Discussion:

The first issue raised by Mr. Flaig relates to the new language in Section 144.335, subdivision 3a (g). Mr. Flaig wrote that various Minnesota laws require public hospitals to report certain data. One example he cited is Minnesota Statutes Section 626.556, the child abuse reporting statute. He noted that pursuant to statute, Douglas Hospital must report to the local welfare agency, police department, or county sheriff, knowledge of or a reasonable cause to believe a child is being neglected or physically or sexually abused. He noted that in some cases, these reports are required to be made in certain formats prescribed either by statute or the institution. He also wrote, In all cases, the reports include, at least in part, certain elements of health information concerning a data subject, but may not require the release of a data subject's heath record or a component part of the health record. He then asked whether, in such an instance, non-documentation on the part of the hospital would violate the rights of a data subject (patient) under Section 144.335, subdivision 3a (g).

The essence of Mr. Flaig's question is whether a release of data from a person's health record constitutes a release of health records as contemplated by the Legislature in Section 144.335, subdivision 3a (g). Section 144.335 does not clearly define health records. However, it seems reasonable to conclude that if the Legislature intended for documentation to occur when partial information out of a person's health record was released, the Legislature would have so stated. Instead, the Legislature enacted language that describes the release of health records. Therefore, it is the Commissioner's opinion that the Legislature intended documentation to occur in situations in which a patient's health record, i.e., complete and current information possessed by that provider concerning any diagnosis, treatment and prognosis of the patient (see Section 144.335, subdivision 2 (a)) is released by the provider.

In the specific case of reporting required by Section 626.556, there is a 1996 appellate court case that appears to answer the question. In Bol v. Cole, 545 N.W.2d 408 (Minn.App. 1996), the court wrote, Although [Section 144.335] does not specifically define health record,' it is described as the complete and current information possessed by that provider concerning any diagnosis, treatment and prognosis of the patient.' The court found 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. Thus, based on the holding in Bol that a child abuse report is not a health record, it does not appear that a provider is required to document, pursuant to Section 144.335, subdivision 3a (g), the release of a child abuse report.

In regard to the second issue raised by Mr. Flaig, the Legislature did not specify what constitutes sufficient documentation of a release of a patient's health record. However, given that the intent of Section 144.335, subdivision 3a (g), is to notify a patient that a release has occurred, it seems reasonable that a provider has met its statutory obligation by placing, in the patient's file, a copy of the legal document mandating the release. Therefore, the Commissioner opines that a patient's rights would not be violated if, in responding to a request via a legal document to provide the patient's health record, the provider documents the release by placing a copy of the legal document in the patient's record with a notation that the record was, in fact, released.

The third issue raised by Mr. Flaig is whether Section 144.335, subdivision 3a (g), mandates any particular format by which a provider must document a release authorized by statute. As was discussed above, there is no language in Section 144.335 that specifies a format for the documentation required pursuant to subdivision 3a (g). Therefore, it is the Commissioner's opinion that any reasonable format that includes the following data elements would be sufficient: the date of the release, a description of which data were released, the identity of to whom the data were released, and the reason for the release.

The fourth issue raised by Mr. Flaig is in regard to Section 144.335, subdivision 3a, clauses (g), and (d) (1) - (3). The latter describe, in detail, the circumstances under which health records may be released to a researcher solely for the purposes of medical or scientific research. Mr. Flaig's specific question is whether these provisions apply only when the data subject's provider is asked to release the subject's health record to an entity external to the provider.

While Section 144.335 provides to patients the right to gain access to their health records and to exert some control over the release of their health records, it does not change the underlying reality that health care providers control the medical records they generate and maintain.

Nothing in Section 144.335, nor in the 1996 amendments to Section 144.335, suggests that the Legislature intended to give patients control over a provider's internal use of medical records. If a public health care provider, such as Douglas County Hospital, otherwise complies with Chapter 13 and concludes that internal research use of its medical records is appropriate, then such a use would be appropriate.

There are two additional factors which indicate the Legislature intended these provisions to control only the release of medical records to persons outside the health care provider maintaining the records. First, in ordinary usage, release of information is understood to mean dissemination of that information outside of the originating entity. Second, a dictionary definition of release is, to give up or surrender to someone else. (See Webster's New World Dictionary of the American Language, College Edition, The World Publishing Company, 1968.) Given this definition, it seems reasonable to conclude that the release contemplated by the Legislature is from one entity to another. Therefore, it is the Commissioner's opinion that the provisions in Section 144.335, subdivision 3a (d)(1)-(3), and subdivision 3a(g), apply only when the data subject's provider is asked to release the subject's health record to an entity external to the provider.

Opinion: