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DISCOVERY OF MEDICAL RECORDS
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By Charles Dunn
1001 Main Street, Suite 504
P.O. Box 311
Lubbock, Texas 79408
(806)763-1944
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DISCOVERY OF MEDICAL RECORDS
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I. INTRODUCTION
The purpose of this paper is to discuss the discovery of medical records of a litigant involved in a lawsuit. This paper assumes that a lawsuit for personal injuries has been filed by the plaintiff and the defendant is requesting the medical records and other medical information from the plaintiff. The aim of the paper is to update and educate practitioners on the latest developments in discovery of medical records of a party to a personal injury lawsuit.
II. METHODS OF DISCOVERY
There are three basic methods of discovery of medical records and information. The first method of discovery is a written request for a copy of the records or in the alternative a request that the respondent execute a medical release allowing the requesting party to obtain the medical records directly from the provider. The second method is by subpoenaing the records directly from the provider. The third method is by deposition with a request to provide medical records. Each of these methods of discovery is discussed below in more detail.
A. Discovery of Medical Records by Written Request
1. Request for Disclosure Rule 194.2 (j) of the Texas Rules of Civil Procedure provides the most common method of obtaining medical records. The rule states in relevant part as follows:
A party may request disclosure of any or all of the following:
• • •
in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries and damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills.
A proper response to this request requires that the party alleging the injury either produce the medical records that are reasonably related to the injury or provide an authorization permitting disclosure of the medical records. In most cases the dispute is over what medical records are "reasonably related" to the injury. The manner in which the courts have interpreted the extent to which records are relevant or reasonably related to the personal injury claim of the suit will be discussed below.
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B. Discovery of Medical Records by Subpoena to a Records Custodian
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A party may obtain medical records by subpoena which complies with Rule 205 Texas Rules of Civil Procedure. The subpoena must be served on the records custodian with a notice which states the name of the person from whom production is compelled; a reasonable time and place for the production or inspection, and a list of the items to be produced. Each item to be produced must be described with reasonable particularity so that the custodian can reasonably comply with the subpoena, Rule 205.3.
The custodian must comply with the subpoena by producing the documents as they are kept in the usual course of business, subject to any objections or privilege that the custodian may assert. Rule 176.6. Failure of the non-party to comply without adequate excuse is punishable by contempt. Rule 176.8.
C. Discovery of Medical Records by Deposition
Medical Records of a party may be obtained from a non-party or from a party by serving them with a subpoena for their deposition together with a request to produce the medical records at the deposition. When medical records are requested from a provider by subpoena, they are usually accompanied by a deposition by written questions. The provider is served with the subpoena for the records with a date for compliance. A court reporter then appears at the office of the provider, puts the provider under oath, reads the deposition questions and records the response. Rule 200.4. Medical records requested from a party are generally made in conjunction with the parties oral deposition.
THE PHYSICIAN-PATIENT PRIVILEGE
As a general rule medical records are private and are not discoverable because the physician-patient privilege codified at Tex. R. Evid 509 protects confidential communications between a patient and a physician relative to any professional services rendered by a physician to the patient, Rule 509 (c)(1). The privilege extends to and protects the identity, diagnosis, evaluation or treatment of a patient, Rule 509 (c)(2). As with all rules, there are numerous exceptions to the privilege.
A. Suit Against a Physician
If the patient files suit against the physician or if the patient is testifying as a complainant in a license revocation proceeding against the physician and the records are relevant to the claims or defense the subject of the proceedings, then the records are discoverable, 509 (e)(1).
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B. Written Consent
Medical records are discoverable if the patient signs a written consent that complies with Rule 509(f). The release must be signed by the patient or parent if the patient is a minor or a personal representative if the patient is deceased. The release must specify the records to be covered by the release and the person to whom the information is to be released.
C. Suit to Collect for Medical Services
Medical information and records are discoverable in a suit to collect for services rendered to the patient, Rule 509(e)(3).
D. Disciplinary Investigation
If a physician or registered nurse is part of an investigation pursuant to the Medical Practices Act, records are discoverable provided that the identity of the patients is protected, Rule 509(e)(5).
E. Commitment
Medical records are discoverable in commitment proceedings, Rule 509(e)(6).
F. Institutional Abuse or Neglect
Medical information is discoverable under Rule 509(e)(7) in an investigation of an institution for abuse or neglect of a resident as defined under Health & Safety Code §242.002(10). This provision generally applies to nursing homes.
G. Patient-Litigant Exception
This is the most commonly relied upon exception to the physician-patient privilege. Rule 509(e)(4) makes medical information discoverable if the information is relevant to the condition of the patient in a proceeding in which the patient's condition is part of his claim or defense.
THE PATIENT-LITIGANT EXCEPTION
A. The Rule
Rule 509(e)4 sets forth the patient-litigant exception to the physician-patient privilege. The rule states that an exception to the privilege exists as to a "communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the parties claim or defense."
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B. The Scope of the Patient-Litigant Exception
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The patient-litigant exception makes discoverable most medical records of the plaintiff if he relies upon his medical condition as part of his lawsuit or claim. The problem arises when one is faced with the extent or scope of the exception. Because a claimant sues for an injury to his back, should medical records of a previous neck injury be discoverable? What about a previous hand injury? What about time limits? How far back in time are records discoverable? In MA. W. v. Hall, 921 S.W. 2d 911 (Tex. App.- Houston [14th Dist] 1996) a patient sued her doctor for medical malpractice. The plaintiff alleged that the doctor was under the influence of drugs or alcohol when the doctor treated the plaintiff. The plaintiff requested the medical records on written questions from the doctor's psychiatrist. The doctor objected on the grounds that the records were protected by the physician-patient privilege. The plaintiff alleged that the patient litigant exception applied. In deciding the case, the Houston court applied the test set forth by the Supreme Court in R. K. v. Ramirez, 887 S.W. 2d 836 (Tex. 1994). The Ramirez case set out a two pronged test for the determination of when the patient-litigant exception applies. In order to meet the exception and defeat the privilege, the records sought to be discovered must be relevant to the condition at issue and the condition must be relied upon as a part of a parties claim or defense. Both parts of the test must be met for the patient-litigant exception to apply. The Supreme Court also stated that if the condition is part of a claim or defense, medical information should only be revealed to the extent necessary to provide relevant evidence relating to this condition. The court should make an in camera inspection of the records to be sure that the request is closely related in time and scope to the claims made.
Applying the Ramirez test, the M.A.W. court held that the records related to the doctors substance abuse were discoverable because they were relevant to the condition at issue in the lawsuit. Other records of the doctors medical history were deemed privileged.
InMidkiffv. Shaver, 788 S.W. 2d 599 (Tex. App. - Amarillo 1990) the defendant deposed plaintiffs and requested the identity of all physicians who treated them for symptoms of mental anguish. Plaintiffs refused to answer the questions asserting the physician-patient privilege. The trial court held that because mental anguish was a "condition" at issue in the suit, the plaintiffs were required to provide the names and addresses of all health care providers who had treated them along with an unlimited medical release. In granting mandamus and reversing the trial court the Amarillo court held as follows:
It follows that under this record, the scope of discovery should have been limited to the medical and hospital records and questions related to the medical attention sought for the symptoms of the
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respective mental anguish claims. Consequently, respondent clearly abused his discretion by subjecting all or relators medical records to discovery.
Texas courts have routinely held that the patient-litigant exception is a narrow one. A plaintiff should never sign a medical release that does not limit the release of information to medical records relevant to the plaintiffs claim. In Mutter v. Wood, 744 S. W. 2d 600 (Tex. 1988) the Supreme Court held that a trial court abuses its discretion of it orders a plaintiff to sign a medical authorization permitting the defendant or his attorney to discuss the medical care and treatment of the plaintiff with the treating physician. The court held that such a release is overbroad and should have been drawn more restrictively to respect whatever privileged communications that might exist between the physician and the patient.
C. The Offensive Use of the Privilege
The claimaint may not rely upon the physician-patient privilege as an offensive weapon. If the plaintiff seeks the jurisdiction of the court for affirmative relief, then the plaintiff cannot attempt to use a privilege to prevent the defendant from obtaining evidence which would defeat the claim brought by the plaintiff. This is the so called offensive use of the privilege. In Ginsburg v. Fifth Court of Appeals, 686 S. W. 2d 105 (Tex. 1985) the Supreme Court held that a plaintiff could not rely upon the physician-patient privilege to defeat the defendants statute of limitations defense. In Ginsburg, the plaintiff, at deposition, stated that she was not aware of a disputed deed transfer until 1981. The medical records of her treatment by a psychiatrist revealed that she had knowledge of the deed transfer as far back as 1972. The court held that the Plaintiff could not assert the physician-patient privilege to prevent the discovery of the records because such a use of the privilege was an "offensive" use and violated the principles of fundamental fairness.
V. DISCOVERY OF THE IDENTITY OF PATIENTS
Unlike other privileges which protect only communications or reports, the physician-patient privilege also protects identities. Numerous cases have held that the identity of patients is protected from a discovery request. In re Anderson, 973 S.W. 2d 410 (Tex. App. - Eastland 1998, Orig. proceeding), In re Dolezal, 970 S. W. 2d 650 (Tex. App. -Corpus Christi 1998, Orig. proceeding), Charles Xeller, M.D. vs. Highlands Casualty Insurance Co., 6 S. W. 3d 618 (Tex. App. Houston [14th Dist.] 1999, orig. proceeding). No court has answered whether or not the identity of every physician who has treated plaintiff is protected. The Ramirez test would probably be applied to determine if the patient-litigant exception to the privilege is applicable.
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PRACTICE TIPS
A. From a Plaintiffs Perspective
1. Medical Release - Never sign an unlimited medical authorization furnished to you by the defense. Always limit the medical authorization to medical treatment after the date of your clients injury. Always put a sentence in the release that makes it clear that the release does not allow ex-parte communications between the health care provider and the defendant's attorney. The proper objection to make to an unlimited medical release is that it violates the physician-patient privilege, the release is overbroad in that it is not limited as to health care provider or date of injury and the release requests information that is not relevant nor will the information requested lead to the discovery of relevant evidence.
2. Interrogatories - Never answer interrogatories which request the name of every health care provider who has treated your client in the past. Never answer interrogatories that request your client to list each injury he has had in the past. Assert the same objections that are recommended for an unlimited medical release. However, if your client has sustained an injury in the past to a portion of his body in which he is claiming an injury in the present lawsuit, you must allow the defense to discover that information as the patient-litigant exception to the physician-patient privilege applies.
3. Depositions - Continue to protect the physician-patient privilege in deposition. If an improper question is asked regarding your client's past medical history, do not allow your client to answer the question. Object and assert the physician-patient privilege. Failure to object will waive the privilege.
B. From the Defendants Perspective
1. Medical Release - Always send a broad form medical release that is not limited as to health care provider or time. The worst thing that can happen is that the plaintiff objects. Many plaintiffs attorneys will sign the release and send it back to you thereby waiving the privilege. Any unrevoked unlimited medical release is a powerful defense tool.
2. Interrogatories and Depositions - Always ask for the names and addresses of health care providers for at least the preceding 10 years. Always ask for a list of injuries and names of treating hospitals and physicians. Always request the records when you receive the information. If you don't have an unlimited release, subpoena the records. If the plaintiff does not move to quash the subpoena, then he waives any objection at a later date.
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VII. PRESERVING THE PRIVILEGE
A. Procedure to Claim a Privilege
Privilege claims are no longer asserted by mere objections, Rule 193.2 (f). The rules provide that the responding party should not object to a written discovery request on the grounds that the information is privileged. Instead, the responding party should comply with the procedure set forth in Rule 193.3.
Rule 193.3(a) and (b) sets out a three step procedure for raising privilege claims. First, the responding party must withhold the privileged material and state that privileged material is being withheld. Under 193.3(a) the responding party must state that (1) information or material responsive to this request has been withheld, (2) the request to which the information or material relates, and (3) the privilege asserted. Rule 193.3(c) provides an exception to this procedure for certain attorney client created documents.
After receiving the response that certain information has been withheld, the party seeking discovery may serve a written request that the withholding party identify the information withheld. The withholding party must then provide a privilege log of the withheld material within 15 days.
Failure to follow the procedure outlined by 193.3 could constitute a waiver of the privilege claim.
B. Responding Subject to Privilege Claims
When the responding party withholds material due to a claim of privilege, the responding party does not have to produce the material until it is ruled on by the court. Once there is a court hearing, if the material is held to be privileged, the responding party has no further duty to respond to the request. If the court overrules the privilege, the responding party must produce the documents within 30 days or at such time as the court orders.
C. Accidently Disclosing Privileged Documents
Rule 193.3(d) provides that if a responding party inadvertently produces material or information without intending to waive a claim of privilege, the responding party does not waive the privilege if he notifies the requesting party of the mistake within 10 days of the discovery of the mistake and amends his response. The requesting party then must return the material pending a ruling on the privilege.
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D. Discovery Dispute Hearings
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1. Certificate of Conference - All discovery dispute hearings must contain a certificate of conference by the party filing the motion stating that the parties have attempted to resolve the dispute without the necessity of a hearing but have failed.
2. Hearings - A hearing on a discovery dispute can be held at any reasonable time, Rule 193.4(a). Presumably, discovery dispute hearings can be held even after the time period for discovery pursuant to a scheduling order or discovery plan has elapsed.
3. Burden to Request a Hearing - Any party may request a discovery dispute hearing, Rule 193.(4)(a).
4. If No Hearing Held - If no hearing is held on a privilege, the privilege is sustained and the responding party need not produce the documents or information. It is important for the requesting party to request a timely hearing on the privilege.
CONCLUSION
One of the most important discovery matters in any personal injury trial is the discovery of medical history and information. Plaintiffs should be vigilant in protecting their privacy as to unrelated treatment and claims. Conversely, The defendant has a duty and obligation to determine if the plaintiff has any related treatment or injuries that would effect the subject lawsuit. Striking a balance between the two competing interests is the reason the practice of law is an art and not a science.
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AIDS AND MENTAL HEALTH RECORDS
By Charles Dunn
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PART I. REQUIREMENTS FOR MENTAL HEALTH RECORDS1
A. The Privilege
1. Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional are confidential. Confidential information may not be disclosed except as provided.
a. "Patient" means a person who consults or is interviewed by a professional for diagnosis, evaluation or treatment of any mental or emotional condition or disorder, including alcoholism or drug addiction.
b. "Professional" means:
(1) A person authorized to practice medicine in any state or nation;
(2) A person licensed or certified by Texas to diagnose, evaluate or treat any mental or emotional condition or disorder; or
(3) A person the patient reasonably believes is authorized, licensed or certified to diagnose, evaluate or treat any mental or emotional condition or disorder.
2. Records of a mental health facility that directly or indirectly identify a present, former or proposed patient are confidential unless disclosure is permitted by other state law.2
B. The Patients Right to Access Mental Health Information3
1. No later than 15 days after receiving a written request from a patient to examine or copy the patient's mental health care information, a professional must.4
a. Make the information available for examination during regular business hours and provide a copy to the patient, if requested; or
b. Inform the patient if the information does not exist or cannot be found.
2. The professional may deny access to any portion of a record if the professional determines that release of that portion would be harmful to the patient's physical, mental or emotional health.
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a. If the professional denies access to any portion of a record, the professional must give the patient a signed and dated written statement that having access to the record*would be harmful to the patient's physical, mental or emotional health.
(1) The professional must include a copy of the written statement in the patient's records.
(2) The statement must specify the portion of the record to which the access is denied, the reason for the denial, and the duration of the denial.
b. The professional who denies access to a portion of a record must redetermine the necessity for the denial each time a request for the denied portion is made.
c. If the professional again denies access, the professional must notify the patient of the denial and document the denial as prescribed in 2. a. above.
3. If a professional denies access to a portion of a confidential record, the professional shall allow examination and copying of the record by another professional if the patient selects the other professional to treat the patient for the same or related condition as the professional denying access.
4. The content of a confidential record must be made available to a person who has written consent of the patient, or a parent if that patient is a minor, or a guardian if the patient has ben adjudicated incompetent, or the patient's personal representative if the patient is deceased. If requested, the professional must prepare a summary or narrative.
5. A professional must delete confidential information about another person who has not consented to the release, but may not delete information relating to the patient that another person has provided, the identity of the person responsible for that information or the identity of any person who provided information that resulted in the patient's commitment.
6. The professional or other entity that has possession or control of the record must grant access to any portion of the record to which access is not specifically denied within a reasonable time and may charge a reasonable fee.
7. Notwithstanding the Medical Practice Act (MPA), this law applies to the release of a confidential record created or maintained by a professional, including a physician that relates to the diagnosis, evaluation or treatment of a mental or
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emotional condition or disorder, including alcoholism or drug addiction.
8. The denial of a patient's access to any portion of a record by the professional or other entity that has possession or control of the record suspends, until the release of that portion of the record, the running of an applicable statute of limitations on a cause of action in which evidence relevant to the cause of action is in that portion of the record.
C. Release of Information
1. A professional may charge a reasonable fee for retrieving or copying mental
health care information, and is not required to make the records available until the fee is paid unless there is a medical emergency.5
D. Exception to Privilege of Confidentiality
1. Mental health records may be disclosed without the patient's consent in the following judicial and administrative proceedings.6
a. When the proceedings are brought by the patient against a physician or professional including but not limited to malpractice proceedings, and in any license revocation proceedings in which the patient is a complaining witness and in which disclosure is relevant to the claim or defense of a physician or professional;
b. When the patient (or a representative of the patient acting on the patient's behalf) waives the confidentiality privilege by submitting a written authorization to the release of any confidential information;
c. When the purpose of the proceeding is to substantiate or collect on a claim for mental or emotional health services rendered to the patient;
d. In certain cases involving court-ordered examinations relating to the patient's mental or emotional condition or disorder, in which the judge finds that the patient (after having been previously informed that the communications would not be privileged) has made communications to a professional, provided that such communication shall not be privileged only with respect to issues involving te patient's mental or emotional health. On granting such an order, however, the court shall impose appropriate safeguards against unauthorized disclosure;
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e. When the communication or record is relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which he or she relies upon the conditiomas an element of his or her claim or defense, or after the patient's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense;
f. When the disclosure is relevant in any suit affecting the parent-child relationship;
g. In any criminal proceeding, as otherwise provided by law;
h. In any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an institution such as a convalescent or nursing home.
i. Relating to a will if the patient's physical or mental condition is relevant to
the execution of the will;
j. In an involuntary civil commitment proceeding, proceeding for court-
ordered treatment or probable cause hearing under;
(1) The Texas Mental Health Code;
(2) The Mentally Retarded Persons Act of 1977; or
(3) The statute that deals with involuntary treatment of chemically-dependent persons.
k. Where a court or agency has issued an order or subpoena.
2. Section 576.005 of the Mental Health Code permits a treating physician to release necessary information that may identify a patient to a law enforcement officer or to a patient's legally authorized representative if the treating physician determines that it is in the patient's best interest. However, such a disclosure may not be made if the patient gives contrary written instruction to the physician.7
3. Authorized disclosure of mental health records outside a judicial or administrative proceeding may be made to the following persons:8
a. Governmental agencies, when such disclosures are required or authorized
by law;
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b. Medical or law enforcement personnel, when the professional determines that there is a probability of imminent physical injury by the patient to himself or to others, or when there is a probability of immediate mental or emotional injury to the patient;
c. Qualified-personnel, for the purpose of management audit, financial audit, program evaluation, or research, but such personnel may not identify, directly or indirectly, a patient in any report of such research, audit or evaluation, or otherwise disclose identity in any manner;
d. Any person who bears a written consent of the patient, or a representative of the patient acting on the patient's behalf for the release of confidential information. Representatives include:
(1) A parent if the patient is a minor;
(2) A guardian if the patient has been adjudicated as incompetent to manage the patient's personal affairs; or
(3) The patient's personal representative if the patient is deceased;
e. Individuals, corporations or governmental agencies involved in the payment or collection of fees for mental or emotional health services rendered by a physician or professional;
f. Other professionals and personnel under the direction of professionals who are participating in the diagnosis, evaluation, or treatment of the patient;
g. In any official legislative inquiry regarding state hospitals or state schools, provided that no information or records that identify a patient shall be released for any purpose without consent to the release and only records created by the state hospital or school or its employees shall be included in this exception;
h. The health care personnel of a penal or other custodial institution in which the patient is detained when the disclosure is only to provide health care to the patient;
i. An employee or agent of a professional who requires mental health care
information to provide mental health services or to comply with statutory, licensing, or accreditation requirements if said professional has taken appropriate steps to insure that the employee or agent will not use or disclose the information for any other purpose and will take appropriate
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steps to protect the information; and
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j. Someone requesting the medical records of a deceased or incompetent
person in the context of a health care liability claim when the request is accompanied by an authorization signed by a parent, spouse or adult child of the deceased or incompetent person.
E. Relief for Improper Disclosure or Failure to Disclose9
1. A person aggrieved by the improper disclosure of or failure to disclose confidential communications or records in violation of the Mental Health Code may petition the district court of the county in which the person resides for appropriate relief including injunctive relief. The aggrieved person also has a civil cause of action for damages.
2. In a suit contesting the denial of access to the patient; the burden of proving that the denial was proper is on the professional who denied the access.
3. A patient may revoke a consent for disclosure, but may not maintain an action against a professional for wrongful disclosure if the professional relied in good faith on an authorization and did not have notice of the revocation of the consent.10
PART II.
REQUIREMENTS FOR SUBSTANCE ABUSE TREATMENT RECORDS11
A. Confidentiality of Information
1. In addition to state requirements for the disclosure of medical records, additional requirements under federal law must be met before substance abuse records may be disclosed by a health care facility that provides certain types of federally assisted treatment services, including services under Medicare.12 Under federal law, the records of patients who have undergone substance abuse treatment are confidential and may not be disclosed without the patient's specific consent or without a showing of good cause and entry of an appropriate order by the court.
2. TDMHMR has adopted regulations concerning confidentiality based on these federal requirements to govern the disclosure of drug/alcohol abuse treatment records in state facilities and community mental health and mental retardation centers.13
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B. Requirements for Disclosure
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1. Introduction
a. "Records" of the identity, diagnosis, prognosis, or treatment of any patient maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research (if any department or agency of the United States directly or indirectly conducts, regulates, or assists the program or activity) may be disclosed only with valid authorization as described in B.2 and by court order as described in B. 3 below.
b. "Records" means any information whether recorded or not, relating to a patient and received by a federally assisted substance abuse program.15
c. The presence of an identified patient in a facility (or component of a facility) that is publicly identified as a place where only substance abuse detoxification or treatment is provided may be acknowledged only if the patient consents in writing or a court has entered an appropriate order.16
d. The restrictions on disclosure apply whether the holder of the information believes that the person seeking the information already has it, has other means of obtaining it, is a law enforcement or other official, has obtained a subpoena, or asserts any other justification for disclosure or use which is not permitted by the federal regulations.17
2. Authorized consent.
a. The records described in B. 1 above may be released on presentation of the
written consent of:
(1) The patient;
(2) The minor patient, if state law permits the minor patient to consent to the treatment (otherwise the minor's parent, guardian, or managing conservator);
(3) The guardian or person authorized under state law to act on the patient's behalf if the patient has been adjudicated as lacking the capacity;
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(4) The executor, administrator, or personal representative of a
deceased patient of, if none, the spouse or, if none, a responsible member of a deceased patient's family; or
b. For an authorization under 2,a above to be effective, the federal
regulations require that the written consent must include the following:18
(1) The name of the program that is to make the disclosure;
(2) The name or title of the person or organization to which disclosure is to be made;
(3) The name of the patient;
(4) The purpose or need for the disclosure;
(5) The extent or nature of information to be disclosed;
(6) A statement that the consent is subject to revocation at any time except to the extent that action has been taken in reliance thereon;
(7) Specification of the date, event, or condition upon which consent will expire without express revocation;
(8) The date on which the consent is signed; and
(9) The signature of the patient and/or other authorized person.
Without consent.
a. The records described in B. 1 above may be released with or without
consent, under any of the following circumstances:
(1) To medical personnel to the extent necessary to meet a bona fide medical emergency;
(2) To qualified personnel to conduct scientific research, management audits, financial audits, or program evaluation, although such personnel may not disclose patient identities in any manner, directly or indirectly, or
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Health Records
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(3) On presentation of an appropriate court order of a court of
competent jurisdiction granted after application showing good cause.
b. Review by court.
(1) Records may not be disclosed pursuant to a court subpoena only.
(2) As provided in 3.a. (3) above, the person holding the records may not disclose the records in response to the subpoena unless a court of competent jurisdiction enters an authorizing order under the federal regulations.19
(3) Any oral argument, review of evidence, or hearing on an application for release of records must be held in the judge's chamber or in a manner which ensures that patient identifying information will not be disclosed to anyone other than the parties to the proceeding, unless the patient request an open hearing.20
(4) To make the required determination under 3. a. (3) above that good cause exists to authorize release of the records, the court must first determine that;21
(a) Other ways of obtaining the information are not available or would not be effective; and
(b) The public interest and need for disclosure outweigh the potential injury to:
(i) The patient;
(ii) The physician-patient relationship; and
(iii) The ability of program to provide treatment to other patients.
(5) The court's order authorizing disclosure must:22
(a) Limit disclosure to those parts of the patient's record which are essential to fulfill the objective of the order;
(b) Limit disclosure to those persons whose need for information is the basis for the order; and
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(c) Include such other measures as are necessary to limit disclosure for the protection of the patient, physician-patient relationship and the treatment services.
C. Admissibility of Privileged Communications in Criminal Proceedings.
1. A communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to voluntary treatment for alcohol or drug abuse is not admissible in criminal proceedings.23
2. A court may authorize the disclosure of the records for the purpose of conducting a criminal investigation or prosecution of a patient only if the court finds all of the following criteria are met.24
a. The crime involved is extremely serious;
b. There is a reasonable likelihood that the records will disclose information of substantial value in the investigation or prosecution;
c. Other ways of obtaining the information are not available or would not be effective;
d. The public interest and need for disclosure outweigh the potential injury to:
(1) The patient;
(2) The physician-patient relationship; an
(3) The ability of the program to provide treatment to other patients.
REQUIREMENTS OF AIDS AND HIV TEST RESULTS25
A. Confidentiality of Information
1. Acquired immune deficiency syndrome (AIDS) and human immunodeficiency virus (HIV) test results are confidential and may not be released or disclosed except as provided below.
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2. A "test result" is defined as any statement or assertion that an individual is positive, negative, at risk, has or does not have a certain level of antigen or antibody, or any other statement that indicates that an individual has or has not been tested for ADDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS.
B. Requirements for Disclosure
1. A test may be released only to:
a. TDH;
b. A local health authority if reporting is required under the Communicable Disease Prevention and Control Act;
c. The Centers for Disease Control if reporting is required by federal law or regulation;
d. The physician or other person authorized by law who ordered the test;
e. A physician, nurse, or other health care personnel who has a legitimate need to know the test result for his protection and for the patient's health and welfare;
f. The person tested or a personal legally authorized to consent to the test on the person's behalf;
g. The spouse of a person who tests positive for AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS;
h. A partner notification program when reported by a health care professional who actually knows that a patient is HIV positive and possibly has transmitted HIV to a third party;
i. A person authorized to receive test results obtained pursuant to Article
21.31 of the Code of Criminal Procedure, which authorizes court-ordered testing of a defendant indicated for indecency with a child, sexual assault, or aggravated sexual assault; and
j. Law enforcement officers, firefighters, emergency medical personnel and
correction officers exposed to the HIV virus, as provided in the Communicable Disease Prevention and Control Act.
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2. These restrictions do not prohibit an employee of a health care facility from viewing test results while performing the employee's duties if the employee's job requires the employee to deal with permanent medical records and the employee learns of test results during reasonable health care facility practices.
3. The person tested (or a person legally authorized to consent to the test on the person's behalf) may voluntarily release or disclose that person's AIDS/HIV test results or may authorize the release or disclosure of the results. The authorization must:
a. Be in writing;
b. Be signed; and
c. Specify the persons or entities or classifications of persons or entities to whom the test results may be released or disclosed.
4. AIDS/HIV test results may be released for statistical purposes only after any identifying information is removed for the report.
PART IV. REQUIREMENTS FOR BLOOD BANK RECORDS26
A. Confidentiality of Information
The medical and donor records of a blood bank (includes a blood center, regional collection center, tissue bank, transfusion service, or other similar facility) are confidential and may not be disclosed except as provided by law.
B. Requirements for Disclosure
1. A blood bank may report positive blood test results indicating the name of a donor with a possible infectious disease to other blood banks, but it may not disclose the infectious disease that the donor has or is suspected of having.
2. A blood bank must report blood test results that are positive for HIV or other infectious diseases to the hospitals or other facilities where the blood was transfused or provided, to the physician who transfused the infected blood, or to the recipient of the blood. It may not disclose the name of the donor or person tested or any other identifying information.
3. A blood bank reporting blood test results for statistical purposes only may not disclose the name of the donor or person being tested or any other information
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that could result in disclosure of identity (including addresses, social security numbers, designated recipients, or replacement donation information).
4. Hospitals, physicians, and other transfusers of blood must follow the "Operation Look-Back" procedure of the American Association of Blood Banks in notifying past and future recipients of blood.
5. A court may require a blood bank, after notice and hearing, to provide certain information regarding donors.
PARTV. REQUIREMENTS FOR GENETIC INFORMATION27
A. Confidentiality of Information
1. "Genetic information" is confidential and privileged regardless of the source of the information.
a. A person holding such information may not disclose or be compelled to disclose, by subpoena or otherwise, genetic information about an individual unless the disclosure is specifically authorized as provided below.
b. This confidentiality applies to a redisclosure of genetic information by a secondary recipient of the information after disclosure of the information by an initial recipient.
2. "Genetic information" is information derived for the results of a laboratory test of an individual's DNA, RNA, proteins or chromosomes to identify by analysis of the DNA, RNA, proteins, or chromosomes the genetic mutations or alternations in the DNA, RNA, proteins or chromosomes that are associated with a predisposition for a clinically recognized disease or disorder. A genetic test does not include:
a. A routine physical examination or routine test performed as part of a physical examination;
b. A chemical, blood, or urine analysis;
c. A test to determine drug use; or
d. A test for the presence of HIV.
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B. Requirements for Disclosure
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1. An individual (or the individual's legal representative) may authorize the disclosure of the individual's genetic information in writing.
a. Generally, a written authorization must include:
(1) A description of the information to be disclosed;
(2) The name of the person or entity to whom the disclosure is made; and
(3) The purpose of the disclosure.
b. To authorize the disclosure of genetic information held by an insurer, the authorization must:
(1) Be written in plain language;
(2) Be dated;
(3) Contain a specific description of the information to be disclosed;
(4) Identify or describe the individuals or entities to whom the disclosure or subsequent redisclosure may be made;
(5) Describe the specific purposes of the disclosure;
(6) Be signed by the individual or legal representative and, if disclosure is to claim proceeds of any affected life insurance policy, the claimant; and
(7) Advise the individual or legal representative that the individual's authorized representative is entitled to receive a copy of the authorization form.
(8) A group health benefit plan issuer may not redisclose genetic information unless the redisclosure is consistent with the disclosure authorized by the tested individual under a written authorization.
2. Genetic information may be disclosed without authorization under the following circumstances:
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a. If the disclosure is for information from a research study in which the procedure for obtaining informed written consent and use of the information is governed by national standards for protecting participants involved in research projects, information that does not identify a particular individual, and is provided to TDH as part of its birth defects registry.
b. Subject to Government Code provisions establishing a DNA database to assist in the detection of sexual crimes, if the disclosure is:
(1) Authorized under a state or federal criminal la relating to the identification of individuals, or relating to a criminal or juvenile proceeding, and inquest, or a child fatality review by a multidisciplinary child-abuse team;
(2) Required under a specific order of a state or federal court;
(3) Authorized under a state or federal law to establish paternity;
(4) Made to furnish genetic information relating to a decedent to the blood relatives of the decedent for the purpose of medical diagnosis; or
(5) Made to identify a decedent.
c. With respect to genetic information held by an issuer of a group health benefit plan, the issuer also may redisclose only enough genetic information that is reasonably necessary to accomplish any of the following purposes:
(1) For actuarial or research studies if the tested individual may not be identified in any actuarial or research report, and any materials that identify a tested individual are returned or destroyed as soon as reasonably practicable;
(2) To the Texas Department of Insurance to enforce prohibitions on discrimination by insurers based on genetic information; or
(3) For purposes directly related to enabling business decisions to be made about the purchase, transfer, merger, or sale of all or part of an insurance business or about obtaining reinsurance affecting that insurance business.
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3. An individual who submits to a genetic test has a right to know the test's results. On written request of the individual, the entity that performed the test must disclose the test results to the individual or to a physician designated by the individual.
4. A sample of genetic material taken for a genetic test from an individual must be destroyed promptly after the purpose for which the sample was obtained is accomplished unless:
a. The sample is retained under court order;
b. The individual tested authorizes retention of the sample for purposes of medical treatment or scientific research;
c. For a sample obtained for research that is cleared by an institutional review board, the sample is retained under the requirements that the institutional review board imposes on a specific research project or as authorized by the research participant with institutional review board approval under federal law; or
d. The sample was obtained for a screening test established by TDH and performed by TDH or a laboratory approved by TDH.
PART VI. LIABILITY FOR DISCLOSURE OF CONFIDENTIAL INFORMATION
A. Statutory Causes of Action/Liability.
1. Improper disclosure of physician-patient communications, hospital health care information, or mental health information has the following remedies:28
a. A person aggrieved by a violation relating to the unauthorized release of confidential communications may petition the court for injunctive relief.
b. Such person also has a cause of action for civil damages.
2. A violation of statutes or regulations governing substance abuse treatment records carries criminal penalties of a fine of not more than $500 for the first offense or a fine of not more than $5,000 for subsequent offenses.29
3. Improper disclosure of AIDS or HIV test results.30
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a. An injured person may bring a civil action for damages and/or an action to restrain a violation or threatened violation.
b. Negligent release or disclosure of test results may result in liability for:
(1) Actual damages;
(2) A civil penalty of not more than $5,000; and
(3) Court costs and reasonable attorneys' fees incurred by the person bringing the action.
c. Wilful release or disclosure of test results may result in liability for:
(1) Actual damages;
(2) A civil penalty of not more than $5,000 nor more than $10,000; and
(3) Court costs and reasonable attorneys.' fees incurred by the person bringing the action.
4. Improper disclosure of blood bank records.31
a. An injured person may bring a civil action for damages and/or an action to restrain a violation or threatened violation.
b. A blood bank or any person negligently or intentionally disclosing confidential information without authorization may be liable for:
(1) Actual damages;
(2) A penalty of not more than $ 1,000; and
(3) Court costs and reasonable attorneys' fees incurred by the person bringing the action.
c. Unauthorized disclosure is also a Class C misdemeanor.
5. Improper disclosure of genetic information by an issuer of a group health benefit plan.32
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a. On a finding by the Commissioner of the Texas Department of Insurance that an issuer of a group health benefit plan has violated any of the statutory provisions concerning genetic information:
(1) The Commissioner may enter a cease and desist order in accordance with the procedures in Article 1.1 OA of the Texas Insurance Code; and
(2) If the group health benefit plan issuer refuses or fails to comply with the cease and desist order, the Commissioner may revoke or suspend the issuer's certificate of authority.
b. A group health benefit plan that operates in violation of the statutory provisions on genetic information is subject to an administrative penalty in accordance with Article 1.1 OE of the Texas Insurance Code.
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B. Defamation.
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1. "Defamation" involves communication to a third party that adversely affects the reputation of the person defamed.
a. A defamatory communication has been defined as one which tends to hold the plaintiff up to hatred, contempt or ridicule, or to cause the plaintiff to be shunned or avoided, or to diminish the esteem, respect, good will or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him or her.
b. Defamation is composed of the twin torts of libel and slander.
(1) Libel generally consists of written or printed words.
(2) Slander ordinarily consists of oral communications.
2. Truth is a complete defense to an action for defamation.
3. Physicians should be careful about possible libel or slander actions when dealing with diseases or conditions that may carry a social stigma, when characterizing the mental or emotional condition of a patient, and when describing conduct or events that led to the patient's seeking medical treatment.
4. Physicians should also protect themselves from libel or slander associated with medical staff privileges matters by only disclosing or discussing information about a physician in the scope of credentialing or peer review committee activities and
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by assuring that any disclosures or recommendations are done in good faith in the absence of malice.
C. Invasion of Privacy.
Photographing a patient or the circulation of photographs of a patient without the patient's consent may expose one to liability for invasion of privacy. The patient's consent to being photographed, as well as to use of the patient's name for publicity, should be obtained.
PART VII. HIPAA PRIVACY REGULATIONS FOR ELECTRONIC HEALTH INFORMATION
A. Introduction
Pursuant to authorization granted to it in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Department of Health and Human Services (HHS) has issued proposed regulations regarding the privacy and security of health information that is maintained or transmitted electronically. In enacting HIPAA, Congress recognized that the increased accessibility of health information made possible by the widespread and growing use of electronic media and the new federal mandate for increased standardization of data, requires enhanced privacy and confidentiality protections.
B. Covered Ethics.
The proposed regulations would apply to all health plans, health care clearinghouses, and health care providers who store or transmit health information in an electronic form.
C. Covered Information.
The proposed regulations would apply to "individually identifiable health information" that is or has been electronically transmitted or maintained by a covered entity, including such information when it is non-electronic form (e.g., printed on paper) or discussed orally. Such information is referred to as "protected health information."
1. The privacy standards would apply to "individually identifiable health information," and not to information that does not identify the individual.
2. Information that is "electronically transmitted" would include information exchanged with a computer using electronic media, transmissions over the Internet, Extranet, leased lines, dial-up lines, and private networks would all be included. This definition would not include faxes, telephone calls, video
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teleconferencing, or messages left on voice-mail. The key concept that determines if a transmission meets the definition is whether the source or target of the transmission is a computer.
D. Disclosure Without Patient Authorization
Subject to limited exceptions, a covered entity would only be permitted to use or disclose protected health information without individual authorization for treatment, payment or health care operations.
E. Minimum Necessary Use and Disclosure.
Under the proposed regulations, a covered entity would be required to make all reasonable efforts not to use or disclose more than the minimum amount of protected health information necessary to accomplish the intended purpose of the use or disclosure, taking into consideration practical and technological limitations.
F. Patient Rights.
The proposed regulations provide the following four basic individual rights:
1. The right to a notice of information practices;
2. The right to obtain access to protected health information about them;
3. The right to obtain access to an accounting of how their protected health information has been disclosed; and
4. The right to request amendment and correction of protected health information;
G. Safeguards.
Covered entities would be required to put in place administrative, technical and physical safeguards to protect against any reasonably anticipated threats or hazards to the privacy of the information and unauthorized uses or disclosures of the information.
H. Enforcement.
The proposed regulations would punish violations with a monetary penalty of $100 per violation up to a maximum of $25,000 per year.
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PART VIII. AIDS AND HIV INFECTION
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Tests for AIDS and Related Disorders
1. Scope of testing.33
a. The Communicable Disease Prevention and Control Act provides that a
person or entity may not require another person to undergo a medical procedure or test to determine if the person has AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS, unless:
(1) The medical procedure or test is required under Part 10.I.B. 7, page 379.
(2) A medical procedure is to be performed on & person that could expose health care personnel to AIDS or HIV infection (according to guidelines by the Texas Board of Health defining conditions that constitute possible exposure to AIDS or HIV infection) and there is sufficient time to receive the test result before the procedure is conducted.
(a) Health care professional are at risk of exposure to HIV or AIDS during a medical procedure if the personnel;
(i) Have their mucous membranes or skin in contact with any body fluid or tissue (other than the patient's intact skin); and
(ii) If the procedure to be performed is an invasive
procedure that involves surgical entry into tissues, cavities, or organs or the repair of major traumatic injuries, including angiographic, bronchoscopic, endoscopic, and obstetrical procedures.
(b) An employer who alleges that a test is necessary as a bona fide occupational qualification has the burden of proving that allegation.
(3) The medical procedure or test is required as part of serologic testing during pregnancy and the pregnant woman or new mother does not object (see Part 7.1. C, page 238).
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(4) Required under Article 21.31 of the Code of the Criminal Procedure (see Part 10. V.D., page 393).
(5) Authorized under Article 21.21 -4 of the Texas Insurance Code; or
(6) The medical procedure or test is necessary.
(a) To determine exposure of a law enforcement officer, firefighter, emergency medical technician, or corrections officer to AIDS/HIV;34
(b) As a "bona fide occupational qualification," which is defined as a qualification reasonably related to satisfactory performance of the duties of a job and for which there exists no less discriminatory means of satisfying the occupational qualifications;
(c) To screen blood, blood products, bodily fluids, organs, or tissues of the purpose of determining suitability for donation;
(d) In relation to a particular person under the Communicable Disease Prevention and Control Act;
(e) For certain residents and clients of Texas Department of Mental Health and Mental Retardation (TDMHMR) facilities, but only if:
(i) The test result would change medical or social management of the person tested or others who associate with that person; and
(ii) The test is conducted in accordance with guidelines adopted by the residential facility or TDMHMR and approved by TDH;
(f) To manage accidental exposure to blood or bodily fluids, but only if the test is conducted in accordance with written infectious disease control protocols adopted by the health care agency or facility. The protocol:
(i) Must provide criteria for testing that respect the
rights of both the person with the infection and the
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person exposed to the infection;
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(ii) Cannot require the person exposed to be tested; and
(iii) Must ensure the confidentiality of the person with the infection in accordance with the Communicable Disease Prevention and Control Act; and
(g) To test residents and clients of residential facilities of the Texas Youth Commission (Commission), but only if:
(i) The test result would change the medical or social management of the person tested or others who associate with that person; and
(ii) The test is conducted in accordance with guidelines adopted by the Commission.
b. A person who requires testing in violation of a. above commits a Class A misdemeanor.
c. The TDH Board regulations state that emphasis must be placed on preventing the transmission of HIV or AIDS and not on testing for its presence.35
d. Health care personnel must follow the guidance published in Morbidity and Mortality Weekly Report (MMWR).
2. Consent to testing.35
a. General.
Expect as otherwise provided by law, a person or entity may not perform a test designed to identify the HIV virus or its antigen or antibody without first obtaining the informed consent of the person to be tested.
(1) Consent need not be written if there is documentation in the medical record that the test has been explained and the consent has been obtained.
(2) A person who has signed a general consent form for the performance of medical tests or procedures is not required to also sign or be presented with a specific consent form relating to HIV
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testing. The result of testing performed under a general consent form shall be used only for diagnostic or other purposes directly related to medical treatment.
b. Accidental exposure of health care workers in general.
In cases of accidental exposure to blood or bodily fluids, a health care agency or facility may test and individual, without the individual's specific consent, who may have exposed a health care worker to HIV provided:
(1) The testing is performed according to statutory protocols; and
(2) Any identifying information concerning the person tested is destroyed after testing and notification of the individual who was exposed.
c. Accidental exposure in a licensed hospital.
In a case of accidental exposure of a health care worker to blood or other body fluids of a patient in a licensed hospital, the hospital must:
(1) Report the exposure; and
(2) Take reasonable steps to test the patient for hepatitis B or hepatitis C. Such test may be conducted without the patient's specific consent. Results of such test are subject to the same confidentiality standards for other communicable diseases.
3. Confidentiality and disclosure of test results.36 (See Part 4. V, page 174).
4. Counseling.37
a. A test result indicating the presence of HIV infection may not be revealed
to the person tested without giving that person the immediate opportunity for individual, face-to-face, post-test counseling, unless:
(1) The test result is used for statistical or research purposes only and any information that could identify the person is removed from the report;
(2) The test is conducted for the sole purpose of screening blood, blood products, bodily fluids, organs, or tissues to determine suitability for donation.
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b. If the test results are from a home collection kit for HIV infection. The
service provider may give test results, counseling, and appropriate referrals to the tested individual orally over the telephone. (See B. 3 below regarding home collection kits)
5. HIV infection partner notification program.38
a. TDH must establish programs for partner notification and referral services.
b. A health care professional, including a physician, must notify the partner notification program when the professional knows that a patient is HIV positive and actually knows of possible transmission of HIV to a third party. A health care professional is immune from civil or criminal liability for failing to make the required notification.
c. An employee of the partner notification program must notify the person who is identified as a partner, but may not disclose the name of or other identifying information concerning the identity of the person who gave the partner's name, or the date or period of the partner's exposure.
d. If a person with HIV infection voluntarily discloses the name of a partner, that information is confidential. Partner names may be used only for field investigation and notification.
e. A partner notification program must notify the person who is identified as a partner regardless of whether the person with HIV infection who provided the partner's name consents to the notification.
B. Testing Requirements Under the Human Immunodeficiency Virus Services Act.40
1. Introduction.
In 1989, the legislature passed the Human Immunodeficiency Virus Services Act related to issues of education, testing, counseling, prevention, control and treatment of AIDS. The following sections are particularly relevant to the role of the physician in the detection and treatment of AIDS.
2. Testing programs.41
a. A person may not advertise or represent to the public that the person
conducts a testing program for AIDS, HIV infection, or related conditions without registering with TDH.
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b. Any medical care or procedure provided under a testing program must be supervised by a licensed physician.
c. For-profit testing programs must obtain the informed consent of the person to be tested before the test and provide an itemized statement of charges to the person tested or counseled.
d. TDH regulations require that the medical director or other physician responsible for medical oversight of an HIV counseling and testing program must appoint a reporting officer to be responsible for reporting each patient who meets the criteria of an HIV infection under TDH guidelines.
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3. Home collection kits for HIV infection testing
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a. Home collection kits are products sold to the general public and used by individuals to collect a specimen and submit it to a laboratory for testing and a report.
b. Home collection kits are treated as medical devices and must comply the Texas Food, Drug, and Cosmetic Act, Texas Health & Safety Code Chapter 431.
c. A service provider manufactures the kit or is designated by the manufacturer to provide the services, which include testing, reporting, and counseling.
d. Notification fo home collection kit test result (See AA.b above).
C. Prevention of Transmission of HIV and Hepatitis B Virus by Infected Health Care43 Workers.
1. Introduction.
In 1991, the Legislature passed laws relating to health care workers infected with HIV or hepatitis B virus. Among its findings, the Legislature concluded that health care workers who perform exposure-prone procedures should know their HIV antibody status: heath care workers who perform exposure-prone procedures and who do not have serologic evidence of immunity to hepatitis B virus (HBV) from vaccination or from previous infection should know their HBsAg status and, if that is positive, should also know their HBeAg status.
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2. Definitions
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a. "Exposure-prone procedure" means a specific invasive procedure that poses a direct and significant risk of transmission of HIV or hepatitis B virus.
b. "Invasive procedure" means:
(1) A surgical entry into tissues, cavities, or organs; or
(2) Repair of major traumatic injuries associated with any of the following:
(3) An operating or delivery room, emergency department, or outpatient setting, including a physician's or dentist's office;
(4) Cardiac catherization or angiographic procedure;
(5) A vaginal or caesarian delivery or other invasive obstetric procedure during which bleeding may occur; or
(6) Manipulation, cutting or removal of any oral or perioral tissues, including tooth structure, during which bleeding occurs or the potential for bleeding exists.
c. "Universal precautions" means procedures for disinfection and sterilization of reusable medical devices and the appropriate infection control, including hand washing, and the use of protective barriers as those procedures are defined by the Center for Disease Control of the United States Public Health Service. (See also: Occupational Safety and Health Act (OSHA) Standards for Occupational Exposure to Blood borne Pathogens.)44
3. Infection Control Standards
a. All health care workers must adhere to "universal precautions."
b. Health care workers with exudative lesions or weeping dermatitis shall refrain from all direct patient care and equipment and devices used in performing invasive procedures until the condition resolves.
c. Health care institutions must establish procedures for monitoring compliance with universal precautions.
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4. Modification of practice for infected workers.
a. A health care worker who is infected with HIV or hepatitis B virus and is HBeAg positive may perform an exposure-prone procedure only if the health care worker has sought counsel from an expert review panel and been advised under what circumstances, if any, the health care worker may continue to perform the exposure-prone procedure.
(1) An expert review panel should include the health care worker's personal physician and experts with knowledge of infectious diseases, infection control, the epidemiology of HIV and hepatitis B virus and procedures performed by the health care worker.
(2) Health professional associations and health facilities should develop guidelines for expert review panels and identify exposure-prone procedures, as defined in 2. above.
(3) All proceedings and communications of the expert review panel are confidential, and release of information relating to a health care worker's HIV status must comply with Chapter 81 of the Health and Safety Code.
b. A health care worker who performs an exposure-prone procedure as provided under a, above must notify a prospective patient of the health care worker's seropositive status and obtain the patient's consent before the patient undergoes and exposure-prone procedure, unless the patient is unable to consent
c. To promote the continued use of the talents, knowledge, and skills of a health care worker whose practice is modified because of the worker's HIV status or hepatitis B virus infection status, the worker should:
(1) Be provided with opportunities to continue patient care activities, if practicable; and
(2) Receive career counseling and job retraining.
d. A health care worker whose practice is modified because of hepatitis B virus infection may request periodic redetermmations by the expert review panel of any change in the worker's HBeAG status due to resolution of the infection or as a result of treatment.
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e. A health care worker who is infected with HIV or who is infected with hepatitis B virus and is HBeAg positive who performs invasive procedures not identified as exposure-prone should not have his practice restricted provided that the infected health care worker takes "universal precautions."
f. A health care worker who fails to comply with this law is subject to disciplinary procedures by the appropriate licensing entity.
5. The law does not require the testing of health care workers.
D. Testing of Persons Indicted for Sexual Offenses.
1. TDH has promulgated guidelines for testing certain persons who have been indicted for sexual assault or aggravated sexual assault.45 A court may order a person who is indicted for these offenses to submit to a medical procedure or test for the presence of sexually transmitted disease or AIDS or HIV or other agent of
a. The physician who is directed by the court to perform the medical procedure or test shall follow the rules prescribing criteria for testing and respecting the rights of the victim of the alleged offense and the rights of the person accused.
b. In order to protect the privacy of the person being tested, the court, in consultation with the local health authority, shall use or arrange the use of a pseudonym for the person on all requests and reports pertaining to the test and known only to the physician, the local health authority, the person being tested, and the court.
2. The person performing the procedures or test must make the results available to the local health authority. The local health authority shall meet with the victim of the alleged offense and disclose the results; no other person shall be present unless permitted by the victim.
3. For AIDS, HIV infection, syphilis, gonorrhea, viral hepatitis B, and genital infections from Chlamydia trachomatis, the procedures and tests shall be those specified in "Identification and Confirmation of Reportable Disease," published by TDH. For other sexually transmitted diseases, the physician shall request instructions from TDH.
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E. Protection of HlV-infected Individuals Against Discrimination
1. On September 27, 1988, the Justice Department issued a Memorandum on Application of Rehabilitation Act's Section 504 to HIV-infected Persons. This memorandum concluded that, with respect to both the non-employment and the employment context, Section 504 of the Federal Rehabilitation Act of 1973 47 protects symptomatic and asymptomatic HIV-infected individuals against discrimination in any covered program or activity on the basis of any actual, past, or perceived effect of HIV infection.
2. The Texas Legislature recently passed the Human Immunodeficiency Virus Services Act providing for the development of model workplace guidelines concerning persons with HIV infection and related conditions.48 The guidelines are to contain provisions stating that employers and employees should not engage in discrimination against persons with HIV infection unless based on accurate scientific information.
3. The Texas Commission on Human Rights Act prohibits certain employment practices that discriminate on the basis of handicap or disability. "Disability" means a mental or physical impairment that substantially limits at least one major life activity, but does NOT include AIDS or HIV infection that constitutes a direct thereat to the health and safety of others or that makes the affected person unable to perform the duties of employment.49
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FOOTNOTES
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1. Tex. R. Evid. 510; Tex. Health & Safety Code § §611.001-.008.
2. Tex. Health & Safety Code § 576.005.
3. Tex. Health & Safety Code § 611.0045.
4. Tex. Health & Safety Code § 611.008.
5. Tex. Health & Safety Code § 611.008(b)
6. Tex R. Evid. 510; Tex. Health & Safety Code § 611.006.
7. Tex. Health & Safety Code § 576.005
8. MPA § 159.004; Tex. Health & Safety Code § 611.004.
9. Tex. Health & Safety Code § 611.005.
10. Tex. Health & Safety Code § 611.007.
11. 42 U.S.C. §290dd-2; 42 C.F.R. § 2.1-2.67.
12. 42 U.S.C. § 290ee3-a
13. Tex. Dep't of Mental Health & Mental Retardation, 25 Tex. Admin. Code § §403.296, 403.304.
14. 42 U.S.C. § §290ee-3(b)(2)(C).
15. 42 C.F.R. §2.11.
16. 42 C.F.R. §2.13(c)(l).
17. 42 C.F.R. §2.13(b).
18. 42 C.F.R. §2.31(a).
19. 42 C.F.R. §2.61(b)(l)
20. 42 C.F.R. §2.64(c)
21. 42 C.F.R. §2.64(d)
22. 42 C.F.R. §2.64(e)
23. Tex. R. Evid. 510.
24. 42 C.F.R. §2.65(d)
25. Tex. Health & Safety Code § §81.101-.104.
26. Tex. Health & Safety Code § §162.001-.015
27. Tex. Labor Code § §21.401-.405 (employers); Tex. Rev. Civ. Stat. art 9031 (licensing authorities); and Tex. Ins. Code art. 21.73 (issuers of group health benefit plans).
28. Tex. Health & Safety Code §241.153; Tex. Health & Safety Code §611.005; MPA §159.009.
29. 42 U.S.C. §290dd-2; 42 C.F.R. § §2.4.
30. Tex. Health & Safety Code § § 81.103-. 104
31. Tex. Health & Safety Code § § 162.012-.014
32. Tex. Ins. Code art. 21.73, § 7-8.
33. Tex. Health & Safety Code §81.102.
34. Tex. Health & Safety Code §81.050.
35. 25 Tex. Admin. Code §97.137.
36. Tex. Health & Safety Code § §81.105-.107.
37. Tex. Health & Safety Code §81.103.
38. Tex. Health & Safety Code §81.109.
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Tex. Health & Safety Code §81.051.
Tex. Health & Safety Code Chapter 85.
Tex. Health & Safety Code § §85.081-.089, 85..251-.262; 25 Tex. Admin. Code §97.2.
Tex. Health & Safety Code § §85.251-.262.
Tex. Health & Safety Code § §85.201-.206.
29C.F.R. §1910.1030.
25 Tex. Admin. Code §97.138.
Tex. Code Crim. Proc. art 21.31 and Tex. Health & Safety Code §81.094.
29 U.S.C. §794.
Tex. Health & Safety Code § §85.001-.262, 85.012.
Tex. Labor Code § §21.002(6) and 21.051.
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