CO Code § 12-245-220 (2021)
2021 Colorado Code|Title 12 - Professions and Occupations|Article 245 - Mental Health|Part 2 - General Provisions|§ 12-245-220. Disclosure of Confidential Communications - Definitions

  A licensee, registrant, or certificate holder shall not disclose, without the consent of the client, any confidential communications made by the client, or advice given to the client, in the course of professional employment. A licensee's, registrant's, or certificate holder's employee or associate, whether clerical or professional, shall not disclose any knowledge of the communications acquired in that capacity. Any person who has participated in any therapy conducted under the supervision of a licensee, registrant, or certificate holder, including group therapy sessions, shall not disclose any knowledge gained during the course of the therapy without the consent of the person to whom the knowledge relates.    Subsection (1) of this section does not apply and a person may disclose confidential information when:   A client, or the heirs, executors, or administrators of a client, file suit or a complaint against a licensee, registrant, or certificate holder on any cause of action arising out of or connected with the care or treatment of the client by the licensee, registrant, or certificate holder;    A licensee, registrant, or certificate holder was in consultation with a physician, registered professional nurse, licensee, registrant, or certificate holder against whom a suit or complaint was filed based on the case out of which the suit or complaint arises;    A review of services of a licensee, registrant, or certificate holder is conducted by any of the following:   A board or a person or group authorized by the board to make an investigation on its behalf;    The governing board of a hospital licensed pursuant to part 1 of article 3 of title 25, where the licensee, registrant, or certificate holder practices or the medical staff of the hospital if the medical staff operates pursuant to written bylaws approved by the governing board of the hospital; or    A professional review committee established pursuant to section 12-245-212 (1) if the person has signed a release authorizing the review;         A client, regardless of age: (d) (I) A client, regardless of age:   Makes an articulable and significant threat against a school or the occupants of a school; or    Exhibits behaviors that, in the reasonable judgment of the licensee, registrant, or certificate holder, create an articulable and significant threat to the health or safety of students, teachers, administrators, or other school personnel.       A licensee, registrant, or certificate holder who discloses information under this subsection (2)(d) shall limit the disclosure to appropriate school or school district personnel and law enforcement agencies. School or school district personnel to whom the information is disclosed shall maintain confidentiality of the disclosed information, regardless of whether the information constitutes an education record subject to FERPA, consistent with the requirements of FERPA and regulations and applicable guidelines adopted under FERPA, but may disclose information in accordance with section 1232g (b)(1) of FERPA and 34 CFR 99.36 if necessary to protect the health or safety of students or other persons.    A licensee, registrant, or certificate holder who discloses or fails to disclose a confidential communication with a client in accordance with this subsection (2)(d) is not liable for damages in any civil action for disclosing or not disclosing the communication. This subsection (2)(d)(III) does not rescind any statutory duty to warn and protect specified in, and does not eliminate any potential civil liability for failure to comply with, section 13-21-117.    (A) This subsection (2)(d) does not apply to an education record that, under FERPA, is exempt from the HIPAA privacy rule.    As used in this subsection (2)(d):   “Articulable and significant threat” means a threat to the health or safety of a person that, based on the totality of the circumstances, can be explained or articulated and that constitutes a threat of substantial bodily harm to a person.    “FERPA” means the federal “Family Educational Rights and Privacy Act of 1974”, 20 U.S.C. sec. 1232g, as amended.    “HIPAA” means the federal “Health Insurance Portability and Accountability Act of 1996”, as amended, Pub.L. 104-191.    “School” means a public or private preschool; elementary, middle, junior high, or high school; or institution of postsecondary education described in title 23, including the Auraria higher education center created in article 70 of title 23.             The records and information produced and used in the review provided for in subsection (2)(c) of this section do not become public records solely by virtue of the use of the records and information. The identity of a client whose records are reviewed shall not be disclosed to any person not directly involved in the review process, and procedures shall be adopted by a board, hospital, association, or society to ensure that the identity of the client is concealed during the review process itself and to comply with section 12-245-226 (4).    Subsection (1) of this section shall not apply to any delinquency or criminal proceeding, except as provided in section 13-90-107 regarding any delinquency or criminal proceeding involving a licensed psychologist.    Nothing in this section shall be deemed to prohibit any other disclosures required by law.    Repealed.     History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 1237, § 1, effective October 1. L. 2020: IP(2) and (2)(d)(IV)(B) amended and (6) repealed,(HB 20-1206), ch. 304, p. 1529, § 13, effective July 14.    Editor's note:   This section is similar to former § 12-43-218 as it existed prior to 2019.   ANNOTATION   Law reviews. For article, “New Definitions of Therapist Confidentiality”, see 18 Colo. Law. 251 (1989). For article, “Admissibility of Mental and Physical Health Records and Testimony”, see 29 Colo. Law. 61 (Dec. 2000).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   The prohibition against revealing confidential information absent consent established by subsection (1) is inapplicable when a grievance is filed against a psychologist and the board, in the interest of public health and safety, investigates the conduct of the psychologist. Colo. Bd. of Psychologist Exam'rs v. I.W., 140 P.3d 186 (Colo. App. 2006).   This section does not create a private cause of action for damages for violation of a patient's right to confidentiality. Dauwe v. Musante, 122 P.3d 15 (Colo. App. 2004).   Communication between social worker and client may be compelled in the case of a sexual assault of a child under age 16. Court should make a determination after an in-camera review of the records. People v. Ross, 745 P.2d 277 (Colo. App. 1987) (decided under § 12-63.5-115 prior to its repeal in 1988).   Making it a criminal act for a social worker to reveal a privileged communication from a client was irreconcilable with § 19-3-304 . Human Servs. Inc. v. Woodward, 765 P.2d 1052 (Colo. App. 1988) (decided under § 12-63.5-115 prior to its repeal in 1988).   When a psychotherapist reveals opinions to third parties with 12-245-224 out the client's consent, the psychotherapist is negligent. A divorced mother of two children was seeking therapy concerning allegations that the ex-husband and father of the children had abused the children. The mother was dissatisfied with treatment and ended the therapeutic relationship. The psychotherapist sent a letter to the father of the children and the new therapist for the mother and children opining that the mother's actions were alienating the father from the children. Such letter prompted the father to modify his custody arrangement with the mother. By sending the letter to the father, the psychotherapist was negligent and breached the duty of care to the mother. Mitchell v. Ryder, 20 P.3d 1229 (Colo. App. 2000).   Threatening communications made to a mental health provider that trigger the “duty to warn” statute are not confidential as a matter of law. Therefore, when the mental health provider discharges his or her duty to warn based on those communications, the threatening communications are not protected by the psychologist-patient privilege, and the therapist may testify to those threatening communications. People v. Kailey, 2014 CO 50, 333 P.3d 89.