S 1271 Session 109 (1991-1992)
S 1271 General Bill, By M.T. Rose
A Bill to amend Title 44, Code of Laws of South Carolina, 1976, by adding
Chapter 114 so as to enact the "Confidentiality of Health Care Information
Act" so as to require consent for release of health care information and to
provide exceptions where consent is not required; to provide procedures for
obtaining consent and for maintaining confidentiality of information that is
released; to create a privilege against compulsion to release confidential
health care information and to provide exceptions to the privilege; to
establish a cause of action to have an erroneous health care record amended;
and to provide penalties.
02/05/92 Senate Introduced and read first time SJ-8
02/05/92 Senate Referred to Committee on Medical Affairs SJ-8
A BILL
TO AMEND TITLE 44, CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING CHAPTER 114 SO AS TO ENACT THE
"CONFIDENTIALITY OF HEALTH CARE INFORMATION
ACT" SO AS TO REQUIRE CONSENT FOR RELEASE OF
HEALTH CARE INFORMATION AND TO PROVIDE EXCEPTIONS
WHERE CONSENT IS NOT REQUIRED; TO PROVIDE
PROCEDURES FOR OBTAINING CONSENT AND FOR
MAINTAINING CONFIDENTIALITY OF INFORMATION THAT IS
RELEASED; TO CREATE A PRIVILEGE AGAINST COMPULSION
TO RELEASE CONFIDENTIAL HEALTH CARE INFORMATION
AND TO PROVIDE EXCEPTIONS TO THE PRIVILEGE; TO
ESTABLISH A CAUSE OF ACTION TO HAVE AN ERRONEOUS
HEALTH CARE RECORD AMENDED; AND TO PROVIDE
PENALTIES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 44 of the 1976 Code is amended by adding:
"CHAPTER 114
Confidentiality of Health Care Information
Section 44-114-10. This chapter may be cited as the
`Confidentiality of Health Care Information Act'.
Section 44-114-20. The purpose of this chapter is to establish
safeguards for maintaining the integrity of confidential health care
information.
Section 44-114-30. As used in this chapter:
(1) `Health care provider' means a person, corporation, facility or
institution licensed by this State to provide health care services,
including, but not limited to, a physician, dentist, nurse, optometrist,
podiatrist, physical therapist, psychologist, or a hospital or other health
care facility, and an officer, employee, or agent of a health care provider
acting in the course and scope of an employment or agency relationship.
(2) `Health care services' means acts of diagnosis, treatment,
medical evaluation, advice or other acts as may be permissible under the
health care licensing statutes of this State.
(3) `Confidential health care information' means information
relating to a person's health care history, diagnosis, condition, treatment,
or evaluation.
(4) `Medical peer review committee' means a committee of a state
or local professional medical society or of a medical staff of a licensed
hospital, nursing home, or other health care facility provided the medical
staff operates pursuant to written bylaws that have been approved by the
governing board of the hospital, nursing home, or other health care
facility, or other organization of physicians formed pursuant to state or
federal law and authorized to evaluate medical and health care services.
(5) `Third party' means a person or entity other than the person to
whom the confidential health care information relates and other than a
health care provider.
Section 44-114-40. (A) Except as provided in subsection (B) or
as otherwise specifically provided by law, a person's confidential health
care information may not be released or transferred without the written
consent of the individual or the individual's authorized representative on
a form meeting the requirements of this chapter. A copy of a signed
consent and of a notice as provided for in Section 44-114-60 must be
provided to the person signing the consent.
(B) No consent for release or transfer of confidential health care
information is required: (1) to a physician, dentist, or other
medical personnel for diagnosis or treatment of an individual in a
medical or dental emergency;
(2) to a medical peer review committee;
(3) to the South Carolina Department of Insurance or other
state agency for the purpose of reviewing an insurance claim or
complaint made by an insured, an insured's authorized representative, or
by a beneficiary or a beneficiary's authorized representative of a
deceased insured;
(4) to qualified personnel for the purpose of conducting
scientific research, management audits, financial audits, program
evaluations, or similar studies, but this personnel may not identify,
directly or indirectly, an individual patient in a research, audit, or
evaluation report or similar study or otherwise disclose a patient's
identity in any manner; for purposes of this item, `qualified personnel'
means persons whose training and experience are appropriate to the
nature and level of the work and who, when working as part of an
organization, are performing this work with published and adequate
administration safeguards against unauthorized disclosure;
(5) by a health care provider, as reasonably necessary in the
provision of health care services to a person, or in the administration of
the office or practice or operation of a health care provider;
(6) by an employer as reasonably necessary in the
administration of a group insurance or worker's compensation plan;
(7) upon the filing of a claim for insurance benefits, between
third party insurers to determine their relative rights and obligations
concerning the individual's entitlement or the amount or kind of
insurance benefits; and
(8) between insurers and reinsurers in connection with the
underwriting and administration of coverage and the processing of
claims.
(C) The release or transfer of confidential medical information
under subsection (B) is not the basis for any civil or criminal liability
and is not a violation of this chapter.
Section 44-114-50. Third parties receiving and retaining an
individual's confidential health care information must establish at least
the following security procedures:
(1) limit authorized access to personally identifiable confidential
health care information to persons having a `need to know' the
information; additional employees or agents may have access to the
information if it does not contain information from which an individual
may be identified;
(2) identify one or more individuals who are responsible for
maintaining security procedures for confidential health care information;
(3) provide a written statement to each employee or agent on the
necessity of maintaining the security of confidential health care
information and include the penalties provided for in this chapter for the
unauthorized release, use, or disclosure of this information; receipt of
this statement must be acknowledged by the employee or agent and the
employer or principal shall retain the original statement and shall furnish
the employee or agent with a copy of the signed statement; and
(4) take no disciplinary or punitive action against an employee or
agent who brings evidence of violation of this chapter to the attention of
any person or entity.
Section 44-114-60. A consent form for the release or transfer of
confidential health care information or used in the course of an
application or claim for insurance must be accompanied by a notice that
includes, but is not limited to:
(1) the need for and proposed use of the information;
(2) a statement indicating specifically the type and extent of
information to be released;
(3) a statement that the information will not be given, sold,
transferred, or in any way relayed to another person or entity not
specified in the consent form or notice without first obtaining the
individual's additional written consent on a form stating the need for the
proposed new use of the information and the need for its transfer to
another person or entity; and
(4) a statement that the consent applies only to the release or
transfer of confidential health care information existing prior to the date
on the consent form, except that when the consent is given in the course
of an application or claim for insurance it must also apply to medical
information existing at any time during the period of contestability
provided for in the policy and during periods of ongoing proofs of loss
during a claim.
Section 44-114-70. (A) A health care provider, upon written
request of a patient who has received health care services from the
provider, at the option of the patient either shall permit the patient or the
patient's authorized representative to examine and copy the patient's
confidential health care information or provide the patient or the
patient's authorized representative a summary of the information. At the
time of examining, copying, or providing a summary of the information,
the health care provider must be reimbursed for reasonable expenses in
connection with furnishing the information.
(B) If in the professional judgment of the health care provider it
would be injurious to the mental or physical health of the patient to
disclose certain confidential health care information to the patient, the
health care provider is not required to disclose or provide a summary of
that information to the patient but upon written request of the patient or
the patient's authorized attorney shall disclose that information to
another health care provider designated by the patient.
(C) A third party shall transfer all of the individual's confidential
health care information in its possession to that individual's authorized
attorney:
(1) upon the written request of the individual or the individual's
authorized attorney or physician, or if the individual is deceased, an heir,
beneficiary, or authorized representative of the individual; and
(2) upon occurrence of an action or decision of a third party that
adversely affects the individual and that is based in whole or in part
upon that individual's confidential health care information, including,
but not limited to:
(a) denial of an application for an insurance policy;
(b) issuance of an insurance policy with other than
standard and uniform restrictions;
(c) rejection in whole or in part of a claim for insurance
benefits; and
(d) denial of an employment application or termination of
employment when the denial or termination is for health reasons.
Before making the transfer, the third party may require payment of
its cost of retrieval, duplication, and forwarding of the information.
(D) After reviewing confidential health care information obtained
pursuant to this section, a person or the person's authorized attorney may
request the third party to amend or expunge any part the person believes
is in error or request the addition of recent relevant information. Upon
receiving a request, the third party shall notify the health care provider
who initially forwarded this information to the third party. When the
health care provider concurs with the request, the third party shall return
the information to the health care provider for modification and first may
require payment of its cost of notice, duplication, and return of the
information. Except upon court order, the third party may not modify
this information. A person after requesting and reviewing the
confidential health care information has the right to place into the file a
statement of reasonable length of his view of the correctness or
relevance of existing information or of the addition of new information.
The statement must at all times accompany that part of the information.
Section 44-114-80. (A) Except as provided in subsection (B),
confidential health care information is not subject to compulsory legal
process in any proceeding, including, but not limited to, a civil or
criminal case, a pretrial or other preliminary proceeding, a legislative or
administrative proceeding, and a person or the person's authorized
representative has a privilege to refuse to disclose and to prevent a
witness from disclosing the person's confidential health care information
in any of these proceedings.
(B) The exemption from compulsory legal process and the
privilege provided in subsection (A) do not apply when:
(1) an individual introduces a physical or mental condition
including, but not limited to, an allegation of mental anguish, mental
suffering, or similar condition as an element of the individual's claim or
defense, provided that a claim for damages or other relief for `pain and
suffering' based solely on one's physical condition does not constitute
the introduction of one's mental condition into issue and the exemption
and privilege apply in this situation to those portions of one's
confidential health care information relating to mental condition;
(2) the individual's physical or mental condition is relevant
regarding the execution or witnessing of a will or other document;
(3) the physical or mental condition of a deceased individual
is introduced by a party claiming or defending through or as a
beneficiary of the individual;
(4) in a commitment proceeding, a physician, in the course of
diagnosis, treatment, or medical evaluation of an individual, determines
that an individual is in need of care and treatment in a hospital or other
health care facility which is considered by the individual's physician to
be appropriate for mental illness;
(5) a judge finds that an individual, after having been informed
that the communications would not be privileged, has made
communications to a psychiatrist in the course of a psychiatric
examination ordered by the court, provided that the communications are
admissible only on issues involving the individual's mental condition;
(6) in a court proceeding, including an ex parte hearing, there
is prima facie evidence that the individual's physical or mental condition
is of an imminent and serious danger to the physical or mental health of
another person or to the security of the United States; or
(7) in an action by an individual pursuant to Section
44-114-110 of this chapter, in an action brought by an individual under
a policy against his insurance carrier, by the carrier of an insured, or in
any other action by an individual where it is demonstrated to the court
that the confidential health care information is relevant and material,
then production of the information may be obtained in accordance with
court order or the South Carolina Rules of Civil Procedure.
(C) The exceptions contained in subsection (B) are not intended
to preclude the exemption or privilege described in subsection (A) in a
pretrial or trial proceeding under the divorce laws of this State unless the
individual or witness first testifies about the individual's confidential
health care information.
Section 44-114-90. (A) Notwithstanding other provisions of this
chapter, health care providers may make confidential health care
information available to a medical peer review committee without
authorization.
(B) Confidential health care information before a medical peer
review committee remains strictly confidential, and a person found
guilty of the unlawful disclosure of this information is subject to the
penalties provided in this chapter.
(C) Except as otherwise provided in this section, the proceedings
and records of a medical peer review committee are not subject to
discovery or introduction into evidence. No person in attendance at a
meeting of a medical peer review committee may be permitted or
required to testify on any matters presented during the proceedings of
that committee or on any findings, recommendations, evaluations,
opinions, or other actions of that committee or any members of that
committee.
(D) Confidential health care information otherwise discoverable
or admissible from an original source is not immune from discovery or
use in a proceeding merely because it was presented during a proceeding
before a medical peer review committee, and no member of a committee
or other person appearing before the committee may be prevented from
testifying on matters within the person's knowledge and in accordance
with the other provisions of this chapter but the witness may not be
questioned about the witness's testimony or other proceedings before the
committee or about opinions formed by the witness as a result of the
committee hearings.
(E) The limitation of discovery or testimony in subsections (C)
and (D) do not apply to a legal action brought by a medical peer review
committee to restrict or revoke a physician's hospital staff privileges or
a physician's license to practice medicine, or to cases where a member
of the medical peer review committee or the legal entity which formed
or within which the committee operates is used for actions taken by the
committee, provided that in these legal actions personally identifiable
portions of a person's confidential health care information may not be
used without written authorization of that person or that person's
authorized representative or upon court order.
(F) Nothing in this chapter limits the authority, which may
otherwise be provided by law, of a physician licensing or disciplinary
board of this State to require a medical peer review committee to report
to it disciplinary actions or recommendations of that committee, or to
transfer to it records of that committee's proceedings or actions,
including confidential medical information, to restrict or revoke a
physician's license to practice medicine, provided that in these legal
actions personally identifiable portions of a person's confidential health
care information may not be used without authorization of that person
or that person's authorized representative or upon court order.
(G) No member of a medical peer review committee, no legal
entity which formed or within which the committee operates, and no
person providing information to that committee may be criminally or
civilly liable for the performance of a duty, function, or activity of the
committee or based upon providing information to the committee,
provided the action is without malice and is based upon a reasonable
belief that the action is warranted.
Section 44-114-100. When there is an unreasonable refusal to
change an individual's records as provided for in this chapter, the
individual or the individual's authorized representative may bring an
action in court for the amendment or expungement of any part of the
individual's confidential health care information that is in the possession
of a third party and that the individual believes is erroneous, and the
court shall correct any record that is erroneous.
Section 44-114-110. To the extent a minor has the right under the
laws of this State to obtain health care services without the consent of a
parent or guardian, that minor has all rights under this chapter relating
to confidential health care information for those health care services.
Section 44-114-120. The court may award attorney's fees and
reasonable costs to the prevailing party in any action brought under this
chapter.
Section 44-114-130. An agreement purporting to waive the
provisions of this chapter is against public policy and void."
Section 44-114-140. (A) A person who violates this chapter
may be liable for special and general damages.
(B) A person who intentionally and knowingly violates this
chapter, upon conviction, must be fined not more than one thousand
dollars or imprisoned for not more than six months, or both.
(C) The penalties in subsections (A) and (B) apply to a person
who provides or obtains an individual's confidential health care
information through the commission of a crime."
SECTION 2. This act takes effect July 1, 1993.
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