W. Va. Code R. § 64-59-11 - Confidentiality and Records
11.1. Confidential Information
11.1.1. Communications and information obtained in the course of treatment or evaluation of any patient is considered to be confidential information in accordance with 42 C.F.R. § 482.13, including: the fact that a person is or has been a patient; information transmitted by a patient or his or her family for purposes relating to diagnosis or treatment; information transmitted by persons participating in the accomplishment of the objectives of diagnosis or treatment; all diagnoses or opinions formed regarding a patient's physical, mental or emotional condition; any advice, instructions or prescriptions issued in the course of diagnosis or treatment; and any record or characterization of these matters. Confidential information does not include information which does not identify a patient, information from which a person acquainted with a patient would not recognize the patient, and encoded information from which there is no possible means to identify a patient.
11.1.2. In order to protect the patient from demeaning remarks about his or her condition, medical and behavioral health care professionals, staff and other employees shall not discuss a patient's assessment, diagnosis, treatment, or any other aspects of his or her condition among themselves unless this discussion directly relates to the patient's treatment.
11.2. Disclosure of Confidential Information
11.2.1. Confidential information may be disclosed:
11.2.1.a. In a proceeding under W. Va. Code § 27-5-4 to disclose the results of an involuntary examination made pursuant to W. Va. Code § 27-5-2 or § 27-5-3;
11.2.1.b. In a proceeding under W. Va. Code § 27-6A-1 et seq. to disclose the results of an involuntary examination made pursuant thereto;
11.2.1.c. Pursuant to an order of any court based upon a finding that the information is sufficiently relevant to a proceeding before the court to outweigh the importance of maintaining the confidentiality established by this section. Once a subpoena is received it is the duty of the custodian of the records to request a determination from the court having jurisdiction to make this finding before the records are provided;
11.2.1.d. To protect against a clear and substantial danger of imminent injury by a patient to himself or herself another; and
11.2.1.e. For treatment or internal review purposes, to staff of the mental health facility where the patient is being cared for or to other health professionals involved in treatment of the patient.
11.2.2. Patients shall be informed upon the commencement of any contact with medical or behavioral health professionals that their rights to confidentiality are limited in the ways set forth in this rule.
11.3. Authorization for Disclosure
11.3.1. All consents for the transmission or disclosure of confidential information shall be in writing and signed by the patient or by his or her legal guardian as required by applicable law. Every person signing an authorization shall be given a copy.
11.3.2. Every person requesting an authorization shall inform the patient or authorized representative that refusal to give an authorization will in no way jeopardize his or her right to obtain present or future treatment except where and to the extent disclosure is necessary for treatment of the patient or for the substantiation of a claim for payment from a person other than the patient.
11.4. Clinical Records
11.4.1. A clinical record shall be maintained at a mental health facility for each patient treated by the facility. The record shall contain all matters relating to the admission, legal status, treatment of the patient and all pertinent documents relating to the patient, including detailed results of:
(1) periodic examinations;
(2) individualized treatment programs, including the written, dated, individualized plan of care stating the specific outcome of treatment goals and the progress made towards realizing those goals, and dated notations of any change of outcome, treatment goals or plan of care;
(3) evaluations and re-evaluations;
(4) orders for treatment; and
(5) orders for application of mechanical or chemical restraints or seclusion.
11.4.2. Records. A facility shall maintain a written patient record on each patient, which shall include the following:
11.4.2.a. All information contained in the pre-admission data package, the post-admission data base, and the discharge records, plus the patient's sex, race, ethnic origin, next of kin, and type and place of employment;
11.4.2.b. A description of the patient's physical and mental status at the time of admission, a record of each physical examination, psychological report, or any other evaluations, including all those required by this rule, reports of laboratory, roentgenographic, or other diagnostic procedures, and reports of medical and surgical services when performed;
11.4.2.c. Physical and emotional diagnoses that have been made using a recognized diagnostic system;
11.4.2.d. A copy of the patient's individualized treatment plan and any modifications and evaluations of the plan, with an appropriate summary to guide direct care staff in implementing the plan;
11.4.2.e. The findings made in periodic review of the patient's response to his or her individualized treatment plan, with directions as to modifications, prepared by a professional involved in the patient's treatment program;
11.4.2.f. A copy of the post-institutionalization plan and any modifications to the plan, a summary of the steps that have been taken to implement that plan, and all social service reports;
11.4.2.g. A medication history and status, as required by this rule;
11.4.2.h. A signed order by authorized personnel for every occasion on which seclusion, mechanical restraints, or chemical restraints were used;
11.4.2.i. A description of any extraordinary incident or accident involving the patient, to be entered by a staff member noting personal knowledge of the incident or accident or other source of information, including all reports of investigations of mistreatment, as required by this rule;
11.4.2.j. Documentation of the consent of the patient or an appropriate legal representative for admission or treatment;
11.4.2.k. Correspondence concerning the patient's treatment signed and dated;
11.4.2.l. Documentation of the patient's and, as appropriate, family members' involvement in the patient's individualized treatment plan;
11.4.2.m. A summary of the extent and nature of any work activities and the effect of the activity upon the patient's progress;
11.4.2.n. A discharge summary, which shall be entered in the patient's record within a reasonable period of time, not to exceed 30 days, following discharge; and
11.4.2.o. A plan for aftercare.
11.4.3. If for any reason a patient's rights are restricted as permitted within this rule, the restriction, the time limits of the restriction, the reason for the restriction and any other information relevant for the restriction shall be made a part of the patient's fiscal or clinical record, as applicable. The entry of the restriction in the record shall be signed by the patient's treating physician.
11.4.4. Each patient's records shall be readily accessible to all professional staff. Appropriate records shall be maintained on a unit, and direct care staff involved with a particular patient shall have access to those portions of a patient's records relevant to treatment.
11.4.5. The Health Information Management Department (Medical Records) shall maintain, control, and supervise the patient records, and is responsible for maintaining their quality in accordance with 42 C.F.R. § 482.24 and the State Operations Manual.
11.5. Disclosure of Records.
11.5.1. Records shall only be disclosed:
11.5.1.a. Upon written consent of the patient pursuant to subsection 11.3 of this rule to any person or entity;
11.5.1.b. Upon the grounds set forth in subsection 11.2 of this rule;
11.5.1.c. To the attorney of the patient whether in conjunction with pending proceedings. In the interests of economy, the patient's attorney may be requested, but not required, to review the record to determine what portions of the record he or she wishes to have copied. If the attorney does not agree to the request, however, the entire record shall be provided. The facility is entitled to charge for the actual cost of copying any voluminous documents required where the patient has funds to pay;
11.5.1.d. To providers of health, social, or welfare services involved in caring for or rehabilitating the patient. The information shall be kept confidential and used solely for the benefit of the patient. No written consent is necessary for employees of the department, comprehensive behavioral health centers serving the patient, or advocates under contract with the department; or
11.5.1.e. With the consent of the patient or a person authorized to act for the patient, and the consent of the Secretary of the Department of Health and Human Resources, to:
11.5.1.e.1. Persons or agencies that require the information in order to provide continuing service to the patient; and
11.5.1.e.2. Insurers or other third-party payers, only information as is necessary to permit payment.
11.5.2. There is an obligation on the part of the facility staff to assure that a patient is provided access to the record in a clinically responsible manner. For those patients currently in treatment who ask to see records, a qualified clinical staff member should review the record with the patient providing interpretation and clarification as may be needed to assure that the patient has an accurate understanding of the content. Copies of any part of the record may be provided to the patient if requested and if, in the judgment of the interdisciplinary team and the physician, it would not be clinically inadvisable. Any discussion with the patient regarding the clinical record shall be documented in the record. When a former patient demands access to records, the same process shall be followed as described in this subdivision. If the request is made by mail and the patient indicates an inability to visit the facility for records review, arrangements shall be made through the behavioral health center serving the county of the patient's residence for review of the record with a clinical staff member of the behavioral health center, following the process outlined in this subsection.
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