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Medical Records

40. Medical Records

Federal, state, and local governments are responsible for protecting and safeguarding the public health and welfare. Accordingly, during terms of various epidemics the state has required the registration of infected persons in order to treat and/or quarantine them and to study the spread of the disease to ultimately control and eradicate it. Thus, although access to medical records is highly guarded, the reporting of diseases is widely practiced at all levels of government. The Center for Disease Control, for example, publishes The Morbidity and Mortality Weekly Report, containing a comprehensive list of all reported illnesses by both state and region that benefits the family practice doctor as well as the epidemiologist. The reports of cases that are reported, from the flu to various venereal diseases to AIDS (acquired immunodeficiency syndrome), are given in confidence, and access to the records is forbidden for most other purposes.

The outbreak of AIDS has sparked controversy over the confidentiality of medical records and diagnoses. Some employers and insurance companies have sought to have individuals tested for the HIV virus, which can lead to AIDS, before hiring in order to prevent considerable expenses in the future as the employees health fails. Often these same parties argue for access to medical records for background checks as part of the interview process. The great tension regarding the rights of individuals with the HIV virus or AIDS, the publics interest in controlling and fighting the epidemic, and the interest of employers, insurers, and health officials in providing adequate and affordable medical care has created a very dynamic ethical and legal dilemma that will not soon be resolved.

The laws controlling and regulating access to medical records vary greatly from state to state, although the basic protection is always there: a persons medical records are personal and private. As is historically the case, the federal government has gotten increasingly involved in the area of individual rights and has enacted a number of pieces of privacy legislation. For example, the Federal Privacy Act of 1974 requires the release of information in federal files to the subject individual upon request, although some government agencies have established regulations allowing the release of information to a physician chosen by the requesting individual (5 U.S.C. 552a(f)(3)). Federally funded community mental health and mental retardation centers must maintain safeguards to preserve confidentiality and protect the rights of patients (52 U.S.C. 2689(d)(2)), and the Department of Defense may not use for any adverse personnel decision any personal information obtained in interviews with members of the service who are HIV positive (PL 49-661 §705(c)).

The most significant change to these laws regards certain federal laws. In 1996, Congress passed the Health Insurance Portability and Accountability Act, PL 104-191 (HIPAA). In 2006 the Secretary of Health & Human Services adopted rules to enforce provisions in that act. Essentially, the rules clarify penalties and responsibility for investigating violations of privacy laws. Everyone who has been to a doctor in 2005 2006 has, no doubt, been asked to sign HIPAA forms.

This chapter treats all state statutes that could be found concerning privacy and medical records. It must be noted, however, that this emerging field is increasingly subject to revision and new legislative attention. In addition, in certain areas such as AIDS information, the courts may have construed other statutes as protecting or not protecting AIDS victims. In these cases the courts may be awaiting or inviting legislative action. Spaces on the chart that are left blank are those situations where specific laws cannot be found; this does not necessarily mean that an individual is without protection in these areas.

Table 40: Medical Records
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
ALABAMANotifiable disease records confidential (§22-11A-2) Tuberculosis, STDs, and notifiable disease cases must be reported to state Board of Health (§22-11A-1 et seq.)Waiver of medical record of persons infected with sexually transmitted disease by written consent of patient (§22-11A-22) An individual must be notified of a positive test result including face-to-face counseling, information on health care services and services related to locating and testing persons who have been in contact with infected individual. Otherwise confidentiality must be maintained §22-11A-53 & §22-11A-54
ALASKAParent or guardian (§25.20.130); Dept. of Social Services for financial records of medical assistance beneficiaries (§47.07.074); Patient (§18.23.005); Medical Review Organization (§18.23.010 et seq.)In the case of emergency medical services, records of those treated may be disclosed to EMTs for emergency purposes (§18.08.087)Physicians must report tuberculosis cases to state medical officer (§18.15.131)Mental health records may be disclosed only with patient or an individual to whom the patient has given written consent to have information disclosed (§47.30.845(2))  
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
ARIZONACommunicable disease related information confidential; release of information by consent or according to §36-664(A)(1)-(12)Physicians and surgeons in most cases (§12-2235)Nonaccidental injuries, malnourishment, physical neglect, sexual abuse, or other deprivation with intent to cause or allow injury or death of minor child must be reported to peace officer or child protective services. Such reports are confidential and may be used only in authorized judicial or administrative proceedings(§13 -3620); reports and records about abused or incapacitated adult may only be used in authorized judicial or administrative proceedings (§46-454).A health provider may disclose medical records and/or payment records with written authorization by patient (§12-2292) Any release of information must specifically authorize HIV-related information. Person with confidential HIV-related information may not be compelled to disclose information by subpoena, search warrant, or other judicial process, but may report if there is an identifiable third party at risk; no prohibition from listing in death certificate (§36-664)
ARKANSASNot open to public (§25-19-105); available to patient (§23-76-129); or through patients attorney (§16-46-106)Physician or psychotherapist (Rules Ev. 503)Physicians must report cases of HIV, Reyes syndrome, and cancer (§20-15-201 et seq.)Express consent (§23-76-129) Reporting required to Arkansas Dept. of Health by physicians and other medical and lab directors (§20-15-906); all information and reporting confidential (§20-15-904)
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
CALIFORNIAMay not be disclosed without authorization except for court order, insurance, HMO (Civ. Code §56 et seq.)Doctors, including psychotherapists and psychiatrists (Ev. §1010); patient must waive doctor-patient confidentiality when plaintiff in civil suit (Ev. §1016) Patient must waive doctor-patient confidentiality when plaintiff in civil suit (Ev. §1016); other: Civ. Code §56.07Insurer may obtain to the extent noted in (Civ. Code §56.10(c)(2)) Information disclosed to the extent necessary to allow responsibility for payment to be determined and madeBlood testing must be anonymous and test results may not disclose identities of persons tested even through subpoena (H&S 120975 and 121025)
COLORADOPatient or designated representative with written authority, except for psychiatric records that would have significant negative psychological impact, in which case patient is entitled to summary (§25-1-801)Physician, nurse, or psychologist (§13-90-107)Physicians must report venereal disease, tuberculosis, rabies, and HIV to State Dept. of Public Health (§25-4-401 et seq.)  Confidential counseling and testing preferred; anonymous testing conducted for persons with high risk (§25-4-1405.5)
CONNECTICUTPatient may see and copy (§4-105); state law limits disclosure of mental health data about a patient by name or other identifier (§52-146h); state departments may receive information on patients only to the extent necessary to obtain support or payment for care of patient; all information is confidential (§17b-225)Physician (§52-146O)Physician must report tuberculosis to Dept. of Public Health (§19a-262)  Results confidential except to exposed health care workers, or to mental health or prison facilities (§19a-583)
DELAWAREAll information and records of known or suspected cases of sexually transmitted disease (STD), including HIV infections, shall be strictly confidential; released only under certain circumstances (Tit.16 §711)Physicians and psychotherapists (R. Ev. 503).Immunity from liability for reporting, in good faith, child abuse (Tit. 16 §908)Sexually transmitted diseases reported to division of Public Health, some reported in number and manner only (Tit. 16 §702)  Strictly confidential with exceptions made under certain circumstances (Tit. 16 §711)
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
DISTRICT OF COLUMBIAMedical records generally confidential, but may be transmitted for peer-review or anonymous use in publications (§32-501 et seq.). Public mental health facility must make patient records available to patients attorney or personal physician upon that persons written authorization (§21-562)Physician and mental health professionals (§14-307). Does not apply to child abuse reports or in criminal cases involving serious bodily harm (§7-1911)Mayor may issue list of diseases which physicians must report to Commission of Public Health (§7-131)  Information and records pertaining to persons with AIDS are confidential (§7-1605)
FLORIDAPatient or his/her legal representative or health care provider except for psychological or psychiatric records which may be provided as a report instead of copies of records (§456.057); patients guardian, curator, or personal representative, anyone authorized in writing (§395.3025)Psychotherapist-patient (§456.059)Physicians must report cases of tuberculosis and STDs to Dept. of Health (§384.25, §392.53)Medical records not disclosed unless patient gives written authorizations exceptions to the written authorization as provided in (§456.057) Confidential with exceptions to nondisclosure as provided in §381.004 (3)(e)
GEORGIADisclosure of medical records pursuant to laws requiring disclosure or to limited consent to disclosure does not destroy confidential or privileged nature (§24-9-42)Psychiatrist (§24-9-21); physician (§24-9-40); pharmacist (§24-9-40)Venereal disease and suspected child abuse (§§19-7-5; 31-17-2)Patient must make written authorization or waiver (or parents/guardian in case of minor) except by subpoena or appropriate court order (§24-9-40) All AIDS information confidential (20-9-40.1); may be disclosed to that person or in case of minor to parents or guardian and with notice, to reasonably believed spouse/partner (§24-9-47)
HAWAIIPatient or his attorney, but doctor may require patients authorization to make them available to attorney if detrimental to patients health (§622-57)Physicians and psychologists (R. Ev. 504, 504.1)Those with diseases or conditions declared to be communicable or dangerous to the public health (§325-2)  All records of AIDS, HIV, or AIDS-related patients are confidential; release of information under circumstances in §325-101
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
IDAHOPatient or agent by subpoena (§9-420); parent of minor child whether custodial or non (§32-717A); in some civil actions records may be open to discovery (§39-1392e); government medical records exempted from open records law (§9-340C)Physician (§9-203(4)), psychologist (§9-203(6))Child abuse cases within 24 hours (§16-1619); enumerated venereal diseases including AIDS and HIV (§39-602)Patient or doctor or nurse responsible for entries in hospital record may request protective order to deny or limit access (§9-420) Confidentiality of patient information maintained; use of information restricted to public health requirements and those with a legitimate need to know (§39-609)
ILLINOISMedical records kept strictly confidential (735§5/8-2101)Physician and psychologist (735§5/8-802)Child abuse (325 ILCS 5/4); sexually transmissible diseases (410 ILCS §325/4)Right to privacy and confidentiality in health care may be waived in writing by patient or patients physician (410§50/3) AIDS test information must be kept confidential (410 ILCS 305/1, et seq.) No disclosure of AIDS test information without consent, court order or as listed in 410 ILCS 305/9
INDIANAPatient, authorized representative, authorized health care worker (34-43-1-1, et. seq.; 16-41-8-1, et seq.)Physicians (34-46-3-1)Child abuse, HIV, and certain communicable diseases (31-33-5-1, §16-41-2-2) Insurance company may obtain records with written consent (§16-39-5-2)All HIV cases must be reported (§16-41-2-3)
IOWAMedical and psychiatric records held by Dept. of Human Services are confidential and may only be distributed to other agencies in course of official business or researchers so long as identity is not disclosed. (§217.30)Physicians and mental health practitioners (§622.10)Confidential reports of venereal disease must be filed (§§139A.30 & .31) Dept. of Public Health may designate other diseases as reportable (§139A.2)  All reports and information related to HIV are strictly confidential medical information; released under circumstance s in 141A.9
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
KANSAS Doctor-patient (with exceptions) (§60-427); Psychologist-patient (§74-5323)Any physician or lab director with knowledge of AIDS sufferer must report to secretary of health and environment; information shall be confidential and disclosed as per §65-6002 (c)  Any physician or lab director with knowledge of AIDS sufferer must report to secretary of health and environment; information shall be confidential and disclosed as per §65-6002 (c)
KENTUCKY Psychiatrist-patient privilege (R. Ev. 507)Regulations designate diseases which must be reported to Cabinet for Health Services (§214.010)Patient or physician may ask to prohibit or limit use by protective order (§422.315) Test results disclosed only to those listed in §214.181
LOUISIANAHealthcare providers must provide copies of records upon patients request (unless injurious to health or welfare of patient) or subject to subpoena (§40:1299.96)Healthcare provider-patient (usually waived in cases of child abuse or molestation) (Code Ev. §510) Written patient consent required (§40-1299.96) Information related to HIV is confidential; disclosure according to §§40:1300.14 and .15
MAINEPatient unless doctor thinks it would be detrimental to his health, then to an authorized representative (22 §1711); attorney general in a criminal proceeding although still confidential (5 §200-E)Doctor-patient; psychologist-patient (both abrogated in child protective activity) (22 §4015)Physicians must report certain communicable diseases (22§822) and malignant tumors (22§1402)  No person may disclose the results of an HIV test with exceptions in 5 §19203
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
MARYLANDRecords of Secretary of Health & Mental Hygiene must be kept confidential. It is unlawful to disclose them except for research (HG §4-101, et seq.)Psychologist/psychiatrist-patient (C & JP §9-109)Medical Advisory Board allowed to report to Motor Vehicle Administration on patients whose driving may be impaired for mental or physical reasons (Transp. §16-118) Physicians must report infectious diseases and HIV/AIDS (HG §18-201)  Test results confidential (Health-Gen. §18-334) but if individual refuses to notify sexual or needle-sharing partners physician may inform local health officer (HG §18-337)
MASSACHUSETTSPatient has right to confidentiality of all records and communications to extent provided by law and to inspect and receive copy of medical records (psychotherapist may give summary of record if it would adversely affect patients well-being (112 §12CC); mental health records private except for court order, at patients request, or if mental health commissioner allows for sake of best interest of patient (123 §36) Any injury from discharge of gun or a burn affecting over 5% of the body or a rape or sexual assault (victims name not included in report) (112 §12A); physicians may report venereal disease to patients fiancé or parents (112§12)  Labs and hospitals that conduct blood tests for AIDS must not disclose results without obtaining written informed consent of patients (111 §70F)
MICHIGANAny review entity (331.531); Department of Health shall protect privileged communications and individuals expectation of privacy with regard to Departments activities (§333.2611)Physician-patient (§600.2157)Serious communicable diseases (§333.5117)Patient may give authorization for medical provider to release patient information to third party (§333.20201) All reports of HIV infection and AIDS are confidential; release subject to §333.5131
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
MINNESOTAPatient, patients representative, or minors parent or guardian has right to copy doctors and hospital records about themselves (if provider determines that information is detrimental to physical or mental health of patient, may withhold information and supply to third party) (§144.335); mentally committed patients have access (§253B.03)Physician, nurse, or psychologist may not disclose confidential information acquired in professional capacity without the consent of the patient (§595.02)Maltreatment of minors (§626.556)  Person with actual knowledge that regulated physician/nurse/dentist/dental hygienist is infected with HIV may report (§214.19)
MISSISSIPPIMedical or dental review committee for evaluation of quality of care; patients identity not divulged (§41-63-1, and 3)Physician, dentist, nurse, pharmacist and patient (§13-1-21)Licensing boards may establish reporting requirements for Hepatitis B virus and HIV (§41-34-1, et seq.)Patient waiver of doctors privilege implied to comply with state and local health departments and for information regarding communicable diseases (§13-1-21) Convicted sex offenders shall be tested for HIV; results reported to victims and spouses (§99-19-203)
MISSOURIPatients or their representatives upon request (§191.227)Physicians, psychologists chiropractors and dentists (§491.060)   All information concerning ones HIV status is confidential, but may be released to public employees for limited purposes (§191.656)
MONTANAPatient may authorize disclosure of healthcare information (50-16-526); without patients authorization, may be released in limited circumstances (50-16-530); all records of Department of Public Health and Human Services are confidential; disclosed according to §41-3-205 (3)Doctor-patient (§26-1-805); Psychologist-client (§26-1-807)Must report if conduct is such that might expose another to infection (50-18-106)  Person may not disclose or be compelled to disclose the identity of a subject of an HIV test or results (50-16-1009); HIV testing: 50-16-1007
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
NEBRASKACounsel for mentally ill patient (§83-1053); institutional mental health records only accessible to patient, representative, and certain government agencies (§83-1068)Physicians (§27-504)Reporting of patients with cancer to Dept. of Health upon its request for Cancer Registry (§81-642); brain injuries for Brain Injury Registry (§81.654); all reportable diseases (including sexually transmitted diseases) (§71.503.01)   
NEVADAPatient has right to inspect and copy both doctors and hospitals records; also authorized representative or investigator (§629.061); Required to forward record upon transfer to new medical facility (do not need patients consent) (§433.332)Patient and physician (§49.225)Communicable diseases (§441A.150)  Law enforcement officer may request person be tested for HIV if person exposed officer to risk during officers official duties (§441A.195)
NEW HAMPSHIRERecords are deemed property of patient (§332-I:1); anyone with durable power of attorney for health care for patient (§137-J:7); patient and one with his written consent or with written certification of ombudsman (§161-F:14); no employee may be required to bear cost of any medical exam or furnish any records required by employer as condition of employment (§275:3)Doctor-patient (§329:26)Communicable diseases (141-C:7)  All records and information pertaining to persons HIV testing are confidential and protected from unwarranted intrusion (141-F:8)
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
NEW JERSEYMedical records confidential but may be disclosed to patient, upon court order, and other exceptions (§30:4-24.3)Psychologist-patient (45:14B-28); Physician-patient (2A:84A-22.1, .2)Child abuse (§9:6-8.30); pertussis vaccine (§26:2N-5); venereal disease (§26:4-41); AIDS (26:5C-6)  All records with identifying information are confidential (§26:5C-7); disclosure per 26:5C-8, et seq.
NEW MEXICOOffice of state long-term care ombudsman for patient/resident/client (§28-17-13); confidential shall not be disclosed without authorization from patient. Authorization not required for disclosure of confidential information in certain circumstance. (§43-1-19); worker, employer, or employers insurer, or the appropriate peer review organization, all records of any health care service provided the worker, upon written request (§52-10-1)Physician/psychologist-patient (Rule 11-504)Sexually transmitted diseases (§24-1-7)  Performance of test and results are confidential; disclosure subject to §24-2B-6
NEW YORKMedical director of prison in reference to inmate (Corr. §601); ombudsman (Exec §544-a); inspector of a mental facility (Men. Hyg. §16.11); physician or hospital must release medical file to another physician or hospital upon written request of parent, guardian, or patient; records concerning venereal disease treatment or abortion for minor may not be released, even to parent (Pub. Health §17)Physician, dentist, podiatrist, chiropractor, and nurse. (Civ. Prac. §4504)   All HIV-related information is confidential and may only be disclosed in limited circumstances (Pub. Health §2782)
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
NORTH CAROLINAAll privileged patient medical records possessed by Department of Health or local health department are confidential (§130A-12); pharmacists when necessary to provide services (§90-85.35)Physician (§8-53), except in cases of alleged child abuse (§8-53.1)Physicians, lab directors and local health directors must report communicable diseases; hospitals may report (§130A-134,et seq.)  All AIDS information and records are confidential; subject to release only according to §130A-143
NORTH DAKOTA Physicians and psychotherapists (Ev. R. 503)Child abuse and communicable diseases designated by Dept. of Health (§§23-07-01; 50-25.1-01)  Information regarding HIV infection is strictly confidential; release subject to §23-07-02.2)
OHIOEmployee or designated representative may request records from employer, physician, health care professional, hospital, or lab when they are contracted by employer (§4113.23)Doctor-patient (§2317-02(B))Child abuse (§2151.421); occupational diseases (3701.25); cases of cancer for cancer registry (§3701.262); contagious or infectious diseases (including AIDS) (§3701.24)  Disclosure of HIV or AIDS-related information subject to §3701.243
OKLAHOMAPatient has access to medical records in the cases of psychological/psychiatric records, patient has access if consented to by treating physician or court orders or upon finding that it is in the best interest of patient (76 §19); health professional may inform parents of treatment needed or provided to minor; such disclosure does not breach right to privacy (63 §2602; 43A §1-109)Physician/psychotherapist-patient (Tit. 12 §2503)Child abuse (physical, sexual and/or neglect); communicable or venereal disease (Tit. 10 §7103; Tit. 63 §1-528(b))  HIV tests or records upon written request of person affected, or in cases of certain crimes, test results released to victim (Tit. 63 §1-525)
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
OREGONInstitutions are encouraged to permit patient to copy doctor and hospital records and prevent unnecessary disclosure (§192.525) Suspected violence: physical injury with knife, gun or other deadly weapon (in confidence) (§146.750)  HIV test results confidential (§433.075)
PENNSYLVANIAPatient or patients designee, including attorney (42§6155)Physician privilege limited to civil matters (42 §5929)Communicable diseases (35 §521.4)  All HIV-related information confidential; limited disclosure (35 §7607)
RHODE ISLANDPatient (§5-37-22); holders of medical records must keep them confidential; patients written consent generally required (§5-37.3-4)Health care providers (§9-17-24)Occupational diseases (§23-5-5); sexually transmitted and communicable diseases (§23-8-1; §23-11-5) Patient information cannot be released or transferred without patients written consent (§5-37.3-4)Disclosure of AIDS test result to third parties limited by §23-6-17
SOUTH CAROLINAPatient or representative (§44-115-30)Mental health provider-patient (19-11-95)Sexually transmitted diseases (§44-29-70)  Information and records are strictly confidential except in limited circumstances (§44-29-136); in minor cases, if attending public school, superintendent and nurse must be notified; Court orders: (§44-29-135)
SOUTH DAKOTAPatient or representative (§36-2-16)Physician and psychotherapist (§19-13-7)Venereal disease (34-23-2); child abuse or neglect (26-8A-3) Division of Insurance must keep medical records confidential (§58-4-5)Victims of sexual assault may request testing and receive notification of results (23A-35B-1, et seq.)
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
TENNESSEEHospital records property of hospital, upon court order or written request of patient may see (§68-11-304); medical records of patients in state facilities and those whose care is paid for by state funds are confidential (§10-7-504)Psychiatrists (§24-1-207); psychologists (§63-11-213)Communicable diseases (68-5-101); sexually transmitted diseases (68-10-101) Insurance companies may not market/sell identifying patient information without patients written consent (§56-7-124)Law enforcement officer may request arrested person be tested for Hepatitis B or HIV if exposed to blood (68-10-116); records strictly confidential; released as per 68-10-113
TEXASMedical information identifiable as to individuals is to be kept confidential and information used for studies is privileged (Health & Safety §161.022)Physician (Occ. §159.002)Bullet or gunshot wounds (Health & Safety §161.041); certain occupational diseases (Health & Safety §84.003); certain communicable diseases (Health & Safety §81.041)Hospital may not reveal patient healthcare information without patients written consent (Health & Safety, §241.152) Public safety workers may require persons tested for HIV if there has been exposure; generally HIV tests are confidential (Health & Safety §81.050, et seq.)
UTAHPatients attorney with patients written authorization (§78-25-25)Doctor-patient (§78-24-8(4))Suspected child abuse (§62A-4a-403); communicable and infectious diseases (including HIV and AIDS) (§26-6-3)  All reports regarding communicable diseases are confidential. May only be disclosed to authorized healthcare workers or researchers. (26-6-27)
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
VERMONTMedical personnel, or persons supervised by medical personnel, directly treating patient or monitoring/researching treatment (18§1852)Physician, chiropractor, dentist, nurse, or mental health professional not allowed to disclose information acquired in attending a patient in a professional capacity (12 §1612)Infectious venereal diseases (18 §1093)Patient must give written authorization (18§1852) HIV-related testing and counseling information disclosed upon court order showing compelling need that cant be accommodated by other means (pseudonym substituted if possible) (12 §1705)
VIRGINIASubject person can review his/her medical and mental records; however, mental records; however, mental records may not be personally reviewed in physician feels review would be injurious to persons physical or mental health or wellbeing (§2.2-3705); patient or attorney upon patients written request to hospital or health care records except for records when doctor declares release would be injurious to patients health or well-being (§8.01-413)Duly licensed practitioner of any branch of the healing arts dealing with patient in professional capacity including clinical psychologist (§8.01-399)Statistics regarding immunization records (§32.1-46.01) Insurance company must provide medical information to individual or to medical professional designated by individual; must notify individual that information was released at time of disclosure (38.2-608)All test results are confidential, released only to that person, his legal representative, Department of Health, parents of minor, spouse, by court order, and others authorized by law (§32.1-36.1)
WASHINGTONPatient may authorize disclosure (70.02.030); without authorization: health care providers, penal institution officials, public health authorities (§70.02.050); representatives of deceased patient (§70.02.140)Psychologist (18.83.110)Child abuse or adult dependent or developmentally disabled (§26.44.030); tuberculosis (70.28.010); sexually transmitted diseases (70.24.105)Patient must give written authorization (§70.02.030) Disclosure of identity of person investigated, considered, or requested to test for HIV permitted to those under 70.24.105
StateWho Has AccessPrivilegeMandatoryReportingPatient WaiverInsurancePurposesAIDS
WEST VIRGINIAPatient through written request; summary provided in case of psychiatric or psychological treatment (16-29-1) Sexually transmitted diseases (§16-4-6); suspected child abuse (§49-6A-2); gunshot and other wounds; burns (§§61-2-27 and 27a)  Disclosure of identity of person tested for HIV in limited circumstances (§16-3C-3)
WISCONSINPatient may inspect and copy upon submitting statement of informed consent (§146.83); Patient health care records confidential. May be released to certain persons or to persons with the informed consent of the patient or of a person authorized by the patient. (§146.82)Physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist and professional counselor-patient (§905.04)Sexually transmitted diseases (§252.11); tuberculosis (§252.07); abused or neglected children and abused unborn children (§48.981); communicable diseases (§252.05)  AIDS/HIV test results must remain confidential except as released per §252.15 (5)
WYOMINGPatient (with written authorization) (§35-2-606); health care providers, family members, researchers (§35-2-609)Physician (§1-12-101)Child abuse; sexually transmitted diseases; communicable disease (§§14-3-205; 35-4-130; 35-4-103)   

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Privacy

Privacy

As more diagnostic, screening, and monitoring tests based on genetic data become available, privacy issues are becoming increasingly important. There are concerns that the results of genetic tests showing a person to be pre-disposed to a particular disease will fall into the hands of commercial medical suppliers or financial, legal, insurance, or government agencies, all of which control important products or services.

The confidentiality of medical information is of paramount importance to most consumers and patients. However, maintaining confidentiality is made difficult by the use of large medical record databases and other electronically stored records, to which any number of individuals may have access.

The Potential for Misuse of Medical Records

Medical records can be misused unless they are coded to hide patients' identifying information. If a patient has been treated for a particular disease and his or her medical records are not held in confidence, a company selling products related to the disease could directly contact the patient. Although this may not pose a problem in most cases, in some situations, such as if a patient was treated for a sexually transmitted disease, the patient might not want family members or others with access to his or her mail to know about the treatment. There are also concerns about the potential for discrimination arising from the use of these data in determining a patient's eligibility for employment, housing, or other services.

In the United States, legislation has been passed to deal with issues surrounding genetic and health information. The Health Insurance Portability and Accountability Act of 1996 was enacted to address privacy issues related to personal health information. This act requires that health care providers, health plans, and health care clearinghouses implement certain privacy standards regarding health information.

Although the act protects "all medical records and other individually identifiable health information," there is some concern that it does not provide sufficient protection for the privacy of genetic information. In 2001 additional protection was proposed in at least three bills in the U.S. Congress. These bills were intended to prohibit discrimination on the basis of genetic information with respect to health insurance. The area of privacy and genetic information continues to develop, with additional legislation on the federal and state levels certain to arise.

European countries have addressed issues of privacy and personal information in a Directive on Data Protection. This directive, which became effective in October 1998, established a comprehensive legal regime in the European Union that governs the collection and use of personal information.

Privacy questions abound when it comes to genetic testing to determine if a person carries particular genes. One concern is that patients affected by genetic diseases, as well as those potentially at risk of disease, could be discriminated against. Another is that genetic information could also lead to discrimination against the children of those directly affected by a genetic disease.

Genetic Information in the Justice System

Many similar concerns arise in the context of criminal law, including the potential uses of DNA databases. There are issues relating to the collection and maintenance of DNA samples or information from everyone who is arrested, whether or not they are convicted. There are issues relating to the collection and maintenance of DNA samples and/or information collected from individuals upon arrest. For example, the DNA and/or information obtained from certain individuals may be saved, even if the person is not convicted. Indeed, prosecutors have issued many arrest warrants in old cases based solely on stored DNA data. These warrants have resulted in successful prosecutions, but the question being asked in the courts is whether it is legal to base arrests solely on "cold hit identification" using DNA evidence.

In contrast to medically oriented genetic tests, the DNA tests used in criminal law generally do not test for the presence or absence of a particular gene, since the noncoding regions of a person's DNA can be distinguished much more easily from the DNA of other individuals. Different individuals have different DNA sequences in these noncoding regions because there is no evolutionary penalty for mutations in such regions, as they are not used to produce proteins.

This helps provide the high level of discrimination required in criminal cases, enabling a jury to say that, based in part on the DNA evidence, an accused person is guilty beyond a reasonable doubt. An important caveat however, and one not always understood by prosecutors or juries, concerns what a DNA match actually proves. While nonmatching DNA proves innocence, matching DNA does not prove guilt. In any large city, there will be at least a handful of people with similar DNA profiles. Even if DNA is found to be matching, a conviction must rely on other evidence, such as other physical evidence or eyewitness testimony.

Although the use of DNA data can assist investigations, there is an element of "big brother is watching" in its use. There are also concerns that by instituting wide programs of DNA collection based on arrests, not necessarily convictions, the practice will expand to other areas. For example, providing a DNA sample could be required, at some point, for obtaining a driver's license, marriage license, or social security number. There is also a question of what entities, including police departments, governmental agencies, employers, financial institutions, credit reporting businesses, and insurance carriers, would have access to the data. There is concern that by having genetic information recorded in a criminal record database, citizens would be subject to a wide variety of discrimination.

see also Disease, Genetics of; DNA Profiling; Genetic Discrimination; Genetic Testing; Genetic Testing: Ethical Issues; Human Disease Genes, Identification of; Legal Issues.

Kamrin T. MacKnight

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EMR

EMR Eastern Mediterranean Region
• (or emr) electromagnetic radiation

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