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Practice Management

In Practice: Privacy in Veterinary Medicine: Are Fido’s Records Confidential or Private?

by Bonnie Lutz, Esq

    Over the past 10 years, the use of veterinary practice management and marketing consultants, practice management software, and examination/vaccination reminder services has dramatically increased. As more veterinarians rely on software and third parties to supply these services, the question of whether veterinary medical records are confidential has become a major concern. This article provides a broad overview of the issues related to the disclosure of veterinary medical information to third parties who are providing the services.

    Overview of Confidentiality of Medical Records

    There is little disagreement that the health information of an individual person should remain private. This privacy is protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). A person’s private medical information is also confidential and protected from disclosure by the physician–patient privilege. The public policy reasons in support of privacy for human health and medical information are numerous, including the encouragement of frank discussions between physicians and patients and the protection of sensitive information from health insurance companies and employers.

    HIPAA prohibits disclosure of an individual’s health information by three specific entities: health plans, health care clearinghouses, and health care providers who transmit health information in electronic form.1 The only entity that could possibly include veterinarian medical records is “health care providers.” In many states (e.g., California), veterinarians are considered health care providers. However, HIPAA specifically defines “health care” as including, but not limited to, the “preventive, diagnostic, therapeutic, rehabilitative, maintenance or palliative care […] of an individual or that affects the structure or function of the body”1 and an “individual” as “the person who is the subject of protected health information.”1 Therefore, because HIPAA limits its scope of control over the records of an “individual” and defines individual as a “person,” it appears clear that it does not apply to veterinary medical records.

    Public Policy Reasons for Nondisclosure of Veterinary Medical Records

    Some public policy reasons for maintaining the privacy of human medical records may not apply to veterinary medical records. For example, it is unlikely that an individual will be denied employment or health insurance coverage because of information disclosed in veterinary medical records. On the other hand, the public policy of encouragement of frank discussions between physicians and clients applies in the veterinary setting. For example, the recently formed Association for Veterinary Family Practice (AVFP) is devoted to the treatment of animals that are members of a family unit. Their mission is to “optimize the quality of life for pets within their human families and communities by advancing the essential role of primary veterinary care.” The AVFP recognizes that the optimal treatment of animals living in a family unit requires consideration of the conditions and events occurring within that family unit. Determination of family conditions and events that might affect the health of an animal—such as divorce, death, drug use, or unemployment—requires frank discussions with clients. If clients are aware that the information in their pet’s medical record can be disclosed to any member of the public, they are unlikely to share sensitive private information with their veterinarian.

    In addition to private family information, veterinary medical records include information that could be financially damaging to a breeder. For example, the history of hip dysplasia in a line of dogs is private information that the client would not want shared with the public because of the effect on the value of puppies.

    Public policy reasons also exist for maintaining the confidentiality of information regarding the amount of money a person is willing (or not willing) to pay for veterinary care. Other matters that should be confidential include the presence of zoonotic diseases in a family or a dog’s history of biting.

    Confidentiality of Veterinary Medical Records by State Statute

    The kind of consensus that exists regarding confidentiality and protection of human medical records is lacking when it comes to veterinary medical records. The major difference between human and veterinary medical records is the subject of the records. The subject of a human medical record is a person who is motivated to maintain the privacy of his or her medical information. The subject of a veterinary medical record is an animal, and animals are considered property in all states. As property, animals have no rights, including the right to privacy. The issue then becomes whether the owner of the animal has a right to privacy with regard to the veterinary medical record.2

    According to the AVMA, 32 states have provisions regarding the release of veterinary medical records.3 In addition, section 19 of the AVMA Model Veterinary Practice Act (“Model Act”)4 provides for the confidentiality of veterinary medical records. In states that have no regulations or statutes providing for the confidentiality of veterinary medical records, a prudent veterinarian may choose to follow the Model Act.

    The statutes and regulations in the 32 states with provisions vary widely. Four states (Florida, Hawaii, Indiana, and Missouri) specify that veterinary medical records are confidential. California, Colorado, Georgia, Kentucky, and Louisiana prohibit disclosure of the records without defining them as confidential. Other states’ regulations or statutes are constructed in positive terms and, rather than prohibiting disclosure, provide that veterinary medical records may be disclosed or provided under certain circumstances. Such circumstances usually involve disclosure to another treating veterinarian or to the owner.

    It is beyond the scope of this article to examine all 32 state statutes or regulations in detail. Consequently, it is up to veterinarians, practice consultants, and third-party service providers to understand the law in their states.

    Notwithstanding the differences in each state’s statutes or regulations, all require disclosure of veterinary medical record information to the owner and to other treating veterinarians upon authorization by the owner. In addition, most specify that the records can be disclosed to third parties only upon the written request of the owner. The only exceptions to owner authorization for disclosure of records involve the provision of those records to animal control, humane societies, police departments, and other government agencies and in response to a valid subpoena. Other statutes and regulations provide that records can be disclosed when the client has filed a civil, criminal, or administrative proceeding that puts the care of the animal at issue. The Model Act is comprehensive and provides that the veterinarian cannot disclose records except on written authorization or waiver by the client, by court order, by subpoena, or to government agencies as needed for the protection of animal and human health.

    Application of Freedom of Information Act and Other Public Records Acts

    The federal Freedom of Information Act and most state public records acts do not apply to private individuals. These acts require disclosure of information only from federal and state agencies. Consequently, a third party is not able to gain access to medical or veterinary medical records under public records acts.

    Provision of Veterinary Medical Records to Third-Party Consultants and Service Providers

    Veterinary medical records include client information as well as the diagnosis, prognosis, testing, examination, and treatment of the animal. None of the state statutes or regulations provides an exemption for the disclosure of client information only. The statutes and regulations use the word “records,” and the client information is part of the record. The name of the pet is also part of the record. Consequently, the client identification information and the name of the pet can only be disclosed pursuant to the provisions of the applicable state law or regulation. There is no statute or regulation that permits disclosure of veterinary medical records (or the identification of the owner and the pet) to third parties, with the exception of those parties specifically listed in the statute or regulation. None of the current statutes or regulations permits disclosure to third parties for the purposes of reminder, marketing, management consulting, or software management services without obtaining consent, usually in writing, from the client.

    Conclusion

    Public policy supports the need for maintenance of confidentiality of veterinary medical records. Many states have statutes and regulations that permit disclosure under specific circumstances. Disclosure to third-party consultants or service providers is not included in those specific circumstances. However, most states’ statutes and regulations allow for disclosure with client authorization. Veterinarians concerned about avoiding liability for disclosure in violation of state law are advised to obtain written authorization from clients before disclosing any information to third-party service providers and consultants.

    References

    1. Code of Federal Regulations—Title 45: Public Welfare. Definitions. 45 C.F.R. 160.103. Accessed January 2011 at: http://cfr.vlex.com/vid/160-103-definitions-19933565.

    2. Babcock SL, Pfeiffer C. Laws and regulations concerning the confidentiality of veterinarian-client communication. JAVMA 2006;229(3):365-369.

    3. American Veterinary Medical Association. Summary report: confidentiality of veterinary patient records. Accessed January 2011 at: http://www.avma.org/advocacy/state/issues/sr_confidential_records.asp.

    4. American Veterinary Medical Association. Model Veterinary Practice Act. Accessed April 2011 at: http://www.avma.org/issues/policy/mvpa.asp.

    didyouknow

    Did you know... As of 2010, the veterinary profession is about 50% men and 50% women, while enrollment in veterinary medical colleges is about 80% women.Read More

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