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F I S C A L I M P A C T R E P O R T

SPONSOR Picraux

DATE TYPED 03/03/05 HB 440/aHCPAC/aHJC

SHORT TITLE Medical Personnel to Document Domestic Abuse

SB

ANALYST Ford

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General (AGO)

Board of Nursing

Department of Health (DOH)

Health Policy Commission

Regulation and Licensing Department (RLD)

SUMMARY

Synopsis of HJC Amendment

The House Judiciary Committee Amendment strikes the House Consumer and Public Affairs

Committee amendment that provided immunity from civil liability for medical personnel docu-

menting abuse or providing information and referral services. The amendment also allows medi-

cal personnel to release confidential communications when necessary to provide treatment, pay-

ment and operation in accordance with the federal Health Insurance Portability and Accountabil-

ity Act.

Synopsis of HCPAC Amendment

The House Consumer and Public Affairs Committee amendment provides that medical personnel

who document domestic abuse or provide information and referral services to a person pursuant

to the bill are immune from civil liability to the extent allowed by law.

House Bill 440/aHCPAC/aHJC -- Page 2

Synopsis of Original Bill

House Bill 440 would add a new section to the Family and Violence Protect Act requiring speci-

fied medical personnel to document reported or suspected domestic violence of a patient and in-

clude that documentation in the patient’s file. The bill also requires medical personnel to provide

information and referral to those patients.

House Bill 440 specifies that the information contained in the patient’s file is confidential and

shall be released only with the consent of the patient or pursuant to court order. For purposes of

this section, medical personnel are defined as:

•

licensed health care practitioners,

•

licensed emergency medical technicians,

•

health care practitioners who interview, examine, attend or treat a person and who are

under the guidance or supervision of licensed health care practitioners,

•

residents and interns.

Significant Issues

DOH notes that the provisions of the bill may violate the federal Health Insurance Portability and

Accountability Act (HIPAA) because they would require that communications made by a patient

to an emergency medical technician remain confidential. Federal law requires emergency medi-

cal technicians to pass along health care information to receiving institutions and physicians.

(See “Technical Issues.”)

The AGO notes that the bill could conflict with the professional rules relating to documentation

of medical information. The AGO also notes that the bill could conflict or duplicate mandates

in other professional licensing regulations, writing:

“The mandate in the proposed legislation could conflict with or duplicate mandates con-

tained in other professional licensing regulation. The Medical Practice Act, for example,

disciplines physicians for the improper management of medical records, including the

failure to maintain timely, accurate, legible and complete medical records. §61-6-15 (33).

Psychologists, who may be involved in interviewing a victim, are prohibited from dis-

closing any fact the knowledge of which he has acquired in the course of his professional

work. §61-9-18.

“The confidentiality of patient records is contained in §14-6-1 A, Health and Hospital

Records. All health information that relates to and identifies specific individuals as pa-

tients is strictly confidential and shall not be a matter of public record, however the in-

formation may be released if there is a request from a governmental agency. § 14-6-1 A,

B. Proposed Section 1 B attempts to cloak the documented information related to domes-

tic violence with confidentiality. This information is already confidential under §14-6-1

A, and may still be available to law enforcement under § 14-6-1 B. It is unclear what

protection the proposed Section on confidentiality would actually provide.

“§ 30-3-12 through § 30-3-16 describe the criminal offenses of assault and battery

against a household member. It is possible for the State to take action in a domestic vio-

lence case by requesting the medical records of a victim, even without the victim’s con-

House Bill 440/aHCPAC/aHJC -- Page 3

sent. This has the potential to discourage victims of domestic violence from seeking

medical attention.”

The Board of Nursing notes that nurses often find themselves in a difficult position when the

rules of their organization conflict with the law or the accepted standard of care/practice. For

example, an agency may have a policy that directs nurses not to write in the record. This may

conflict with the requirements of this bill.

TECHNICAL ISSUES

DOH suggests a possible amendment to ensure that this bill does not conflict with federal law

regarding communications between emergency medical technicians and receiving physicians:

On page 2, line 13, after “order,” insert “, except as necessary to provide treatment, payment and

operations in accordance with the federal Health Insurance Portability and Accountability Act”

OTHER SUBSTANTIVE ISSUES

Domestic violence is a serious public safety and public health problem for the state. DOH re-

ports that there were 26,544 reports of domestic violence from 87 law enforcement agencies

across the state in 2001. This rate of 15.5 domestic violence incidents for every 1,000 persons

compares to a national rate of 8.9 domestic violence incidents for every 1,000 persons. The

Health Policy Commission reports that New Mexico has the 3

rd

highest rate of reported cases of

intimate partner violence in the United States.

Medical assessment, documentation, treatment and referral of victims of domestic violence vary

with the training, experience and resources of the individual provider and the associated agency.

EF/lg:yr