Minnesota Department of Human Services / Minnesota ...



MEDICAL DATA

Revised 03-04-02

I. STATUTORY REFERENCES AND DEFINITIONS

Minn. Stat. Chapter 144 - Patient Medical Records Act

Minn. Stat. § 13.384 - Medical Data

Minn. Stat. § 13.46, subd. 7, 8, 9 - Mental Health Center Data

A. DEFINITION OF MEDICAL CARE PROVIDERS - Agencies of the welfare system do business with several types of medical care providers. Some of those medical care providers are agencies of the system, some are not. The data practices requirements under the Data Practices Act differs depending on the type of provider.

1. Nongovernment Medical Care Providers do not need to comply with the Data Practices Act, but do need to comply with the Patient Medical Records Act (Minnesota Statutes, Chapter 144), which provides that data on patients is available to the patient unless the provider deems the data is injurious to the data subject. Providers or persons who receive health records from providers must get a patient's consent before releasing the patient's health records. Minn. Stat., Ch. 144. However, release is allowed if authorized by law or if a medical emergency exists and the provider is unable to get the patient's consent. Persons who disclose patient records without consent are liable to the patient for any harm the disclosure causes. Persons who alter consent forms without the patient's consent are likewise liable for any harm the disclosure causes. Minn. Stat. § 144.335, subd. 3a

2. Nongovernment Medical Care Providers Under Contract To A Government Agency must comply with the provisions of the Data Practices Act to the extent specified in Minn. Stat. § 13.46, subd. 5, and the contract. They must also comply with the Patient Medical Records Act.

3. Government Medical Care Providers, such as the regional treatment centers and state nursing homes, must comply with the Data Practices Act and the Patient Medical Records Act.

4. Community Mental Health Centers, nongovernment mental health providers under contract to a government agency, and mental health units of counties must comply with Minn. Stat. §§ 13.01 to 13.09, and 13.46, subds. 7, 8, and 9 of the Data Practices Act. They are unique among the agencies in the system. Specific staff also must comply with the Patient Medical Records Act.

B. DIRECTORY INFORMATION Directory information means the name of the patient, date admitted, and general condition. This data is generally public while the patient is in the facility but becomes private information upon the patient's discharge.

C. MEDICAL DATA means data collected because an individual is or was a patient or client at a hospital, nursing home, medical center, clinic, and health or nursing facility operated by a state agency or political subdivision including business and financial records, data provided by private health care facilities, and data provided by or about relatives of the individual. This definition is more expansive than the definition of medical records.

II. CLASSIFICATION OF THE DATA

Medical data on individuals maintained by agencies of the welfare system is classified as private pursuant to Minn. Stat. §§ 13.384, subd. 2; 13.46, subd. 2(a). Data on individuals maintained by nongovernment medical care providers under contract is private data pursuant to Minn. Stat. § 13.46, subd. 5.

The classification of data on individuals and their health records maintained by nongovernment medical care providers and community mental health centers is private. The rules governing licensure of various health care providers and the Patient's Bill of Rights generally provide for the security of records, thus making the records private.

III. ADDITIONAL CONSIDERATIONS

A. WITHHOLDING DATA - Medical care providers may withhold access to records from the patient if the medical care provider determines that:

1. The information may be detrimental to the physical or mental health of the patient, or

2. Knowledge of the information is likely to cause the patient to harm himself or another. Minn. Stat. § 144.335, subd. 2

If a medical provider who is part of the welfare system decides to withhold medical data from the data subject because of this provision, the medical care provider (e.g., mental health center, state hospital) must document in the case file, before the request for the data, the reasons for declaring the data confidential and a description of the data that has been withheld from the data subject.

Every patient, whether voluntarily or involuntarily committed or receiving services pursuant to the Commitment and Treatment Act (Minn. Stat. § 253B.03, subd. 8), must be permitted access to all medical records used in that patient's commitment hearing or used to place the patient in an RTC. This provision takes precedence over Minn. Stat. § 144.335, the Patient Records Act. See Civil Commitment

If a private health care provider wants to withhold data from the data subject before giving medical, psychiatric, or mental health data about the individual to an agency of the welfare system the provider must request permission in writing pursuant to Minn. Stat. § 144.335. It is recommended that each individual page be stamped since cover letters very often get separated from the rest of a document, and thus the data may be inadvertently disseminated.

Appropriate wording for a stamp may read "Confidential Data - Do not release to data subject pursuant to Minn. Stat. § 144.335." Since many medical care providers routinely stamp data "Confidential," "confidential" in these instances should be presumed to read "private" unless the medical care provider has also referenced Minn. Stat. § 144.335. Medical care providers who may classify data as confidential under the provisions described above include the following professionals:

• Physicians, surgeons, osteopaths, psychiatrists

chiropractors

• Licensed practical and registered nurses

• Optometrists

• Physical therapists

• Psychologists

• Dentists

• Pharmacists

• Podiatrists

• Licensed social workers

• Licensed home care provider

• Licensed midwives

• Unlicensed mental health service providers as defined in Minn. Stat. § 148B

• Licensed marriage and family therapists

The following facilities licensed by the Department of Health are also permitted to classify data as confidential:

• Nursing homes

• Mobile health clinics

• Any hospital or other institution for the hospitalization and care of sick or injured persons

• Clinics

• Medical centers

• Health services centers

B. OTHER PROVISIONS - Minn. Stat., Chapter 144 has some provisions which are of interest to agencies of the welfare system.

1. Patient Access - Medical records generally are available to the individual data subject. The patient may specify whether this access will be 1) the entire record or 2) pertinent portions of that record. With the patient's consent the provider may give the patient a summary of the record. Minn. Stat. § 144.335, subd. 2 In granting access, the provider may exclude written speculations about the patient's health condition. The medical care provider who receives a request for access to medical data may require a written request.

2. Consent - Patient consent is required for providers to release a patient's health records unless there is a medical emergency or unless authorized by law. Minn. Stat. § 144.335, subd. 3a Generally, the consent is valid for one year. However, the consent does not expire after one year for (1) release of records to a provider or other providers within health care entities being consulted in connection with the current treatment of the patient, and (2) release of records to insurers and health organizations for payment of claims, fraud investigation, or quality of care review.

3. Release of Medical Record For Scientific Or Medical Research

a.) For medical records created after January 1, 1997, a patient must provide a general written authorization to release the medical record for research purposes. Minn. Stat. § 144.335, subd. 3a(d) For all patients receiving treatment on or after January 1, 1997, the patient must be informed of this right.

b.) Medical records created before January 1, 1997, may be used for research purposes without patient authorization if the patient has not received subsequent treatment or has not restricted such use of the record. Note: It is DHS policy that the medical record includes periods of treatment. Thus if a patient receives treatment on or after January 1, 1997, it is DHS policy that the patient's written authorization would be required even for data created before 1997.

c.) Each time the medical record is released for research purposes, the facility must document name and address of the researcher and the date released.

4. Patient's Bill of Rights - Residential medical facilities such as hospitals, nursing homes, and board and care facilities must inform their patients of the Bill of Rights found in Minn. Stat. §§ 144.651 and 144.652. The Bill of Rights requires that:

a.) Physicians must provide their patients current and complete information about the patient's diagnosis, treatment, alternatives, risks, and prognosis. This information must be given in a manner that the patient can understand.

If the physician deems it necessary, this information may be disclosed to the patient's guardian or representative. The physician must document this disclosure.

b.) Patients have a right to privacy both in regard to their treatment and their records. Patients also have the right to refuse to release their medical records to third parties, unless otherwise required by law. See Minn. Stat. § 144.651, subd. 6 Note: The Patient's Bill of Rights, which provides that a patient may refuse to release medical records to a third party, and the Minnesota Commitment Act mandate that data about a patient in a treatment facility be shared with the county, the patient's attorney, and the court. It is best to try to get the patient's consent in all situations, even if the Commitment Law specifically permits release of information without patient consent.

c.) Information about patients may be released without the patient's consent in an emergency if the physician documents the emergency, and knowledge of the information is necessary to protect the patient's life, health, or safety.

d.) If a medical facility admits a patient who is comatose, unconscious, or unable to communicate and reasonable efforts to contact relatives or designated contact persons have been unsuccessful, the medical facility may request the cooperation of either the local law enforcement agency or local county welfare agency in locating relatives or contact persons.

5. Health Data Associated With Birth Registration - Information from which an identification of risk for disease, disability, or developmental delay in a mother or child can be made, and that are collected with birth registration or fetal death reporting, are private data. The Commissioner may disclose to a local board of health (defined in Minn. Stat. § 145A.02, subd. 2) health data associated with birth registration which identifies a mother or child at high risk for serious disease, disability, or developmental delay in order to assure access to appropriate health, social, or educational services.

C. MEDICAL PROVIDERS UNDER CONTRACT WITH WELFARE SYSTEM When individuals request information about themselves, private medical providers under contract to an agency of the welfare system should follow the Patient Bill of Rights, Minn. Stat. § 144.335. This means the medical providers do not have to comply with the following requirements under the Data Practices Act:

1. Provide access to data at least every six months upon the subject's request and more frequently if the data is contested;

2. Provide free copies of private data to the data subject; and

3. Respond to all inquiries regarding private data within ten days of the request.

This exemption applies only to private mental health providers under contract to an agency of the welfare system. However, community mental health centers or county mental health units, which are considered government agencies, must comply with all provisions of the Data Practices Act even if they do not have a contract.

All medical care providers, whether government or private, must comply with the Patient Bill of Rights, Minn. Stat. § 144.335. This law provides that data subjects have a right to access their own medical data, subject to the certain restrictions.

A medical contractor who shares medical data with a welfare system agency and wants to restrict patients' access to data about themselves can do so under the Patient Bill of Rights, Minn. Stat. § 144.335, subd. 2. The contractor must provide that justification in writing. Documents that are merely stamped "confidential" are not enough to restrict access by patients.

D. DIRECTORY INFORMATION - Directory information maintained by a government hospital about a patient admitted pursuant to a civil commitment is public while the patient is at the facility or receiving treatment. Directory information about other patients is public unless the patient has requested that the data be maintained as private. Thus, a patient who has entered a government hospital under a voluntary admission, a 72-hour emergency hold, or a court-ordered hold can request that the directory data be maintained as private. The hospital may, however, release directory information to a law enforcement agency pursuant to a lawful investigation pertaining to the individual or as otherwise required by law even if the individual has requested the directory information be private. Notice of this provision should be included in the medical facility's Notice of Privacy Practices to clients. Upon termination of the patient's civil commitment status, the directory information becomes private.

Directory information maintained by nongovernment hospitals is not subject to this provision.

E. EMERGENCY RELEASE - Medical personnel have limited authority to release data on individuals in emergency situations under various provisions of the law.

1. Authority - The authority to release information on minors or adults in a medical setting is governed by a number of things which include licensing rules, professional ethics, case law, and statutes. The Patient Bill of Rights (Minn. Stat. § 144.651-.652) provides for the release of information by hospitals, nursing homes, extended care facilities, and board and care homes in emergency situations. The law also allows for release of health records without consent when there is a medical emergency and the provider is unable to obtain consent due to the patient's condition or the nature of the emergency. Minn. Stat. § 144.335, subd. 3a(b)

2. Welfare System

a.) Information may be disseminated by an agency of the welfare system (except a community mental health center) "to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the individual or other individuals or persons." Minn. Stat. § 13.46, subd. 2 (a)(10) Community mental health centers, private mental health providers under contract, or mental health units of counties may not use this provision for releasing information in emergencies because these entities are governed solely by the provisions in Minn. Stat. § 13.46, subds. 7, 8, and 9, and Minn. Stat. § 148.975-.976.

b.) The current address and telephone number of program recipients and emergency contacts may be released to the Commissioner of Health or a local board of health, when there is reason to believe the recipient is a disease case, carrier, suspect case, or at risk of illness, and the data are necessary to locate the individual. Minn. Stat. § 13.46, subd. 2(a)(24)

3. Regional Treatment Centers (RTCs) - The regional treatment center system has a number of special provisions for the release of information in emergencies. The RTCs may use Minn. Stat. § 13.46, subd. 2(a)(10), above, as a basis for releasing information in emergencies but there are also specific provisions in other laws:

a.) If a patient is absent without authorization, the regional treatment center may request a peace officer to return the patient to the center. In order for those officers to comply, the center may provide certain identifying information about the patient.

b.) The RTC may release data to an agent of the welfare system, including a law enforcement agency who is acting for it, in an investigation, prosecution, criminal or civil proceeding relating to the administration of a program. Minn. Stat. § 13.46, subd. 2(a)(4) The RTC may release patient-identifying data, including name, photograph, diagnosis, propensity for violence, and home address.

F. NURSING SERVICE - Data collected or disseminated by a public health service, county or community nursing service is private data. Minn. Stat. §13.384, subds. 1 (b)and 3 This data may be disseminated pursuant to Minn. Stat. § 144.335, or:

1. Pursuant to a valid court order;

2. To administer federal funds or programs;

3. To the surviving spouse, parents, children, and siblings of a deceased patient or client or, if these cannot be found, then to the surviving heirs of the next of kin;

4. To communicate a patient's or client's condition to a family member or other appropriate person in accordance with acceptable medical practice, unless the patient directs otherwise;

5. Pursuant to a written and signed consent for release of information;

6. For data collected before August 1, 1975, and which has been treated as not-public, it may be used, stored, and disseminated for the purposes for which it was originally collected;

7. Pursuant to a state, local, or federal law subsequent to the collection of the data;

8. Pursuant to a request for new use of data as approved by the Commissioner of Administration;

When the nursing service is merged with the county welfare department or another county department, the responsible authority for the merged agency makes the decision as to which data is necessary to be shared among the agencies. This decision must be made on the need for the information for the administration and management of programs or other legal authorization.

G. PUBLIC HOSPITALS - Most medical data on individuals is private (Minn. Stat. § 144.335), and patient access is provided for by statute. A public hospital must comply with the Data Practices Act because it is operated by a government agency or a political subdivision of the government.

H. RELEASE OF INFORMATION - A public hospital or provider that is a political subdivision may release medical data, including financial data about a patient of a state, county, or local public medical facility under the following circumstances. Minn. Stat. § 13.384, subd. 3:

1. To communicate a patient's condition to family members or other appropriate persons.

2. To the surviving spouse, parents, children and siblings of a deceased patient or, if these cannot be found, the surviving heirs to the next of kin.

3. To administer federal funds or programs.

4. In response to a valid court order.

5. In accordance with other statutory provisions.

6. In response to a consent for release of information signed by the data subject.

Private medical providers who are not under contract do not need to follow these provisions, but do need to follow the Patient Medical Records Act, and, and if applicable, the Patient's Bill of Rights.

I. VENDORS – Vendors of medical care who participate in DHS-administered health care programs must permit the commissioner of human services to access all personal medical records of recipients, under Minn. Stat. § 256B.27, subds. 3 and 4, for purposes of investigating whether or not:

1. A vendor of medical care has submitted a claim for reimbursement, a cost report, or a rate application which is duplicative, erroneous, or false in whole or in part, or which results in the vendor obtaining greater compensation than the vendor is legally entitled to; or

2. The medical care was medically necessary.

The department may photocopy any health service records for which the vendor makes a claim or receives payment under a department-administered program. Minn. Rules, part 9505.2195 A vendor providing access under this statutory authority is protected from any civil or criminal liability.

J. SCHOOL MEDICAL RECORDS - Medical data on students, maintained by public schools, is private data. Minn. Stat. § 13.32, subds. 2 and 3 Medical data maintained by public schools includes immunization records, notations of special physical or mental problems, records of school nurses, pupil census data, emergency information, family information, and other data about the parents. A law adopted by the 1992 legislature permits elementary or secondary schools to release data on the date and type of immunizations of students, without their or their parents consent, to a health care facility that provides services on behalf of the students. Minn. Stat. § 144.3351

K. HIV TESTS - Sex offender programs are sometimes asked to conduct HIV tests on clients. In criminal cases, the sentencing court may order someone convicted of sex crimes to take an HIV test if (1) the victim requests it, or (2) the prosecutor moves for it and (3) there is evidence that the offender's blood or semen came in contact with the victim's broken skin or mucous membrane. The date and results of the tests are private, but are available to the victim. Positive results may be reported to the Department of Health. In addition, insurance companies are prohibited from using the test results to make underwriting decisions. Minn. Stat. § 72A.20, subd. 28

L. SEX OFFENDER ASSESSMENT - When an individual has been convicted in criminal or juvenile court of criminal sexual assault in the first through fifth degrees, surreptitious intrusion, harassing or obscene telephone calls or indecent exposure, the sentencing court must order an independent professional assessment of the offender's need for sex offender treatment. The sex offender assessors are authorized to obtain private or confidential medical data about individuals if access is relevant and necessary for the assessment. Minn. Stat. §§ 609.3452, subd. 2

M. BOARD OF DENTISTRY - The Board of Dentistry is authorized to access medical records, of one of its licenses without consent if there is cause to believe that a dentist is abusing alcohol or drugs or suffers from a mental impairment. Health care providers, governmental agencies and insurance companies are required to comply with requests for information from the Board of Dentistry. Minn. Stat. § 150A.081

Note: There is a possibility of some conflict with federal chemical dependency regulations as a result of this provision giving the Board of Dentistry access to chemical dependency records. Essentially, the federal chemical dependency regulations prohibit such disclosures of chemical dependency information except in certain very narrow circumstances. See Chemical Dependency Thus, the examination of chemical dependency records by the Board of Dentistry must be in accordance with the federal chemical dependency regulations. Here, the federal regulations prohibit disclosure of such records without client consent. Consequently, notwithstanding the provisions of this state law on disclosures to the Board of Dentistry, you should consult with your agency attorney to determine whether chemical dependency records may be disclosed to the Board of Dentistry without the client's consent.

N. HEALTH CARE LICENSING BOARDS - The health care licensing boards in Minnesota often will seek access to medical records without consent as part of their investigations into the care of patients. In doing so, the boards will cite their statutes which permit release of records without consent. For example, the law governing the Board of Medical Practice provides that "If no consent form has been signed, the hospital or physician shall first delete data in the record which identifies the patient before providing it to the Board." Minn. Stat. § 147.161, subd. 3 The law governing the Board of Nursing has similar language in Minn. Stat. § 148.265 as does the Board of Social Work in Minn. Stat. § 148B.09. Contact your supervisor regarding these requests for data. It is DHS policy to assist the board when it can but protecting an individual's right of privacy is paramount.

O. HEALTH-RELATED LICENSING BOARDS - May also seek access to human services data pursuant to authorizing statute. If a request is received from a licensing board, an agency attorney should ensure that only the appropriate data is shared and that all procedures for exchanging information are complied with. Any information shared by the Department of Human Services retains the same classification in the hands of the board receiving the data as it had in the hands of the Department.

IV. CROSS REFERENCES WITH OTHER SECTIONS OF THE MANUAL

Chemical Dependency

Investigations

Nursing Homes

Regional Treatment Facilities/State Operated Services Facilities

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