Attorney General's Opinion
Attorney General, Richard Blumenthal
April 13, 1992
Susan S. Addiss, MPH, MUrS
Commissioner-Department of Health Services
150 Washington Street
Hartford, CT 06106
Dear Commissioner Addiss:
This is in response to your request for a formal opinion regarding the confidentiality of information that the Department maintains on individuals with acquired immunodeficiency syndrome (AIDS), human immunodeficiency virus (HIV), and hepatitis B. To better respond to the issues posed in your memoranda, we have framed your inquiry as follows:
1. Whether the Department's AIDS Section or Epidemiology Section, both of which collect personally identifiable information on reportable diseases, pursuant to Conn.Gen.Stat. § 19a-5, can share information on whether a licensed health care worker has been diagnosed as having AIDS, HIV or hepatitis B, with the Department's Division of Medical Quality Assurance, which investigates complaints against licensees, or with the relevant licensing board, which hears and decides all licensing actions regarding members of its profession.
2. Whether the Department's records of investigation regarding professional licensees, which contain information or allegations that the licensee has AIDS or HIV, are confidential information pursuant to Conn.Gen.Stat. § 19a-583, or subject to public disclosure pursuant to Conn.Gen.Stat. § 1-19(a).
The answer to the first question is that the Department's AIDS Section and Epidemiology Section cannot disclose information on a licensee's health status to the Department's Division of Medical Quality Assurance or to a licensing board. Conn.Gen.Stat. § 19a-25, which governs the confidentiality of morbidity and mortality records, prohibits the disclosure of personally identifiable information on reportable diseases, unless the information is disclosed for the purpose of medical or scientific research. As to the second question, the Department's records of investigation which contain allegations that a licensee has AIDS or HIV, are confidential pursuant to Conn.Gen.Stat. § 19a-583. Public disclosure cannot be made of confidential HIV or AIDS information, and any portion of a hearing wherein evidence is received regarding a licensee's AIDS or HIV status should not be open to the public.
The Department has specific statutory authority for collecting personally identifiable information on persons with reportable diseases. Pursuant to Conn.Gen.Stat. § 19a-5, the Commissioner of Health Services is charged with securing information and data concerning the prevention and control of epidemics and conditions affecting or endangering the public health. The Commissioner must issue an annual list of reportable diseases and distribute said list to the licensed physicians and clinical laboratories in the State. Pursuant to Conn. Agencies Reg. § 19a-36-A3, every health care provider who treats or examines any person who has or is suspected of having a reportable disease must make a report to the local director of health and the Department. The report contains personally identifiable information about the affected individual. See, Conn. Agencies Reg. § 19a-36-A4(a)(1).
Currently, AIDS and hepatitis B are on the annual list of reportable diseases. The Commissioner is considering adding HIV to the annual list. Information collected on reportable diseases is used by the Department to study and reduce the morbidity and mortality resulting from the named diseases or conditions. Pursuant to Conn.Gen.Stat. § 19a-25, all records concerning morbidity and mortality are confidential. The above statute specifically states:
Such information, records, reports, statements, notes, memoranda or other data shall not be admissible as evidence in any action of any kind in any court or before any other tribunal, board, agency or person, nor shall it be exhibited or its contents disclosed in any way, in whole or in part, by any officer or representative of the department of health services or of any such facility, by any person participating in such a research project or by any other person, except as may be necessary for the purpose of furthering the research project to which it relates.
The confidentiality provisions of Conn.Gen.Stat. § 19a-25, prohibit the Department's AIDS or Epidemiology sections from disclosing to the Department's Division of Medical Quality Assurance or a licensing board whether a licensed health care practitioner has a reportable disease. Pursuant to § 19a-25, disclosure of personal data may only be made for the purpose of medical or scientific research with another governmental agency or private research organization, provided the recipient of the information cannot further disclose such personal data. Clearly, disclosure of personal data to the Department's investigative branch or an independent licensing board would not be for the purpose of medical or scientific research. Therefore, it is prohibited by § 19a-25.1
Assuming that the Department has received medical information or allegations that a licensee has AIDS or HIV during an investigation, you ask whether that information is confidential, pursuant to § 19a-583, or subject to public disclosure.2 The information on a licensee's AIDS or HIV status is confidential, pursuant to Conn.Gen.Stat. § 19a-583.3
The key provision regarding public disclosure of records in the Freedom of Information Act, is Conn.Gen.Stat. § 1-19, which provides:
(a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency ... shall be public records and every person shall have the right to inspect such records.... (emphasis added).
Conn.Gen.Stat. § 1-19(a) "... specifically excepts from its provisions those cases covered by contrary provisions of federal law or state statute." Green v. Freedom of Information Commission, 178 Conn. 700, 702 (1979). Conn.Gen.Stat. § 19a-583 exempts confidential HIV-related information from public disclosure, by limiting the persons and circumstances under which disclosure of HIV-related information can be made.
The AIDS Testing and Medical Information Act contains the following definition:
(8) "Confidential HIV-related information" means any information pertaining to the protected individual4 or obtained pursuant to a release of confidential HIV-relate d information, concerning whether a person has been counseled regarding HIV infection, has been the subject of an HIV-related test, or has HIV infection, HIV-related illness, or AIDS, or information which identifies or reasonably could identify a person as having one or more of such conditions, including information pertaining to such individual's partners."
Conn.Gen.Stat. § 19a-581.
The above definition encompasses an allegation in a Statement of Charges that a licensee has HIV or AIDS and would be confidential. Pursuant to Conn.Gen.Stat. § 19a-583(b), the Commissioner may not further disclose confidential HIV-related information, except: 1) in her capacity as a public health officer to warn or inform a protected individual's partner (sexual or needle-sharing) that an unidentified partner has tested positive for HIV or AIDS; 2) when she is mandated to report child protective services information to the Department of Children and Youth Services; 3) in connection with morbidity and mortality studies done under Conn.Gen.Stat. § 19a-25; and 4) pursuant to any of the exceptions contained in § 19a-583(a).
To protect the confidentiality of AIDS or HIV-related information, the Department cannot publicly disclose any allegation in a Statement of Charges that a licensee has AIDS or an HIV-related illness. Moreover, any portion of a hearing wherein evidence is received regarding a licensee's AIDS or HIV status should not be open to the public and should be held in executive session. Public disclosure of such information and evidence would violate the confidentiality provisions of § 19a-583.
The Freedom of Information Act also supports the conclusion that hearings regarding a licensee's AIDS or HIV status should be held in executive session. The general rule is that meetings5 of government agencies6 should be open to the public. Conn.Gen.Stat. § 1-21. However, agencies are allowed to convene in "executive session", in which the public is excluded, if the agency is going to discuss any matter which would result in the disclosure of records that may be exempt from public disclosure pursuant to Conn.Gen.Stat. § 1-19(b). Conn.Gen.Stat. §§ 1-18a(e) and 1-21g. One of the exemptions from disclosure recognized in § 1-19(b)(10) is for records, reports and statements exempt from disclosure by federal law or state statute. Information relative to a licensee's AIDS or HIV status is exempt from public disclosure pursuant to § 19a-583, and fits into the § 19a(b)(10) reason for convening in executive session. Therefore the agency can go into executive session to discuss a licensee's AIDS or HIV status. It is our opinion that this is mandatory to protect the confidentiality of HIV-related information pursuant to Conn.Gen.Stat. § 19a-583, and that it is permissible under the Freedom of Information Act, pursuant to Conn.Gen.Stat. §§ 1-18a(e) and 1-21g.
If we can provide any additional guidance regarding these matters, please do not hesitate to contact us.
Very truly yours,
Sharon A. Scully
Assistant Attorney General
1 It is important to note that the Department's Division of Medical Quality Assurance has other means at its disposal for investigating whether a licensed health care worker who is suspected of having AIDS, HIV or hepatitis B is posing a risk to patients. The Department could ask the licensee to execute a release which would entitle the Department to obtain confidential medical information. If the licensee is unwilling to do that, the Department can petition the Superior Court for a court order compelling the taking or disclosure of appropriate diagnostic tests. If the licensee is a physician, the Department may order the physician to submit to a physical exam as part of the investigation, pursuant to Conn.Gen.Stat. § 20-13e(c). Pursuant to Conn.Gen.Stat. § 19a-14(a)(10) the Department has the authority to "[C]onduct any necessary review, inspection or investigation regarding qualifications of applicants for licenses or certificates, possible violations of statutes or regulations, and disciplinary matters."
2 In your memoranda, you note that investigative files are considered public at some point in time, and ask what effect, if any, this has on AIDS or HIV information contained therein. Conn.Gen.Stat. § 19a-583 exempts AIDS or HIV information from public disclosure, and the existence of such information in an investigative file does not make it a public record. Pursuant to Conn.Gen.Stat. § 19a-14(d) investigative files are exempt from public disclosure for one year, or until the investigation is terminated, or a hearing convened, whichever is earlier. The above statute governs Department investigations of facilities and persons other than physicians. Conn.Gen.Stat. § 20-13e governs investigations of physicians, and provides that the investigative file will not be deemed a public record under the Freedom of Information Act until eighteen months after the investigation started. This statute also provides that the file becomes public when a Statement of Charges is issued, unless the physician is in a rehabilitation program as an impaired physician. Both statutes exempt investigative files from public disclosure for a certain period of time, or under certain circumstances. Once the specified event or time frame occurs, these statutes simply make Conn.Gen.Stat. § 1-19 of the Freedom of Information Act applicable. As discussed, infra, in the body of this opinion, Sec. 1-19 recognizes that other statutory exemptions exist which take records out of the public disclosure provisions of the Freedom of Information Act. Conn.Gen.Stat. Sec. 19a-583, regarding the confidentiality of HIV-related information is such a statutory exemption to the public disclosure requirements.
3 Conn.Gen.Stat. Sec. 19a-583 provides:
(a) No person who obtains confidential HIV-related information may disclose or be compelled to disclose such information, except to the following:
(1) The protected individual or his legal guardian;
(2) Any person who secures a release of confidential HIV-related information;
(3) A federal, state or local health officer when such disclosure is mandated or authorized by federal or state law;
(4) A health care provider or health facility when knowledge of the HIV-related information is necessary to provide appropriate care or treatment to the protected individual or a child of the individual and when confidential HIV-related information is already recorded in a medical chart or record and a health care provider has access to such record for the purpose of providing medical care to the protected individual;
(5) A medical examiner to assist in determining the cause or circumstances of death;
(6) Health facility staff committees or accreditation or oversight review organizations which are conducting program monitoring, program evaluation or service reviews;
(7) A health care provider or other person in cases where such provider or person in the course of his occupational duties has had a significant exposure to HIV infection, ...;
(8) Employees of hospitals for mental illness operated by the department of mental health if the infection control committee of the hospital determines that the behavior of the patient poses a significant risk of transmission to another patient of the hospital ...;
(9) Employees of facilities operated by the department of correction to provide services related to HIV infection or if the medical director and chief administrator of the facility determine that the behavior of an inmate poses significant risk of transmission to another inmate or has resulted in a significant exposure of another inmate of the facility ...;
(10) Any person allowed access to such information by a court order ...;
(11) Life and health insurers, government payers and health care centers and their affiliates, re-insurers, and contractors, except agents and brokers, in connection with underwriting and claim activity for life, health, and disability benefits; and
(12) Life health care provider specifically designated by the protected individual to receive such information received by a life or health insurer or health care center pursuant to an application for life, health or disability insurance.
(b) No person, except the protected individual or his legal guardian, to whom confidential HIV-related information is disclosed may further disclose such information, except as provided in this section and sections 19a-584 and 19a-585.
4 "Protected individual" means a person who has been counseled regarding HIV infection, is the subject of an HIV-related test or who has been diagnosed as having HIV infection, AIDS or HIV-related illness. Conn.Gen.Stat. § 19a-581(7).
5 Pursuant to Conn.Gen.Stat. § 1-18a(b), the term "meeting" includes hearings.
6 The term "agency" includes the professional licensing boards as well as the Department. Conn.Gen.Stat. § 1-18a(a).