Can I collect gender information from participants in North Dakota? What are the requirements?

Based on the North Dakota Administrative Code (NDAC) and the additional context provided, collecting gender information from participants in North Dakota may be allowed under certain circumstances.

Authorized Participants

According to NDAC Section 113-02-01-04, participants and authorized users with a legitimate business need for purposes of treatment, obtaining payment for treatment, health care operations, to comply with public health reporting requirements, and as required by law are granted the rights to access the North Dakota health information network. Participants must execute a participation agreement with the North Dakota health information network prior to being granted access. Access and use of the North Dakota health information network is nontransferable by the participant. Participants shall identify all of its authorized users in accordance with the North Dakota health information network policies and procedures. The North Dakota health information network shall establish a unique identifier for each authorized user. Access to an individual’s protected health information shall be based on the authorized user’s job function and relationship to the individual according to policies and procedures established by the North Dakota health information network.

Individual Participation

According to NDAC Section 113-02-01-03, individual participation in the North Dakota health information network is voluntary. All individuals are considered to be participating until an individual has made a written decision to opt out of participation in the North Dakota health information network. Unless an individual elects to not participate, the individual’s protected health information will be available through the North Dakota health information network for the purposes specified in section 113-02-01-05. An individual may choose not to participate completely or except for a medical emergency by completing and submitting the designated form to the North Dakota health information network. If an individual has chosen to not participate in the North Dakota health information network, then the individual’s protected health information will not be available for use and disclosure through the North Dakota health information network except as required by law, as authorized by the individual in a medical emergency, or by the provider who originally created or ordered the creation of the individual’s protected health information.

Amendments as a result of gender identity change

According to NDAC Section 33-04-12-02, the birth record of a person born in North Dakota who has undergone a sex conversion operation may be amended upon written request of the person who has undergone the operation, an affidavit by a physician that the physician has performed an operation on the person, and that by reason of the operation, the sex designation of such person’s birth record should be changed, and an order of a court of competent jurisdiction decreeing a legal change in name. Pursuant to such amendment, a new record of birth will be created by the state registrar showing original data as transcribed from the original record excepting those items that have been amended. The new record will be clearly marked in the upper margin with the word “amended” and a description of the amended items may be added to the certified copy for clarification. The original record shall be then placed in a special file and shall not be open to inspection except by order of a court of competent jurisdiction or by the state registrar for purpose of carrying out the provisions of North Dakota Century Code chapter 23-02.1 and properly administering the vital records registration program.

Based on the above information, it appears that collecting gender information from participants in North Dakota may be allowed if it is necessary for treatment, obtaining payment for treatment, health care operations, to comply with public health reporting requirements, and as required by law. However, it is important to note that individual participation in the North Dakota health information network is voluntary, and individuals have the right to opt out of participation. Therefore, any collection of gender information should be done in accordance with the North Dakota health information network policies and procedures and with the individual’s consent. Additionally, if an individual has undergone a sex conversion operation, their birth record may be amended in accordance with NDAC Section 33-04-12-02.

Jurisdiction

North Dakota

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