Section 191.656

Title XII PUBLIC HEALTH AND WELFARE

Chapter 191

Effective - 28 Aug 2002   

  191.656.  Confidentiality of reports and records, exceptions — violation, civil action for injunction, damages, costs and attorney fees — health care provider participating in judicial proceeding, immune from civil liability. — 1.  (1)  All information known to, and records containing any information held or maintained by, any person, or by any agency, department, or political subdivision of the state concerning an individual's HIV infection status or the results of any individual's HIV testing shall be strictly confidential and shall not be disclosed except to:

  (a)  Public employees within the agency, department, or political subdivision who need to know to perform their public duties;

  (b)  Public employees of other agencies, departments, or political subdivisions who need to know to perform their public duties;

  (c)  Peace officers, as defined in section 590.100, the attorney general or any assistant attorneys general acting on his or her behalf, as defined in chapter 27, and prosecuting attorneys or circuit attorneys as defined in chapter 56 and pursuant to section 191.657;

  (d)  Prosecuting attorneys or circuit attorneys as defined in chapter 56 to prosecute cases pursuant to section 191.677 or 567.020.  Prosecuting attorneys or circuit attorneys may obtain from the department of health and senior services the contact information and test results of individuals with whom the HIV-infected individual has had sexual intercourse or deviate sexual intercourse.  Any prosecuting attorney or circuit attorney who receives information from the department of health and senior services pursuant to the provisions of this section shall use such information only for investigative and prosecutorial purposes and such information shall be considered strictly confidential and shall only be released as authorized by this section;

  (e)  ^*Persons other than public employees who are entrusted^* with the regular care of those under the care and custody of a state agency, including but not limited to operators of day care facilities, group homes, residential care facilities and adoptive or foster parents;

  (f)  As authorized by subsection 2 of this section;

  (g)  Victims of any sexual offense defined in chapter 566, which includes sexual intercourse or deviate sexual intercourse, as an element of the crime or to a victim of a section 545.940^** offense, in which the court, for good cause shown, orders the defendant to be tested for HIV, hepatitis B, hepatitis C, syphilis, gonorrhea, or chlamydia, once the charge is filed.  Prosecuting attorneys or circuit attorneys, or the department of health and senior services may release information to such victims;

  (h)  Any individual who has tested positive or false positive to HIV, hepatitis B, hepatitis C, syphilis, gonorrhea, or chlamydia, may request copies of any and all test results relating to said infections.

  (2)  Further disclosure by public employees shall be governed by subsections 2 and 3 of this section;

  (3)  Disclosure by a public employee or any other person in violation of this section may be subject to civil actions brought under subsection 6 of this section, unless otherwise required by chapter 330, 332, 334, or 335, pursuant to discipline taken by a state licensing board.

  2.  (1)  Unless the person acted in bad faith or with conscious disregard, no person shall be liable for violating any duty or right of confidentiality established by law for disclosing the results of an individual's HIV testing:

  (a)  To the department of health and senior services;

  (b)  To health care personnel working directly with the infected individual who have a reasonable need to know the results for the purpose of providing direct patient health care;

  (c)  Pursuant to the written authorization of the subject of the test result or results;

  (d)  To the spouse of the subject of the test result or results;

  (e)  To the subject of the test result or results;

  (f)  To the parent or legal guardian or custodian of the subject of the testing, if he is an unemancipated minor;

  (g)  To the victim of any sexual offense defined in chapter 566, which includes sexual intercourse or deviate sexual intercourse, as an element of the crime or to a victim of a section 545.940^** offense, in which the court, for good cause shown, orders the defendant to be tested for HIV, hepatitis^*** B, hepatitis C, syphilis, gonorrhea, or chlamydia, once the charge is filed;

  (h)  To employees of a state licensing board in the execution of their duties under chapter 330, 332, 334, or 335 pursuant to discipline taken by a state licensing board;

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The department of health and senior services and its employees shall not be held liable for disclosing an HIV-infected person's HIV status to individuals with whom that person had sexual intercourse or deviate sexual intercourse;

  (2)  Paragraphs (b) and (d) of subdivision (1) of this subsection shall not be construed in any court to impose any duty on a person to disclose the results of an individual's HIV testing to a spouse or health care professional or other potentially exposed person, parent or guardian;

  (3)  No person to whom the results of an individual's HIV testing has been disclosed pursuant to paragraphs (b) and (c) of subdivision (1) of this subsection shall further disclose such results; except that prosecuting attorneys or circuit attorneys may disclose such information to defense attorneys defending actions pursuant to section 191.677 or 567.020 under the rules of discovery, or jurors or court personnel hearing cases pursuant to section 191.677 or 567.020.  Such information shall not be used or disclosed for any other purpose;

  (4)  When the results of HIV testing, disclosed pursuant to paragraph (b) of subdivision (1) of this subsection, are included in the medical record of the patient who is subject to the test, the inclusion is not a disclosure for purposes of such paragraph so long as such medical record is afforded the same confidentiality protection afforded other medical records.

  3.  All communications between the subject of HIV testing and a physician, hospital, or other person authorized by the department of health and senior services who performs or conducts HIV sampling shall be privileged communications.

  4.  The identity of any individual participating in a research project approved by an institutional review board shall not be reported to the department of health and senior services by the physician conducting the research project.

  5.  The subject of HIV testing who is found to have HIV infection and is aware of his or her HIV status shall disclose such information to any health care professional from whom such person receives health care services.  Said notification shall be made prior to receiving services from such health care professional if the HIV-infected person is medically capable of conveying that information or as soon as he or she becomes capable of conveying that information.

  6.  Any individual aggrieved by a violation of this section or regulations promulgated by the department of health and senior services may bring a civil action for damages.  If it is found in a civil action that:

  (1)  A person has negligently violated this section, the person is liable, for each violation, for:

  (a)  The greater of actual damages or liquidated damages of one thousand dollars; and

  (b)  Court costs and reasonable attorney's fees incurred by the person bringing the action; and

  (c)  Such other relief, including injunctive relief, as the court may deem appropriate; or

  (2)  A person has willfully or intentionally or recklessly violated this section, the person is liable, for each violation, for:

  (a)  The greater of actual damages or liquidated damages of five thousand dollars; and

  (b)  Exemplary damages; and

  (c)  Court costs and reasonable attorney's fees incurred by the person bringing the action; and

  (d)  Such other relief, including injunctive relief, as the court may deem appropriate.

  7.  No civil liability shall accrue to any health care provider as a result of making a good faith report to the department of health and senior services about a person reasonably believed to be infected with HIV, or cooperating in good faith with the department in an investigation determining whether a court order directing an individual to undergo HIV testing will be sought, or in participating in good faith in any judicial proceeding resulting from such a report or investigations; and any person making such a report, or cooperating with such an investigation or participating in such a judicial proceeding, shall be immune from civil liability as a result of such actions so long as taken in good faith.

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(L. 1988 H.B. 1151 & 1044 § 3, A.L. 1992 S.B. 511 & 556 merged with S.B. 638, A.L. 1993 S.B. 233, A.L. 1996 S.B. 858, A.L. 1999 H.B. 191, A.L. 2002 H.B. 1756)

*....* These words appear twice in original rolls.

**Section 566.135 was transferred to section 545.940 by S.B. 491, 2014, effective 1-01-17.

***Word "hepatitis" does not appear in original rolls.

(1998) Prosecutors, judges and juries are public employees with a need to know for prosecutions pursuant to section 191.677.  State v. Mahan, 971 S.W.2d 307 (Mo.banc).