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Vt Health Care Information Bill
[latest draft as of 4/4/96 Leg council doc. #35612]
TO THE HOUSE OF REPRESENTATIVES
The Committee on Health and Welfare to which was referred
House Bill H. 237 entitled "AN ACT RELATING TO HEALTH CARE INFORMATION"
respectfully report that they have considered the same and recommend that
the bill be amended by striking all after the enacting clause and inserting
in lieu thereof the following:
Sec. 1. LEGISLATIVE PURPOSE
The purpose of this act is to clarify and consolidate the laws that protect
an individualÂ’s privacy and access regarding their personal health care
information and the laws that establish the legal responsibilities of
persons, including health care providers, health care facilities, insurance
companies and employers, who acquire personally identifiable health care
information to maintain the security and confidentiality of that information
during its acquisition, storage, disclosure and disposition.
Sec. 2. 18 V.S.A. chapter 221, subchapter 9 is added to read:
Subchapter 9. Health Care Information Practices
Â§ 9461. DEFINITIONS
For the purposes of this subchapter,
(1) "Amend" means to indicate one or more disputed entries in health care
information or to change the entry without obliterating the original
(2) "Custodian" means any health care provider or health care facility that
creates, controls or retains health care information or any person who
obtains individually identifiable health care information for lawful purposes.
(3) "Disclosure" means the release of health care information in any
manner, including a subsequent release of health care information by a
person to whom health care information was initially disclosed.
(4) "Health care" means any preventive, diagnostic, therapeutic,
rehabilitative, maintenance or palliative care, counseling, service or
procedure provided to an individual for the individual's physical or mental
condi-tion or the structure or function of any part of the human body,
including the sale or dispensing of medication or durable goods pursuant to
(5) "Health care facility" means any facility or institution, whether
public or private, proprietary or not-for-profit, that offers health care
diagnosis, treatment, inpatient or ambulatory care to two or more unrelated
(6) "Health care information" means any data or information, whether oral
or recorded, in any form or medium, that directly identifies the individual
or can reasonably identify the individual by reference to publicly available
information and that:
(A) relates to the individual's health history, health care, health
status, health benefits or application for health benefits; or
(B) is obtained by a health care provider or health care facility
in the course of providing health care to the individual and is obtained
from the individ-ual, a member of the individual's family or a person with
whom the individual has a close personal relationship.
(7) "Health care provider" means a person, partnership or corporation,
other than a facility or institution, that is licensed, certified or
authorized by law to provide professional health care services in this state
to an individual during that individualÂ’s medical care, treatment or
(8) "Health insurer" means an insurance company that offers health
insurance to the public, a nonprofit hospital and medical service
corporation or a health maintenance organization and, to the extent
permitted under federal law, any administrator of an insured, self-insured
or publicly funded health care benefit plan offered by a public or private
(9) "Individual" means a natural person, alive or dead, who is the subject
of health care information and includes the individual's attorney-in-fact,
legal guardian, executor or administrator.
Â§ 9462. DISCLOSURE OF HEALTH CARE INFORMATION; GENERALLY
(a) Health care information shall be confidential and shall not be
disclosed by any person except as provided in this subchapter. A disclosure
of health care information by any person shall be limited:
(1) to persons who require the information for a lawful purpose
which, for the purposes of this subchapter, does not include the marketing
of services or goods, and
(2) to the minimum amount of information necessary to accomplish
the lawful purpose.
(b) A custodian shall create a record of all disclosures made to any person
who is not an agent, employee or independent contractor of the custodian.
That record shall be retained in the health care information and shall
include the following information:
(1) The name, address and institutional affiliation, if any, of the
person to whom the information is disclosed.
(2) The date and purpose of the disclosure.
(3) A description of the information disclosed.
(4) A statement as to whether the disclosure was made pursuant to
an authorization or an exception under section 9464 of this title.
(c) No person to whom health care information is disclosed may use the
information for any purpose other than the lawful purpose for which it was
(d) Disclosure of health care information relating to an HIV related
illness, AIDS, a sexually transmitted disease, mental health treatment or
drug or alcohol treatment is prohibited unless
the individual specifically authorizes disclosure of that information
pursuant to section 9463 of this title.
(e) The provisions of this subchapter do not affect other laws that
restrict to a greater extent the disclosure of specific types of health care
information to a person other than the individual to whom it relates.
Â§ 9463. AUTHORIZATION FOR DISCLOSURE; REVOCATION
(a) A custodian shall only disclose health care information pursuant to a
valid authorization by the individual who is the subject of the information,
except as provided in section 9464 of this title.
(b) An authorization to disclose health care information shall be retained
in the individualÂ’s health care information. An authorization shall be
valid if it is in writing or in electronic form and includes all the following:
(1) The identity of the individual subject of the information.
(2) The name of the custodian who will disclose the information.
(3) A description of the health care information to be dis-closed.
(4) The name and address of the person to whom the information is
to be disclosed.
(5) The general purpose of the disclosure.
(6) The signature of the individual and the date signed or, if in
electronic form, a unique identifier of the individual and the date the
individual authenticated the electronic authorization.
(7) A statement that the individual may revoke the authorization at
(8) An authorization to provide or pay for health care shall be on
a separate page.
(c) An authorization may specify a length of time the authorization shall
remain valid, which in no event shall be for more than 12 months, except an
authorization signed for one of the following purposes:
(1) To support claims for benefits under a health insurance policy
in which event the authorization shall remain valid during the entire term
of coverage of the policy.
(2) To support an application for a health, disability or life
insurance policy, reinstatement of a policy or a change in benefits under an
existing policy in which case the authorization shall expire in 12 months or
whenever the policy is denied, whichever occurs first.
(d) An individual may revoke an authorization at any time. A revocation of
an authorization shall be valid if it is in writing or in electronic form
and is dated and authenticated as required for an authorization under
subsection (b) of this section. A revocation of an authorization shall be
retained in the individualÂ’s health care information.
Â§ 9464. DISCLOSURE WITHOUT AUTHORIZATION
(a) A custodian is not required to, but may disclose health care
information without the authorization of the individual in any of the
(1) To another health care provider who is providing health care to
the individual or to a referring health care provider who continues to
provide health care to the individual and the information is necessary to
provide appropriate ongoing health care treatment to the individual, to the
extent the disclosure has not been limited by the individual.
(2) To an agent, employee or independent contractor of the
custodian in order to carry out the custodianÂ’s lawful purposes or health
care activities, including risk management, quality assurance, utilization
review and peer review activities. For the purposes of this subdivision,
lawful purposes or lawful health care activities do not include the
marketing of services or goods.
(3) If the person disclosing reasonably believes that disclosure is
necessary to avoid or minimize serious risk of imminent harm to the health
or safety of any individual. Information disclosed under this subdivision
may not be used in any administrative, civil or criminal action or
investigation directed against the individual subject of the information.
(4) The individual lacks the capacity to consent and the disclosure
is to a member of the individualÂ’s immediate family or to a person with whom
the individual is known to have a close personal relationship, provided that
the disclosure is made in accordance with good professional practice; the
information relates to health care currently being provided to the
individual; and the disclosure has not been limited or prohibited by the
(5) To a successor in interest of a custodian that is a health care
provider or health care facility provided that the custodian gave the
individual at least 30 daysÂ’ notice of the disclosure and the opportunity to
designate a different provider or facility to receive the information.
(6) To conduct a scientific research project that has been approved
by an institutional review board, which, for the purposes of this
subdivision, means any board, committee or other group formally designated
by a health care facility and authorized under federal law to review,
approve or conduct periodic review of research programs, provided the project:
(A) contains adequate safeguards to assure that any
information in any report of the research project does not identify,
directly or indirectly through reference to publicly available information,
the individual subject of the information; and
(B) does not require direct contact with an individual
subject of the information unless that individual has received notice from
the custodian disclosing the information that such contact is possible and
the individual has authorized the contact.
(7) The disclosure is to federal, state or local governmental
authorities to the extent the custodian disclosing the information is
required or permitted by law to report specific health care information to
determine compliance with state or federal licensure, certification,
registration rules or professional regulations or for the protection of the
public health. Information disclosed under this subdivision may not be used
in any administrative, civil or criminal action or investigation directed
against any individual subject of the information.
(8) The disclosure is to federal or state governmental authorities
for use only in the investigation or prosecution of criminal activity or a
violation of laws relating to the provision of health care or payment for
health care as required or permitted by federal or state law. Information
disclosed under this subdivision may not be used in any administrative,
civil or criminal action or investigation directed against the individual
subject of the information, unless the action or investigation involves the
individual subject of the information and arises from the provision of
health care or payment for health care.
(9) The disclosure is based on a reasonable belief that the
information is needed for one of the following purposes:
(A) To identify a deceased individual.
(B) To determine the cause and manner of death by a chief
medical examiner or the medical examiner's designee.
(10) To a person engaged in the assessment, evaluation or
investigation of the quality of health care provided by a custodian pursuant
to statutory or regulatory standards or the requirements of a private or
public program for the payment of health care.
(b) Except as provided in this subchapter, neither an authorization to
disclose health care information under section 9463 of this title nor a
production of health care information pursuant to legal process under
section 9465 of this title shall be construed to be or to operate as a
waiver of the individual's confidentiality rights provided by other federal
or state laws, rules of evidence or common law.
Â§ 9465. LEGAL PROCESS
(a) A custodian shall disclose health care information about an individual
pursuant to legal process, including subpoenas, subpoenas duces tecum and
discovery requests, in any judicial, legislative or administrative
(1) The individual has consented in writing to the disclosure of
the information in response to the legal process.
(2) The individual is a party to a proceeding in which the
individualÂ’s physical, mental or emotional condition has been placed in issue.
(3) The individual's physical or mental condition is relevant to
the execution or witnessing of a will or a trust.
(4) The disclosure is permitted without authorization pursuant to
subdivision (a)(8) of section 9464 of this title.
(5) A court has ordered disclosure after a hearing of which both
the individual subject of the information and the custodian receive notice
and in which the party requesting disclosure has demonstrated that the
public interest in disclosure outweighs the individualÂ’s privacy interest
and that the information is not reasonably available by other means.
(b) In the case of health care information being sought under subdivisions
(a)(2), (3) or (4) of this section, the person seeking disclosure shall mail
a notice of the request by first class mail to the individual who is the
subject of the health care information and to the individual's attorney of
record, at least 21 days before serving a legal process certificate on the
custodian from whom the information is sought. The notice shall specify the
information to be disclosed and the reasons for disclosure and shall include
notice of the individual's rights to object to disclosure pursuant to
subsection (d) of this section.
(c) Any service of legal process upon a custodian shall be accompanied by a
written certification, signed by the person seeking the information or by
that person's authorized representative, that states all the reasons that
support legal process as listed in subsection (a) of this section and that
the person reasonably believes that one or more of the criteria listed in
subsection (a) of this section supports the use of legal process. For
information being sought under subdivisions (a)(2), (3) or (4) of this
section, the certification shall also include a copy of the notice and a
statement that the notice requirements of subsection (b) of this section
have been met. The custodian shall release the information requested upon
receipt of the legal process and shall retain a copy of the process and the
written certification as a part of the individual's health care information.
(d) The custodian or the individual subject of the information may file an
objection to the request for disclosure in the appropriate forum on or
before the date on which the disclosure is sought. The person requesting
disclosure shall have the burden of establishing that disclosure should be
(e) Protective orders regarding any information disclosed pursuant to this
section may be issued at the request of the individual who is the subject of
Â§ 9466. INDIVIDUAL RIGHT TO ACCESS TO HEALTH CARE INFORMATION; DENIAL
(a) No later than ten days after receipt of a written request from an
individual to examine or receive a copy of the individualÂ’s health care
information, the custodian shall:
(1) Provide a copy of the information requested to the individual
or permit the individual to examine the information during regular business
(2) Notify the individual that the custodian does not have the
information and if applicable, inform the individual of the name and address
of the person who has the information requested or when the information will
be available; or
(3) Deny the request in whole or part, if the custodian reasonably
determines any of the following:
(A) Knowledge of the information would adversely and
substantially affect the individualÂ’s health.
(B) Knowledge of the information could reasonably be
expected to identify a person who provided the information in confidence and
under circumstances in which confidentiality was appropriate; or
(C) The information was compiled solely for litigation,
quality assurance or peer review purposes.
(b) If a request to examine or copy information is denied in whole or in
part under this section, the person denying access shall notify the
individual in writing of the reasons for the denial and the individual's
rights under this subsection and subsection (f) of this section. To the
extent possible, the information to which access has been denied shall be
separated from information that may be disclosed and the individual shall be
permitted to examine or copy the disclosable information.
(c) A health care provider who has denied a request for access in whole or
in part under subdivision (3)(A) or (B) of this section shall permit a
health care provider selected by the individual to examine and copy the
information. The reviewing health care provider shall have the same license
or certification as the health care provider denying access. If the
reviewing health care provider also denies the request, the individual may
petition the superior court for access to the health care information. The
court shall resolve the matter based on criteria in subsection (a) of this
section. (this option tips the scales in favor or the patient, since the
only scenario that would prevent the patient from gaining access to their
record is if the reviewer also denies access)
(c) A health care provider who has denied a request for access in whole or
in part under subdivision (a)(3)(A) or (B) of this section shall permit a
health care provider selected by the individual to examine and copy the
information. The reviewing health care provider shall be licensed or
certified to treat the individual for the same condition as the health care
provider denying access. A reviewing health care provider who is not
currently providing health care to the individual shall not disclose the
health care information. If a reviewing health care provider who is not
currently providing health care to the individual would permit access to the
information, but the custodian continues to deny access, or if a reviewing
health care provider also denies access, the individual may petition the
superior court for access to the information. The court shall resolve the
matter based on criteria in subsection (a) of this section. (this option
tilts the power in favor of the custodian, since the only scenario in which
the individual may gain access without going to court is if the reviewing
health care provider is also providing treatment and agrees that access is
appropriate, in which case the reviewer can just disclose the information to
(d) A custodian that is a health care provider or a health facility or a
health insurer shall, on reasonable request, explain any code, abbreviation,
term or notation used in the health care information.
(e) If a custodian does not maintain the information in the form requested
by the individual, the custodian is not required to create a new record or
reformulate an existing record in order to meet the request.
(f) The custodian may charge a reasonable fee for providing the health care
information requested. A reasonable fee shall be the usual commercial rate
for actual reproduction of the information. The custodian may also charge
an additional fee of no more than $5.00 for each hour of personnel time
required to reproduce the health care information. A detailed bill
accounting for the charges shall be provided by the custodian.
Â§ 9467. RIGHT TO AMEND HEALTH CARE INFORMATION
(a) An individual may request in writing that a custodian amend the
individualÂ’s health care information in order to improve the accuracy or
completeness of the information, as long as the amendment does not delete,
erase or obliterate any of the original information.
(b) Within 30 days after receipt of a written request from an individual to
amend the individualÂ’s health care information, a custodian shall do one of
(1) Amend the information as requested.
(2) Notify the individual that the request has been denied, the
reason for the denial, and that the individual may file a concise statement
of what the individual believes to be the correct information and the
reasons the individual disagrees with the denial. This statement by the
individual shall be retained in the health care information.
(c) At the request of the individual whose health care information has been
amended pursuant to this section or who has filed a statement pursuant to
subsection (b)(2) of this section, the custodian shall provide a copy of the
amended information or the individualÂ’s statement to the person who provided
the original information and shall take reasonable steps to provide those
documents to all persons designated by the individual or who are identified
in the information as having received copies of that information within the
Â§ 9468. NOTICE OF INFORMATION PRACTICES
Health care providers and health care facilities shall post a notice in a
conspicuous public place and provide the notice to all individuals whose
health care information is maintained by the provider or facility. The
notice shall substantially include the following information:
THE CONFIDENTIALITY OF YOUR HEALTH CARE INFORMATION WILL BE PROTECTED. NONE
OF YOUR HEALTH CARE INFORMATION WILL BE DISCLOSED OR RELEASED TO ANYONE
WITHOUT YOUR KNOWING, WRITTEN AUTHORIZATION, UNLESS THE RELEASE IS REQUIRED
TO ASSURE THAT YOU RECEIVE COMPETENT AND APPROPRIATE HEALTH CARE OR IT IS
SPECIFICALLY REQUIRED BY LAW. YOU MAY GET OR SEE A COPY OF YOUR MEDICAL
RECORDS UPON REQUEST. YOU MAY ASK YOUR HEALTH CARE PROVIDER ANY QUESTIONS
YOU HAVE ABOUT YOUR RECORDS, INCLUDING WHETHER YOUR MEDICAL RECORDS ARE
HANDLED ELECTRONICALLY OR MANUALLY. A COPY OF THE MEDICAL RECORD LAW IS
AVAILABLE AT ____________________________________(location)
Â§ 9469. RIGHTS OF MINORS
A minor who lawfully may consent to health care without the consent of a
parent or legal guardian may exclusively exercise the rights of an
individual under this subchapter regarding information pertaining to the
health care to which the minor has lawfully consented.
Â§ 9470. REPRESENTATIVE OF DECEASED INDIVIDUAL
An executor or administrator of a deceased individual may exercise all the
rights of the deceased individual provided by this subchapter subject to any
written limitations or restrictions requested by the deceased individual.
If there is no executor or administrator, the rights of a deceased
individual may be exercised by the following persons, in the following order
(1) A person designated by a durable power of attorney for health care.
(2) The surviving spouse.
(3) An adult child.
(4) A parent.
(5) An adult sibling.
(6) Any other person authorized by law to act for the individual.
Â§ 9471. MAINTENANCE OF HEALTH CARE INFORMATION; CONFIDENTIALITY PROCEDURES
(a) A custodian that is a health care provider or a health care facility
shall develop and implement policies, standards and procedures to protect
the confidentiality, security and integrity of health care information to
ensure that the information is not negligently, inappropriately or
unlawfully disclosed. These procedures shall include:
(1) The use of nondisclosure and confidentiality agreements.
(2) Periodic training for all employees.
(3) Disciplinary measures for violations of the confidentiality
(4) Methods for handling, storing and disposition of health care
(b) Health care information generated, received or compiled by a health
care provider or health care facility shall be retained by the facility or
provider, or their successors or assigns, for a minimum period of ten years,
or ten years after the individual subject of the information reaches the age
of majority, whichever is longer.
(c) A custodian who is the employer of the individual shall adopt and
implement policies and procedures to ensure that the health care information
is maintained separately and apart from the individual's employment records
and is used only for the lawful health care purposes for which the
information was disclosed.
(d) A custodian shall destroy health care information when there is no
longer any lawful purpose for maintaining the information. A custodian that
is a health care facility or provider shall notify the individual at the
individualÂ’s last known address at least 30 days prior to destroying the
individualÂ’s health care information.
Â§ 9472. VIOLATIONS; CRIMINAL PENALTIES
Any person who intentionally examines, obtains, modifies, destroys or
discloses health care information in violation of this subchapter, or who
uses a false certification or authorization to examine or obtain health care
information in violation of this subchapter, shall be impris-oned not more
than one year or fined not more than $10,000.00, or both. A penalty under
this section may be imposed in addition to other available criminal penalties.
Â§ 9473. CIVIL ACTION; REMEDIES: ATTORNEY GENERAL ACTION
(a) Whenever the attorney general has reason to believe that a person has
knowingly violated a provision of this subchapter and that an action under
this section would be in the public interest, the attorney general may bring
an action against the person to enjoin violations of this subchapter. An
injunction issued under this section shall be issued without bond.
(b) In addition to the relief provided in subsection (a) of this section,
the attorney general may request and the court may order any other temporary
or permanent relief as may be in the public interest, including the following:
(1) A civil penalty of not more than $10,000.00 for each violation,
but not to exceed $50,000.00 in the aggregate for multiple violations.
(2) A civil penalty of not more than $250,000.00 if the court finds
that a violation of this subchapter has occurred with sufficient frequency
to constitute a general business practice.
(3) Actual damages suffered by the aggrieved by the individual.
(4) Reasonable attorney fees, investigatory expenses and court costs.
(c) An individual who is aggrieved by a violation of this subchapter may
bring a civil action for the following:
(1) Actual damages or $1,000.00, whichever is greater.
(2) Punitive damages.
(3) Preliminary and equitable relief as the court deems appropriate.
(4) Reasonable attorney fees, expenses and costs.
(d) In an action alleging that health care information was improperly
withheld under section 9466 of this title, the person denying access to the
information has the burden of proof to establish that the information was
withheld in good faith.
(e) In an action under this section in which a custodian is being sued
under a theory of vicarious liability for the acts or omissions of the
custodian's employee, it shall be an affirmative defense that the employer
substantially complied with the requirements of section 9471 of this title.
(f) No civil action may be maintained under this section against any person
who, in good faith, disclosed health care information in response to legal
process as provided in section 9465 of this title.
(g) No action may be commenced under this section more than three years
after the date on which the violation occurred or reasonably should have
Sec. 3. 12 V.S.A. Â§ 1908 is amended to read:
Â§ 1908. BURDEN OF PROOF
(a) For the purpose of this section, malpractice means professional medical
negligence comprised of the elements listed in this section. In a
malpractice action based on the negligence of the personnel of a hospital, a
physician licensed under chapter 23 of Title 26, a dentist licensed under
chapter 13 of Title 26, a podiatrist licensed under chapter 7 of Title 26, a
chiropractor licensed under chapter 9 of Title 26, a nurse licensed under
chapter 27 of Title 26, or an osteopathic physician licensed under chapter
33 of Title 26, the plaintiff shall have the burden of proving all the
(1) The degree of knowledge or skill possessed or the degree of
care ordinarily exercised by a reasonably skillful, careful, and prudent
health care professional engaged in a similar practice under the same or
similar circumstances whether or not within the state of Vermont.
(2) The defendant either lacked this degree of knowledge or skill
or failed to exercise the appropriate degree of care; and
(3) As That as a proximate result of this lack of knowledge or
skill or the failure to exercise this degree of care, the plaintiff suffered
injuries that would not otherwise have been incurred.
(b) In any malpractice action, it shall be an affirmative defense that the
plaintiff restricted access to the plaintiff's health care information by
the defendant health care provider or facility under 18 V.S.A. Â§ 9463(1) and
that the restricted information was material to the allegedly negligent care
Sec. 4. 12 V.S.A. Â§ 1612 is amended to read:
Â§ 1612. PATIENTS' PRIVILEGE
(a) Confidential information privileged. Unless the patient waives the
privilege by authorizing its disclosure pursuant to 18 V.S.A. Â§ 9463 or
unless the privilege is waived disclosure is permitted or required by an
express provision of law, a person authorized to practice medicine,
chiropractic or dentistry, a registered professional or licensed practical
nurse, or a mental health professional as defined in 18 V.S.A. Â§ 7101(13)
shall not be allowed to disclose any health care information, as defined in
18 V.S.A. Â§ 9461(6) acquired in attending a patient in a professional
capacity, including joint or group counseling sessions, and which was
necessary to enable the provider to act in that capacity.
* * *
(c) Mental or physical condition of deceased patient. A physician,
chiropractor or nurse shall be required to disclose any information as to
the mental or physical condition of a deceased patient privileged under
subsection (a), except information which would tend to disgrace the memory
of the decedent, either in the absence of an objection by a party to the
litigation or when the privilege has been waived:
(1) by the personal representative, or the surviving spouse, or the
next of kin of the decedent; or
(2) in any litigation where the interests of the personal
representative are deemed by the trial judge to be adverse to those of the
estate of the decedent, by any party in interest; or
(3) if the validity of the will of the decedent is in question, by
the executor named in the will, or the surviving spouse or any heir-at-law
or any of the next of kin or any other party in interest.
Sec. 4. EFFECTIVE DATE
This act shall take effect on January 1, 1997.
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_/_/_/ ESIGN _/ _/ CCESS _/ _/ ETWORK
Design Access Network Phone: 802.479.6118
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Montpelier, Vermont 05601-1331 PGP public key available