Be it enacted by the General Assembly of Virginia:
1. That §§8.01-413, 32.1-127.1:03, and 54.1-111 of the Code of Virginia are amended and reenacted as follows:
§8.01-413. Certain copies of health care provider's records or papers of patient admissible; right of patient, his attorney, and authorized insurer to copies of such records or papers; subpoena; damages, costs, and attorney fees.
A. In any case where the hospital, nursing facility,
physician's, or other health care provider's original records or papers of any
patient in a hospital or institution for the treatment of physical or mental
illness are admissible or would be admissible as evidence, any typewritten
copy, photograph, photostatted copy, or microphotograph or printout or other
hard copy generated from computerized or other electronic storage, microfilm,
or other photographic, mechanical, electronic,
or chemical storage process thereof shall be admissible as evidence in any
court of this the
Commonwealth in like manner as the original, if the printout or hard copy or
microphotograph or photograph is properly authenticated by the employees having
authority to release or produce the original records.
Any hospital, nursing facility, physician, or other health care provider whose records or papers relating to any such patient are subpoenaed for production as provided by law may comply with the subpoena by a timely mailing to the clerk issuing the subpoena or in whose court the action is pending properly authenticated copies, photographs, or microphotographs in lieu of the originals. The court whose clerk issued the subpoena or, in the case of an attorney-issued subpoena, in which the action is pending, may, after notice to such hospital, nursing facility, physician, or other health care provider, enter an order requiring production of the originals, if available, of any stored records or papers whose copies, photographs, or microphotographs are not sufficiently legible.
Except as provided in
subsection G, the The party
requesting the subpoena duces tecum or on whose behalf an attorney-issued
subpoena duces tecum was issued shall be liable for the reasonable charges of
the hospital, nursing facility, physician, or other health care provider for
the service of maintaining, retrieving, reviewing, preparing, copying, and mailing transmitting the items
produced. The
health care provider shall produce the items in either hard copy or electronic
format, as requested by the party. If such party does
not specify the format by which the items
are to be produced, such items shall be produced in electronic
format. If the
health care provider does not maintain medical records in an electronic
format, then the health care provider shall supply hard copies of the requested
records, and the charges for production of electronic medical
records shall apply. Except
for copies of X-ray photographs or pathology
specimens, however, such charges shall not exceed (i) $0.50
for each page up to 50 pages and $0.25 a page thereafter for hard copies from paper or other
hard copy generated from computerized or other electronic storage, or other
photographic, mechanical, electronic, imaging,
or chemical storage process and $1 per page for hard
copies from microfilm or other micrographic process, plus
all postage and shipping costs and a search and handling fee not to exceed $10 and (ii) $200
total, or $0.05 per
page, whichever is less, and no other charges, for copies produced in electronic
format. If the subpoenaed
items are not produced as required by a properly issued subpoena, the court may
award to the subpoenaing party damages in an amount not to exceed $100 for each
day that such health care provider fails to comply, in addition to reasonable
attorney fees and costs.
Upon request, a patient's account balance or itemized listing
of charges maintained by a health care provider shall be supplied in hard copy or electronic
format, whichever is requested, at no cost up to three
times every twelve 12
months to either the patient or the patient's attorney.
B. Copies of hospital, nursing facility, physician's, or other health care provider's records, X-ray photographs, pathology specimens, or papers shall be furnished within 15 days of receipt of such request to the patient, his attorney, his executor or administrator, his guardian or committee, his parent if he is a minor, or an authorized insurer upon such patient's, attorney's, executor's, administrator's, guardian's, committee's, parent's, or authorized insurer's written request, which request shall comply with the requirements of subsection E of §32.1-127.1:03, or as required by a subpoena from such a party. The health care provider shall produce the items in either hard copy or electronic format, as requested by the party. If the request does not specify the format by which the items are to be produced, such items shall be produced in electronic format. If the health care provider does not maintain medical records in an electronic format, then the health care provider shall supply hard copies of the requested records, and the charges for production of electronic medical records shall apply. If a health care provider fails to comply with a request within 15 days of receipt or timely comply with a properly issued subpoena, the court may award to the requesting or subpoenaing party damages in an amount not to exceed $100 for each day that such health care provider fails to comply, in addition to reasonable attorney fees and costs. Where such a request is made by the patient, his attorney, his executor or administrator, his guardian or committee, his parent if he is a minor, or an authorized insurer, no other charges shall be assessed except those provided by this subsection.
However, copies of a patient's records shall not be furnished to such patient when the patient's treating physician or clinical psychologist, in the exercise of professional judgment, has made a part of the patient's records a written statement that in his opinion the furnishing to or review by the patient of such records would be reasonably likely to endanger the life or physical safety of the patient or another person, or that such health records make reference to a person, other than a health care provider, and the access requested would be reasonably likely to cause substantial harm to such referenced person. In any such case, if requested by the patient or his attorney or authorized insurer, such records shall be furnished within 15 days of the date of such request to the patient's attorney or authorized insurer, rather than to the patient.
If the records are not provided to the patient in accordance with this section, then, if requested by the patient, the hospital, nursing facility, physician, or other health care provider denying the request shall comply with the patient's request to either (i) provide a copy of the records to a physician or clinical psychologist of the patient's choice whose licensure, training, and experience, relative to the patient's condition, are at least equivalent to that of the treating physician or clinical psychologist upon whose opinion the denial is based, who shall, at the patient's expense, make a judgment as to whether to make the records available to the patient or (ii) designate a physician or clinical psychologist, whose licensure, training, and experience, relative to the patient's condition, are at least equivalent to that of the treating physician or clinical psychologist upon whose opinion the denial is based and who did not participate in the original decision to deny the patient's request for his records, who shall, at the expense of the provider denying access to the patient, review the records and make a judgment as to whether to make the records available to the patient. In either such event, the hospital, nursing facility, physician, or other health care provider denying the request shall comply with the judgment of the reviewing physician or clinical psychologist.
Except as provided in
subsection G, a A reasonable
charge may be made by the hospital, nursing facility, physician, or other health care provider
maintaining the records,
X-ray photographs, or pathology
specimens for the cost of the services relating to the
maintenance, retrieval, review, and preparation of the copies
of the records items
produced. Except for copies of X-ray photographs and pathology specimens,
however, such charges shall not exceed (a) $0.50
per page for up to 50 pages and $0.25 a page thereafter for hard copies from paper or other
hard copy generated from computerized or other electronic storage, or other
photographic, mechanical, electronic, imaging,
or chemical storage process and $1 per page for hard
copies from microfilm or other micrographic process, a fee
for search and handling, not to exceed $10, and all postage and shipping costs and (b)
$100 total, or $0.02 per
page, whichever is less, and no other charges, for copies produced in
electronic format. The
charges outlined in this subsection are the only charges that may be made in
response to requests made or subpoenas issued by the patient, his attorney, his
executor or administrator, his
guardian or committee, his parent if
he is a minor, or an authorized
insurer. Any hospital, nursing facility, physician, or
other health care provider receiving such a request from a patient's attorney
or authorized insurer shall require a writing signed by the patient confirming
the attorney's or authorized insurer's authority to make the request and shall
accept a photocopy, facsimile, or other copy of the original signed by the
patient as if it were an original.
Upon request, a patient's account balance or itemized listing
of charges maintained by a health care provider shall be supplied in hard copy or electronic format, whichever is
requested, at no cost up to three times every twelve 12
months to either the patient or the patient's attorney.
C. Upon the failure of any hospital, nursing facility,
physician, or other health care provider to comply with any written request
made in accordance with subsection B within the period of time specified in
that subsection and within the manner specified in subsections E and F of §
32.1-127.1:03, the patient, his attorney, his executor or administrator, his guardian or committee, his parent if the
patient is a minor, or authorized insurer may cause a subpoena
duces tecum to be issued. The subpoena may be issued (i) upon filing a request
therefor with the clerk of the circuit court wherein any eventual suit would be
required to be filed, and upon payment of the fees required by subdivision A 18
of §17.1-275, and fees for service or (ii) by the patient's attorney in a
pending civil case in accordance with §8.01-407 without payment of the fees
established in subdivision A 23 of §17.1-275. A sheriff shall not be required
to serve an attorney-issued subpoena that is not issued at least five business
days prior to the date production of the record is desired. The subpoena shall
be returnable within 20 days of proper service, directing the hospital, nursing
facility, physician, or other health care provider to produce and furnish
copies of the reports and papers to the clerk who shall then make the same
available to the patient, his attorney or authorized insurer. If the court finds
that a hospital, nursing facility, physician, or other health care provider willfully
refused to comply with a written request made in accordance with subsection B,
either by willfully or arbitrarily refusing or by imposing a charge in excess
of the reasonable expense of making the copies and processing the request for
records, the court may award damages for all expenses incurred by the patient
or authorized insurer to obtain such copies, including court costs and
reasonable attorney's fees. The
charges provided in subsection B shall
apply to items produced in response to such a subpoena. If the subpoenaed items
are not produced as required by a properly issued subpoena, the court may award
to the subpoenaing party damages in the amount not to exceed $100 for each day
that such health care provider fails to comply, in addition to reasonable
attorney fees and costs.
D. The provisions of subsections A, B, and C
E. F. Notwithstanding the authorization to admit as evidence
patient records in the form of microphotographs, prescription dispensing
records maintained in or on behalf of any pharmacy registered or permitted in §32.1-127.1:03. Health records privacy. A. There is hereby recognized an individual's right of privacy
in the content of his health records. Health records are the property of the
health care entity maintaining them, and, except when permitted or required by
this section or by other provisions of state law, no health care entity, or
other person working in a health care setting, may disclose an individual's
health records. Pursuant to this subsection: 1. Health care entities shall disclose health records to the
individual who is the subject of the health record, except as provided in
subsections E and F and subsection B of §8.01-413. 2. Health records shall not be removed from the premises where
they are maintained without the approval of the health care entity that
maintains such health records, except in accordance with a court order or
subpoena consistent with subsection C of §8.01-413 or with this section or in
accordance with the regulations relating to change of ownership of health
records promulgated by a health regulatory board established in Title 54.1. 3. No person to whom health records are disclosed shall
redisclose or otherwise reveal the health records of an individual, beyond the
purpose for which such disclosure was made, without first obtaining the
individual's specific authorization to such redisclosure. This redisclosure
prohibition shall not, however, prevent (i) any health care entity that
receives health records from another health care entity from making subsequent
disclosures as permitted under this section and the federal Department of
Health and Human Services regulations relating to privacy of the electronic
transmission of data and protected health information promulgated by the United
States Department of Health and Human Services as required by the Health
Insurance Portability and Accountability Act (HIPAA) (42 U.S.C. §1320d et
seq.) or (ii) any health care entity from furnishing health records and
aggregate or other data, from which individually identifying prescription information
has been removed, encoded or encrypted, to qualified researchers, including,
but not limited to, pharmaceutical manufacturers and their agents or
contractors, for purposes of clinical, pharmaco-epidemiological,
pharmaco-economic, or other health services research. 4. Health care entities shall, upon the request of the
individual who is the subject of the health record, disclose health records to
other health care entities, in any available format of the requestor's
choosing, as provided in subsection E. B. As used in this section: "Agent" means a person who has been appointed as an
individual's agent under a power of attorney for health care or an advance
directive under the Health Care Decisions Act (§54.1-2981 et seq.). "Certification" means a written representation that
is delivered by hand, by first-class mail, by overnight delivery service, or by
facsimile if the sender obtains a facsimile-machine-generated confirmation
reflecting that all facsimile pages were successfully transmitted. "Guardian" means a court-appointed guardian of the
person. "Health care clearinghouse" means, consistent with
the definition set out in 45 C.F.R. §160.103, a public or private entity, such
as a billing service, repricing company, community health management
information system or community health information system, and
"value-added" networks and switches, that performs either of the
following functions: (i) processes or facilitates the processing of health
information received from another entity in a nonstandard format or containing
nonstandard data content into standard data elements or a standard transaction;
or (ii) receives a standard transaction from another entity and processes or
facilitates the processing of health information into nonstandard format or
nonstandard data content for the receiving entity. "Health care entity" means any health care provider,
health plan or health care clearinghouse. "Health care provider" means those entities listed
in the definition of "health care provider" in §8.01-581.1, except
that state-operated facilities shall also be considered health care providers
for the purposes of this section. Health care provider shall also include all
persons who are licensed, certified, registered or permitted or who hold a
multistate licensure privilege issued by any of the health regulatory boards
within the Department of Health Professions, except persons regulated by the
Board of Funeral Directors and Embalmers or the Board of Veterinary Medicine. "Health plan" means an individual or group plan that
provides, or pays the cost of, medical care. "Health plan" shall
include any entity included in such definition as set out in 45 C.F.R. §
160.103. "Health record" means any written, printed or
electronically recorded material maintained by a health care entity in the
course of providing health services to an individual concerning the individual
and the services provided. "Health record" also includes the
substance of any communication made by an individual to a health care entity in
confidence during or in connection with the provision of health services or
information otherwise acquired by the health care entity about an individual in
confidence and in connection with the provision of health services to the
individual. "Health services" means, but shall not be limited
to, examination, diagnosis, evaluation, treatment, pharmaceuticals, aftercare,
habilitation or rehabilitation and mental health therapy of any kind, as well
as payment or reimbursement for any such services. "Individual" means a patient who is receiving or has
received health services from a health care entity. "Individually identifying prescription information"
means all prescriptions, drug orders or any other prescription information that
specifically identifies an individual. "Parent" means a biological, adoptive or foster
parent. "Psychotherapy notes" means comments, recorded in
any medium by a health care provider who is a mental health professional,
documenting or analyzing the contents of conversation during a private
counseling session with an individual or a group, joint, or family counseling
session that are separated from the rest of the individual's health record.
"Psychotherapy notes" shall not include annotations relating to
medication and prescription monitoring, counseling session start and stop
times, treatment modalities and frequencies, clinical test results, or any
summary of any symptoms, diagnosis, prognosis, functional status, treatment
plan, or the individual's progress to date. C. The provisions of this section shall not apply to any of
the following: 1. The status of and release of information governed by §§
65.2-604 and 65.2-607 of the Virginia Workers' Compensation Act; 2. Except where specifically provided herein, the health
records of minors; or 3. The release of juvenile health records to a secure facility
or a shelter care facility pursuant to §16.1-248.3. D. Health care entities may, and, when required by other
provisions of state law, shall, disclose health records: 1. As set forth in subsection E, pursuant to the written
authorization of (i) the individual or (ii) in the case of a minor, (a) his
custodial parent, guardian or other person authorized to consent to treatment
of minors pursuant to §54.1-2969 or (b) the minor himself, if he has consented
to his own treatment pursuant to §54.1-2969, or (iii) in emergency cases or
situations where it is impractical to obtain an individual's written
authorization, pursuant to the individual's oral authorization for a health
care provider or health plan to discuss the individual's health records with a
third party specified by the individual; 2. In compliance with a subpoena issued in accord with
subsection H, pursuant to a search warrant or a grand jury subpoena, pursuant
to court order upon good cause shown or in compliance with a subpoena issued
pursuant to subsection C of §8.01-413. Regardless of the manner by which
health records relating to an individual are compelled to be disclosed pursuant
to this subdivision, nothing in this subdivision shall be construed to prohibit
any staff or employee of a health care entity from providing information about
such individual to a law-enforcement officer in connection with such subpoena,
search warrant, or court order; 3. In accord with subsection F of §8.01-399 including, but
not limited to, situations where disclosure is reasonably necessary to
establish or collect a fee or to defend a health care entity or the health care
entity's employees or staff against any accusation of wrongful conduct; also as
required in the course of an investigation, audit, review or proceedings
regarding a health care entity's conduct by a duly authorized law-enforcement,
licensure, accreditation, or professional review entity; 4. In testimony in accordance with §§8.01-399 and 8.01-400.2; 5. In compliance with the provisions of §8.01-413; 6. As required or authorized by law relating to public health
activities, health oversight activities, serious threats to health or safety,
or abuse, neglect or domestic violence, relating to contagious disease, public
safety, and suspected child or adult abuse reporting requirements, including,
but not limited to, those contained in §§32.1-36, 32.1-36.1, 32.1-40, 32.1-41,
32.1-127.1:04, 32.1-276.5, 32.1-283, 32.1-283.1, 32.1-320, 37.2-710, 37.2-839,
53.1-40.10, 54.1-2400.6, 54.1-2400.7, 54.1-2403.3, 54.1-2506, 54.1-2966,
54.1-2966.1, 54.1-2967, 54.1-2968, 54.1-3408.2, 63.2-1509, and 63.2-1606; 7. Where necessary in connection with the care of the
individual; 8. In connection with the health care entity's own health care
operations or the health care operations of another health care entity, as
specified in 45 C.F.R. §164.501, or in the normal course of business in
accordance with accepted standards of practice within the health services
setting; however, the maintenance, storage, and disclosure of the mass of
prescription dispensing records maintained in a pharmacy registered or
permitted in Virginia shall only be accomplished in compliance with §§
54.1-3410, 54.1-3411, and 54.1-3412; 9. When the individual has waived his right to the privacy of
the health records; 10. When examination and evaluation of an individual are
undertaken pursuant to judicial or administrative law order, but only to the
extent as required by such order; 11. To the guardian ad litem and any attorney representing the
respondent in the course of a guardianship proceeding of an adult patient who
is the respondent in a proceeding under Chapter 20 (§64.2-2000 et seq.) of
Title 64.2; 12. To the guardian ad litem and any attorney appointed by the
court to represent an individual who is or has been a patient who is the
subject of a commitment proceeding under §19.2-169.6, Article 5 (§37.2-814 et
seq.) of Chapter 8 of Title 37.2, Article 16 (§16.1-335 et seq.) of Chapter 11
of Title 16.1, or a judicial authorization for treatment proceeding pursuant to
Chapter 11 (§37.2-1100 et seq.) of Title 37.2; 13. To a magistrate, the court, the evaluator or examiner
required under Article 16 (§16.1-335 et seq.) of Chapter 11 of Title 16.1 or §
37.2-815, a community services board or behavioral health authority or a
designee of a community services board or behavioral health authority, or a
law-enforcement officer participating in any proceeding under Article 16 (§
16.1-335 et seq.) of Chapter 11 of Title 16.1, §19.2-169.6, or Chapter 8 (§
37.2-800 et seq.) of Title 37.2 regarding the subject of the proceeding, and to
any health care provider evaluating or providing services to the person who is
the subject of the proceeding or monitoring the person's adherence to a
treatment plan ordered under those provisions. Health records disclosed to a
law-enforcement officer shall be limited to information necessary to protect
the officer, the person, or the public from physical injury or to address the
health care needs of the person. Information disclosed to a law-enforcement
officer shall not be used for any other purpose, disclosed to others, or
retained; 14. To the attorney and/or guardian ad litem of a minor who
represents such minor in any judicial or administrative proceeding, if the
court or administrative hearing officer has entered an order granting the
attorney or guardian ad litem this right and such attorney or guardian ad litem
presents evidence to the health care entity of such order; 15. With regard to the Court-Appointed Special Advocate (CASA)
program, a minor's health records in accord with §9.1-156; 16. To an agent appointed under an individual's power of
attorney or to an agent or decision maker designated in an individual's advance
directive for health care or for decisions on anatomical gifts and organ,
tissue or eye donation or to any other person consistent with the provisions of
the Health Care Decisions Act (§54.1-2981 et seq.); 17. To third-party payors and their agents for purposes of
reimbursement; 18. As is necessary to support an application for receipt of
health care benefits from a governmental agency or as required by an authorized
governmental agency reviewing such application or reviewing benefits already
provided or as necessary to the coordination of prevention and control of
disease, injury, or disability and delivery of such health care benefits
pursuant to §32.1-127.1:04; 19. Upon the sale of a medical practice as provided in §
54.1-2405; or upon a change of ownership or closing of a pharmacy pursuant to
regulations of the Board of Pharmacy; 20. In accord with subsection B of §54.1-2400.1, to
communicate an individual's specific and immediate threat to cause serious bodily
injury or death of an identified or readily identifiable person; 21. Where necessary in connection with the implementation of a
hospital's routine contact process for organ donation pursuant to subdivision B
4 of §32.1-127; 22. In the case of substance abuse records, when permitted by
and in conformity with requirements of federal law found in 42 U.S.C. §290dd-2
and 42 C.F.R. Part 2; 23. In connection with the work of any entity established as
set forth in §8.01-581.16 to evaluate the adequacy or quality of professional
services or the competency and qualifications for professional staff
privileges; 24. If the health records are those of a deceased or mentally
incapacitated individual to the personal representative or executor of the
deceased individual or the legal guardian or committee of the incompetent or
incapacitated individual or if there is no personal representative, executor,
legal guardian or committee appointed, to the following persons in the
following order of priority: a spouse, an adult son or daughter, either parent,
an adult brother or sister, or any other relative of the deceased individual in
order of blood relationship; 25. For the purpose of conducting record reviews of inpatient
hospital deaths to promote identification of all potential organ, eye, and
tissue donors in conformance with the requirements of applicable federal law
and regulations, including 42 C.F.R. §482.45, (i) to the health care
provider's designated organ procurement organization certified by the United
States Health Care Financing Administration and (ii) to any eye bank or tissue
bank in Virginia certified by the Eye Bank Association of America or the
American Association of Tissue Banks; 26. To the Office of the State Inspector General pursuant to
Chapter 3.2 (§2.2-307 et seq.) of Title 2.2; 27. To an entity participating in the activities of a local
health partnership authority established pursuant to Article 6.1 (§
32.1-122.10:001 et seq.) of Chapter 4, pursuant to subdivision 1; 28. To law-enforcement officials by each licensed emergency
medical services agency, (i) when the individual is the victim of a crime or
(ii) when the individual has been arrested and has received emergency medical
services or has refused emergency medical services and the health records
consist of the prehospital patient care report required by §32.1-116.1; 29. To law-enforcement officials, in response to their
request, for the purpose of identifying or locating a suspect, fugitive, person
required to register pursuant to §9.1-901 of the Sex Offender and Crimes
Against Minors Registry Act, material witness, or missing person, provided that
only the following information may be disclosed: (i) name and address of the
person, (ii) date and place of birth of the person, (iii) social security
number of the person, (iv) blood type of the person, (v) date and time of
treatment received by the person, (vi) date and time of death of the person,
where applicable, (vii) description of distinguishing physical characteristics
of the person, and (viii) type of injury sustained by the person; 30. To law-enforcement officials regarding the death of an
individual for the purpose of alerting law enforcement of the death if the
health care entity has a suspicion that such death may have resulted from criminal
conduct; 31. To law-enforcement officials if the health care entity
believes in good faith that the information disclosed constitutes evidence of a
crime that occurred on its premises; 32. To the State Health Commissioner pursuant to §32.1-48.015
when such records are those of a person or persons who are subject to an order
of quarantine or an order of isolation pursuant to Article 3.02 (§32.1-48.05
et seq.) of Chapter 2; 33. To the Commissioner of the Department of Labor and
Industry or his designee by each licensed emergency medical services agency
when the records consist of the prehospital patient care report required by §
32.1-116.1 and the patient has suffered an injury or death on a work site while
performing duties or tasks that are within the scope of his employment; 34. To notify a family member or personal representative of an
individual who is the subject of a proceeding pursuant to Article 16 (§
16.1-335 et seq.) of Chapter 11 of Title 16.1 or Chapter 8 (§37.2-800 et seq.)
of Title 37.2 of information that is directly relevant to such person's
involvement with the individual's health care, which may include the
individual's location and general condition, when the individual has the
capacity to make health care decisions and (i) the individual has agreed to the
notification, (ii) the individual has been provided an opportunity to object to
the notification and does not express an objection, or (iii) the health care
provider can, on the basis of his professional judgment, reasonably infer from
the circumstances that the individual does not object to the notification. If
the opportunity to agree or object to the notification cannot practicably be
provided because of the individual's incapacity or an emergency circumstance,
the health care provider may notify a family member or personal representative
of the individual of information that is directly relevant to such person's
involvement with the individual's health care, which may include the
individual's location and general condition if the health care provider, in the
exercise of his professional judgment, determines that the notification is in
the best interests of the individual. Such notification shall not be made if
the provider has actual knowledge the family member or personal representative
is currently prohibited by court order from contacting the individual; 35. To a threat assessment team established by a public
institution of higher education pursuant to §23-9.2:10 or by a private
nonprofit institution of higher education when such records concern a student
at the institution of higher education, including a student who is a minor; and 36. To a regional emergency medical services council pursuant
to §32.1-116.1, for purposes limited to monitoring and improving the quality
of emergency medical services pursuant to §32.1-111.3. Notwithstanding the provisions of subdivisions 1 through 35, a
health care entity shall obtain an individual's written authorization for any
disclosure of psychotherapy notes, except when disclosure by the health care
entity is (i) for its own training programs in which students, trainees, or
practitioners in mental health are being taught under supervision to practice
or to improve their skills in group, joint, family, or individual counseling;
(ii) to defend itself or its employees or staff against any accusation of
wrongful conduct; (iii) in the discharge of the duty, in accordance with
subsection B of §54.1-2400.1, to take precautions to protect third parties
from violent behavior or other serious harm; (iv) required in the course of an
investigation, audit, review, or proceeding regarding a health care entity's
conduct by a duly authorized law-enforcement, licensure, accreditation, or
professional review entity; or (v) otherwise required by law. E. Health care records required to be disclosed pursuant to
this section shall be made available electronically only to the extent and in
the manner authorized by the federal Health Information Technology for Economic
and Clinical Health Act (P.L. 111-5) and implementing regulations and the
Health Insurance Portability and Accountability Act (42 U.S.C. §1320d et seq.)
and implementing regulations. Notwithstanding any other provision to the
contrary, a health care entity shall not be required to provide records in an
electronic format requested if (i) the electronic format is not reasonably
available without additional cost to the health care entity, (ii) the records
would be subject to modification in the format requested, or (iii) the health
care entity determines that the integrity of the records could be compromised
in the electronic format requested. Requests for copies of or electronic access
to health records shall (a) be in writing, dated and signed by the requester;
(b) identify the nature of the information requested; and (c) include evidence
of the authority of the requester to receive such copies or access such
records, and identification of the person to whom the information is to be
disclosed; and (d) specify whether the requester would like the records in
electronic format, if available, or in paper format. The health care entity
shall accept a photocopy, facsimile, or other copy of the original signed by
the requestor as if it were an original. Within 15 days of receipt of a request
for copies of or electronic access to health records, the health care entity
shall do one of the following: (A) furnish such copies of or allow electronic
access to the requested health records to any requester authorized to receive
them in electronic format if so requested; (B) inform the requester if the
information does not exist or cannot be found; (C) if the health care entity
does not maintain a record of the information, so inform the requester and
provide the name and address, if known, of the health care entity who maintains
the record; or (D) deny the request (1) under subsection F, (2) on the grounds
that the requester has not established his authority to receive such health
records or proof of his identity, or (3) as other provided by law. Procedures
set forth in this section shall apply only to requests for health records not
specifically governed by other provisions of state law. F. Except as provided in subsection B of §8.01-413, copies of
or electronic access to an individual's health records shall not be furnished
to such individual or anyone authorized to act on the individual's behalf when
the individual's treating physician or the individual's treating clinical
psychologist has made a part of the individual's record a written statement
that, in the exercise of his professional judgment, the furnishing to or review
by the individual of such health records would be reasonably likely to endanger
the life or physical safety of the individual or another person, or that such
health record makes reference to a person other than a health care provider and
the access requested would be reasonably likely to cause substantial harm to
such referenced person. If any health care entity denies a request for copies
of or electronic access to health records based on such statement, the health
care entity shall inform the individual of the individual's right to designate,
in writing, at his own expense, another reviewing physician or clinical
psychologist, whose licensure, training and experience relative to the
individual's condition are at least equivalent to that of the physician or
clinical psychologist upon whose opinion the denial is based. The designated
reviewing physician or clinical psychologist shall make a judgment as to
whether to make the health record available to the individual. The health care entity denying the request shall also inform
the individual of the individual's right to request in writing that such health
care entity designate, at its own expense, a physician or clinical
psychologist, whose licensure, training, and experience relative to the
individual's condition are at least equivalent to that of the physician or
clinical psychologist upon whose professional judgment the denial is based and
who did not participate in the original decision to deny the health records,
who shall make a judgment as to whether to make the health record available to
the individual. The health care entity shall comply with the judgment of the
reviewing physician or clinical psychologist. The health care entity shall
permit copying and examination of the health record by such other physician or
clinical psychologist designated by either the individual at his own expense or
by the health care entity at its expense. Any health record copied for review by any such designated physician
or clinical psychologist shall be accompanied by a statement from the custodian
of the health record that the individual's treating physician or clinical
psychologist determined that the individual's review of his health record would
be reasonably likely to endanger the life or physical safety of the individual
or would be reasonably likely to cause substantial harm to a person referenced
in the health record who is not a health care provider. Further, nothing herein shall be construed as giving, or
interpreted to bestow the right to receive copies of, or otherwise obtain
access to, psychotherapy notes to any individual or any person authorized to
act on his behalf. G. A written authorization to allow release of an individual's
health records shall substantially include the following information: AUTHORIZATION TO RELEASE CONFIDENTIAL HEALTH RECORDS Individual's Name ________________________________________ Health Care Entity's Name _______________________________ Person, Agency, or Health Care Entity to whom disclosure is to
be made _______________________________________________________________ Information or Health Records to be disclosed _______________________________________________________________ Purpose of Disclosure or at the Request of the Individual _______________________________________________________________ As the person signing this authorization, I understand that I
am giving my permission to the above-named health care entity for disclosure of
confidential health records. I understand that the health care entity may not
condition treatment or payment on my willingness to sign this authorization
unless the specific circumstances under which such conditioning is permitted by
law are applicable and are set forth in this authorization. I also understand
that I have the right to revoke this authorization at any time, but that my
revocation is not effective until delivered in writing to the person who is in
possession of my health records and is not effective as to health records
already disclosed under this authorization. A copy of this authorization and a
notation concerning the persons or agencies to whom disclosure was made shall
be included with my original health records. I understand that health
information disclosed under this authorization might be redisclosed by a
recipient and may, as a result of such disclosure, no longer be protected to
the same extent as such health information was protected by law while solely in
the possession of the health care entity. This authorization expires on (date) or (event)
___________________________ Signature of Individual or Individual's Legal Representative
if Individual is Unable to Sign _______________________________________________________________ Relationship or Authority of Legal Representative _______________________________________________________________ Date of Signature ________________________________________ H. Pursuant to this subsection: 1. Unless excepted from these provisions in subdivision 9, no
party to a civil, criminal or administrative action or proceeding shall request
the issuance of a subpoena duces tecum for another party's health records or
cause a subpoena duces tecum to be issued by an attorney unless a copy of the
request for the subpoena or a copy of the attorney-issued subpoena is provided
to the other party's counsel or to the other party if pro se, simultaneously
with filing the request or issuance of the subpoena. No party to an action or
proceeding shall request or cause the issuance of a subpoena duces tecum for the
health records of a nonparty witness unless a copy of the request for the
subpoena or a copy of the attorney-issued subpoena is provided to the nonparty
witness simultaneously with filing the request or issuance of the
attorney-issued subpoena. No subpoena duces tecum for health records shall set a return
date earlier than 15 days from the date of the subpoena except by order of a
court or administrative agency for good cause shown. When a court or
administrative agency directs that health records be disclosed pursuant to a
subpoena duces tecum earlier than 15 days from the date of the subpoena, a copy
of the order shall accompany the subpoena. Any party requesting a subpoena duces tecum for health records
or on whose behalf the subpoena duces tecum is being issued shall have the duty
to determine whether the individual whose health records are being sought is
pro se or a nonparty. In instances where health records being subpoenaed are those
of a pro se party or nonparty witness, the party requesting or issuing the
subpoena shall deliver to the pro se party or nonparty witness together with
the copy of the request for subpoena, or a copy of the subpoena in the case of
an attorney-issued subpoena, a statement informing them of their rights and
remedies. The statement shall include the following language and the heading
shall be in boldface capital letters: NOTICE TO INDIVIDUAL The attached document means that (insert name of party
requesting or causing issuance of the subpoena) has either asked the court or administrative
agency to issue a subpoena or a subpoena has been issued by the other party's
attorney to your doctor, other health care providers (names of health care
providers inserted here) or other health care entity (name of health care
entity to be inserted here) requiring them to produce your health records. Your
doctor, other health care provider or other health care entity is required to
respond by providing a copy of your health records. If you believe your health
records should not be disclosed and object to their disclosure, you have the
right to file a motion with the clerk of the court or the administrative agency
to quash the subpoena. If you elect to file a motion to quash, such motion must
be filed within 15 days of the date of the request or of the attorney-issued
subpoena. You may contact the clerk's office or the administrative agency to
determine the requirements that must be satisfied when filing a motion to quash
and you may elect to contact an attorney to represent your interest. If you
elect to file a motion to quash, you must notify your doctor, other health care
provider(s), or other health care entity, that you are filing the motion so
that the health care provider or health care entity knows to send the health
records to the clerk of court or administrative agency in a sealed envelope or
package for safekeeping while your motion is decided. 2. Any party filing a request for a subpoena duces tecum or
causing such a subpoena to be issued for an individual's health records shall
include a Notice in the same part of the request in which the recipient of the
subpoena duces tecum is directed where and when to return the health records.
Such notice shall be in boldface capital letters and shall include the
following language: NOTICE TO HEALTH CARE ENTITIES A COPY OF THIS SUBPOENA DUCES TECUM HAS BEEN PROVIDED TO THE
INDIVIDUAL WHOSE HEALTH RECORDS ARE BEING REQUESTED OR HIS COUNSEL. YOU OR THAT
INDIVIDUAL HAS THE RIGHT TO FILE A MOTION TO QUASH (OBJECT TO) THE ATTACHED
SUBPOENA. IF YOU ELECT TO FILE A MOTION TO QUASH, YOU MUST FILE THE MOTION
WITHIN 15 DAYS OF THE DATE OF THIS SUBPOENA. YOU MUST NOT RESPOND TO THIS SUBPOENA UNTIL YOU HAVE RECEIVED
WRITTEN CERTIFICATION FROM THE PARTY ON WHOSE BEHALF THE SUBPOENA WAS ISSUED THAT
THE TIME FOR FILING A MOTION TO QUASH HAS ELAPSED AND THAT: NO MOTION TO QUASH WAS FILED; OR ANY MOTION TO QUASH HAS BEEN RESOLVED BY THE COURT OR THE
ADMINISTRATIVE AGENCY AND THE DISCLOSURES SOUGHT ARE CONSISTENT WITH SUCH
RESOLUTION. IF YOU RECEIVE NOTICE THAT THE INDIVIDUAL WHOSE HEALTH RECORDS
ARE BEING REQUESTED HAS FILED A MOTION TO QUASH THIS SUBPOENA, OR IF YOU FILE A
MOTION TO QUASH THIS SUBPOENA, YOU MUST SEND THE HEALTH RECORDS ONLY TO THE
CLERK OF THE COURT OR ADMINISTRATIVE AGENCY THAT ISSUED THE SUBPOENA OR IN
WHICH THE ACTION IS PENDING AS SHOWN ON THE SUBPOENA USING THE FOLLOWING
PROCEDURE: PLACE THE HEALTH RECORDS IN A SEALED ENVELOPE AND ATTACH TO
THE SEALED ENVELOPE A COVER LETTER TO THE CLERK OF COURT OR ADMINISTRATIVE
AGENCY WHICH STATES THAT CONFIDENTIAL HEALTH RECORDS ARE ENCLOSED AND ARE TO BE
HELD UNDER SEAL PENDING A RULING ON THE MOTION TO QUASH THE SUBPOENA. THE
SEALED ENVELOPE AND THE COVER LETTER SHALL BE PLACED IN AN OUTER ENVELOPE OR
PACKAGE FOR TRANSMITTAL TO THE COURT OR ADMINISTRATIVE AGENCY. 3. Upon receiving a valid subpoena duces tecum for health
records, health care entities shall have the duty to respond to the subpoena in
accordance with the provisions of subdivisions 4, 5, 6, 7, and 8. 4. Except to deliver to a clerk of the court or administrative
agency subpoenaed health records in a sealed envelope as set forth, health care
entities shall not respond to a subpoena duces tecum for such health records
until they have received a certification as set forth in subdivision 5 or 8
from the party on whose behalf the subpoena duces tecum was issued. If the health care entity has actual receipt of notice that a
motion to quash the subpoena has been filed or if the health care entity files
a motion to quash the subpoena for health records, then the health care entity
shall produce the health records, in a securely sealed envelope, to the clerk
of the court or administrative agency issuing the subpoena or in whose court or
administrative agency the action is pending. The court or administrative agency
shall place the health records under seal until a determination is made
regarding the motion to quash. The securely sealed envelope shall only be
opened on order of the judge or administrative agency. In the event the court
or administrative agency grants the motion to quash, the health records shall
be returned to the health care entity in the same sealed envelope in which they
were delivered to the court or administrative agency. In the event that a judge
or administrative agency orders the sealed envelope to be opened to review the
health records in camera, a copy of the order shall accompany any health
records returned to the health care entity. The health records returned to the
health care entity shall be in a securely sealed envelope. 5. If no motion to quash is filed within 15 days of the date
of the request or of the attorney-issued subpoena, the party on whose behalf
the subpoena was issued shall have the duty to certify to the subpoenaed health
care entity that the time for filing a motion to quash has elapsed and that no
motion to quash was filed. Any health care entity receiving such certification
shall have the duty to comply with the subpoena duces tecum by returning the
specified health records by either the return date on the subpoena or five days
after receipt of the certification, whichever is later. 6. In the event that the individual whose health records are
being sought files a motion to quash the subpoena, the court or administrative
agency shall decide whether good cause has been shown by the discovering party
to compel disclosure of the individual's health records over the individual's
objections. In determining whether good cause has been shown, the court or
administrative agency shall consider (i) the particular purpose for which the
information was collected; (ii) the degree to which the disclosure of the
records would embarrass, injure, or invade the privacy of the individual; (iii)
the effect of the disclosure on the individual's future health care; (iv) the
importance of the information to the lawsuit or proceeding; and (v) any other
relevant factor. 7. Concurrent with the court or administrative agency's
resolution of a motion to quash, if subpoenaed health records have been
submitted by a health care entity to the court or administrative agency in a
sealed envelope, the court or administrative agency shall: (i) upon determining
that no submitted health records should be disclosed, return all submitted
health records to the health care entity in a sealed envelope; (ii) upon
determining that all submitted health records should be disclosed, provide all
the submitted health records to the party on whose behalf the subpoena was
issued; or (iii) upon determining that only a portion of the submitted health
records should be disclosed, provide such portion to the party on whose behalf
the subpoena was issued and return the remaining health records to the health
care entity in a sealed envelope. 8. Following the court or administrative agency's resolution
of a motion to quash, the party on whose behalf the subpoena duces tecum was
issued shall have the duty to certify in writing to the subpoenaed health care
entity a statement of one of the following: a. All filed motions to quash have been resolved by the court
or administrative agency and the disclosures sought in the subpoena duces tecum
are consistent with such resolution; and, therefore, the health records
previously delivered in a sealed envelope to the clerk of the court or
administrative agency will not be returned to the health care entity; b. All filed motions to quash have been resolved by the court
or administrative agency and the disclosures sought in the subpoena duces tecum
are consistent with such resolution and that, since no health records have
previously been delivered to the court or administrative agency by the health
care entity, the health care entity shall comply with the subpoena duces tecum
by returning the health records designated in the subpoena by the return date
on the subpoena or five days after receipt of certification, whichever is
later; c. All filed motions to quash have been resolved by the court
or administrative agency and the disclosures sought in the subpoena duces tecum
are not consistent with such resolution; therefore, no health records shall be
disclosed and all health records previously delivered in a sealed envelope to
the clerk of the court or administrative agency will be returned to the health
care entity; d. All filed motions to quash have been resolved by the court
or administrative agency and the disclosures sought in the subpoena duces tecum
are not consistent with such resolution and that only limited disclosure has
been authorized. The certification shall state that only the portion of the
health records as set forth in the certification, consistent with the court or
administrative agency's ruling, shall be disclosed. The certification shall
also state that health records that were previously delivered to the court or
administrative agency for which disclosure has been authorized will not be
returned to the health care entity; however, all health records for which
disclosure has not been authorized will be returned to the health care entity;
or e. All filed motions to quash have been resolved by the court
or administrative agency and the disclosures sought in the subpoena duces tecum
are not consistent with such resolution and, since no health records have
previously been delivered to the court or administrative agency by the health
care entity, the health care entity shall return only those health records
specified in the certification, consistent with the court or administrative
agency's ruling, by the return date on the subpoena or five days after receipt
of the certification, whichever is later. A copy of the court or administrative agency's ruling shall
accompany any certification made pursuant to this subdivision. 9. The provisions of this subsection have no application to
subpoenas for health records requested under §8.01-413, or issued by a duly
authorized administrative agency conducting an investigation, audit, review or
proceedings regarding a health care entity's conduct. The provisions of this subsection shall apply to subpoenas for
the health records of both minors and adults. Nothing in this subsection shall have any effect on the
existing authority of a court or administrative agency to issue a protective
order regarding health records, including, but not limited to, ordering the
return of health records to a health care entity, after the period for filing a
motion to quash has passed. A subpoena for substance abuse records must conform to the
requirements of federal law found in 42 C.F.R. Part 2, Subpart E. I. Health care entities may testify about the health records
of an individual in compliance with §§8.01-399 and 8.01-400.2. J. §54.1-111. Unlawful acts; prosecution; proceedings in equity;
civil penalty. A. It shall be unlawful for any person, partnership,
corporation or other entity to engage in any of the following acts: 1. Practicing a profession or occupation without holding a
valid license as required by statute or regulation. 2. Making use of any designation provided by statute or
regulation to denote a standard of professional or occupational competence
without being duly certified or licensed. 3. Making use of any titles, words, letters or abbreviations
which may reasonably be confused with a designation provided by statute or
regulation to denote a standard of professional or occupational competence
without being duly certified or licensed. 4. Performing any act or function which is restricted by
statute or regulation to persons holding a professional or occupational license
or certification, without being duly certified or licensed. 5. Failing to register as a practitioner of a profession or
occupation as required by statute or regulation. 6. Materially misrepresenting facts in an application for
licensure, certification or registration. 7. Willfully refusing to furnish a regulatory board
information or records required or requested pursuant to statute or regulation. 8. Violating any statute or regulation governing the practice
of any profession or occupation regulated pursuant to this title. 9. Refusing to process a request, tendered in accordance with
the regulations of the relevant health regulatory board or applicable statutory
law, for patient records or prescription dispensing records after the closing
of a business or professional practice or the transfer of ownership of a
business or professional practice. Any person who willfully engages in any unlawful act
enumerated in this section shall be guilty of a Class 1 misdemeanor. The third
or any subsequent conviction for violating this section during a 36-month
period shall constitute a Class 6 felony. In addition, any person convicted of
any unlawful act enumerated in subdivision 1 through 8 of this subsection, for
conduct that is within the purview of any regulatory board within the
Department of Professional and Occupational Regulation, may be ordered by the
court to pay restitution in accordance with §§19.2-305 through 19.2-305.4. B. In addition to the criminal penalties provided for in
subsection A, the Department of Professional and Occupational Regulation or the
Department of Health Professions, without compliance with the Administrative
Process Act (§2.2-4000 et seq.), shall have the authority to enforce the
provisions of subsection A and may institute proceedings in equity to enjoin
any person, partnership, corporation or any other entity from engaging in any
unlawful act enumerated in this section and to recover a civil penalty of at
least $200 but not more than $5,000 per violation, with each unlawful act
constituting a separate violation; but in no event shall the civil penalties
against any one person, partnership, corporation or other entity exceed $25,000
per year. Such proceedings shall be brought in the name of the Commonwealth by
the appropriate Department in the circuit court or general district court of
the city or county in which the unlawful act occurred or in which the defendant
resides. C. This section shall not be construed to prohibit or prevent
the owner of patient records from (i) retaining copies of his patient records
or prescription dispensing records after the closing of a business or
professional practice or the transfer of ownership of a business or
professional practice or (ii) charging a reasonable fee, in accordance with
subsections A and B of §8.01-413 D. Nothing in this section, nor §§13.1-543, 13.1-1102,
54.1-2902, and 54.1-2929, shall be construed to prohibit or prevent any entity
of a type listed in §13.1-542.1 or 13.1-1101.1, which employs or contracts
with an individual licensed by a health regulatory board, from (i) practicing
or engaging in the practice of a profession or occupation for which such
individual is licensed, (ii) providing or rendering professional services
related thereto through the licensed individual, or (iii) having a legitimate
interest in enforcing the terms of employment or its contract with the licensed
individual. E. This section shall apply, mutatis mutandis, to all persons
holding a multistate licensure privilege to practice nursing in the
Commonwealth of Virginia. hereof
shall apply to any health care provider whose office is located within or without
outside of Virginia,
and shall apply only to requests made by the patient, his attorney, his
executor or administrator, or any authorized insurer, in anticipation of
litigation or in the course of litigation. Health care provider,
as As
used in this section, shall have "health care provider" has
the same meaning as provided in §32.1-127.1:03 and shall
also include includes
an independent medical copy retrieval service contracted to provide the service
of retrieving, reviewing, and preparing such copies for distribution. Virginia the Commonwealth shall only be stored in compliance with §§54.1-3410,
54.1-3411, and 54.1-3412.G. The provisions of
this section governing fees that may be charged by a health care provider whose
records are subpoenaed or requested pursuant to this section shall not apply in
the case of any request by a patient for his own records, which shall be
governed by subsection J of §32.1-127.1:03. This subsection shall not be
construed to affect other provisions of state or federal statute, regulation or
any case decision relating to charges by health care providers for copies of
records requested by any person other than a patient when requesting his own
records pursuant to subsection J of §32.1-127.1:03. If an individual
requests a copy of his health record from a health care entity, the health care
entity may impose a reasonable cost-based fee, which shall include only the
cost of supplies for and labor of copying the requested information, postage
when the individual requests that such information be mailed, and preparation
of an explanation or summary of such information as agreed to by the
individual. For the purposes of this section, "individual" shall
subsume a person with authority to act on behalf of the individual who is the
subject of the health record in making decisions related to his health care.K.
Nothing in this section shall prohibit a health care provider who prescribes or
dispenses a controlled substance required to be reported to the Prescription
Monitoring Program established pursuant to Chapter 25.2 (§54.1-2519 et seq.)
of Title 54.1 to a patient from disclosing information obtained from the
Prescription Monitoring Program and contained in a patient's health care record
to another health care provider when such disclosure is related to the care or
treatment of the patient who is the subject of the record.or subsection J of §
32.1-127.1:03, for copies of patient records, as applicable
under the circumstances.