Statutory Compliance Architecture for Texas HB 149
The Texas Responsible Artificial Intelligence Governance Act, enacted as HB 149 and effective January 1, 2026, adds Chapters 551 through 554 to the Texas Business and Commerce Code. For primary care, the operative provision is Section 552.051. Subsection (f) applies the disclosure duty directly to health care: when an AI system is used in relation to a health care service or treatment, the provider must disclose that use to the patient or the patient's personal representative.
The disclosure must be clear, conspicuous, and written in plain language under Section 552.051(d), and it may not rely on a dark pattern. The duty applies regardless of whether a reasonable person would already recognize that AI is present. A website notice or a line buried in intake paperwork is a weak evidentiary posture; an encounter-level record is stronger.
Section 552.051(f) Timing in Primary Care
The statute requires disclosure no later than the date the service or treatment is first provided, or as soon as reasonably possible in an emergency. Primary care complicates this baseline. Established patients return for chronic disease follow-up, wellness visits, and acute complaints, often with different clinicians or representatives present. A single disclosure at the first visit does not document what the patient understood at the fourth. Merry treats each encounter as a discrete disclosure event, which exceeds the statutory floor and produces a per-visit audit artifact.
Practices should also review Texas SB 1188, which separately addresses practitioner disclosure and review of AI used for diagnostic purposes under the Health and Safety Code.
Pre-Capture Attestation and DOM Injection
Merry inserts a timestamped attestation before the microphone stream opens for every Texas patient (Directive P1). The attestation records the AI system identity, its documentation-only role, the supervising clinician, the patient or representative acknowledgment, and an ISO 8601 timestamp with time zone. Recording controls remain disabled until acknowledgment is captured. If the patient declines, the encounter proceeds with manual charting and no audio is processed.
The disclosure banner is written into the note header through the Chrome extension's DOM layer (Directive P7). The extension traverses nested iframes to locate the active progress note, targets stable selectors such as contenteditable regions or named textareas rather than generated IDs, and prepends a distinct block above the SOAP template. Because the banner lives inside the legal medical record, it travels with the note to billing, release-of-information, and payer review.
Note Header Persistence Across Autosave
EHR autosave and template reloads can silently overwrite injected content. A MutationObserver watches the header node, verifies the attestation after each save cycle, and restores it if a template refresh removes it. A three-state machine (disclosed, capturing, finalized) prevents duplicate banners when a clinician reopens the note in another tab. A parallel text-only log records insertion time, encounter identifier, and EHR context, so attestation integrity can be demonstrated even if the chart is later amended.
RAM-Only Audio and Zero-Day Retention
Encounter audio remains in volatile memory and is never written to disk, cloud storage, or diagnostic logging. When recording stops or the encounter closes, buffers and transcription caches are overwritten and released. HB 149 does not set an audio retention period, but its consumer-protection structure and the Attorney General's investigative authority reward data minimization. There is no recording to subpoena, breach, or repurpose.
Billing Integrity Under 2026 CMS and NCCI Rules
Disclosure does not establish medical necessity. G2211 requires documentation showing the clinician is the continuing focal point for all needed services or manages a single serious or complex condition over time, reported with office or outpatient codes 99202 to 99215 and home or residence codes 99341 to 99350. Merry structures notes around NYHA class and LVEF for heart failure, DSM-5-TR criteria with PHQ-9 and GAD-7 scores, ROM degrees for musculoskeletal complaints, and Bright Futures elements for pediatric visits.
Modifier 25 requires a significant, separately identifiable E/M service, and CMS generally does not pay G2211 when the base E/M carries modifier 25, except alongside the annual wellness visit, vaccine administration, or Medicare Part B preventive services. Modifier 59 is never appended to an E/M code. Merry flags weak separation between procedural and E/M work but leaves code selection with the clinician. Confirm descriptors at https://www.ama-assn.org/practice-management/cpt.
Statutory Comparison and Audit Readiness
| Compliance Dimension | Manual Charting | Standard Generic AI Scribes | Merry AI Compliance Architecture |
|---|---|---|---|
| §552.051(f) disclosure record | Verbal or intake form; rarely charted | Website or EULA notice; not encounter-bound | Timestamped attestation in note header per visit |
| Timing relative to AI processing | Not applicable | Disclosure timing not logged | Capture locked until acknowledgment recorded |
| §552.051(d) plain-language standard | Variable by clinician | Generic vendor language | Standardized plain-language banner |
| Audio retention | No audio | Vendor-defined cloud retention | RAM-only, shredded at 0 days |
| G2211 and modifier 25 support | Dependent on clinician recall | Template-driven; may over-suggest | Longitudinal scaffolding; human code selection |
| §552.104 cure-period evidence | Manual chart pull | Vendor log request | Exportable attestation log |
Enforcement under HB 149 rests exclusively with the Texas Attorney General under Section 552.101, with a 60-day cure period under Section 552.104 following written notice. Section 552.105 penalties range from $10,000 to $12,000 per curable violation, $80,000 to $200,000 per uncurable violation, and $2,000 to $40,000 per day for continuing violations. A per-encounter attestation converts policy into evidence producible within the cure window.
Clinics preparing for 2026 audits should reconcile attestations, finalized notes, and claims carrying G2211 or modifier 25 quarterly. Schedule a 15-Minute Workflow Audit to review your EHR field mapping and disclosure sequence.
