Who Has to Follow THESE LAWS?
Most South Dakota health care providers (such as doctors, chiropractors, podiatrists and hospitals) must follow both the HIPAA Privacy Rule and state laws that give patients rights with respect to their medical records.
There are some health care providers, however, that do not have to follow the HIPAA Privacy Rule. The HIPAA Privacy Rule only covers health care providers that use computers to send health information for certain administrative or financial purposes (such as filing claims for insurance).
Sometimes Ashley goes to a doctor at a free clinic for medical treatment. The doctor does not accept private insurance, Medicaid, or Medicare. The doctor does not file any insurance claims. Ashley’s doctor probably does not have to follow the HIPAA Privacy Rule because the doctor does not appear to send health information for the types of administrative or financial purposes that would make her a covered health care provider under the Rule.
If you have questions about whether your health care provider must follow the federal HIPAA Privacy Rule, you can contact the Office for Civil Rights, U.S. Department of Health and Human Services (OCR), the agency that is in charge of enforcing the HIPAA Privacy Rule. Section 4 of this guide lists contact information for OCR.
Are nursing homes covered by HIPAA?
Yes. Most nursing homes are covered by the HIPAA Privacy Rule. They also have to follow other specific rules that only apply to nursing homes and long term care facilities. Because the rules for nursing homes are different than they are for other health care providers, they are not covered by this guide.
What if my health care provider does not have to follow HIPAA?
Even if your provider does not have to follow the HIPAA Privacy Rule, they still have to follow South Dakota laws that give you rights with respect to your medical record. Section 6 lists some resources where you can read these state laws.
This guide, however, only explains how to get your medical record from South Dakota providers who have to follow the HIPAA Privacy Rule and state law.
What Records Do I Have the Right to Get and Amend?
You have the right to see and get a copy of your medical record. This right often is called the right to access your medical record. You also have the right to have information added to your medical record to make it more complete or accurate. This right is called the right to amend your record. (This guide will call these rights the "right to get and amend.")
Your medical record includes such things as:
- Information that identifies you, such as your name and Social Security number.
- Information that you tell your doctor, such as:
- Your medical history.
- How you feel at the time of your visit.
- Your family health history.
- The results of your examination.
- Test results.
- Treatment received in a hospital.
- Medicine prescribed.
- Notes your doctor makes about you.
- Other information about things that can affect your health or health care.
You have the right to see, get a copy of, and amend these records whether they are kept on paper, on a computer, or in other format.
What happens if my medical record has information in it that came from a different health care provider?
Generally, if your provider has the medical information that you request, they must give it to you. You have the right to get the information no matter who originally put it in the record. Your right to amend this information may be limited, though. For more information about how to amend information in your record you can read Section 3 of this guide.
Do I have the right to get and amend records related to substance abuse or mental health treatment?
Maybe. The rules for when you can get and amend your records about mental health and substance abuse treatment can be different. For example, psychotherapy notes are treated differently than other records under HIPAA. Because the rules for mental health and substance abuse records can be different they are not discussed in this guide. You can find some resources that explain your rights in these types of records in Section 6.
Who Has the Right to Get and Amend My Medical Record?
You have the right to see and get a copy of medical records that are about you. You also have the right to correct medical records that are about you by having information added to them. (This guide calls these rights the right to "get and amend" your medical record.) If there is someone who acts as your personal representative for health care, they usually have the right to get and amend your record on your behalf.
Do I have the right to get and amend my minor child’s medical record?
Generally, yes. As a parent or guardian, you generally have the right to get and amend your minor child’s medical record. In South Dakota, you usually have these rights when your child is younger than 18 years old.
As a parent, do I always have the right to get and amend my child’s medical record?
No. A parent does not always have the right to get and amend a minor child’s medical record. For example, if a health care provider reasonably believes that a parent is abusing or neglecting a child, the provider does not have to give the parent access to the child’s medical record.
Some other situations where parents do not have the right to get and amend their child’s medical records are discussed in the following questions and answers.
Who has the right to get and amend my child’s medical record once she turns 18?
Once your child turns 18, your child has the right to see, get a copy of, and amend her own medical record. This includes getting access to records that were created when she was still a minor. After your child turns 18, you usually no longer have the right to get and amend your child’s medical record just because you are her parent.
I am under 18 and am emancipated. Who has the right to get and amend my medical record?
In South Dakota, you are considered emancipated for purposes of health care even if you are under 18 if:
- You are or have been legally married;
- You are on active duty with any of the armed forces of the United States of America; or
- You have received a declaration of emancipation from a South Dakota court.
As an emancipated minor, you have the right to consent to your own medical treatment without having to get the permission of your parents. You also have the right to get and amend medical records that are related to this treatment. Your parents generally do not have the right to access your medical record once you are emancipated.
I am an unemancipated minor but I can legally consent to certain kinds of medical treatment without my parents’ permission. Who has the right to get and amend my records that are related to this treatment?
It depends. In South Dakota, as an unemancipated minor you can consent to certain types of medical treatment without the permission of your parents. For example, you can consent to testing for and treatment of venereal disease without the permission of your parents. When you consent to testing or treatment for a venereal disease, you have the right to get and amend your medical record related to the test or treatment. In South Dakota, it is up to your health care provider whether your parents also have the right to get and amend these medical records.
Jason is sexually active and under 18. He consents to be tested for gonorrhea on his own. Jason’s mother later requests a copy of his medical record. It is up to Jason’s doctor, using his professional judgment, to decide whether Jason’s mother should get the part of the record about Jason’s gonorrhea test.
The rules may be different when you, as a minor, obtain testing or treatment for other medical conditions (such as mental health) without parental consent. If you have questions or concerns about whether your parent will have access to your medical information, you should talk to your health care provider.
I am listed as my mother’s attorney in fact on her durable power of attorney for health care form. Do I have the right to get her medical records?
Yes. If you are your mother’s attorney in fact for health care, you generally have the right to get and correct her medical records that are relevant to making health care decisions on her behalf. You have the right of access only while the power of attorney is actually in effect.
Maria’s mother signed a health care power of attorney form that gives Maria the power to make health care decisions if her mother is unable to make such decisions. Maria’s mother was in a bad accident and is not able to make decisions about her health care. Maria now has the right to make health care decisions on her mother’s behalf. She also has the right to get her mother’s medical records. For example, Maria has the right to see the records about her mother’s current medical condition and treatment.
Maria is curious about the time her mother had a miscarriage. Maria wants to look at these old medical records. Maria does not have the right to get and amend these old medical records because the records have nothing to do with her mother’s current condition or treatment.
My mother never filled out a durable power of attorney for health care form. Do I have the right to access her medical record?
It depends. Sometimes a patient is unable to make her own health care decisions but has not filled out a durable power of attorney for health care form. When this is the case, South Dakota law usually gives family members the right to make health care decisions on the patient’s behalf. Family members have the authority to make health care decisions in the following order:
- The spouse, if not legally separated
- An adult child
- A parent
- An adult sibling
- A grandparent or an adult grandchild
- An adult aunt or uncle or an adult niece or nephew
If you have the legal right to make health care decisions on your mother’s behalf, you also have the right to access her medical records.
My father recently died. Do I have the right to get his medical record?
It depends. You have the right to get a deceased person’s medical records from a South Dakota health care provider if you are the personal representative (such as the executor or administrator) of the deceased person's estate.
If a personal representative was not appointed, surviving family members have the right of access in the following order:
- The spouse, if not legally separated at the time of death
- An adult child
- A parent
- An adult sibling
- A grandparent or an adult grandchild
- An adult aunt or uncle or adult niece or nephew
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How Long Does My Provider Have to Keep My Medical Record?
State law requires many health care providers to keep your medical record for a specific period of time. For example, hospitals generally must keep medical records at least 10 years after the date of service. They generally must keep the records of minor patients at least 10 years or until the minor turns 20, whichever is later. In practice, many health care providers keep their medical records longer.
You have a right to see, get a copy of, and amend your medical record for as long as your health care provider has it.
