Administration of State Institutions
Disclosure of written accounts by health care services provider
(1)As used in this section:
(a)“Disclosure” means the release of, transfer of, provision of access to or divulgence in any other manner of information outside the health care services provider holding the information.
(b)“Health care services provider” means:
(A)Medical personnel or other staff employed by or under contract with a public provider to provide health care or maintain written accounts of health care provided to individuals; or
(B)Units, programs or services designated, operated or maintained by a public provider to provide health care or maintain written accounts of health care provided to individuals.
(c)“Individually identifiable health information” means any health information that is:
(A)Created or received by a health care services provider; and
(B)Identifiable to an individual, including demographic information that identifies the individual, or for which there is a reasonable basis to believe the information can be used to identify an individual, and that relates to:
(i)The past, present or future physical or mental health or condition of an individual;
(ii)The provision of health care to an individual; or
(d)“Personal representative” includes but is not limited to:
(A)A person appointed as a guardian under ORS 125.305 (Order of appointment), 419B.372 (Guardianship as incident of custody), 419C.481 (Guardianship and legal custody of youth offender committed to Oregon Youth Authority) or 419C.555 (Authority to appoint guardian) with authority to make medical and health care decisions;
(B)A person appointed as a health care representative under ORS 127.505 (Definitions for ORS 127.505 to 127.660) to 127.660 (Short title) or a representative under ORS 127.700 (Definitions for ORS 127.700 to 127.737) to 127.737 (Certain other laws applicable to declaration) to make health care decisions or mental health treatment decisions; and
(C)A person appointed as a personal representative under ORS chapter 113.
(e)“Psychotherapy notes” means notes recorded in any medium:
(A)By a mental health professional, in the performance of the official duties of the mental health professional;
(B)Documenting or analyzing the contents of conversation during a counseling session; and
(C)That are maintained separately from the rest of the individual’s record.
(f)“Psychotherapy notes” does not mean notes documenting:
(A)Medication prescription and monitoring;
(B)Counseling session start and stop times;
(C)Modalities and frequencies of treatment furnished;
(D)Results of clinical tests; or
(E)Any summary of the following items:
(vi)Progress to date.
(g)“Public provider” means:
(A)The Oregon State Hospital campuses;
(B)Department of Corrections institutions as defined in ORS 421.005 (Definitions);
(C)A contractor of the Department of Corrections or the Oregon Health Authority that provides health care to individuals residing in a state institution operated by the agencies;
(D)A community mental health program or community developmental disabilities program as described in ORS 430.610 (Legislative policy) to 430.695 (Treatment of certain receipts as offsets to state funds) and the public and private entities with which it contracts to provide mental health or developmental disabilities programs or services;
(E)A program or service provided under ORS 431.001 (Findings) to 431.550 (Power of Oregon Health Authority to collect information from local public health administrators) and 431.990 (Penalties);
(F)A program or service established or maintained under ORS 430.630 (Services to be provided by community mental health programs) or 430.664 (Requirements for developmental disabilities programs and support service brokerages);
(G)A program or facility providing an organized full-day or part-day program of treatment that is licensed, approved, established, maintained or operated by or contracted with the Oregon Health Authority for alcoholism, drug addiction or mental or emotional disturbance;
(H)A program or service providing treatment by appointment that is licensed, approved, established, maintained or operated by or contracted with the authority for alcoholism, drug addiction or mental or emotional disturbance; or
(I)The impaired health professional program established under ORS 676.190 (Establishment of program).
(h)“Written account” means records containing only individually identifiable health information.
(2)Except as provided in subsections (3), (4), (6), (7), (8), (9), (11), (12), (14), (15), (16), (17) and (18) of this section or unless otherwise permitted or required by state or federal law or by order of the court, written accounts of the individuals served by any health care services provider maintained in or by the health care services provider by the officers or employees thereof who are authorized to maintain written accounts within the official scope of their duties are not subject to access and may not be disclosed. This subsection applies to written accounts maintained in or by facilities of the Department of Corrections only to the extent that the written accounts concern the medical, dental or psychiatric treatment as patients of those under the jurisdiction of the Department of Corrections.
(3)If the individual or a personal representative of the individual provides an authorization, the content of any written account referred to in subsection (2) of this section must be disclosed accordingly, if the authorization is in writing and is signed and dated by the individual or the personal representative of the individual and sets forth with specificity the following:
(a)Name of the health care services provider authorized to make the disclosure, except when the authorization is provided by recipients of or applicants for public assistance or medical assistance, as defined in ORS 414.025 (Definitions for ORS chapters 411, 413 and 414), to a governmental entity for purposes of determining eligibility for benefits or investigating for fraud;
(b)Name or title of the persons or organizations to which the information is to be disclosed or that information may be disclosed to the public;
(c)Name of the individual;
(d)Extent or nature of the information to be disclosed; and
(e)Statement that the authorization is subject to revocation at any time except to the extent that action has been taken in reliance thereon, and a specification of the date, event or condition upon which it expires without express revocation. However, a revocation of an authorization is not valid with respect to inspection or records necessary to validate expenditures by or on behalf of governmental entities.
(4)The content of any written account referred to in subsection (2) of this section may be disclosed without an authorization:
(a)To any person to the extent necessary to meet a medical emergency.
(b)At the discretion of the responsible officer of the health care services provider, which in the case of any Oregon Health Authority facility or community mental health program is the Director of the Oregon Health Authority, to persons engaged in scientific research, program evaluation, peer review and fiscal audits. However, individual identities may not be disclosed to such persons, except when the disclosure is essential to the research, evaluation, review or audit and is consistent with state and federal law.
(c)To governmental agencies when necessary to secure compensation for services rendered in the treatment of the individual.
(5)When an individual’s identity is disclosed under subsection (4) of this section, a health care services provider shall prepare, and include in the permanent records of the health care services provider, a written statement indicating the reasons for the disclosure, the written accounts disclosed and the recipients of the disclosure.
(6)The content of any written account referred to in subsection (2) of this section and held by a health care services provider currently engaged in the treatment of an individual may be disclosed to officers or employees of that provider, its agents or cooperating health care services providers who are currently acting within the official scope of their duties to evaluate treatment programs, to diagnose or treat or to assist in diagnosing or treating an individual when the written account is to be used in the course of diagnosing or treating the individual. Nothing in this subsection prevents the transfer of written accounts referred to in subsection (2) of this section among health care services providers, the Department of Corrections, the Oregon Health Authority or a local correctional facility when the transfer is necessary or beneficial to the treatment of an individual.
(7)When an action, suit, claim, arbitration or proceeding is brought under ORS 34.105 (Definitions for ORS 34.105 to 34.240) to 34.240 (Appeal) or 34.310 (Purpose of writ) to 34.730 (Forfeiture for refusing copy of order or process) and involves a claim of constitutionally inadequate medical care, diagnosis or treatment, or is brought under ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive) and involves the Department of Corrections or an institution operated by the department, nothing in this section prohibits the disclosure of any written account referred to in subsection (2) of this section to the Department of Justice, Oregon Department of Administrative Services, or their agents, upon request, or the subsequent disclosure to a court, administrative hearings officer, arbitrator or other administrative decision maker.
(8)(a) When an action, suit, claim, arbitration or proceeding involves the Oregon Health Authority or an institution operated by the authority, nothing in this section prohibits the disclosure of any written account referred to in subsection (2) of this section to the Department of Justice, Oregon Department of Administrative Services, or their agents.
(b)Disclosure of information in an action, suit, claim, nonlabor arbitration or proceeding is limited by the relevancy restrictions of ORS 40.010 (Rule 100. Short title) to 40.585 (Rule 1008. Functions of court and jury), 183.710 (Definitions for ORS 183.710 to 183.730) to 183.730 (Review of rule by Oregon Sunshine Committee), 183.745 (Civil penalty procedures) and 183.750 (State agency required to prepare public writings in readable form) and ORS chapter 183. Only written accounts of a plaintiff, claimant or petitioner shall be disclosed under this paragraph.
(c)Disclosure of information as part of a labor arbitration or proceeding to support a personnel action taken against staff is limited to written accounts directly relating to alleged action or inaction by staff for which the personnel action was imposed.
(9)(a) The copy of any written account referred to in subsection (2) of this section, upon written request of the individual or a personal representative of the individual, shall be disclosed to the individual or the personal representative of the individual within a reasonable time not to exceed five working days. The individual or the personal representative of the individual shall have the right to timely access to any written accounts.
(b)If the disclosure of psychiatric or psychological information contained in the written account would constitute an immediate and grave detriment to the treatment of the individual, disclosure may be denied, if medically contraindicated by the treating physician or a licensed health care professional in the written account of the individual.
(c)The Department of Corrections may withhold psychiatric or psychological information if:
(A)The information relates to an individual other than the individual seeking it.
(B)Disclosure of the information would constitute a danger to another individual.
(C)Disclosure of the information would compromise the privacy of a confidential source.
(d)However, a written statement of the denial under paragraph (c) of this subsection and the reasons therefor must be entered in the written account.
(10)A health care services provider may require a person requesting disclosure of the contents of a written account under this section to reimburse the provider for the reasonable costs incurred in searching files, abstracting if requested and copying if requested. However, an individual or a personal representative of the individual may not be denied access to written accounts concerning the individual because of inability to pay.
(11)A written account referred to in subsection (2) of this section may not be used to initiate or substantiate any criminal, civil, administrative, legislative or other proceedings conducted by federal, state or local authorities against the individual or to conduct any investigations of the individual. If the individual, as a party to an action, suit or other judicial proceeding, voluntarily produces evidence regarding an issue to which a written account referred to in subsection (2) of this section would be relevant, the contents of that written account may be disclosed for use in the proceeding.
(12)Information obtained in the course of diagnosis, evaluation or treatment of an individual that, in the professional judgment of the health care services provider, indicates a clear and immediate danger to others or to society may be reported to the appropriate authority. A decision not to disclose information under this subsection does not subject the provider to any civil liability. Nothing in this subsection may be construed to alter the provisions of ORS 146.750 (Injuries to be reported to law enforcement agency), 146.760 (Immunity of participant in making of report), 419B.010 (Duty of officials to report child abuse), 419B.015 (Report form and content), 419B.020 (Duty of department or law enforcement agency receiving report), 419B.025 (Immunity of person making report in good faith), 419B.030 (Central registry of reports), 419B.035 (Confidentiality of records), 419B.040 (Certain privileges not grounds for excluding evidence in court proceedings on child abuse) and 419B.045 (Investigation conducted on school premises).
(13)The prohibitions of this section apply to written accounts concerning any individual who has been treated by any health care services provider irrespective of whether or when the individual ceases to receive treatment.
(14)Persons other than the individual or the personal representative of the individual who are granted access under this section to the contents of a written account referred to in subsection (2) of this section may not disclose the contents of the written account to any other person except in accordance with the provisions of this section.
(15)Nothing in this section prevents the Department of Human Services or the Oregon Health Authority from disclosing the contents of written accounts in its possession to individuals or agencies with whom children in its custody are placed.
(16)The system described in ORS 192.517 (Access to records of individual with disability or individual with mental illness) (1) shall have access to records, as defined in ORS 192.515 (Definitions for ORS 192.515 and 192.517), as provided in ORS 192.517 (Access to records of individual with disability or individual with mental illness).
(17)(a) Except as provided in paragraph (b) of this subsection, a health care services provider must obtain an authorization from an individual or a personal representative of the individual to disclose psychotherapy notes.
(b)A health care services provider may use or disclose psychotherapy notes without obtaining an authorization from the individual or a personal representative of the individual to carry out the following treatment, payment and health care operations:
(A)Use by the originator of the psychotherapy notes for treatment;
(B)Disclosure by the health care services provider for its own training program in which students, trainees or practitioners in mental health learn under supervision to practice or improve their skills in group, joint, family or individual counseling; or
(C)Disclosure by the health care services provider to defend itself in a legal action or other proceeding brought by the individual or a personal representative of the individual.
(c)An authorization for the disclosure of psychotherapy notes may not be combined with an authorization for a disclosure of any other individually identifiable health information, but may be combined with another authorization for a disclosure of psychotherapy notes.
(18)A health care services provider may disclose information contained in a written account if the conditions of ORS 192.567 (Disclosure without authorization form) (1) to (5) or 192.577 (Disclosure of information concerning adult in custody of Department of Corrections) are met. [1973 c.736 §2; 1977 c.812 §3; 1981 c.326 §2; 1985 c.219 §1; 1987 c.320 §134; 1987 c.322 §1; 1989 c.81 §1; 1991 c.175 §1; 1991 c.807 §1; 1993 c.262 §3; 1993 c.546 §101; 2001 c.900 §44; 2003 c.88 §2; 2005 c.498 §5; 2009 c.595 §145; 2009 c.697 §12; 2011 c.720 §65; 2013 c.36 §55; 2013 c.688 §24; 2015 c.318 §12; 2015 c.473 §4; 2015 c.736 §53; 2017 c.484 §3]
Notes of Decisions
Proper disclosure of confidential information indicating clear and immediate danger to others does not extinguish federal rule privilege barring therapist from subsequently testifying regarding confidential information. U.S. v. Chase, 340 F3d 978 (9th Cir. 2003)
Atty. Gen. Opinions
Access to Mental Health Division's patient records, (1973) Vol 36, p 658; release of patient's confidential case records, (1974) Vol 36, p 1080; use of division's client records by another departmental division, (1974) Vol 37, p 186; authority of Department of Revenue for access to confidential medical information to apply on behalf of patient under care of Mental Health Division for medical benefits, (1974) Vol 37, p 269
Law Review Citations
52 WLR 383 (2016)