SB 539 - FINAL VERSION
AN ACT\trelative to access to records under the child protection act.
SPONSORS:\tSen. Boutin, Dist 16; Sen. Fuller Clark, Dist 21; Sen. Soucy, Dist 18; Sen. Kelly, Dist 10; Sen. Woodburn, Dist 1; Sen. Reagan, Dist 17; Sen. Stiles, Dist 24; Sen. Watters, Dist 4; Sen. Bradley, Dist 3; Sen. Lasky, Dist 13; Rep. Weber, Ches. 1; Rep. Berrien, Rock. 18
COMMITTEE:\tHealth and Human Services
\tThis bill establishes the procedure for law enforcement to obtain a court order compelling the department of health and human services or a health care provider to disclose a child's medical records for the purpose of an investigation of child abuse or neglect, a child fatality, or any other crime against a child.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to access to records under the child protection act.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t169-C:25-a Access to Medical Records.
\t\tI. A law enforcement agency may request from the court an order compelling the department or a health care provider to disclose a child's medical records for the purpose of the investigation of child abuse or neglect, a child fatality, or any other crime against a child.
\t\t\t(a) The law enforcement agency shall present to the court the following evidence by affidavit or orally under oath, including telephonically if necessary:
\t\t\t\t(1) A statement of facts establishing probable cause to suspect that a child has been the victim of a crime, and that the child's medical records will contain evidence of that crime;
\t\t\t\t(2) A representation that the information is unavailable from another source; and
\t\t\t\t(3) The names and addresses of the child and the custodial parents, non-custodial parents, legal custodians, or other guardians of the child, if known.
\t\t\t(b) Upon a showing of cause by a law enforcement agency why notice would compromise the investigation, put the child at risk of harm, or for other good cause, the court shall prohibit the health care provider and its attorneys, officers, directors, employees, contractors, or any other agent for the provider from notifying the child and the custodial parents, non-custodial parents, legal custodians, or other guardians of the child about the existence or contents of the order or that information has been furnished pursuant to the order. Such a showing shall be based on facts made by affidavit or orally under oath. Upon issuance of the order, the health care provider shall provide the medical records within 12 hours unless otherwise provided by the court or by agreement. The court shall order the law enforcement agency to notify the child's parent or guardian of the ex parte order within 60 days of issuance; provided, however, that upon a showing of good cause, the court may extend the period beyond 60 days, but in no event beyond 180 days.
\t\t\t(c) If the law enforcement agency satisfies the requirements of subparagraph (a) but not subparagraph (b), the court shall order the law enforcement agency to immediately serve a parent or guardian and the health care provider with notice of the request. The parent or guardian and health care provider shall have 5 days from receipt of notice to file an objection. If no objection is made, the court shall order the health care provider to produce the records to the law enforcement agency within 7 days. If an objection is made, the health care provider shall be ordered to provide the records to the trial court within 7 days from the date of the objection by producing the records under seal for in camera review by the court. The court shall issue an order within 30 days of receipt of the records.
\t\t\t(d) The court may issue such order by telephone, facsimile, or email, and shall include written findings.
\t\t\t(e) Nothing in this section shall be construed to limit the ability of a health care provider to unilaterally disclose to a law enforcement agency a child's medical records or information about a child's medical condition as otherwise permitted by law, including if the health care provider, in the exercise of its professional judgment, believes the disclosure is necessary to prevent serious harm to the child or other potential victims.
\t\tII. Upon notice by a law enforcement agency of a court order permitting access to records for use in the investigation of the abuse or neglect of a child, a child fatality, or any other crime against a child pursuant to RSA 169-C or the criminal code, a health care provider shall permit the law enforcement agency to inspect and copy the medical records, including but not limited to prenatal and birth records, of the child or children involved in the investigation without the consent of the child, or parent or guardian of the child.
\t\tIII. A health care provider who in good faith discloses medical records for the purpose of an investigation of the abuse or neglect of a child to the law enforcement agency shall not be civilly or criminally liable for the disclosure.
\t\tIV. The law enforcement agency in possession of medical records pursuant to this section shall, upon the request of the department or another law enforcement agency, be authorized to re-disclose the medical records to the department or other law enforcement agencies solely for the purpose of conducting investigations of child abuse or neglect, child fatalities, other crimes against a child, and any subsequent actions under this chapter or criminal proceedings. Medical records disclosed under this section shall not be used or further disclosed for any other purpose without a court order. Medical records provided pursuant to this section shall be exempt from disclosure under RSA 91-A.
\t\tV. For the purposes of this section, the term "law enforcement agency" shall include the attorney general, a county attorney, a county sheriff, the state police, and any local police department.
\t\t\t\t(9) Another state's child welfare agency or other government entity, or any law enforcement agency, including local and out-of-state law enforcement agencies, that requires the information in order to carry out its responsibility under law to protect children from abuse or neglect, including the investigation of child fatalities. For the purposes of this subparagraph, the term "law enforcement agency" shall include the attorney general, a county attorney, a county sheriff, the state police, and any local police department.
Approved: June 6, 2016
Effective Date: August 5, 2016