Chapter 88 Oregon Laws 2003

AN ACT

HB 2307

Relating to health information; creating new provisions; amending ORS 179.495, 179.505 and 179.507; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 179.495 is amended to read:

179.495. (1) [Medical case histories, clinical records, X-rays, treatment charts, progress reports and other similar] Written accounts of the inmates of any Department of Corrections institution [described] defined in ORS [179.321] 421.005, maintained in [such] the institution by the officers or employees [thereof] of the institution who are authorized to maintain [such histories, records, X-rays, charts, reports and other] written accounts within the official scope of their duties, [shall] are not [be] subject to [inspection except upon permission given by] disclosure unless the disclosure is permitted or authorized by the Department of Corrections in compliance with ORS 179.505 (3), (4), (6), (7), (9), (11), (12), (14), [or] (15)[,] or (17) or section 4 of this 2003 Act or upon order of a court of competent jurisdiction. The restriction contained in this section [shall] does not apply to [inspection or release] disclosure of written accounts made under ORS 179.505 (3) with the consent of the individual [concerned, or in case of the incompetence of the inmate, by the legal guardian of the inmate] or a personal representative of the individual.

(2) Except as authorized under subsection (1) of this section, any person who [releases] discloses or any person who knowingly obtains information from [any record] a written account referred to in subsection (1) of this section commits a Class B violation.

(3) As used in this section, “disclosure,” “personal representative” and “written account” have the meanings given those terms in ORS 179.505.

SECTION 2. ORS 179.505 is amended to read:

179.505. (1) [“Provider,” as used in this section, means any public agency or publicly operated institution, any private organization that operates as a community mental health provider, any subcontractor of a community mental health provider or any contractor of the Department of Human Services, licensed or operated under this chapter or ORS chapter 426 or 427 or ORS 430.010 to 430.180, 430.265 to 430.395, 430.397 to 430.401, 430.405 to 430.565 and 430.610 to 430.880 or ORS 431.035 to 431.530, 431.705 to 431.990 and sections 2 and 12, chapter 321, Oregon Laws 1987, that provides health care services or maintains written accounts of health care services provided to individuals.] As used in this section:

(a) “Disclosure” means the release of, transfer of, provision of access to or divulgence in any other manner of information outside the health care services provider holding the information.

(b) “Health care services provider” means:

(A) Medical personnel or other staff employed by or under contract with a public provider to provide health care or maintain written accounts of health care provided to individuals; or

(B) Units, programs or services designated, operated or maintained by a public provider to provide health care or maintain written accounts of health care provided to individuals.

(c) “Individually identifiable health information” means any health information that is:

(A) Created or received by a health care services provider; and

(B) Identifiable to an individual, including demographic information that identifies the individual, or for which there is a reasonable basis to believe the information can be used to identify an individual, and that relates to:

(i) The past, present or future physical or mental health or condition of an individual;

(ii) The provision of health care to an individual; or

(iii) The past, present or future payment for the provision of health care to an individual.

(d) “Personal representative” includes but is not limited to:

(A) A person appointed as a guardian under ORS 125.305, 419B.370, 419C.481 or 419C.555 with authority to make medical and health care decisions;

(B) A person appointed as a health care representative under ORS 127.505 to 127.660 or a representative under ORS 127.700 to 127.737 to make health care decisions or mental health treatment decisions; and

(C) A person appointed as a personal representative under ORS chapter 113.

(e) “Psychotherapy notes” means notes recorded in any medium:

(A) By a mental health professional, in the performance of the official duties of the mental health professional;

(B) Documenting or analyzing the contents of conversation during a counseling session; and

(C) That are maintained separately from the rest of the individual’s record.

(f) “Psychotherapy notes” does not mean notes documenting:

(A) Medication prescription and monitoring;

(B) Counseling session start and stop times;

(C) Modalities and frequencies of treatment furnished;

(D) Results of clinical tests; or

(E) Any summary of the following items:

(i) Diagnosis;

(ii) Functional status;

(iii) Treatment plan;

(iv) Symptoms;

(v) Prognosis; or

(vi) Progress to date.

(g) “Public provider” means:

(A) The state institutions for the care and treatment of individuals with mental illness or developmental disabilities operated by the Department of Human Services;

(B) Department of Corrections institutions as defined in ORS 421.005;

(C) A contractor of the Department of Human Services or the Department of Corrections that provides health care to individuals residing in a state institution operated by the Department of Human Services or the Department of Corrections;

(D) A community mental health and developmental disabilities program as described in ORS 430.610 to 430.695 and the public and private entities with which it contracts to provide mental health or developmental disabilities programs or services;

(E) A program or service provided under ORS 431.250, 431.375 to 431.385 or 431.416;

(F) A program or service licensed, approved, established, maintained or operated by or contracted with the Department of Human Services under ORS 430.630 for individuals with developmental disabilities and individuals with mental or emotional disturbances;

(G) A program or facility providing an organized full-day or part-day program of treatment that is licensed, approved, established, maintained or operated by or contracted with the Department of Human Services for alcoholism, drug addiction or mental or emotional disturbance; or

(H) A program or service providing treatment by appointment that is licensed, approved, established, maintained or operated by or contracted with the Department of Human Services for alcoholism, drug addiction or mental or emotional disturbance.

(h) “Written account” means records containing only individually identifiable health information.

(2) Except as provided in subsections (3), (4), (6), (7), (8), (9), (11), (12), (14), (15), [and] (16) and (17) of this section or unless otherwise permitted or required by state or federal law or by order of the court, [case histories, clinical records, X-rays, treatment charts, progress reports and other similar] written accounts of the [patients of] individuals served by any health care services provider maintained in or by the health care services provider by the officers or employees thereof who are authorized to maintain [such histories, records, X-rays, reports, charts and other] written accounts within the official scope of their duties [shall not be subject to inspection] are not subject to access and may not be disclosed. This subsection applies to written accounts maintained in or by facilities of the Department of Corrections only to the extent that the written accounts concern the medical, dental or psychiatric treatment as patients of those under the jurisdiction of the Department of Corrections.

(3) If the [patient, or in the case of incompetence, the legal guardian, gives voluntary and informed consent] individual or a personal representative of the individual provides an authorization, the content of any written account referred to in subsection (2) of this section [shall] must be [released] disclosed accordingly, if the [consent] authorization is in writing and is signed and dated by the [patient] individual or [guardian] the personal representative of the individual and sets forth with specificity the following:

(a) Name of the health care services provider [directed] authorized to make the disclosure, except when the [consent is given] authorization is provided by recipients of or applicants for public assistance to a governmental entity for purposes of determining eligibility for benefits or investigating for fraud;

(b) Name or title of the persons or organizations to which the information is to be disclosed or that information may be [released] disclosed to the public;

(d) Extent or nature of the information to be disclosed; and

(e) Statement that the [consent] authorization is subject to revocation at any time except to the extent that action has been taken in reliance thereon, and a specification of the date, event or condition upon which it [will expire] expires without express revocation. However, [no] a revocation of [a consent] an authorization is not valid with respect to inspection or records necessary to validate expenditures by or on behalf of governmental entities.

(4) The content of any written account referred to in subsection (2) of this section may be [released] disclosed without [consent] an authorization:

(a) To any person to the extent necessary to meet a medical emergency.

(b) At the discretion of the responsible officer of the health care services provider, which in the case of any Department of Human Services facility or community mental health and developmental disabilities program shall be the Director of Human Services, to persons engaged in scientific research, program evaluation, peer review and fiscal audits. However, [patient] individual identities [shall] may not be disclosed to such persons, except when the disclosure is essential to the research, evaluation, review or audit [or when the disclosure benefits the provider or patient] and is consistent with state and federal law.

(c) To governmental agencies when necessary to secure compensation for services rendered in the treatment of the [patient] individual.

(5) When [a patient’s] an individual’s identity is disclosed under subsection (4) of this section, a health care services provider shall prepare, and include in the permanent records of the health care services provider, a written statement indicating the reasons for the disclosure, the written accounts disclosed and the recipients of the disclosure.

(6) The content of any written account referred to in subsection (2) of this section and held by a health care services provider currently engaged in the treatment of [a patient] an individual may be [released] disclosed to officers or employees of that provider, its agents or cooperating health care services providers who are currently acting within the official scope of their duties to evaluate treatment programs, to diagnose or treat or to assist in diagnosing or treating [a patient] an individual when [such] the written account is to be used in the course of diagnosing or treating the [patient] individual. Nothing in this subsection [shall prevent] prevents the transfer of written accounts referred to in subsection (2) of this section among health care services providers, [of] the Department of Human Services, the Department of Corrections[,] or a local correctional facility [or a community mental health and developmental disabilities program] when the transfer is necessary or beneficial to the treatment of [a patient] an individual.

(7) When an action, suit, claim, arbitration or proceeding is brought under ORS 34.105 to 34.240 or 34.310 to 34.730 and involves a claim of constitutionally inadequate medical care, diagnosis or treatment, or is brought under ORS 30.260 to 30.300 and involves the Department of Corrections or an institution operated by the department, nothing in this section prohibits the disclosure [or release] of any written account referred to in subsection (2) of this section to the Department of Justice, Oregon Department of Administrative Services, or their agents, upon request, or the subsequent [release] disclosure to a court, administrative hearings officer, arbitrator or other administrative decision maker.

(8)(a) When an action, suit, claim, arbitration or proceeding involves the Department of Human Services or an institution operated by the department, nothing in this section prohibits the disclosure [or release] of any written account referred to in subsection (2) of this section to the Department of Justice, Oregon Department of Administrative Services, or their agents[, provided:]

[(A) Consent under subsection (3) of this section is requested and obtained; or]

[(B) If no consent under subsection (3) of this section is given, disclosure is made only after notice of the extent or nature of the disclosure has been given to the patient].

(b) Disclosure [or release] of information in an action, suit, claim, nonlabor arbitration or proceeding is limited by the relevancy restrictions of ORS 40.010 to 40.585 and ORS chapter 183. Only written accounts of a plaintiff, claimant or petitioner shall be disclosed [or released] under this paragraph.

(c) Disclosure [or release] of information as part of a labor arbitration or proceeding to support a personnel action taken against staff is limited to written accounts directly relating to alleged action or inaction by staff for which the personnel action was imposed.

(9)(a) The copy of any written account referred to in subsection (2) of this section, upon written request of the [patient, or in the case of incompetence, the legal guardian, shall be released] individual or a personal representative of the individual, shall be disclosed to the [patient] individual or the [guardian] personal representative of the individual within a reasonable time not to exceed five working days. The [patient, or in the case of incompetence, the legal guardian, shall have the right to immediate inspection of any written accounts] individual or the personal representative of the individual shall have the right to timely access to any written accounts.

(b) If the [release] disclosure of psychiatric or psychological information contained in the written account would constitute an immediate and grave detriment to the treatment of the [patient] individual, disclosure may be denied, if medically contraindicated by the [attending] treating physician or a licensed health care professional in the [medical record of the patient] written account of the individual.

(A) The information relates to an individual other than the individual seeking it.

(B) [Release] Disclosure of the information would constitute a danger to another individual.

(d) However, a written statement of the denial under paragraph (c) of this subsection and the reasons therefor [shall] must be entered in the [individual’s record] written account.

(10) A health care services provider may require a person requesting disclosure of the contents of a written account under this section to reimburse the provider for the reasonable costs incurred in searching files, abstracting if requested and copying if requested. However, [a patient shall] an individual or a personal representative of the individual may not be denied access to written accounts concerning the [patient] individual because of inability to pay.

(11) [No] A written account referred to in subsection (2) of this section may not be used to initiate or substantiate any criminal, civil, administrative, legislative or other proceedings conducted by federal, state or local authorities against the [patient] individual or to conduct any investigations of the [patient] individual. If the [patient] individual, as a party to an action, suit or other judicial proceeding, voluntarily produces evidence regarding an issue to which a written account referred to in subsection (2) of this section would be relevant, the contents of that written account may be [released] disclosed for use in the proceeding.

(12) Information obtained in the course of diagnosis, evaluation or treatment of [a patient which] an individual that, in the professional judgment of the health care services provider, indicates a clear and immediate danger to others or to society may be reported to the appropriate authority. A decision not to disclose information under this subsection [shall] does not subject the provider to any civil liability. Nothing in this subsection [shall] may be construed to alter the provisions of ORS 146.750, 146.760, 419B.010, 419B.015, 419B.020, 419B.025, 419B.030, 419B.035, 419B.040 and 419B.045.

(13) The prohibitions of this section [shall] apply to written accounts concerning any individual who has been treated by any health care services provider irrespective of whether or when the individual ceases to receive treatment.

(14) Persons other than the [patient] individual or the personal representative of the individual who are granted access under this section to the contents of a written account referred to in subsection (2) of this section [shall] may not disclose the contents of the written account to any other person except in accordance with the provisions of this section.

(15) Nothing in this section [shall prevent] prevents the Department of Human Services from disclosing the contents of written accounts in its possession to individuals or agencies with whom children in its custody are placed.

(16) The system designated under ORS 192.517 (1) shall have access to records, as defined in ORS 192.515, as provided in ORS 192.517.

(17)(a) Except as provided in paragraph (b) of this subsection, a health care services provider must obtain an authorization from an individual or a personal representative of the individual to disclose psychotherapy notes.

(b) A health care services provider may use or disclose psychotherapy notes without obtaining an authorization from the individual or a personal representative of the individual to carry out the following treatment, payment and health care operations:

(A) Use by the originator of the psychotherapy notes for treatment;

(B) Disclosure by the health care services provider for its own training program in which students, trainees or practitioners in mental health learn under supervision to practice or improve their skills in group, joint, family or individual counseling; or

(C) Disclosure by the health care services provider to defend itself in a legal action or other proceeding brought by the individual or a personal representative of the individual.

(c) An authorization for the disclosure of psychotherapy notes may not be combined with an authorization for a disclosure of any other individually identifiable health information, but may be combined with another authorization for a disclosure of psychotherapy notes.

SECTION 3. ORS 179.507 is amended to read:

179.507. (1) Any [patient or, in the case of incompetence of a patient,] individual, a person appointed as a personal representative under ORS chapter 113 or the legal guardian of the [patient] individual may commence an action for equitable relief in the circuit court for the county in which the [patient] individual resides or in which the written accounts referred to in ORS 179.505 (2) are kept for the purpose of requiring compliance with ORS 179.495 and 179.505. In an action brought under this section, the court shall order payment of reasonable attorney fees at trial and on appeal and actual costs and disbursements to the prevailing party.

(2) Any [patient or, in the case of incompetence of a patient,] individual, a person appointed as a personal representative under ORS chapter 113 or the legal guardian of the [patient] individual may commence an action in the circuit court for the county in which the [patient] individual resides or in which the written accounts referred to in ORS 179.505 (2) are kept for damages for any violation of ORS 179.495 or 179.505 and to restrain future violations. If a violation of ORS 179.495 or 179.505 is proven, the person commencing the action shall recover actual damages or $500, whichever is greater. Upon a showing of an intentional violation of ORS 179.495 or 179.505, the [patient] individual may receive punitive damages. The prevailing party in an action brought under this subsection shall receive reasonable attorney fees at trial and on appeal and costs and disbursements actually incurred.

SECTION 4. (1) The Department of Corrections may disclose individually identifiable health information without obtaining an authorization from an inmate or a personal representative of the inmate if disclosure of the information is necessary for:

(a) The provision of health care to the inmate;

(b) The health and safety of the inmate or other inmates;

(c) The health and safety of the officers or employees of or others at the Department of Corrections institution as defined in ORS 421.005 where the inmate is incarcerated;

(d) The health and safety of the inmate or officers or other persons responsible for transporting or transferring inmates from one setting to another;

(e) Law enforcement purposes on the premises of the correctional institution; or

(f) The administration and maintenance of the safety, security and good order of the correctional institution.

(2) As used in this section, “disclosure,” “individually identifiable health information” and “personal representative” have the meanings given those terms in ORS 179.505.

SECTION 5. This 2003 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2003 Act takes effect on its passage.

Approved by the Governor May 24, 2003

Filed in the office of Secretary of State May 27, 2003

Effective date May 24, 2003

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