S-2095

AN ACT Relating to the privacy of personal information; and adding new sections to chapter 9.73 RCW.

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

NEW SECTION. Sec. 1. The legislature finds that there is a continuing and alarming erosion of the privacy of individuals who have received, are receiving, or are seeking health care. Conflicts between the privacy of these individuals and the purported needs of other persons, groups, institutions, hospitals, and governmental departments and agencies, all of whom have superior access to legislative and regulatory bodies, regularly appear to be resolved without according the fundamental values of individual autonomy, dignity, and liberty that underlie the interest in privacy the weight which they demand in a free society. It is declared that the interest of individuals in the privacy of personal information concerning a physical or mental condition, health, or history is fundamental and may not be subordinated to other interests in the absence of extraordinary circumstances. It is the intent of the legislature that this chapter be construed liberally in order to effectuate this end.

NEW SECTION. Sec. 2. The definitions in this section apply throughout sections 1 through 9 of this act unless the context clearly requires otherwise.

(1) "Health care provider" includes a person, or an associate, employee, or agent of such a person, who is licensed, certified, registered, or otherwise authorized by the laws of this state to provide health care in the ordinary course of business or practice of a profession, and who is consulted by a patient or prospective patient for the purpose of obtaining health care or advice, or offers to diagnose, treat, or advise with respect to, or does in fact diagnose, treat, or advise in any way with respect to a physical or mental condition, complaint, symptom, or concern.

(2) "Health information" means information about, or that tends to imply, the physical or mental health or condition or the personal history of an individual that was divulged in the course of seeking or receiving, or was otherwise related to the provision of, health care that has not previously been made public by a patient's voluntary, fully informed act of disclosure under circumstances in which the maintenance of confidentiality could not reasonably be relied upon.

(3) "Patient" means a patient, client, customer, patron, or other person who is seeking, has in the past sought or received, or is receiving health care from a health care provider.

(4) "Person" means an individual, corporation, organization, partnership, institution, hospital, nursing home, governmental body, governmental official, governmental contractor, employee or agent, or other entity.

NEW SECTION. Sec. 3. Except as otherwise specifically provided in sections 1 through 9 of this act, no person with access to health information may disclose that information to anyone other than another health care provider without the written consent described in this section.

(1) A patient's consent to the release or disclosure of health information has no effect unless the patient is fully informed in writing signed by him or her of the precise information to be disclosed, the specific individuals, identified by name or job description, to whom, and the circumstances in which, the disclosure will be made. The writing may be contained in an application for insurance if it otherwise meets the requirements of this subsection.

(2) A patient's consent has no effect if it is coerced, or made a condition of treatment by, a health care provider, unless: (a) The particular disclosure is, in the good faith judgment of the health care provider offering or rendering the care, an integral feature of the particular treatment or therapy being offered; (b) the health care is being provided pursuant to the order of a court or administrative body acting under valid legal authority to decree or order legal or regulatory remedies or sanctions; or (c) the particular disclosure is essential to the operation of the health care provider's practice and the disclosure is strictly limited to the need that justifies it. In the event that any of these conditions are satisfied, the consent shall nevertheless have no effect unless the patient is fully apprised, in a written statement in the form described in subsection (1) of this section, of the grounds on which disclosure is being made a condition of treatment and the patient signs the statement.

(3) A person who applies for any benefits, including health or disability benefits, or files a claim for compensation for injuries in the workplace or in the course of employment is considered to have consented to the disclosure of his or her health information to those persons necessary for the proper processing, investigation, adjudication, or disposition of the application or claim, or the exercise of any other authority under Title 51 RCW. The person or persons, including the employees of a governmental agency, with access to the health information shall hold that information in the strictest confidence, and its use shall be strictly limited to the need that justifies it.

NEW SECTION. Sec. 4. In the absence of the written consent described in this section, no governmental body of the state, any of its political subdivisions, or any other person, including any disciplinary body, may require health information from a health care provider or any other person in the absence of a showing of actual necessity for the information. Such a showing must establish at least that the information sought is essential to achieve a paramount regulatory or other legally authorized purpose that is compelling in the particular circumstances in which it is sought and that sufficient information for this purpose cannot be obtained without invading the privacy of patients who are not willing to consent. Where the grounds for disclosure are a suspicion or belief that a statute or rule has been or is about to be violated, at a minimum disclosure may be required only if: (1) The statute or rule is valid on its face or as applied in the circumstances; (2) there is compelling evidence that such a violation has occurred or is about to occur; (3) the violation is not merely technical or de minimis; and (4) there is probable cause to believe that the health information sought will provide evidence necessary to the prosecution or prevention of the suspected violation. In the event that a sufficient showing of necessity has been made, disclosure may be required, but only if, in the absence of a bona fide emergency, the patient has been afforded notice and an opportunity to oppose the disclosure in a court of law. A health care provider may act on the patient's behalf to take all lawful action that the patient might have taken to prevent disclosure of the health information, providing that the patient authorizes the health care provider to do so in writing, signed at the time or after the health information is sought.

NEW SECTION. Sec. 5. No patient shall be required to give testimony divulging his or her health information before any court, agency, or employee of the state unless he or she has voluntarily placed that information in issue in some forum or the information is absolutely necessary to prosecute a felony or to respond to or prevent a clear, bona fide public emergency.

NEW SECTION. Sec. 6. The provision of sections 1 through 9 of this act shall not apply:

(1) To an emergency in which access to health information is, in the good faith judgment of a health care provider, immediately necessary in order to preserve or protect the health and safety of the patient, other persons, or the general public;

(2) To state or local law enforcement agencies or the state department of licensing, when enforcing or administering the laws relating to motor vehicle licensing, traffic safety, controlled substances, or chemical dependency;

(3) To personnel of the state department of corrections or of a local jail with respect to health information of a prisoner or inmate, when the information is necessary for security purposes, in order to provide a safe facility, or in connection with the treatment of a prisoner or inmate;

(4) Emergency personnel, including fire fighters, emergency medical technicians, law enforcement officers, and health care providers treating persons at the scene of an emergency;

(5) To the disclosure of health information concerning an unemancipated minor to the parents or legal guardian of that minor;

(6) To the disclosure of health information to an employer, where access to that information is demonstrated to be strictly necessary to the provision of a safe workplace, or to the preservation and protection of the health or safety of other employees or the public, and the information is not reasonably available without requiring access to health care information from an employee or applicant for employment who is otherwise unwilling to consent. However, nothing in this subsection may be construed as authorizing any employer, public or private, to violate the provisions or intent of the Americans with disabilities act.

NEW SECTION. Sec. 7. A person receiving health information under this section, including the agent, employee, or associate of the person, shall hold that information in strictest confidence, shall not disclose that information to any unauthorized person, and shall use that information only for the purpose that justifies it.

NEW SECTION. Sec. 8. An individual aggrieved by a violation of sections 1 through 9 of this act, including a health care provider, has a cause of action for damages resulting from physical, monetary, property, or emotional injuries suffered, or ten thousand dollars, whichever is greater, or for injunctive or other equitable relief, or both, together with reasonable attorneys' fees and all reasonable costs of suit, including expert witness fees. In any such action, it is presumed that the disclosure of or the attempt to disclose health information has resulted in compensable emotional injury irrespective of the existence or nonexistence of specific mental, emotional, or physical symptoms. With respect to a claim for damages, an individual defendant who did not know or could not reasonably be expected to know that his or her acts or omissions violated or contributed to a violation of the prohibitions of sections 1 through 9 of this act has a complete defense to the claim and is entitled to an expedited determination of the validity of any pleading of this defense either by summary judgment, where justified by the evidence presented, or by some other proceeding that the court deems consistent with the efficient and just determination of the cause, provided that all parties are afforded sufficient time for discovery, not to exceed one hundred twenty days, as to the facts relating to this defense. A decision sustaining or rejecting such a defense may be appealed immediately to the court of appeals, which must decide the appeal within four months of the date the notice of appeal is filed. No further appeal of the decision relating to the defense may be made unless the decision in the court of appeals affirms a decision sustaining the defense, the court of appeals itself sustains the defense, or the case is accepted for review by the supreme court at any time after the entry of an appealable decision entered at a later time on some other ground in the superior court.

NEW SECTION. Sec. 9. Nothing in sections 1 through 8 of this act may be construed to prevent an insurer from requiring an applicant for insurance or an insured to consent to the release of health information necessary to verify representations concerning the patient's health or need for care, provided that the confidentiality of the information must otherwise be strictly maintained and that no disclosure may be made that is not strictly necessary to the need for verification.

NEW SECTION. Sec. 10. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 11. Sections 1 through 9 of this act are each added to chapter 9.73 RCW.