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Texas’s Data Privacy Training Laws Change (Again)

Posted in Data Privacy, Data Security, Health Care Industry

In August of last year, I wrote about HB 300, a Texas law that, beginning September 1, 2012, created employee training and other requirements for any company doing business in Texas that collects, uses, stores, transmits, or comes into possession of protected health information (PHI).  The law’s training provisions required covered entities to train their employees every two years regarding federal and state law related to the protection of PHI, and obtain written acknowledgement of the training.  (The training was required for new employees within 60 days of their hiring).  Companies were required to train their employees in a manner specific to the way in which the individual employee(s) handle PHI.

Recently, however, the Texas legislature passed two bills that amend the requirements of HB 300 in a few significant ways.  Under SB 1609, the role-specific training requirement has changed.  Now, companies may simply train employees about PHI “as necessary and appropriate for the employees to carry out the employees’ duties for the covered entity.”

SB 1609 also changed the frequency of the training from once every two years to whether the company is “affected by a material change in state or federal law concerning protected health information” and in such cases the training must take place “within a reasonable period, but not later than the first anniversary of the date the material change in law takes effect.”  This change could mean more or fewer training sessions of employees depending on the nature of the covered entity’s business, the size of the covered entity, and the location of the covered entity.

SB 1610, which relates to breach notification requirements, is more puzzling.  Until now, Texas law required companies doing business in Texas that suffered data breaches affecting information of individuals residing in other states that did not have data breach notification laws (e.g., Alabama and Kentucky), to notify the individuals in those states of the breach.  SB 1610 removes that requirement and now provides that:  “If the individual whose sensitive personal information was or is reasonably believed to have been acquired by an unauthorized person is a resident of a state that requires a [breached entity] to provide notice of a breach of system security, the notice of the breach of system security required under Subsection (b) [which sets forth Texas’s data breach notification requirements] may be provided under that state’s law or under required under Subsection (b).”

The natural interpretation of this provision is that a Texas company that suffers a breach of customer information where, for example, some of the customers reside in California, Massachusetts, or Connecticut, is not required to comply with those states’ data breach notification laws if the company complies with the standards set forth in Texas’s data breach notification law.  It will be interesting to see whether Texas receives any push back from other state Attorneys General who enforce their states’ data breach notification laws and may not be pleased with a Texas law that instructs companies doing business in Texas that the requirements for breach notification set forth by other states can be ignored if the Texas company meets Texas’s data breach notification requirements.  Nevertheless, the practical effect of this law is not clear because most companies will want to avoid the risk associated with ignoring another state’s data breach notification law.

In short, the legislative changes are a good reminder that companies doing business in Texas that collect, use, store, transmit, or otherwise handle PHI must determine whether they are complying with HB 300 and the more recent legislative acts that were signed into law June 14, 2013 and became effective immediately.

 

DISCLAIMER:  The opinions expressed here represent those of Al Saikali and not those of Shook, Hardy & Bacon, LLP or its clients.  Similarly, the opinions expressed by those providing comments are theirs alone, and do not reflect the opinions of Al Saikali, Shook, Hardy & Bacon, or its clients.  All of the data and information provided on this site is for informational purposes only.  It is not legal advice nor should it be relied on as legal advice.