Second Regular Session S.B. 1078
PROPOSED
SENATE AMENDMENTS TO S.B. 1078
(Reference to printed bill)
Strike everything after the enacting clause and insert:
"Section 1. Section 12-2292, Arizona Revised Statutes, is amended to read:
12-2292. Confidentiality of medical records and payment records; definition
A. Unless otherwise provided by law, all medical records and payment records, and the information contained in medical records and payment records, are privileged and confidential. A health care provider may only disclose that part or all of a patient's medical records and payment records as authorized by state or federal law or written authorization signed by the patient or the patient's health care decision maker.
B. This article does not limit the effect of any other federal or state law governing the confidentiality of medical records and payment records to the extent that the other federal or state law provides for confidentiality protections that are greater than the protections provided for in this article.
C. For the purposes of this section, "information contained in medical records" INCLUDES any information that is related in any way to an individual's vaccination or vaccination exemption status, including whether an individual has received a vaccination or applied for or has been granted an exemption to vaccination by any government body or employer.
Sec. 2. Section 12-2294, Arizona Revised Statutes, is amended to read:
12-2294. Release of medical records and payment records to third parties; employer requirements; civil action; damages; definition
A. A health care provider shall disclose medical records or payment records, or the information contained in medical records or payment records, without the patient's written authorization as otherwise required by law or when ordered by a court or tribunal of competent jurisdiction.
B. A health care provider may disclose medical records or payment records, or the information contained in medical records or payment records, pursuant to written authorization signed by the patient or the patient's health care decision maker.
C. A health care provider may disclose medical records or payment records or the information contained in medical records or payment records and a clinical laboratory may disclose clinical laboratory results without the written authorization of the patient or the patient's health care decision maker as otherwise authorized by state or federal law, including the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 160 and part 164, subpart E), or as follows:
1. To health care providers who are currently providing health care to the patient for the purpose of diagnosis or treatment of the patient.
2. To health care providers who have previously provided treatment to the patient, to the extent that the records pertain to the provided treatment.
3. To ambulance attendants as defined in section 36-2201 for the purpose of providing care to or transferring the patient whose records are requested.
4. To a private agency that accredits health care providers and with whom the health care provider has an agreement requiring the agency to protect the confidentiality of patient information.
5. To a health profession regulatory board as defined in section 32-3201.
6. To health care providers for the purpose of conducting utilization review, peer review and quality assurance pursuant to section 36-441, 36-445, 36-2402 or 36-2917.
7. To a person or entity that provides services to the patient's health care providers or clinical laboratories and with whom the health care provider or clinical laboratory has an agreement requiring the person or entity to protect the confidentiality of patient information and as required by the health insurance portability and accountability act privacy standards, 45 Code of Federal Regulations part 164, subpart E.
8. To the legal representative of a health care provider in possession of the medical records or payment records for the purpose of securing legal advice.
9. To the patient's third party payor or the payor's contractor.
10. To the industrial commission of Arizona or parties to an industrial commission claim pursuant to title 23, chapter 6.
D. A health care provider may disclose a deceased patient's medical records or payment records or the information contained in medical records or payment records to the patient's health care decision maker at the time of the patient's death. A health care provider also may disclose a deceased patient's medical records or payment records or the information contained in medical records or payment records to the personal representative or administrator of the estate of a deceased patient, or if a personal representative or administrator has not been appointed, to the following persons in the following order of priority, unless the deceased patient during the deceased patient's lifetime or a person in a higher order of priority has notified the health care provider in writing that the deceased patient opposed the release of the medical records or payment records:
1. The deceased patient's spouse, unless the patient and the patient's spouse were legally separated at the time of the patient's death.
2. The acting trustee of a trust created by the deceased patient either alone or with the deceased patient's spouse if the trust was a revocable inter vivos trust during the deceased patient's lifetime and the deceased patient was a beneficiary of the trust during the deceased patient's lifetime.
3. An adult child of the deceased patient.
4. A parent of the deceased patient.
5. An adult brother or sister of the deceased patient.
6. A guardian or conservator of the deceased patient at the time of the patient's death.
E. A person who receives medical records or payment records pursuant to this section shall not disclose those records without the written authorization of the patient or the patient's health care decision maker, unless otherwise authorized by law.
F. An employer may not disclose any information contained within an employee's or prospective employee's medical records to any person, including other employees. This subsection applies to all information that is obtained by the employer in any way during the employee's hiring process or in the course of employment. The presumption prescribed in Section 12-2296 does not apply to an employer who discloses information in violation of This subsection.
G. Subsection F of this section does not apply to an employer who discloses an employee's or prospective employee's medical records for any of the following purposes:
1. To a Supervisor or manager to be informed about an EMPLOYEE'S necessary work and duty restrictions and for making necessary accommodations.
2. To First aid and safety personnel If the employee or prospective employee requires emergency treatment.
3. If requested, To a government official who is investigating an employer's compliance with this subsection.
H. A Person who obtains information that is contained within an employee's or prospective employee's medical records pursuant to subsection G of this section shall keep the information confidential. A state government official who obtains the information under subsection G, paragraph 3 of this section may not disclose the information to any other person, including any other entity in state government, beyond what is strictly necessary to carry out the investigation. In any judicial or administrative proceeding that arises out of an investigation, the court or administrative body shall receive the information in a confidential fashion.
I. A person who substantially prevails against an employer in a civil action that arises out of a violation of subsection F of this section is entitled to recover statutory damages in the amount of $20,000, reasonable attorney fees and costs. To prevail in the civil action, a Plaintiff must demonstrate that the employer violated subsection F of this section and the violation was the result of the employer's negligence. an employee is not required to engage in any administrative process before bringing or maintaining the civil action. This subsection does not and is not intended to abrogate any existing cause of action under federal or state law, including for common-law negligence, or limit the damages recoverable under such causes of action.
J. Notwithstanding any other law, a violation of subsection F of this section is not considered otherwise provided, authorized or required by law by virtue of being required by the terms of an employer's contract with any portion of the government or a government contractor, including the federal government or a federal government contractor, or being authorized or required by any federal law or federal agency rule. It is the public policy of this State that the right to protect the confidentiality of the information contained within patients and employees' medical records is both part of the police power vested in the states and a legitimate and desirable exercise of that power.
K. A person who brings or defends a civil action for a violation of this section has the right to have the case tried to a jury.
L. Notwithstanding any other law, the rights prescribed in subsections F, G, H, I, J and K of this section and all causes of action that arise out of a violation of a right, as well as the right to a jury trial, may not be waived.
F. M. If a health care provider releases a patient's medical records or payment records to a contractor for the purpose of duplicating or disclosing the records on behalf of the health care provider, the contractor shall not disclose any part or all of a patient's medical records or payment records in its custody except as provided in this article. After duplicating or disclosing a patient's medical records or payment records on behalf of a health care provider, a contractor must return the records to the health care provider who released the medical records or payment records to the contractor.
N. For the purposes of this section, "employer" includes an independent contractor.
Sec. 3. Section 41-1464, Arizona Revised Statutes, is amended to read:
41-1464. Other unlawful employment practices; opposition to unlawful practices; filing of charges; participation in proceedings; notices and advertisements for employment
A. It is an unlawful employment practice for an employer to discriminate against any of the employer's employees or applicants for employment, for an employment agency or joint labor-management committee controlling apprenticeship or other training or retraining programs, including on-the-job training programs, to discriminate against any individual or for a labor organization to discriminate against any member or applicant for membership because the employee, the member, the applicant or the individual in an apprenticeship or other training or retraining program has opposed any practice that is an unlawful employment practice under this article or has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under article 6 of this chapter.
B. It is an unlawful employment practice for an employer, labor organization, employment agency or joint labor-management committee controlling apprenticeship or other training or retraining programs, including on-the-job training programs, to print or publish or cause to be printed or published any notice or advertisement relating to employment by an employer or membership in or any classification or referral for employment by a labor organization or relating to any classification or referral for employment by an employment agency or relating to admission or to employment in any program established to provide apprenticeship or other training by a joint labor-management committee indicating any preference, limitation, specification or discrimination based on race, color, religion, sex or national origin, except that a notice or advertisement may indicate a preference, limitation, specification or discrimination based on religion, sex or national origin when religion, sex or national origin is a bona fide occupational qualification for employment.
C. It is unlawful for an employer, labor organization or employment agency to print or publish or cause to be printed or published any notice or advertisement relating to employment by an employer or membership in or any classification or referral for employment by a labor organization or relating to any classification or referral for employment by an employment agency, indicating any preference, limitation, specification or discrimination based on age, except that the notice or advertisement may indicate a preference, limitation, specification or discrimination based on age when age is a bona fide occupational qualification for employment.
D. It is an unlawful employment practice for an employer to violate section 12-2294, subsection F. The remedies for an unlawful employment practice under this title are in addition to, and not exclusive of, the remedies provided in title 12 and any other federal and state law, including common law remedies.
Sec. 4. Legislative Intent
A. The legislature intends that section 12-2292, subsection C, Arizona Revised Statutes, as added by this act, and section 12-2294, subsection F, Arizona Revised Statutes, as added by this act, clarify existing law.
B. The legislature intends with respect to section 12-2294, subsection J, Arizona Revised Statutes, as added by this act, that this power be exercised to the fullest extent allowed under the United States and Arizona Constitutions and the Arizona Revised Statutes to safeguard the confidentiality, notwithstanding a conflict with any act of the federal government, except to the extent, if any, that the United States Constitution expressly requires a contrary result.
C. The legislature intends that even though section 12-2294, subsection K, Arizona Revised Statutes, as added by this act, specifically recognizes the right to a jury trial, it is not meant to express a legislative intent that a statute must specifically provide for the right to a jury trial in order for a case to be so triable. The Arizona Constitution provides that the right to a jury trial is "inviolate" and the public policy of this state is that jury trials are favored means of resolving disputes."
Amend title to conform