                               ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                                June 30,2003



Eduardo J. Sanchez, M.D., M.P.H.                        Opinion No. GA-0083
Commissioner of Health
Texas Department of Health                              Re: Whether chapter 108 of the Health and Safety
1100 West 49th Street                                   Code authorizes or requires the Texas Health Care
Austin, Texas 78756-3 199                               Information Council to provide the Department of
                                                        Health with individually identifiable health care
                                                        information (RQ-001 O-GA)

Dear Commissioner       Sanchez:

        You have asked whether chapter 108 of the Health and Safety Code authorizes or requires
the Texas Health Care Information Council (the “Council”) to provide the Texas Department of
Health (“TDH” or “the Department”) with data containing individually identifiable health care
information.’ After you posed your question, the 78th Texas Legislature enacted House Bill 2292,
which profoundly restructures health and human service agencies. See Act of June 2, 2003, 78th
Leg., R.S., H.B. 2292 (signed by the Governor on June 10,2003). Pursuant to the bill, the Council
and the Department will be abolished and their powers transferred to the Department of State Health
Services. See id. $0 1.19(a)(l), (4), 1.23(a), 126(a)(5), (9). H owever, consolidation of the Council’s
and TDH’s powers in a single agency must occur pursuant to a transition plan, which House Bill
2292 indicates will not be developed for several months. See id. 5 1.23(a) (stating that the transfer
must be accomplished according to a transition plan, to be developed no later than December 1,
2003). Consequently, we address your question under the current statutory framework.

        We begin with an overview of the Council’s duties under chapter 108. See TEX. HEALTH
& SAFETY CODE ANN. $5 108.001-108.015            (Vernon 2001 & Supp. 2003). The legislature
commissioned     the Council to “develop a statewide health care data collection system to collect
health care charges, utilization data, provider quality data, and outcome data to facilitate the
promotion and accessibility of cost-effective, good quality health care.” Id. 5 108.006(a) (Vernon
2001).    The Council, as the primary administrator of chapter 108, directs the collection,
dissemination, and analysis of financial and medical performance data about health care facilities
such as hospitals and health maintenance organizations (“HMOs”). Id. @ 108.001, 108.006(a)( 1).



         ‘See Letter from Eduardo J. Sanchez, M.D., M.P.H., Commissioner of Health, Texas Department of Health,
to Honorable Greg Abbott, Texas Attorney General (Dec. 17, 2002) (on file with Opinion Committee) (hereinafter
Request Letter).
Eduardo J. Sanchez, M.D., M.P.H.       - Page 2          (GA-0083)




The Council discharges its duties under chapter 108 with TDH’s assistance             and administrative
support. Id. 5 108.008(b).

        The Council gathers hospital data primarily from reports generated when a patient is
discharged from a hospital. A “provider,” defined as “a physician or health care facility,” must
submit discharge data for each patient to the Council in a uniform electronic format.             Id.
$9 108.002(15) (V emon Supp. 2003) (defining “Provider”); 108.009(a) (Vernon 2001) (requiring
submission); 108.009(h) (authorizing standard formats such as the “Uniform Hospital Billing Form
UB 92”); 25 TEX. ADMIN. CODE 5 1301.19(a) (2003) (requiring hospitals to use specified formats).
The hospital discharge report includes specific and detailed information such as the patient’s name,
social security number, diagnoses, treatment, and the hospital’s charges for various procedures. TEX.
ADMIN. CODE $5 1301.19(c)-(e) (2003).          Providers submit the hospital discharge reports to
TDH, which is the “single collection point,” for such data. TEX. HEALTH & SAFETY CODE ANN.
8 108.009(e) (V emon 2001); butsee 25 TEX.ADMIN. CODE 4 1301.12(e) (2003) (requiring hospitals
to submit discharge reports and other information to the “Council or its agents” as directed by the
Council’s executive director).

          The Council receives reports from HMOs in a standard electronic format designed to allow
comparison of managed care health plans. TEX. ADMIN. CODE 8 1301.32(3), 1301.33(a) (2003).
HMO information includes such matters as “effectiveness of care, accessibility/availability        of care,
satisfaction with the experience of care, cost of care, stability of the health plan, informed health care
choices, use of services, and plan descriptive information.” Id. 5 1301.32(3); see also TEX.HEALTH
& SAFETYCODE ANN. 6 108.009(o) (Vernon 2001) (requiring health care plan provider to “submit
to the council aggregate data . . . required by the Health Plan Employer Data Information Set
(HEDIS) as operated by the National Committee for Quality Assurance.“).

         The Council may also obtain information from other sources. The Council is directed to
acquire information from public records “[t]o the extent feasible.” TEX. HEALTH & SAFETYCODE
tj 108.009(m) (V emon 2001). On the Council’s request, TDH must “give the council access to data
collected by the department.” Id. 9 108.008(b)(4). The Council may enter into a memorandum of
understanding with a state agency “to share data and expertise, to obtain data for the council, or to
make data available to the council.” Id. 8 108.007(b).

         The Council must use the data it receives for the public’s benefit. See id. 9 108.013(a)
(Vernon Supp. 2003). From the data it obtains, the Council must prepare reports to the governor,
legislature, and the public about health care quality, effectiveness, accessibility, and costs, id.
$5 108.001, 108.006(a)(9), 108.01 l(b) (V emon 2001), and reports to the public about hospital
services. Id. §§ 108.010(c), 108.011(c). See generally Tex. Att’y Gen. Op. No. JC-0511 (2002)
(analyzing use of data for statutory reports).

        The Council must make health care information available and accessible to the public. See
TEX. HEALTH & SAFETYCODE ANN. 6j108.006(a)(6) (V emon 2001). In that regard, the Council is
responsible for developing a process and methodology to allow public access to certain classes of
data and controlled dissemination of other classes of data while maintaining strict confidentiality
Eduardo J. Sanchez, M.D., M.P.H.      - Page 3         (GA-0083)




requirements. Seeid. $5 108.006(a)(6), 108.0065(d), 108.010(h), 108.01 l(a)-(i), 108.012(a)(Vemon
2001), 108.013 (Vernon Supp. 2003); see also Tex. Att’y Gen. Op. No. JC-0469 (2002), at 3-5
(describing council’s duties). The Council’s public use data must be computer accessible. TEX.
HEALTH & SAFETY CODE ANN. 5 108.012 (Vernon 2001).2 Upon proper request, the Council may
make available some health care information that is not contained in the public use data file. See
id. 6 108.013(a) (Vernon Supp. 2003). The Council must decide information requests in favor of
access, subject to chapter 108’s specific limitations. Id.

         Concomitant with its duties to collect and disclose health care data, the Council must protect
certain information from disclosure. Except as specifically authorized in chapter 108, the Council
“may not release and a person or entity may not gain access to any data: (1) that could reasonably
be expected to reveal the identity of a patient[, or] (2) that could reasonably be expected to reveal
the identity of a physician.” Id. $5 108.013(c)(l), (2). Thus, to preserve confidentiality in the public
use data file, the Council processes the hospital discharge data it receives to remove individually
identifiable data before affording public access. Id. 5 108.012 (Vernon 2001); 25 TEX.ADMIN. CODE
4 1301.18 (2003). The Council maintains data other than public use data in a research file, which
may be accessed only by a request approved by the Council’s scientific review panel. TEX. HEALTH
& SAFETY CODE ANN. 5 108.0135 (Vernon 2001); 25 TEX. ADMIN. CODE 0 1301.18(1) (2003). A
memorandum of understanding between the Council and another state agency must protect patient
confidentiality.   TEX. HEALTH & SAFETY CODE ANN. 8 108.007(b) (Vernon 2001). Neither the
Council nor TDH may release information that is confidential under chapter 108 to any other state
agency. Id. 8 108.013(i) (Vernon Supp. 2003). Chapter 108 contains civil and criminal penalties
for violating its confidentiality provisions. Id. §§ 108.014, 108.0141 (Vernon 2001).

        Under chapter 108, the Council has a duty to improve the efficiency of the state’s health care
data collection programs. When implementing the statewide information collection system under
chapter 108, the Council must “build on and not duplicate other data collection required by state or
federal law, by an accreditation organization, or by board rule.” Id. 5 108.006(4). The Council is
to review state public health data collection programs and recommend consolidation              where
appropriate. Id. 8 108.006(5). Most pertinent to your question, chapter 108 charges the Council with
developing and implementing a health care information plan for TDH to use to:

               (A) support public health and preventative    health initiatives;

               (B) assist in the delivery of primary      and preventive    health care
               services;

               (C) facilitate the establishment of appropriate     benchmark       data to
               measure performance improvements;




       *Seewww.thcic.state.tx.us/default.htm.
Eduardo J. Sanchez, M.D., M.P.H.       - Page 4           (GA-0083)




                (D) establish and maintain a systematic approach to the collection,
                storage, and analysis of health care data for longitudinal,
                epidemiological, and policy impact studies; and

                (E) develop and use system-based       protocols to identify individuals
                and populations at risk.

Id. 0 108.006(a)( 14).

        You state that the publicly available health care information that the Council presently
provides is not adequate for TDH to accomplish these duties. See Request Letter, supra note 1,
at 2. You ask whether authority for TDH to obtain individually identifiable information from the
Council may be distilled from TDH’s duty to assist in data collection under sections 108.008 and
108.009, the Council’s duty to formulate an information plan for TDH’s public health
responsibilities under section 108.006(a)( 14), and the directive to the Council in section 108.006(4)
to avoid duplication of state data collection efforts. See id.

         Section 108.013 prohibits the Council from releasing information that reveals a patient’s or
physician’s identity “[ulnless specifically authorized by this chapter [ 1081.” TEX.HEALTH& SAFETY
CODE ANN. 8 108.013(c) (Vernon Supp. 2003). This unambiguous mandate may only be construed
as written. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.
1999). Thus, the Council may provide individually identifiable information only as specifically
authorized by chapter 108.

         Chapter 108 assigns TDH a number of duties in support of the Council and the health care
information data collection system. Under Section 108.008, TDH must:

                         (1) contract with the council to collect data under this chapter;

                         (2) provide administrative   assistance to the council;

                        (3) coordinate administrative responsibilities with the council
                to avoid unnecessary duplication of the collection of data and other
                duties;

                         (4) on request of the council, give the council access to data
                collected by [TDH];




                         (6) work with the Department of Information Resources in
                developing    and implementing    the statewide health care data
                collection system and maintain consistency with Department of
                Information Resources standards.
Eduardo J. Sanchez, M.D., M.P.H.          - Page 5            (GA-0083)




TEX. HEALTH & SAFETYCODE ANN. 8 108.008(b) (Vernon 2001). Also, at the Council’s direction,
TDH is authorized to inspect underlying documentation and records used by data sources, and
“compel providers to produce accurate documents and records.” Id. 5 108.007(a)(l), (2). In the
course of carrying out these duties, TDH will necessarily come into possession of information that
chapter 108 makes confidential.

          However, TDH’s duties under chapter 108 authorize it to gather health care information only
for the Council as its agent, not for TDH’s own purposes.         See, e.g., 25 TEX. ADMIN. CODE
5 1301.12(g) (2003) (directing hospitals to provide the Council’s executive director, “or the
director’s agent, the Texas Department of Health,” access to records). In that respect, TDH provides
services to the health care information system under chapter 108 similar to the services TDH
provides the Interagency Council on Pharmaceuticals Bulk Purchasing (“the Interagency Council”)
under chapter 43 1. See TEX. HEALTH & SAFETY CODE ANN. 5 43 1 .116 (Vernon Supp. 2003).
Section 43 1.116 authorizes TDH to obtain information from drug manufacturers, verify its accuracy,
and report the information collected to the Interagency Council. See id. Section 110.006(g) of the
Health and Safety Code prohibits the Interagency Council from disclosing “information that
identifies a specific manufacturer or wholesaler or the prices charged by a specific manufacturer or
wholesaler for a specific pharmaceutical.” Id. 5 11 0.006(g).3 In Texas Attorney General Opinion
GA-001 9, this office determined that TDH’s role as the Interagency Council’s agent did not
authorize the Interagency Council to disclose confidential information to TDH. See Tex. Att’y
Gen. Op. No. GA-0019 (2003).

         As is the case with the bulk pharmaceutical system in chapters 110 and 43 1, TDH’s only
duties under chapter 108 are to provide assistance and administrative support to the Council as it
gathers health care information.    Nothing in TDH’s duties under chapter 108 suggest that it is
authorized to use individually identifiable information to discharge its public health care
responsibilities outside of chapter 108. Chapter 108 does not specifically require or authorize TDH
to access or use individually identifiable data for purposes unrelated to the statewide health care
information system.

         Similarly, the Council’s directive to develop a health care information plan for TDH under
section 1OS.O06(a)( 14) does not specifically authorize the Council to release individually identifiable
information to TDH. The Council must develop an information plan to support health initiatives,
assist in delivering of health care services, establish benchmark data, establish a systematic approach
to data collection and analysis for certain studies, and develop a protocol for identifying individuals
and populations at risk. See TEX. HEALTH & SAFETY CODE ANN. 0 108.006(a)(l4)(A)-(E)
(Vernon 2001). On their face, these stated purposes do not necessarily imply that they may be
accomplished only by providing TDH with individually identifiable information.               Finally, the
directive in section 108.006(a)(4), that the Council not duplicate other required data collection
efforts, does not specifically authorize the Council to disclose individually identifiable information
to TDH. Id. fj 108.006(a)(4).



         ‘This section 110.006 was added by Act of May 27,2001,77th   Leg., R.S., ch. 1003, sec. 1, $ 110.006,2001
Tex. Gen. Laws 2 184,2185.
Eduardo J. Sanchez, M.D., M.P.H.     - Page 6         (GA-0083)




         You suggest that if TDH is authorized to obtain individually identifiable information under
chapter 108, that authority would also satisfy the governmental purpose exceptions to other
confidentiality requirements imposed by the federal Health Insurance Portability and Accountability
Act of 1996 and chapter 181 of the Texas Health and Safety Code. See 42 U.S.C. $5 1320d-2(d),
1320d-3(a) (2000); 45 C.F.R. $5 160.103,164.502(a), 164.502(a)(l)(i) (2002 & 2003); TEX.HEALTH
& SAFETY CODE ANN. $5 181.001(b)(l)(B),        181.001(b)(5), 181.103(l)-(3) (Vernon Supp. 2003).
Because we conclude that chapter 108 does not authorize the Council to provide individually
identifiable information, we do not address these issues.

        Section 108.0 13(c) prohibits any entity from gaining access to data that could reasonably be
expected to reveal the identity of a patient or a physician, except as “specifically authorized” by
chapter 108. See TEX. HEALTH & SAFETYCODE ANN. 8 108.013(c) (Vernon Supp. 2003). Chapter
108 does not specifically authorize the Council to provide TDH with such information.
Consequently, we conclude that the Council is not authorized to provide TDH with access to health
care data containing individually identifiable information.
Eduardo J. Sanchez, M.D., M.P.H.    - Page 7         (GA-0083)




                                      SUMMARY

                      Under current law, the Texas Health Care Inforrnation
               Council is not authorized to provide the Texas Department of Health
               with data containing individually identifiable health information.

                                             Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
