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HIV AIDS Resource Guide
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HIV-AIDS Resource Guide.iso
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VA.ASC
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1994-01-14
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/* 38 USC 7332 follows which provides signficiant protections to
Veterans seeking care for HIV. The section does permit some
disclosures, including disclosure of the HIV status of a person
to their sexual partners. Regulations which are required to be
instituted are under under consideration. The proposed
regulations are contained in this program. */
Section 7332. Confidentiality of certain medical records
(a) (1) Records of the identity, diagnosis, prognosis, or
treatment of any patient or subject which are maintained in
connection with the performance of any program or activity
(including education, training, treatment, rehabilitation, or
research) relating to drug abuse, alcoholism or alcohol abuse,
infection with the human immunodeficiency virus, or sickle cell
anemia which is carried out by or for the Department under this
title shall, except as provided in subsections (e) and (f), be
confidential, and (section 5701 of this title to the contrary
notwithstanding) such records may be disclosed only for the
purposes and under the circumstances expressly authorized under
subsection (b).
(2) Paragraph (1) prohibits the disclosure to any person or
entity other than the patient or subject concerned of the fact
that a special written consent is required in order for such
records to be disclosed.
(b) (1) The content of any record referred to in subsection (a)
may be disclosed by the Secretary in accordance with the prior
written consent of the patient or subject with respect to whom
such record is maintained, but only to such extent, under such
circumstances, and for such purposes as may be allowed in
regulations prescribed by the Secretary.
(2) Whether or not any patient or subject, with respect to
whom any given record referred to in subsection (a) is
maintained, gives written consent, the content of such record may
be disclosed by the Secretary as follows:
(A) To medical personnel to the extent necessary to
meet a bona fide medical emergency.
(B) To qualified personnel for the purpose of
conducting scientific research, management audits, financial
audits, or program evaluation, but such personnel may not
identify, directly or indirectly, any individual patient or
subject in any report of such research, audit, or evaluation, or
otherwise disclose patient or subject identities in any manner.
(C) (i) In the case of any record which is maintained
in connection with the performance of any program or activity
relating to infection with the human immunodeficiency virus, to a
Federal, State, or local public-health authority, charged under
Federal or State law with the protection of the public health,
and to which Federal or State law requires disclosure of such
record, if a qualified representative of such authority has made
a written request that such record be provided as required
pursuant to such law for a purpose authorized by such law.
(ii) A person to whom a record is disclosed under
this paragraph may not redisclose or use such record for a
purpose other than that for which the disclosure was made.
(D) If authorized by an appropriate order of a court of
competent jurisdiction granted after application showing good
cause therefor. In assessing good cause the court shall weigh the
public interest and the need for disclosure against the injury to
the patient or subject, to the physician-patient relationship,
and to the treatment services. Upon the granting of such order,
the court, in determining the extent to which any disclosure of
all or any part of any record is necessary, shall impose
appropriate safeguards against unauthorized disclosure.
(3) In the event that the patient or subject who is the
subject of any record referred to in subsection (a) is deceased,
the content of any such record may be disclosed by the Secretary
only upon the prior written request of the next of kin, executor,
administrator, or other personal representative of such patient
or subject and only if the Secretary determines that such
disclosure is necessary for such survivor to obtain benefits to
which such survivor may be entitled, including the pursuit of
legal action, but then only to the extent, under such
circumstances, and for such purposes as may be allowed in
regulations prescribed pursuant to section 7334 of this title.
(c) Except as authorized by a court order granted under
subsection (b)(2)(D), no record referred to in subsection (a) of
this section may be used to initiate or substantiate any criminal
charges against, or to conduct any investigation of, a patient or
subject.
(d) The prohibitions of this section shall continue to apply to
records concerning any person who has been a patient or subject,
irrespective of whether or when such person ceases to be a
patient.
(e) The prohibitions of this section shall not prevent any
interchange of records:
(1) within and among those components of the Department
furnishing health care to veterans, or determining eligibility
for benefits under this title; or
(2) between such components furnishing health care to
veterans and the Armed Forces.
/* One of the exceptions is a partner disclosure. */
(f) (1) Notwithstanding subsection (a) but subject to paragraph
(2), a physician or a professional counselor may disclose
information or records indicating that a patient or subject is
infected with the human immunodeficiency virus if the disclosure
is made to (A) the spouse of the patient or subject, or (B) to an
individual whom the patient or subject has, during the process of
professional counseling or of testing to determine whether the
patient or subject is infected with such virus, identified as
being a sexual partner of such patient or subject.
(2) (A) A disclosure under paragraph (1) may be made only if
the physician or counselor, after making reasonable efforts to
counsel and encourage the patient or subject to provide the
information to the spouse or sexual partner, reasonably believes
that the patient or subject will not provide the information to
the spouse or sexual partner and that the disclosure is necessary
to protect the health of the spouse or sexual partner.
(B) A disclosure under such paragraph may be made by a
physician or counselor other than the physician or counselor
referred to in subparagraph (A) if such physician or counselor is
unavailable by reason of absence or termination of employment to
make the disclosure.
(g) Any person who violates any provision of this section or any
regulation issued pursuant to this section shall be fined, in the
case of a first offense, up to the maximum amount provided under
section 5701(f) of this title for a first offense under that
section and, in the case of a subsequent offense, up to the
maximum amount provided under section 5701(f) of this title for a
subsequent offense under that section.
(Added Oct. 21, 1976, P. L. 94-581, Title I, 111(a)(1), 90 Stat.
2849; May 20, 1988, P. L. 100-322, Title I, Part C, 121, 102
Stat. 502; May 7, 1991, P. L. 102-40, Title IV, 401(a)(4)(A),
402(d)(1), 403(a)(1), (2), (4), (5), 105 Stat. 221, 239.)
Section 7333. Nondiscrimination against alcohol and drug abusers
and persons infected with the human immunodeficiency virus
(a) Veterans eligible for treatment under chapter 17 of this
title [38 USC 1701 et seq.] who are alcohol or drug abusers or
who are infected with the human immunodeficiency virus shall not
be discriminated against in admission or treatment by any
Department health-care facility solely because of their alcohol
or drug abuse or dependency or because of their viral infection.
(b) The Secretary shall prescribe regulations for the enforcement
of this section. Such regulations, with respect to the admission
and treatment of such veterans who are alcohol or drug abusers,
shall be prescribed in accordance with section 7334 of this
title.
/* These proposed regulations are reproduced in this program. The
final regulations will be added to the next update. */
(Added Oct. 21, 1976, P. L. 94-581, Title I, 111(a)(1), 90 Stat.
2850; May 20, 1988, P. L. 100-322, Title I, Part C, 122(a), 102
Stat. 503; May 7, 1991, P. L. 102-40, Title IV, 401(a)(4)(A),
402(d)(1), 403(a)(1), (2), 105 Stat. 221, 239.)
Section 7334. Regulations
(a) Regulations prescribed by the Secretary under section 7331 of
this title, section 7332 of this title with respect to the
confidentiality of alcohol and drug abuse medical records, and
section 7333 of this title with respect to alcohol or drug
abusers shall, to the maximum extent feasible consistent with
other provisions of this title, make applicable the regulations
described in subsection (b) to the conduct of research and to the
provision of hospital care, nursing home care, domiciliary care,
and medical services under this title.
(b) The regulations referred to in subsection (a) are:
(1) regulations governing human experimentation and informed
consent prescribed by the Secretary of Health and Human Services,
based on the recommendations of the National Commission for the
Protection of Human Subjects of Biomedical and Behavioral
Research, established by section 201 of the National Research Act
(Public Law 93-348; 88 Stat. 348); and
(2) regulations governing (A) the confidentiality of drug
and alcohol abuse medical records, and (B) the admission of drug
and alcohol abusers to private and public hospitals, prescribed
pursuant to the Comprehensive Alcohol Abuse and Alcoholism
Prevention, Treatment, and Rehabilitation Act of 1970 (42 U.S.C.
4551 et seq.) and the Drug Abuse Office and Treatment Act of 1972
(21 U.S.C. 1101 et seq.).
(c) Regulations prescribed by the Secretary under sections 7331,
7332, and 7333 of this title may contain such definitions, and
may provide for such safeguards and procedures (including
procedures and criteria for the issuance and scope of court
orders under section 7332(b)(2)(C) of this title), as are
necessary to prevent circumvention or evasion of such regulations
or to facilitate compliance with such regulations.
(d) In prescribing and implementing such regulations, the
Secretary shall, from time to time, consult with the Secretary of
Health and Human Services and, as appropriate, with the President
(or the delegate of the President) in order to achieve the
maximum possible coordination of the regulations, and the
implementation of the regulations, which they and the Secretary
prescribe.
(Added Oct. 21, 1976, P. L. 94-581, Title I, 111(a)(1), 90 Stat.
2851; Oct. 12, 1982, P. L. 97-295, 4(87), 96 Stat. 1312; May 20,
1988, P. L. 100-322, Title I, Part C, 122(a), 102 Stat. 504; May
7, 1991, P. L. 102-40, Title IV, 401(A)(4)(A), 402(d)(1),
403(a)(1), (4), 105 Stat. 221, 239.)