May 28, 1999; Minnesota Health Professionals Service Program
5/28/1999 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 IPA and, except for any data classified as not public, are available for public access. On January 22, 1999, IPA received a letter from R, in which R asked the Commissioner to issue an opinion about R's rights regarding certain data maintained by the Minnesota Health Professionals Services Program (HPSP). R's request required clarification and additional information. R raised several issues in her/his request; the Commissioner agreed to address two of them in this opinion. In response to R's request, IPA, on behalf of the Commissioner, wrote to Thomas J. Barrett, Program Director of HPSP. The purposes of this letter, dated April 12, 1999, were to inform him of R's request, and to ask him to provide information or support for HPSP's position. On May 4, 1999, IPA received a response from Mr. Barrett. A summary of the detailed facts of this matter follows. Pursuant to Minnesota Statutes, section 214.31, HPSP provides services for licensed health professionals impaired by illness. R was referred to HPSP by the Minnesota Board of Medical Practice for evaluation. As part of the evaluation process, a physician interviewed R. According to Mr. Barrett, the purpose of the interview was to determine the need for and level of monitoring R required. Following the evaluation, R signed a Participation Agreement and Monitoring Plan. R is currently an HPSP program participant. R requested access to all data about her/him maintained by HPSP. HPSP staff initially told R that s/he would have to sign a release form to gain access to the data. According to Mr. Barrett, the following day, December 18, 1998, HPSP provided R with some of the private data HPSP maintains about R, without a signed release. At that time, HPSP did not provide R with copies of case notes generated by HPSP staff. On January 11, 1999, HPSP gave R copies of all case notes generated from the date R signed the Participation Agreement and Monitoring Plan. According to Mr. Barrett, [t]his is because, at that point, [R] was in the program' within the meaning of section 214.35, and entitled to all monitoring data since they are classified as private. Mr. Barrett stated that R was not entitled to a copy of the Participation Agreement or the physician's evaluation, because they are not monitoring data and are therefore classified as confidential under section 214.35. R alleges that an HPSP staff member improperly disseminated private data about R to one or more individuals in another state. HPSP denies the allegation. As the Commissioner understands the situation, R applied for licensure in another state. In response to a question on the application form, R asked her/his HPSP case manager if R were required to report her/his participation in the HPSP monitoring program. The case manager didn't know the other state's requirements. R and the case manager discussed R's concerns that, given that the other state has a small population, it was unlikely that there would be more than one individual with R's credentials moving there from Minnesota. Therefore, R would have trouble asking the questions and remaining anonymous. R did not want to divulge to the other state R's participation in HPSP if not required to do so. R and the case manager agreed that the case manager would ask the questions for R under the pretext of a conducting a survey of other states' practices. R did not give consent for HPSP to divulge any data about her/him. The case manager contacted, by telephone, individuals in the other state's monitoring program and licensing board to try to answer R's questions. R and HPSP disagree as to whether any identifying data about R were disseminated during those telephone conversations to individuals in the other state. Issues:R asked the Commissioner to address the following issues:
Discussion:The data that HPSP maintains about R are classified according to Minnesota Statutes, section 214.35: All data collected and maintained and any agreements with regulated persons entered into as part of the program is classified as active investigative data under section 13.41 while the individual is in the program, except for monitoring data which is classified as private. When a regulated person successfully completes the program, the data and participation agreement become inactive investigative data which shall be classified as private data under section 13.02, subdivision 12, or nonpublic data under section 13.02, subdivision 9, in the case of data not on individuals. Data and agreements shall not be forwarded to the board unless the program reports a participant to a board as described in section 214.33, subdivision 3. Pursuant to section 13.41, active investigative data are classified as confidential. According to Mr. Barrett, the physician's evaluation of R and any case notes generated during the evaluation and planning process are also not accessible to R, because they are not monitoring data. He wrote: [i]f they were, the statutory distinction would be meaningless: all data in HPSP's hands would be monitoring data and available to the licensee, a result the Legislature clearly did not intend. As this evaluation was completed before R became a program participant, it is reasonable for HPSP to conclude that the physician's evaluation of R is not monitoring data. R's assumption that s/he is entitled to the physician's evaluation may stem from the rights of a patient to gain access to data generated by a health professional, as provided at section 144.335. However, section 214.35 is clear: all data, other than monitoring data, are confidential while the individual is in the program. Mr. Barrett acknowledges that section 214.35 yields an anomalous result: an HPSP participant is not entitled to a copy of the Participation Agreement s/he entered into, because the Agreement is classified as confidential. According to Mr. Barrett: [t]o deal with this anomaly in the statute, HPSP gives all regulated persons unsigned copies of the participation agreements they sign so the individual has a written record of the Agreement in place. In addition, the signed Monitoring Plan, which is private data, reiterates the essential elements of the Agreement. Again, section 214.35 is clear: any agreements with regulated persons entered into as part of the program are confidential. The Commissioner suggests that HPSP ask the Legislature to reclassify the Agreements to avoid this unwieldy result. HPSP should have provided R with access to all private data about R; that is, the monitoring data, within five working days, or with notice, within ten working days of R's request, according to section 13.04, subdivision 3. HPSP at no time should have required R to provide it with a consent to release data to her/himself. Regarding the second issue, R and HPSP have a factual disagreement as to whether any identifying data about R were disseminated during telephone conversations between the HPSP case manager and individuals in the other state. Those telephone conversations were not tape-recorded. The record relies upon the case manager's recollections of the conversations, and R's understanding of the case manager's reports of those conversations. R did provide a transcript of a telephone conversation R had with the case manager about the telephone calls to the other state. However, the Commissioner has determined it is inconclusive. If the HPSP case manager disseminated identifying data about R to individuals in the other state, the dissemination was not proper, pursuant to section 13.05, subdivision 4. However, from the information provided, the Commissioner cannot reasonably conclude that HPSP improperly disseminated data about R. Opinion:Based on the facts and information provided, my opinion on the issues raised by R is as follows:
Signed:
David F. Fisher
Dated: May 28, 1999 |
Licensing data
Health Professionals Service Program (214.35)
Licensing data (13.41)
Patient records (144.335, subd. 3a / 144.293)
