38 U.S.C. § 7332 — Confidentiality of certain medical records

Page 1200 TITLE 38—VETERANS’ BENEFITS § 7330D (F) develop recommendations regarding both short- and long-term priorities for health care services furnished under the laws administered by the Secretary; (G) after consultation with veterans service organizations and other key stakeholders on survey development or modification of an ex- isting survey, consider a survey of veterans who have used hospital care, medical services, or extended care services furnished by the Vet- erans Health Administration during the most recent 2-year period to assess the satisfaction of the veterans with service and quality of care; (H) conduct a comprehensive examination of programs and policies of the Department re- garding the delivery of health care services and the demand of health care services for vet- erans in future years; (I) assess the remediation of medical service lines of the Department as described in section 1706A of this title in conjunction with the uti- lization of non-Department entities or pro- viders to offset remediation; and (J) consider such other matters as the Sec- retary considers appropriate. (c) RESPONSIBILITIES.—The Secretary shall be responsible for— (1) overseeing the transformation and orga- nizational change across the Department to achieve a high-performing integrated health care network; (2) developing the capital infrastructure planning and procurement processes, whether minor or major construction projects or leases; and (3) developing a multi-year budget process that is capable of forecasting future year budget requirements and projecting the cost of delivering health care services under such a high-performing integrated health care net- work. (d) APPROPRIATE COMMITTEES OF CONGRESS DE- FINED.—In this section, the term ‘‘appropriate committees of Congress’’ means— (1) the Committee on Veterans’ Affairs and the Committee on Appropriations of the Sen- ate; and (2) the Committee on Veterans’ Affairs and the Committee on Appropriations of the House of Representatives. (Added Pub. L. 115–182, title I, § 106(a), June 6, 2018, 132 Stat. 1413; amended Pub. L. 115–251, title II, § 211(a)(11), Sept. 29, 2018, 132 Stat. 3175.) Editorial Notes REFERENCES IN TEXT The date of the enactment of the Caring for Our Vet- erans Act of 2018, referred to in subsecs. (a)(3)(B) and (b), is the date of enactment of Pub. L. 115–182, which was approved June 6, 2018. AMENDMENTS 2018—Subsec. (a)(1). Pub. L. 115–251, § 211(a)(11)(A)(i), substituted ‘‘Secretary shall’’ for ‘‘Secretary of Vet- erans Affairs shall’’. Subsec. (a)(2)(B). Pub. L. 115–251, § 211(a)(11)(A)(ii)(I), substituted ‘‘Department across’’ for ‘‘Department of Veterans Affairs across’’. Subsec. (a)(2)(C). Pub. L. 115–251, § 211(a)(11)(A)(ii)(II), substituted ‘‘of this title’’ for ‘‘of title 38, as added by section 102’’. Subsec. (a)(2)(H)(i). Pub. L. 115–251, § 211(a)(11)(A)(ii)(III), substituted ‘‘Department’’ for ‘‘Department of Veterans Affairs’’. Subsec. (a)(4)(A)(iii). Pub. L. 115–251, § 211(a)(11)(A)(iii)(I), inserted ‘‘of this title’’ after ‘‘sec- tion 1703C’’. Subsec. (a)(4)(B). Pub. L. 115–251, § 211(a)(11)(A)(iii)(II), inserted ‘‘of this title’’ after ‘‘section 1703(b)’’. Subsec. (b)(2)(I). Pub. L. 115–251, § 211(a)(11)(B), in- serted ‘‘of this title’’ after ‘‘section 1706A’’. Subsec. (c)(1). Pub. L. 115–251, § 211(a)(11)(C)(i), sub- stituted ‘‘a high-performing’’ for ‘‘such high per- forming’’. Subsec. (c)(3). Pub. L. 115–251, § 211(a)(11)(C)(ii), in- serted ‘‘such’’ before ‘‘a high-performing’’. § 7330D. Inapplicability of Paperwork Reduction Act to research activities Subchapter I of chapter 35 of title 44 (com- monly referred to as the ‘‘Paperwork Reduction Act’’) shall not apply to the voluntary collec- tion of information during the conduct of re- search by the Veterans Health Administration, including the Office of Research and Develop- ment, or individuals or entities affiliated with the Veterans Health Administration. (Added Pub. L. 117–328, div. U, title I, § 181(a), Dec. 29, 2022, 136 Stat. 5435.) SUBCHAPTER III—PROTECTION OF PATIENT RIGHTS § 7331. Informed consent The Secretary, upon the recommendation of the Under Secretary for Health and pursuant to the provisions of section 7334 of this title, shall prescribe regulations establishing procedures to ensure that all medical and prosthetic research carried out and, to the maximum extent prac- ticable, all patient care furnished under this title shall be carried out only with the full and informed consent of the patient or subject or, in appropriate cases, a representative thereof. (Added Pub. L. 94–581, title I, § 111(a)(1), Oct. 21, 1976, 90 Stat. 2849, § 4131; renumbered § 7331 and amended Pub. L. 102–40, title IV, §§ 401(a)(4)(A), 402(d)(1), 403(a)(1), May 7, 1991, 105 Stat. 221, 239; Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984.) Editorial Notes AMENDMENTS 1992—Pub. L. 102–405 substituted ‘‘Under Secretary for Health’’ for ‘‘Chief Medical Director’’. 1991—Pub. L. 102–40, § 401(a)(4)(A), renumbered section 4131 of this title as this section. Pub. L. 102–40, § 403(a)(1), substituted ‘‘Secretary’’ for ‘‘Administrator’’. Pub. L. 102–40, § 402(d)(1), substituted ‘‘7334’’ for ‘‘4134’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Subchapter effective Oct. 21, 1976, see section 211 of Pub. L. 94–581, set out as an Effective Date of 1976 Amendment note under section 111 of this title. § 7332. Confidentiality of certain medical records (a)(1) Records of the identity, diagnosis, prog- nosis, or treatment of any patient or subject Page 1201 TITLE 38—VETERANS’ BENEFITS § 7332 which are maintained in connection with the performance of any program or activity (includ- ing education, training, treatment, rehabilita- tion, or research) relating to drug abuse, alco- holism or alcohol abuse, infection with the human immunodeficiency virus, or sickle cell anemia which is carried out by or for the De- partment under this title shall, except as pro- vided 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 cir- cumstances expressly authorized under sub- section (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 writ- ten 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 ex- tent, under such circumstances, and for such purposes as may be allowed in regulations pre- scribed 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 con- sent, the content of such record may be dis- closed by the Secretary as follows: (A) To medical personnel to the extent nec- essary to meet a bona fide medical emergency. (B) To qualified personnel for the purpose of conducting scientific research, management audits, financial audits, or program evalua- tion, but such personnel may not identify, di- rectly 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 perform- ance of any program or activity relating to in- fection 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 re- quires 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. (E) To an entity described in paragraph (1)(B) of section 5701(k) of this title, but only to the extent authorized by such section. (F)(i) To a representative of a patient who lacks decision-making capacity, when a prac- titioner deems the content of the given record necessary for that representative to make an informed decision regarding the patient’s treatment. (ii) In this subparagraph, the term ‘‘rep- resentative’’ means an individual, organiza- tion, or other body authorized under section 7331 of this title and its implementing regula- tions to give informed consent on behalf of a patient who lacks decision-making capacity. (G) To a State controlled substance moni- toring program, including a program approved by the Secretary of Health and Human Serv- ices under section 399O of the Public Health Service Act (42 U.S.C. 280g–3), to the extent necessary to prevent misuse and diversion of prescription medicines. (H)(i) To a non-Department entity (including private entities and other Federal agencies) for purposes of providing health care, includ- ing hospital care, medical services, and ex- tended care services, to patients or performing other health care-related activities or func- tions. (ii) An entity to which a record is disclosed under this subparagraph may not disclose or use such record for a purpose other than that for which the disclosure was made or as per- mitted by law. (I) To a third party in order to recover or collect reasonable charges for care furnished to, or paid on behalf of, a patient in connec- tion with a non-service connected disability as permitted by section 1729 of this title or for a condition for which recovery is authorized or with respect to which the United States is deemed to be a third party beneficiary under the Act entitled ‘‘An Act to provide for the re- covery from tortiously liable third persons of the cost of hospital and medical care and treatment furnished by the United States’’ (Public Law 87–693; 42 U.S.C. 2651 et seq.; com- monly known as the ‘‘Federal Medical Care Recovery Act’’). (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 per- sonal representative of such patient or subject and only if the Secretary determines that such disclosure is necessary for such survivor to ob- tain benefits to which such survivor may be en- titled, including the pursuit of legal action, but then only to the extent, under such cir- cumstances, and for such purposes as may be al- lowed in regulations prescribed pursuant to sec- tion 7334 of this title. (c) Except as authorized by a court order granted under subsection (b)(2)(D), no record re- ferred to in subsection (a) may be used to ini- tiate or substantiate any criminal charges against, or to conduct any investigation of, a pa- tient or subject. (d) The prohibitions of this section shall con- tinue to apply to records concerning any person Page 1202 TITLE 38—VETERANS’ BENEFITS § 7332 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 vet- erans, or determining eligibility for benefits under this title; or (2) between such components furnishing health care to veterans and the Armed Forces. (f)(1) Notwithstanding subsection (a) but sub- ject to paragraph (2), a physician or a profes- sional 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 en- courage the patient or subject to provide the in- formation to the spouse or sexual partner, rea- sonably believes that the patient or subject will not provide the information to the spouse or sexual partner and that the disclosure is nec- essary to protect the health of the spouse or sex- ual partner. (B) A disclosure under such paragraph may be made by a physician or counselor other than the physician or counselor referred to in subpara- graph (A) if such physician or counselor is un- available 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 of- fense 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 Pub. L. 94–581, title I, § 111(a)(1), Oct. 21, 1976, 90 Stat. 2849, § 4132; amended Pub. L. 100–322, title I, § 121, May 20, 1988, 102 Stat. 502; renumbered § 7332 and amended Pub. L. 102–40, title IV, §§ 401(a)(4)(A), 402(d)(1), 403(a)(1), (2), (4), (5), May 7, 1991, 105 Stat. 221, 239; Pub. L. 109–461, title II, § 204(b), Dec. 22, 2006, 120 Stat. 3411; Pub. L. 111–163, title V, § 504, May 5, 2010, 124 Stat. 1157; Pub. L. 112–74, div. H, title II, § 230(b), Dec. 23, 2011, 125 Stat. 1159; Pub. L. 115–26, § 3, Apr. 19, 2017, 131 Stat. 130; Pub. L. 115–182, title I, § 132, June 6, 2018, 132 Stat. 1427.) Editorial Notes REFERENCES IN TEXT Public Law 87–693, commonly known as the Federal Medical Care Recovery Act, referred to in subsec. (b)(2)(I), is Pub. L. 87–693, Sept. 25, 1962, 76 Stat. 593, which is classified generally to chapter 32 (§ 2651 et seq.) of Title 42, The Public Health and Welfare. For com- plete classification of this Act to the Code, see Tables. AMENDMENTS 2018—Subsec. (b)(2)(H), (I). Pub. L. 115–182 added sub- pars. (H) and (I) and struck out former subpar. (H), which read as follows: ‘‘(i) To a non-Department entity (including private entities and other Federal agencies) that provides hospital care or medical services to veterans as au- thorized by the Secretary. ‘‘(ii) An entity to which a record is disclosed under this subparagraph may not redisclose or use such record for a purpose other than that for which the disclosure was made.’’ 2017—Subsec. (b)(2)(H). Pub. L. 115–26 added subpar. (H). 2011—Subsec. (b)(2)(G). Pub. L. 112–74 added subpar. (G). 2010—Subsec. (b)(2)(F). Pub. L. 111–163 added subpar. (F). 2006—Subsec. (b)(2)(E). Pub. L. 109–461 added subpar. (E). 1991—Pub. L. 102–40, § 401(a)(4)(A), renumbered section 4132 of this title as this section. Subsec. (a)(1). Pub. L. 102–40, § 403(a)(4), struck out ‘‘of this section’’ after ‘‘subsections (e) and (f)’’ and after ‘‘subsection (b)’’. Pub. L. 102–40, § 403(a)(2), substituted ‘‘Department’’ for ‘‘Veterans’ Administration’’. Pub. L. 102–40, § 402(d)(1), substituted ‘‘5701’’ for ‘‘3301’’. Subsec. (a)(2). Pub. L. 102–40, § 403(a)(4), struck out ‘‘of this subsection’’ after ‘‘Paragraph (1)’’. Subsec. (b)(1). Pub. L. 102–40, § 403(a)(4), struck out ‘‘of this section’’ after ‘‘subsection (a)’’. Pub. L. 102–40, § 403(a)(1), substituted ‘‘Secretary’’ for ‘‘Administrator’’ in two places. Subsec. (b)(2). Pub. L. 102–40, § 403(a)(4), struck out ‘‘of this section’’ after ‘‘subsection (a)’’ in introductory provisions. Pub. L. 102–40, § 403(a)(1), substituted ‘‘Secretary’’ for ‘‘Administrator’’ in introductory provisions. Subsec. (b)(3). Pub. L. 102–40, § 403(a)(4), struck out ‘‘of this section’’ after ‘‘subsection (a)’’. Pub. L. 102–40, § 403(a)(1), substituted ‘‘Secretary’’ for ‘‘Administrator’’ in two places. Pub. L. 102–40, § 402(d)(1), substituted ‘‘7334’’ for ‘‘4134’’. Subsec. (c). Pub. L. 102–40, § 403(a)(4), struck out ‘‘of this section’’ after ‘‘subsection (b)(2)(D)’’ and after ‘‘subsection (a)’’. Subsec. (e)(1). Pub. L. 102–40, § 403(a)(2), substituted ‘‘Department’’ for ‘‘Veterans’ Administration’’. Subsec. (f)(1). Pub. L. 102–40, § 403(a)(4), struck out ‘‘of this section’’ after ‘‘subsection (a)’’ and ‘‘of this sub- section’’ after ‘‘paragraph (2)’’. Subsec. (f)(2)(A). Pub. L. 102–40, § 403(a)(4), struck out ‘‘of this subsection’’ after ‘‘paragraph (1)’’. Subsec. (f)(2)(B). Pub. L. 102–40, § 403(a)(5), struck out ‘‘of this paragraph’’ after ‘‘subparagraph (A)’’. Subsec. (g). Pub. L. 102–40, § 402(d)(1), substituted ‘‘5701(f)’’ for ‘‘3301(f)’’ in two places. 1988—Subsec. (a). Pub. L. 100–322, § 121(a), (e)(1), des- ignated existing provisions as par. (1), inserted ‘‘infec- tion with the human immunodeficiency virus,’’ after ‘‘alcohol abuse,’’, substituted ‘‘subsections (e) and (f)’’ for ‘‘subsection (e)’’, and added par. (2). Subsec. (b)(1). Pub. L. 100–322, § 121(b)(1), struck out ‘‘pursuant to section 4134 of this title’’ before period at end. Subsec. (b)(2)(C), (D). Pub. L. 100–322, § 121(b)(2), added subpar. (C) and redesignated former subpar. (C) as (D). Subsec. (c). Pub. L. 100–322, § 121(e)(2), substituted ‘‘subsection (b)(2)(D)’’ for ‘‘subsection (b)(2)(C)’’. Subsec. (f). Pub. L. 100–322, § 121(c)(2), added subsec. (f). Former subsec. (f) redesignated (g). Subsec. (g). Pub. L. 100–322, § 121(c)(1), (d), redesig- nated subsec. (f) as (g) and substituted ‘‘shall be fined, in the case of a first offense, up to the maximum amount provided under section 3301(f) of this title for a first offense under that section and, in the case of a Page 1203 TITLE 38—VETERANS’ BENEFITS § 7334 1 See References in Text note below. subsequent offense, up to the maximum amount pro- vided under section 3301(f) of this title for a subsequent offense under that section.’’ for ‘‘shall be fined not more than $500 in the case of a first offense, and not more than $5,000 in the case of each subsequent of- fense’’. § 7333. Nondiscrimination against alcohol and drug abusers and persons infected with the human immunodeficiency virus (a) Veterans eligible for treatment under chap- ter 17 of this title who are alcohol or drug abus- ers or who are infected with the human im- munodeficiency virus shall not be discriminated against in admission or treatment by any De- partment health-care facility solely because of their alcohol or drug abuse or dependency or be- cause of their viral infection. (b) The Secretary shall prescribe regulations for the enforcement of this section. Such regula- tions, with respect to the admission and treat- ment of such veterans who are alcohol or drug abusers, shall be prescribed in accordance with section 7334 of this title. (Added Pub. L. 94–581, title I, § 111(a)(1), Oct. 21, 1976, 90 Stat. 2850, § 4133; amended Pub. L. 100–322, title I, § 122(a), May 20, 1988, 102 Stat. 503; renumbered § 7333 and amended Pub. L. 102–40, title IV, §§ 401(a)(4)(A), 402(d)(1), 403(a)(1), (2), May 7, 1991, 105 Stat. 221, 239.) Editorial Notes AMENDMENTS 1991—Pub. L. 102–40, § 401(a)(4)(A), renumbered section 4133 of this title as this section. Subsec. (a). Pub. L. 102–40, § 403(a)(2), substituted ‘‘De- partment’’ for ‘‘Veterans’ Administration’’. Subsec. (b). Pub. L. 102–40, §§ 402(d)(1), 403(a)(1), sub- stituted ‘‘Secretary’’ for ‘‘Administrator’’ and ‘‘7334’’ for ‘‘4134’’. 1988—Pub. L. 100–322 substituted ‘‘Nondiscrimination against alcohol and drug abusers and persons infected with the human immunodeficiency virus’’ for ‘‘Non- discrimination in the admission of alcohol and drug abusers to Veterans’ Administration health care facili- ties’’ as section catchline, and amended text generally. Prior to amendment, text read as follows: ‘‘Veterans el- igible for treatment under chapter 17 of this title who are alcohol or drug abusers and who are suffering from medical disabilities shall not be discriminated against in admission or treatment, solely because of their alco- hol or drug abuse or dependence, by any Veterans’ Ad- ministration health care facility. The Administrator, pursuant to the provisions of section 4134 of this title, shall prescribe regulations for the enforcement of this nondiscrimination policy with respect to the admission and treatment of such eligible veterans who are alcohol or drug abusers.’’ Statutory Notes and Related Subsidiaries RESTRICTION ON TESTING FOR INFECTION WITH HUMAN IMMUNODEFICIENCY VIRUS Pub. L. 100–322, title I, § 124, May 20, 1988, 102 Stat. 505, as amended by Pub. L. 102–83, § 6(j)(3), Aug. 6, 1991, 105 Stat. 409, provided that the Secretary of Veterans Af- fairs could not conduct a widespread program to test for the human immunodeficiency virus unless funds for the program were appropriated, with an exception for voluntary testing, prior to repeal by Pub. L. 110–387, title IV, § 407, Oct. 10, 2008, 122 Stat. 4130. § 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 sec- tion 7333 of this title with respect to alcohol or drug abusers shall, to the maximum extent fea- sible 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 experimen- tation 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 Sub- jects of Biomedical and Behavioral Research, established by section 201 of the National Re- search Act (Public Law 93–348; 88 Stat. 348); and (2) regulations governing (A) the confiden- tiality of drug and alcohol abuse medical records, and (B) the admission of drug and al- cohol abusers to private and public hospitals, prescribed pursuant to the Comprehensive Al- cohol 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) 1 of this title), as are necessary to prevent cir- cumvention or evasion of such regulations or to facilitate compliance with such regulations. (d) In prescribing and implementing such regu- lations, 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 pre- scribe. (Added Pub. L. 94–581, title I, § 111(a)(1), Oct. 21, 1976, 90 Stat. 2851, § 4134; amended Pub. L. 97–295, § 4(87), Oct. 12, 1982, 96 Stat. 1312; Pub. L. 100–322, title I, § 122(a), May 20, 1988, 102 Stat. 504; renum- bered § 7334 and amended Pub. L. 102–40, title IV, §§ 401(a)(4)(A), 402(d)(1), 403(a)(1), (4), May 7, 1991, 105 Stat. 221, 239.) Editorial Notes REFERENCES IN TEXT Section 201 of the National Research Act, referred to in subsec. (b)(1), is section 201 of Pub. L. 93–348, title II, July 12, 1974, 88 Stat. 348, which was set out as a note under section 289l–1 of Title 42, The Public Health and Welfare, and was repealed by Pub. L. 95–622, title III, § 302(b), Nov. 9, 1978, 92 Stat. 3442. The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970 (42 U.S.C. 4551 et seq.), referred to in subsec. (b)(2), is