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May 3, 1995; University of Minnesota
5/3/1995 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.
Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation Facts and Procedural History:For purposes of simplification, the information presented by the citizen who requested this opinion is presented in summary form. Copies of the complete submission are on file at the offices of PIPA and are available for public access.On April 13, 1995, PIPA received a hand-delivered letter from X, a resident of Golden Valley, Minnesota. In this letter and enclosures, X described a release of data about him maintained by the Program in Human Sexuality at the University of Minnesota, hereinafter Program. NOTE: X blacked out portions of the enclosures he submitted to PIPA to protect, to the extent possible, his privacy.
X was a patient in the Program from June, 1992, through November, 1993. In December, 1992, he entered into an agreement with his professional licensing board, the Board of Medical Practice, hereinafter Board. The stipulation contained certain conditions, including item 4 (b), which stated that following successful completion of Phase I of the Program, X:
X submitted copies of three letters sent to the Board by Dr. Michael Miner, his treating psychologist. According to X, the first letter, dated April 19, 1993, was sent without his consent. X learned of the letter when he was sent a copy by Dr. Miner. In several subsequent conversations, X told Dr. Miner of his objections to the disclosure in the letter of what he considered to be private medical data about him. Dr. Miner noted those conversations in X's case file. In the progress notes dated April 26, 1993, Dr. Miner recorded X's objections to the release of data in the April 19, 1993 letter to the Board. Dr. Miner referred to having reviewed authorizations and X's agreement with the Board, and stated that after consulting with the Program director, Dr. Coleman, they agreed that X's agreement w/Board constituted consent. Dr. Miner also noted that he called X and ...apologized for not reviewing specific content of letter w/him before sending.... In a note dated April 27, 1993, Dr. Miner recounted another conversation with X in which Dr. Miner [a]gain explained that I believed had consent, acknowledged wished I'd walked through letter with [X.]
The second letter sent by Dr. Miner to the Board was dated August 23, 1993, in which Dr. Miner stated that he was ...writing at the request of [X].... Dr. Miner discussed the contents of the letter with [X] before it was sent, and asked X to sign a consent form, which was dated August 26, 1993. X indicated his consent to release (1) Narrative account of case history, diagnosis, progress and recommendations for future programs, counseling or services. and (2) Progress Report containing information as stipulated in the December '92 Medical Board Agreement. The statement X signed stated:
The third letter, dated April 21, 1994, (5 months after X left the Program), contains the release of data that is the subject of this opinion. In that letter, Dr. Miner stated that he was writing in response to ...a phone call from Mr. Bill Marczewski requesting information to bring the Board up to date on the progress of X.... That letter was sent without X's knowledge or, according to him, his consent. X learned of the existence of this letter only after he gained access to the private data maintained about him by the Program. His difficulty in gaining access to those data was the subject of Commissioner's Advisory Opinion #94-024. Subsequent to the issuance of that Opinion, X was provided access to data maintained about him by the Program. Upon discovery of that letter in his file, X filed a claim with the Program's insurer for unauthorized release of medical records. The conclusion of the insurer was that ...the release of information to the [Board] was handled appropriately.... Therefore the insurer denied X's claim. He then requested this opinion. In response to X's request, PIPA, on behalf of the Commissioner, wrote to Dr. Eli Coleman, the Director of the Program. The purposes of this letter, dated April 13, 1995, were to inform Dr. Coleman of X's request, to provide him with a copy of the request, to ask Dr. Coleman or the Program's attorney to provide any information or support for the Program's position and to inform him of the date by which the Commissioner was required to issue this opinion. The University did not respond.
Issue:
In his request for an opinion, X asked the Commissioner to address the following issue:
Discussion:
In order to ascertain whether the Program had X's informed consent to release medical data about him to the Board, in the letter from Dr. Miner dated April 21, 1994, it is necessary to examine the sections of Minnesota Statutes which govern access to medical data. Section 13.42 provides that medical data are classified as private data. Pursuant to Section 13.05, subdivision 4, private data may not be disseminated except as authorized by state or federal law, unless the subject of the data has granted her/his informed consent. Section 144.335 provides additional limits on dissemination of medical and health data, and also requires health providers, who don't have statutory authority to release health records, to secure the signed and dated informed consent of data subjects for release of those records.
Section 144.335, subdivision 3a(a) states:
In this case, the dissemination of private data was to the Board of Medical Practice. Section 147.092, subdivision 6(b), grants the Board authority to gain access to medical or health records relating to a licensee who is subject to disciplinary action by the Board, upon its written request: [a] provider, insurance company, or government agency shall comply with any written request of the board under this subdivision and is not liable in any action for damages for releasing data requested by the board if the data are released pursuant to a written request under this subdivision.... As was noted above, if there is no statutory authority for the dissemination of private data, the informed consent of the data subject must be obtained. Minnesota Rules Part 1205.1400, subparts 3 and 4, provide guidance concerning what constitutes informed consent. Subpart 3 states that informed consent ...means the data subject possesses and exercises sufficient mental capacity to make a decision which reflects an appreciation of the consequences of allowing the entity to initiate a new purpose or use of the data in question. Subpart 4 requires that informed consents be written, and that the consequences of giving the consent also be in writing. It also states, in clause D, that [o]nly those [data] elements that the data subject has expressly consented to shall become part of the new or different purpose or use. Dr. Miner's patient progress notes stated that he relied upon the language of the stipulation X entered into with the Board, as constituting X's informed consent to the release of private medical data the Program maintained about him. Dr. Miner's notes also state that the Program's director, Dr. Coleman, concurred in that interpretation. However, the language in the stipulation simply states that X agreed, upon successful completion of Phase I of the program, to ...arrange for the Program to transmit a written report directly to the Board.... and that he would ...release all records of therapy and other Program participation to that time to the Board.... (Emphasis added.) The Commissioner interprets this to mean that X agreed that he would give his consent to release certain data to the Board, and would make arrangements for the Board to receive those data. Given the language in the agreement, and the restrictions placed upon informed consent as noted above, it is not reasonable to conclude that the stipulation into which X entered with the Board contains his informed consent to release private medical data about him. Dr. Miner's notes also made one reference to his having reviewed authorizations. The University did not submit any comments for the Commissioner's consideration, and from the information provided, i.e. the redacted copies of Dr. Miner's progress notes, it is not clear what that reference means. In the documentation submitted, X referred to his having signed release of information forms ...so my treatment results could be conveyed to Corrections and so my medical claims could be processed by my insurers. Perhaps those are the authorizations Dr. Miner reviewed. If so, as described by X, clearly they cannot be construed to be applicable to a release of data to the Board. Further, as mentioned above, X requested an earlier advisory opinion from the Commissioner concerning his efforts to gain access to data maintained about him by the Program. After X learned of the first letter Dr. Miner sent to the Board, the one dated April 19, 1993, he requested access to the data maintained about him by the Program. He was denied access to those data until June, 1994. Therefore, at the time the letter which is the subject of this opinion was sent by Dr. Miner to the Board, X had not been provided access to his medical records. As X was not allowed access to the data upon which Dr. Miner was basing the assertions he made in his correspondence with the Board, he could not know what data the Program maintained about him. Therefore it is questionable whether any consent signed by X truly would be his informed consent to release data, as it would be signed without his knowledge of the detailed content of the data. X did sign a consent form to release the second letter Dr. Miner wrote to the Board, the one dated August 23, 1993. However, the language on this consent is vague, and if the copy submitted to the Commissioner constitute's the entire consent form, it raises additional questions. The form says that upon fulfillment of the above stated purpose(s) the consent will automatically expire, but nowhere on the form are the purposes explained. Absent clearer explanation, the statement concerning purposes on the consent form appears to be meaningless. Another statement on the form is unclear. That one says that unless the consent is sooner revoked or fulfilled, the consent will be in force until treatment is completed or discontinued and appropriate reports have been sent out. As discussed above, in order for the consent to be valid, it must be specific as to the data elements involved and the consequences of granting consent, and it must be executed by an informeddata subject. That does not appear to be the case here. X signed that consent form, for release of the data in the second letter, in order for the Board to receive a report on his progress in treatment at a certain point in time. Three months later he left the Program. Dr. Miner sent the letter in question to the Board some five months after X had been his patient. From the documents provided to the Commissioner, it is clear that on several occasions X told Dr. Miner that the stipulation, in itself, did not grant the Program his consent to release data to the Board. Apparently Dr. Miner believed it was necessary to secure X's consent to release the data contained in the second letter to the Board. It is puzzling, then, that Dr. Miner wrote the third letter to the Board with neither X's knowledge, nor, apparently, his consent. The contents of the third letter indicate that Dr. Miner wrote to the Board about X in response to a request for information he received from the Board in a telephone call. However, although the Board does have the authority to gain access to data on its licensees without their express consent, pursuant to Section 147.092, subdivision 6(b), the request from the Board must be in writing. That does not appear to be the case here. The statute does not provide authorization for release of not public data to the Board absent its written request. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by X is as follows:
Signed:
Elaine S. Hansen
Dated: May 3, 1995
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Data subjects
Educational data
Informed consent
Informed consent
Consent to release
Patient records (144.335, subd. 3a / 144.293)
