2014 Indiana Code TITLE 16. HEALTH ARTICLE 41. PUBLIC HEALTH MEASURES FOR THE PREVENTION AND CONTROL OF DISEASE CHAPTER 8. COMMUNICABLE DISEASE: CONFIDENTIALITY REQUIREMENTS
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IC 16-41-8
Chapter 8.
Requirements
Communicable
Disease:
Confidentiality
IC 16-41-8-1
"Potentially disease transmitting offense"
Sec. 1. (a) As used in this chapter, "potentially disease
transmitting offense" means any of the following:
(1) Battery (IC 35-42-2-1(b)(2)).
(2) An offense relating to a criminal sexual act (as defined in
IC 35-31.5-2-216), if sexual intercourse or other sexual conduct
(as defined in IC 35-31.5-2-221.5) occurred.
The term includes an attempt to commit an offense, if sexual
intercourse or other sexual conduct (as defined in
IC 35-31.5-2-221.5) occurred, and a delinquent act that would be a
crime if committed by an adult.
(b) Except as provided in this chapter, a person may not disclose
or be compelled to disclose medical or epidemiological information
involving a communicable disease or other disease that is a danger to
health (as defined under rules adopted under IC 16-41-2-1). This
information may not be released or made public upon subpoena or
otherwise, except under the following circumstances:
(1) Release may be made of medical or epidemiologic
information for statistical purposes if done in a manner that does
not identify an individual.
(2) Release may be made of medical or epidemiologic
information with the written consent of all individuals identified
in the information released.
(3) Release may be made of medical or epidemiologic
information to the extent necessary to enforce public health
laws, laws described in IC 31-37-19-4 through IC 31-37-19-6,
IC 31-37-19-9 through IC 31-37-19-10, IC 31-37-19-12 through
IC 31-37-19-23, IC 35-38-1-7.1, and IC 35-45-21-1 or to protect
the health or life of a named party.
(4) Release may be made of the medical information of a person
in accordance with this chapter.
(c) Except as provided in this chapter, a person responsible for
recording, reporting, or maintaining information required to be
reported under IC 16-41-2 who recklessly, knowingly, or
intentionally discloses or fails to protect medical or epidemiologic
information classified as confidential under this section commits a
Class A misdemeanor.
(d) In addition to subsection (c), a public employee who violates
this section is subject to discharge or other disciplinary action under
the personnel rules of the agency that employs the employee.
(e) Release shall be made of the medical records concerning an
individual to:
(1) the individual;
(2) a person authorized in writing by the individual to receive
the medical records; or
(3) a coroner under IC 36-2-14-21.
(f) An individual may voluntarily disclose information about the
individual's communicable disease.
(g) The provisions of this section regarding confidentiality apply
to information obtained under IC 16-41-1 through IC 16-41-16.
As added by P.L.2-1993, SEC.24. Amended by P.L.181-1993, SEC.1;
P.L.1-1997, SEC.99; P.L.28-2002, SEC.2; P.L.99-2002, SEC.7;
P.L.135-2005, SEC.2; P.L.125-2009, SEC.1; P.L.114-2012, SEC.41;
P.L.158-2013, SEC.241.
IC 16-41-8-2
Voluntary contact notification program information; use as
evidence; release
Sec. 2. (a) Identifying information voluntarily given to the health
officer or an agent of the health officer through a voluntary contact
notification program may not be used as evidence in a court
proceeding to determine noncompliant behavior under IC 16-41-1
through IC 16-41-16.
(b) A court may release to:
(1) an individual; or
(2) a representative designated in writing by the individual;
information or records relating to the individual's medical condition
if the individual is a party in a pending action involving restriction of
the individual's actions under IC 16-41-1 through IC 16-41-16. A
person who obtains information under this subsection is subject to
section 1 of this chapter.
As added by P.L.2-1993, SEC.24.
IC 16-41-8-3
Violations
Sec. 3. (a) Except as otherwise provided, a person who recklessly
violates or fails to comply with this chapter commits a Class B
misdemeanor.
(b) Each day a violation continues constitutes a separate offense.
As added by P.L.2-1993, SEC.24.
IC 16-41-8-4
Procedure for obtaining medical information concerning a person
charged with certain offenses
Sec. 4. (a) This section applies to the release of medical
information that may be relevant to the prosecution or defense of a
person who has been charged with a potentially disease transmitting
offense.
(b) A:
(1) prosecuting attorney may seek to obtain access to a
defendant's medical information if the defendant has been
charged with a potentially disease transmitting offense; and
(2) defendant who has been charged with a potentially disease
transmitting offense may seek access to the medical information
of another person if the medical information would be relevant
to the defendant's defense;
by filing a verified petition for the release of medical information
with the court.
(c) The prosecuting attorney or defendant who files a petition
under subsection (b) shall serve a copy of the petition on:
(1) the person whose medical information is sought;
(2) the guardian, guardian ad litem, or court appointed special
advocate appointed for a minor, parent, or custodian of a person
who is incompetent, if applicable; and
(3) the provider that maintains the record, or the attorney
general if the provider is a state agency;
at the time of filing in accordance with Indiana Trial Rule 4.
(d) The court shall set the matter for hearing not later than twenty
(20) days after the date of filing.
(e) If, following a hearing for release of a person's medical
information, the court finds probable cause to believe that the medical
information may be relevant to the prosecution or defense of a person
who has been charged with a potentially disease transmitting offense,
the court shall order the person having custody of the person's
medical information to release the medical information to the court.
(f) The court shall examine the person's medical information in
camera. If, after examining the medical information in camera and
considering the evidence presented at the hearing, the court finds
probable cause to believe that the medical information is relevant to
the prosecution or defense of a person who has been charged with a
potentially disease transmitting offense, the court may order the
release of a person's medical information to the petitioner.
(g) In an order issued under subsection (f), the court shall:
(1) permit the disclosure of only those parts of the person's
medical information that are essential to fulfill the objective of
the order;
(2) restrict access to the medical information to those persons
whose need for the information is the basis of the order; and
(3) include in its order any other appropriate measures to limit
disclosure of the medical information to protect the right to
privacy of the person who is the subject of the medical
information.
(h) A hearing for the release of a person's medical information
may be closed to the public. The transcript of the hearing, the court's
order, and all documents filed in connection with the hearing are
confidential. In addition, if a person's medical information is
disclosed in a legal proceeding, the court shall order the record or
transcript of the testimony to be preserved as a confidential court
record.
(i) This section does not prohibit the application to medical
information of any law concerning medical information that is not
addressed by this section.
As added by P.L.125-2009, SEC.2. Amended by P.L.1-2010, SEC.72.
IC 16-41-8-5
Medical screening of a person charged with certain offenses
Sec. 5. (a) This section does not apply to medical testing of an
individual for whom an indictment or information is filed for a sex
crime and for whom a request to have the individual tested under
section 6 of this chapter is filed.
(b) The following definitions apply throughout this section:
(1) "Bodily fluid" means blood, human waste, or any other
bodily fluid.
(2) "Dangerous disease" means any of the following:
(A) Chancroid.
(B) Chlamydia.
(C) Gonorrhea.
(D) Hepatitis.
(E) Human immunodeficiency virus (HIV).
(F) Lymphogranuloma venereum.
(G) Syphilis.
(H) Tuberculosis.
(3) "Offense involving the transmission of a bodily fluid" means
any offense (including a delinquent act that would be a crime if
committed by an adult) in which a bodily fluid is transmitted
from the defendant to the victim in connection with the
commission of the offense.
(c) This subsection applies only to a defendant who has been
charged with a potentially disease transmitting offense. At the request
of an alleged victim of the offense, the parent, guardian, or custodian
of an alleged victim who is less than eighteen (18) years of age, or
the parent, guardian, or custodian of an alleged victim who is an
endangered adult (as defined in IC 12-10-3-2), the prosecuting
attorney shall petition a court to order a defendant charged with the
commission of a potentially disease transmitting offense to submit to
a screening test to determine whether the defendant is infected with
a dangerous disease. In the petition, the prosecuting attorney must set
forth information demonstrating that the defendant has committed a
potentially disease transmitting offense. The court shall set the matter
for hearing not later than forty-eight (48) hours after the prosecuting
attorney files a petition under this subsection. The alleged victim, the
parent, guardian, or custodian of an alleged victim who is less than
eighteen (18) years of age, and the parent, guardian, or custodian of
an alleged victim who is an endangered adult (as defined in
IC 12-10-3-2) are entitled to receive notice of the hearing and are
entitled to attend the hearing. The defendant and the defendant's
counsel are entitled to receive notice of the hearing and are entitled
to attend the hearing. If, following the hearing, the court finds
probable cause to believe that the defendant has committed a
potentially disease transmitting offense, the court may order the
defendant to submit to a screening test for one (1) or more dangerous
diseases. If the defendant is charged with battery (IC
35-42-2-1(b)(2)), the court may limit testing under this subsection to
a test only for human immunodeficiency virus (HIV). However, the
court may order additional testing for human immunodeficiency virus
(HIV) as may be medically appropriate. The court shall take actions
to ensure the confidentiality of evidence introduced at the hearing.
(d) This subsection applies only to a defendant who has been
charged with an offense involving the transmission of a bodily fluid.
At the request of an alleged victim of the offense, the parent,
guardian, or custodian of an alleged victim who is less than eighteen
(18) years of age, or the parent, guardian, or custodian of an alleged
victim who is an endangered adult (as defined in IC 12-10-3-2), the
prosecuting attorney shall petition a court to order a defendant
charged with the commission of an offense involving the
transmission of a bodily fluid to submit to a screening test to
determine whether the defendant is infected with a dangerous disease.
In the petition, the prosecuting attorney must set forth information
demonstrating that:
(1) the defendant has committed an offense; and
(2) a bodily fluid was transmitted from the defendant to the
victim in connection with the commission of the offense.
The court shall set the matter for hearing not later than forty-eight
(48) hours after the prosecuting attorney files a petition under this
subsection. The alleged victim of the offense, the parent, guardian, or
custodian of an alleged victim who is less than eighteen (18) years of
age, and the parent, guardian, or custodian of an alleged victim who
is an endangered adult (as defined in IC 12-10-3-2) are entitled to
receive notice of the hearing and are entitled to attend the hearing.
The defendant and the defendant's counsel are entitled to receive
notice of the hearing and are entitled to attend the hearing. If,
following the hearing, the court finds probable cause to believe that
the defendant has committed an offense and that a bodily fluid was
transmitted from the defendant to the alleged victim in connection
with the commission of the offense, the court may order the
defendant to submit to a screening test for one (1) or more dangerous
diseases. If the defendant is charged with battery (IC
35-42-2-1(b)(2)), the court may limit testing under this subsection to
a test only for human immunodeficiency virus (HIV). However, the
court may order additional testing for human immunodeficiency virus
(HIV) as may be medically appropriate. The court shall take actions
to ensure the confidentiality of evidence introduced at the hearing.
(e) The testimonial privileges applying to communication between
a husband and wife and between a health care provider and the health
care provider's patient are not sufficient grounds for not testifying or
providing other information at a hearing conducted in accordance
with this section.
(f) A health care provider (as defined in IC 16-18-2-163) who
discloses information that must be disclosed to comply with this
section is immune from civil and criminal liability under Indiana
statutes that protect patient privacy and confidentiality.
(g) The results of a screening test conducted under this section
shall be kept confidential if the defendant ordered to submit to the
screening test under this section has not been convicted of the
potentially disease transmitting offense or offense involving the
transmission of a bodily fluid with which the defendant is charged.
The results may not be made available to any person or public or
private agency other than the following:
(1) The defendant and the defendant's counsel.
(2) The prosecuting attorney.
(3) The department of correction or the penal facility, juvenile
detention facility, or secure private facility where the defendant
is housed.
(4) The alleged victim or the parent, guardian, or custodian of
an alleged victim who is less than eighteen (18) years of age, or
the parent, guardian, or custodian of an alleged victim who is an
endangered adult (as defined in IC 12-10-3-2), and the alleged
victim's counsel.
The results of a screening test conducted under this section may not
be admitted against a defendant in a criminal proceeding or against
a child in a juvenile delinquency proceeding.
(h) As soon as practicable after a screening test ordered under this
section has been conducted, the alleged victim or the parent,
guardian, or custodian of an alleged victim who is less than eighteen
(18) years of age, or the parent, guardian, or custodian of an alleged
victim who is an endangered adult (as defined in IC 12-10-3-2), and
the victim's counsel shall be notified of the results of the test.
(i) An alleged victim may disclose the results of a screening test
to which a defendant is ordered to submit under this section to an
individual or organization to protect the health and safety of or to
seek compensation for:
(1) the alleged victim;
(2) the alleged victim's sexual partner; or
(3) the alleged victim's family.
(j) The court shall order a petition filed and any order entered
under this section sealed.
(k) A person that knowingly or intentionally:
(1) receives notification or disclosure of the results of a
screening test under this section; and
(2) discloses the results of the screening test in violation of this
section;
commits a Class B misdemeanor.
As added by P.L.125-2009, SEC.3. Amended by P.L.94-2010, SEC.5;
P.L.158-2013, SEC.242.
IC 16-41-8-6
Right of a victim to require certain defendants to undergo HIV
testing; procedures
Sec. 6. (a) If an indictment or information alleges that the
defendant compelled another person to engage in sexual activity by
force or threat of force, the alleged victim of the offense described in
the indictment or information may request that the defendant against
whom the indictment or information is filed be tested for the human
immunodeficiency virus (HIV).
(b) Not later than forty-eight (48) hours after an alleged victim
described in subsection (a) requests that the defendant be tested for
the human immunodeficiency virus (HIV), the defendant must be
tested for the human immunodeficiency virus (HIV).
(c) As soon as practicable, the results of a test for the human
immunodeficiency virus (HIV) conducted under subsection (b) shall
be sent to:
(1) the alleged victim;
(2) the parent or guardian of the alleged victim, if the alleged
victim is less than eighteen (18) years of age; and
(3) the defendant.
(d) If follow-up testing of the defendant for the human
immunodeficiency virus (HIV) is necessary, the results of follow-up
testing of the defendant shall be sent to:
(1) the alleged victim;
(2) the parent or guardian of the alleged victim if the alleged
victim is less than eighteen (18) years of age; and
(3) the defendant.
As added by P.L.94-2010, SEC.6.
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