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August 27, 2008

Orders of Protection that Deny Access to a Child's Records

On August 26, Governor Blagojevich signed into law Public Act 95-912 that amends the Illinois Domestic Violence Act to require health care facilities and health care practitioners to restrict access to the records of a child named in certain orders of protection.

This memo describes the responsibilities of health care facilities and practitioners under the new provisions effective January 1, 2009, and contains information that may be helpful regarding implementation of the new law.

A. Meaning of Terms. With respect to orders of protection under the Domestic Violence Act, the "Petitioner" is the person asking for an order of protection against a "Respondent." The term also includes any named victim of abuse on whose behalf the petition is brought or any other person protected by the Domestic Violence Act. The name(s) of the Petitioner (s) appear on the order of protection.

The "Respondent" is a member of the family or household who the Petitioner alleges has committed abuse against another family or household member. The Respondent is named on the order of protection.

B. Protection of Records. Sometimes precautions are taken to protect the location of the Petitioner. For example, Petitioner’s address may be omitted from court documents that would be served on the Respondent.

In addition, some orders of protection prohibit a Respondent’s access to records of the protected person or persons (Petitioner (s)). Since a Respondent may be a parent who normally would have access to his/her child’s health records, P.A. 95-912 was enacted in part to thwart a Respondent parent who attempts to locate the Petitioner or his/ her family by accessing address information that may be included in the record of a child protected under an order of protection. P.A. 95-912 requires health facilities and practitioners to deny access to the records of any child who is protected under an order of protection that prohibits a Respondent’s access to records, when the facility or practitioner receives a certified copy of the order from the court.

Each hospital is free to establish the process by which to implement the requirements of P.A. 95- 912. Following are provisions of the law with questions about their implementation.

A. Copy of Order. Upon the request of the Petitioner, the clerk of the circuit court shall send a certified copy of the order of protection to any specified health care facility or health care practitioner requested by the Petitioner at the mailing address provided by the Petitioner.

1. To whom in the hospital will the copy of the order of protection be sent?

The law only requires the court clerk to send the copy to the facility or practitioner at the mailing address provided by the Petitioner. Whoever opens the mail that the hospital receives at its general mailing address should be trained to recognize and properly forward the copy in a timely manner to the person that the hospital decides will handle the associated requirements. The order may already be in effect at the time the hospital receives it, so it is important to implement appropriate procedures for handling the order as soon as possible.

A certified copy sent from the Circuit Court Clerk will state that it is a Certified Copy or will contain a raised seal, or both, in many cases.

B. Denial of Access to Respondent. After receiving a certified copy of an order of protection that prohibits a respondent’s access to records, no health facility or health care practitioner shall allow a Respondent access to the records of any child who is a protected person under the order of protection, or release information in those records to the Respondent, unless the order has expired or the Respondent shows a certified copy of the court order that vacates the order of protection.

The law applies to any records of the child that are in the possession or control of the health care facility or health care practitioner, including those managed by a copy service. (See Section "C" below, for information on billing and payment.)

Orders of protection are relatively straightforward documents. Although not every order of protection will look exactly the same, each one will list "remedies" in the order in which they appear in the Domestic Violence Act. Remedy #15 prohibits Respondent’s access to records of minor children named in the order. If #15 is checked, then it is one of the restrictions imposed by the order of protection. There may be additional restrictions related to records, often handwritten by the judge, so you should read the entire order to be sure not to miss a section that prohibits a Respondent’s access to records.

Each order of protection contains a section, usually on the front page, that states when the order was issued and for how long it will be in effect (expiration date).

No, the facility or practitioner has no obligation to check on the status of an order of protection. The order must be honored during the time it is in effect. If the court orders an extension of the order of protection, and the Petitioner requests that health care facilities and/or practitioners be sent a copy of the new (extension) order, you may receive a new order that should be treated the same – honored during the time it is in effect.

If the order has expired or the Respondent shows a certified copy of a court order vacating (removing) the corresponding order of protection that was sent to the health care facility or practitioner, then the facility or practitioner should allow the Respondent to have access to the child’s records or information in the records that the Respondent would normally have as the child’s parent.

Each order of protection contains a case number. Any orders pertaining to that case, including subsequent vacating orders, will have the same case number. If you are presented an order vacating an order of protection, and you are not sure it is legitimate, you may call the clerk of the circuit court that issued the order.

C. Billing and Payment: Nothing in this Section shall be construed to require health care facilities or health care practitioners to alter procedures related to billing and payment.

In some cases, the Respondent may be responsible for the health care bills of a child who is a protected person under an order of protection that prohibits access to records, or Respondent may carry the applicable insurance. Even when there is an order of protection that prohibits access to a child’s records, the health care facility or practitioner may continue to bill as usual for services provided to the child, and is not required to change any procedures related to billing and payment.

D. Methods of Identifying Appropriate Records: The health care facility or health care practitioner may file the copy of the order of protection in the records of a child who is a protected person under the order, or may employ any other method to identify the records to which a Respondent is prohibited access.

You are not required to handle the copy of the order of protection in any particular way, but are free to employ any method that allows appropriate personnel to identify the child’s records to which Respondent must be denied access during the time the order of protection is in effect. For example, the facility may choose to file the orders of protection in a separate file drawer, and then flag any relevant records by means of a special sticker on a paper record, or notation on an electronic record.

No, Illinois law does not contemplate such administrative documents in its description of the minimum contents of the medical record (77 Ill. Adm Code 250.1510). Furthermore, P.A. 95- 912 merely states that the copy of the order may be filed there, but does not state that the copy is part of the medical record.

P.A. 95-912 is silent on how the order must be handled when records are sent to other health care facilities or practitioners, or requested by the patient or his legal representative. The health care facility or practitioner is not required to send the order of protection along with the child’s records, but may do so, if desired. This would apply whether the order was still in effect, or had expired. Finally, the order of protection is not protected health information (PHI) under HIPAA, so HIPAA privacy rules do not apply to the order.

There is no requirement to keep expired orders of protection, but the facility or practitioner should consult with risk management or legal counsel on this issue.

E. Limitation on Liability. P.A. 95-912 provides that no health care facility or health care practitioner shall be civilly or professionally liable for reliance on a copy of an order of protection, except for willful and wanton misconduct.

We hope this information is helpful. Recognizing the importance of this legislation that passed both houses of the Illinois General Assembly unanimously, the Illinois Hospital Association worked to make P.A. 95- 912 reasonable in its requirements for hospitals, while maintaining its ability to protect the health records of children who are protected under an order of protection. The full text of P.A. 95 -912 can be accessed by clicking here.

If you have questions, please contact Barb Haller at bhaller@ihastaff.org or 630.276.5474.