N.J. Admin. Code § 10:37-6.79

Current through Register Vol. 56, No. 9, May 6, 2024

Section 10:37-6.79 - Confidentiality of records

(a) All certificates, applications, information and records directly or indirectly identifying persons who are receiving or have received mental health services from a provider licensed by the Department, or for whom such services were sought, shall be kept confidential and shall not be disclosed by any person, except under the following circumstances:

1. Upon authorization of the consumer:

i. For adult consumers: Upon the written authorization of the consumer, or his or her legal guardian or authorized representative, if any.

ii. For consumers who are minors:

(1) A minor, 14 years or older, who has requested admission and been admitted voluntarily to a psychiatric facility, special psychiatric hospital, or children's crisis intervention service pursuant to R. 4:74-7A(c), may authorize the disclosure of his or her records in the same manner as an adult;

(2) The minor's parent or legal guardian may authorize the disclosure of the minor's records, provided that the minor shall be given prior notice and an opportunity to object to the disclosure. Objection by a minor, 14 years or older, who has requested admission and been admitted voluntarily to a psychiatric facility, special psychiatric hospital, or children's crisis intervention service pursuant to R. 4:74-7A(c), shall render the authorization of the parent or guardian void; or

(3) Disclosure of the clinical records of a minor, 14 years or older, who has requested admission and been admitted voluntarily to a psychiatric facility, special psychiatric hospital, or children's crisis intervention service pursuant to R. 4:74-7A(c), is permitted only upon written authorization of the minor; however, a parent or guardian, upon proper inquiry, shall be told the minor patient's current medical condition if the minor does not object to such disclosure;

2. Pursuant to a court order directing disclosure, upon its determination that disclosure is necessary for the conduct of its proceedings before it and that failure to make such disclosure would be contrary to the public interest; or

3. To carry out any of the provisions of Title 30 or Article 9 of Chapter 82 of Title 2A of the New Jersey Statutes (2A:82-41 ), or as required by other Federal or State law.

(b) Consumer records may also be disclosed to the following persons, upon presentation of appropriate credentials, under these circumstances:

1. Employees of the agency who are involved in the care of the consumer provided, however, that when a consumer enters treatment(s) he or she will be informed that agency staff will have access to his or her records.

i. Employees of the agency may disclose information that is relevant to a consumer's current treatment to the staff of another such agency, so long as such disclosure is in compliance with the Health Insurance Portability and Accountability Act 45 CFR Parts 160 and 164;

2. Clinical records audit teams, monitoring and site review staff designated by the Department, the Office of Legislative Services, the New Jersey Department of Health and Senior Services, and the Center for Medicaid & Medicare Services;

3. A person participating in a Professional Standards Review Organization; and

4. Officials within the offices of the State Medical Examiner or a County Medical Examiner making investigations and conducting autopsies, pursuant to 52:17B-78 et seq.

(c) The records of a minor shall be released upon request to the Department of Children and Families in connection with investigations of whether the minor has been abused or neglected.

(d) Whenever possible, names of consumers shall be deleted from the records being reviewed under (b) above and consumers shall be identified only by use of their initials.

(e) Nothing in this section shall preclude disclosure, upon proper inquiry and after the consumer has had the opportunity to object and does not express an objection, of information as to a consumer's current medical condition to any relative or friend.

(f) Information may be disclosed to any licensed mental health provider or medical health care provider who has a contract with the Division of Mental Health Services or the Department of Human Services, or to the consumer's personal physician if it appears that the information is to be used for the benefit of the consumer.

(g) The records of a deceased individual who has received services or for whom services were sought may be released to the estate's administrator or executor. If there is no administrator or executor, records may be released to the next of kin indicated in the consumer record. A valid written authorization for the release of information must be obtained from next of kin:

1. Natural or adoptive parents;

2. Siblings;

3. Grandparents;

4. Family caregiver of record;

5. Spouse; or

6. Child/children.

(h) Where disclosure to third parties is authorized pursuant to (b) above, the following conditions shall be observed:

1. The custodian of the records shall, by written notice, advise the person receiving the records that disclosure without the authorization of the person who is the subject of the records, or as otherwise provided by law, is prohibited.

2. Information and records disclosed for any purpose shall be limited to that information which is relevant and necessary for the purpose of the disclosure, except as authorized by the consumer or his or her representative or required by law. Where the disclosure is between agencies for the purpose of treatment and is not limited by the consumer's authorization, the agency releasing the information shall rely upon the recipient's assertion of need for the information.

3. A request for information regarding a consumer and the action taken upon the request shall be recorded in the consumer's clinical records and accounted for if requested by the consumer for up to six years from the date of the disclosure.

4. Consumers or other persons consenting to the disclosure of records shall be informed of their right subject to (j) below to inspect the material to be disclosed.

5. Information disclosed shall be limited to information generated at the provider agency. However, the agency shall list the sources of nondisclosed information contained in the consumer's records.

(i) Consent to disclosure of records shall be evidenced by a signed authorization from the consumer or his or her legally authorized representative.

1. The authorization shall contain the following:

i. The name of the agency disclosing the information;

ii. The name or title of the person or organization to which disclosure is to be made;

iii. The name of the consumer;

iv. The purpose of the disclosure and predictable outcome;

v. The information to be disclosed;

vi. The date on which the authorization is signed; and

vii. The signature of the consumer or of a person authorized by law to sign for the consumer, following a statement that the undersigned understands the nature of the authorization and has been informed that he or she has the right to revoke consent at any time by written communication to the custodian of the records.

2. Unless the time limit of, or the event that will trigger, expiration has been determined with the consumer and noted on the release form, consumer permission to release information automatically expires four months from the date the authorization is signed by the consumer.

(j) Consumer access to records:

1. In case of Family Therapy, if the records for all participants have been integrated, no single family member shall have access to those records unless all adult participants and the guardians of any minor participants agree through a signed authorization form.

2. A consumer currently receiving services from an agency is entitled to inspect and/or receive a copy of his or her own clinical records unless the consumer's treating clinician certifies to the Director of the agency that such disclosure would be seriously harmful to the consumer's treatment or health. A denial of access to records shall be limited only to the extent necessary to protect the consumer. Denial shall be accompanied by a verbal explanation to the consumer. Denial shall be documented in the consumer's records, as to the clinical data, findings, etc., that led to the denial of access.

3. A consumer is entitled to inspect or receive a copy of his or her financial records.

4. A consumer who formerly received services from an agency is entitled to inspect and/or receive a copy of his or her records. However, if a particular consumer has been inactive for brief periods of time in the past and repeatedly requests and obtains service re-admission, the same criteria for access to records outlined in (j)2 above shall apply.

(k) Modification of records:

1. A consumer may submit in writing to the Director of the agency a statement for the purpose of clarifying or correcting his or her clinical record. Such a statement shall become part of the consumer's clinical records.

2. A consumer may request in writing to the Director of the agency an amendment or clarification of a clinical record and, not later than 30 days after the date of receipt of such request, the agency shall acknowledge in writing such request and, within 10 days thereafter:

i. Make each correction, in accordance with the consumer's request, of any or all portions of a record which the consumer believes is not accurate or complete; or

ii. Inform the consumer of its refusal to amend the record or portions thereof, in accordance with such consumer's request; the reason for the refusal should be explained to the consumer and documented in the consumer's record.

(l) At the time that a formal consumer record is going to be initiated for ongoing service purposes, each consumer shall receive notice:

1. Of the specific conditions under which information may be disclosed without his or her authorization;

2. That he or she may request access to his or her records;

3. That he or she may supplement or request a modification of his or her clinical records; and

4. Of the name of the agency's privacy officer and the avenues for redress of any complaints the consumer may have that his or her privacy was violated.

(m) Agency records directly or indirectly identifying a consumer shall be retained for six years.

N.J. Admin. Code § 10:37-6.79

Amended by R.1991 d.50, effective 2/4/1991.
See: 22 N.J.R. 2216(b), 23 N.J.R. 303(b).
In (a): added new 1iv(3).
Amended by R.2007 d.37, effective 2/5/2007.
See: 38 N.J.R. 2566(a), 39 N.J.R. 450(b).
Rewrote the section.