SB998

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THE SENATE	S.B. NO.	998
TWENTY-FIRST LEGISLATURE, 2001
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO HEALTH CARE INFORMATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 323C, Hawaii Revised Statutes, is amended by adding to part IV a new section to be appropriately designated and to read as follows:

"§323C- Exemptions for criminal investigations, prosecutions, acquisitions or possession of firearms, administrative revocation, and investigative grand juries. This chapter shall not apply to:

(1) Criminal law enforcement inquiries;

(2) Prosecutions;

(3) Reporting of protected health information to a court or criminal law enforcement agency for the purpose of determining a person's fitness, suitability or qualifications under chapter 134;

(4) Judicial or administrative proceedings relating to the administrative revocation of driver's license or vehicle registration or the impoundment of license plates for the operation of a vehicle while under the influence of an intoxicant. For the purposes of this section, intoxicant shall include any liquor, intoxicating liquor, alcohol or any drugs;

(5) Investigation by a duly empanelled grand jury;

(6) Reporting a possible offense to a criminal law enforcement agency."

SECTION 2. Section 323C-1, Hawaii Revised Statutes, is amended as follows:

(1) By adding 5 new definitions to be appropriately inserted and to read as follows:

""Civil law enforcement inquiry" means a lawful investigation conducted by a government agency or official inquiring into a violation of, or failure to comply with, any civil or administrative statute that is punishable by a civil fine, civil forfeiture or other administrative remedy.

"Criminal law enforcement agency" means a governmental agency which:

(1) Is vested with a duty to maintain public order;

(2) Employs persons who are vested by law with a duty to make arrests for offenses or to enforce criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses; or

(3) A state agency responsible for the collection, storage, dissemination, and analysis of all pertinent criminal justice data and related functions, including but not limited to, functioning as the state repository for criminal history records, providing technical assistance in the development of information systems, and conducting appropriate research and statistical studies.

"Criminal law enforcement inquiry" means an investigation conducted by a criminal law enforcement agency of a possible offense.

"Offense" means:

(1) A felony, misdemeanor, petty misdemeanor, or violation as defined in section 701-107, Hawaii Revised Statutes;

(2) A traffic infraction under chapter 291D, Hawaii Revised Statutes;

(3) A case that comes under section 571-11(1) or (2), Hawaii Revised Statutes; or

(4) A violation of statute, ordinance, or rule punishable by any criminal penalty.

""Prosecution" means the process of initiating and disposing of charges for an offense and any collateral or post-sentence proceedings relating thereto. Collateral or post-sentence proceedings include but are not limited to:

(1) Grand jury or preliminary hearings;

(2) Extradition hearings;

(3) Bail hearings;

(4) Habeas corpus or coram nobis hearings;

(5) Hearings related to penal responsibility and fitness to proceed, conditional release or discharge pursuant to chapter 704;

(6) Proceedings relating to parole, probation or deferred acceptance of pleas;

(7) Appeals;

(8) Proceedings related to civil commitment in lieu of prosecution or of sentence; and

(9) Any other proceedings to determine the release of, or conditions of custody, sentence or disposition of, a person charged, convicted or otherwise adjudicated for an offense."

(2) By amending the definition of "entity" to read as follows:

""Entity" means a health care provider, health care data organization, health plan, health oversight agency, public health authority, employer, insurer, health researcher, [law enforcement official,] or educational institution, except as otherwise defined for purposes of a particular section only."

(3) By repealing the definition of "law enforcement inquiry".

[""Law enforcement inquiry" means a lawful investigation conducted by an appropriate government agency or official inquiring into a violation of, or failure to comply with, any civil or administrative statute or any regulation, rule, or order issued pursuant to such a statute. It does not include a lawful criminal investigation or prosecution conducted by the county prosecutors or the department of the attorney general."]

SECTION 3. Section 323C-55, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Nothing in this chapter shall be construed to preempt, supersede, or modify the operation of any state law that:

(1) Provides for the reporting of vital statistics such as birth or death information;

(2) Requires the reporting of abuse or neglect information about any individual;

(3) Relates to public or mental health and that prevents or otherwise restricts disclosure of information otherwise permissible under this chapter, except that if this chapter is more protective of information, it shall prevail;

(4) Governs a minor's right to access protected health information or health care services; [or]

(5) Meets any other requirements that the court determines are needed to protect the confidentiality of the information[.]; or

(6) Requires the reporting of protected health information to a criminal law enforcement agency or an official of the criminal law enforcement agency."

SECTION 4. Section 622-52, Hawaii Revised Statutes, is amended to read as follows:

"§622-52 Subpoena duces tecum for medical records, compliance. (a) Except as provided by section 323C-38(c), a subpoena duces tecum or discovery request for protected health information is valid only if accompanied by either a court order, or a written authorization signed in accordance with section 323C-23. An order issued under this section shall:

(1) Provide that the protected health information involved is subject to court protection;

(2) Specify to whom the information may be disclosed;

(3) Specify that the information may not be disclosed or used except as provided in the order; and

(4) Meet any other requirements that the court determines are needed to protect the confidentiality of the information.

(b) Whenever a subpoena duces tecum is served upon the custodian of medical records or other qualified witness from a health care provider, health plan, public health authority, employer, insurer, law enforcement official, educational institution, health oversight agency, health researcher, or medical facility, in a civil action or other proceeding in which the custodian or the custodian's employer is neither a party to the action or proceeding nor is it alleged that the claim arose at the office, facility, or institution to which the request for information is directed, and such subpoena requires the production in court, or before an officer, board, commission, or tribunal, of all or any part of the medical records of a patient who is or has been cared for or treated at the office, facility, or institution, it shall be sufficient compliance if the custodian or other qualified witness within five days after receipt of such subpoena, delivers by registered or certified mail or by messenger, a true and correct copy (which may be by any method described in rule 1001(4), Hawaii Rules of Evidence), of all the medical records described in such subpoena to the clerk of the court or the clerk's deputy authorized to issue it, together with the affidavit described in section 622-53.

(c) The copy of the medical records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of the custodian or other qualified witness, and date of the subpoena clearly inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:

(1) If the subpoena directs attendance in court, to the clerk of such court or the clerk's deputy authorized to issue it, at the courthouse; and

(2) In other cases, to the officer, board, commission, or tribunal conducting the hearing, at the place designated in the subpoena.

(d) The copy of the medical records shall remain sealed and shall be opened only at the time of trial, or other hearing, upon the direction of the judge, officer, board, commission, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at such trial, or hearing, unless the parties or counsel in the proceeding otherwise agree, or unless the sealed envelope or wrapper is returned to the custodian or other qualified witness who is to appear personally. Copies of medical records that are not introduced in evidence or required as part of the record shall be returned by registered or certified mail or by messenger to the person or entity from whom received. If the copies of the medical records are introduced in evidence or are required as part of the record, they shall be returned by registered or certified mail or messenger to the person or entity from whom received as soon as their use is no longer needed, after the trial, or other hearing.

(e) This section shall not be construed to supersede any grounds that may apply under federal or state law for objecting to turning over the protected health information.

(f) This section shall not apply to:

(1) Criminal law enforcement inquiries and prosecutions as defined in chapter 323C;

(2) Reporting of protected health information to a court or criminal law enforcement agency for the purposes of determining or evaluation a person's fitness, suitability or qualification under chapter 134; and

(3) Judicial or administrative proceedings relating

to the administrative revocation of driver's license or vehicle registration or the impoundment of license plates for the operation of a vehicle while under the influence of an intoxicant, which, for the purpose of this paragraph, shall include any liquor, intoxicating liquor, alcohol, or any drug; and

(4) Investigation by a duly empanelled grand jury."

SECTION 5. Section 323C-34.5, Hawaii Revised Statutes, is repealed.

["[§323C-34.5] Disclosure for firearm permit and registration purposes. A health care provider or public health authority shall disclose health information, including protected health information, relating to an individual's mental health history, to the appropriate county chief of police in response to a request for the information from the chief of police, provided that:

(1) The information shall be used only for the purposes of evaluating the individual's fitness to acquire or own a firearm; and

(2) The individual has signed a waiver permitting release of the health information for that purpose."]

SECTION 6. Statutory material to be repealed is bracketed. New statutory material is underscored.

SECTION 7. This Act shall take effect on July 1, 2001.

INTRODUCED BY:	_____________________________