Senate Bill 2797

(As Sent to Governor)

AN ACT TO CREATE NEW SECTION 41-21-110, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE MISSISSIPPI STATE ASYLUM RECORDS IN THE POSSESSION OF THE MISSISSIPPI STATE HOSPITAL SHALL BE PERMANENTLY TRANSFERRED TO THE ROWLAND MEDICAL LIBRARY AT THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER; TO PROVIDE THAT THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER SHALL ESTABLISH THE ASYLUM HILL OVERSIGHT COMMITTEE TO GOVERN THE ACCESS, USE AND DISCLOSURE OF THE MISSISSIPPI STATE ASYLUM RECORDS; TO REQUIRE THE OVERSIGHT COMMITTEE TO MAKE REASONABLE EFFORTS TO IDENTIFY AND NOTIFY ALL DESCENDANTS OF PATIENTS TREATED AT THE ASYLUM; TO REQUIRE THE OVERSIGHT COMMITTEE TO ESTABLISH PROCEDURES BY WHICH A DESCENDANT OF A PATIENT TREATED AT THE ASYLUM MAY OPT OUT OF THE DISCLOSURE OF ANY RELATED RECORDS; TO REQUIRE ALL INFORMATION, DATA AND RESEARCH REGARDING PATIENTS TO BE ANONYMIZED; TO AMEND SECTION 41-9-61, MISSISSIPPI CODE OF 1972, TO EXEMPT THE MISSISSIPPI STATE ASYLUM RECORDS FROM BEING CONSIDERED HOSPITAL RECORDS FOR PURPOSES OF THE CHAPTER; TO AMEND SECTION 41-21-97, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE MISSISSIPPI STATE ASYLUM RECORDS SHALL NOT BE CONSIDERED CONFIDENTIAL FOR PURPOSES OF THE SECTION, PROVIDED THAT ANY MISSISSIPPI STATE ASYLUM RECORD RELATING TO ANY PERSON WHO HAS NOT BEEN DECEASED FOR AT LEAST 50 YEARS SHALL STILL BE CONSIDERED CONFIDENTIAL; TO AMEND SECTION 41-10-3, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE MISSISSIPPI STATE ASYLUM RECORDS SHALL NOT BE CONSIDERED MEDICAL RECORDS FOR PURPOSES OF THE SECTION; TO CONFORM TO THE PROVISIONS OF THE ACT; TO AMEND SECTION 41-30-33, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE MISSISSIPPI STATE ASYLUM RECORDS SHALL BE EXEMPT FROM CERTAIN DISCLOSURE PROHIBITIONS, PROVIDED THAT SUCH RECORDS RELATING TO ANY PERSON WHO HAS NOT BEEN DECEASED FOR AT LEAST 50 YEARS SHALL NOT BE EXEMPT; TO AMEND SECTION 13-1-21, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE MISSISSIPPI STATE ASYLUM RECORDS SHALL BE EXEMPT FROM CERTAIN MEDICAL PRIVILEGE REQUIREMENTS, PROVIDED THAT SUCH RECORDS RELATING TO ANY PERSON WHO HAS NOT BEEN DECEASED FOR AT LEAST 50 YEARS SHALL NOT BE EXEMPT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following shall be codified as Section 41-21-110, Mississippi Code of 1972:

41-21-110. (1) For purposes of this section, "Mississippi State Asylum Records" shall mean a collection of individual patient records, in the possession of the Mississippi State Hospital, including, but not limited to, paper charts and digital copies of paper documents, that record patient care at the Mississippi State Asylum from 1855 to 1935.

(2) For the purpose of this section, "Descendant" shall mean the closest living relative of a patient at the Mississippi State Asylum.

(3) The Mississippi State Asylum Records in the possession of the Mississippi State Hospital shall be permanently transferred to the Rowland Medical Library at the University of Mississippi Medical Center.

(4) The University of Mississippi Medical Center shall establish the Asylum Hill Oversight Committee to govern the access, use and disclosure of the Mississippi State Asylum Records. The following standards and practices shall be followed by the Asylum Hill Oversight Committee:

(a) Curation and storage. The Mississippi State Asylum Records shall be curated and stored using standard practices and procedures based on the standards set forth by the Society of American Archivists.

(b) Descendants' access to records. The Asylum Hill Oversight Committee shall make reasonable efforts to identify and notify descendants of patients treated at the Mississippi State Asylum. Descendants of patients treated at the Mississippi State Asylum have the right to access specific patient records. Descendant request for records will be limited to the closest living relative of the patient of which the requestor must attest, by affidavit, that they are the closest living relative. The University of Mississippi Medical Center and its officers and employees shall be immune from any action or suit that arises from their reliance upon the affidavit of a descendant that states the affiant is the closest living relative of the decedent.

(c) HIPAA. Records of patients with a documented death date less than fifty (50) years from the date of the records request constitute Protected Health Information and shall be subject to the Health Insurance Portability and Accountability Act (HIPAA). Patients born before 1873 shall be presumed to have been deceased for fifty (50) years.

(5) The Asylum Hill Oversight Committee shall establish procedures by which a descendant of a patient treated at the Mississippi State Asylum may opt out of any disclosure of such records. When a descendent of a patient opts out, such records shall be considered confidential and shall not be disclosed for any purpose. A descendant of a patient who was the subject of specific Mississippi State Asylum Records may consent to the University of Mississippi Medical Center using such records in a more specific manner, including disclosing specific identification designations, but no such disclosure shall be allowed without specific authorization.

(6) Mississippi State Asylum Records relating to any person who has not been deceased for at least fifty (50) years shall not be exempt from the provisions of Sections 41-30-33, 41-21-97 and 13-1-21. All information, data and research regarding patients shall be anonymized. Mississippi State Asylum Records relating to any person who has not been deceased for at least fifty (50) years shall constitute Protected Health Information and shall be subject to the Health Insurance Portability and Accountability Act (HIPAA).

(7) The Mississippi State Asylum Records shall be exempt from the Mississippi Public Records Act of 1983.

SECTION 2. Section 41-9-61, Mississippi Code of 1972, is amended as follows:

41-9-61. As used in Sections 41-9-61 through 41-9-83:

(a) "Hospital" shall have the meaning ascribed thereto by Section 41-9-3, regardless of the type of ownership or form of management or organization of the institution, and it shall include the proprietor and operator thereof.

(b) "Hospital records" shall mean, without restriction, those medical histories, records, reports, summaries, diagnoses and prognoses, records of treatment and medication ordered and given, notes, entries, X-rays and other written or graphic data prepared, kept, made or maintained in hospitals that pertain to hospital confinements or hospital services rendered to patients admitted to hospitals or receiving emergency room or outpatient care. Such records shall also include abstracts of the foregoing data customarily made or made as provided in Section 41-9-75. Such records shall not, however, include ordinary business records pertaining to patients' accounts or the administration of the institution nor shall "hospital records" include any records consisting of nursing audits, physician audits, departmental evaluations or other evaluations or reviews which are used only for in-service education programs, or which are required only for accreditation or for participation in federal health programs. The Mississippi State Asylum Records as defined in Section 41-21-110 shall not be considered hospital records for purposes of this chapter.

(d) "Retirement," or variations thereof, shall mean the withdrawal from current files of hospital records, business records or parts thereof on or after the expiration of the applicable minimum period of retention established pursuant to Section 41-9-69. However, no hospital record, business record, or parts thereof, shall be subject to retirement where otherwise required by law to be kept as a permanent record.

(e) "Licensing agency" shall mean the State Department of Health.

(f) "Business records" shall mean all those books, ledgers, records, papers and other documents prepared, kept, made or received in hospitals that pertain to the organization, administration or management of the business and affairs of hospitals, but which do not constitute hospital records as hereinabove defined.

SECTION 3. Section 41-21-97, Mississippi Code of 1972, is amended as follows:

41-21-97. (1) The hospital records of and information pertaining to patients at treatment facilities or patients being treated by physicians, psychologists (as defined in Section 73-31-3(e)), licensed master social workers or licensed professional counselors shall be confidential and shall be released only: (a) upon written authorization of the patient; (b) upon order of a court of competent jurisdiction; (c) when necessary for the continued treatment of a patient; (d) when, in the opinion of the director, release is necessary for the determination of eligibility for benefits, compliance with statutory reporting requirements, or other lawful purpose; or (e) when the patient has communicated to the treating physician, psychologist (as defined in Section 73-31-3(e)), master social worker or licensed professional counselor an actual threat of physical violence against a clearly identified or reasonably identifiable potential victim or victims, and then the treating physician, psychologist (as defined in Section 73-31-3(e)), master social worker or licensed professional counselor may communicate the threat only to the potential victim or victims, a law enforcement agency, or the parent or guardian of a minor who is identified as a potential victim.

(2) The Mississippi State Asylum Records shall not be considered confidential for purposes of this section, provided that any Mississippi State Asylum Record relating to any person who has not been deceased for at least fifty (50) years shall still be considered confidential in accordance with subsection (1) of this section.

SECTION 4. Section 41-10-3, Mississippi Code of 1972, is amended as follows:

41-10-3. (1) The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:

(a) "Heir" means any person who is entitled to a distribution from the estate of an intestate decedent, or a person who would be entitled to a distribution from the estate of a testate decedent if that decedent had died intestate.

(b) "Medical records" means any communications related to a patient's physical or mental health or condition that are recorded in any form or medium and that are maintained for purposes of patient diagnosis or treatment, including communications that are prepared by a health care provider or by other providers. The term does not include (i) materials that are prepared in connection with utilization review, peer review or quality assurance activities, or (ii) recorded telephone and radio communications to and from a publicly operated emergency dispatch office relating to requests for emergency services or reports of suspected criminal activity; however, the term includes communications that are recorded in any form or medium between emergency medical personnel and medical personnel concerning the diagnosis or treatment of a patient.

(2) Where no executor or administrator has been appointed by a chancery court of competent jurisdiction regarding the probate or administration of the estate of a decedent, any heir of the decedent shall be authorized to act on behalf of the decedent solely for the purpose of obtaining a copy of the decedent's medical records. The authority shall not extend to any other property rights relating to the decedent's estate.

(3) A custodian of medical records may provide a copy of the decedent's medical records to an heir upon receipt of an affidavit by the heir stating that he or she meets the requirements of this section and that no executor or administrator has been appointed by a chancery court with respect to the estate of the decedent.

(4) The authority of the heir to act on behalf of the decedent shall terminate upon the appointment of an executor or administrator to act on behalf of the estate of the decedent. However, the custodian of medical records shall be entitled to rely upon the affidavit of the heir until the custodian of medical records receives written notice of the appointment of an executor or administrator.

(5) A custodian of medical records shall not be required to provide more than three (3) heirs with a copy of the decedent's medical records before the appointment of an executor or administrator.

(6) The provisions of this section shall not prohibit an executor or administrator from requesting and receiving the medical records of a decedent after his or her appointment.

(7) The Mississippi State Asylum Records shall not be considered medical records for purposes of this section. In accordance with Section 41-21-110, the Asylum Hill Oversight Committee shall establish procedures by which descendants of a decedent who was the subject of specific Mississippi State Asylum Records may access such records.

SECTION 5. Section 41-30-33, Mississippi Code of 1972, is amended as follows:

41-30-33. (1) The registration and other records of services by approved treatment facilities, whether in-patient, intermediate or out-patient, authorized by this chapter, shall remain confidential, and information which has been entered in the records shall be considered privileged information.

(2) No part of the records shall be disclosed without the consent of the person to whom it pertains, but appropriate disclosure may be made without such consent to treatment personnel for use in connection with his treatment and to counsel representing the person in any proceeding held pursuant to Title 41, Chapter 31, Mississippi Code of 1972. Disclosure may also be made without consent upon court order for purposes unrelated to treatment after application showing good cause therefor. In determining whether there is good cause for disclosure, the court shall weigh the need for the information to be disclosed against the possible harm of disclosure to the person to whom such information pertains.

(3) The Mississippi State Asylum Records shall be exempt from the requirements of this section, provided that such records relating to any person who has not been deceased for at least fifty (50) years shall not be exempt.

SECTION 6. Section 13-1-21, Mississippi Code of 1972, is amended as follows:

13-1-21. (1) All communications made to a physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such party shall not be required to disclose the same in any legal proceeding except at the instance of the patient or, in case of the death of the patient, at the instance of his personal representative or legal heirs in case there be no personal representative, or except, if the validity of the will of the decedent is in question, at the instance of the personal representative or any of the legal heirs or any contestant or proponent of the will.

(2) Waiver of the medical privilege of patients regarding the release of medical information to health care personnel, the State Board of Health or local health departments, made to comply with Sections 41-3-15, 41-23-1 and 41-23-2 and related rules, shall be implied. The medical privilege likewise shall be waived to allow any physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor to report to the State Department of Health necessary information regarding any person afflicted with any communicable disease or infected with the causative agent thereof who neglects or refuses to comply with accepted protective measures to prevent the transmission of the communicable disease.

(3) Willful violations of the provisions of this section shall constitute a misdemeanor and shall be punishable as provided for by law. Any physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist, or chiropractor shall be civilly liable for damages for any willful or reckless and wanton acts or omissions constituting such violations.

(4) In any action commenced or claim made after July 1, 1983, against a physician, hospital, hospital employee, osteopath, dentist, nurse, pharmacist, podiatrist, optometrist or chiropractor for professional services rendered or which should have been rendered, the delivery of written notice of such claim or the filing of such an action shall constitute a waiver of the medical privilege and any medical information relevant to the allegation upon which the cause of action or claim is based shall be disclosed upon the request of the defendant, or his or her counsel.

(5) In any disciplinary action commencing on or after July 1, 1987, against a medical physician, an osteopathic physician or a podiatrist pursuant to the provisions of Sections 73-25-1 through 73-25-39, 73-25-51 through 73-25-67, 73-25-81 through 73-25-95 and 73-27-1 through 73-27-19, waiver of the medical privilege of a patient to the extent of any information other than that which would identify the patient shall be implied.

(6) The Mississippi State Asylum Records shall be exempt from the requirements of this section, provided that such records relating to any person who has not been deceased for at least fifty (50) years shall not be exempt.

SECTION 7. This act shall take effect and be in force from and after July 1, 2023.