December 3, 1996; Children's Health Care of Minneapolis
12/3/1996 10:14:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.On October 14, 1996, PIPA received a letter dated October 10, from L. In his/her letter, L requested that the Commissioner issue an opinion regarding L's access to certain data about L's minor child maintained by Children's Health Care of Minneapolis, hereinafter Children's. Attached to L's request were copies of three letters (dated July 12, 1996, August 17, 1996, and August 26, 1996) from L to Children's requesting access to various portions of the medical record of L's minor child. Also attached was a copy of Ms. Klein's September 11, 1996, response, and a copy of L's fourth request, dated September 22, 1996. In response to L's request, PIPA, on behalf of the Commissioner, wrote to both Mark Kirschbaum, Vice President of Information Systems amp; Quality Resources at Children's, and Kimberly Klein, a psychologist at Children's. The purposes of this letter dated October 25, 1996, were to inform Mr. Kirschbaum and Ms. Klein of L's request, and to ask them or Children's attorney to provide information or support for Children's position. On November 4, 1996, PIPA received a faxed response dated November 1, 1996, from Rebecca Moos, an attorney representing Children's. A summary of the facts relating to this matter is as follows. In letters dated July 12, 1996, August 17, 1996, and August 26, 1996, L requested access to portions of his/her minor child's medical records. In all requests, L noted that s/he has joint and legal custody of his/her child and that the divorce decree specifically grants L access to the medical records of his/her children. In her September 11, 1996, response to L's requests for access to data, Ms. Klein wrote, You have asked for photocopies of the data from my evaluation of your [child]...It is unethical for a psychologist to provide copies of such data to anyone other than another psychologist. In L's September 22, 1996, letter to Ms. Klein, L again requested access to the medical records of his/her minor child. In her response on behalf of Children's to L's opinion request, Ms. Moos first asserted that because Children's is not subject to Minnesota Statutes Chapter 13, the Commissioner has no authority to issue this Opinion. Second, Ms. Moos stated that because L is requesting raw test data, s/he is not entitled to the data. Third, Ms. Moos noted that because L is involved in a custody dispute and because s/he plans on using the data in the custody dispute, the release of such data would be inappropriate because that is precisely the kind of misuse of raw data that the Ethical Principles of Psychologists and Code of Conduct is designed to guard against. She wrote, Although those principles allow the release of raw data to patients or clients when appropriate, [L] is not a patient or client.
Issue:
In his/her request for an opinion, L asked the Commissioner to address the following issue:
Discussion:
The first point to be addressed is whether Children's is subject to the provisions of Minnesota Statutes Chapter 13. It is the Commissioner's understanding that Children's is licensed by the Minnesota State Department of Human Services as a Rule 29 facility. Rule 29 facilities are subject to the provisions of Minnesota Statutes Section 245.69, subdivision 2(f), and Minnesota Rules Section 9520.0750 - 9520.0870. Minnesota Statutes Section 245.69, subdivision 2(f), states, Data on individuals collected by approved clinics and centers, including written minutes of team meetings, is private data on individuals within the welfare system as provided in chapter 13. Pursuant to Section 9520.0800, subpart 7, client information compiled by a Rule 29 facility, including client records and minutes of case review and consultation meetings must be protected as private data under the Minnesota Government Data Practices Act.
Pursuant to Section 13.072, the Commissioner has authority to issue advisory opinions upon the request of any person who disagrees with a determination regarding data practices made by a state agency, statewide system, or political subdivision. Because Children's appears to be subject to Chapter 13, the issuance of this opinion is authorized under Section 13.072. If Children's is not subject to Chapter 13, this Opinion shall have no effect. Assuming Children's is a Rule 29 facility, all client data maintained by Children's about L's minor child are private data subject to the provisions of Chapter 13. Pursuant to Section 13.02, subdivision 8, and Minnesota Rules Section 1205.0500, subpart 2 (B), both parents can gain access to private data about their children unless there is a state law, court order, or legally binding instrument which provides to the contrary. In the present case, L wrote, No action has ever been taken or contemplated by any court to restrict my access to records on my children. In addition, a copy of L's divorce decree which s/he provided to PIPA states, Each party has the right of access to, and to receive copies of...medical...and other important records and information about the minor children. Further, Ms. Moos presented no documentation to suggest that L can be denied access to data about his/her minor child. However, Ms. Moos did present three arguments which the Commissioner will address. First is her position that because L is requesting access to raw test data those data are not accessible to him/her. Ms. Moos wrote, It is my understanding that the raw test data does not become a part of the patient's chart and therefore does not fall within Minn. Stat. 144.335 referenced in one of [L's] letters. However, in this case, Chapter 13 controls the classification of and access to the data , not Minnesota Statutes Section 144.335. As stated above, because data on individuals maintained by Rule 29 facilities are private data and private data on individuals is defined as all government data in which any individual is or can be identified as the subject of that data (see Section 13.02, subdivision 12), all data maintained about L's minor child by Children's are accessible to L, including any raw test data. In her second point, Ms. Moos cited a 1996 Minnesota Court of Appeals case in which the court held that a child abuse report filed under Minnesota Statutes Section 626.556, is not a health record and cannot be released as such by health care providers pursuant to Minnesota Statutes Section 144.335. Also in Bol v. Cole, 545 N.W.2d 408 (Minn. App. 1996), the court held that a psychologist was not entitled to immunity when that psychologist released a copy of a child abuse report to someone who was not a designated recipient of such a report. It appears Ms. Moos is arguing that, under Section 144.335, there are situations in which all the data contained in a person's health record may not be released. However, in this case, her argument is not germane given that the data in question are classified under Chapter 13, not Section 144.335. Ms. Moos' third argument is that L cannot gain access to the data because [L] plans on using the data in a custody dispute and that such a use would be precisely the kind of misuse of raw data that the Ethical Principles of Psychologists and Code of Conduct is designed to guard against. She further wrote, Although those principles allow the release of raw data to patients or clients when appropriate, [L] is not a patient or client. As stated above, the release of data about L's minor child's medical record is subject to the provisions of Chapter 13. Neither Section 13.46 nor Section 13.04, subdivision 3, states that data contained in a medical record cannot be released to a parent of a minor child when those data might be used as part of a custody dispute. Furthermore, pursuant to Section 13.02, subdivision 12, L is permitted to gain access to the data about his/her minor child. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by L is as follows:
Signed:
Elaine S. Hansen
Dated: December 3, 1996
|
Welfare data
Rule 29 facilities
