An Act To Increase Health Care Quality through the Promotion of Health Information Exchange and the Protection of Patient Privacy
Maine Legislature, Session 125, LD 1331
Committee: Health and Human Services
Sponsors: FOSSEL, MALABY, O'CONNOR, SANDERSON, SIROCKI
Amends: 5 MRSA §19201, 5 MRSA §19203, 5 MRSA §19203-D, 22 MRSA §1711-C, 34-B MRSA §1207

Legislative Document 
No. 1331 
H.P. 977 
House of Representatives, March 29, 2011 
An Act To Increase Health Care Quality through the Promotion of 
Health Information Exchange and the Protection of Patient Privacy 
Reference to the Committee on Health and Human Services suggested and ordered printed. 
HEATHER J.R. PRIEST 
Clerk 
Presented by Representative FOSSEL of Alna. 
Cosponsored by Representatives: MALABY of Hancock, O'CONNOR of Berwick, 
SANDERSON of Chelsea, SIROCKI of Scarborough. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  5 MRSA §19201, sub-§2-B is enacted to read: 
2-B.  Health care facility.  "Health care facility" has the same meaning as defined in 
Title 22, section 328, subsection 8. 
Sec. 2.  5 MRSA §19203, sub-§9, as amended by PL 1999, c. 512, Pt. B, §2 and 
affected by §§5 and 6, is further amended to read: 
9.  Medical records.  As part of a medical record when release or disclosure of that 
record is authorized pursuant to section 19203-D; or 
Sec. 3.  5 MRSA §19203, sub-§10, ¶B, as amended by PL 1995, c. 319, §1, is 
further amended to read: 
B.  A victim-witness advocate authorized by section 19203-F to receive the test 
results of a person convicted of a sexual crime as defined in section 19203-F, 
subsection 1, paragraph C, who shall disclose to a victim under section 19203-F, 
subsection 4.; or 
Sec. 4.  5 MRSA §19203, sub-§11 is enacted to read: 
11.  Access by health information exchange or other entity.  To a health 
information exchange that provides and maintains an individual protection mechanism by 
which an individual may choose to allow the health information exchange to disclose that 
individual's health care information covered under this section to a health care provider or 
health care facility for purposes of treatment, payment and health care operations, as 
those terms are defined in 45 Code of Federal Regulations, Section 164.501.  A health 
information exchange also must satisfy the requirement in Title 22, section 1711-C, 
subsection 18, paragraph C of providing a general opt-out provision to an individual at all 
times. 
A health information exchange may disclose an individual's health care information 
covered under this section even if the individual has not chosen to allow the health 
information exchange to disclose the individual's health care information when in a health 
care provider's judgment disclosure is necessary to: 
A.  Avert a serious threat to the health or safety of others, if the conditions, as 
applicable, described in 45 Code of Federal Regulations, Section 164.512(j)(2010) 
are met; or 
B.  Prevent or respond to imminent and serious harm to the individual and disclosure 
is to a provider for diagnosis or treatment. 
Sec. 5.  5 MRSA §19203-D, sub-§6 is enacted to read: 
6.  Access by health information exchange or other entity.  Nothing in this section 
precludes the disclosure of a medical record containing HIV information to a health 
information exchange that provides and maintains an individual protection mechanism by 
which an individual may choose to allow the health information exchange to disclose that 
individual's health care information covered under this section to a health care provider or 
health care facility for purposes of treatment, payment and health care operations, as 
those terms are defined in 45 Code of Federal Regulations, Section 164.501. A health 
information exchange also must satisfy the requirement in Title 22, section 1711-C, 
subsection 18, paragraph C of providing a general opt-out provision to an individual at all 
times. 
A health information exchange may disclose an individual's health care information 
covered under this section even if the individual has not chosen to allow the health 
information exchange to disclose the individual's health care information when in a health 
care provider's judgment disclosure is necessary to: 
A.  Avert a serious threat to the health or safety of others, if the conditions, as 
applicable, described in 45 Code of Federal Regulations, Section 164.512(j)(2010) 
are met; or 
B.  Prevent or respond to imminent and serious harm to the individual and disclosure 
is to a provider for diagnosis or treatment. 
Sec. 6.  22 MRSA §1711-C, sub-§6, ¶A, as corrected by RR 2001, c. 1, §26, is 
amended to read: 
A.  To another health care practitioner or facility for diagnosis, treatment or care of 
individuals or to complete the responsibilities of a health care practitioner or facility 
that provided diagnosis, treatment or care of individuals, as provided in this 
paragraph. 
(1) For a disclosure within the office, practice or organizational affiliate of the 
health care practitioner or facility, no authorization is required. 
(2)  For a disclosure outside of the office, practice or organizational affiliate of 
the health care practitioner or facility, authorization is not required, except that in 
nonemergency circumstances authorization is required for health care 
information derived from mental health services provided by: 
(a) A clinical nurse specialist licensed under the provisions of Title 32, 
chapter 31; 
(b) A psychologist licensed under the provisions of Title 32, chapter 56; 
(c)  A social worker licensed under the provisions of Title 32, chapter 83; 
(d)  A counseling professional licensed under the provisions of Title 32, 
chapter 119; or 
(e)  A physician specializing in psychiatry licensed under the provisions of 
Title 32, chapter 36 or 48. 
This subparagraph does not prohibit the disclosure of health care information 
between a licensed pharmacist and a health care practitioner or facility providing 
mental health services for the purpose of dispensing medication to an individual;. 
This subparagraph does not prohibit the disclosure of health care information to a 
health information exchange that satisfies the requirement in subsection 18, 
paragraph C of providing a general opt-out provision to an individual at all times 
and that provides and maintains an individual protection mechanism by which an 
individual may choose to allow the health information exchange to disclose that 
individual's health care information covered under Title 34-B, section 1207; 
Sec. 7.  22 MRSA §1711-C, sub-§6, ¶B, as amended by PL 2009, c. 387, §1, is 
further amended to read: 
B.  To an agent, employee, independent contractor or successor in interest of the 
health care practitioner or facility including a health information exchange that makes 
health care information available electronically to health care practitioners and 
facilities or to a member of a quality assurance, utilization review or peer review 
team to the extent necessary to carry out the usual and customary activities relating to 
the delivery of health care and for the practitioner's or facility's lawful purposes in 
diagnosing, treating or caring for individuals, including billing and collection, risk 
management, quality assurance, utilization review and peer review.  Disclosure for a 
purpose listed in this paragraph is not a disclosure for the purpose of marketing or 
sales.  A health information exchange to which health care information is disclosed 
under this paragraph shall provide an individual protection mechanism by which an 
individual may prohibit the health information exchange from disclosing the 
individual's health care information to a health care practitioner or health care 
facility; 
Sec. 8.  22 MRSA §1711-C, sub-§18 is enacted to read: 
18.  Participation in a health information exchange.  The following provisions 
apply to participation in a health information exchange. 
A.  A health care practitioner may not deny a patient health care treatment and a 
health insurer may not deny a patient a health insurance benefit based solely on the 
provider's or patient's decision not to participate in a health information exchange.  
Except when otherwise required by federal law, a payor of health care benefits may 
not require participation in a health information exchange as a condition of 
participating in the payor's provider network. 
B.  Recovery is not allowed against any health care practitioner or health care facility 
on the grounds of a health care practitioner's or a health care facility's 
nonparticipation in a health information exchange arising out of or in connection with 
the provision of or failure to provide health care services.  In any civil action for 
professional negligence or in any proceeding related to such civil action or in any 
arbitration, proof of a health care practitioner's, a health care facility's or a patient's 
participation or nonparticipation in a health information exchange is inadmissible as 
evidence of liability or nonliability arising out of or in connection with the provision 
of or failure to provide health care services. This paragraph does not prohibit 
recovery or the admission of evidence of reliance on information in an electronic 
health information exchange when there was participation by both the patient and the 
patient's health care practitioner. 
C.  A health information exchange to which health care information is disclosed 
under this section shall provide an individual protection mechanism by which an 
individual may prohibit the health information exchange from disclosing the 
individual's health care information to a health care practitioner or health care facility. 
Sec. 9.  34-B MRSA §1207, sub-§1, ¶G, as amended by PL 2003, c. 563, §2, is 
further amended to read: 
G.  Information must be disclosed to the executive director and the members of the 
subcommittees on institutes and quality assurance of the Maine Commission on 
Mental Health for the purpose of carrying out the commission's statutory duties; and 
Sec. 10.  34-B MRSA §1207, sub-§1, ¶H, as amended by PL 2005, c. 683, Pt. A, 
§57, is further amended to read: 
H.    The names and dates of death of individuals who died while patients at the 
Augusta Mental Health Institute, the Bangor Mental Health Institute, the Dorothea 
Dix Psychiatric Center or the Riverview Psychiatric Center may be made available to 
the public in accordance with rules adopted by the department.  The rules must 
require the department to notify the public regarding the release of the information 
and to maintain the confidentiality of information concerning any deceased individual 
whose surviving relatives notify the department that they object to public disclosure.  
Rules adopted pursuant to this paragraph are routine technical rules as defined in 
Title 5, chapter 375, subchapter 2-A.; and 
Sec. 11.  34-B MRSA §1207, sub-§1, ¶I is enacted to read: 
I.  Nothing in this subsection precludes the disclosure of any information, except 
psychotherapy notes as defined in 45 Code of Federal Regulations, Section 
164.501(2010), concerning a client to a health information exchange that provides 
and maintains an individual protection mechanism by which a client may choose to 
allow the health information exchange to disclose that client's health care information 
covered under this section to a health care practitioner or health care facility for 
purposes of treatment, payment and health care operations, as those terms are defined 
in 45 Code of Federal Regulations, Section 164.501.  A health information exchange 
also must satisfy the requirement in Title 22, section 1711-C, subsection 18, 
paragraph C of providing a general opt-out provision to a client at all times. 
A health information exchange may disclose a client's health care information 
covered under this section even if the client has not chosen to allow the health 
information exchange to disclose the individual's health care information when, in a 
health care provider's judgment, disclosure is necessary to: 
(1)  Avert a serious threat to the health or safety of others, if the conditions, as 
applicable, 
described 
in 
Code 
of 
Federal 
Regulations, 
Section 
164.512(j)(2010) are met; or 
(2)  Prevent or respond to imminent and serious harm to the client and disclosure 
is to a provider for diagnosis or treatment. 
SUMMARY 
This bill amends the law regarding health information exchanges to specify when and 
under what circumstances information may be shared between a health care practitioner 
or health care facility and a health information exchange.  The health information 
exchange must provide the ability for the client or individual to opt out.  The bill specifies 
when information may be disclosed even if a client or individual has opted out.  The bill 
prohibits a provider or health insurer from refusing to provide medical assistance or 
insurance coverage based on the individual's decision to participate or not participate in a 
health information exchange.  The bill prohibits reference to the participation or 
nonparticipation of a health care practitioner or health care facility in a health information 
exchange from being used as evidence in negligence or other civil action.