Chapter 23: Medical Records Searches
Generally
Applicable law: The release of a patient’s medical records to law enforcement officers for use in a criminal investigation is restricted by federal and state law.
Federal law (HIPAA)
Generally: The restrictions are contained in the Health Insurance Portability and Accountability Act of 1996 (HIPAA),[1] and in regulations adopted pursuant to HIPAA by the Department of Health and Human Services.[2]
Who must comply? Any provider of health care services.[3]
California law (CMIA): The applicable law is contained in the Confidentiality of Medical Information Act.[4]
Which law must be followed: Because the CMIA is more restrictive than HIPAA, any release that is permissible under the CMIA would also be permissible under HIPAA.[5]
Records That May Be Released
Healthcare records
Defined: Records in any form that relate to the past, present, or future physical or mental health or condition of a patient.[6]
Procedure to obtain: Per HIPAA and CMIA, officers may obtain health care records as follows:
Search warrant: The court issued a search warrant for the records.[7]
Consent: The patient consented to the release of the records, and the consent form complied with detailed requirements.[8]
Mandatory reporting: Reporting was required by law, such as injuries caused by a firearm, assaultive or abusive conduct.[9]
Release to coroner: The records were furnished to a coroner or medical examiner for the purpose of determining the cause of death, identifying the decedent, or locating next of kin.[10]
Drug abuse treatment records
Defined: Records of a drug treatment facility that is regulated, or directly or indirectly assisted, by any federal or state department or agency. Such records include identity, diagnosis, prognosis, and treatment.[11]
Procedure to obtain
Search warrant: The court issued a search warrant for the records.[12]
Consent: Although records may be released on the basis of the patient’s written consent, records obtained in this manner may not be used in connection with a criminal investigation of the patient.[13]
Notes
[1] OTHER: Pub.L. No. 104-191. ALSO SEE: South Carolina Medical Assn. v. Thompson (4C 2003) 327 F3 346.
[2] OTHER: 42 USC § 1320d-1(d).
[3] OTHER: 42 USC § 1320d(3).
[4] CAL: Civ. Code § 56 et seq. ALSO SEE: Pen. Code § 1543(a); Shaddox v. Bertani (2003) 110 CA4 1406, 1411.
[5] OTHER: 45 C.F.R. § 160.203(b).
[6] OTHER: 42 USC § 1320d(4), (6).
[7] OTHER: 45 C.F.R. §§ 164.512(e), 164.512(f)(1)(ii)(A). CAL: Civ. Code § 56.10(b)(1); Pen. Code § 1543(f)(3).
[8] OTHER: 45 C.F.R. § 164.508(c). CAL: Pen. Code § 1543(a); Civ. Code § 56.11.
[9] OTHER: 45 C.F.R. § 164.512(f)(1). CAL: Pen. Code §§ 1543(e), 11160; Civ. Code § 56.10(c)(14); Shaddox v. Bertani (2003) 110 CA4 1406, 1411–12.
[10] OTHER: 45 C.F.R. § 164.512(g). CAL: Civ. Code §§ 56.10(b)(8), 56.10(c)(6).
[11] OTHER: 42 USC § 290dd-2; 42 C.F.R. § 2.1(a). CAL: Pen. Code § 1543.
[12] CAL: Pen. Code § 1543(f).
[13] OTHER: 42 USC § 290dd-2(c); 42 C.F.R. § 2.1(c). CAL: Health & Saf. Code § 11845.5(d).