Virginia Administrative Code
Title 12 - HEALTH
Agency 35 - DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES
Chapter 115 - REGULATIONS TO ASSURE THE RIGHTS OF INDIVIDUALS RECEIVING SERVICES FROM PROVIDERS LICENSED, FUNDED, OR OPERATED BY THE DEPARTMENT OF BEHAVIORAL
Part III - Explanation of Individual Rights and Provider Duties
Section 12VAC35-115-90 - Access to and amendment of services records
Universal Citation: 2 VA Admin Code 35-115-90
Current through Register Vol. 41, No. 3, September 23, 2024
A. With respect to his own services record, each individual and his authorized representative has the right to:
1. See, read, and get a copy of his own
services record, except information that is privileged pursuant to §
8.01-581.17 of the Code of Virginia, and information compiled by the provider
in reasonable anticipation of or for use in a civil, criminal, or
administrative action or proceeding;
2. Let certain other people see, read, or get
a copy of his own services record if the individual is restricted by law from
seeing, reading, or receiving a copy;
3. Challenge, request to amend, or receive an
explanation of anything in his services record; and
4. Let anyone who sees his record, regardless
of whether amendments to the record have been made, know that the individual
has tried to amend the record or explain his position and what happened as a
result.
B. With respect to the services records of minors:
1. A minor
must have the permission of a parent, guardian, or other person standing in
loco parentis before he can access his services record. He may access his
services record without this permission only if the records pertain to
treatment for sexually transmitted or reportable contagious diseases, family
planning or pregnancy, outpatient care, treatment or rehabilitation for
substance use disorders, mental illness or emotional disturbance, or inpatient
psychiatric hospitalization when a minor is 14 years of age or older and has
consented to the admission.
2. A
parent may access his minor child's services record unless prohibited by 42 CFR
Part 2, parental rights have been terminated, a court order provides otherwise,
or the minor's treating physician or clinical psychologist has determined, in
the exercise of professional judgment, that disclosure to the parent would be
reasonably likely to cause substantial harm to the minor or another
person.
C. The provider's duties.
1. Providers shall tell
each individual and his authorized representative how he can access and request
amendment of his own services record.
2. Providers shall permit each individual to
see his services record when he requests it and to request amendments if
necessary.
a. Access to all or a part of an
individual's services record may be denied or limited only if a physician or a
clinical psychologist involved in providing services to the individual talks to
the individual, examines the services record as a result of the individual's
request for access, and signs and puts in the services record permanently a
written statement that he thinks access to the services record by the
individual at this time would be reasonably likely to endanger the life or
physical safety of the individual or another person or that the services record
makes reference to a person other than a health care provider and the access
requested would be reasonably likely to cause substantial harm to the
referenced person. The physician or clinical psychologist shall also tell the
individual as much about his services record as he can without risking harm to
the individual.
b. If access is
denied in whole or in part, the provider shall give the individual or his
authorized representative a written statement that explains the basis for the
denial, the individual's review rights, as set forth in the following
subdivisions, how he may exercise them, and how the individual may file a
complaint with the provider or the U.S. Department of Health and Human
Services, if applicable. If restrictions are placed on access, the individual
shall be notified of the restrictions and conditions for their removal. These
restrictions and conditions also shall be specified in the services record.
(1) If the individual requests a review of
denial of access, the provider shall designate a physician or clinical
psychologist who was not directly involved in the denial to review the decision
to deny access. The physician or clinical psychologist shall determine within a
reasonable period of time whether or not to deny the access requested in
accordance with the standard in subdivision 2 a of this subsection. The
provider shall promptly provide the individual notice of the physician's or
psychologist's determination and provide or deny access in accordance with that
determination.
(2) At the
individual's option, the individual may designate at his own expense a
reviewing physician or clinical psychologist who was not directly involved in
the denial to review the decision to deny access in accordance with the
standard in subdivision 2 a of this subsection. If the individual chooses this
option, the provider is not required to designate a physician or clinical
psychologist to review the decision.
c. If the provider limits or refuses to let
an individual see his services record, the provider shall also notify the
advocate and tell the individual that he can ask to have a lawyer or authorized
insurer of his choice see his record. If the individual makes this request, the
provider shall disclose the record to that lawyer or authorized insurer (§
8.01-413 of the Code of Virginia).
3. Providers shall, without charge, give
individuals any help they may need to read and understand their services record
and request amendments to it.
4. If
an individual asks to challenge, amend, or explain any information contained in
his services record, the provider shall investigate and file in the services
record a written report concerning the individual's request.
a. If the report finds that the services
record is incomplete, inaccurate, not pertinent, not timely, or not necessary,
the provider shall:
(1) Either mark that part
of the services record clearly to say so, or else remove that part of the
services record and file it separately with an appropriate cross reference to
indicate that the information was removed;
(2) Not disclose the original services record
without separate specific authorization or legal authority (e.g., if compelled
by subpoena or other court order);
(3) Obtain the individual's identification of
and agreement to have the provider notify the relevant persons of the
amendment; and
(4) Promptly notify
in writing all persons who have received the incorrect information and all
persons identified by the individual that the services record has been
corrected.
b. If a
request to amend the services record is denied, the provider shall give the
individual a written statement containing the basis for the denial and notify
the individual of his right to submit a statement of disagreement and how to
submit such a statement. The provider shall also give the individual (i) a
statement that if a statement of disagreement is not submitted that the
individual may request the provider to disclose the request for amendment and
the denial with future disclosures of information and (ii) a description of how
the individual may complain to the provider or the Secretary of Health and
Human Services, if applicable. Upon request, the provider shall file in the
services record the individual's statement of disagreement. If needed, the
provider shall help the individual to write this statement. If a statement is
filed, the provider shall:
(1) Give all
persons who have copies of the record a copy of the individual's
statement.
(2) Clearly note in any
later disclosure of the record that it is disputed and include a copy of the
statement with the disputed record.
Statutory Authority
§§ 37.2-203 and 37.2-400 of the Code of Virginia.
Disclaimer: These regulations may not be the most recent version. Virginia may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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