Kelly, 050416 KSAGO, AGO 2016-8

Docket Nº:AGO 2016-8
Case Date:May 04, 2016
The Honorable Jim Kelly
AGO 2016-8
No. 2016-8
Kansas Attorney General Opinions
State of Kansas Office of the Attorney General
May 4, 2016
         The Honorable Jim Kelly          State Representative, 11th District          State Capitol, 512-N          300 S.W. 10th Avenue          Topeka, Kansas 66612          Re: Public Health—Confidential Communications and Information—Privilege of Patient of Treatment Facility to Prevent Disclosure of Treatment and of Confidential Communications          Public Health—Health Care Data—Kansas Health Information Technology Act; Controlling Law on Confidentiality of Protected Health Information          Synopsis: The Kansas Health Information Technology Act does not abrogate a health treatment facility’s duty to protect provider-patient privileged treatment information. Cited herein: K.S.A. 19-4001; 65-5602; K.S.A. 2015 Supp. 38-2223, 65-5603, 65-6823, 65-6825, 65-6828; 45 C.F.R. § 160.103; 45 C.F.R. § 164.512.          Dear Representative Kelly:          As the Representative for the Eleventh District, you ask our opinion on whether a community mental health center established pursuant to K.S.A. 19-4001, et seq., is still bound by the provider-patient treatment records privilege found at K.S.A. 65-5602 following the passage of the Kansas Health Information Technology Act (KHITA), K.S.A. 2015 Supp. 65-6821, et seq. Because the KHITA was enacted with the purpose[1] of harmonizing state law with the Health Information Portability and Accountability Act of 1996 (HIPAA),[2] you ask if the KHITA’s declaration that its terms control over “any provision of state law regarding the confidentiality, privacy, security or privileged status of any protected health information”[3] effectively abolishes the provider-patient privilege contained at K.S.A. 65-5602 in favor of allowing any disclosure contemplated by HIPAA. For the reasons further discussed below, we believe that it does not.          Nature of the Privilege          K.S.A. 65-5602(a) provides,
A patient of a treatment facility has a privilege to prevent treatment personnel or ancillary personnel from disclosing that the patient has been or is currently receiving treatment or from disclosing any confidential communications made for the purposes of diagnosis or treatment of the patient’s mental, alcoholic, drug dependency, or emotional condition. The privilege extends to individual, family, or group therapy under the direction of the treatment personnel and includes members of the patient’s family. The privilege may be claimed by the patient, by the patient’s guardian or conservator or by the personal representative of a deceased patient. The treatment personnel shall claim the privilege on behalf of the patient unless the patient has made a written waiver of the privilege and provided the treatment personnel with a copy of such waiver or unless one of the

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