2023 Indiana Code › Title 29. Probate › Article 3. Guardianships and Protective Proceedings › Chapter 4. Protective Proceedings and Single Transactions › 29-3-4-1.5. Confidential Health Disclosure Order; Petition; Hearing; Procedure to Disclose Confidential Health Information

Sec. 1.5. (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 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.
As added by P.L.38-2023, SEC.12.