                           QBfficeof tfje !i%tornep @eneral
                                   &ate of Ptexae
DAN MORALES
 ATTORNEY
      GENERAL
                                        November 27,199l

    Robert A. MacLean, M.D.                        Opinion No. DM-61
    Acting Commissioner
    Texas Department of Health                     Re: Whether a “properly qualified appli-
    1100 West 49th Street                          cant” for a certified copy of a death
    Austin, Texas 787563199                        certificate may receive the entire copy if
                                                   the cause of death lists AIDS or HIV
                                                   infection (RQ-104)


    Dear Dr. MacLean:

           You have requested an opinion regarding whether the Texas Department of
    Health (the “department”) may release a copy of a death certificate that lists
    acquired immune deficiency syndrome (“AIDS”) or human immunodeficiency virus
    (“HIV”) infection as a cause of death.

             Chapter 191 of ‘the Health and Safety Code requires the department to
    administer the registration of vital statistics and to establish a bureau of vital
    statistics, to be directed by the state registrar of vital statistics (the “state registrar”).
    Health & Safety Code 69 191.002(a), (b)(l), 191.004(a). Chapter 191 also requires
    the Texas Board of Health (the “board”) to adopt rules for collecting, recording,
    transcribing, compiling, and preserving vital statistics, including death records. Id
    5 191.003(a); see a&o ch. 193 (setting forth the department’s specific duties with
    respect .to death records).

           Section 191.051 of the Health and Safety @de requires the state registrar to
    supply a certified copy of a registered death record, or part of a registered death
    record, to a “properly qualified applicant,” subject to board rules controlling the
    accessibility of vital records.     Pursuant to section 191.05!, the board has
    promulgated regulations that define a “properly qualified applicant” as:


              [a] legal representative, personal representative or agent, an
              immediate family member, or the registrant, who has a direct
              and tangible interest in the record and who shall have a
              significant legal relationship to the person whose record is


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Robert A. MacLean, M.D. - Page 2                     (DM-61)




           requested. The purpose for which the certified copy is needed
           and the relationship of the applicant to the registrant is essential
           to the application to determine if the applicant is properly
           qualified.

Tex. Dep’t of Health, 15 Tex. Reg. 5603 (1990) (to be codified at 25 T.A.C. 9 181.1).
These regulations define “legal representative, personal representative, or agent” as:


           [a]ny individual, attorney, funeral director, or other representa-
           tive acting under contract for the requestor, when the requestor
           is not the applicant; or -is one bearing an affidavit, authorixing
           that person, agent, genealogist, or other representative to make
           application on behalf of the .registrant or member of the
           immediate family for the record or information requested.

Id


        You have informed us that pursuant to section 193.001 of the Health and
Safety Code, the department has prescribed the form and content of death
certificates. The current form contains an entry for “cause of death.” You state that
in some instances AIDS or HIV infection is listed on a death certificate as a cause of
death. As a result, it is possible that information on a death certificate indicating
that a deceased person died as a result of AIDS or HIV infection would be released
to a properly qualified applicant.

         The Communicable Disease Prevention and Control Act’ (the “CDPCA”)
generally prohibits disclosure of the results of AIDS tests,2 except to certain persons
and entities under specific circumstances. See Health & Safety Code 5 81.103(b). A
person who discloses a test result in violation of section 81.193 commits a Class A
misdemeanor. Id 5 81.103(j). The CDPCA provides that an individual may bring
an action to enjoin violation of these confidentiality provisions, and also establishes
civil liability for both negligent and willful disclosures of test results. Id 0 81.104.


        ‘Health & Safety Code ch. 81 (formerly article 4419b-1, V.T.C.S.).

         2 The provisioas of the CDPCA spe.citicaUyrelating to AIDS tests arc found ia sections 81.101
through 81.104 (subchapter ‘F of chapter 81) of the Health aad Safety Code (formerly section 9 of
arlidc 4419b1, V.T.C.S.). These provisions were amended by the 72d Legisbure.          Acts 1991, 72d
Leg., ch. 14, P 23, at 57-60 (en. Sept. 1.1991).



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Robert A. MacLean, M.D. - Page 3                          (DM-61)




        In light of the vital statistics statute requiring the release of death certificates
and the CDPCA’s strictures on disclosure of AIDS test results, you ask whether the
state registrar may release a death certificate listing AIDS or HIV infection as a
cause of death to any “properly qualified applicant,” or whether the state registrar
must release such a death certificate only to the specific persons and entities listed
in section 81.103(b) of the CDPCA. Your question assumes that the disclosure of
the fact that someone has died as a result of AIDS or HIV infection would disclose
the results of an AIDS test for purposes of the CDPCA. We agree with this
assumption. The CDPCA defines “test results” quite broadly as “wrystaternmt that
indicates that an identifiable individual has or has not been tested for AIDS or HIV
infection. . . including a statement or assertion that the individual is positive,
negative, at risk, or has or does not have a certain level of antigen or antibody.” Id
5 81.101(5) (emphasis added). We believe that the information on a death
certificate that a persondied as the result of AIDS or HIV infection would reveal
that the person had tested positive for AIDS or HIV infection, thereby implicating
the confidentiality provisions of the CDPCA.3 As noted above, the CDPCA
provides that an AIDS test result may be released only to certain entities and
persons, including the department, the person tested, the physician who ordered the
test, health care providers responsible for caring for the person tested, and the
spouse of the person tested. See id 9 81.103(b). While some potential “properly
qualified applicants,” such as the deceased’s spouse, are persons to whom AIDS test
results may be disclosed under the CDPCA, most potential “properly qualified
applicants” are not. See Tex. Dep’t of Health, 15 Tex. Reg. 5603 (1990).

       Although common-law privacy rights lapse upon death, there is no similar
presumption that prohibitions against disclosure in confidentiality statutes lapse
upon the death of the subject of the information. Attorney General Opinion
JM-851 (1988). Rather, whether a confidentiality provision lapses upon death is a
question of statutory construction. Id; see &o Gpen Records Decision No. 524
(1989). In Open Records Decision No. 529 (1989), this office considered whether
the CDPCA prohibits public disclosure of AIDS tests results obtained in an autopsy


         %he CDPCA requires a physiciaa who attended a person who has died of a reportable
disease, including AIDS or HIV infection, to immediately notify the heakh authority of the jurisdiction.
Id. P 81.045. We are not aware, howewr,.of any statute or reguIation expressly requiring or otherwise
authorizing physiciaas to discIose AIDS or HIV infection as the tiuse of death on death certiticates.
Smce we have not been asked to address that issue, we simply assume for purposes of this opinion that
the CDPCA or other law permits a physician to diiose AIDS or HIV infection as a cause of death to
persons required to complete aad file death certificates under sectioos l%XOD2and 1!?3.004 of the
Health and Safety Code.



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Robert A MacLean, M.D. - Page 4                         (DM-61)




and included in an autopsy report requested under the Dpen Records Act4 In that
decision, we carefully examined the CDPCA in conjunction with statutory provisions
establishing medical examiners’ duty in connection with inquests. See id at 5-7.
We concluded that the CDPCA does not apply to AIDS test results obtained in
autopsies and included in autopsy reports because its consent-to-testing and
confidentiality provisions are expressed in language applicable to living persons, not
deceased persons, and because a contrary interpretation would interfere with
medical examiners’ statutory obligation to make full inquest reports. Id at 4,7.

        We conclude that the state registrar may release death certificates listing
AIDS or HIV infection as the cause of death to properly qualified applicants who
are not persons to whom AIDS test results may be disclosed under the CDPCA. See
Health & Safety Code 3 81.103(b). In reaching this conclusion, we apply the same
analysis we applied in Open Records Decision No. 529.5 Like the provisions at issue
in that decision, the AIDS test results confidentiality provisions of the CDPCA refer
to living persons. As noted above, for example, a test result is defined as “any
statement that indicates that an identifiable individual bar or has not been tested for
AIDSorHIVinfection...        including a statement or assertion that the individual is
positive, negative, at risk, or has or does not have a certain level of antigen or
antibody.” Health & Safety Code 5 81.101(5) (emphasis added); see also Cpen
Records Decision No. 529 at 7. We also note that it appears from the legislative
history of the CDPCA confidentiality provisions that the legislature intended to
protect persons with positive test results from discrimination, particularly in


         ‘Autopsy reports are exprcdy made public records pursuant to statute. See Code Grim. Rot.
art. 4925,3.11. In Open Records Decision No. 529 we considered whether section 3(a)(l) of the Open
Records Ad (which mandates the withholding of ‘information deemed contidential by law”) in
conjunction with the CDPCA precludes the disclositrc of AIDS test results on autopsy reports.

         %Iike Open Records Decision No. 529, your query is not an open rccorti rquest and does
not other&e require us to interpret the Open Records Ad. The Open Records Act provides that a
death record maintained by the Bureau of ViaI Stat&s of the Te+ Department of He&h is public
information ‘avaiIabIc.to the public on and after the 25tb anniversary of the date the record is fded with
the Bureau of, Vital Statistics.” V.T.C.S. art. 62%17a, 0 3(a)(lS)(B). We assume that you are
concerned with the release of a death oxtiticateprior to the 25th anniversary of the date it is fded with
the Bureau of Vital Statistics, aad solely to “properly quaIitied applicaats” as detined in the
department’s regulations.. Tex. Dep’t of Health, 15 Tex. Reg. 5603 (1990). Because chapter 191 of the
HeaIth aod Safety Code and the regulatioas promulgated thereunder establish requirements and
procedures for the release of death eertiticatm prior to the 2% anniversary of the date the record is
t&l, we consider only the interplay betwcen chapter 191 and the CDPCA. As your rquest does not
involve “public information” or the availability of information to the “pubtic,’we need not consider the
interplay behveea the open Records Act and the CDPCA.



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Robert A..MacLean, M.D. - Page 5                     (DM-61)




employment and insurance. It does not appear that the legislature intended to
create a right to confidentiality that applies to death certificates.

        In addition, in Gpen Records Decision No. 529 we addressed medical
examiners’ statutory duty to fully disclose the results of inquests. Here we consider
the CDPCA’s confidentiality provisions in conjunction with the state registrar’s duty
under section 191.051 of the Health and Safety Code to supply certified copies of
registered death records to properly qualified applicants.6 The department’s
regulations require that death certificates be disclosed only to those persons with a
substantial need for access to the records. See Tex. Dep’t of Health, 15 Tex. Reg.
5603 (1990) (requiring that a properly qualified applicant must have a “direct and
tangible interest” in the death certificate). The state registrar’s duty under section
191.051 of the Health and Safety Code to release death certificates to such persons
is as explicit as medical examiners’ duty to fully disclose the results of inquests.
Accordingly, the state registrar may release to a properly qualified applicant a copy
of a death certificate that,lists AIDS or HIV infection as a cause of death without
violating the CDPCA.

                                      SUMMARY
               The provisions of the Communicable Disease Prevention
           and Control Act which prohibit the disclosure of AIDS test
           results, Health & Safety Code !$gl.101 et seq., do not prohibit
           the state registrar from releasing a death certificate that reveals
           that a person died as the result of AIDS or HIV infection to a
           properly qualified applicant pursuant to section 191.051 of the
           Health and Safety Code.




                                                          DAN      MORALES
                                                          Attorney General of Texas



         %Vhik section 191.051 also authorizes the state registrar to release odyporr of a record, we
believe that release of redacted death certitkates is not a real&tie alternative. It is not the state
registrar’s common practice to release redacted death certiticates. Thus, such redactions would
themselve-s reveal that AIDS or HIV i&&on is listed as a cause of death.



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Robert & MacLean, M.D. - Page 6           (DM-61)




WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General




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