§ 29-3-4-1.5 — Confidential health disclosure order; petition; hearing; procedure to disclose confidential health information

Indiana § 29-3-4-1.5

• Jurisdiction: Indiana
• Art. 3: GUARDIANSHIPS AND PROTECTIVE
• Ch. 4: Protective Proceedings and Single Transactions

Text

5. (a) A person may file a verified petition for
the issuance of a confidential health disclosure order against a
respondent health care provider that:
(1) has existing health or medical records in the possession or
custody of the respondent health care provider that contain
medical evidence of capacity or incapacity about an alleged
incapacitated person; or
(2) may be able to create a report to summarize medical evidence
of capacity or incapacity about an alleged incapacitated person.
(b) A verified petition filed under this section must state the
following:
(1) The name, age, and residence address of the alleged
incapacitated person.
(2) The name and address of any legal counsel that represents the
alleged incapacitated person, which is known or reasonably
available to the petitioner.
(3) The name and last known address of each person described in
IC 29-3-6-1(a)(4)(A) through IC 29-3-6-1(a)(4)(D).
(4) Facts sufficient to establish that the following conditions are
met:
(A) Any person alleges that the alleged incapacitated person
requires the appointment of a guardian or limited guardian
under this article.
(B) The alleged incapacitated person does not possess medical
evidence of capacity or incapacity sufficient to establish or
rebut evidence that may be presented in a hearing for the
appointment of a guardian under IC 29-3-5-1.
(C) The alleged incapacitated person cannot provide or has
refused to provide written authorization under 45 CFR 164.508
for disclosure of medical evidence of capacity or incapacity
about the alleged incapacitated person.
(D) No other person is able and willing to provide a written
authorization under 45 CFR 164.502(g)(2) for the disclosure of
medical evidence of capacity or incapacity about the alleged
incapacitated person.
(E) The respondent health care provider possesses medical
evidence of capacity or incapacity about the alleged
incapacitated person and is not willing to disclose the medical
evidence of capacity or incapacity without a written
authorization under 45 CFR 164.508 or a court order under 45
CFR 164.512.
(5) The name and address of the respondent health care provider.
(6) A description of:
(A) the existing health or medical records or the type of existing
health or medical records in the possession or custody of the
respondent health care provider that contain medical evidence
of capacity or incapacity about the alleged incapacitated person;
or
(B) a narrative report sought from the respondent health care
provider that would identify medical evidence of capacity or
incapacity about the alleged incapacitated person.
A petition filed under this section is not a confidential case record.
However, any protected health information contained within the
petition must be excluded from the publicly filed document and must
be filed as a confidential document under Rule 5(B) of the Indiana
Rules on Access to Court Records.
(c) A verified petition under this section may be combined with any
other petition for relief filed under this article, including a petition to
establish a limited or full guardianship.
(d) If the court receives a verified petition that complies with the
requirements of subsection (b), the court shall issue an order to set a
hearing date. In the order setting the hearing date, the court shall do the
following:
(1) Appoint an attorney or guardian ad litem to represent the
alleged incapacitated person if the verified petition does not
identify an attorney under subsection (b)(2).
(2) State that any person with an objection to a confidential health
disclosure order being issued in response to a verified petition
filed under this section shall file a written objection not later than
ten (10) days prior to the hearing date set under subsection (e) or
shall appear in person at the hearing to testify to the objection.
(e) In its discretion, the court shall set the hearing required under
subsection (d) on a date that is as soon as practicable.
(f) Not later than three (3) business days after the court issues an
order under subsection (d), the petitioner shall serve a copy of the
verified petition and a copy of the order setting a hearing date, by first
class mail, upon the following:
(1) The respondent health care provider.
(2) The alleged incapacitated person or the person having
physical custody and care of the alleged incapacitated person.
(3) The alleged incapacitated person's attorney described in
subsection (b)(2) or the court appointed attorney or guardian ad
litem appointed under subsection (d)(1).
(4) Each individual identified in subsection (b)(3) of the verified
petition.
(5) Each respondent health care provider identified in subsection
(b)(5) of the verified petition.
(6) Any other person to whom the court directs that notice be
served.
Any person who is entitled to receive notice under this subsection may
waive the service of notice in writing.
(g) At the hearing, the petitioner has the burden of proving, by a
preponderance of the evidence, that the conditions alleged in
subsection (b)(4) are met. An individual entitled to receive notice
under subsection (f) may present evidence at the hearing.
(h) If the court finds that the petitioner has proven that the
conditions in subsection (b)(4) apply and it is in the best interest of the
alleged incapacitated person to issue a confidential health disclosure
order, it shall grant the verified petition and issue a confidential health
disclosure order that requires the respondent health care provider to:
(1) produce a copy of the alleged incapacitated person's medical
records that contain medical evidence concerning the capacity or
incapacity of the person; or
(2) prepare a written narrative report for the court with a
professional assessment of the capacity or incapacity of the
alleged incapacitated person to make personal, financial, and
health care decisions without substantial assistance and the
suitability of less restrictive alternatives to a guardianship.
(i) A confidential health disclosure order issued by a court under
this section is intended to comply with the standard in 45 CFR
164.512(e) for disclosure of protected health information in judicial
proceedings.
(j) The respondent health care provider shall comply with the
confidential health disclosure order and transmit the medical evidence
of capacity or incapacity of the person described in subsection (h) to
the court. Upon receipt of the respondent health care provider's
response, the court shall:
(1) serve a copy of the medical records or medical report
produced by the respondent health care provider to the alleged
incapacitated person and the alleged incapacitated person's
attorney or guardian ad litem, not more than five (5) days after
receipt of the records; and
(2) determine, in the court's discretion, whether it is in the best
interest of the alleged incapacitated person to disclose all or part
of the medical records or medical report produced by the
respondent health care provider to any other individual identified
in the verified petition under subsection (b)(3).
To make a determination under subdivision (2) concerning whether the
medical evidence of capacity or incapacity should be disclosed to any
other individual, the court shall consider all material facts and
circumstances stated in the filed pleadings and in any hearing record;
medical evidence that contains a specific diagnosis of functional
impairment of the alleged incapacitated person; and the likelihood that
a limited guardianship or full guardianship may be warranted for the
alleged incapacitated person in the current proceeding or a future
proceeding under this article.
(k) Unless otherwise ordered by the court, the petitioner shall bear
the costs and expenses incurred by the respondent health care provider
to comply with the confidential health disclosure order.
(l) The record of:
(1) any court hearing held under this section;
(2) all exhibits entered during a hearing;
(3) all records or reports produced by a respondent health care
provider in response to a confidential health disclosure order; and
(4) all written objections filed or entered as evidence in a
proceeding under this section;
must be filed as a nonpublic document under Rule 5 of the Indiana
Rules on Access to Court Records.
(m) Once any action filed under this article concerning the alleged
incapacitated person has been fully adjudicated, every individual who
received any records in the course of those proceedings shall destroy
all documents that contain medical evidence of capacity or incapacity
about the individual alleged to be incapacitated.

Legislative History

As added by P.L.38-2023, SEC.12. Amended by P.L.99-2024, SEC.11.