Senate Bill No. 185
(By Senators Tomblin, Mr. President, and Caruth,
By Request of the Executive)
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[Introduced January 10, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §27-3-1 of the Code of West Virginia,
1931, as amended, relating to authorizing the disclosure of
certain mental health records to the National Instant Criminal
Background Check System.
Be it enacted by the Legislature of West Virginia:
That §27-3-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted 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 shall not be disclosed,
except:
(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 provide notice to the federal National Instant Criminal Background Check System, established pursuant to section 103(d) of
the Brady Handgun Violence Prevention Act, 18 U.S.C. §922 note
(National Instant Criminal Background Check System), that a
patient: (i) Has been involuntarily hospitalized as provided in
article five of this chapter; (ii) has been adjudicated mentally
incompetent in a proceeding under article six-a of this chapter; or
(iii) has regained the ability to possess a firearm by order of a
circuit court in a proceeding under subsection (c), section seven,
article seven, chapter sixty-one of this code;
(4) (5) To protect against a clear and substantial danger of
imminent injury by a patient or client to himself, herself or
another;
(5) (6) 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) (7) 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.
NOTE: The purpose of this bill is to authorize the disclosure
of certain mental health records to the National Instant Criminal
Background Check System.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.