New Jersey-2024-S3493-Introduced

An Act concerning disclosure of reproductive health care services and supplementing Title 45 of the Revised Statutes and Chapter 30 of Title 17B of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. A health care provider or business associate of a covered entity shall be prohibited from intentionally sharing, selling, using for marketing, or otherwise disclosing any medical information regarding reproductive health care services for any purpose not necessary to provide those reproductive health care services to a patient of the health care provider, except as provided in subsection c. of this section, without the affirmative written consent of the patient or the patient's conservator, guardian, or other authorized legal representative.

b. A health care provider or business associate of a covered entity shall inform a patient or a patient's conservator, guardian, or other authorized legal representative of the right to withhold such affirmative written consent at or before the time reproductive health care services are rendered or at such time as the patient discloses any information relating to reproductive health care services that have been previously rendered.

c. A health care provider or business associate of a covered entity shall be exempt from the provisions of subsection a. regarding affirmative written consent if the disclosure of medical information regarding reproductive health care services is required by any of the following:

(1) to medical personnel to the extent necessary to meet a bona fide medical emergency;

(2) to the extent that the health care provider is a covered entity and the disclosure is made to a business associate under a valid business associate agreement;

(3) as required to comply with the laws of this State, federal law, or the Rules of Court;

(4) pursuant to a court order issued by a court of competent jurisdiction in this State upon a showing of good cause;

(5) by a health care provider against whom a claim has been made, or there is a reasonable belief will be made, in an action or proceeding, to the health care provider's attorney or professional liability insurer or insurer's agent for use in the defense of the action or proceeding;

(6) to the Commissioner of Health, Human Services, or Banking and Insurance, or any professional licensing board operating under the authority of the Division of Consumer Affairs in the Department of Law and Public Safety for records of a patient of a health care provider in connection with an investigation of a complaint, if the records are related to the complaint;

(7) to a federal or State agency charged with investigating known or, in good faith, suspected child abuse, abuse of an elderly individual, abuse of an individual who is incapacitated, or abuse of an individual with a physical or mental disability, if such disclosure is requested in connection with an investigation of abuse that would constitute a crime under the laws of this State and such records are related to such investigation; and

(8) pursuant to regulations promulgated by the Commissioner of Health.

d. Nothing contained herein shall be construed to limit, diminish, or abrogate the rights of a person under HIPAA or the obligations of a health care provider under HIPAA.

e. (1) If a court of competent jurisdiction finds that a health care provider has violated this section, the court may award damages, computed at a rate of $1,000 per violation, reasonable attorney's fees, and the costs incurred in maintaining that civil action.

(2) The private right of action authorized pursuant to this section does not supplant any other claim or cause of action available to a person under common law or by statute. The provisions of this subsection apply in addition to any other common law and statutory remedies.

f. As used in this section:

"Affirmative written consent" means a freely given, specific agreement, collected on a standalone form, which form clearly states to the patient how records containing medical information could be used and to whom the contents of the records could be disclosed , and allows the patient to refuse consent for specific disclosures.

"Business associate" has the same meaning as in 45 CFR s. 160.103.

"Covered entity" has the same meaning as in 45 CFR s.160.103.

"Health care provider" means an individual or entity which, acting within the scope of its licensure or certification, provides a health care service. Health care provider includes, but is not limited to, a physician and other health care professionals licensed pursuant to Title 45 of the Revised Statutes, and a hospital and other health care facilities licensed pursuant to Title 26 of the Revised Statutes.

"HIPAA" means the federal "Health Insurance Portability and Accountability Act of 1996," Pub.L.104-191, and any regulations promulgated thereunder by the Secretary of the United States Department of Health and Human Services.

"Medical information" means any information that includes or contains any element that is sufficient to allow identification of the individual, in electronic or physical form, in possession of or derived from a health care provider regarding a patient's medical history, mental or physical condition, or treatment. "Medical information" shall include information that is acquired using in-person or telephone communication, submitted documentation, a mobile application, an Internet website, or a wearable device.

"Reproductive health care services" means all medical, surgical, counseling, or referral services relating to the human reproductive system including, but not limited to, services relating to pregnancy, contraception, or termination of a pregnancy.

2. a. A carrier shall be prohibited from intentionally sharing, selling, using for marketing, or otherwise disclosing any medical information regarding reproductive health care services for any purpose not necessary to provide those reproductive health care services to or pay benefits for reproductive health care services for a covered person, except as provided in subsection c. of this section, without the affirmative consent of the covered person or the covered person's conservator, guardian, or other authorized legal representative.

b. A carrier shall inform a covered person or a covered person's conservator, guardian, or other authorized legal representative of the right to withhold such affirmative written consent at or before the time reproductive health care services are rendered or at such time as the covered person discloses any information relating to reproductive health care services that have been previously rendered.

c. A carrier shall be exempt from the provisions of subsection a. regarding affirmative written consent if the disclosure of medical information regarding reproductive health care services is made

(1) as required to comply with the laws of this State, federal law, or the Rules of Court;

(2) pursuant to a court order issued by a court of competent jurisdiction in this State upon a showing of good cause;

(3) to the extent that the carrier is a covered entity and the disclosure is made to a business associate under a valid business associate agreement;

(4) by a carrier against whom a claim has been made, or there is a reasonable belief will be made, in an action or proceeding, to the carrier's attorney or professional liability insurer or insurer's agent for use in the defense of the action or proceeding;

(5) to the Commissioner of Health, Human Services, or Banking and Insurance, or any professional licensing board operating under the authority of the Division of Consumer Affairs in the Department of Law and Public Safety for records of a covered person in connection with an investigation of a complaint, if the records are related to the complaint;

(6) to a federal or State agency charged with investigating known or, in good faith, suspected child abuse, abuse of an elderly individual, abuse of an individual who is incapacitated, or abuse of an individual with a physical or mental disability, if such disclosure is requested in connection with an investigation of abuse that would constitute a crime under the laws of this State and such records are related to such investigation; and

(7) pursuant to regulations promulgated by the Commissioner of Banking and Insurance.

d. Nothing contained herein shall be construed to limit, diminish, or abrogate the rights of a person under HIPAA or the obligations of a carrier under HIPAA.

e. (1) If a court of competent jurisdiction finds that a carrier has violated this section, the court may award damages, computed at a rate of $1,000 per violation, reasonable attorney's fees, and the costs incurred in maintaining that civil action.

f. As used in this section:

"Business associate" has the same meaning as in 45 CFR s. 160.103.

"Covered entity" has the same meaning as in 45 CFR s.160.103.

"Carrier" means an insurance company, health service corporation, hospital service corporation, medical service corporation, or health maintenance organization authorized to issue health benefits plans in this State. Carrier includes any entity that is contracted with a carrier, such as a pharmacy benefits manager or a medical group.

"Covered person" means a person on whose behalf a carrier offering a health benefits plan is obligated to pay benefits or provide services pursuant to the health benefits plan.

3. The Commissioners of Health and Banking and Insurance, pursuant to the "Administrative Procedures Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to effectuate the purposes of this act.

4. This act shall take effect on the 180th day following enactment, except that the Commissioner of Human Services and the Commissioner of Banking and Insurance may take such anticipatory administrative action in advance as shall be necessary for the implementation of the act.

STATEMENT

This bill requires health care providers, business associates of a covered entity, and carriers to receive affirmative written consent in order to disclose a patient's or covered person's medical information regarding reproductive health care services, with limited exceptions, unless disclosure is necessary to provide those services. Under the bill: "health care provider" means an individual or entity which, acting within the scope of its licensure or certification, provides a health care service; a "business associate of a covered entity" means the same as those terms are defined under federal "Health Insurance Portability and Accountability Act" rules, or a person or entity that performs certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, health plans, health care clearinghouses, and health care providers; "carrier" means an insurance company, health service corporation, hospital service corporation, medical service corporation, or health maintenance organization authorized to issue health benefits plans in this State; and "reproductive health care services" means all medical, surgical, counseling, or referral services relating to the human reproductive system including, but not limited to, services relating to pregnancy, contraception, or termination of a pregnancy.

Specifically, this bill prohibits a health care provider, a business associate of a covered entity, or carrier from intentionally sharing, selling, using for marketing, or otherwise disclosing any personally identifiable medical information regarding reproductive health care services for any purpose not necessary to provide, or pay benefits for, those services, without the affirmative written consent of the patient or the covered person, or an authorized legal representative. Under the bill, "Medical information" includes information that is acquired using in-person or telephone communication, submitted documentation, a mobile application, an Internet website, or a wearable device. Further, "affirmative written consent" means a freely given, specific agreement collected on a standalone form, which clearly states to the patient how records containing medical information could be used and to whom the contents of the records could be disclosed, and allows the patient to refuse consent for specific disclosures.

The bill further mandates that a health care provider, a business associate of a covered entity, or carrier are required to inform a patient or a covered person, or authorized legal representative, of the right to withhold such affirmative written consent at or before the time reproductive health care services are rendered or at such time as the covered person discloses any information relating to reproductive health care services that have been previously rendered.

The bill allows for disclosure without affirmative written consent under certain circumstances. These exceptions include when disclosure is: 1) to medical personnel to the extent necessary to meet a bona fide medical emergency; 2) to the extent that the health care provider or carrier is a covered entity and the disclosure is made to a business associate under a valid business associate agreement; 3) as required to comply with the laws of this State, federal law, or the Rules of Court; 4) pursuant to a court order issued by a court of competent jurisdiction in this State upon a showing of good cause; 5) by a health care provider or carrier against whom a claim has been made, for use in the defense of the action or proceeding; 6) to certain State entities or licensing boards for records of a patient or covered person in connection with an investigation of a complaint, if the records are related to the complaint; 7) to a federal or State agency charged with investigating known or, in good faith, suspected child abuse, abuse of an elderly individual, abuse of an individual who is incapacitated, or abuse of an individual with a physical or mental disability, if such disclosure is requested in connection with an investigation of abuse that would constitute a crime under the laws of this State and such records are related to such investigation; and 8) pursuant to regulations promulgated by the Commissioners of Health and Banking and Insurance.

Under the bill, if a court of competent jurisdiction finds that a health care provider or carrier has violated the provisions of this bill, the court may award damages, computed at a rate of $1,000 per violation, reasonable attorney's fees, and the costs incurred in maintaining that civil action.

Finally, nothing contained in the bill is to be construed to limit, diminish, or abrogate the rights of a person under the federal "Health Insurance Portability and Accountability Act of 1996," Pub.L.104-191 or the obligations of a health care provider or carrier under that law.