Senate Bill No. 30
(By Senator Hunter)
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[Introduced January 14, 1998;
referred to the Committee on Health and Human Resources; and
then to the Committee on the Judiciary.]
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A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article one-a, relating to
the creation of the uniform health care information act;
legislative findings; definitions; notice of information
practices; patient's right to examine or copy health care
information; authority to act for a patient; requiring
health care provider to effect reasonable safeguards for
security of all health care information it maintains;
providing for criminal and civil liability; criminal
penalties; and authorizing civil actions and court-ordered
relief.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article one-a, to read
as follows:
ARTICLE 1A. UNIFORM HEALTH CARE INFORMATION ACT.
§16-1A-1. Legislative findings.
The Legislature finds that:
(a) Health care information is personal and sensitive
information that if improperly used or released may do
significant harm to a patient's interests.
(b) Patients need access to their own health care
information as a matter of fairness to enable them to make
informed decisions about their health care and correct inaccurate
or incomplete information about themselves.
(c) In order to retain the full trust and confidence of
patients, health care providers have an interest in ensuring that
health care information is not disclosed improperly, and in
having clear and certain rules for the disclosure of health care
information.
(d) Persons other than health care providers obtain, use and
disclose health record information in many different contexts and
for many different purposes. It is the public policy of this
state that a patient's interest in the proper use and disclosure of the patient's health care information survives even when the
information is held by persons other than health care providers.
(e) The movement of patients and their health care
information across state lines, access to and exchange of health
care information from automated data banks, and the emergence of
multistate health care providers creates a compelling need for
uniform law, rules and procedures governing the use and
disclosure of health care information.
§16-1A-2. Definitions.
As used in this article unless the context otherwise
requires:
(a) "Audit" means an assessment, evaluation, determination
or investigation of a health care provider by a person not
employed by or affiliated with the provider to determine
compliance with:
(1) Statutory, regulatory, fiscal, medical or scientific
standards;
(2) A private or public program of payments to a health care
provider; or
(3) Requirements for licensing, accreditation or
certification.
(b) "Directory information" means information disclosing the
presence and the general health condition of a particular patient who is an inpatient in a health care facility or who is currently
receiving emergency health care in a health care facility, or who
is receiving health care in the house or through an outpatient
care facility.
(c) "General health condition" means the patient's health
status described in terms of "critical," "poor," "fair," "good,"
"excellent" or terms denoting similar conditions.
(d) "Health care" means any care, service or procedure
provided by a health care provider:
(1) To diagnose, treat or maintain a patient's physical or
mental condition; or
(2) That affects the structure or any function of the human
body.
(e) "Health care facility" means a hospital, clinic, nursing
home, laboratory, office, in-home or similar place where a health
care provider provides health care to patients.
(f) "Health care information" means any information, whether
oral or recorded in any form or medium, that identifies or can
readily be associated with the identity of a patient and relates
to the patient's health care. The term includes any record of
disclosures of health care information.
(g) "Health care provider" means a person who is licensed,
certified or otherwise authorized by the law of this state to provide health care in the ordinary course of business or
practice of a profession. The term does not include a person who
provides health care solely through the sale or dispensing of
drugs or medical devices.
(h) "Institutional review board" means any board, committee
or other group formally designated by an institution, or
authorized under federal or state law, to review, approve the
initiation of or conduct periodic review of research programs to
assure the protection of the rights and welfare of human research
subjects.
(i) "Maintain" as related to health care information, means
to hold, possess, preserve, retain, store or control that
information.
(j) "Patient" means an individual who receives or has
received health care. The term includes a deceased individual
who has received health care.
(k) "Person" means an individual, corporation, business
trust, estate, trust, partnership, association, joint venture,
government, governmental subdivision or agency or any other legal
or commercial entity.
§16-1A-3. Patient's right to examine or copy health care
information.
(a) A health care provider who provides health care through a health care organization that the provider operates and who
maintains a record of a patient's health care information shall
create a "notice of information practices" that contains
substantially the following:
"We keep a record of the health care services we provide
you. You may ask us to see and copy that record. You may also
ask us to correct that record. We will not disclose your record
to others unless you direct us to do so or unless the law
authorizes or compels us to do so. You may see your record or
get more information about it at ...."
(b) The health care provider shall post a copy of the notice
of information practices in a conspicuous place in the health
care facility and provide patients with information about its
availability, upon request, and provide patients or prospective
patients with a copy of the notice.
§16-1A-4. Patient's representative to act in good faith to
represent the best interests of patient.
(a) A person authorized to consent to health care for
another may exercise the rights of that person under this article
to the extent necessary to effectuate the terms or purposes of
the grant of authority. If the patient is a minor and is
authorized to consent to health care without parental consent
under the laws of this state, only the minor may exclusively exercise the rights of a patient under this article as to
information pertaining to health care to which the minor lawfully
consented.
(b) A person authorized to act for a patient shall act in
good faith to represent the best interests of the patient.
A personal representative of a deceased patient may exercise
all of the deceased patient's rights under this article. If
there is no personal representative, or upon discharge of the
personal representative, a deceased patient's rights under this
article may be exercised by persons who are authorized by law to
act for the deceased patient, including a health care surrogate.
§16-1A-5. Health care provider to effect reasonable safeguards
for security of all health care information it maintains.
A health care provider shall effect reasonable safeguards
for the security of all health care information it maintains.
A health care provider shall maintain a record of existing
health care information for at least one year following receipt
of an authorization to disclose that health care information and
during the pendency of a request for examination and copying or
a request for correction or amendment.
§16-1A-6. Criminal liability; penalty.
(a) A person who willfully discloses health care information in violation of this article, and who knows or should know that
disclosure is prohibited, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than five hundred
dollars, or confined in the county or regional jail not more than
six months, or both fined and confined.
(b) A person who, by means of: (1) Bribery; (2) theft; (3)
misrepresentation of identity, purpose of use, or entitlement to
the information; or (4) trespass, examines or obtains, in
violation of this article, health care information maintained by
a health care provider, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not more than five hundred
dollars, or confined in the county or regional jail not more than
six months, or both fined and confined.
(c) A person who, knowing that a certification or a
disclosure authorization is false, willfully presents the
certification or disclosure authorization to a health care
provider, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than five hundred dollars, or
confined in the county or regional jail not more than six months,
or both fined and confined.
§16-1A-8. Civil liability; civil actions; court orders.
The attorney general or appropriate local law-enforcement
official may maintain a civil action to enforce this article. The court may order any relief authorized by this section.
(a) A person aggrieved by a violation of this article may
maintain an action for relief as provided in this section.
(b) The court may order the health care provider or other
person to comply with this article and may order any other
appropriate relief.
(c) A health care provider who relies in good faith upon a
certification is not liable for disclosures made in reliance on
that certification.
(d) In an action by a patient alleging that health care
information was improperly withheld under the provisions of this
article, the burden of proof is on the health care provider to
establish that the information was properly withheld.
(e) If the court determines that there is a violation of
this article, the aggrieved person is entitled to recover damages
for pecuniary losses sustained as a result of the violation; and,
in addition, if the violation results from willful or grossly
negligent conduct, the aggrieved person may recover not in excess
of five thousand dollars, exclusive of any pecuniary loss.
(f) If a plaintiff prevails, the court may assess reasonable
attorney's fees and all other expenses reasonably incurred in the
litigation.
(g) Any action under this article is barred unless the action is commenced within ten years after the cause of action
accrues.
NOTE: The purpose of this bill is to protect patients from
the improper disclosure of health care information. It requires
health care providers to provide patients with notice of
information practices; affirms the patient's right to examine or
copy health care information; establishes the responsibilities of
persons with authority to act for a patient; requires health care
provider to effect reasonable safeguards for security of all
health care information it maintains
; provides for criminal and
civil liability; criminal penalties; and authorizes civil actions
and court ordered relief.
This article is new; therefore, strike-throughs and
underscoring have been omitted.