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Reporting
Topics Covered on This Page
Reports of Abuse, Possible
Criminal Activity or Potential Harm to Third Persons
Reports of Specific Health Conditions or Treatments
Reports Relating to Licensed Health Care Professionals and Facilities
Disclosures Related to Identification of Patients and Deceased Patients
About
the Authors
By
Anne Cramer
Primmer, Piper, Eggleston & Cramer, P.C.
Bill Wargo
Assistant Attorney General
Vermont law contains numerous provisions that require or permit health
care providers and other professionals to report or disclose particular
information to certain state or local government entities including law
enforcement, the Department of Health, DAIL, BISHCA, DCF and others.
This page of the Health Law Guide highlights most of these reporting or
disclosure requirements.
How must information
about the abuse of an adult be reported?
A mandatory reporter who suspects, knows of, or has information relating
to the abuse, neglect or exploitation of a vulnerable adult is required
to report that information within 48 hours to the commissioner of the
Department of Aging and Independent Living (DAIL). A report may also be
made to a law enforcement officer, if desired by the reporter.
Under the law (Vulnerable Adult
Abuse, 33 V.S.A. §6903, 6908 and 6913) mandatory reporters include
physicians, osteopaths, chiropractors, physician assistants, nurses,
licensed nurse assistants, emergency medical services personnel,
dentists, psychologists, hospitals, nursing homes and residential care
homes, school administrators, teachers and other school employees,
social workers and mental health professionals and others.
A vulnerable adult is defined as a
person who is 18 or older and is a resident of a nursing home,
psychiatric care unit or is receiving personal care services at home for
in excess of a month or, regardless of residence or services received,
has a disability or impairment and requires the assistance of others to
meet his or her daily needs or to protect him or herself from abuse,
neglect or exploitation [33 V.S.A. §6902(14)].
The report to the commissioner of DAIL
may be in writing or by telephone, if later confirmed in writing. The
report must contain certain information including the name and address
of the reporter, the vulnerable adult and persons responsible for his or
her care, a description of the adult’s age and disability and the nature
and extent of abuse, neglect or exploitation.
A penalty up to $500 per violation may
be imposed on any mandatory reporter who willfully fails to report as
required by this law. For purposes of the penalty provision, each
24-hour period that passes beyond the initial 48-hour period, during
which the report was due, will constitute a separate violation and
additional penalties may be imposed up to a maximum of $5,000 for each
reportable incident.
Anyone who makes a report in good faith
under this statute will be immune from any civil or criminal liability
for making the report.
How must information
about the abuse of a child be reported?
Under Vermont’s child abuse law
[33 V.S.A. §4913 and 4914], any mandatory reporter who has reasonable
cause to believe that any child has been abused or neglected is required
to make a report within 24 hours to the commissioner of the Department
of Children and Families (DCF).
Under this law, mandatory reporters
include physicians, osteopaths, chiropractors, physician assistants,
hospital administrators, nurses, dentists, psychologists, other health
care providers, school administrators, teachers and other school
employees, mental health professionals, social workers, police officers,
camp counselors, clergy and others.
The report to the commissioner of DCF
may be in writing or oral, if followed up by a written report, and must
contain certain information including the name and address of the
reporter, the child and those responsible for the child’s care, the
child’s age and the nature and extent of injury and/or evidence of abuse
or neglect.
A penalty up to $500 will be imposed on
any mandatory reporter who fails to report as required by this law.
Anyone, other than someone suspected of
child abuse, who makes a report in good faith under this statute will be
immune from any civil or criminal liability for making the report.
Do firearm wounds
need to be reported?
Every physician or hospital or other institution attending or treating a
case of bullet wound, gunshot wound, powder burn or other injury caused
by the discharge of a firearm must report such case to local law
enforcement officials or the state police, unless the injured person is
a member of the armed forces and was on duty when the injury occurred
[13 V.S.A. §4012]. A penalty of up to $100 will be imposed on
anyone who fails to report as required by this law.
Are health care providers required to
report blood alcohol levels?
If a blood test is performed
in a hospital emergency room on a patient who was involved in a motor
vehicle accident and the blood test shows the patient’s blood alcohol
level exceeded the level prohibited by law, the health care provider is
required to report that fact to a law enforcement agency having
jurisdiction over the area where the accident occurred [23 V.S.A.
§1203b]. A penalty up to $500 will be imposed on anyone who fails to
report as required by this law. Anyone who makes a report in good faith
under this statute will be immune from any civil or criminal liability
for making the report.
Do health care
providers have to report information about minors?
Physicians, dentists,
chiropractors and nurses are required to disclose information indicating
that a patient who is under 16 has been a victim of a crime. Although
the statute provides no further provisions, presumably this disclosure
would be made to law enforcement or other entities authorized to request
such information [12 V.S.A. §1612(b)].
Are unusual or suspicious deaths
reported?
If a death is determined to possibly be caused by violence, is otherwise
unusual, unnatural or suspicious, or by suicide, or in circumstances
involving a hazard to public health, welfare or safety, the death must
be reported by a physician or, if the death occurred in a mental health
institution by the institution administrator, to the medical examiner
[18 V.S.A. §5205(a)].
What are the
requirements for reporting possible cases of bioterrorism?
Health care providers are required to report within 24 hours to the
commissioner of health information relating to persons who exhibit any
illness, disease, injury or death identified by the Department of Health
as likely to be caused by a weapon of mass destruction, which may
include illnesses, diseases, injuries or deaths which can result from
bioterrorism, epidemic or pandemic disease, or novel and highly fatal
infectious agents or biological toxins or which may be caused by
specific biological agents. For purposes of this law, out-of-state
medical laboratories that have agreed to the reporting requirements of
Vermont are required to comply with the reporting requirements of health
care providers [V.S.A. §3504; 18 V.S.A. §§ 130, 131].
Similarly, pharmacists are required to
report within 24 hours to the commissioner of health any unusual or
increased prescription requests, unusual types of prescriptions, or
unusual trends in pharmacy visits that may result from bioterrorist
acts, epidemic or pandemic disease, or novel and highly fatal infectious
agents or biological toxins, and might pose a substantial risk of a
significant number of human fatalities or incidents of permanent or
long-term disability.
In addition, veterinarians, livestock
owners, veterinary diagnostic laboratory directors or other persons
having the care of animals, are required to report within 24 hours to
the commissioner of health any animals having or suspected of having any
disease that can result from bioterrorism, epidemic or pandemic disease,
or novel and highly fatal infectious agents or biological toxins, and
might pose a risk of a significant number of human and animal fatalities
or incidents of permanent or long-term disability.
The reports required by this law must
be made to the commissioner of health and, for reports of health care
providers and pharmacists, must include all available information such
as the patient's name, date of birth, sex, race and current address
(including city and county), the name and address of the health care
provider, and of the reporting individual, if different. Reports from
veterinarians and others relating to animals must include all available
information such as the location or suspected location of the animal,
the name and address of any known owner, and the name and address of the
reporting individual.
A penalty up to $10,000 and/or criminal
penalties may be imposed on anyone who fails to report as required by
this law.
Health care providers who make good
faith reports to the Department of Health under this law will be immune
from prosecution, suit, administrative or regulatory sanctions for
defamation, breach of confidentiality or privacy, or any other cause of
action based on such reports or errors contained in such reports.
Do health care
providers have a duty to report potential acts of violence?
The Vermont Supreme Court has
recognized that there may be appropriate circumstances where the
patient’s privilege must be waived in the face of the public interest in
safety. The circumstance currently recognized by Vermont courts involves
a situation where a patient receiving mental health services threatens
serious harm to an identified victim. Although to date the Vermont
courts have not had occasion to extend the waiver of physician patient
confidentiality beyond mental health services, other states have done so
when a patient is incapacitated as a result of medical treatment or
disease and the person poses an obvious risk of serious harm to others.
In these situations, a health care provider may have a duty to warn
reasonably identifiable potential victims or a duty to take action to
avoid the harm (Peck
v. Counseling Service of Addison County, Inc.
146 Vt. 61, 499 A.2d 422).
In the Peck case, the court held
that if a determination is made by a health care practitioner that a
patient poses a serious risk of danger to another person, the
practitioner has a duty to take whatever steps are reasonably necessary
to protect the public from that danger. As part of this duty, the health
care practitioner’s obligation to his patient requires that any
disclosure is done discretely and in a fashion that would preserve the
privacy of his patient to the fullest extent compatible with the
prevention of the threatened danger. Therefore, careful consideration
must be given to the choice of recipient for the disclosure (family
member, friend, law enforcement, clergy, etc.) and only the minimum
amount of information, which is necessary to protect the public should
be revealed.
What are the
requirements for reporting communicable diseases?
Mandatory reporters are required to report within 24 hours to the
commissioner of health whenever they have reason to believe that a
person is sick or has died of a diagnosed or suspected disease listed in
the Health Department communicable diseases regulation. Under this law,
mandatory reporters include physicians, health
care facilities, health care providers, health maintenance
organizations, hospital administrators, laboratory directors, managed
care organizations, nurse practitioners, nurses, physician assistants,
physicians, school health officials and town health officers.
Reporters also are required have policies and procedures in place to
ensure confidentiality which meet a number of criteria set by rule. [18
V.S.A. §§1001 et seq., 18 V.S.A. §1041, 18 V.S.A. §1092, VDH
Communicable Disease Regulations 4-104, 4-201-203.]
Except for HIV, the reports should
provide the following information regarding the affected person:
-
Name
-
Date of birth
-
Age
-
Sex
-
Address
-
Name of health care provider
-
Address of health care
provider
-
Disease name
-
Date of onset
-
Any other pertinent
information
The report may be made by telephone or
by writing to the Epidemiology Field Unit at the Vermont Department of
Health (802-863-7240 or 800-640-4374). Reportable communicable diseases
include both AIDS and HIV. However, for HIV reports a unique identifier
code protects the confidentiality of the patient as specified in the VDH
Rule 4-202. Patient names and addresses are not included, but all other
information on the list above is provided in HIV reports.
Any willful or malicious disclosure of
the content of confidential communicable disease information without
written authorization or legal requirement shall be subject to a civil
penalty not less than $10,000 nor more than $25,000 plus costs and
attorneys fees.
When must a case of
rabies be reported?
Physicians are required to report within 24 hours to a local health
officer the name, age and address of any person who has been bitten by
an animal of a species subject to rabies (Department of Health
Rule 4-401).
When must
immunizations be reported?
A health care provider must report to the Department of Health all data
regarding required immunizations of children under the age of 18 within
seven days of the immunization [18 V.S.A. §1129].
Who is required to
report fetal deaths?
Physicians, hospitals and funeral directors are required to report
certain fetal deaths to the commissioner of health within seven days for
statistical purposes [18 V.S.A. §§ 5222, 5225].
Reportable fetal deaths are fetal
deaths of 20 or more weeks of gestation, 400 or more grams, 15 or more
ounces, or fetal deaths which involve therapeutic or induced abortion.
The reports are not public records and shall be destroyed after five
years.
A fine of up to may be imposed on
anyone failing to comply with the fetal death reporting requirements.
Does Vermont allow
mammograms to be reported?
Vermont law permits the good faith submission of mammography and
pathology data relating to breast cancer to the Vermont Mammography
Registry [18 V.S.A. §§ 156, 157].
Anyone who makes a good faith report in
compliance with this law will not be subject to any action for damages.
Do lead poisoning diagnoses have to be
reported?
Health care providers or their employees must report any diagnosis of
lead poisoning to the Department of Health. Any laboratory in Vermont
analyzing the blood samples of children under the age of six must make
reports as required by the Department of Health [18 V.S.A. §1755(d)].
Does any information
have to be reported to the Vermont Health Care Database?
The commissioner of the Department of Banking Insurance Securities and
Health Care Administration (BISHCA) may establish by rule the types of
information that must be filed by health care providers and health care
facilities for the Vermont health care database. Patient identifying
information is to be filed in a manner which protects it as
confidential. No rules have been issued regarding required reporting to
date [18 V.S.A. §9410].
A fine of not more than $1,000 per
violation may be imposed on anyone knowingly failing to comply with
these requirements.
What are the
requirements for reporting treatment of drug abuse?
Physicians and hospitals are required to report treatment for the use of
regulated drugs or treatment for health problems arising from drug use
to the Board of Health. Reports must include the type of problem being
treated, the class of regulated drug and other information required by
the Board of Health. Identification of the person being treated is not
required in the reports [18 V.S.A. § 4217].
Reports Relating to Licensed Health Care Professionals and Facilities
What is required for reporting
unprofessional conduct?
Hospitals, clinics, community mental health centers and other health
care institutions are required to report within 10 days to the
commissioner of health any disciplinary action taken by it which
significantly limits a licensed medical professional’s privilege to
practice or leads to suspension or expulsion from the institution. The
report must include any supporting information and evidence, and in the
case of a licensed medical professional employed by or under contract
with a community mental health center, a copy of the report must also be
sent to the deputy commissioner of mental health services. The reporting
requirements of this law do not apply to cases of resignation or
separation from service for reasons unrelated to disciplinary action.
Is reporting of
medical errors or unsafe acts required?
Act 215, enacted by the Vermont General Assembly in 2006, requires
reporting and correction of adverse events by hospitals. While most of
the provisions in the law will not be effective before rules are adopted
by the Vermont Department of Health (VDH), there is a requirement in the
law that hospitals notify the VDH about intentional unsafe acts that
affect patients that occur on or after July 1, 2006. Intentional unsafe
acts are defined as adverse events or near misses that result from
criminal acts, purposefully unsafe acts, alcohol or substance abuse or
patient abuse.
Disclosures related to Identification of Patients and Deceased Patients
What are the
requirements for disclosing information to identify patients?
Dentists are obligated to disclose information necessary for the
identification of patients. It is presumed that the disclosure would be
made to law enforcement or to a medical examiner or other entity
authorized to request or receive the information [12 V.S.A. §1612(b)].
Do health care
providers have to disclose information on deceased patients?
Physicians and nurses are required to disclose the mental or physical
condition of deceased patients in certain circumstances (e.g., a will
contest) unless the information would be considered “to disgrace the
memory of the decedent.” In such case, the privilege must be waived by
either the decedent’s personal representative, the surviving spouse of
the decedent or the next of kin of the decedent [12 V.S.A. §1612(c)].
When can the
government have access to health care records?
While there are a number of circumstances when government agencies are
authorized to review health care records, including patient information
or payment information, the following situations are of particular
importance to health care professionals and facilities:
-
Under the federal Medicare program,
access to patient information must be granted by a health care
practitioner to the secretary of the U.S. Department of Health and
Human Services, and/or representatives of the Centers of Medicare and
Medicaid Services and others involved in enforcement of the
requirements of federally funded health programs;
-
The Medicare Advocacy Program which
contracts with the state of Vermont shall be granted access to
treatment records paid through Medicare and Medicaid [33 V.S.A.
§6705(b)].
As a condition of
participation in Vermont Agency of Human Services programs receiving
federal Medicaid funds, health care professionals must also permit
access to records.
Anne
Cramer, a partner in the law firm of Primmer, Piper, Eggleston &
Cramer, P.C., serves as counsel to hospitals, nursing homes, community
mental health agencies, physician groups and other private health care
interests in Vermont. Anne and her firm have long served as counsel to
the Vermont Association of Hospitals and Health Systems and also provide
counsel to the Vermont Health Care Association, and the Council for
Developmental and Mental Health Services. She is a member of the
American Health Lawyers Association, and the Health Law Section of the
American Bar Association. In her health law practice, Ms. Cramer
emphasizes compliance with federal and state regulatory requirements,
including fraud and abuse prevention, HIPAA regulations on privacy,
antitrust compliance and employment law. Ms. Cramer lectures frequently
on health law topics generally, and she has been cited in Best
Lawyers in America for her health law related work for over ten
years.
Bill Wargo,
an Assistant Attorney General, has been the Health Department’s legal
counsel for over 15 years. After graduating from Columbia College, he
obtained a Masters in Social Work degree from Hunter School of Social
Work. As a social worker, he worked with foster children in New York
City, counseled disabled veterans and began a creative writing group for
them, provided individual and family counseling to recovering drug
addicts, worked with Bowery alcoholics and began a softball league for
them, and provided emergency therapeutic services for people in crisis.
He has a Juris Doctor degree from New York University School of Law. As
a lawyer, he has managed two legal services offices (one providing
services to poor people on New York City’s Lower East Side and the other
providing services to prisoners), was the sole Winooski City Attorney
for 10 years, and has taught law for about 20 years at St. Michael’s
College. He also teaches non-law courses, such as courses on
Shakespeare and Vermont History, for Community College of Vermont. |
