H. B. 3184
(By Delegate Wysong)
[Introduced February 22, 2007; referred to the
Committee on the Judiciary.]
A BILL 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
shall be deemed to
be is confidential information.
and shall include 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
said 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;
and
(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) For any other purposes where uses and disclosures are
permitted without authorization under the Privacy Rule of the
federal Health Insurance Portability and Accountability Act of
1996, 45 C.F.R. §164.512.
§27-3-2. Authorization of disclosure of confidential information.
No consent or authorization for the transmission or disclosure
of confidential information
shall be 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
such the authorization shall inform
the patient, client or authorized representative that refusal to
give
such the authorization will in no way jeopardize his
or her
right to obtain present or future treatment.
except where and to
the extent disclosure is necessary for treatment of said patient or client or for the substantiation of a claim for payment from a
person other than the patient or client
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-9. Rights of patients.
(a) No person
shall 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
shall does the receipt of
such
the services modify or vary any civil right of
such 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
shall does not of itself
relieve the patient of legal capacity.
(b) Each patient of a mental health facility receiving
services
therefrom 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
shall have 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
shall entitle 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.
A patient's clinical record
shall be is confidential and
shall
may not be released by the Department of Health
and Human Resources
or its facilities or employees to any person or agency outside of
the department except as follows:
(1)
Pursuant to an order of a court of record.
(2) To the attorney of the patient, whether or not in
connection with pending judicial proceedings.
As prescribed under section one, article three of this
chapter;
(3) (2) With the written consent of the patient or of someone
authorized to act on the patient's behalf
and of the director to:
(i) Physicians and providers of health, social or welfare
services involved in caring for or rehabilitating the patient, such
information to be kept confidential and used solely for the benefit
of the patient.
(ii) Agencies requiring information necessary to make payments
to or on behalf of the patient pursuant to contract or in
accordance with law. Only such information shall be released to
third-party payers as is required to certify that covered services
have been provided.
(iii) Other persons who have obtained such consent. No patient record, or part thereof, obtained by any agency or individual shall
be released in whole or in part to any other individual or agency,
unless authorized by the written consent of the patient or his
legal representative in accordance with the Privacy Rule of the
federal Health Insurance Portability and Accountability Act of
1996, 45 C.F.R. Part 164, Subpart E.
(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
board of health shall promulgate rules and regulations
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.
NOTE: The purpose of this bill is to conform West Virginia law
to recently passed federal regulations regarding medical records,
which safeguard the privacy of the records while recognizing that
there are instances where the public interest outweighs the need
for privacy. The bill would allow family and clergy to know if a
patient is in a mental facility, will allow disclosure for
law-enforcement, abuse, national security and certain research
purposes and will facilitate payments to hospitals by Medicare,
Medicaid and other third party payors.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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