, 2020

Mr. Manchin (for himself, Mrs. Capito, Mr. Whitehouse, Mr. Cramer, Mrs. 
Feinstein, Mr. Jones, Mr. Murphy, Mr. Tillis, Ms. Collins, Ms. Harris, 
 Mr. Cassidy, Ms. Klobuchar, Mr. Merkley, and Mr. King) 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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ```Protecting Jessica Grubb's Legacy 
Act'''.

SEC. 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 (1) of section 543(b) of the Public Health Service Act (42 
U.S.C. 290dd-2(b)) is amended to read as follows:
            ``(1) Consent.--The following shall apply with respect to 
        the contents of any record referred to in subsection (a):
                    ``(A) Such contents may be used or disclosed in 
                accordance with the prior written consent of the 
                patient with respect to whom such record is maintained.
                    ``(B) Once prior written consent of the patient has 
                been obtained, such contents may be used or disclosed 
                by a covered entity, business associate, or a program 
                subject to this section for purposes of treatment, 
                payment, and health care operations as permitted by the 
                HIPAA regulations. Any information so disclosed may 
                then be redisclosed in accordance with the HIPAA 
                regulations. Section 13405(c) of the Health Information 
                Technology and Clinical Health Act (42 U.S.C. 17935(c)) 
                shall apply to all disclosures pursuant to subsection 
                (b)(1) of this section.
                    ``(C) It shall be permissible for a patient's prior 
                written consent to be given once for all such future 
                uses or disclosures for purposes of treatment, payment, 
                and health care operations, until such time as the 
                patient revokes such consent in writing.
                    ``(D) Section 13405(a) of the Health Information 
                Technology and Clinical Health Act (42 U.S.C. 17935(a)) 
                shall apply to all disclosures pursuant to subsection 
                (b)(1) of 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)), is amended by adding at the 
end the following:
                    ``(D) 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.--Section 543 of the Public Health Service Act (42 
U.S.C. 290dd-2) is amended by adding at the end the following:
    ``(k) Definitions.--For purposes of this section:
            ``(1) Breach.--The term `breach' has the meaning given such 
        term for purposes of the HIPAA regulations.
            ``(2) Business associate.--The term `business associate' 
        has the meaning given such term for purposes of the HIPAA 
        regulations.
            ``(3) Covered entity.--The term `covered entity' has the 
        meaning given such term for purposes of the HIPAA regulations.
            ``(4) Health care operations.--The term `health care 
        operations' has the meaning given such term for purposes of the 
        HIPAA regulations.
            ``(5) HIPPA regulations.--The term `HIPAA regulations' has 
        the meaning given such term for purposes of parts 160 and 164 
        of title 45, Code of Federal Regulations.
            ``(6) Payment.--The term `payment' has the meaning given 
        such term for purposes of the HIPAA regulations.
            ``(7) Public health authority.--The term `public health 
        authority' has the meaning given such term for purposes of the 
        HIPAA regulations.
            ``(8) Treatment.--The term `treatment' has the meaning 
        given such term for purposes of the HIPAA regulations.
            ``(9) Unsecured protected health information.--The term 
        `unprotected health information' has the meaning given such 
        term for purposes of the HIPAA regulations.''.
    (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(c)) 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), or testimony relaying the information 
contained therein, may not be disclosed or used in any civil, criminal, 
administrative, or legislative proceedings conducted by any Federal, 
State, or local authority, including with respect to the following 
activities:
            ``(1) Such record or testimony shall not be entered into 
        evidence in any criminal prosecution or civil action before a 
        Federal or State court.
            ``(2) Such record or testimony shall not form part of the 
        record for decision or otherwise be taken into account in any 
        proceeding before a Federal, State, or local agency.
            ``(3) Such record or testimony shall not be used by any 
        Federal, State, or local agency for a law enforcement purpose 
        or to conduct any law enforcement investigation.
            ``(4) Such record or testimony shall not 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 inserting after subsection (h) 
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 an inadvertent or intentional disclosure of 
        records, or information contained in records, described in 
        subsection (a) in--
                    ``(A) admission, access to, or treatment for health 
                care;
                    ``(B) hiring, firing, or terms of employment, or 
                receipt of worker's compensation;
                    ``(C) the sale, rental, or continued rental of 
                housing;
                    ``(D) access to Federal, State, or local courts; or
                    ``(E) access to, approval of, or maintenance of 
                social services and benefits provided or funded by 
                Federal, State, or local governments.
            ``(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 an 
        intentional or inadvertent disclosure of such records or 
        information contained in records described in subsection (a) 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 inserting after subsection (i) the following:
    ``(j) Notification in Case of Breach.--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.''.
    (i) 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 legal, clinical, privacy, and civil rights experts, 
        shall update section 164.520 of title 45, Code of Federal 
        Regulations, so that covered entities and entities creating or 
        maintaining the records described in subsection (a) 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 
                subsection (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 
                subsection (b)(2) of such section 164.520).
    (j) 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.
    (k) Sense of Congress.--It is the sense of the Congress that--
            (1) 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 is encouraged to access the applicable State-
        based prescription drug monitoring program when clinically 
        appropriate;
            (2) 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;
            (3) 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;
            (4) for purposes of applying section 164.501 of title 45, 
        Code of Federal Regulations, the definition of health care 
        operations shall have the meaning given such term in such 
        section, except that clause (v) of paragraph (6) shall not 
        apply; and
            (5) programs creating records referred to in section 543(a) 
        of the Public Health Service Act (42 U.S.C. 290dd-2(a)) should 
        receive positive incentives for discussing with their patients 
        the benefits to consenting to share such records.
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