Topic:
CHILD ABUSE; CONFIDENTIALITY OF INFORMATION; PHYSICIANS;
Location:
PRIVILEGED COMMUNICATIONS;
Scope:
Federal laws/regulations; Other States laws/regulations;

OLR Research Report


May 09, 2001

 

2001-R-0465

FEDERAL PHYSICIAN-PATIENT CONFIDENTIALITY LAWS

By: Saul Spiel, Chief Analyst

You wanted to know whether a physician would violate any federal patient confidentiality or medical records privacy laws by providing medical information to the Department of Children and Families in a child abuse investigation.

SUMMARY

The physician-patient privilege limits the medical information a physician can disclose without the patient's consent. Federal statutes do not create a physician-patient privilege; it is created only in state statutes. It usually applies to testimony at trails or in administrative actions.

Several federal laws deal with the disclosure of medical records. A recently enacted statute generally prohibits the disclosure of medical records or other health information without a patient's written consent or authorization. But the regulations implementing this law make an exception for records requested by an authorized government child protective services agency like the Department of Children and Families. Another federal law prohibits disclosure of records maintained by federally funded substance abuse treatment programs, but it exempts records that a court orders disclosed.

Connecticut's physician-patient privilege law permits a doctor to disclose information without the patient's consent if the doctor knows or has a good faith suspicion that a child is being abused.

FEDERAL LAW

Medical Record Privacy Law

Regulations governing medical records privacy took effect April 14, 2001; full compliance with them is required by April 14, 2003. They implement the Health Insurance Portability and Accountability Act and will affect how physicians and other health care providers must treat their patients' records. These regulations generally require physicians to obtain a patient's written consent or authorization before disclosing a patient's medical records or other individually identifiable health information, but they contain an exception for disclosing information about child abuse.

The regulations allow a physician to disclose otherwise protected health information without written consent or authorization:

1. to the extent it is required by law and the disclosure complies with and is limited to the relevant requirements of the law and

2. to a public health or other appropriate government entity that is legally authorized to receive child abuse and neglect reports (45 CFR 164.512(b)(i)(ii), Federal Register, 12/28/00, p.82813).

The regulations also permit physicians to disclose health information to legally authorized government agencies in cases where they believe a spouse, an elderly person, or someone else specially protected under a state's law is being abused. In these cases, but not in cases of child abuse or neglect, the physician must inform the person whose information they disclosed unless the physician believes doing so would place the person in harm or is informing someone who is responsible for that person, such as a guardian or conservator (45 CFR 164.512(c)(2), Federal Register, 12/28/00, p.82813).

Substance Abuse Treatment

Records about the identity, diagnosis, prognosis, or treatment of any patient that are maintained in connection with any program or activity that receives federal funding can be disclosed only with the patient's written consent, with three exceptions. They can be disclosed without consent: (1) to medical personnel in medical emergencies; (2) to qualified people conducting research or program evaluation or audits, as long as no individual patient's identity is disclosed; and (3) if authorized by a court order, which must impose appropriate safeguards against unauthorized disclosure. Records cannot be used to investigate a patient or initiate or substantiate any criminal charge against him, except if a court order authorizes this (42 USCA 290dd-2(a)-(c)).

STATE LAW

Connecticut's physician-patient privilege law prohibits a physician from disclosing information about a patient without the patient's explicit consent. The prohibition applies to disclosure in any civil action or proceeding preliminary to it and to any probate, legislative, or administrative proceeding. The law contains several exceptions that permit disclosure without the patient's consent in certain cases. These include (1) if the doctor knows or has a good faith suspicion that a child; elderly person; or disabled, incompetent, or mentally retarded individual is being abused and (2) pursuant to any statute or regulation of any state agency or court rule (CGS 52-146o(b)).

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