CHAPTER 8. COMMUNICABLE DISEASE: CONFIDENTIALITY REQUIREMENTS
IC 16-41-8
Chapter 8. Communicable Disease: Confidentiality Requirements
IC 16-41-8-1
"Potentially disease transmitting offense"
Sec. 1. (a) As used in this chapter, "potentially diseasetransmitting offense" means any of the following:
(1) Battery by body waste (IC 35-42-2-6).
(2) An offense relating to a criminal sexual act (as defined inIC 35-41-1-19.3), if sexual intercourse or deviate sexualconduct occurred.
The term includes an attempt to commit an offense, if sexualintercourse or deviate sexual conduct occurred, and a delinquent actthat would be a crime if committed by an adult.
(b) Except as provided in this chapter, a person may not discloseor be compelled to disclose medical or epidemiological informationinvolving a communicable disease or other disease that is a dangerto health (as defined under rules adopted under IC 16-41-2-1). Thisinformation may not be released or made public upon subpoena orotherwise, except under the following circumstances:
(1) Release may be made of medical or epidemiologicinformation for statistical purposes if done in a manner thatdoes not identify an individual.
(2) Release may be made of medical or epidemiologicinformation with the written consent of all individuals identifiedin the information released.
(3) Release may be made of medical or epidemiologicinformation to the extent necessary to enforce public healthlaws, laws described in IC 31-37-19-4 through IC 31-37-19-6,IC 31-37-19-9 through IC 31-37-19-10, IC 31-37-19-12 throughIC 31-37-19-23, IC 35-38-1-7.1, and IC 35-42-1-7, or to protectthe health or life of a named party.
(4) Release may be made of the medical information of a personin accordance with this chapter.
(c) Except as provided in this chapter, a person responsible forrecording, reporting, or maintaining information required to bereported under IC 16-41-2 who recklessly, knowingly, orintentionally discloses or fails to protect medical or epidemiologicinformation classified as confidential under this section commits aClass A misdemeanor.
(d) In addition to subsection (c), a public employee who violatesthis section is subject to discharge or other disciplinary action underthe personnel rules of the agency that employs the employee.
(e) Release shall be made of the medical records concerning anindividual to:
(1) the individual;
(2) a person authorized in writing by the individual to receivethe medical records; or
(3) a coroner under IC 36-2-14-21.
(f) An individual may voluntarily disclose information about the
individual's communicable disease.
(g) The provisions of this section regarding confidentiality applyto information obtained under IC 16-41-1 through IC 16-41-16.
As added by P.L.2-1993, SEC.24. Amended by P.L.181-1993, SEC.1;P.L.1-1997, SEC.99; P.L.28-2002, SEC.2; P.L.99-2002, SEC.7;P.L.135-2005, SEC.2; P.L.125-2009, SEC.1.
IC 16-41-8-2
Voluntary contact notification program information; use asevidence; release
Sec. 2. (a) Identifying information voluntarily given to the healthofficer or an agent of the health officer through a voluntary contactnotification program may not be used as evidence in a courtproceeding to determine noncompliant behavior under IC 16-41-1through IC 16-41-16.
(b) A court may release to:
(1) an individual; or
(2) a representative designated in writing by the individual;
information or records relating to the individual's medical conditionif the individual is a party in a pending action involving restrictionof the individual's actions under IC 16-41-1 through IC 16-41-16. Aperson who obtains information under this subsection is subject tosection 1 of this chapter.
As added by P.L.2-1993, SEC.24.
IC 16-41-8-3
Violations
Sec. 3. (a) Except as otherwise provided, a person who recklesslyviolates or fails to comply with this chapter commits a Class Bmisdemeanor.
(b) Each day a violation continues constitutes a separate offense.
As added by P.L.2-1993, SEC.24.
IC 16-41-8-4
Procedure for obtaining medical information concerning a personcharged with certain offenses
Sec. 4. (a) This section applies to the release of medicalinformation that may be relevant to the prosecution or defense of aperson who has been charged with a potentially disease transmittingoffense.
(b) A:
(1) prosecuting attorney may seek to obtain access to adefendant's medical information if the defendant has beencharged with a potentially disease transmitting offense; and
(2) defendant who has been charged with a potentially diseasetransmitting offense may seek access to the medical informationof another person if the medical information would be relevantto the defendant's defense;
by filing a verified petition for the release of medical informationwith the court. (c) The prosecuting attorney or defendant who files a petitionunder subsection (b) shall serve a copy of the petition on:
(1) the person whose medical information is sought;
(2) the guardian, guardian ad litem, or court appointed specialadvocate appointed for a minor, parent, or custodian of a personwho is incompetent, if applicable; and
(3) the provider that maintains the record, or the attorneygeneral if the provider is a state agency;
at the time of filing in accordance with Indiana Trial Rule 4.
(d) The court shall set the matter for hearing not later than twenty(20) days after the date of filing.
(e) If, following a hearing for release of a person's medicalinformation, the court finds probable cause to believe that themedical information may be relevant to the prosecution or defense ofa person who has been charged with a potentially diseasetransmitting offense, the court shall order the person having custodyof the person's medical information to release the medicalinformation to the court.
(f) The court shall examine the person's medical information incamera. If, after examining the medical information in camera andconsidering the evidence presented at the hearing, the court findsprobable cause to believe that the medical information is relevant tothe prosecution or defense of a person who has been charged with apotentially disease transmitting offense, the court may order therelease of a person's medical information to the petitioner.
(g) In an order issued under subsection (f), the court shall:
(1) permit the disclosure of only those parts of the person'smedical information that are essential to fulfill the objective ofthe order;
(2) restrict access to the medical information to those personswhose need for the information is the basis of the order; and
(3) include in its order any other appropriate measures to limitdisclosure of the medical information to protect the right toprivacy of the person who is the subject of the medicalinformation.
(h) A hearing for the release of a person's medical informationmay be closed to the public. The transcript of the hearing, the court'sorder, and all documents filed in connection with the hearing areconfidential. In addition, if a person's medical information isdisclosed in a legal proceeding, the court shall order the record ortranscript of the testimony to be preserved as a confidential courtrecord.
(i) This section does not prohibit the application to medicalinformation of any law concerning medical information that is notaddressed by this section.
As added by P.L.125-2009, SEC.2. Amended by P.L.1-2010, SEC.72.
IC 16-41-8-5
Medical screening of a person charged with certain offenses
Sec. 5. (a) This section does not apply to medical testing of an
individual for whom an indictment or information is filed for a sexcrime and for whom a request to have the individual tested undersection 6 of this chapter is filed.
(b) The following definitions apply throughout this section:
(1) "Bodily fluid" means blood, human waste, or any otherbodily fluid.
(2) "Dangerous disease" means any of the following:
(A) Chancroid.
(B) Chlamydia.
(C) Gonorrhea.
(D) Hepatitis.
(E) Human immunodeficiency virus (HIV).
(F) Lymphogranuloma venereum.
(G) Syphilis.
(H) Tuberculosis.
(3) "Offense involving the transmission of a bodily fluid" meansany offense (including a delinquent act that would be a crime ifcommitted by an adult) in which a bodily fluid is transmittedfrom the defendant to the victim in connection with thecommission of the offense.
(c) This subsection applies only to a defendant who has beencharged with a potentially disease transmitting offense. At therequest of an alleged victim of the offense, the parent, guardian, orcustodian of an alleged victim who is less than eighteen (18) years ofage, or the parent, guardian, or custodian of an alleged victim who isan endangered adult (as defined in IC 12-10-3-2), the prosecutingattorney shall petition a court to order a defendant charged with thecommission of a potentially disease transmitting offense to submit toa screening test to determine whether the defendant is infected witha dangerous disease. In the petition, the prosecuting attorney must setforth information demonstrating that the defendant has committed apotentially disease transmitting offense. The court shall set thematter for hearing not later than forty-eight (48) hours after theprosecuting attorney files a petition under this subsection. Thealleged victim, the parent, guardian, or custodian of an alleged victimwho is less than eighteen (18) years of age, and the parent, guardian,or custodian of an alleged victim who is an endangered adult (asdefined in IC 12-10-3-2) are entitled to receive notice of the hearingand are entitled to attend the hearing. The defendant and thedefendant's counsel are entitled to receive notice of the hearing andare entitled to attend the hearing. If, following the hearing, the courtfinds probable cause to believe that the defendant has committed apotentially disease transmitting offense, the court may order thedefendant to submit to a screening test for one (1) or more dangerousdiseases. If the defendant is charged with committing battery by bodywaste (IC 35-42-2-6), the court may limit testing under thissubsection to a test only for human immunodeficiency virus (HIV).However, the court may order additional testing for humanimmunodeficiency virus (HIV) as may be medically appropriate. Thecourt shall take actions to ensure the confidentiality of evidence
introduced at the hearing.
(d) This subsection applies only to a defendant who has beencharged with an offense involving the transmission of a bodily fluid.At the request of an alleged victim of the offense, the parent,guardian, or custodian of an alleged victim who is less than eighteen(18) years of age, or the parent, guardian, or custodian of an allegedvictim who is an endangered adult (as defined in IC 12-10-3-2), theprosecuting attorney shall petition a court to order a defendantcharged with the commission of an offense involving thetransmission of a bodily fluid to submit to a screening test todetermine whether the defendant is infected with a dangerousdisease. In the petition, the prosecuting attorney must set forthinformation demonstrating that:
(1) the defendant has committed an offense; and
(2) a bodily fluid was transmitted from the defendant to thevictim in connection with the commission of the offense.
The court shall set the matter for hearing not later than forty-eight(48) hours after the prosecuting attorney files a petition under thissubsection. The alleged victim of the offense, the parent, guardian,or custodian of an alleged victim who is less than eighteen (18) yearsof age, and the parent, guardian, or custodian of an alleged victimwho is an endangered adult (as defined in IC 12-10-3-2) are entitledto receive notice of the hearing and are entitled to attend the hearing.The defendant and the defendant's counsel are entitled to receivenotice of the hearing and are entitled to attend the hearing. If,following the hearing, the court finds probable cause to believe thatthe defendant has committed an offense and that a bodily fluid wastransmitted from the defendant to the alleged victim in connectionwith the commission of the offense, the court may order thedefendant to submit to a screening test for one (1) or more dangerousdiseases. If the defendant is charged with committing battery by bodywaste (IC 35-42-2-6), the court may limit testing under thissubsection to a test only for human immunodeficiency virus (HIV).However, the court may order additional testing for humanimmunodeficiency virus (HIV) as may be medically appropriate. Thecourt shall take actions to ensure the confidentiality of evidenceintroduced at the hearing.
(e) The testimonial privileges applying to communication betweena husband and wife and between a health care provider and the healthcare provider's patient are not sufficient grounds for not testifying orproviding other information at a hearing conducted in accordancewith this section.
(f) A health care provider (as defined in IC 16-18-2-163) whodiscloses information that must be disclosed to comply with thissection is immune from civil and criminal liability under Indianastatutes that protect patient privacy and confidentiality.
(g) The results of a screening test conducted under this sectionshall be kept confidential if the defendant ordered to submit to thescreening test under this section has not been convicted of thepotentially disease transmitting offense or offense involving the
transmission of a bodily fluid with which the defendant is charged.The results may not be made available to any person or public orprivate agency other than the following:
(1) The defendant and the defendant's counsel.
(2) The prosecuting attorney.
(3) The department of correction or the penal facility, juveniledetention facility, or secure private facility where the defendantis housed.
(4) The alleged victim or the parent, guardian, or custodian ofan alleged victim who is less than eighteen (18) years of age, orthe parent, guardian, or custodian of an alleged victim who is anendangered adult (as defined in IC 12-10-3-2), and the allegedvictim's counsel.
The results of a screening test conducted under this section may notbe admitted against a defendant in a criminal proceeding or againsta child in a juvenile delinquency proceeding.
(h) As soon as practicable after a screening test ordered under thissection has been conducted, the alleged victim or the parent,guardian, or custodian of an alleged victim who is less than eighteen(18) years of age, or the parent, guardian, or custodian of an allegedvictim who is an endangered adult (as defined in IC 12-10-3-2), andthe victim's counsel shall be notified of the results of the test.
(i) An alleged victim may disclose the results of a screening testto which a defendant is ordered to submit under this section to anindividual or organization to protect the health and safety of or toseek compensation for:
(1) the alleged victim;
(2) the alleged victim's sexual partner; or
(3) the alleged victim's family.
(j) The court shall order a petition filed and any order enteredunder this section sealed.
(k) A person that knowingly or intentionally:
(1) receives notification or disclosure of the results of ascreening test under this section; and
(2) discloses the results of the screening test in violation of thissection;
commits a Class B misdemeanor.
As added by P.L.125-2009, SEC.3. Amended by P.L.94-2010, SEC.5.
IC 16-41-8-6
Right of a victim to require certain defendants to undergo HIVtesting; procedures
Sec. 6. (a) If an indictment or information alleges that thedefendant compelled another person to engage in sexual activity byforce or threat of force, the alleged victim of the offense describedin the indictment or information may request that the defendantagainst whom the indictment or information is filed be tested for thehuman immunodeficiency virus (HIV).
(b) Not later than forty-eight (48) hours after an alleged victimdescribed in subsection (a) requests that the defendant be tested for
the human immunodeficiency virus (HIV), the defendant must betested for the human immunodeficiency virus (HIV).
(c) As soon as practicable, the results of a test for the humanimmunodeficiency virus (HIV) conducted under subsection (b) shallbe sent to:
(1) the alleged victim;
(2) the parent or guardian of the alleged victim, if the allegedvictim is less than eighteen (18) years of age; and
(3) the defendant.
(d) If follow-up testing of the defendant for the humanimmunodeficiency virus (HIV) is necessary, the results of follow-uptesting of the defendant shall be sent to:
(1) the alleged victim;
(2) the parent or guardian of the alleged victim if the allegedvictim is less than eighteen (18) years of age; and
(3) the defendant.
As added by P.L.94-2010, SEC.6.