Openline
July-August 2000

Medical Records Privacy Law: Update
The Law . . . at a Glance
More Help Available on OIP's Web Site
Recent OIP Opinions: Public Disclosure of Legislative Materials; DHS Fair Hearing Decisions
Notes from the Editor

Medical Records Privacy Law: Update
Hawaii’s medical records privacy law (Chapter 323C, Hawaii Revised Statutes) passed in the 1999 Legislative Session and took effect July 1, 2000. The 2000 Legislature reconvened for a special session on August 7 to address concerns about the new law, and to deal with a separate issue of legislative terms.

The Legislature took action in the special session to postpone the effective date of 323C from July 1, 2000, to July 1, 2001. [Editor's Note: On August 22, the Legislature passed HB 2 and sent it to the Governor for signature. The Governor approved HB 2 on August 29 as Act 1. Act 1 is effective retroactive to July 1, 2000. Under Act 1, Chapter 323C, HRS, shall take effect on July 1, 2001.] The 2001 Legislative Session will provide an opportunity to clarify the law.

During the special session, Senate and House leaders expressed their desire to support the law in the next regular session. House Judiciary Committee Chairman Eric Hamakawa stated that the legislators are committed to the medical records privacy bill. On August 8, the Honolulu Advertiser quoted Representative Hamakawa as telling business, health care, and insurance representatives that the bill would not be killed next year.

Medical Privacy Task Force
On May 30, 2000, the Governor signed S.B. 2254 SD1 HD2 CD1 into law as Act 140. This act amends Chapter 323C and establishes a Medical Privacy Task Force within the Office of Information Practices.

The Task Force is to advise and assist the OIP in analyzing health care information issues for the purpose of drafting rules to implement the requirements of Chapter 323C.

The newly created Medical Privacy Task Force includes members of our community, private sector businesses, government agencies, and the medical industry.

Task Force Meetings Open to the Public
The full Task Force meets once monthly, and its meetings are open to the public. The Task Force has created three committees to focus on specific objectives of the task force: Rules; Compliance and Standards; and Education. These committees meet almost weekly.

All full Task Force meetings and committee meetings are open to members of the public, who are encouraged to provide input and comments.

Notice of meetings of the full Task Force and the three committees are filed at the Lieutenant Governor’s office, and are posted on the OIP’s web site.

The Law . . . at a Glance

• 1994 to 1998 - Legislation introduced at the Hawaii State Legislature in each of these years.
• 1998 - Patient Records Confidentiality Task Force works to prepare legislation aimed at protecting the privacy of patient records.
• May 4, 1999 - Legislature passes HB 351 HD2 SD1 CD1.
• June 23, 1999 - HB 351 signed into law as Act 87 (Chapter 323C, Hawaii Revised Statutes).
• June 1999 to July 2000 - Task Force and others prepare to implement the law.
• May 2000 - Legislature passes three bills amending the law:
• SB 2254 SD1 HD2 CD1 (Act 140) clarifies general rules for use and disclosure of protected health care information, and also establishes a Medical Privacy Task Force.
• HB 1491 HD1 SD1 CD1 (Act 91) makes housekeeping amendments to sections 323C-38 and 622-52, HRS, relating to subpoenas of health care information.
• SB 2151 SD1 HD1 CD1 (Act 127) requires a health care provider or public health authority to disclose health information relating to an individual’s mental health history to the county chief of police when the chief of police requests it, provided that (1) the information is used only to evaluate the individual’s fitness to acquire or own a firearm, and (2) the individual has signed a waiver permitting release of the health information for that purpose.
• July 1, 2000 - Act 87 takes effect (Chapter 323C, HRS).
• August 7, 2000 - Legislature opens special session to address concerns about the new law, and to deal with a separate issue of legislative terms. SB 2 and HB 2 are introduced, postponing effective date of Chapter 323C, HRS, from
  July 1, 2000, to July 1, 2001.
• August 22, 2000 - Last day of special session.
• January 17, 2001 - Opening Day of the 2001 Legislative Session.
• July 1, 2001 - Chapter 323C, HRS, to take effect if SB 2 or HB 2 passes during the 2000 special session.

[Editor's Note: On August 22, 2000, the Legislature passed HB 2 and sent it to the Governor for signature. The Governor approved HB 2 on August 29 as Act 1. Act 1 is effective retroactive to July 1, 2000. Under Act 1, Chapter 323C, HRS, shall take effect on July 1, 2001.]

More Help Available on OIP's Web Site
Visit the Office of Information Practices web site for more information about the medical records privacy law. The site, www.state.hi.us/oip, features a link to the law, including Chapter 323C, Hawaii Revised Statutes, and the three acts from the 2000 Legislative Session that amended the law.

You will also find information about the Medical Records Task Force and its committees, including notices of public meetings and agendas, and minutes of meetings.

Attorney General Opinion No. 00-02, regarding the effect of the law on state functions, is also available at the OIP site.

Recent OIP Opinions: Public Disclosure of Legislative Materials
A State Senator asked the OIP for a general advisory letter regarding the public disclosure requirements for legislative materials under Hawaii’s public records law. Specifically, what is an elected official obligated to disclose when a private citizen requests access to all materials relating to the policy development of an issue, including correspondence and personal notes from a majority caucus on the issue?

The OIP advised that a government agency has the discretion to withhold from public disclosure information that it maintains as part of its decision-making function pursuant to the deliberative process privilege under section 92F-13(3), Hawaii Revised Statutes, so long as the information is not mandated to be disclosed under section 92F-12, HRS. To qualify for this privilege, the deliberative material must have been created before the adoption of an agency policy and must be "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal policy matters" OIP Op. Ltr. 90-21 at 5 (June 20, 1990). [OIP Op. Ltr. No. 00-01, April 12, 2000]

DHS Fair Hearing Decisions
A member of the public requested copies of Department of Human Services ("DHS") fair hearing decisions which determine eligibility for general assistance. They identify the individuals to whom they pertain, and often contain sensitive medical or psychological information.

The UIPA requires that agencies make final opinions available to the public. This protects the public interest in open government by ensuring that agencies do not maintain secret law upon which their decisions are based. Section 346-10, HRS, requires that all applications and records concerning any applicant or recipient of public services or assistance be confidential. The OIP concluded that the policies behind the two statutes are not mutually exclusive, and that decisions from which individually identifying information has been removed will give effect to both sections 92F-12(a)(2) and 346-10, HRS.

The OIP also concluded that because the identifying information contained in the decisions is not necessarily a part of the law of the agency, it need not have been included in them. The DHS, being aware of both sections 92F-12(a)(2) and 346-10, HRS, continued to incorporate confidential information into the decisions, and therefore, should be responsible for the costs of redaction.

Finally, the OIP recommended that in the future the DHS Administrative Appeals Office format thedecisions to ensure that they do not contain information which will identify the individuals concerned. [OIP Op. Ltr. No. 00-02, May 23, 2000]

Notes from the Editor
What’s new on the OIP’s web site? . . . "What’s New" is what’s new
. . . Look in the contents bar for the "What’s New" link and a quick guide to new information on the site . . . For example, there is a new page on the Medical Privacy Task Force and links to Hawaii’s medical records privacy law . . .

The OIP’s home on the Web, www.state.hi.us/oip, is linked to the Hawaii State home page, which has an entirely new look . . . Enter the new State portal at www.state.hi.us, and from there you can explore general information about Hawaii as well as link to the many faces of Hawaii State government--executive, legislative, and judicial branches . . . Each month more information is added to these sites, with quick access to everything from fishing licenses to business registration information to the latest status of bills in the Legislature.