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

© 2008 Dinsmore & Shohl LLP

Presented by:

Charles M. Johnson, Esq.

October 30, 2008

Special Issues Regarding

Confidentiality and Release of Medical

Records


A. HIV RecordsConfidentiality 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.


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:


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).


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;


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;


HIV Records8) 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.


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


HIV RecordsThe 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;


HIV RecordsThe 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.


HIV RecordsVoluntary 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


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;


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.


HIV RecordsAnonymity 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.


HIV RecordsTests 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.


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


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


HIV RecordsMandatory Tests – tests are required

for:1. Convictions for Prostitution2. Convictions for Sexual abuse, sexual

assault, incest or molestation3. When the Commissioner knows or

has reason to believe, because of epidemiological information, that a person is a danger to the public health


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.


HIV RecordsMandatory 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)


HIV RecordsNotification 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.


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.


HIV Records

Reporting RequirementsWithin 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.


HIV RecordsOther 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.


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.


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.


Mental Health RecordsWest 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).


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…


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;


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.


Release of Medical Records to Third Parties4) 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)


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


Release of Medical Records to Third PartiesCriminal 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)


Release of Medical Records to Third PartiesDisclosure 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)


Release of Medical Records to Third Parties

Danger to Patient or Third PartiesUnder 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.


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.


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


Substance Abuse RecordsRelease of Substance Abuse Records

to Third Parties1) 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.


Substance Abuse Records2) 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.


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.


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.


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.


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.


D. MinorsRegarding 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.


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.


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.


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.


DivorceThe 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.


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.


Statutory Authority for Rights of Minors Absent Parental Knowledge and ConsentLaw 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


Statutory Authority for Rights of Minors Absent Parental Knowledge and Consent

Minors can obtain treatment from licensed physicians for venereal disease without the knowledge or consent of the minor’s parents or legal guardian in order to enable the prompt detection and treatment of the disease and in order t promote the public health. W.Va. Code §16-4-10


Statutory Authority for Rights of Minors Absent Parental Knowledge and Consent Minors can obtain treatment for addiction to or

dependency upon alcohol or non-intoxicating beer without the knowledge or consent of the minor’s parent or guardian in order to promote access to alcohol abuse treatment and prevent or ameliorate the serious consequences that may arise as a result of alcohol abuse. W. Va. Code §60-6-23.


Statutory Authority for Rights of Minors Absent Parental Knowledge and ConsentMinors can also obtain treatment for

drug addiction or dependence related to controlled substance abuse without the consent of he minor’s parent or guardian pursuant to W. Va. Code §60A-5-504(e).


Statutory Authority for Rights of Minors Absent Parental Knowledge and Consent A minor can obtain access to birth control and

prenatal care without the knowledge and consent of the parent or guardian. W. Va. Code §16-29-1(b).

A minor can avoid notification to parents in order to obtain an abortion if there is an emergency threatening the life or health of the pregnant minor. W.Va. Code §16-2F-5.


Statutory Authority for Rights of Minors Absent Parental Knowledge and ConsentThe Mature Minor Doctrine The Supreme Court has reaffirmed the

authority of minors who have obtained sufficient maturity to consent to treatment, and arguably also consent to access or release of medical records.


Statutory Authority for Rights of Minors Absent Parental Knowledge and ConsentThe importance of this case is that

“mature minors” may not only consent to treatment, but can refuse treatment. Mature minors may have some degree of autonomy regarding access to medical records.


Investigations Regarding Child Abuse and Neglect Under W. Va. Code §49-6A-2, providers may

be required to report suspected child abuse and neglect within 48 hours to the Department of Health and Human Resources; and

In addition, in any situation involving serious physical abuse or sexual assault, providers may also be required to report to appropriate law enforcement agencies.


Investigations Regarding Child Abuse and NeglectProviders that in good faith make an

allegation of abuse and neglect are immune from civil or criminal liability that otherwise might result by reason of such actions pursuant to W. Va. Code §49-6A-6


Investigations Regarding Child Abuse and Neglect Providers should be careful to limit their

disclosure to those particular agencies identified in the statute, namely the local child protective service agency and/or the local law enforcement agency in charge of any such investigation.

Caution should be made to: 1) not disclose information related to alleged abuse and neglect allegations to others informally involved in the proceeding and 2) limit the disclosure to that information necessary in order to investigate the allegations of suspected abuse and neglect.


Release of Minors Mental Health Records Pursuant to Court Order In the event a child’s mental health records

are requested pursuant to a legal proceeding, and the child is not a party to the proceeding and is not otherwise represented, the child should be joined as a party and a guardian should be appointed in order to protect the child’s rights. Nelson v. Ferguson, 399 S.E. 2d 909 (1990).


Release of Minors Mental Health Records Pursuant to Court Order The Supreme Court has stated that, “a Circuit

Court should make every effort to ensure confidentiality of a child’s mental health records and to minimize press coverage surrounding those records.” Nelson v. Ferguson, supra. See also, Child Protective Group v. Cline, supra.


Duty to Warn Third Parties

Under W. Va. Code §27-3-1, information obtained during a professional relationship with mental health patients is also considered confidential and may be released to third parties only in certain specific and limited situations including the need to protect against a clear and substantial danger of harm to the patient or third parties.

There are specific requirements which allow to licensed professional counselors and licensed social workers to warn in similar situations. See W.Va. Code §3-31-13 and W.Va. Code §30-30-12


Mr. Johnson is a member of Dinsmore & Shohl LLP. The primary focus of Mr. Johnson’s practice involves health care matters involving hospitals,

long-term care and assisted living facilities, physicians, health care providers, and other health care providers and health care related businesses, as well as corporate work and civil litigation.

For additional information, you may call Mr. Johnson at

(304) 357-0925, email him at [email protected] or visit the Dinsmore & Shohl LLP website at www.dinslaw.com.

Charles M. Johnson, Esq.

Documents

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