SB1663

SECTION 1. People have a constitutional right to privacy under article I, section 6 of the Constitution of the State of Hawaii. This right to privacy includes personal health information and records, and with respect to information about their medical care and health status, this right continues throughout every civil, criminal, and administrative proceeding in which a person's health information is obtained and used and after the proceeding has concluded.

Rule 504.1(d)(3) of the Hawaii rules of evidence, provides a limited narrow waiver of health information privacy of a patient's condition that is part of the patient's claim or defense in the subject proceeding. However, this limited waiver of the physician-patient privilege does not entitle any party or entity to use that patient's personal health information outside of the proceeding without first obtaining the patient's informed consent for those uses. Currently, a party may protect its health information privacy in a proceeding and limit the use of the information to the proceeding by obtaining a protective order from the court or administrative agency. The legislature finds that, to achieve uniformity and consistency, courts and administrative agencies and parties to proceedings therein should have explicit guidance on the basic required elements of health information and records authorizations and protective orders.

People are typically not aware of how their health information is being used in and outside of civil, criminal, and administrative proceedings. The legislature, therefore, finds that a fundamental principal of the privacy of health information is an individual's understanding of the right to health information privacy. Accordingly, the legislature has the responsibility to reasonably limit the use of health information to authorized purposes.

Currently, there is no federal or state statute that comprehensively governs the disclosure and use of an individual's protected health information. Chapter 323C, Hawaii Revised Statutes, was repealed by Act 244, Session Laws of Hawaii, 2001, in anticipation of the federal regulations that would implement the Health Insurance Portability and Accountability Act. However, these federal regulations established only a minimum floor of privacy protection, and the regulations only governed protected health information that is obtained directly from health care providers. The federal regulations do not provide adequate privacy protection for uses of protected health information in court and administrative agency proceedings, and they do not address continuing privacy considerations once those proceedings have concluded. The legislature therefore finds that persons' right to privacy of their health information and records is at risk during these proceedings and after their conclusion.

The purpose of this Act is to protect individuals from unauthorized uses of their protected health information and records in all civil, criminal, and administrative proceedings and to establish mechanisms to protect against unauthorized and inappropriate uses of protected health information outside of civil, criminal, or administrative proceedings.

SECTION 2. Chapter 622, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§622- Disclosure of health information in civil, criminal, and administrative proceedings. (a) A person's protected health information may be disclosed in response to a discovery request or subpoena only if the disclosure is made pursuant to:

(1) A written authorization, signed by the person to whom the protected health information belongs, or the person's legal guardian, that reasonably describes the person's privacy rights and the purposes for which the health information will be used; or

(2) A court or administrative agency order, including a stipulated order.

(b) A court or administrative agency protective order issued under this section shall:

(1) Provide that protected health information is subject to continuing privacy protection from all unauthorized uses within and outside of the proceeding;

(2) Identify any entities to which the information may be disclosed;

(3) Specify that the protected health information may not be disclosed or used outside of the subject proceeding, except for record-keeping and regulatory purposes as may be required by federal or state law;

(4) Require the prompt return or certification of the destruction of all copies of protected health information and all summaries, except for copies that are required by federal or state law; and

(5) Meet any other requirements that the court or administrative agency determines are appropriate to protect the confidentiality of protected health information from unauthorized uses within and outside of the proceeding."

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1663
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII