An Act To Ensure Patient Plivacy and Control with Regard to Health Information Exchanges J J
Maine Legislature, Session 125, LD 1337
Committee Amendment CA_A_S261 (Senate)
Amends: 22 MRSA §1711-C, 22 MRSA §17

COMMITTEE AMENDMENT" A" to S.P. 414. LD. 1337, Bill, "An Act To 
Ensure Patient Plivacy and Control with Regard to Health Information Exchanges" 
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Amend the bill by striking out everything after the enacting clause and before the 
summary and inseliing the following: 
'Sec. l. 22 l\IRSA §1711-C, sub-§7, as amended by PL 1999. c. 512, PL A, ~5 
and affected by * 
7, is further amended to read: 
7. Confidentiality policies. A health care practitioner Sf, facility or state-designated 
statewide health infonnation exchange shall develop and implement policies, standards 
and procedures to protect the confidentiality, security and integrity of health care 
infonnation to ensure that infonnation is not negligently, inappropriately or unlawfully 
disclosed. The policies of health care facilities must provide that an individual being 
admitted for inpatient care be given notice of the right of the individual to control the 
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disclosure of health care infonnation. The policies must provide that routine admission 
fonns include clear written notice of the individual's ability to direct that that individual's 
name be removed from the directory listing of persons cared for at the facility and notice 
that removal may result in the inability of the facility to direct visitors and telephone calls 
to the individual. 
Sec. 2. 22 MRSA §1711-C, sub-§8, as enacted by PL 1997. c. 793. Pt. A, §8 and 
afkcted by § 10, is amended to read: 
8. Prohibited disclosure. A health care practitioner Sf, facility or state-designated 
statewide health infonnation exchange may not disclose health care infonnation for the 
purpose of marketing or sales without written or oral authorization for the disclosure. 
Sec. 3. 22 MRSA §1711-C, sub-§18 is enacted to read: 
18. Participation in a state-designated statewide health information exchange. 
The following provisions apply to participation in a state-designated statewide health 
information exchange. 
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COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT" A" to S.P. 414, L.D. 1337 
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 state-designated statewide health 
information exchange. Except when otherwise required by federal law, a payor of 
health care benefits may not require participation in a state-designated statewide 
health information exchange as a condition of participating in the payor's provider 
network. 
B. 
Recovery for professional negligence 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 state-designated statewide health 
information exchange arising out of or in connection with the provision of or failure 
to provide health care services. In anv civil action for professional negligence or in 
any proceeding related to such a 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 state-designated statewide health inforn1ation 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 recoverv or the admission of evidence of reliance on information in a 
state-designated statewide electronic health information exchange whell there was 
participation by both the patient and the patient's health care practitioner. 
C. A state-designated statewide health information exchange to vvhich health care 
infonnation is disclosed under this section shall provide an individual protection 
mechanism bv which an individual may opt out from participation to prohibit the 
state-designated statewide health information exchange from disclosing the 
individual's health care infornKltion to a health care practitioner or health care facility. 
D. At point of initial contact. a health care practitioner. health care facility or other 
entity participating in a state-designated statewide health information exchange shall 
provide to each patient, on a separate form. at minimum: 
(1) 
Information abOl!t the state-designated statewide health information 
exchange. including a description of benefits and risks of participation in the 
~tate-designated statewide health infonnation exchange; 
(2) A description of how and where to obtain more infonnation about or contact 
the state-designated statewide health infonnation exchange: 
(3) An opportunity for the patient to decline participation in the state-designated 
statewide health information exchange: and 
(4) A declaration that a health care practitioner, health care facility or other 
entity may not deny a patient health care treatment based solely on the provider's 
or patient's decision not to participate in a state-designated statewide health 
information exchange. 
The state-designated statewide health information exchange shall develop the form 
for use under this paragraph, with input from consumers and providers. The form 
must be approved by the office of the state coordinator for health information 
technology within the Governor's office of health policy and finance. 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT'·f\ .. to S.P. 414, tD. 1337 
E. A health care practitioner. health care facility or other entity participating in a 
state-designated statewide health information exchange shall communicate to the 
exchange the decision of each patient who has declined participation and shall do so 
within a reasonable time frame, but not more than 2 business days following the 
receipt of a signed form. as described in paragraph D, from the patient, or shall 
establish a mechanism by which the patient may decline participation in the state-
designated statewide health information exchange at no cost to the patient. 
F. 
A state-designated statewide health information exchange shall process the 
request of a patient who has decided not to participate in the state-designated 
statewide health information exchange within 2 business days of receiving the 
patient's decision to decline, unless additional time is needed to verify the identity of 
the patient. A signed authorization from the patient is required before a patient is 
newly entered or reentered into the 
~stem if the patient chooses to begin 
participation at a later date. 
Except as otherwise required by applicable la\\', regulation or rule or state or federal 
contract, or \,,"hen the state-designated statewide health infonnation exchanQe is 
actin£! as the agent of a health care practitioner, health care facility or other entity. the 
state~desiQnated statewide health infonnation exchange shall remove health 
infonnation of individuals who have declined participation in the exchanQe .. In no 
event n!<!y health infonnation retained in the state-designated statewide health 
infomlation exchange as set forth in this paragraph be made available to health care 
practitioners, health care facilities or other entities except as otherwise required by 
applicable law, regulation or rule or state or federal contract, or when the health care 
practitioner, health care facility or other entity is the originator of the information. 
G. A state-designated statewide health information exchange shall establish a secure 
website acceSSible to patients. This website must: 
( 1) Pemlit a patient to request a report of who has accessed that patient's records 
and when the access occurred. This report must be delivered to the patient within 
business days upon verification of the patient's identity bv the state-designateq 
statewide health i!1fonnation exchange: 
(2) 
Provide a mechanism for a patient to decline partiCipatIOn in the state-
designated statewide health infonnation exchange; and 
(3) Provide a mechanism for the patient to consent to participation in the state-
designated statewide health information exchange if the patient had previously 
declined participation. 
H. 
A state-designated statewide health information exchange shall establish for 
patients an alternate procedure to that provided for in paragraph F that does not 
require Internet access. A health care practitioner, health care facility or other entity 
participating in the stat~-designated statewide health infonnation exchange shall 
provide information about this alternate procedure to all patients. The information 
must be included on the form identified in paragraph D. 
L A state-designated statewide health information exchange shall maintain records 
regarding all disclosures of health care information by and through the statc-
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT" A "to S.P. 414, LD. 1337 
designated statewide health infonnation exchange, including the requesting party and 
the dates and times of the requests and disclosures. 
1. A state-designated statewide health infOlmation exchange may not charge a patient 
or an authorized representative of a patient any fee for access or communication as 
provided in this subs~ction. 
K. Notwithstanding any provision of this subsection to the contrary, a health care 
practitioner, health care facility or other entity shall provide the form and 
communication required by paragraphs D and F to all existing patients following the 
effective date of this subsection. 
L. A state-designated statewide health information exchange shall meet or exceed all 
applicable federal laws and regulations pertaining to privacy, security and breach 
notification regarding personally identifiable protected health infonllation, as defined 
in 45 Code of Federal Regulations, Part 160. Ifa breach occurs. the state-designated 
statewide health infonnation exchange shall arrange with its participants for 
notification of each individual whose protected health infonnation has been. or is 
reasonably believed by the exchange to have been, breached. For purposes of this 
paragraph. "breach" has the same meaning as in 45 Code of Federal Regulations. Part 
164, as amended. 
M. 
The state-designated statewide health infon11ation exchange shall develop a 
quality management plan, including auditing mechanisms, in consultation with the 
office of the state coordinator for health information technology within the 
department, who shall review the plan and results. 
Sec. 4. 22 MRSA §17tt-C, sub-§20 is enacted to read: 
20. Exemption from freedom of access laws, Fxccpt as provie!ce! in this section. 
the names and other identifying information of individuals in a state-designated statewide 
health infonnation exchange are confidential and are exempt from the provisions of Title 
I. chapter 13. 
Sec. 5. Report. A state-designated statewide health infonnation exchange under 
the Maine Revised Statutes, Title 22, section 1711-C shall by January 1, 2012 present a 
progress repon to the office of the state coordinator fllr health information technology 
within the Department of Health and Human Services. 
The report must include the 
projected implementation date for the secure website required under Title 22, section 
l7il-C.' 
SUMMARY 
This amendment replaces the bill and removes the language in the bill that requires a 
patient to opt in to the state-designated statewide health infonnation exchange and instead 
makes it easier for patients to opt out of the exchange. The amendment retains provisions 
of the bill that prohibit a health care practitioner or health insurer from refusing to 
provide medical assistance or insurance coverage based on a patient's decision to 
participate or not to participate in a health infonnation exchange. As in the bill, the 
amendment also prohibits reference to the participation or nonparticipation of a health 
care practitioner or health care facility in a health infonnation exchange from being used 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT '·A "to S.P. 414, LD. 1337 
as evidence in actions for negligence or other civil actions. The health information 
exchange is required to establish a secure website accessible to a patient that must allow 
the patient to determine who accessed the patient's records and must include a method to 
decline participation in the exchange. 
The amendment also requires the health 
information exchange to meet or exceed all federal laws related to privacy, security and 
breach notification regarding personally identifiable protected health information. 
FISCAL NOTE REQUIRED 
(See attached) 
COMMITTEE AMENDMENT 
Approved: 06/03111 
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LD 1337 
LR 1330(02) 
An Act To Ensure Patient Privacy and Control with Regard to Health Information Exchanges 
Fiscal Note for Bill as Amended by Committee Amendment "A" S - 2.<0 I 
Committee: Health and Human Services 
Fiscal Note Required: Yes 
Fiscal Note 
Minor cost increase - General Fund 
Minor revenue increase - General Fund 
Correctional and Judicial Impact Statements 
Increases the number of civi I suits. 
The collection of additional filing fees may also increase General Fund revenue by minor amounts_ 
Fiscal Detail and Notes 
Any additional administrative costs to the Department of Health and Human Services are expected to be minor and 
can be absorbed within existing budgeted resources. 
LRI330(02) - Fiscal Note - Page I of I