2016 Colorado Revised Statutes
Title 12 - Professions and Occupations
Health Care
Article 43 - Mental Health
Part 2 - General Provisions
§ 12-43-218. Disclosure of confidential communications - definitions - repeal

(1) A licensee, registrant, or certificate holder shall not disclose, without the consent of the client, any confidential communications made by the client, or advice given to the client, in the course of professional employment. A licensee's, registrant's, or certificate holder's employee or associate, whether clerical or professional, shall not disclose any knowledge of said communications acquired in such capacity. Any person who has participated in any therapy conducted under the supervision of a licensee, registrant, or certificate holder, including group therapy sessions, shall not disclose any knowledge gained during the course of such therapy without the consent of the person to whom the knowledge relates.

(2) Subsection (1) of this section does not apply when:

(a) A client or the heirs, executors, or administrators of a client file suit or a complaint against a licensee, registrant, or certificate holder on any cause of action arising out of or connected with the care or treatment of the client by the licensee, registrant, or certificate holder;

(b) A licensee, registrant, or certificate holder was in consultation with a physician, registered professional nurse, licensee, registrant, or certificate holder against whom a suit or complaint was filed based on the case out of which said suit or complaint arises;

(c) A review of services of a licensee, registrant, or certificate holder is conducted by any of the following:

(I) A board or a person or group authorized by the board to make an investigation on its behalf;

(II) The governing board of a hospital licensed pursuant to part 1 of article 3 of title 25, C.R.S., where the licensee, registrant, or certificate holder practices or the medical staff of such hospital if the medical staff operates pursuant to written bylaws approved by the governing board of the hospital; or

(III) A professional review committee established pursuant to section 12-43-203 (11) if said person has signed a release authorizing such review.

(d) (I) A client, regardless of age:

(A) Makes an articulable and significant threat against a school or the occupants of a school; or

(B) Exhibits behaviors that, in the reasonable judgment of the licensee, registrant, or certificate holder, create an articulable and significant threat to the health or safety of students, teachers, administrators, or other school personnel.

(II) A licensee, registrant, or certificate holder who discloses information under this paragraph (d) shall limit the disclosure to appropriate school or school district personnel and law enforcement agencies. School or school district personnel to whom the information is disclosed shall maintain confidentiality of the disclosed information, regardless of whether the information constitutes an education record subject to FERPA, consistent with the requirements of FERPA and regulations and applicable guidelines adopted under FERPA, but may disclose information in accordance with section 1232g (b) (1) of FERPA and 34 CFR 99.36 if necessary to protect the health or safety of students or other persons.

(III) A licensee, registrant, or certificate holder who discloses or fails to disclose a confidential communication with a client in accordance with this paragraph (d) is not liable for damages in any civil action for disclosing or not disclosing the communication. This subparagraph (III) does not rescind any statutory duty to warn and protect specified in, and does not eliminate any potential civil liability for failure to comply with, section 13-21-117, C.R.S.

(IV) (A) This paragraph (d) does not apply to an education record that, under FERPA, is exempt from the HIPAA privacy rule.

(B) Notwithstanding subsection (6) of this section, this paragraph (d) applies to covered entities, as defined in HIPAA.

(V) As used in this paragraph (d):

(A) "Articulable and significant threat" means a threat to the health or safety of a person that, based on the totality of the circumstances, can be explained or articulated and that constitutes a threat of substantial bodily harm to a person.

(B) "FERPA" means the federal "Family Education Rights and Privacy Act of 1974", 20 U.S.C. sec. 1232g.

(C) "HIPAA" means the federal "Health Insurance Portability and Accountability Act of 1996", as amended, Pub.L. 104-191.

(D) "School" means a public or private preschool; elementary, middle, junior high, or high school; or institution of postsecondary education described in title 23, C.R.S., including the Auraria higher education center created in article 70 of title 23, C.R.S.

(VI) (A) This paragraph (d) takes effect only if, in accordance with section 26-1-140, C.R.S., the department of human services applies for and is granted an exception to the privacy rule under HIPAA.

(B) This subparagraph (VI) is repealed if the secretary of the federal department of health and human services grants the exception to the privacy rule under HIPAA. The executive director of the department of human services shall notify the revisor of statutes in writing if the condition specified in this sub-subparagraph (B) occurs.

(C) This paragraph (d) is repealed if the secretary of the federal department of health and human services denies the request for an exception to the privacy rule under HIPAA. The executive director of the department of human services shall notify the revisor of statutes in writing if the condition specified in this sub-subparagraph (C) occurs.

(3) The records and information produced and used in the review provided for in paragraph (c) of subsection (2) of this section do not become public records solely by virtue of the use of the records and information. The identity of a client whose records are reviewed shall not be disclosed to any person not directly involved in the review process, and procedures shall be adopted by a board, hospital, association, or society to ensure that the identity of the client is concealed during the review process itself and to comply with section 12-43-224 (4).

(4) Subsection (1) of this section shall not apply to any delinquency or criminal proceeding, except as provided in section 13-90-107, C.R.S., regarding any delinquency or criminal proceeding involving a licensed psychologist.

(5) Nothing in this section shall be deemed to prohibit any other disclosures required by law.

(6) This section does not apply to covered entities, their business associates, or health oversight agencies, as each is defined in the federal "Health Insurance Portability and Accountability Act of 1996", as amended by the federal "Health Information Technology for Economic and Clinical Health Act", and the respective implementing regulations.