A. Except as otherwise provided in this section, any reports, information, or records received or maintained by the Board regarding active investigations or disciplinary proceedings for violations of this chapter shall be strictly confidential. The Board may only disclose such confidential information:
1. In a disciplinary proceeding before a health regulatory board or in any subsequent trial or appeal of an action or order;
2. To the permittee when entering into a confidential consent agreement;
3. To regulatory authorities tasked with granting, limiting, or denying licenses, certificates, or registrations to practice a health profession;
4. Pursuant to a court order for good cause arising from extraordinary circumstances;
5. To qualified personnel for bona fide research or educational purposes, provided that identifying information is redacted and the information is released pursuant to a written agreement that ensures compliance with this section;
6. To the Health Practitioners’ Monitoring Program within the Department of Health Professions for the purpose of evaluating health practitioners who have applied to or participate in the Program; or
7. To the Joint Legislative Audit and Review Commission pursuant to § 30-59.
B. In no event shall confidential information received, maintained, or developed by the Board or disclosed by the Board to others pursuant to this section be available for discovery or court subpoena or introduced into evidence in any civil action. This section shall not, however, be construed to inhibit an investigation or prosecution under Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2.
C. Any claim of a practitioner-patient privilege shall not prevail in any investigation or proceeding by the Board when acting within the scope of its authority. However, the disclosure of any information pursuant to this section shall not be deemed a waiver of such privilege in any other proceeding.
D. This section shall not prohibit the Board, after consultation with the relevant health regulatory board president or his designee, from disclosing to the Attorney General, or the appropriate attorney for the Commonwealth, investigatory information that indicates a possible violation of any provision of criminal law, including the laws relating to the manufacture, distribution, dispensing, prescribing, or administration of drugs, other than drugs classified as Schedule VI drugs and devices, by any individual regulated by the Board or any health regulatory board.
E. This section shall not prohibit the Board from (i) disclosing information regarding any (a) disciplinary action taken against a person holding a permit issued pursuant to this chapter in another state or in a federal health institution or any voluntary surrender of a license in another state while under investigation; (b) malpractice judgment against a person holding a permit issued pursuant to this chapter; or (c) settlement of a malpractice claim against a person holding a permit issued pursuant to this chapter or (ii) making any report of aggregate, non-identifying information.
F. This section shall not prohibit the Board, following consultation with any relevant health regulatory board president or his designee, from (i) disclosing information about a suspected violation of state or federal law or regulation to agencies within the Health and Human Resources Secretariat or to state or federal law-enforcement agencies having jurisdiction over the suspected violation or (ii) requesting an inspection or investigation of a permittee by such state or federal agency when the Board has reason to believe that a possible violation of state or federal law has occurred. Such disclosure shall not exceed the minimum information necessary to permit the state or federal agency having jurisdiction over the suspected violation of state or federal law or regulation to conduct an inspection or investigation. Disclosures by the Board pursuant to this subsection shall not be limited to requests for inspections or investigations of permittees. However, nothing in this subsection shall be construed to require the Board to make any disclosure or to permit any agency to which the Board makes a disclosure to re-disclose any information, reports, records, or materials received from the Board.
G. Whenever a complaint has been filed about a permittee under this chapter, the Board shall provide information to the source and the subject of the complaint regarding investigative and disciplinary procedures. Prior to interviewing a permittee who is the subject of a complaint, or at the time that the permittee is first notified in writing of the complaint, whichever occurs first, the Board shall provide the permittee with a copy of the complaint and any records or supporting documentation, unless such provision would materially obstruct a criminal or regulatory investigation. If the Board concludes that a disciplinary proceeding will not be instituted, the Board may send an advisory letter to the person who was the subject of the complaint. The Board may also inform the source of the complaint (i) that an investigation has been conducted, (ii) that the matter was concluded without a disciplinary proceeding, (iii) of the process the Board followed in making its determination, and (iv) if appropriate, that an advisory letter from the Board has been communicated to the person who was the subject of the complaint. In providing such information, the Board shall inform the source of the complaint that he is subject to the requirements of this section relating to confidentiality and discovery.
H. Orders and notices of the Board relating to disciplinary actions, other than confidential exhibits described in subsection I, shall be disclosed. The Board shall provide to the source of the complaint (i) information regarding the date and location of any disciplinary proceeding, allegations against the permittee, and the list of statutes and regulations the permittee is alleged to have violated prior to the proceeding and (ii) notice of the disposition of the disciplinary case.
I. In disciplinary actions in which a practitioner is or may be unable to practice with reasonable skill and safety to patients and the public because of a mental or physical disability, the Board shall consider whether to disclose and may decide not to disclose the practitioner’s health records or services. Such information may be considered by the Board in a closed hearing and included in a confidential exhibit to a notice or order. The public notice or order shall identify, if known, the practitioner’s mental or physical disability that is the basis for its determination. In the event that the Board determines that information should be withheld pursuant to this subsection, information contained in the confidential exhibit shall remain part of the Board’s confidential record and is subject to court review under the Administrative Process Act (§ 2.2-4000 et seq.) and to release in accordance with this section.
J. This section shall not prohibit investigative staff authorized under § 54.1-2506 or investigative staff of any other agency to which disclosure of information about a suspected violation of state or federal law or regulation is authorized by subsection F from interviewing fact witnesses, disclosing to fact witnesses the identity of the subject of the complaint, or reviewing with fact witnesses any portion of records or other supporting documentation necessary to refresh the fact witnesses’ recollection.
K. The provisions of this section shall apply only to information collected or maintained by the Board pursuant to the provisions of this chapter.
L. Any person that discloses confidential information of the Board in violation of this section is guilty of a Class 1 misdemeanor.