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ACROSS SESSIONS
- Subject Index: Since 1995
- Bills & Resolutions: Since 1994
- Summaries: Since 1994
Developed and maintained by the Division of Legislative Automated Systems.
2004 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 32.1-127.1:03 of the Code of Virginia is amended and reenacted as follows:
§ 32.1-127.1:03. Health records privacy.
A. There is hereby recognized a patient's an individual's right of privacy in
the content of a patient's medical record his health records. Patient Health
records are the property of the provider health care entity maintaining
them, and, except when permitted by this section or by another provision of state or
federal law, no provider health care entity, or other person working in a
health care setting, may disclose the an individual's health records of a
patient.
Patient Health records shall not be removed from the premises where they are
maintained without the approval of the provider 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 C or with this section or
in accordance with the regulations relating to change of ownership of patient
health records promulgated by a health regulatory board established in Title
54.1.
No person to whom disclosure of patient health records was made by a patient or
a provider are disclosed shall redisclose or otherwise reveal the health
records of a patient an individual, beyond the purpose for which such
disclosure was made, without first obtaining the patient's individual's
specific consent authorization to such redisclosure. This redisclosure
prohibition shall not, however, prevent (i) any provider who health care entity
that receives health records from another provider health care entity from
making subsequent disclosures as permitted under this section and the federal Department of Health and Human Services
regulations relating to the electronic transmission of data and patient privacy
protected health information promulgated by the United States Department of
Health and Human Services as required by the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d et seq.) or (ii) any
provider health care entity from furnishing health records and aggregate
or other data, from which patient 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.
B. As used in this section:
"Agent" means a person who has been appointed as a patient's 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 services" includes, but is not limited to, examination, diagnosis,
evaluation, treatment, pharmaceuticals, aftercare, habilitation or rehabilitation
and mental health therapy of any kind."Parent" means a biological, adoptive or
foster parent.
"Patient" means a person who is receiving or has received health services from
a provider.
"Patient-identifying prescription information" means all prescriptions, drug
orders or any other prescription information that specifically identifies an
individual patient.
"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.
"Provider Health care provider" shall have the same meaning as set forth 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. Provider Health
care provider shall also include all persons who are licensed, certified,
registered or permitted 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.
"Record Health record" means any written, printed or electronically recorded
material maintained by a provider health care entity in the course of providing
health services to a patient an individual concerning the patient individual
and the services provided. "Record Health record" also includes the substance
of any communication made by a patient an individual to a provider health care
entity in confidence during or in connection with the provision of health
services to a patient or information otherwise acquired by the provider health
care entity about a patient an individual in confidence and in connection with
the provision of health services to the patient 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.
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 minor
patients 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. Providers Health care entities may disclose the health records of a patient:
1. As set forth in subsection E of this section, pursuant to the written
consent authorization of the patient individual or in the case of a minor
patient, his custodial parent, guardian or other person authorized to consent
to treatment of minors pursuant to § 54.1-2969; also, in emergency cases or
situations where it is impractical to obtain the patient's an individual's
written consent authorization, pursuant to the patient's individual's oral
consent authorization for a health care provider or health plan to discuss the
patient's individual's health records with a third party specified by the
patient individual;
2. In compliance with a subpoena issued in accord with subsection H of this section, pursuant to court order upon good cause shown or in compliance with a subpoena issued pursuant to subsection C of § 8.01-413;
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 provider health care entity or the provider's 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 provider's 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, 37.1-98.2, 53.1-40.10, 54.1-2403.3, 54.1-2506, 54.1-2906, 54.1-2907, 54.1-2966, 54.1-2966.1, 54.1-2967, 54.1-2968, 63.2-1606 and 63.2-1509;
7. Where necessary in connection with the care of the patient individual,
including in the implementation of a hospital health care provider’s routine
contact process pursuant to subdivision B 4 of § 32.1-127;
8. 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 patient individual has waived his right to the privacy of the
medical health records;
10. When examination and evaluation of a patient 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 authorized who is
the respondent in a proceeding under Article 1.1 (§ 37.1-134.6 et seq.) of
Chapter 4 of Title 37.1;
12. To the attorney appointed by the court to represent a patient in an
individual who is or has been a patient who is the subject of a civil
commitment proceeding under § 37.1-67.3 or a judicial authorization for
treatment proceeding pursuant to § 37.1-134.21;
13. To the attorney and/or guardian ad litem of a minor patient who represents
such minor in any judicial or administrative proceeding, provided that 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 provider health care entity of such order;
14. With regard to the Court-Appointed Special Advocate (CASA) program, a minor's health records in accord with § 9.1-156;
15. To an agent appointed under a patient's an individual's power of attorney
or to an agent or decision maker designated in a patient's 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.);
16. To third-party payors and their agents for purposes of reimbursement;
17. 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;
18. 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;
19. In accord with subsection B of § 54.1-2400.1 B, to communicate a patient's
an individual's specific and immediate threat to cause serious bodily injury or
death of an identified or readily identifiable person;
20. To the patient individual who is the subject of the health record, except
as provided in subsections E and F of this section and subsection B of §
8.01-413;
21. 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;
22. 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;
23. If the health records are those of a deceased or mentally incapacitated
patient individual to the personal representative or executor of the deceased
patient individual or the legal guardian or committee of the incompetent or
incapacitated patient 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
patient individual in order of blood relationship;
24. 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;
25. To the Office of the Inspector General for Mental Health, Mental Retardation and Substance Abuse Services pursuant to Chapter 16 (§ 37.1-255 et seq.) of Title 37.1;
26. (Expires July 1, 2006) 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 of Title 32.1, pursuant to subdivision D 1 of this section; and
27. To law-enforcement officials by each licensed emergency medical services
agency, (i) when the patient individual is the victim of a crime or (ii) when
the patient 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.
E. Requests for copies of medical health records shall (i) be in writing, dated
and signed by the requester; (ii) identify the nature of the information requested; and (iii) include
evidence of the authority of the requester to receive such copies and
identification of the person to whom the information is to be disclosed. The
provider 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 medical health records, the provider health care entity
shall do one of the following: (i) furnish such copies to any requester authorized to receive them; (ii) inform the
requester if the information does not exist or cannot be found; (iii) if the
provider 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
provider health care entity who maintains the record; or (iv) deny the request
(a) under subsection F, (b) on the grounds that the requester has not established his authority
to receive such health records or proof of his identity, or (c) as otherwise
provided by law. Procedures set forth in this section shall apply only to requests
for health records not specifically governed by other provisions of this
Code, federal law or state or federal regulation.
F. Except as provided in subsection B of § 8.01-413, copies of a patient's an
individual's health records shall not be furnished to such patient individual
or anyone authorized to act on the patient's individual's behalf where when the
patient's attending individual's treating physician or the patient's
individual's treating clinical psychologist has made a part of the
patient's individual's record a written statement that, in his opinion the
exercise of his professional judgment, the furnishing to or review by the
patient individual of such health records would be injurious reasonably likely
to endanger the patient's health or well-being life or physical safety of the
individual or another person, or that such health record makes reference to a person who is not a health
care provider and the access requested would be reasonably likely to cause substantial harm to such
referenced person. If any custodian of medical records health care entity
denies a request for copies of health records based on such statement, the
custodian shall permit examination and copying of the medical record by another such physician
or clinical psychologist selected by the patient 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 patient's individual's condition are at
least equivalent to that of the physician or clinical psychologist upon whose opinion the denial is
based. The person or entity denying the request shall inform the patient of the
patient's right to select another reviewing physician or clinical psychologist
under this subsection who designated reviewing physician or clinical
psychologist shall make a judgment as to whether to make the health record
available to the patient 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 the any such designated physician or
clinical psychologist selected by the patient shall be accompanied by a
statement from the custodian of the health record that the patient's attending
individual's treating physician or clinical psychologist determined that the
patient's individual's review of his health record would be injurious to the
patient's health or well-being 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.
G. A written consent authorization to allow release of patient an individual's
health records may, but need not, be in shall substantially include the
following form information:
CONSENT AUTHORIZATION TO RELEASE OF CONFIDENTIAL HEALTH CARE
INFORMATION RECORDS
PatientIndividual's Name ....................................................ProviderHealth Care Entity's Name ...........................................Person, agency or providerPerson, Agency, or Health Care Entity to whom disclosure is to be made ...............................................Person, agency or provider 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 consent authorization, I understand that I am giving
my permission to the above-named provider or other named third party health
care entity for disclosure of confidential health care 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 consent 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
that were already disclosed under the authorization. A copy of this consent
authorization and a notation concerning the persons or agencies to whom
disclosure was made shall be included with my original health records. The
person who receives the records to which this consent pertains may not redisclose them to
anyone else without my separate written consent unless such I understand that
health information disclosed under this authorization might be redisclosed by a
recipient is a provider who makes a disclosure permitted by law 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 consent authorization expires on (date) or
(event)....................................………
Signature of Patient 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 medical 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 medical 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 medical 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 medical 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 medical health records or on
whose behalf the subpoena duces tecum is being issued shall have the duty to
determine whether the patient individual whose health records are being
sought is pro se or a nonparty.
In instances where medical 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 PATIENT 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 or, 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 medical health records. Your
doctor or, other health care provider or other health care entity is required
to respond by providing a copy of your medical 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 or, 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 a patient's medical an individual's health records
shall include a Notice to Providers in the same part of the request in which
the provider 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 PROVIDERS TO HEALTH CARE ENTITIES
A COPY OF THIS SUBPOENA DUCES TECUM HAS BEEN PROVIDED TO YOUR PATIENT OR YOUR
PATIENT'S THE INDIVIDUAL WHOSE HEALTH RECORDS ARE BEING REQUESTED OR HIS
COUNSEL. YOU OR YOUR PATIENT HAVE 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 YOUR PATIENT 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 CARE 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 medical health records,
health care providers 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 medical health records in a sealed envelope as set forth, health
care providers entities shall not respond to a subpoena duces tecum for such
medical health records until they have received a certification as set forth in
subdivisions 5 or 8 of this subsection from the party on whose behalf the subpoena duces tecum
was issued.
If the health care provider entity has actual receipt of notice that a motion
to quash the subpoena has been filed or if the health care provider entity
files a motion to quash the subpoena for medical health records, then the
health care provider 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 provider 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 provider health care entity. The health records
returned to the provider 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 provider
entity that the time for filing a motion to quash has elapsed and that no
motion to quash was filed. Any provider health care entity receiving such
certification shall have the duty to comply with the subpoena duces tecum by
returning the specified medical health records by either the return date
on the subpoena or 5 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
patient's private individual's health records over the patient's 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 medical health records have been submitted by a health
care provider entity to the court or administrative agency in a sealed
envelope, the court or administrative agency shall: (i) upon determining that no
submitted medical health records should be disclosed, return all submitted
medical health records to the provider health care entity in a sealed envelope;
(ii) upon determining that all submitted medical health records should be
disclosed, provide all the submitted medical health records to the party on
whose behalf the subpoena was issued; or (iii) upon determining that only a portion
of the submitted medical health records should be disclosed, provide such
portion to the party on whose behalf the subpoena was issued and return the
remaining medical health records to the provider 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 provider 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 medical health records previously
delivered in a sealed envelope to the clerk of the court or administrative agency will not be
returned to the provider 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 medical health records have previously
been delivered to the court or administrative agency by the provider health
care entity, the provider health care entity shall comply with the subpoena
duces tecum by returning the medical 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 medical health records shall be
disclosed and all medical health records previously delivered in a sealed
envelope to the clerk of the court or administrative agency will be returned to
the provider 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 medical health records that were previously delivered to the court or
administrative agency for which disclosure has been authorized will not be returned
to the provider health care entity; however, all medical health records
for which disclosure has not been authorized will be returned to the provider
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 medical health records have
previously been delivered to the court or administrative agency by the provider
health care entity, the provider 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
medical health records requested under § 8.01-413, or issued by a duly
authorized administrative agency conducting an investigation, audit, review or proceedings regarding
a provider's health care entity's conduct.
The provisions of this subsection shall apply to subpoenas for the medical
health records of both minors and adults and to subpoenas for the health
records of individuals in connection with hearings pursuant to Title 65.2 or any action at
law brought to recover damages against any employer that is subject to Title
65.2.
Nothing in this subsection shall have any effect on the existing authority of a
court or administrative agency to issue a protective order regarding medical
health records, including, but not limited to, ordering the return of medical
health records to a health care provider 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. Providers Health care entities may testify about the medical health records
of a patient an individual in compliance with §§ 8.01-399 and 8.01-400.2.