Amendments for HB16-1063
House Journal, February 12
43 HB16-1063 be amended as follows, and as so amended, be referred to
44 the Committee of the Whole with favorable
45 recommendation:
46
47 Amend printed bill, strike everything below the enacting clause and
48 substitute:
49
50 "SECTION 1. In Colorado Revised Statutes, 12-43-218, add (2)
51 (d) as follows:
52 12-43-218. Disclosure of confidential communications -
53 definition - repeal. (2) Subsection (1) of this section does not apply
54 when:
55 (d) (I) A CLIENT, REGARDLESS OF AGE:
56 (A) MAKES AN ARTICULABLE AND SIGNIFICANT THREAT AGAINST
1 A SCHOOL OR THE OCCUPANTS OF A SCHOOL; OR
2 (B) EXHIBITS BEHAVIORS THAT, IN THE REASONABLE JUDGMENT
3 OF THE LICENSEE, REGISTRANT, OR CERTIFICATE HOLDER, CREATE AN
4 ARTICULABLE AND SIGNIFICANT THREAT TO THE HEALTH OR SAFETY OF
5 STUDENTS, TEACHERS, ADMINISTRATORS, OR OTHER SCHOOL PERSONNEL.
6 (II) A LICENSEE, REGISTRANT, OR CERTIFICATE HOLDER WHO
7 DISCLOSES INFORMATION UNDER THIS PARAGRAPH (d) SHALL LIMIT THE
8 DISCLOSURE TO APPROPRIATE SCHOOL OR SCHOOL DISTRICT PERSONNEL
9 AND LAW ENFORCEMENT AGENCIES. SCHOOL OR SCHOOL DISTRICT
10 PERSONNEL TO WHOM THE INFORMATION IS DISCLOSED SHALL MAINTAIN
11 CONFIDENTIALITY OF THE DISCLOSED INFORMATION, REGARDLESS OF
12 WHETHER THE INFORMATION CONSTITUTES AN EDUCATION RECORD
13 SUBJECT TO FERPA, CONSISTENT WITH THE REQUIREMENTS OF FERPA
14 AND REGULATIONS AND APPLICABLE GUIDELINES ADOPTED UNDER
15 FERPA, BUT MAY DISCLOSE INFORMATION IN ACCORDANCE WITH SECTION
16 1232g (b) (1) OF FERPA AND 34 CFR 99.36 IF NECESSARY TO PROTECT
17 THE HEALTH OR SAFETY OF STUDENTS OR OTHER PERSONS.
18 (III) A LICENSEE, REGISTRANT, OR CERTIFICATE HOLDER WHO
19 DISCLOSES OR FAILS TO DISCLOSE A CONFIDENTIAL COMMUNICATION WITH
20 A CLIENT IN ACCORDANCE WITH THIS PARAGRAPH (d) IS NOT LIABLE FOR
21 DAMAGES IN ANY CIVIL ACTION FOR DISCLOSING OR NOT DISCLOSING THE
22 COMMUNICATION. THIS SUBPARAGRAPH (III) DOES NOT RESCIND ANY
23 STATUTORY DUTY TO WARN AND PROTECT SPECIFIED IN, AND DOES NOT
24 ELIMINATE ANY POTENTIAL CIVIL LIABILITY FOR FAILURE TO COMPLY
25 WITH, SECTION 13-21-117, C.R.S.
26 (IV) (A) THIS PARAGRAPH (d) DOES NOT APPLY TO AN EDUCATION
27 RECORD THAT, UNDER FERPA, IS EXEMPT FROM THE HIPAA PRIVACY
28 RULE.
29 (B) NOTWITHSTANDING SUBSECTION (6) OF THIS SECTION, THIS
30 PARAGRAPH (d) APPLIES TO COVERED ENTITIES, AS DEFINED IN HIPAA.
31 (V) AS USED IN THIS PARAGRAPH (d):
32 (A) "ARTICULABLE AND SIGNIFICANT THREAT" MEANS A THREAT
33 TO THE HEALTH OR SAFETY OF A PERSON THAT, BASED ON THE TOTALITY
34 OF THE CIRCUMSTANCES, CAN BE EXPLAINED OR ARTICULATED AND THAT
35 CONSTITUTES A THREAT OF SUBSTANTIAL BODILY HARM TO A PERSON.
36 (B) "FERPA" MEANS THE FEDERAL "FAMILY EDUCATION RIGHTS
37 AND PRIVACY ACT OF 1974", 20 U.S.C. SEC. 1232g.
38 (C) "HIPAA" MEANS THE FEDERAL "HEALTH INSURANCE
39 PORTABILITY AND ACCOUNTABILITY ACT OF 1996", AS AMENDED, PUB.L.
40 104-191.
41 (D) "SCHOOL" MEANS A PUBLIC OR PRIVATE PRESCHOOL;
42 ELEMENTARY, MIDDLE, JUNIOR HIGH, OR HIGH SCHOOL; OR INSTITUTION OF
43 POSTSECONDARY EDUCATION DESCRIBED IN TITLE 23, C.R.S., INCLUDING
44 THE AURARIA HIGHER EDUCATION CENTER CREATED IN ARTICLE 70 OF
45 TITLE 23, C.R.S.
46 (VI) (A) THIS PARAGRAPH (d) TAKES EFFECT ONLY IF, IN
47 ACCORDANCE WITH SECTION 26-1-140, C.R.S., THE DEPARTMENT OF
48 HUMAN SERVICES APPLIES FOR AND IS GRANTED AN EXCEPTION TO THE
49 PRIVACY RULE UNDER HIPAA.
50 (B) THIS SUBPARAGRAPH (VI) IS REPEALED IF THE SECRETARY OF
51 THE FEDERAL DEPARTMENT OF HEALTH AND HUMAN SERVICES GRANTS THE
52 EXCEPTION TO THE PRIVACY RULE UNDER HIPAA. THE EXECUTIVE
53 DIRECTOR OF THE DEPARTMENT OF HUMAN SERVICES SHALL NOTIFY THE
54 REVISOR OF STATUTES IN WRITING IF THE CONDITION SPECIFIED IN THIS
55 SUB-SUBPARAGRAPH (B) OCCURS.
56 (C) THIS PARAGRAPH (d) IS REPEALED IF THE SECRETARY OF THE
1 FEDERAL DEPARTMENT OF HEALTH AND HUMAN SERVICES DENIES THE
2 REQUEST FOR AN EXCEPTION TO THE PRIVACY RULE UNDER HIPAA. THE
3 EXECUTIVE DIRECTOR OF THE DEPARTMENT OF HUMAN SERVICES SHALL
4 NOTIFY THE REVISOR OF STATUTES IN WRITING IF THE CONDITION
5 SPECIFIED IN THIS SUB-SUBPARAGRAPH (C) OCCURS.
6 SECTION 2. In Colorado Revised Statutes, add 26-1-140 as
7 follows:
8 26-1-140. State exception to HIPAA - significant threat to
9 schools - legislative declaration - repeal. (1) THE GENERAL ASSEMBLY
10 HEREBY DECLARES THAT, FOR THE HEALTH AND SAFETY OF COLORADO
11 SCHOOLS AND THEIR STUDENTS, TEACHERS, AND OTHER SCHOOL
12 PERSONNEL, A POLICY ENABLING MENTAL HEALTH PROFESSIONALS AND
13 SCHOOL OFFICIALS TO SHARE APPROPRIATE INFORMATION IN A
14 RESPONSIBLE MANNER IS NECESSARY AND SERVES A COMPELLING NEED
15 RELATED TO PUBLIC HEALTH, SAFETY, AND WELFARE. FURTHERMORE, THE
16 GENERAL ASSEMBLY DECLARES THAT SHARING APPROPRIATE
17 INFORMATION IS WARRANTED WHEN LEGITIMATE PRIVACY CONCERNS ARE
18 OUTWEIGHED BY THE NEED TO PROTECT SCHOOLS AND THEIR STUDENTS
19 AND STAFF.
20 (2) WITHIN THIRTY DAYS AFTER THE EFFECTIVE DATE OF THIS
21 SECTION, THE DEPARTMENT OF HUMAN SERVICES SHALL APPLY FOR AN
22 EXCEPTION TO THE PRIVACY RULE UNDER THE FEDERAL "HEALTH
23 INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996" (HIPAA),
24 AS AMENDED, PUB.L. 104-191, IN THE MANNER SPECIFIED IN 45 CFR
25 160.204, TO ALLOW MENTAL HEALTH PROFESSIONALS TO DISCLOSE
26 CONFIDENTIAL COMMUNICATIONS WITH THEIR CLIENTS IN ACCORDANCE
27 WITH SECTION 12-43-218 (2) (d), C.R.S.
28 (3) THIS SECTION IS REPEALED, EFFECTIVE DECEMBER 31, 2017.
29 SECTION 3. Safety clause. The general assembly hereby finds,
30 determines, and declares that this act is necessary for the immediate
31 preservation of the public peace, health, and safety.".
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