SB136 HFA Byrd & Fluharty 3-3

                Delegates Byrd & Fluharty move to amend the SB136 H JUD am #1 on page 1, Section 2, lines 6 through 9, by striking out the definition of “Person” and inserting in lieu thereof, the following:

(2) “Person” means an individual or entity, including, but not limited to attorneys,  law firms, medical providers, pharmaceutical companies or third parties who solicit potential clients on behalf of attorneys, law firms or healthcare providers or pharmaceutical companies that advertise a health care product, which pays for or authorizes an advertisement that solicits potential clients, patients or customers under this article.”

And,

On page 2, Section 2, line 12, following the words “provide legal” by inserting the words “or health care”;

And,

On page 3 and 4, by striking out Section 4 in its entirety, and inserting in lieu thereof, the following:

Ҥ47-28-4. Wrongful use or disclosure of protected health information for solicitation of legal or healthcare services regarding the use of medications.

a) (1) Use or disclosure of protected health information for a solicitation. — A person shall not use, cause to be used, obtain, sell, transfer, or disclose to another person without written authorization protected health information for the purpose of soliciting an individual for legal or health care service regarding the use of medications.

(2) Disclosure of health risks for use of any medical products in a solicitation. – No person may advertise a healthcare product that is subject to a federal Food and Drug Administration recall or safety alert, unless the advertisement discloses that the product is or subject to that recall or safety alert.

(b) Enforcement. —

(1) A violation of this section is a violation of West Virginia’s health privacy laws or §46A-6-101 et seq. of this code.

(2) In addition to any other remedy provided by law, a person who willfully and knowingly violates this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000 or confined in jail not more than one year, or both fined and confined.

(c) Construction. — This section does not apply to the use or disclosure of protected health information to an individual’s legal representative, in the course of any judicial or administrative proceeding, or as otherwise permitted or required by law.

(e) Nothing in this section creates or implies liability on behalf of a broadcaster who holds a license for over-the-air terrestrial broadcasting from the federal communications commission, or against a cable operator as defined in 47 U.S.C. §522(5).