ENROLLED
H. B. 3184
(By Delegate Wysong)
[Passed March 10, 2007; in effect ninety days from passage.]
AN ACT to amend and reenact §27-3-1 and §27-3-2 of the Code of West
Virginia, 1931, as amended; and to amend and reenact §27-5-9
of said code, all relating to confidentiality, disclosure and
authorization for disclosure of mental health information
obtained in the course of treatment or evaluation of
individuals.
Be it enacted by the Legislature of West Virginia:
That §27-3-1 and §27-3-2 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that §27-5-9 of said code
be amended and reenacted, all to read as follows:
ARTICLE 3. CONFIDENTIALITY.
§27-3-1. Definition of confidential information; disclosure.
(a) Communications and information obtained in the course of
treatment or evaluation of any client or patient are confidential
information. Such confidential information includes the fact that a person is or has been a client or patient, information
transmitted by a patient or client or family thereof for purposes
relating to diagnosis or treatment, information transmitted by
persons participating in the accomplishment of the objectives of
diagnosis or treatment, all diagnoses or opinions formed regarding
a client's or patient's physical, mental or emotional condition;
any advice, instructions or prescriptions issued in the course of
diagnosis or treatment, and any record or characterization of the
matters hereinbefore described. It does not include information
which does not identify a client or patient, information from which
a person acquainted with a client or patient would not recognize
such client or patient, and uncoded information from which there is
no possible means to identify a client or patient.
(b) Confidential information may be disclosed:
(1) In a proceeding under section four, article five of this
chapter to disclose the results of an involuntary examination made
pursuant to sections two, three or four, article five of this
chapter;
(2) In a proceeding under article six-a of this chapter to
disclose the results of an involuntary examination made pursuant
thereto;
(3) Pursuant to an order of any court based upon a finding
that the information is sufficiently relevant to a proceeding
before the court to outweigh the importance of maintaining the confidentiality established by this section;
(4) To protect against a clear and substantial danger of
imminent injury by a patient or client to himself, herself or
another;
(5) For treatment or internal review purposes, to staff of the
mental health facility where the patient is being cared for or to
other health professionals involved in treatment of the patient;
and
(6) Without the patient's consent as provided for under the
Privacy Rule of the federal Health Insurance Portability and
Accountability Act of 1996, 45 C. F. R. §164.506 for thirty days
from the date of admission to a mental health facility if: (i) The
provider makes a good faith effort to obtain consent from the
patient or legal representative prior to disclosure; (ii) the
minimum information necessary is released for a specifically stated
purpose; and (iii) prompt notice of the disclosure, the recipient
of the information and the purpose of the disclosure is given to
the patient or legal representative.
§27-3-2. Authorization of disclosure of confidential information.
No consent or authorization for the transmission or disclosure
of confidential information is effective unless it is in writing
and signed by the patient or client by his or her legal guardian.
Every person signing an authorization shall be given a copy.
Every person requesting the authorization shall inform the patient, client or authorized representative that refusal to give
the authorization will in no way jeopardize his or her right to
obtain present or future treatment.
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-9. Rights of patients.
(a) No person may be deprived of any civil right solely by
reason of his or her receipt of services for mental illness, mental
retardation or addiction, nor does the receipt of the services
modify or vary any civil right of the person, including, but not
limited to, civil service status and appointment, the right to
register for and to vote at elections, the right to acquire and to
dispose of property, the right to execute instruments or rights
relating to the granting, forfeiture or denial of a license,
permit, privilege or benefit pursuant to any law, but a person who
has been adjudged incompetent pursuant to article eleven of this
chapter and who has not been restored to legal competency may be
deprived of such rights. Involuntary commitment pursuant to this
article does not of itself relieve the patient of legal capacity.
(b) Each patient of a mental health facility receiving
services from the facility shall receive care and treatment that is
suited to his or her needs and administered in a skillful, safe and
humane manner with full respect for his or her dignity and personal
integrity.
(c) Every patient has the following rights regardless of adjudication of incompetency:
(1) Treatment by trained personnel;
(2) Careful and periodic psychiatric reevaluation no less
frequently than once every three months;
(3) Periodic physical examination by a physician no less
frequently than once every six months; and
(4) Treatment based on appropriate examination and diagnosis
by a staff member operating within the scope of his or her
professional license.
(d) The chief medical officer shall cause to be developed
within the clinical record of each patient a written treatment plan
based on initial medical and psychiatric examination not later than
seven days after he or she is admitted for treatment. The
treatment plan shall be updated periodically, consistent with
reevaluation of the patient. Failure to accord the patient the
requisite periodic examinations or treatment plan and reevaluations
entitles the patient to release.
(e) A clinical record shall be maintained at a mental health
facility for each patient treated by the facility. The record
shall contain information on all matters relating to the admission,
legal status, care and treatment of the patient and shall include
all pertinent documents relating to the patient. Specifically, the
record shall contain results of periodic examinations,
individualized treatment programs, evaluations and reevaluations, orders for treatment, orders for application for mechanical
restraint and accident reports, all signed by the personnel
involved.
(f) Every patient, upon his or her admission to a hospital and
at any other reasonable time, shall be given a copy of the rights
afforded by this section.
(g) The Secretary of the Department of Health and Human
Resources shall propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code to protect the personal rights of
patients not inconsistent with this section.
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