Current Status Introducing Body:Senate Bill Number:1271 Primary Sponsor:Rose Committee Number:13 Type of Legislation:GB Subject:Confidentiality of Health Care Information Act Residing Body:Senate Current Committee:Medical Affairs Computer Document Number:BR1/1851.AC Introduced Date:Feb 05, 1992 Last History Body:Senate Last History Date:Feb 05, 1992 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Rose Type of Legislation:General Bill
Bill Body Date Action Description CMN
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1271 Senate Feb 05, 1992 Introduced, read first time, 13
referred to Committee
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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:
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.