Memorandum of Law
CHRISTOPHER SEEKINS
Superior Court, G.A. 18
80 Doyle Road
Bantam, CT 06750
April 6,2006
Table of Contents
Part 1:
Connecticut State Law
1. General Statutes of Connecticut
a. Volume 6
Page
1. Sec. 19a-581. Definitions.
3. Sec. 19a-582. Informed consent for testing. Exceptions.
7. Sec. 19a-583. Limitations on disclosure of HIV-related information.
10. Sec. 19a-584. Informing and warning of known partners of possible exposure to the HIV virus. Disclosure of HIV-related information to public health officers.
11. Sec. 19a-585. Requirements for disclosure of HIV-related information.
12. Sec. 19a-586. Testing for insurance purposes.
12. Sec. 19a-587. Disclosure by insurers.
12. Sec. 19a-588. Notification of procedures to certain municipal employees.
13. Sec. 19a-589. Regulations.
13. Sec. 19a-590. Liability for violations.
b. Volume 13
Page
14. Sec. 52-146c. Privileged communications between psychologist and patient.
15. Sec. 52-146d. (Formerly Sec. 52-146a). Privileged communications between psychiatrist and patient. Definitions.
16. Sec. 52-146e. Disclosure of communications.
17. Sec. 52-146f. Consent not required for disclosure, when.
Part 2:
United States of America Federal Law
1. Code of Federal Regulations (CFR)
a. Title 42 - Public Health / Chapter IV - Centers of Medicare and Medicaid services, department of health and human services /
Part 2 - Confidentiality of alcohol and drug abuse patient records
Page
20. §2.3 Purpose and effect.
21. §2.13 Confidentiality restrictions.
22. §2.31 Form of written consent.
23. §2.51 Medical emergencies.
Part 3:
HIPPA FEDERAL LAW
1. Part 164 – Security and privacy / Subpart E - Privacy of Individually Identifiable Health Information
a. Unexpanded version:§ 164.512 Uses and disclosures for which consent, an authorization, or opportunity to agree or object is not required.
Page
27. (a) Standard: uses and disclosures required by law.
27. (b) Standard: uses and disclosures for public health activities.
27. (c) Standard: disclosures about victims of abuse, neglect or domestic violence.
27. (d) Standard: uses and disclosures for health oversight activities.
27. (e) Standard: disclosures for judicial and administrative proceedings.
27. (f) Standard: disclosures for law enforcement purposes.
27. (g) Standard: uses and disclosures about decedents.
27. (h) Standard: uses and disclosures for cadaveric organ, eye or tissue donation purposes.
27. (i) Standard: uses and disclosures for research purposes.
27. (j) Standard: uses and disclosures to avert a serious threat to health or safety.
27. (k) Standard: uses and disclosures for specialized government functions.
27. (l) Standard: disclosures for workers’ compensation.
b. Expanded version:§ 164.512 Uses and disclosures for which consent, an authorization, or opportunity to agree or object is not required.
Page
28. (a) Standard: uses and disclosures required by law.
28. (b) Standard: uses and disclosures for public health activities.
30. (c) Standard: disclosures about victims of abuse, neglect or domestic violence.
31. (d) Standard: uses and disclosures for health oversight activities.
32. (e) Standard: disclosures for judicial and administrative proceedings.
34. (f) Standard: disclosures for law enforcement purposes.
37. (g) Standard: uses and disclosures about decedents.
38. (h) Standard: uses and disclosures for cadaveric organ, eye or tissue donation purposes.
38. (i) Standard: uses and disclosures for research purposes.
41. (j) Standard: uses and disclosures to avert a serious threat to health or safety.
42. (k) Standard: uses and disclosures for specialized government functions.
45. (l) Standard: disclosures for workers’ compensation.
Part 4:
United States Constitution
1. Amendment XIV
Page
47. Citizenship rights.
2. Amendment III
Page
47. Quartering of soldiers.
3. Amendment IV
Page
47. Search and seizure.
Part 5:
Illegal Search and Seizure Warrant
1. Case Examples-
Page
48. Florida v. Riley, 488 U.S. 445 (1989)
48. Kyllo v. United States 533 U.S. 27 (2001)
2. Discrepancies in police reports and warrant affidavit
Page
49. Officer Alan Milhomens
49. Officer Fox
3. Affidavit for warrant- “Good faith”
Page
50. Sgt. Kevin Kinahan / Sgt. Brian Fox
Part 6:
1. Connecticut Constitution
Page
52. SEC. 7. The people shall be secure in their persons, houses, papers and…
52. SEC. 9. No person shall be arrested, detained or punished…
52. SEC. 15. Every citizen has a right to bear arms in defense of himself and the state
52. SEC. 17. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner
2. Federal Rules of Criminal Procedure
a. Rule 41. Search and Seizure
1. (e) Issuing the Warrant.
Page
52. (2) Contents of the Warrant.
2. (f) Executing and Returning the Warrant.
Page
52. (1) Noting the Time.
Part One
GENERAL STATUTES
OF
CONNECTICUT
Revised to January 1, 2005
(Prepared under the direction of the Legislative Commissioners' Office)
.
Volume 6
Title 19a PUBLIC HEALTH AND WELL-BEING
Chapters 368a to 368aa
CHAPTER 368x*
AIDS TESTING AND MEDICAL INFORMATION
Sec. 19a-581. Definitions. As used in this chapter except where the context otherwise requires:
(1) "Department" means the Department of Public Health;
(2) "Commissioner" means the Commissioner of Public Health;
(3) "AIDS" means acquired immune deficiency syndrome, as defined by the Centers for Disease Control of the United States Public Health Service;
(4) "HIV infection" means infection with the human immunodeficiency virus or any other related virus identified as a probable causative agent of AIDS;
(5) "HIV-related illness" means any illness that may result from or may be associated with HIV infection;
(6) "HIV-related test" means any laboratory test or series of tests for any virus, antibody, antigen or etiologic agent whatsoever thought to cause or indicate the presence of HIV infection;
(7) "Protected individual" means a person who has been counseled regarding HIV infection, is the subject of an HIV-related test or who has been diagnosed as having HIV infection, AIDS or HIV-related illness;
(8) "Confidential HIV-related information" means any information pertaining to the protected individual or obtained pursuant to a release of confidential HIV-related information, concerning whether a person has been counseled regarding HIV infection, has been the subject of an HIV-related test, or has HIV infection, HIV-related illness or AIDS, or information which identifies or reasonably could identify a person as having
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one or more of such conditions, including information pertaining to such individual's partners;
(9) "Release of confidential HIV-related information" means a written authorization for disclosure of confidential HIV-related information which is signed by the protected individual or a person authorized to consent to health care for the individual and which is dated and specifies to whom disclosure is authorized, the purpose for such disclosure and the time period during which the release is to be effective. A general authorization for the release of medical or other information is not a release of confidential HIV-related information, unless such authorization specifically indicates its dual purpose as a general authorization and an authorization for the release of confidential HIV-related information and complies with the requirements of this subdivision;
(10) "Partner" means an identified spouse or sex partner of the protected individual or a person identified as having shared hypodermic needles or syringes with the protected individual;
(11) "Health facility" means an institution, as defined in section 19a-490, blood bank, blood center, sperm bank, organ or tissue bank, clinical laboratory or facility providing care or treatment to the mentally ill or persons with mental retardation or a facility for the treatment of substance abuse;
(12) "Health care provider" means any physician, dentist, nurse, provider of services for the mentally ill or persons with mental retardation, or other person involved in providing medical, nursing, counseling, or other health care, substance abuse or mental health service, including such services associated with, or under contract to, a health maintenance organization or medical services plan;
(13) "Significant risk of transmission" means sexual activity that involves the transfer of one person's semen, vaginal or cervical secretions to another person or sharing of needles during intravenous drug use. The department may further define significant risk of transmission in regulations adopted pursuant to section 19a-589;
(14) "Significant exposure" means a parenteral exposure such as a needlestick or cut, or mucous membrane exposure such as a splash to the eye or mouth, to blood or a cutaneous exposure involving large amounts of blood or prolonged contact with blood, especially when the exposed skin is chapped, abraded, or afflicted with dermatitis. The department may further define significant exposure in regulations adopted pursuant to section 19a-589;
(15) "Exposure evaluation group" means at least three impartial health care providers, at least one of whom shall be a physician, designated by the chief administrator of a health facility, correctional facility or other institution to determine if a health care or other worker has been involved in a significant exposure. No member of the group shall
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be directly involved in the exposure. The department may further define exposure evaluation group in regulations adopted pursuant to section 19a-589.
(P.A. 89-246, S. 1; P.A. 93-381, S. 9, 39; P.A. 95-257, S. 12, 21, 58.)
Sec. 19a-582. Informed consent for testing. Exceptions.
(a) Except as required pursuant to section 19a-586 or by federal or state law, no person shall order the performance of an HIV-related test without first receiving written informed consent or oral informed consent which has been documented in the medical record, of the subject of the test or of a person authorized to consent to health care for such individual. The consent of a parent or guardian shall not be a prerequisite to testing of a minor. The laboratory shall report the test result to the person who orders the performance of the test. Whenever practicable written consent shall be obtained. A person ordering the performance of an HIV-related test shall certify that informed consent has been received prior to ordering testing by a licensed laboratory. No laboratory shall perform an HIV-related test without a written certification that such consent has been obtained, or without written certification that testing without consent is being ordered pursuant to one of the exceptions in subsection (e) of this section. The Department of Public Health shall develop recommended forms for health care providers for purposes of this section. Such forms shall satisfy the requirement for a written consent form but shall not fully satisfy the requirement for the explanation pursuant to subsections (b) and (c) of this section. Any form used pursuant to this section and all information conveyed pursuant to subsections (c) and (d) of this section shall be written or conveyed in a clear and coherent manner using plain language as described in section 42-152. A person ordering the performance of an HIV-related test shall not be held liable if a good faith effort is made to convey the explanation required pursuant to subsections (b), (c) and (d) of this section. The department shall develop guidelines for meeting the requirements of subsections (b), (c) and (d) of this section.
(b) Informed consent to an HIV-related test shall include a statement provided to the subject of the test or provided to a person authorized to consent to health care for the subject which includes at least the following: (1) An explanation of the test, including its purpose, the meaning of its results, and the benefits of early diagnosis and medical intervention; (2) acknowledgment that consent to an HIV test is not a precondition to receiving health care but that refusal to consent may, in some circumstances, affect the provider's ability to diagnose and treat the illness; (3) an explanation of the procedures to be followed, including that the test is voluntary, and a statement advising the subject on the availability of anonymous testing; and (4) an explanation of the confidentiality protections afforded confidential HIV-related information including the circumstances under which and classes of persons to whom disclosure of such information may be required, authorized or permitted by law. Such explanation shall specifically acknowledge that known partners of the protected individual may be warned of their potential risk of
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infection without identifying the protected individual and that the law permits the recording of HIV and AIDS-related information in medical charts and records. Informed consent shall be obtained without undue inducement or any element of compulsion, fraud, deceit, duress or other form of constraint or coercion.
(c) Prior to obtaining informed consent, a person ordering the performance of an HIV-related test shall provide the subject of an HIV-related test, or to a person authorized to consent to health care for the subject, an explanation of the nature of AIDS and HIV-related illness and information about behaviors known to pose risks for transmission of HIV infection.
(d) At the time of communicating the test result to the subject of the test, a person ordering the performance of an HIV-related test shall provide the subject of the test or the person authorized to consent to health care for the subject with counseling or referrals for counseling: (1) For coping with the emotional consequences of learning the result; (2) regarding the discrimination problems that disclosure of the result could cause; (3) for behavior change to prevent transmission or contraction of HIV infection; (4) to inform such person of available medical treatments; (5) to work towards the goal of involving a minor's parents or legal guardian in the decision to seek and in the ongoing provision of medical treatment; (6) regarding the need of the test subject to notify his partners and, as appropriate, provide assistance or referrals for assistance in notifying partners; except that if the subject of the test is a minor who was tested without the consent of his parents or guardian, such counseling shall be provided to such minor at the time of communicating such test result to such minor. A health care provider or health facility shall not withhold test results from the protected individual. The protected individual may refuse to receive his test result but the person ordering the performance of the test shall encourage him to receive the result and to adopt behavior changes that will allow him to protect himself and others from infection.
(e) The provisions of this section shall not apply to the performance of an HIV-related test:
(1) By licensed medical personnel when the subject is unable to grant or withhold consent and no other person is available who is authorized to consent to health care for the individual and the test results are needed for diagnostic purposes to provide appropriate urgent care, except that in such cases the counseling, referrals and notification of test results described in subsection (d) of this section shall be provided as soon as practical;
(2) By a health care provider or health facility in relation to the procuring, processing, distributing or use of a human body or a human body part, including organs, tissues, eyes, bones, arteries, blood, semen, or other body fluids, for use in medical research or therapy, or for transplantation to individuals, provided if the test results are communicated to the subject, the counseling, referrals and notification of test results described in subsection
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(d) of this section shall be provided;
(3) For the purpose of research if the testing is performed in a manner by which the identity of the test subject is not known and is unable to be retrieved by the researcher;
(4) On a deceased person when such test is conducted to determine the cause or circumstances of death or for epidemiological purposes;
(5) In cases where a health care provider or other person, including volunteer emergency medical services, fire and public safety personnel, in the course of his occupational duties has had a significant exposure, provided the following criteria are met: (A) The worker is able to document significant exposure during performance of his occupation, (B) the worker completes an incident report within forty-eight hours of exposure identifying the parties to the exposure, witnesses, time, place and nature of the event, (C) the worker submits to a baseline HIV test within seventy-two hours of the exposure and is negative on that test, (D) the patient's or person's physician or, if the patient or person does not have a personal physician or if the patient's or person's physician is unavailable, another physician or health care provider has approached the patient or person and sought voluntary consent and the patient or person has refused to consent to testing, except in an exposure where the patient or person is deceased, (E) an exposure evaluation group determines that the criteria specified in subparagraphs (A), (B), (C), (D) and (F) of this subdivision are met and that the worker has a significant exposure to the blood of a patient or person and the patient or person, or the patient's or person's legal guardian, refuses to grant informed consent for an HIV test. If the patient or person is under the care or custody of the health facility, correctional facility or other institution and a sample of the patient's blood is available, said blood shall be tested. If no sample of blood is available, and the patient is under the care or custody of a health facility, correctional facility or other institution, the patient shall have a blood sample drawn at the health facility, correctional facility or other institution and tested. No member of the exposure evaluation group who determines that a worker has sustained a significant exposure and authorized the HIV testing of a patient or other person, nor the health facility, correctional facility or other institution, nor any person in a health facility or other institution who relies in good faith on the group's determination and performs that test shall have any liability as a result of his action carried out pursuant to this section, unless such person acted in bad faith. If the patient or person is not under the care or custody of a health facility, correctional facility or other institution and a physician not directly involved in the exposure certifies in writing that the criteria specified in subparagraphs (A), (B), (C), (D) and (F) of this subdivision are met and that a significant exposure has occurred, the worker may seek a court order for testing pursuant to subdivision (8) of this subsection, (F) the worker would be able to take meaningful immediate action, if results are known, which could not otherwise be taken, as defined in regulations adopted pursuant to section 19a-589, (G) the fact that an HIV test was given as a result of an accidental exposure and the results of that test shall not appear in a patient's or person's medical record unless such test result is relevant to the medical care
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the person is receiving at that time in a health facility or correctional facility or other institution, (H) the counseling described in subsection (d) of this section shall be provided but the patient or person may choose not to be informed about the result of the test, and (I) the cost of the HIV test shall be borne by the employer of the potentially exposed worker;
(6) In facilities operated by the Department of Correction if the facility physician determines that testing is needed for diagnostic purposes, to determine the need for treatment or medical care specific to an HIV-related illness, including prophylactic treatment of HIV infection to prevent further progression of disease, provided no reasonable alternative exists that will achieve the same goal;
(7) In facilities operated by the Department of Correction if the facility physician and chief administrator of the facility determine that the behavior of the inmate poses a significant risk of transmission to another inmate or has resulted in a significant exposure of another inmate of the facility and no reasonable alternative exists that will achieve the same goal. No involuntary testing shall take place pursuant to subdivisions (6) and (7) of this subsection until reasonable effort has been made to secure informed consent. When testing without consent takes place pursuant to subdivisions (6) and (7) of this subsection, the counseling referrals and notification of test results described in subsection (d) of this section shall, nonetheless be provided;
(8) Under a court order which is issued in compliance with the following provisions: (A) No court of this state shall issue such order unless the court finds a clear and imminent danger to the public health or the health of a person and that the person has demonstrated a compelling need for the HIV-related test result which cannot be accommodated by other means. In assessing compelling need, the court shall weigh the need for a test result against the privacy interests of the test subject and the public interest which may be disserved by involuntary testing, (B) pleadings pertaining to the request for an involuntary test shall substitute a pseudonym for the true name of the subject to be tested. The disclosure to the parties of the subject's true name shall be communicated confidentially, in documents not filed with the court, (C) before granting any such order, the court shall provide the individual on whom a test result is being sought with notice and a reasonable opportunity to participate in the proceeding if he is not already a party, (D) court proceedings as to involuntary testing shall be conducted in camera unless the subject of the test agrees to a hearing in open court or unless the court determines that a public hearing is necessary to the public interest and the proper administration of justice;
(9) When the test is conducted by any life or health insurer or health care center for purposes of assessing a person's fitness for insurance coverage offered by such insurer or health care center; or
(10) When the test is subsequent to a prior confirmed test and the subsequent test is part of a series of repeated testing for the purposes of medical monitoring and treatment,
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provided (A) the patient has previously given informed consent and has been counseled concerning medical treatments and behavioral changes necessary to reduce HIV transmission, as required by this section, (B) the patient, after consultation with the health care provider, has declined reiteration of the specific informed consent, counseling and education requirements of this section, and (C) a notation to that effect has been entered into the patient's medical record.
(f) Except as provided in subsection (e) of this section, informed consent as described in this section shall be obtained for each HIV test, or in the case where a sequence of tests is required to confirm an initial positive result, for each sequence of tests.
(P.A. 89-246, S. 2; P.A. 92-119, S. 2, 3; P.A. 93-291, S. 3; 93-381, S. 9, 39; P.A. 95-257, S. 12, 21, 58; P.A. 97-111.)
Sec. 19a-583. Limitations on disclosure of HIV-related information.
(a) No person who obtains confidential HIV-related information may disclose or be compelled to disclose such information, except to the following:
(1) The protected individual, his legal guardian or a person authorized to consent to health care for such individual;
(2) Any person who secures a release of confidential HIV-related information;
(3) A federal, state or local health officer when such disclosure is mandated or authorized by federal or state law;
(4) A health care provider or health facility when knowledge of the HIV-related information is necessary to provide appropriate care or treatment to the protected individual or a child of the individual or when confidential HIV-related information is already recorded in a medical chart or record and a health care provider has access to such record for the purpose of providing medical care to the protected individual;
(5) A medical examiner to assist in determining the cause or circumstances of death;
(6) Health facility staff committees or accreditation or oversight review organizations which are conducting program monitoring, program evaluation or service reviews;
(7) A health care provider or other person in cases where such provider or person in the course of his occupational duties has had a significant exposure to HIV infection, provided the following criteria are met: (A) The worker is able to document significant exposure during performance of his occupation, (B) the worker completes an incident report within forty-eight hours of exposure, identifying the parties to the exposure,
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witnesses, time, place and nature of the event, (C) the worker submits to a baseline HIV test within seventy-two hours of the exposure and is negative on that test for the presence of the AIDS virus, (D) the patient's or person's physician or, if the patient or person does not have a personal physician or if the patient's or person's physician is unavailable, another physician or health care provider has approached the patient or person and sought voluntary consent to disclosure and the patient or person refuses to consent to disclosure, except in an exposure where the patient or person is deceased, (E) the worker would be able to take meaningful immediate action as defined in regulations adopted pursuant to section 19a-589 which could not otherwise be taken, (F) an exposure evaluation group determines that the criteria specified in subparagraphs (A), (B), (C), (D) and (E) of this subdivision are met and that a worker has a significant exposure to the blood of a patient or person and the patient or person or the patient's or person's legal guardian refuses to consent to release of the information. No member of the exposure evaluation group who determines that a worker has sustained a significant exposure and authorizes the disclosure of confidential HIV-related information nor the health facility, correctional facility or other institution nor any person in a health facility, correctional facility or other institution who relies in good faith on the group's determination and discloses the result shall have any liability as a result of his action carried out under this section, unless such persons acted in bad faith. If the information is not held by a health facility, correctional facility or other institution, a physician not directly involved in the exposure has certified in writing that the criteria specified in subparagraphs (A), (B), (C), (D) and (E) of this subdivision are met and that a significant exposure has occurred;
(8) Employees of hospitals for mental illness operated by the Department of Mental Health and Addiction Services if the infection control committee of the hospital determines that the behavior of the patient poses a significant risk of transmission to another patient of the hospital. Disclosure shall only be allowed if it is likely to prevent or reduce the risk of transmission and no reasonable alternatives exist that will achieve the same goal and also preserve the confidentiality of the information. Such "reasonable alternatives" include counseling the patient concerning behaviors that pose a risk of transmission and other efforts to prevent or address the behaviors that pose a significant risk of transmission without disclosing the patient's HIV status or other confidential HIV-related information. Disclosure shall be limited to as few employees as possible and only to those employees with a direct need to receive the information to achieve the purpose authorized by this subdivision;
(9) Employees of facilities operated by the Department of Correction to provide services related to HIV infection or if the medical director and chief administrator of the facility determine that the behavior of an inmate poses significant risk of transmission to another inmate or has resulted in a significant exposure of another inmate of the facility. Such a disclosure shall only be made if it is specifically required to enable the inmate to receive such services or is likely to prevent or reduce the risk of transmission and no reasonable alternatives exist that will achieve the same goal and also preserve the confidentiality of the information. Such "reasonable alternatives" include counseling the
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inmate concerning behaviors that pose a risk of transmission or other efforts to prevent or address the behaviors that pose a significant risk of transmission without disclosing the patient's HIV status or other confidential HIV-related information. Disclosure shall be limited to as few employees as possible and only to those employees with a direct need to receive the information to achieve a purpose authorized by this subdivision;
(10) Any person allowed access to such information by a court order which is issued in compliance with the following provisions: (A) No court of this state shall issue such order unless the court finds a clear and imminent danger to the public health or the health of a person and that the person has demonstrated a compelling need for the test results which cannot be accommodated by other means. In assessing compelling need, the court shall weigh the need for disclosure against the privacy interest of the test subject and the public interest which may be disserved by disclosure which deters future testing or which may lead to discrimination. (B) Pleadings pertaining to disclosure of confidential HIV-related information shall substitute a pseudonym for the true name of the subject of the test. The disclosure to the parties of the subject's true name shall be communicated confidentially, in documents not filed with the court. (C) Before granting any such order, the court shall provide the individual whose test result is in question with notice and a reasonable opportunity to participate in the proceedings if he is not already a party. (D) Court proceedings as to disclosure of confidential HIV-related information shall be conducted in camera unless the subject of the test agrees to a hearing in open court or unless the court determines that a public hearing is necessary to the public interest and the proper administration of justice. (E) Upon the issuance of an order to disclose test results, the court shall impose appropriate safeguards against unauthorized disclosure, which shall specify the persons who may have access to the information, the purposes for which the information shall be used, and appropriate prohibitions on future disclosure;
(11) Life and health insurers, government payers and health care centers and their affiliates, reinsurers, and contractors, except agents and brokers, in connection with underwriting and claim activity for life, health, and disability benefits;
(12) Any health care provider specifically designated by the protected individual to receive such information received by a life or health insurer or health care center pursuant to an application for life, health or disability insurance; and
(13) A procurement organization, for the purposes of assessing donor suitability pursuant to section 19a-279j.
(b) No person, except the protected individual, his legal guardian or a person authorized to consent to health care for such individual, to whom confidential HIV-related information is disclosed may further disclose such information, except as provided in this section and sections 19a-584 and 19a-585.
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(P.A. 89-246, S. 3; P.A. 93-291, S. 4; P.A. 95-257, S. 11, 58; P.A. 04-122, S. 7.)
Sec. 19a-584. Informing and warning of known partners of possible exposure to the HIV virus. Disclosure of HIV-related information to public health officers.
(a) A public health officer may inform or warn partners of an individual that they may have been exposed to HIV under the following conditions: (1) The public health officer reasonably believes there is a significant risk of transmission to the partner; (2) the public health officer has counseled the protected individual regarding the need to notify the partner and the public health officer reasonably believes the protected individual will not inform the partner; (3) the public health officer has informed the protected individual of such officer's intent to make such disclosure. The public health officer may also warn or inform a partner at the request of a protected individual. When making such disclosure to the partner the public health officer shall provide or make referrals for the provision of the appropriate medical advice and counseling for coping with the emotional consequences of learning the information and for changing behavior to prevent transmission or contraction of HIV infection. The public health officer shall not disclose the identity of the protected individual or the identity of any other partner. The public health officer, making a notification, shall make such disclosure in person, except where circumstances reasonably prevent doing so. The public health officer shall make a good faith effort to notify the partner of the risk of HIV infection. The public health officer shall have no obligation to warn or inform, identify or locate any partner.
(b) A physician may warn or inform a known partner of a protected individual if both the partner and the protected individual are under the physician's care or the physician may disclose confidential HIV-related information to a public health officer for the purpose of informing or warning partners of the protected individual that they may have been exposed to HIV , under the following conditions: (1) The physician reasonably believes there is a significant risk of transmission to the partner; (2) the physician has counseled the protected individual regarding the need to notify the partner and the physician reasonably believes the protected individual will not inform the partner; (3) the physician has informed the protected individual of such physician's intent to make such disclosure to the partner or public health officer. The physician may also warn or inform a partner at the request of a protected individual. When making such disclosure to the partner the physician shall provide or make referrals for the provision of the appropriate medical advice and counseling for coping with the emotional consequences of learning the information and for changing behavior to prevent transmission or contraction of HIV infection. The physician or public health officer shall not disclose the identity of the protected individual or the identity of any other partner. The public health officer or physician making a notification shall make such disclosure in person, except where circumstances reasonably prevent doing so. Upon receiving such a request for assistance, the public health officer shall make a good faith effort to notify said partner of the risk of
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HIV infection. The physician or public health officer shall have no obligation to warn or inform, identify or locate any partner. The physician shall have no obligation to disclose information to a public health officer for the purpose of warning or informing a partner.
(c) For purposes of this section, "public health officer" means an employee of the Department of Public Health designated by the commissioner or if authorized by the commissioner, a local health director, or such director's designee.
(P.A. 89-246, S. 4; P.A. 93-291, S. 5; P.A. 93-381, S. 9, 39; P.A. 95-257, S. 12, 21, 58; P.A. 00-196, S. 17.)
Sec. 19a-585. Requirements for disclosure of HIV-related information.
(a) Whenever confidential HIV-related information is disclosed it shall be accompanied by a statement in writing, whenever possible, which includes the following or substantially similar language: "This information has been disclosed to you from records whose confidentiality is protected by state law. State law prohibits you from making any further disclosure of it without the specific written consent of the person to whom it pertains, or as otherwise permitted by said law. A general authorization for the release of medical or other information is NOT sufficient for this purpose." An oral disclosure shall be accompanied or followed by such a notice within ten days.
(b) Except for disclosures made to a federal, state, or local health officer when such disclosure is mandated or authorized by federal or state law or to persons reviewing information or records in the ordinary course of ensuring that a health facility is in compliance with applicable quality of care standards or any other authorized program evaluation, program monitoring or service review, a notation of all such disclosures shall be placed in the medical record or with any record of an HIV-related test result of a protected individual, who shall be informed of such disclosures upon request; provided for disclosures made to governmental agents requiring information necessary for payments to be made on behalf of patients or clients pursuant to contract or law, such notation need only be entered at the time the disclosure is first made.
(c) Nothing in this chapter shall limit a person's or agency's responsibility to report, investigate or disclose child protective services information pursuant to sections 17a-101, 17a-101a to 17a-101k, inclusive, 17a-103 and 46b-129a and regulations adopted pursuant to said sections.
(d) The provisions of subsections (a) and (b) of this section shall not be applicable to disclosures made pursuant to subdivision (11) of subsection (a) of section 19a-583.
(e) Except as provided in subparagraph (G) of subdivision (5) of subsection (e) of section 19a-582, nothing in this chapter shall prohibit the recording of HIV and AIDS-
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related information in the medical chart or medical records of a protected individual or the listing of AIDS, HIV-related illness or HIV infection in a certificate of death or autopsy report. This chapter shall not be construed to modify regulations relating to access to death certificates or autopsy reports. This chapter shall not be construed to modify the provisions of section 19a-25 or 19a-221.
(P.A. 89-246, S. 5; P.A. 93-291, S. 6; P.A. 96-246, S. 30.)
Sec. 19a-586. Testing for insurance purposes.
(a) Any insurer that requests an applicant for insurance coverage to take an HIV-related test shall obtain the applicant's written informed consent for such test prior to conducting it.
(b) The Insurance Commissioner shall adopt regulations, in consultation with the Commissioner of Public Health and in accordance with the provisions of chapter 54, which establish all necessary requirements for the provision of informed consent pursuant to the provisions of subsection (a) of this section. Such regulations shall include, but not be limited to, requirements regarding (1) sufficient notice at the time of application that the insured will be tested for HIV infection and (2) an explanation of AIDS and HIV infection.
(P.A. 89-246, S. 6; P.A. 93-381, S. 9, 39; P.A. 95-257, S. 12, 21, 58.)
Sec. 19a-587. Disclosure by insurers.
Nothing in this chapter shall prohibit the disclosure by a life or health insurer or health care center of a positive HIV-related test result to an organization that assembles or collects information about insurance applicants for the purposes of detecting fraud, misrepresentation, or nondisclosure in connection with insurance underwriting, provided such result is provided as a nonspecific blood test result, within a general code category, which code is not designated solely for HIV-related test results and provided the majority of results included in the general code are not HIV-related and the code does not otherwise allow members of the organization to reasonably identify an applicant's test result as an HIV-related test.
(P.A. 89-246, S. 7.)
Sec. 19a-588. Notification of procedures to certain municipal employees.
Each town shall notify its police, fire and emergency medical services personnel of the procedures under subdivision (5) of subsection (e) of section 19a-582 and subdivision (7) of subsection (a) of section 19a-583 pertaining to workers who have
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experienced a significant exposure.
(P.A. 89-246, S. 8.)
Sec. 19a-589. Regulations.
The commissioner shall adopt such regulations, as he deems necessary, in accordance with the provisions of chapter 54 to implement the provisions of sections 19a-581 to 19a-585, inclusive.
(P.A. 89-246, S. 9.)
Sec. 19a-590. Liability for violations.
Any person, except as otherwise provided in this chapter, who wilfully violates any provision of this chapter shall be liable in a private cause of action for injuries suffered as a result of such violation. Upon a finding that an individual has been injured as a result of such violation, damages shall be assessed in the amount sufficient to compensate said individual for such injury.
(P.A. 89-246, S. 10.)
. .
Volume 13
TITLE 52*
CIVIL ACTIONS
*Cited. 176 C. 401, 407-409. Cited. 199 C. 496, 507, 513.
Cited. 4 CA 339, 344, 347.
Cited. 35 CS 609, 614, 615; 36 CS 47, 51.
Chapter 899 Secs. 52-143 to 52-184c Evidence
*The fact that one or more persons jointly charged with the commission of a crime pleaded guilty is not admissible on the trial of another person so charged, to establish that the crime was committed. A plea of guilty is, in effect, a confession of guilt which, having been made by one of those charged with the crime, can be no more than hearsay as to another who is so charged. The state must prove the whole case against any accused. 150 C. 195. Discussion of parole evidence rule. Id., 251.
Under former negotiable instruments act, Sec. 39-52, where a note sued on is in the possession of the plaintiff, he must produce it, as it is the best evidence. 23 CS 346.
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Sec. 52-146c. Privileged communications between psychologist and patient.
(a) As used in this section:
(1) "Person" means an individual who consults a psychologist for purposes of diagnosis or treatment;
(2) "Psychologist" means an individual licensed to practice psychology pursuant to chapter 383;
(3) "Communications" means all oral and written communications and records thereof relating to the diagnosis and treatment of a person between such person and a psychologist or between a member of such person's family and a psychologist;
(4) "Consent" means consent given in writing by the person or his authorized representative;
(5) "Authorized representative" means (A) an individual empowered by a person to assert the confidentiality of communications which are privileged under this section, or (B) if a person is deceased, his personal representative or next of kin, or (C) if a person is incompetent to assert or waive his privileges hereunder, (i) a guardian or conservator who has been or is appointed to act for the person, or (ii) for the purpose of maintaining confidentiality until a guardian or conservator is appointed, the person's nearest relative.
(b) Except as provided in subsection (c) of this section, in civil and criminal actions, in juvenile, probate, commitment and arbitration proceedings, in proceedings preliminary to such actions or proceedings, and in legislative and administrative proceedings, all communications shall be privileged and a psychologist shall not disclose any such communications unless the person or his authorized representative consents to waive the privilege and allow such disclosure. The person or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the individual with whom or the office in which the original consent was filed. The withdrawal of consent shall not affect communications disclosed prior to notice of the withdrawal.
(c) Consent of the person shall not be required for the disclosure of such person's communications:
(1) If a judge finds that any person after having been informed that the communications would not be privileged, has made the communications to a psychologist in the course of a psychological examination ordered by the court, provided the communications shall be admissible only on issues involving the person's psychological condition;
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(2) If, in a civil proceeding, a person introduces his psychological condition as an element of his claim or defense or, after a person's death, his condition is introduced by a party claiming or defending through or as a beneficiary of the person, and the judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between the person and psychologist be protected;
(3) If the psychologist believes in good faith that there is risk of imminent personal injury to the person or to other individuals or risk of imminent injury to the property of other individuals;
(4) If child abuse, abuse of an elderly individual or abuse of an individual who is disabled or incompetent is known or in good faith suspected;
(5) If a psychologist makes a claim for collection of fees for services rendered, the name and address of the person and the amount of the fees may be disclosed to individuals or agencies involved in such collection, provided notification that such disclosure will be made is sent, in writing, to the person not less than thirty days prior to such disclosure. In cases where a dispute arises over the fees or claims or where additional information is needed to substantiate the claim, the disclosure of further information shall be limited to the following: (A) That the person was in fact receiving psychological services, (B) the dates of such services, and (C) a general description of the types of services; or
(6) If the communications are disclosed to a member of the immediate family or legal representative of the victim of a homicide committed by the person where such person has, on or after July 1, 1989, been found not guilty of such offense by reason of mental disease or defect pursuant to section 53a-13, provided such family member or legal representative requests the disclosure of such communications not later than six years after such finding, and provided further, such communications shall only be available during the pendency of, and for use in, a civil action relating to such person found not guilty pursuant to section 53a-13.
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Sec. 52-146d. (Formerly Sec. 52-146a). Privileged communications between psychiatrist and patient. Definitions.
As used in sections 52-146d to 52-146i, inclusive:
(1) "Authorized representative" means (A) a person empowered by a patient to assert the confidentiality of communications or records which are privileged under sections 52-146c to 52-146i, inclusive, or (B) if a patient is deceased, his personal representative or next of kin, or (C) if a patient is incompetent to assert or waive his privileges hereunder, (i) a guardian or conservator who has been or is appointed to act for the patient, or (ii) for
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the purpose of maintaining confidentiality until a guardian or conservator is appointed, the patient's nearest relative;
(2) "Communications and records" means all oral and written communications and records thereof relating to diagnosis or treatment of a patient's mental condition between the patient and a psychiatrist, or between a member of the patient's family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility;
(3) "Consent" means consent given in writing by the patient or his authorized representative;
(4) "Identifiable" and "identify a patient" refer to communications and records which contain (A) names or other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to, or (B) codes or numbers which are in general use outside of the mental health facility which prepared the communications and records;
(5) "Mental health facility" includes any hospital, clinic, ward, psychiatrist's office or other facility, public or private, which provides inpatient or outpatient service, in whole or in part, relating to the diagnosis or treatment of a patient's mental condition;
(6) "Patient" means a person who communicates with or is treated by a psychiatrist in diagnosis or treatment;
(7) "Psychiatrist" means a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry, or a person reasonably believed by the patient to be so qualified.
(1961, P.A. 529; 1969, P.A. 819, S. 1; P.A. 75-567, S. 36, 80; P.A. 82-160, S. 64; P.A. 89-154, S. 2.)
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Sec. 52-146e. Disclosure of communications.
(a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146f to 52-146i, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
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(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdrawal.
(1969, P.A. 819, S. 2, 3; P.A. 82-160, S. 65.)
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Sec. 52-146f. Consent not required for disclosure, when.
Consent not required for disclosure, when. Consent of the patient shall not be required for the disclosure or transmission of communications or records of the patient in the following situations as specifically limited:
(1) Communications or records may be disclosed to other persons engaged in the diagnosis or treatment of the patient or may be transmitted to another mental health facility to which the patient is admitted for diagnosis or treatment if the psychiatrist in possession of the communications or records determines that the disclosure or transmission is needed to accomplish the objectives of diagnosis or treatment. The patient shall be informed that the communications or records will be so disclosed or transmitted. For purposes of this subsection, persons in professional training are to be considered as engaged in the diagnosis or treatment of the patients.
(2) Communications or records may be disclosed when the psychiatrist determines that there is substantial risk of imminent physical injury by the patient to himself or others or when a psychiatrist, in the course of diagnosis or treatment of the patient, finds it necessary to disclose the communications or records for the purpose of placing the patient in a mental health facility, by certification, commitment or otherwise, provided the provisions of sections 52-146d to 52-146j, inclusive, shall continue in effect after the patient is in the facility.
(3) Except as provided in section 17b-225, the name, address and fees for psychiatric services to a patient may be disclosed to individuals or agencies involved in the collection of fees for such services. In cases where a dispute arises over the fees or claims or where additional information is needed to substantiate the fee or claim, the disclosure of further information shall be limited to the following: (A) That the person was in fact a patient; (B) the diagnosis; (C) the dates and duration of treatment; and (D) a general description of the treatment, which shall include evidence that a treatment plan exists and has been
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carried out and evidence to substantiate the necessity for admission and length of stay in a health care institution or facility. If further information is required, the party seeking the information shall proceed in the same manner provided for hospital patients in section 4-105.
(4) Communications made to or records made by a psychiatrist in the course of a psychiatric examination ordered by a court or made in connection with the application for the appointment of a conservator by the Probate Court for good cause shown may be disclosed at judicial or administrative proceedings in which the patient is a party, or in which the question of his incompetence because of mental illness is an issue, or in appropriate pretrial proceedings, provided the court finds that the patient has been informed before making the communications that any communications will not be confidential and provided the communications shall be admissible only on issues involving the patient's mental condition.
(5) Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient's death, when his condition is introduced by a party claiming or defending through or as a beneficiary of the patient and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected.
(6) Communications or records may be disclosed to (A) the Commissioner of Public Health in connection with any inspection, investigation or examination of an institution, as defined in subsection (a) of section 19a-490, authorized under section 19a-498, or (B) the Commissioner of Mental Health and Addiction Services in connection with any inspection, investigation or examination authorized under subsection (f) of section 17a-451.
(7) Communications or records may be disclosed to a member of the immediate family or legal representative of the victim of a homicide committed by the patient where such patient has, on or after July 1, 1989, been found not guilty of such offense by reason of mental disease or defect pursuant to section 53a-13, provided such family member or legal representative requests the disclosure of such communications or records not later than six years after such finding, and provided further, such communications shall only be available during the pendency of, and for use in, a civil action relating to such person found not guilty pursuant to section 53a-13.
(8) If a provider of behavioral health services that contracts with the Department of Mental Health and Addiction Services requests payment, the name and address of the person, a general description of the types of services provided, and the amount requested shall be disclosed to the department, provided notification that such disclosure will be made is sent, in writing, to the person at the earliest opportunity prior to such disclosure. In cases where a dispute arises over the fees or claims, or where additional information is
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needed to substantiate the claim, the disclosure of further information shall be limited to additional information necessary to clarify only the following: (A) That the person in fact received the behavioral health services in question, (B) the dates of such services, and (C) a general description of the types of services. Information the department receives pursuant to this subdivision shall be disclosed only to federal or state auditors and only as necessary for the purposes of auditing.
(1969, P.A. 819, S. 4; 1971, P.A. 81; P.A. 74-215, S. 2, 3; P.A. 82-160, S. 66; P.A. 84-26, S. 3; P.A. 92-225, S. 4, 5; P.A. 93-381, S. 9, 39; P.A. 95-257, S. 12, 21, 58; June 18 Sp. Sess. P.A. 97-8, S. 82, 88; P.A. 99-178, S. 1; June Sp. Sess. P.A. 99-2, S. 21.)
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Code of Federal Regulations (CFR)
The Code of Federal Regulations (CFR) is the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government. It is divided into 50 titles that represent broad areas subject to Federal regulation. Each volume of the CFR is updated once each calendar year and is issued on a quarterly basis.
Title 42--Public Health
CHAPTER IV--CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES
PART 2—CONFIDENTIALITY OF ALCOHOL AND DRUG ABUSE PATIENT RECORDS
Subpart A—Introduction
Sec. §2.3 Purpose and effect.
(a) Purpose. Under the statutory provisions quoted in §§2.1 and 2.2, these regulations impose restrictions upon the disclosure and use of alcohol and drug abuse patient records which are maintained in connection with the performance of any federally assisted alcohol and drug abuse program. The regulations specify:
(1) Definitions, applicability, and general restrictions in subpart B (definitions applicable
to §2.34 only appear in that section);
(2) Disclosures which may be made with written patient consent and the form of the written consent in subpart C;
(3) Disclosures which may be made without written patient consent or an authorizing court order in subpart D; and
(4) Disclosures and uses of patient records which may be made with an authorizing court order and the procedures and criteria for the entry and scope of those orders in subpart E.
(b) Effect. (1) These regulations prohibit the disclosure and use of patient records unless certain circumstances exist. If any circumstances exists under which disclosure is permitted, that circumstance acts to remove the prohibition on disclosure but it does not compel disclosure. Thus, the regulations do not require disclosure under any circumstances.
(2) These regulations are not intended to direct the manner in which substantive functions such as research, treatment, and evaluation are carried out. They are intended to insure
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that an alcohol or drug abuse patient in a federally assisted alcohol or drug abuse program is not made more vulnerable by reason of the availability of his or her patient record than an individual who has an alcohol or drug problem and who does not seek treatment.
(3) Because there is a criminal penalty (a fine—see 42 U.S.C. 290ee–3(f), 42 U.S.C. 290dd–3(f) and 42 CFR 2.4) for violating the regulations, they are to be construed strictly in favor of the potential violator in the same manner as a criminal statute (see M. Kraus & Brothers v. United States, 327 U.S. 614, 621–22, 66 S. Ct. 705, 707–08 (1946)).
Subpart B—General Provisions
§2.13 Confidentiality restrictions.
(a) General. The patient records to which these regulations apply may be disclosed or used only as permitted by these regulations and may not otherwise be disclosed or used in any civil, criminal, administrative, or legislative proceedings conducted by any Federal, State, or local authority. Any disclosure made under these regulations must be limited to that information which is necessary to carry out the purpose of the disclosure.
(b) Unconditional compliance required. The restrictions on disclosure and use in these regulations apply whether the holder of the information believes that the person seeking the information already has it, has other means of obtaining it, is a law enforcement or other official, has obtained a subpoena, or asserts any other justification for a disclosure or use which is not permitted by these regulations.
(c) Acknowledging the presence of patients: Responding to requests.
(1) The presence of an identified patient in a facility or component of a facility which is publicly identified as a place where only alcohol or drug abuse diagnosis, treatment, or referral is provided may be acknowledged only if the patient's written consent is obtained in accordance with subpart C of these regulations or if an authorizing court order is entered in accordance with subpart E of these regulations. The regulations permit acknowledgement of the presence of an identified patient in a facility or part of a
facility if the facility is not publicy identified as only an alcohol or drug abuse diagnosis, treatment or referral facility, and if the acknowledgement does not reveal that the patient is an alcohol or drug abuser.
(2) Any answer to a request for a disclosure of patient records which is not permissible under these regulations must be made in a way that will not affirmatively reveal that an identified individual has been, or is being diagnosed or treated for alcohol or drug abuse. An inquiring party may be given a copy of these regulations and advised that they restrict the disclosure of alcohol or drug abuse patient records, but may not be told affirmatively that the regulations restrict the disclosure of the records of an identified patient. The regulations do not restrict a disclosure that an identified individual is not and never has been a patient.
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Subpart C—Disclosures With Patient's Consent
§2.31 Form of written consent.
(a) Required elements. A written consent to a disclosure under these regulations must include:
(1) The specific name or general designation of the program or person permitted to make the disclosure.
(2) The name or title of the individual or the name of the organization to which disclosure is to be made.
(3) The name of the patient.
(4) The purpose of the disclosure.
(5) How much and what kind of information is to be disclosed.
(6) The signature of the patient and, when required for a patient who is a minor, the signature of a person authorized to give consent under §2.14; or, when required for a patient who is incompetent or deceased, the signature of a person authorized to sign under §2.15 in lieu of the patient.
(7) The date on which the consent is signed.
(8) A statement that the consent is subject to revocation at any time except to the extent that the program or person which is to make the disclosure has already acted in reliance on it. Acting in reliance includes the provision of treatment services in reliance on a valid consent to disclose information to a third party payer.
(9) The date, event, or condition upon which the consent will expire if not revoked before. This date, event, or condition must insure that the consent will last no longer than reasonably necessary to serve the purpose for which it is given.
(b) Sample consent form. The following form complies with paragraph (a) of this section, but other elements may be added.
1. I (name of patient) □ Request □ Authorize:
2. (name or general designation of program which is to make the disclosure)
&fxsp0;
3. To disclose: (kind and amount of information to be disclosed)
&fxsp0;
4. To: (name or title of the person or organization to which disclosure is to be made)
&fxsp0;
5. For (purpose of the disclosure)
&fxsp0;
6. Date (on which this consent is signed)
&fxsp0;
7. Signature of patient
&fxsp0;
8. Signature of parent or guardian (where required)
&fxsp0;
9. Signature of person authorized to sign in lieu of the patient (where required)
&fxsp0;
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10. This consent is subject to revocation at any time except to the extent that the program which is to make the disclosure has already taken action in reliance on it. If not previously revoked, this consent will terminate upon: (specific date, event, or condition)
(c) Expired, deficient, or false consent. A disclosure may not be made on the basis of a consent which:
(1) Has expired;
(2) On its face substantially fails to conform to any of the requirements set forth in paragraph (a) of this section;
(3) Is known to have been revoked; or
(4) Is known, or through a reasonable effort could be known, by the person holding the records to be materially false.
(Approved by the Office of Management and Budget under control number 0930–0099)
Subpart D—Disclosures Without Patient Consent
§2.51 Medical emergencies.
(a) General Rule. Under the procedures required by paragraph (c) of this section, patient identifying information may be disclosed to medical personnel who have a need for information about a patient for the purpose of treating a condition which poses an immediate threat to the health of any individual and which requires immediate medical intervention.
(b) Special Rule. Patient identifying information may be disclosed to medical personnel of the Food and Drug Administration (FDA) who assert a reason to believe that the health of any individual may be threatened by an error in the manufacture, labeling, or sale of a product under FDA jurisdiction, and that the information will be used for the exclusive purpose of notifying patients or their physicians of potential dangers.
(c) Procedures. Immediately following disclosure, the program shall document the disclosure in the patient's records, setting forth in writing:
(1) The name of the medical personnel to whom disclosure was made and their affiliation with any health care facility;
(2) The name of the individual making the disclosure;
(3) The date and time of the disclosure; and
(4) The nature of the emergency (or error, if the report was to FDA).
(Approved by the Office of Management and Budget under control number 0930–0099)
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SEC. 1177. Wrongful disclosure of individually identifiable health information
Title II\Subtitle F\Sec. 262
``Sec. 1177. (a) Offense.--A <<NOTE: 42 USC 1320d-6.>> person who
knowingly and in violation of this part--
``(1) uses or causes to be used a unique health identifier;
``(2) obtains individually identifiable health information
relating to an individual; or
``(3) discloses individually identifiable health information
to another person,
shall be punished as provided in subsection (b).
``(b) Penalties.--A person described in subsection (a) shall--
``(1) be fined not more than $50,000, imprisoned not more
than 1 year, or both;
``(2) if the offense is committed under false pretenses, be
fined not more than $100,000, imprisoned not more than 5 years,
or both; and
``(3) if the offense is committed with intent to sell,
transfer, or use individually identifiable health information
for commercial advantage, personal gain, or malicious harm, be
fined not more than $250,000, imprisoned not more than 10 years,
or both.
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HIPPA FEDERAL LAW
Civil Rights.
"HIPAA" is an acronym for the Health Insurance Portability & Accountability Act of 1996 (August 21), Public Law 104-191, which amended the Internal Revenue Service Code of 1986. Also known as the Kennedy-Kassebaum Act, the Act includes a section, Title II, entitled Administrative Simplification, requiring protection of confidentiality and security of health data through setting and enforcing standards.
PART 164 – SECURITY AND PRIVACY
Subpart E - Privacy of Individually Identifiable Health Information
Unexpanded version:
§ 164.512 Uses and disclosures for which consent, an authorization, or opportunity to agree or object is not required.
A covered entity may use or disclose protected health information without the written consent or authorization of the individual as described in §§ 164.506 and 164.508, respectively, or the opportunity for the individual to agree or object as described in § 164.510, in the situations covered by this section, subject to the applicable requirements of this section. When the covered entity is required by this section to inform the individual of, or when the individual may agree to, a use or disclosure permitted by this section, the covered entity’s information and the individual’s agreement may be given orally.
(a) Standard: uses and disclosures required by law.
DOES NOT APPLY NO SAFTEY CHECK REQUESTED
(b) Standard: uses and disclosures for public health activities.
DOES NOT APPLY NO SAFTEY CHECK REQUESTED
c) Standard: disclosures about victims of abuse, neglect or domestic violence.
DOES NOT APPLY NO SAFTEY CHECK REQUESTED
(d) Standard: uses and disclosures for health oversight activities.
DOES NOT APPLY NO SAFTEY CHECK REQUESTED
(e) Standard: disclosures for judicial and administrative proceedings.
DOES NOT APPLY NO SAFTEY CHECK REQUESTED
(f) Standard: disclosures for law enforcement purposes.
DOES NOT APPLY NO SAFTEY CHECK REQUESTED
(g) Standard: uses and disclosures about decedents.
DOES NOT APPLY NO SAFTEY CHECK REQUESTED
(h) Standard: uses and disclosures for cadaveric organ, eye or tissue donation purposes.
DOES NOT APPLY NO SAFTEY CHECK REQUESTED
(i) Standard: uses and disclosures for research purposes.
DOES NOT APPLY NO SAFTEY CHECK REQUESTED
Page 27
(j) Standard: uses and disclosures to avert a serious threat to health or safety.
DOES NOT APPLY NO SAFTEY CHECK REQUESTED
(k) Standard: uses and disclosures for specialized government functions.
DOES NOT APPLY NO SAFTEY CHECK REQUESTED
(l) Standard: disclosures for workers’ compensation.
DOES NOT APPLY NO SAFTEY CHECK REQUESTED
Expanded version:
§ 164.512 Uses and disclosures for which consent, an authorization, or opportunity to agree or object is not required.
A covered entity may use or disclose protected health information without the written consent or authorization of the individual as described in §§ 164.506 and 164.508, respectively, or the opportunity for the individual to agree or object as described in § 164.510, in the situations covered by this section, subject to the applicable requirements of this section. When the covered entity is required by this section to inform the individual of, or when the individual may agree to, a use or disclosure permitted by this section, the covered entity’s information and the individual’s agreement may be given orally.
(a) Standard: uses and disclosures required by law.
(1) A covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law.
(2) A covered entity must meet the requirements described in paragraph (c), (e), or (f) of this section for uses or disclosures required by law.
(b) Standard: uses and disclosures for public health activities.
(1) Permitted disclosures. A covered entity may disclose protected health information for the public health activities and purposes described in this paragraph to:
(i) A public health authority that is authorized by law to collect or receive
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such information for the purpose of preventing or controlling disease, injury, or disability, including, but not limited to, the reporting of disease, injury, vital events such as birth or death, and the conduct of public health surveillance, public health investigations, and public health interventions; or, at the direction of a public health authority, to an official of a foreign government agency that is acting in collaboration with a public health authority;
(ii) A public health authority or other appropriate government authority authorized by law to receive reports of child abuse or neglect;
(iii) A person subject to the jurisdiction of the Food and Drug Administration:
(A) To report adverse events (or similar reports with respect to food or dietary supplements), product defects or problems (including problems with the use or labeling of a product), or biological product deviations if the disclosure is made to the person required or directed to report such information to the Food and Drug Administration;
(B) To track products if the disclosure is made to a person required or directed by the Food and Drug Administration to track the product;
(C) To enable product recalls, repairs, or replacement (including locating and notifying individuals who have received products of product recalls, withdrawals, or other problems); or
(D) To conduct post marketing surveillance to comply with requirements or at the direction of the Food and Drug Administration;
(iv) A person who may have been exposed to a communicable disease or may otherwise be at risk of contracting or spreading a disease or condition, if the covered entity or public health authority is authorized by law to notify such person as necessary in the conduct of a public health intervention or investigation; or
(v) An employer, about an individual who is a member of the workforce of the employer, if:
(A) The covered entity is a covered health care provider who is a member of the workforce of such employer or who provides a health care to the individual at the request of the employer:
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(1) To conduct an evaluation relating to medical surveillance of the workplace; or
(2) To evaluate whether the individual has a work-related illness or injury;
(B) The protected health information that is disclosed consists of findings concerning a work-related illness or injury or a workplace-related medical surveillance;
(C) The employer needs such findings in order to comply with its obligations, under 29 CFR parts 1904 through 1928, 30 CFR parts 50 through 90, or under state law having a similar purpose, to record such illness or injury or to carry out responsibilities for workplace medical surveillance;
(D) The covered health care provider provides written notice to the individual that protected health information relating to the medical surveillance of the workplace and work-related illnesses and injuries is disclosed to the employer:
(1) By giving a copy of the notice to the individual at the time the health care is provided; or
(2) If the health care is provided on the work site of the employer, by posting the notice in a prominent place at the location where the health care is provided.
(2) Permitted uses. If the covered entity also is a public health authority, the covered entity is permitted to use protected health information in all cases in which it is permitted to disclose such information for public health activities under paragraph (b)(1) of this section.
(c) Standard: disclosures about victims of abuse, neglect or domestic violence.
(1) Permitted disclosures. Except for reports of child abuse or neglect permitted by paragraph (b)(1)(ii) of this section, a covered entity may disclose protected health information about an individual whom the covered entity reasonably believes to be a victim of abuse, neglect, or domestic violence to a government authority, including a social service or protective services agency, authorized by law to receive reports of such abuse, neglect, or domestic violence:
(i) To the extent the disclosure is required by law and the disclosure complies with and is limited to the relevant requirements of such law;
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(ii) If the individual agrees to the disclosure; or
(iii) To the extent the disclosure is expressly authorized by statute or regulation and:
(A) The covered entity, in the exercise of professional judgment, believes the disclosure is necessary to prevent serious harm to the individual or other potential victims; or
(B) If the individual is unable to agree because of incapacity, a law enforcement or other public official authorized to receive the report represents that the protected health information for which disclosure is sought is not intended to be used against the individual and that an immediate enforcement activity that depends upon the disclosure would be materially and adversely affected by waiting until the individual is able to agree to the disclosure.
(2) Informing the individual. A covered entity that makes a disclosure permitted by paragraph (c)(1) of this section must promptly inform the individual that such a report has been or will be made, except if:
(i) The covered entity, in the exercise of professional judgment, believes informing the individual would place the individual at risk of serious harm; or
(ii) The covered entity would be informing a personal representative, and the covered entity reasonably believes the personal representative is responsible for the abuse, neglect, or other injury, and that informing such person would not be in the best interests of the individual as determined by the covered entity, in the exercise of professional judgment.
(d) Standard: uses and disclosures for health oversight activities.
(1) Permitted disclosures. A covered entity may disclose protected health information to a health oversight agency for oversight activities authorized by law, including audits; civil, administrative, or criminal investigations; inspections; licensure or disciplinary actions; civil, administrative, or criminal proceedings or actions; or other activities necessary for appropriate oversight of:
(i) The health care system;
(ii) Government benefit programs for which health information is relevant to beneficiary eligibility;
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(iii) Entities subject to government regulatory programs for which health information is necessary for determining compliance with program standards; or
(iv) Entities subject to civil rights laws for which health information is necessary for determining compliance.
(2) Exception to health oversight activities. For the purpose of the disclosures permitted by paragraph (d)(1) of this section, a health oversight activity does not include an investigation or other activity in which the individual is the subject of the investigation or activity and such investigation or other activity does not arise out of and is not directly related to:
(i) The receipt of health care;
(ii) A claim for public benefits related to health; or
(iii) Qualification for, or receipt of, public benefits or services when a patient’s health is integral to the claim for public benefits or services.
(3) Joint activities or investigations. Notwithstanding paragraph (d)(2) of this section, if a health oversight activity or investigation is conducted in conjunction with an oversight activity or investigation relating to a claim for public benefits not related to health, the joint activity or investigation is considered a health oversight activity for purposes of paragraph (d) of this section.
(4) Permitted uses. If a covered entity also is a health oversight agency, the covered entity may use protected health information for health oversight activities as permitted by paragraph (d) of this section.
(e) Standard: disclosures for judicial and administrative proceedings.
(1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or
(ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:
(A) The covered entity receives satisfactory assurance, as described
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in paragraph (e)(1)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request; or
(B) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section.
(iii) For the purposes of paragraph (e)(1)(ii)(A) of this section, a covered entity receives satisfactory assurances from a party seeking protecting health information if the covered entity receives from such party a written statement and accompanying documentation demonstrating that:
(A) The party requesting such information has made a good faith attempt to provide written notice to the individual (or, if the individual’s location is unknown, to mail a notice to the individual’s last known address);
(B) The notice included sufficient information about the litigation or proceeding in which the protected health information is requested to permit the individual to raise an objection to the court or administrative tribunal; and
(C) The time for the individual to raise objections to the court or administrative tribunal has elapsed, and:
(1) No objections were filed; or
(2) All objections filed by the individual have been resolved by the court or the administrative tribunal and the disclosures being sought are consistent with such resolution.
(iv) For the purposes of paragraph (e)(1)(ii)(B) of this section, a covered entity receives satisfactory assurances from a party seeking protected health information, if the covered entity receives from such party a written statement and accompanying documentation demonstrating that:
(A) The parties to the dispute giving rise to the request for information have agreed to a qualified protective order and have
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presented it to the court or administrative tribunal with jurisdiction over the dispute; or
(B) The party seeking the protected health information has requested a qualified protective order from such court or administrative tribunal.
(v) For purposes of paragraph (e)(1) of this section, a qualified protective order means, with respect to protected health information requested under paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that:
(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and
(B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.
(vi) Nothwithstanding paragraph (e)(1)(ii) of this section, a covered entity may disclose protected health information in response to lawful process described in paragraph (e)(1)(ii) of this section without receiving satisfactory assurance under paragraph (e)(1)(ii)(A) or (B) of this section, if the covered entity makes reasonable efforts to provide notice to the individual sufficient to meet the requirements of paragraph (e)(1)(iii) of this section or to seek a qualified protective order sufficient to meet the requirements of paragraph (e)(1)(iv) of this section.
(2) Other uses and disclosures under this section. The provisions of this paragraph do not supersede other provisions of this section that otherwise permit or restrict uses or disclosures of protected health information.
(f) Standard: disclosures for law enforcement purposes. A covered entity may disclose protected health information for a law enforcement purpose to a law enforcement official if the conditions in paragraphs (f)(1) through (f)(6) of this section are met, as applicable.
(1) Permitted disclosures: pursuant to process and as otherwise required by law. A covered entity may disclose protected health information:
(i) As required by law including laws that require the reporting of certain types of wounds or other physical injuries, except for laws subject to paragraph (b)(1)(ii) or (c)(1)(i) of this section; or
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(ii) In compliance with and as limited by the relevant requirements of:
(A) A court order or court-ordered warrant, or a subpoena or summons issued by a judicial officer;
(B) A grand jury subpoena; or
(C) An administrative request, including an administrative subpoena or summons, a civil or an authorized investigative demand, or similar process authorized under law, provided that:
(1) The information sought is relevant and material to a legitimate law enforcement inquiry;
(2) The request is specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information is sought; and
(3) De-identified information could not reasonably be used.
(2) Permitted disclosures: limited information for identification and location purposes. Except for disclosures required by law as permitted by paragraph (f)(1) of this section, a covered entity may disclose protected health information in response to a law enforcement official’s request for such information for the purpose of identifying or locating a suspect, fugitive, material witness, or missing person, provided that:
(i) The covered entity may disclose only the following information:
(A) Name and address;
(B) Date and place of birth;
(C) Social security number;
(D) ABO blood type and rh factor;
(E) Type of injury;
(F) Date and time of treatment;
(G) Date and time of death, if applicable; and
(H) A description of distinguishing physical characteristics,
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including height, weight, gender, race, hair and eye color, presence or absence of facial hair (beard or moustache), scars, and tattoos.
(ii) Except as permitted by paragraph (f)(2)(i) of this section, the covered entity may not disclose for the purposes of identification or location under paragraph (f)(2) of this section any protected health information related to the individual’s DNA or DNA analysis, dental records, or typing, samples or analysis of body fluids or tissue.
(3) Permitted disclosure: victims of a crime. Except for disclosures required by law as permitted by paragraph (f)(1) of this section, a covered entity may disclose protected health information in response to a law enforcement official’s request for such information about an individual who is or is suspected to be a victim of a crime, other than disclosures that are subject to paragraph (b) or (c) of this section, if:
(ii) The individual agrees to the disclosure; or
(iii) The covered entity is unable to obtain the individual’s agreement because of incapacity or other emergency circumstance, provided that:
(A) The law enforcement official represents that such information is needed to determine whether a violation of law by a person other than the victim has occurred, and such information is not intended to be used against the victim;
(B) The law enforcement official represents that immediate law enforcement activity that depends upon the disclosure would be materially and adversely affected by waiting until the individual is able to agree to the disclosure; and
(C) The disclosure is in the best interests of the individual as determined by the covered entity, in the exercise of professional judgment.
(4) Permitted disclosure: decedents. A covered entity may disclose protected health information about an individual who has died to a law enforcement official for the purpose of alerting law enforcement of the death of the individual if the covered entity has a suspicion that such death may have resulted from criminal conduct.
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(5) Permitted disclosure: crime on premises. A covered entity may disclose to a law enforcement official protected health information that the covered entity believes in good faith constitutes evidence of criminal conduct that occurred on the premises of the covered entity.
(6) Permitted disclosure: reporting crime in emergencies.
(i) A covered health care provider providing emergency health care in response to a medical emergency, other than such emergency on the premises of the covered health care provider, may disclose protected health information to a law enforcement official if such disclosure appears necessary to alert law enforcement to:
(A) The commission and nature of a crime;
(B) The location of such crime or of the victim(s) of such crime; and
(C) The identity, description, and location of the perpetrator of such crime.
(ii) If a covered health care provider believes that the medical emergency described in paragraph (f)(6)(i) of this section is the result of abuse, neglect, or domestic violence of the individual in need of emergency health care, paragraph (f)(6)(i) of this section does not apply and any disclosure to a law enforcement official for law enforcement purposes is subject to paragraph (c) of this section.
(g) Standard: uses and disclosures about decedents.
(1) Coroners and medical examiners. A covered entity may disclose protected health information to a coroner or medical examiner for the purpose of identifying a deceased person, determining a cause of death, or other duties as authorized by law. A covered entity that also performs the duties of a coroner or medical examiner may use protected health information for the purposes described in this paragraph.
(2) Funeral directors. A covered entity may disclose protected health information to funeral directors, consistent with applicable law, as necessary to carry out their duties with respect to the decedent. If necessary for funeral directors carry out their duties, the covered entity may disclose the protected health information prior to, and in reasonable anticipation of, the individual’s death.
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(h) Standard: uses and disclosures for cadaveric organ, eye or tissue donation purposes. A covered entity may use or disclose protected health information to organ procurement organizations or other entities engaged in the procurement, banking, or transplantation of cadaveric organs, eyes, or tissue for the purpose of facilitating organ, eye or tissue donation and transplantation.
(i) Standard: uses and disclosures for research purposes.
(1) Permitted uses and disclosures. A covered entity may use or disclose protected health information for research, regardless of the source of funding of the research, provided that:
(i) Board approval of a waiver of authorization. The covered entity obtains documentation that an alteration to or waiver, in whole or in part, of the individual authorization required by §164.508 for use or disclosure of protected health information has been approved by either:
(A) An Institutional Review Board (IRB), established in accordance with 7 CFR 1c.107, 10 CFR 745.107, 14 CFR 1230.107, 15 CFR 27.107, 16 CFR 1028.107, 21 CFR 56.107, 22 CFR 225.107, 24 CFR 60.107, 28 CFR 46.107, 32 CFR 219.107, 34 CFR 97.107, 38 CFR 16.107, 40 CFR 26.107, 45 CFR 46.107, 45 CFR 690.107, or 49 CFR 11.107; or
(B) A privacy board that:
(1) Has members with varying backgrounds and appropriate professional competency as necessary to review the effect of the research protocol on the individual’s privacy rights and related interests;
(2) Includes at least one member who is not affiliated with the covered entity, not affiliated with any entity conducting or sponsoring the research, and not related to any person who is affiliated with any of such entities; and
(3) Does not have any member participating in a review of any project in which the member has a conflict of interest.
(ii) Reviews preparatory to research. The covered entity obtains from the researcher representations that:
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(A) Use or disclosure is sought solely to review protected health information as necessary to prepare a research protocol or for similar purposes preparatory to research;
(B) No protected health information is to be removed from the covered entity by the researcher in the course of the review; and
(C) The protected health information for which use or access is sought is necessary for the research purposes.
(iii) Research on decedent’s information. The covered entity obtains from the researcher:
(A) Representation that the use or disclosure is sought is solely for research on the protected health information of decedents;
(B) Documentation, at the request of the covered entity, of the death of such individuals; and
(C) Representation that the protected health information for which use or disclosure is sought is necessary for the research purposes.
(2) Documentation of waiver approval. For a use or disclosure to be permitted based on documentation of approval of an alteration or waiver, under paragraph (i)(1)(i) of this section, the documentation must include all of the following:
(i) Identification and date of action. A statement identifying the IRB or privacy board and the date on which the alteration or waiver of authorization was approved;
(ii) Waiver criteria. A statement that the IRB or privacy board has determined that the alteration or waiver, in whole or in part, of authorization satisfies the following criteria:
(A) The use or disclosure of protected health information involves no more than minimal risk to the individuals;
(B) The alteration or waiver will not adversely affect the privacy rights and the welfare of the individuals;
(C) The research could not practicably be conducted without the alteration or waiver;
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(D) The research could not practicably be conducted without access to and use of the protected health information;
(E) The privacy risks to individuals whose protected health information is to be used or disclosed are reasonable in relation to the anticipated benefits if any to the individuals, and the importance of the knowledge that may reasonably be expected to result from the research;
(F) There is an adequate plan to protect the identifiers from improper use and disclosure;
(G) There is an adequate plan to destroy the identifiers at the earliest opportunity consistent with conduct of the research, unless there is a health or research justification for retaining the identifiers, or such retention is otherwise required by law; and
(H) There are adequate written assurances that the protected health information will not be reused or disclosed to any other person or entity, except as required by law, for authorized oversight of the research project, or for other research for which the use or disclosure of protected health information would be permitted by this subpart.
(iii) Protected health information needed. A brief description of the protected health information for which use or access has been determined to be necessary by the IRB or privacy board has determined, pursuant to paragraph (i)(2)(ii)(D) of this section;
(iv) Review and approval procedures. A statement that the alteration or waiver of authorization has been reviewed and approved under either normal or expedited review procedures, as follows:
(A) An IRB must follow the requirements of the Common Rule, including the normal review procedures (7 CFR 1c.108(b), 10 CFR 745.108(b), 14 CFR 1230.108(b), 15 CFR 27.108(b), 16 CFR 1028.108(b), 21 CFR 56.108(b), 22 CFR 225.108(b), 24 CFR 60.108(b), 28 CFR 46.108(b), 32 CFR 219.108(b), 34 CFR 97.108(b), 38 CFR 16.108(b), 40 CFR 26.108(b), 45 CFR 46.108(b), 45 CFR 690.108(b), or 49 CFR 11.108(b)) or the expedited review procedures (7 CFR 1c.110, 10 CFR 745.110, 14 CFR 1230.110, 15 CFR 27.110, 16 CFR 1028.110, 21 CFR 56.110, 22 CFR 225.110, 24 CFR 60.110, 28 CFR 46.110, 32 CFR 219.110, 34 CFR 97.110, 38 CFR 16.110, 40 CFR 26.110, 45)
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(B) A privacy board must review the proposed research at convened meetings at which a majority of the privacy board members are present, including at least one member who satisfies the criterion stated in paragraph (i)(1)(i)(B)(2) of this section, and the alteration or waiver of authorization must be approved by the majority of the privacy board members present at the meeting, unless the privacy board elects to use an expedited review procedure in accordance with paragraph (i)(2)(iv)(C) of this section;
(C) A privacy board may use an expedited review procedure if the research involves no more than minimal risk to the privacy of the individuals who are the subject of the protected health information for which use or disclosure is being sought. If the privacy board elects to use an expedited review procedure, the review and approval of the alteration or waiver of authorization may be carried out by the chair of the privacy board, or by one or more members of the privacy board as designated by the chair; and
(v) Required signature. The documentation of the alteration or waiver of authorization must be signed by the chair or other member, as designated by the chair, of the IRB or the privacy board, as applicable.
(j) Standard: uses and disclosures to avert a serious threat to health or safety.
(1) Permitted disclosures. A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat; or
(ii) Is necessary for law enforcement authorities to identify or apprehend an individual:
(A) Because of a statement by an individual admitting participation in a violent crime that the covered entity reasonably believes may have caused serious physical harm to the victim; or
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(B) Where it appears from all the circumstances that the individual has escaped from a correctional institution or from lawful custody, as those terms are defined in § 164.501.
(2) Use or disclosure not permitted.. A use or disclosure pursuant to paragraph (j)(1)(ii)(A) of this section may not be made if the information described in paragraph (j)(1)(ii)(A) of this section is learned by the covered entity:
(i) In the course of treatment to affect the propensity to commit the criminal conduct that is the basis for the disclosure under paragraph (j)(1)(ii)(A) of this section, or counseling or therapy; or
(ii) Through a request by the individual to initiate or to be referred for the treatment, counseling, or therapy described in paragraph (j)(2)(i) of this section.
(3) Limit on information that may be disclosed. A disclosure made pursuant to paragraph (j)(1)(ii)(A) of this section shall contain only the statement described in paragraph (j)(1)(ii)(A) of this section and the protected health information described in paragraph (f)(2)(i) of this section.
(4) Presumption of good faith belief. A covered entity that uses or discloses protected health information pursuant to paragraph (j)(1) of this section is presumed to have acted in good faith with regard to a belief described in paragraph (j)(1)(i) or (ii) of this section, if the belief is based upon the covered entity’s actual knowledge or in reliance on a credible representation by a person with apparent knowledge or authority.
(k) Standard: uses and disclosures for specialized government functions.
(1) Military and veterans activities.
(i) Armed Forces personnel. A covered entity may use and disclose the protected health information of individuals who are Armed Forces personnel for activities deemed necessary by appropriate military command authorities to assure the proper execution of the military mission, if the appropriate military authority has published by notice in the Federal Register the following information:
(A) Appropriate military command authorities; and
(B) The purposes for which the protected health information may be used or disclosed.
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(ii) Separation or discharge from military service. A covered entity that is a component of the Departments of Defense or Transportation may disclose to the Department of Veterans Affairs (DVA) the protected health information of an individual who is a member of the Armed Forces upon the separation or discharge of the individual from military service for the purpose of a determination by DVA of the individual’s eligibility for or entitlement to benefits under laws administered by the Secretary of Veterans Affairs.
(iii) Veterans. A covered entity that is a component of the Department of Veterans Affairs may use and disclose protected health information to components of the Department that determine eligibility for or entitlement to, or that provide, benefits under the laws administered by the Secretary of Veterans Affairs.
(iv) Foreign military personnel. A covered entity may use and disclose the protected health information of individuals who are foreign military personnel to their appropriate foreign military authority for the same purposes for which uses and disclosures are permitted for Armed Forces personnel under the notice published in the Federal Register pursuant to paragraph (k)(1)(i) of this section.
(2) National security and intelligence activities. A covered entity may disclose protected health information to authorized federal officials for the conduct of lawful intelligence, counter-intelligence, and other national security activities authorized by the National Security Act (50 U.S.C. 401, et seq.) and implementing authority (e.g., Executive Order 12333).
(3) Protective services for the President and others. A covered entity may disclose protected health information to authorized federal officials for the provision of protective services to the President or other persons authorized by 18 U.S.C. 3056, or to foreign heads of state or other persons authorized by 22 U.S.C. 2709(a)(3), or to for the conduct of investigations authorized by 18 U.S.C. 871 and 879.
(4) Medical suitability determinations. A covered entity that is a component of the Department of State may use protected health information to make medical suitability determinations and may disclose whether or not the individual was determined to be medically suitable to the officials in the Department of State who need access to such information for the following purposes:
(i) For the purpose of a required security clearance conducted pursuant to Executive Orders 10450 and 12698;
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(ii) As necessary to determine worldwide availability or availability for mandatory service abroad under sections 101(a)(4) and 504 of the Foreign Service Act; or
(iii) For a family to accompany a Foreign Service member abroad, consistent with section 101(b)(5) and 904 of the Foreign Service Act.
(5) Correctional institutions and other law enforcement custodial situations.
(i) Permitted disclosures. A covered entity may disclose to a correctional institution or a law enforcement official having lawful custody of an inmate or other individual protected health information about such inmate or individual, if the correctional institution or such law enforcement official represents that such protected health information is necessary for:
(A) The provision of health care to such individuals;
(B) The health and safety of such individual or other inmates;
(C) The health and safety of the officers or employees of or others at the correctional institution;
(D) The health and safety of such individuals and officers or other persons responsible for the transporting of inmates or their transfer from one institution, facility, or setting to another;
(E) Law enforcement on the premises of the correctional institution; and
(F) The administration and maintenance of the safety, security, and good order of the correctional institution.
(ii) Permitted uses. A covered entity that is a correctional institution may use protected health information of individuals who are inmates for any purpose for which such protected health information may be disclosed.
(iii) No application after release. For the purposes of this provision, an individual is no longer an inmate when released on parole, probation, supervised release, or otherwise is no longer in lawful custody.
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(6) Covered entities that are government programs providing public benefits.
(i) A health plan that is a government program providing public benefits may disclose protected health information relating to eligibility for or enrollment in the health plan to another agency administering a government program providing public benefits if the sharing of eligibility or enrollment information among such government agencies or the maintenance of such information in a single or combined data system accessible to all such government agencies is required or expressly authorized by statute or regulation.
(ii) A covered entity that is a government agency administering a government program providing public benefits may disclose protected health information relating to the program to another covered entity that is a government agency administering a government program providing public benefits if the programs serve the same or similar populations and the disclosure of protected health information is necessary to coordinate the covered functions of such programs or to improve administration and management relating to the covered functions of such programs.
(l) Standard: disclosures for workers’ compensation. A covered entity may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers’ compensation or other similar programs, established by law, that provide benefits for work-related injuries or illness without regard to fault.
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United States Constitution
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1.
Amendment XIV - Citizenship rights
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
A citizen is entitled to be free of invasive visits from unwelcome agencies if no jurisdiction is had or laws have been broken. The country known as America also goes by the “innocent till proven guilty“ standard. I, Christopher Seekins, was detained for approximately four hours while the warrant was obtained limiting my liberty and violating my 14th amendment.
2.
Amendment III - Quartering of soldiers.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The unwelcome guests stayed on the property for four hours while the search warrant was obtained without the owners consent.
3.
Amendment IV - Search and seizure.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Winchester Incident Report-
Officer Milhomens: “Upon arrival, we met with Seekins on his front porch. I patted him down, to check for weapons.”
Officer Fox: ”Seekins came outside and met us on the front porch. Officer Milhomens patted Seekins down with negative results.”
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Case Examples-
Example #1
Florida v. Riley, 488 U.S. 445 (1989)[1], was a United States Supreme Court decision which held that police officials do not need a warrant to observe an individual's property from public airspace.
A Florida county sheriff received a tip that Riley was growing marijuana on his five acres of rural property. Unable to see inside a greenhouse, which was behind the defendant's mobile home, the sheriff circled over the property using a helicopter. The absence of two roof panels allowed the sheriff to see, with his naked eye, what appeared to be marijuana growing inside. A warrant was obtained and marijuana was found in the greenhouse. Riley successfully argued before the trial court that the aerial search violated his reasonable expectation of privacy. The Court of Appeals disagreed, siding instead with the state, but the Florida Supreme Court agreed with Riley and overturned the Court of Appeals.
Decision and Rationale
The Supreme Court reversed the decision of the Florida Supreme Court with a four-vote plurality, arguing that the accused did not have a reasonable expectation that the greenhouse was protected from aerial view, and thus that the helicopter surveillance did not constitute a search under the Fourth Amendment. However, the Court stopped short of allowing all aerial inspections of private property, noting that it was "of obvious importance" that a private citizen could have legally flown in the same airspace:
Any member of the public could legally have been flying over Riley's property in a helicopter at the altitude of 400 feet and could have observed Riley's greenhouse. The police officer did no more.
Also vital to the Court's ruling was the fact that the helicopter did not interfere with the normal use of the property:
As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, no wind, no dust, or threat of injury. In these circumstances, there was no violation of the Fourth Amendment.
THE OFFICER DID NOT ENTER APON PRIVATE PROPERTY TO CHECK AS THE CONSTITUTION PROTECTS A PERSONS PRIVACY, SECURITY, AND LIBERTY ON ONES PROPERTY.
Example #2-
Kyllo v. United States 533 U.S. 27 (2001)[1], was a United States Supreme Court case that held that the use of a thermal imaging device to detect heat emanating from a house constituted a search under the Fourth Amendment, therefore requiring police to obtain a search warrant.
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Facts
Danny Lee Kyllo had been charged and convicted with growing marijuana in his Oregon home after a search was conducted. A federal agent had made observations with an infrared camera outside of Kyllo's home which showed that there was an unusual amount of heat radiating from the roof and side walls of the home. (The assumption is, to grow indoors, one needs to provide lots of light so plants can photosynthesize.) This information was subsequently used to obtain a search warrant, where federal agents discovered over 100 marajuana plants growing in the home. Kyllo first tried to supress the evidence, then plead guilty. Kyllo appealed to the Ninth Circuit Court on the grounds that such observations with a thermal-imaging device constitutes a search under the Fourth Amendment. There, the conviction was upheld.
Opinion of the Supreme Court
The Supreme Court ruled 5-4 that the imaging of Kyllo's home constituted a search. Since the police did not have a warrant when they used the device, the search was presumptively unreasonable and therefore illegal.
SINCE POLICE HAD NO WARRANT TO BE ON MY PROPERTY AND DID NOT UPHOLD THE FEDERAL HIPPA LAWS, TAKING AND USING MY FEDERALLY PROTECTED HEALTH CARE INFORMATION THE SEARCH WAS FOR THIS REASON UNREASONABLE AND THEREFORE ILLEGAL.
Discrepancies in police reports and warrant affidavit
Officer Alan Milhomens - “Seekins opened the door, and went inside. When he opened the door, I could smell an that through my training and experience, I knew to be the odor of marijuana. Seekins opened the door again, and exited the house. When he opened the door again, I could smell the odor of marijuana again.”
Officer Fox - “As he opened the door I smelled a distinct odor of burning marijuana. Both Northwest Mental Health workers remarked they could smell marijuana as did Officer Milhomens. When Seekins came back outside I again detected a strong odor of marijuana. While talking to Seekins I continued to get faith odors of marijuana coming from inside his house.
BOTH STATE ENTERED AND EXISTED ONCE. NO ODOR OF CANNABIS WAS DETECTED ON MY BREATH. A FIRE WAS GOING MEANING AIR WOULD BE SUCKED INTO THE HOUSE. I HAD JUST SPRAYED MY FIRST FLOOR WITH POLYURITHENE AND I LIVE ALONE. WHY WAS CANNABIS NOT SMELLED ON MY BREATH. I WAS NOT SMOKING.
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Affidavit for warrant- Sgt. Kevin Kinahan / Sgt. Brian Fox
2. That, the undersigned, Sgt. Brian Fox, being duly sworn, does depose and state that he is a member of the Winchester Police Department and has been since November 28, 1988. At all times mentioned herein he was acting as a member of said department. The following facts and circumstances are stated from personal knowledge and observations as well as information received from other police officers acting in their official capacity and from official police report and statements made by prudent and credible witnesses.
3. That on Thursday, October 20, 2005, members of the Winchester Police Department were dispatched to 24 High St. in Winsted, CT to assist the Northwest Mental Health Mobile Crisis Unit with a check on the well being of Christopher Seekins. Upon arrival Affiant #2, Sgt. Brian Fox, spoke with Seekins and the mental health crisis worker. Seekins mental health was determined to by the crisis workers to be stable and no other action was going to be taken. Sgt. Fox noted that when Seekins came to the front door (which face High St.), there was a t strong odor of what he believed, based on his training and experience, was burnt marijuana. Affiant #2 did not see any smoke coming from the interior of the dwelling. Seekins came in and out of the house on two other occasions, and Sgt. Fox smelled the same strong odor.
II the evidence from a search based on the warrant may later be excluded upon the proper motion being e If the warrant is issued on the basis of statements in the affidavit that the police knew to be untrue or which were recklessly made without proper regard for their truth, the evidence from a search based on the warrant is not valid. By submitting a false affidavit, Officer Fox did not act "in good faith." The search was thus improper, and whatever it turned up is inadmissible in evidence.
At common law, all evidence, no matter how seized, could be admitted in court. In Weeks v. United States, 232 U.S. 383 (1914), however, the Supreme Court adopted the "exclusionary rule," whereby evidence seized unlawfully was declared inadmissible in court. The rule mainly serves as a deterrent to police officers seeking to conduct unlawful searches and seizures; it has, however, a number of exceptions. The rule was extended to the states in Mapp v. Ohio 367 U.S. 643 (1961). In United States v. Leon, 468 U.S. 897] (1984), the Supreme Court applied the "good faith" rule: evidence seized by officers objectively and in good faith relying on a warrant that was later found to be defective was still deemed admissible. If an officer dishonestly or recklessly prepares an affidavit forming the basis of the warrant, if the issuing magistrate abandons his neutrality or if the warrant lacks particularity, however, evidence seized pursuant to the warrant would still be excluded.
Despite their clarity, the Fourth Amendment's protections against "unreasonable searches and seizures" have in fact been drastically weakened since they became the law of the land in 1791. As it stands today, unless there exists a "reasonable" expectation of
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privacy -- that is, a "reasonable" expectation that what one does or says will not be seen
or heard by someone else -- neither local police nor federal law enforcement authorities are required to get a warrant or other court order before they start a surveillance operation.
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Connecticut Constitution -
SEC. 7. The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.
SEC. 9. No person shall be arrested, detained or punished, except in cases clearly warranted by law.
SEC. 15. Every citizen has a right to bear arms in defense of himself and the state
SEC. 17. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law
Winchester Incident Report-
Officer Milhomens: “Upon arrival, we met with Seekins on his front porch. I patted him down, to check for weapons.”
Officer Fox: ”Seekins came outside and met us on the front porch. Officer Milhomens patted Seekins down with negative results.”
FEDERAL RULES
OF
CRIMINAL PROCEDURE
Rule 41. Search and Seizure
(e) Issuing the Warrant.
(2) Contents of the Warrant.
The warrant must identify the
person or property to be searched, identify any person or property
to be seized, and designate the magistrate judge to whom
it must be returned. The warrant must command the officer
to:
(A) execute the warrant within a specified time no
longer than 10 days;
(f) Executing and Returning the Warrant.
(1) Noting the Time.
The officer executing the warrant must
enter on its face the exact date and time it is executed.
Search warrant copy included
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What money will do...(this was a project to get)
