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Presented by: Charles M. Johnson, Esq. October 30, 2008

Special Issues Regarding Confidentiality and Release of Medical Records. Presented by: Charles M. Johnson, Esq. October 30, 2008. A. HIV Records. Confidentiality and AIDS Related Records

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Presented by: Charles M. Johnson, Esq. October 30, 2008

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  1. Special Issues Regarding Confidentiality and Release of Medical Records Presented by: Charles M. Johnson, Esq. October 30, 2008

  2. A. HIV Records Confidentiality and AIDS Related Records • The West Virginia AIDS-Related Medical Testing and Records Confidentiality Act, W. Va. Code §16-3C-1 (“Act”), and the • Aids-Related Medical Testing and Confidentiality Regulations, WV CSR 64-64-1 (“Regulations”) • provide specific requirement for disclosure of AIDS related records.

  3. HIV Records • These laws prohibit the disclosure of the identity of any person upon whom an HIV-related test is performed or the results of such a test • Disclosure of HIV tests must be made in a manner which precludes identification of the subject of the test • There are limited exceptions to the general rule prohibiting disclosure:

  4. HIV Records • 1) The subject of the test; • 2) The victim of the crimes of sexual abuse, sexual assault, incest or sexual molestation at the request of the victim or the victim’s legal guardian; • 3) Any person who secures a specific release of test results executed by the subject of the test; • 4) A funeral director or an authorized agent or employee of a health facility or health care provider (under certain limited circumstances).

  5. HIV Records • 5) Licensed medical personnel or appropriate health care personnel providing care to the subject of the test when knowledge of the test results is necessary or useful to provide appropriate care or treatment. • 6) The Center for Disease Control;

  6. HIV Records • 7) A health facility or health care provider which procures, processes, distributes, or uses: (i) a human body part from a deceased person with respect to medical information regarding that person; (ii) semen provided prior to the effective date of this article for purposes of artificial insemination; (iii) blood or blood products fro transfusion or infection, or (iv) human body parts for transplant with respect to medical information regarding the donor or recipient;

  7. HIV Records • 8) Health facilities staff committees or accreditation or oversight review organizations which are conducting program monitoring, program evaluation or service reviews so long as any identity remains anonymous; • 9) A person allowed access to the information by a court order which is issued in compliance with certain specified provisions.

  8. HIV Records • No person to whom the results of an HIV-related test have been disclosed may disclose the results of the test to another person except as authorized by law

  9. HIV Records The Act and Regulations apply to: • 1) Health facilities • 2) Health care providers • 3) Funeral service providers and personnel • 4)Persons issuing marriage licenses • 5) Persons with access to or in charge of medical records or other sources of information regarding AIDS-related testing information;

  10. HIV Records The Act and Regulations apply to: • 6) Laboratories • 7) Medical or emergency responders and their employers, and • 8) Spouses, sexual contacts and IV drug contacts at risk of HIV exposure.

  11. HIV Records Voluntary Tests – A physician, dentist, health care provider acting within the scope of his or her professional license, or the Commissioner of the Bureau of Public Health may request that a person consider voluntarily consenting to an HIV-related test when there is a cause to believe: • 1) That the person may have a positive HIV test; • 2) That the test could provide information important to the care of the patient; or • 3) knowledge of a test result is necessary for effective counseling

  12. HIV Records • Information required to be provided to tests subjects – The requesting physician, dentist, health care provider acting within the scope of his or her professional license, or Commissioner shall provide the patient with written or information in a user friendly format which must be approved by the Bureau of Public Health. • The information must include the following: • 1) An explanation of the test; • 2) An explanation of the procedures to be followed in performing the test;

  13. HIV Records • 3) An explanation that the test is voluntary and may be obtained anonymously; • 4) An explanation that consent for the testing may be withdrawn at any time prior to the drawing of the sample for the testing and that the withdrawal of consent may be given orally if the consent was given orally, or shall be in writing if the consent was given in writing; • 5) An explanation of the nature and current knowledge or asymptomatic HIV infection, ARC, and AIDS and the relationship between the test result and those diseases; and • 6) Information about behaviors known to pose a risk for transmission of HIV infection.

  14. HIV Records Anonymity • A person seeking an HIV-related test has the right to remain anonymous and to provide written, informed consent through use of a coded system with no linking of individual identity to the test request or results. • If a testing facility does not have anonymous testing, it has a duty to refer a patient, who desires an anonymous test, to a facility which offers anonymous testing or to any local or county health department.

  15. HIV Records Tests Without Consent • (a) A health care provider or health facility performing an HIV-related test on the donor or recipient when the health care provider or health facility procures, processes, distributes or uses a human body part (including tissue and blood or blood products or semen) and such test is necessary to assure medical acceptability; PROVIDED: Reasonable efforts should be made to obtain consent.

  16. HIV Records • (b) The performance of an HIV-related test in documented bonafide medical emergencies when the subject of the test is unable to grant or withhold consent, ant the test results are necessary for the medical diagnostic purposes to provide appropriate emergency care or treatment that (post-test counseling is still needed; or referral for counseling; or

  17. HIV Records • (c) The performance of an HIV-related test for the purpose of research if the testing is performed in a manner by which the identity of the test subject is not known an may not be retrieved by the researcher. • (d) The Director of the Department of Health may issue an order requiring a person to be tested for HIV infection if he has reason to believe that a person may be a danger to the public health

  18. HIV Records • Mandatory Tests – tests are required for: • 1. Convictions for Prostitution • 2. Convictions for Sexual abuse, sexual assault, incest or molestation • 3. When the Commissioner knows or has reason to believe, because of epidemiological information, that a person is a danger to the public health

  19. HIV Records • 4. The Commissioner may require an HIV test for the protection of any person who was possibly exposed to HIV infected blood or other body fluids as a result of receiving or rendering emergency medical aid or who possibly received such exposure as a funeral director.

  20. HIV Records Mandatory Disclosure Statement • Whenever disclosure is made (except to the patient or the CDC), the disclosed information shall be accompanied by a statement in writing which includes the following or substantially similar language: • This information has been disclosed to you from records whose confidentiality is protected by State law. State law prohibits you from making any further disclosure of the information without the specific written consent of the person to whom it pertains, or as otherwise permitted by law. A general authorization is NOT sufficient for this purpose. W.V. Code § 16-3C-3(c)

  21. HIV Records Notification of Third Parties • A health care facility may use HIV test results to inform individuals named or identified as a spouse, sex partners, or persons who have shared needles that they may be at risk or having acquired the HIV infection as a result of possible exchange of body fluids. However, the name or identity or the person whose HIV test result was positive is to remain confidential.

  22. HIV Records • It is recommend that private health care providers allow the Division of Public Health to make the contacts. NOTE: There is no duty on the part of the physician or health care provider to notify a spouse or other sex partner, or person who has shared needles with the infected person; however, if contact is not made, the Bureau must be so notified.

  23. HIV Records Reporting Requirements • Within 30 days of the receipt of the test results, a health care provider must report all positive test reports to the Commissioner of the Division of Public Health. Laboratories shall submit reports on the 1st and 15th day of each month.

  24. HIV Records Other Provisions of the Act • Access to health care. A positive HIV test report, or the diagnosis or ARC or the diagnosis of the AIDS syndrome or disease may not constitute a basis upon which to deny individuals, so diagnosed, access to quality health care; • No Delays in Care. Nothing in the ACT or Regulations shall permit a health care provider to screen, delay or deny necessary medical treatment to a person who is HIV positive.

  25. HIV Records • Discrimination. No student of any school or institution or higher learning, public or private, may be excluded from attending the school or institution of higher learning, or from participating in school sponsored activities, on the basis of a positive HIV test, or a diagnosis of ARC or AIDS syndrome or disease. • Exclusion may only be based on the student representing an unacceptable risk as agreed to by the Director for the transmission of the HIV to others because of the stage or nature of the illness.

  26. B. Mental Health Records • The confidentiality of medical records for patients seeking help for mental problems is necessary in order to encourage patients to seek prompt treatment for such problems without fear of disclosure. • In addition, the confidentiality of mental health records promotes an open and honest discourse between the patient and the counselor about the intimate details regarding the patient’s problem.

  27. Mental Health Records • West Virginia courts have recognized a cause of action for invasion of privacy for the improper disclosure of medical records. See, e.g., Allen v. Smith, 368 S.E. 2d 924 (W. Va. 1988).

  28. Mental Health Records • West Virginia law generally requires health care providers to release medical records to the patient upon the presentation of a proper written authorization for such release under W.Va. Code §16-29-1, et seq. • However, there is a special exception created for patients receiving psychiatric or psychological treatment under W.Va. Code §16-29-1(a). This section requires only that the provider give a summary of the medical records to the patient following termination of the treatment program…

  29. Release of Medical Records to Third Parties • Under W.Va. Code §27-3-1, information regarding mental health patients is confidential, and may be released to third parties only under certain specific and limited circumstances, as follows: • 1) In proceedings for the involuntary commitment of an individual to a mental health facility for treatment; • 2) In proceedings to determine the competency of a criminal defendant to stand trial or to determine whether the criminal defendant is legally responsible;

  30. Release of Medical Records to Third Parties • 3) Pursuant to a court order determining that the need for the requested information outweighs the need to maintain the confidentiality of the information. Note: A bare subpoena is insufficient and should not be honored since these may be obtained in some circumstances by mere application of counsel. See, e.g., Child Protection Group v. Cline, 350 S.E.2d 541 (W.Va. 1986); Nelson v. Ferguson, 399 S.E.2d 909 (W.Va. 1990.

  31. Release of Medical Records to Third Parties • 4) To protect against clear and substantial danger that the patient will injure either himself or third parties; and • 5) For the purpose of treatment by other providers and for internal review of the treatment program. See, e.g., State Ex Rel. Shroades v. Henry, 421 S.E.2d 264 (W.Va. 1992)

  32. Release of Medical Records to Third Parties • In the event that none of the above exceptions under W.Va. Code §27-3-1 exist, mental health patient records may be released only upon the written consent and authorization of the patient

  33. Release of Medical Records to Third Parties Criminal Matters: • In 1983, the Supreme Court of Appeals of West Virginia recognized that a criminal defendant has a privacy right in the confidentiality of mental health records, and that a physician examining a criminal defendant to determine mental competency should first obtain a court order prior to obtaining access to his or her medical records. State v. Simmons, 309 S.E.2d 89 (W.Va. 1983)

  34. Release of Medical Records to Third Parties Disclosure Pursuant to Court Order • In order to determine whether mental health records should be disclosed, a court must determine that the need for disclosure outweighs the need for maintaining the confidentiality of the records. The court can limit disclosure of records which are not relevant to the instant proceeding and to the issues to be decided before the court. Child Protection Group v. Cline, 399 S.E. 2d 541 (W.Va. 1986)

  35. Release of Medical Records to Third Parties Danger to Patient or Third Parties • Under W.Va.Code §27-3-1(b)(4), disclosure of information contained in mental health patient records is permitted in situations in which there is danger of eminent injury by a patient to himself or herself or to third parties.

  36. C. Substance Abuse Records Release of Substance Abuse Records to the Patient • 1) Generally, health care providers licensed in West Virginia are required to provide a copy of medical records to patients and their authorized representatives and agents upon the patients request and submission of a proper release from the patient. W.Va. Code §16-3C-1, et seq.

  37. Substance Abuse Records • 2)Minors receiving alcohol or drug therapy are protected from disclosure of their substance abuse medical records to their parents unless the minor consents in writing to the disclosure. W.Va. Code § 16-29-1 (b). • 3) If a substance abuse patient also is being treated for psychiatric or psychological problems or is also being tested for AIDS, refer to the rules regarding these issues as well

  38. Substance Abuse Records • Release of Substance Abuse Records to Third Parties • 1) Under W.Va. Code § 60A-5-504, medical providers are expressly protected from failing to provide the identity of drug abuse patients to state agencies and courts.

  39. Substance Abuse Records • 2) Federal law requires that drug and alcohol abuse records be kept confidential except under certain circumstances: • a) Emergency circumstances in which disclosure of this information must be made in order to treat the patient. • b) Upon request by qualified personnel to perform scientific research and analysis.

  40. Substance Abuse Records • c) Pursuant to a court order to provide such substance abuse records by court order (subpoenas alone are not sufficient) • d) Pursuant to a reported incident of child abuse or neglect, substance abuse medical records may be examined by the appropriate investigatory agency. • e) Commission of a crime or threats to commit a crime on the premises of the provider by the patient against the patient, provider or the staff.

  41. Substance Abuse Records • 3) In the absence of one of the above exceptions, the medical records of substance abuse patients should not be disclosed except pursuant to proper authorization and consent by the patient. • 4) Federal laws regarding disclosure of substance abuse records apply only to federally-assisted programs treating alcohol and substance abuse problems, whether conducted by an agency of the federal government, certified by Medicare, funded by federal grants, or receiving favorable treatment as a tax-exempt organization.

  42. Substance Abuse Records • 5) In order to fall within the purview of federal laws regarding the confidentiality of alcohol and substance abuse records, a patient must be diagnosed as having a chronic abuse problem. It is not sufficient to have experienced an episodic overdose or period of intoxication. • 6) Violations are punishable by a fine of up to $500 for the first offense and up to $5000 for each subsequent offense.

  43. Substance Abuse Records • 7) In addition to the above civil penalties for violation of federal disclosure laws, there may be a cause of action for invasion of the privacy interests of the patient. • Federal courts have ruled that the federal statute does not create a private right to sue for damages. • However, in West Virginia, the Supreme Court of Appeals has recognized the existence of a private tort for disclosing medical records without authorization.

  44. D. Minors Regarding Access to Medical Records: • In West Virginia, the age of majority is defined by statute as 18 years of age. W.Va. Code §2-3-1. • Upon reaching the age of majority, a person has the legal ability to make decisions regarding treatment and access to medical records.

  45. Access by Parents to their Children’s Medical Records • Cultural changes over the past several decades have expanded the independence of minors, and several West Virginia statues and cases alter or amend the general rule regarding the rights and responsibilities of minors.

  46. Divorce • Regarding medical decisions, under W.Va. Code §48-9-207, family law judges are to allocate the responsibility for making significant life decisions on behalf of a minor, either to one parent or to both parents jointly in consideration of the child’s best interest. • Family law judges will now make a specific finding as to such significant decision-making responsibility, which should be embodied in an order or parenting plan.

  47. Divorce • In the absence of a specific court order or parenting plan governing decision making for health care services and the ability to consent, it may be in a provider’s best interest to assume that both parties retain their legal responsibilities and rights in this regard, and obtain a written release from both parents prior to accessing records and when making medical decisions regarding treatment.

  48. Divorce • The law presumes that a child who is 14 years of age or older is sufficiently mature that he or she can wisely express a preference as to custody for a particular parent, and allows the family law judge to give preference made by children to custody weight in making decisions effecting the children’s future. W.Va. Code §48-9-206.

  49. Parents and Minors • Generally, parents and legal guardians have unfettered discretion to make decisions regarding medical treatment and access to medical records for minors. However, public policy has dictated that there be certain exceptions to this general rule, which have either been adopted by statute or reflected in the decisions of the Courts.

  50. Statutory Authority for Rights of Minors Absent Parental Knowledge and Consent • Law enable a person who has attained the age of the 17 years or older to donate blood without consent from a parent or legal guardian as long as he or she does not receive any compensation for donation. W.Va. Code §16-21-1

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