| 1 | 1 | | 2025 SESSION |
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| 2 | 2 | | |
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| 3 | 3 | | INTRODUCED |
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| 4 | 4 | | |
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| 5 | 5 | | 25104100D |
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| 6 | 6 | | |
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| 7 | 7 | | HOUSE BILL NO. 2290 |
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| 8 | 8 | | |
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| 9 | 9 | | Offered January 8, 2025 |
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| 10 | 10 | | |
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| 11 | 11 | | Prefiled January 8, 2025 |
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| 12 | 12 | | |
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| 13 | 13 | | A BILL to amend and reenact 16.1-300, 53.1-40.10, and 53.1-133.03 of the Code of Virginia, relating to behavioral health services; exchange of medical and mental health information and records; correctional facilities. |
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| 14 | 14 | | |
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| 15 | 15 | | |
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| 16 | 16 | | |
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| 17 | 17 | | PatronCoyner |
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| 18 | 18 | | |
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| 19 | 19 | | |
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| 20 | 20 | | |
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| 21 | 21 | | Committee Referral Pending |
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| 22 | 22 | | |
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| 23 | 23 | | |
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| 24 | 24 | | |
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| 25 | 25 | | Be it enacted by the General Assembly of Virginia: |
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| 26 | 26 | | |
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| 27 | 27 | | 1. That 16.1-300, 53.1-40.10, and 53.1-133.03 of the Code of Virginia are amended and reenacted as follows: |
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| 28 | 28 | | |
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| 29 | 29 | | 16.1-300. Confidentiality of Department records. |
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| 30 | 30 | | |
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| 31 | 31 | | A. The social, medical, psychiatric, and psychological reports and records of children who are or have been (i) before the court, (ii) under supervision, (iii) referred to a court service unit, or (iv) receiving services from a court service unit or who are committed to the Department of Juvenile Justice shall be confidential and shall be open for inspection only to the following: |
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| 32 | 32 | | |
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| 33 | 33 | | 1. The judge, prosecuting attorney, probation officers and professional staff assigned to serve a court having the child currently before it in any proceeding; |
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| 34 | 34 | | |
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| 35 | 35 | | 2. Any public agency, child welfare agency, private organization, facility or person who is treating or providing services to the child pursuant to a contract with the Department or pursuant to the Virginia Juvenile Community Crime Control Act as set out in Article 12.1 ( 16.1-309.2 et seq.); |
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| 36 | 36 | | |
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| 37 | 37 | | 3. The child's parent, guardian, legal custodian or other person standing in loco parentis and the child's attorney; |
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| 38 | 38 | | |
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| 39 | 39 | | 4. Any person who has reached the age of majority and requests access to his own records or reports; |
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| 40 | 40 | | |
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| 41 | 41 | | 5. Any state agency providing funds to the Department of Juvenile Justice and required by the federal government to monitor or audit the effectiveness of programs for the benefit of juveniles which are financed in whole or in part by federal funds; |
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| 42 | 42 | | |
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| 43 | 43 | | 6. The Department of Social Services or any local department of social services that is providing services or care for, or has accepted a referral for family assessment or investigation and the provision of services in accordance with subsection A of 16.1-277.02 regarding, a juvenile who is the subject of the record and the Department of Behavioral Health and Developmental Services or any local community services board that is providing treatment, services, or care for a juvenile who is the subject of the record for a purpose relevant to the provision of the treatment, services, or care when these local agencies have entered into a formal agreement with the Department of Juvenile Justice to provide coordinated services to juveniles who are the subject of the records. Prior to making any report or record open for inspection, the court service unit or Department of Juvenile Justice shall determine which reports or records are relevant to the treatment, services, or care of such juvenile and shall limit such inspection to such relevant reports or records. Any local department of social services or local community services board that inspects any social, medical, psychiatric, and psychological reports and records of juveniles in accordance with this subdivision shall not disseminate any information received from such inspection unless such dissemination is expressly required by law; |
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| 44 | 44 | | |
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| 45 | 45 | | 7. Any other person, agency or institution, including any law-enforcement agency, school administration, or probation office by order of the court, having a legitimate interest in the case, the juvenile, or in the work of the court; |
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| 46 | 46 | | |
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| 47 | 47 | | 8. Any person, agency, or institution, in any state, having a legitimate interest (i) when release of the confidential information is for the provision of treatment or rehabilitation services for the juvenile who is the subject of the information, (ii) when the requesting party has custody or is providing supervision for a juvenile and the release of the confidential information is in the interest of maintaining security in a secure facility, as defined by 16.1-228 if the facility is located in Virginia, or as similarly defined by the law of the state in which such facility is located if it is not located in Virginia, or (iii) when release of the confidential information is for consideration of admission to any group home, residential facility, or postdispositional facility, and copies of the records in the custody of such home or facility shall be destroyed if the child is not admitted to the home or facility; |
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| 48 | 48 | | |
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| 49 | 49 | | 9. Any attorney for the Commonwealth, any pretrial services officer, local community-based probation officer and adult probation and parole officer for the purpose of preparing pretrial investigation, including risk assessment instruments, presentence reports, including those provided in 19.2-299, discretionary sentencing guidelines worksheets, including related risk assessment instruments, as directed by the court pursuant to subsection C of 19.2-298.01 or any court-ordered post-sentence investigation report; |
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| 50 | 50 | | |
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| 51 | 51 | | 10. Any person, agency, organization or institution outside the Department that, at the Department's request, is conducting research or evaluation on the work of the Department or any of its divisions; or any state criminal justice agency that is conducting research, provided that the agency agrees that all information received shall be kept confidential, or released or published only in aggregate form; |
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| 52 | 52 | | |
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| 53 | 53 | | 11. With the exception of medical, psychiatric, and psychological records and reports, any full-time or part-time employee of the Department of State Police or of a police department or sheriff's office that is a part of or administered by the Commonwealth or any political subdivision thereof, and who is responsible for the enforcement of the penal, traffic, or motor vehicle laws of the Commonwealth, is entitled to any information related to a criminal street gang, including that a person is a member of a criminal street gang as defined in 18.2-46.1. Information shall be provided by the Department to law enforcement without their request to aid in initiating an investigation or assist in an ongoing investigation of a criminal street gang as defined in 18.2-46.1. This information may also be disclosed, at the Department's discretion, to a gang task force, provided that the membership (i) consists of only representatives of state or local government or (ii) includes a law-enforcement officer who is present at the time of the disclosure of the information. The Department shall not release the identifying information of a juvenile not affiliated with or involved in a criminal street gang unless that information relates to a specific criminal act. No person who obtains information pursuant to this subdivision shall divulge such information except in connection with gang-activity intervention and prevention, a criminal investigation regarding a criminal street gang as defined in 18.2-46.1 that is authorized by the Attorney General or by the attorney for the Commonwealth, or in connection with a prosecution or proceeding in court; |
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| 54 | 54 | | |
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| 55 | 55 | | 12. The Commonwealth's Attorneys' Services Council and any attorney for the Commonwealth, as permitted under subsection B of 66-3.2; |
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| 56 | 56 | | |
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| 57 | 57 | | 13. Any state or local correctional facility as defined in 53.1-1 when such facility has custody of or is providing supervision for a person convicted as an adult who is the subject of the reports and records. The reports and records shall remain confidential and shall be open for inspection only in accordance with this section; and |
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| 58 | 58 | | |
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| 59 | 59 | | 14. The Department of Medical Assistance Services, for record information covering the period prior to and up to 30 days following release from commitment, for the purposes of providing pre-release services, reentry planning, and post-incarceration placement and services; and |
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| 60 | 60 | | |
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| 61 | 61 | | 15. The Office of the Attorney General, for all criminal justice activities otherwise permitted and for purposes of performing duties required by Chapter 9 ( 37.2-900 et seq.) of Title 37.2. |
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| 62 | 62 | | |
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| 63 | 63 | | A designated individual treating or responsible for the treatment of a person may inspect such reports and records as are kept by the Department on such person or receive copies thereof, when the person who is the subject of the reports and records or his parent, guardian, legal custodian or other person standing in loco parentis if the person is under the age of 18, provides written authorization to the Department prior to the release of such reports and records for inspection or copying to the designated individual. |
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| 64 | 64 | | |
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| 65 | 65 | | B. The Department may withhold from inspection by a child's parent, guardian, legal custodian or other person standing in loco parentis that portion of the records referred to in subsection A, when the staff of the Department determines, in its discretion, that disclosure of such information would be detrimental to the child or to a third party, provided that the juvenile and domestic relations district court (i) having jurisdiction over the facility where the child is currently placed or (ii) that last had jurisdiction over the child if such child is no longer in the custody or under the supervision of the Department shall concur in such determination. |
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| 66 | 66 | | |
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| 67 | 67 | | If any person authorized under subsection A to inspect Department records requests to inspect the reports and records and if the Department withholds from inspection any portion of such record or report pursuant to the preceding provisions, the Department shall (a) inform the individual making the request of the action taken to withhold any information and the reasons for such action; (b) provide such individual with as much information as is deemed appropriate under the circumstances; and (c) notify the individual in writing at the time of the request of his right to request judicial review of the Department's decision. The circuit court (1) having jurisdiction over the facility where the child is currently placed or (2) that had jurisdiction over the original proceeding or over an appeal of the juvenile and domestic relations district court final order of disposition concerning the child if such child is no longer in the custody or under the supervision of the Department shall have jurisdiction over petitions filed for review of the Department's decision to withhold reports or records as provided herein. |
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| 68 | 68 | | |
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| 69 | 69 | | 53.1-40.10. Exchange of medical and mental health information and records. |
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| 70 | 70 | | |
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| 71 | 71 | | A. Whenever a person is committed to a state correctional facility, the following shall be entitled to obtain medical and mental health information and records concerning such person from a health care provider, even when such person does not provide consent or consent is not readily obtainable: |
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| 72 | 72 | | |
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| 73 | 73 | | 1. The person in charge of the facility, or his designee, when such information and records are necessary (i) for the provision of health care to the person committed, (ii) to protect the health and safety of the person committed or other residents or staff of the facility, or (iii) to maintain the security and safety of the facility. Such information and records may be exchanged among administrative personnel for the facility in which the person is imprisoned as necessary to maintain the security and safety of the facility, its employees, or other prisoners. The information exchanged shall continue to be confidential and disclosure shall be limited to that necessary to ensure the security and safety of the facility. |
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| 74 | 74 | | |
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| 75 | 75 | | 2. Members of the Parole Board, as specified in 53.1-138, in order to conduct the investigation required under 53.1-155. |
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| 76 | 76 | | |
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| 77 | 77 | | 3. Probation and parole officers for use in parole and probation planning, release, and supervision. |
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| 78 | 78 | | |
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| 79 | 79 | | 4. Officials within the Department for the purpose of formulating recommendations for treatment and rehabilitative programs; classification, security and work assignments; and determining the necessity for medical, dental, and mental health care, treatment, and programs. |
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| 80 | 80 | | |
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| 81 | 81 | | 5. Medical and mental health hospitals and facilities, both public and private, including community services boards, for use in planning for and supervision of post-incarceration medical and mental health care, treatment, and programs. |
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| 82 | 82 | | |
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| 83 | 83 | | 6. The Department for Aging and Rehabilitative Services, the Department of Medical Assistance Services, the Department of Social Services, and any local department of social services in the Commonwealth for the purposes of providing pre-release services, reentry planning, and post-incarceration placement and services. |
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| 84 | 84 | | |
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| 85 | 85 | | B. Substance abuse records subject to federal regulations, Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. 2.11 et seq., shall not be subject to the provisions of this section. The disclosure of results of a test for human immunodeficiency virus shall not be permitted except as provided in 32.1-36.1. |
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| 86 | 86 | | |
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| 87 | 87 | | C. The release of medical and mental health information and records to any other agency or individual shall be subject to all regulations promulgated by the Department that govern confidentiality of such records. Medical and mental health information concerning a prisoner that has been exchanged pursuant to this section may be used only as provided herein and shall otherwise remain confidential and protected from disclosure. |
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| 88 | 88 | | |
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| 89 | 89 | | D. The Department shall develop policies to improve the exchange of medical and mental health information and records of persons committed to a state correctional facility, including policies to improve access to electronic health records and electronic exchange of information and records for the provision of telemedicine and telepsychiatry. |
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| 90 | 90 | | |
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| 91 | 91 | | 53.1-133.03. Exchange of medical and mental health information and records. |
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| 92 | 92 | | |
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| 93 | 93 | | A. Whenever a person is committed to a local or regional correctional facility, the following shall be entitled to obtain medical and mental health information and records concerning such person from a health care provider, even when such person does not provide consent or consent is not readily obtainable: |
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| 94 | 94 | | |
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| 95 | 95 | | 1. The person in charge of the facility, or his designee, when such information and records are necessary (i) for the provision of health care to the person committed, (ii) to protect the health and safety of the person committed or other residents or staff of the facility, or (iii) to maintain the security and safety of the facility. Such information and records of any person committed to jail and transferred to another correctional facility may be exchanged among administrative personnel of the correctional facilities involved and of the administrative personnel within the holding facility when there is reasonable cause to believe that such information is necessary to maintain the security and safety of the holding facility, its employees, or prisoners. The information exchanged shall continue to be confidential and disclosure shall be limited to that necessary to ensure the security and safety of the facility. |
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| 96 | 96 | | |
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| 97 | 97 | | 2. Members of the Parole Board or its designees, as specified in 53.1-138, in order to conduct the investigation required under 53.1-155. |
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| 98 | 98 | | |
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| 99 | 99 | | 3. Probation and parole officers and local probation officers for use in parole and probation planning, release, and supervision. |
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| 100 | 100 | | |
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| 101 | 101 | | 4. Officials of the facilities involved and officials within the holding facility for the purpose of formulating recommendations for treatment and rehabilitative programs; classification, security and work assignments; and determining the necessity for medical, dental and mental health care, treatment and other such programs. |
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| 102 | 102 | | |
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| 103 | 103 | | 5. Medical and mental health hospitals and facilities, both public and private, including community services boards and health departments, for use in treatment while committed to jail or a correctional facility while under supervision of a probation or parole officer. |
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| 104 | 104 | | |
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| 105 | 105 | | 6. The Department of Medical Assistance Services, the Department of Social Services, and any local department of social services for the purposes of providing pre-release services, reentry planning, and post-incarceration placement and services. |
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| 106 | 106 | | |
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| 107 | 107 | | B. Substance abuse records subject to federal regulations, Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. 2.11 et seq., shall not be subject to the provisions of this section. The disclosure of results of a test for human immunodeficiency virus shall not be permitted except as provided in 32.1-36.1 and 32.1-116.3. |
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| 108 | 108 | | |
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| 109 | 109 | | C. The release of medical and mental health information and records to any other agency or individual shall be subject to all regulations promulgated by the State Board of Local and Regional Jails that govern confidentiality of such records. Medical and mental health information concerning a prisoner that has been exchanged pursuant to this section may be used only as provided herein and shall otherwise remain confidential and protected from disclosure. |
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| 110 | 110 | | |
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| 111 | 111 | | D. Nothing contained in this section shall prohibit the release of records to the Department of Health Professions or health regulatory boards consistent with Subtitle III ( 54.1-2400 et seq.) of Title 54.1. |
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| 112 | 112 | | |
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| 113 | 113 | | E. Except for any information and records not subject to this section or not permitted to be disclosed pursuant to subsection B, any health care provider as defined in 32.1-127.1:03 who has provided services within the last two years to a person committed to a local or regional correctional facility shall, upon request by the local or regional correctional facility, disclose to the local or regional correctional facility where the person is committed any information necessary to ensure the continuity of care of the person committed. Any health care provider who discloses medical and mental health information and records pursuant to this section shall be immune from civil liability resulting from such disclosure, including any liability under the federal Health Insurance Portability and Accountability Act (42 U.S.C. 1320d et seq.), absent bad faith or malicious intent. |
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