Pop quiz: are medical records “confidential,” “privileged,” or both? Answer: yes. Here, Defendant, a state agency, required licensed drug and alcohol treatment programs to submit forms with confidential patient information. In the trial court, Plaintiff claimed the forms violated state and federal statutes. The court of appeals first held the doctor-patient “privilege” under CRS 13-90-107 only protects testimonial witnesses. Federal law protects the “confidentiality” of medical records (42 U.S.C. § 290dd-2; 42 C.F.R. §§ 2.1, 2.2), except for entities with “direct administrative control” over a program. The court held the agency lacked that control, but the forms could be required for an audit or evaluation if there were a data retention and destruction policy. Here, there was no evidence of a data policy; until there was, Plaintiff was not required to submit the forms.
Tag Archives: Federal Regulation
Adolescent and Family Institute of Colorado, Inc. v. Colorado Department of Human Services, Division of Behavioral Health, f/k/a Alcohol and Drug Abuse Division, 2013COA44 (March 28, 2013)
Colorado Medical Society and Colorado Society of Anesthesiologists v. John Hickenlooper, Governor of Colorado, and Colorado Association of Nurse Anesthetists; Colorado Nurses Association; and Colorado Hospital Association, 2012COA121 (July 19, 2012)
“The best doctor is the one you run to and can’t find.” Denis Diderot. In this case, anesthesiologists challenged a decision by the Governor to opt out of a federal regulation that requires certified registered nurse anesthetists (CRNAs) administering anesthesia to be supervised by a physician. The court of appeals first held the doctors had standing to bring their claims based on harm to their reputations and value of their licenses, as well as third-party standing to protect their patients. The political question doctrine didn’t bar review either. The court then held that Colorado law permits CRNAs to administer anesthesia without supervision by a physician. It reasoned that under CRS 38-12-103 and 12-38-111.5, CRNAs who administer anesthesia are conducting independent nursing functions and not a “delegated medical function.” The Governor’s opt-out decision was upheld.
UPDATE: The Colorado Supreme Court granted certiorari in this case on October 7, 2013.