LAW OFFICE OF BRIAN GARVES

If the regulations or statutes are different than other applicable regulations or statutes, then all provisions must apply.

What I mean by this is that there are now four potential sets of confidentiality rules, whose application depends on the type of records. However, records can come within several, if not all, of the categories and thus the records are subject to the provisions of all of the applicable statutes.

For instance, assume that a patient is being treated in a Michigan substance abuse treatment facility and as part of the admitting history and physical, the patient is asked if he is HIV positive or not. The presence in the record of this question’s answer makes the patient’s entire medical record subject to Michigan’s HIV/AIDS confidentiality provisions, as set out in MCL §333.5131 (which makes any record containing HIV information a protected record). The fact that the treatment is being rendered at a substance abuse treatment facility makes the records subject to the federal regulations regarding such, as set out in 42 C.F.R. §2.01 et seq.

Looking at the statutes and regulations, both must be satisfied. In this example, that means that all substance abuse regulations for a records release must be satisfied and as to the HIV statute, all of the provisions are contained in the substance abuse regulations except that provision requiring an acknowledgement from the patient that the records do or may contain HIV/AIDS information and disclosure is still approved.

With the Michigan’s mental health statutes and regulations and HIPAA, a total of four sets of requirements must be satisfied.

Of course, satisfying a number of different sets of rules drawn up by different people at different times is going to lead to problems. For instance, imagine a patient is receiving mental health treatment and there is a reference to HIV in his record such that both sets of rules apply and a subpoena is served for production of the records at a court hearing.

Under the HIV statute, MCL §333.5131, that subpoena must either be accompanied by a release or a court order. If the patient refuses to sign the release, then there must be a court hearing and the court must make a finding concerning what records are needed to be produced (the minimum necessary using HIPAA lingo) and what persons will be allowed to see the produced records. Those findings must be put into a court order and served with the subpoena. Then those records must be produced.

The Michigan mental health statutes, MCL §330.1748 and §330.1750, privileged communications may not be disclosed without a patient’s consent, even with a court order, and information (basically, any information other than privileged communications) may be released with just a subpoena – no signed release is required.

Putting aside where to draw the line between privileged communications and information, any privileged communications cannot be produced while any information must have a court order. As can be seen, there is a mess and facilities must be very careful with disclosure, especially considering the likelihood that the attorneys and judge do not know the full extent of all the applicable laws.