LAW OFFICE OF BRIAN GARVES

HIV/AIDS CONFIDENTIALITY

  (Note:  For Brian's Article on HIV/AIDS Test Reporting, click HERE.)

  A. CONFIDENTIALITY REQUIREMENTS

1. In general, all medical information is protected by privilege of confidentiality granted by statute or regulation.

MCL 600.2157 grants confidentiality protection to all medical records and information.

2. Special protections are granted to persons with AIDS, HIV-infection, or treatment or testing for HIV-infection. MCL 333.5131(1). All reports, records, and data pertaining to testing, care and treatment for HIV-infection and AIDS are confidential.

This includes even the fact that testing was ordered. MCL 333.5131(2).  Thus, any mention of HIV or AIDS in a chart -- even if this is just that the person has never been tested or has been tested and tested negative -- makes the entire medical records subject to the HIV/AIDS laws.

1. Consent to Release Medical Information

a. Generally a person=s consent to release information is sufficient.

b. Special requirements for release of medical records with AIDS and HIV information.

i. Patient signature.

ii. Acknowledgment that record contains any HIV or AIDS information.

 Note: To prepare the form for releasing the records, put in the following: "I understand that my record may contain information regarding HIV or AIDS."

• Reference: MCL 333.5131(5) (d)

2. Discussions with Physicians, MDCH or Local Health Department

a. For general medical information, health care providers within a facility may discuss a patient=s medical information, as long as there is a Aneed to know.@

- If the patient is being transferred, or care is being provided by a new provider outside of that facility, consent must be obtained.

b. HIV/AIDS information pertaining to a person with AIDS or HIV can be released to a health care provider, local health department or MDCH without the person=s consent:

i. to protect an individual=s health;

ii. to prevent further transmission of HIV;

iii. to diagnose and care for a patient.

MCL 333.5131(5) (a)

Note: Inference of Aneed to know@ and legitimate concern in the statute.  Thus, while this information can be disclosed without consent, that does not mean that it can be given out to anyone.  The disclosure can only be to those providers that "need to know" that information in order to diagnose, care and treat the patient.

3. Every new positive diagnosis of AIDS or HIV-infection requires reporting within seven days to the Michigan Department of Community Health and the local health department.

a. The MDCH receives only demographic information (no patient identifying information)

b. The local health department also gets the identifying information so that counseling and contact notification can be done.

 

1. A physician who diagnoses HIV infection must disclose information necessary to prevent a Areasonably foreseeable risk of further transmission of HIV.

- The statute imposes an affirmative duty to disclose the information.

2. The disclosure is to those contacts known to be at risk of HIV transmission

• - During disclosure, no identifying information about the patient can be disclosed unless Areasonably necessary."

3. The duty to warn may be shifted to the local health department, who will then be responsible for notifying the contacts.
 

a. Referral can be made if:
 

i. The patient is HIV-infected, and
 

ii. The physician determines that the patient needs assistance in contact notification.
 

b. The physician shall provide all necessary information to the health department including identifying information even if the patient asked that information originally be kept from the health department.

Note: The local health departments would rather do the contact notification. All cases should be referred to them.