Tagged: right to know patient records
June 5, 2015 at 12:46 pm #7447
Background: In this case, parents have a durability power of attorney, registered with the county, permitting access to medical records of their mentally incompetent adult son. The son has been incompetent since birth (Down Syndrome). The son is now over age 22 and requires a new diagnosis and behavioral assessment by a certified psychologist to receive county-based support services. The county office of Mental Health and Intellectual Disability (MHID) have collected 190 pages of diagnostic and assessment information about the son from school districts, physicians, psychologists, and MRID staff. These records are on file in a county and state database. The records include some files that the county MHID office did not originate but collected such as school assessment reports. The parents requested copies of these reports. The MHID denied replying: We cannot provide you a copy of this evaluation [school district assessment] because we [MHID] did not generate it. As an alternative, we could meet with [your psychologist] here in [the county MHID office] so that he may view the report. The MHID office cited policy not law prohibiting disclosure.
Question: Are these reports considered government records which are accessible through power of attorney to the parents upon their request?June 5, 2015 at 5:11 pm #7460
First of all, it’s important to note that the Right to Know Law does NOT recognize any individual right to access a record based on that individual’s relationship to the record. The RTK Law is written to apply to all requesters equally… so “power of attorney” makes no difference when it comes to accessing records under the RTKL. Neither does the fact that a requester might be trying to access records related to themselves.
If the record is accessible under the RTKL, then it is accessible to absolutely everyone equally, no matter what.
The Right to Know Law also would NOT apply to these records anyway for a couple of reasons, but primarily due to the provision in the RTKL that says other federal or state laws or regulations take precedence over the RTKL when it comes to accessibility.
So the MHID’s policy regarding access of these records — even if not controlled by statute — might be considered “regulation.”
Also, the FERPA law — the Family Educational Rights and Privacy Act — might apply regarding the school records.
But bottom line is that the RTKL has a clear exception allowing an agency to withhold:
A record of an individual’s medical, psychiatric or psychological history or disability status, including an evaluation, consultation, prescription, diagnosis or treatment; results of tests, including drug tests; enrollment in a health care program or program designed for participation by persons with disabilities, including vocation rehabilitation, workers’ compensation and unemployment compensation; or related information that would disclose individually identifiable health information.
Again, wouldn’t matter is the parents have power of attorney and a legal right to see these records or not, as far as the Right to Know Law is concerned.
And that’s all we can really address here on the PaFOIC Forum: Whether or not records are accessible through the Right to Know Law.June 13, 2015 at 11:18 am #7464
I concur with the PaFOIA lucid explanation and thank you for pointing Watchdog in the right direction. Other PaFOIC Forum readers involved as caregivers of the mentally disabled may be interested in federal and Pennsylvania law that does ensure access by patients or parents, guardians and surrogates with durable power of attorney (DPA) to view medical and mental health records held in Pennsylvania.
Summary: HIPAA Rule 45 CFR 164.502(g) and 50 PA § 5100 explain why Pennsylvania County Offices for Mental Health and Intellectually Disabled (MH/ID) may not withhold Mental Health Records including intellectual and behavioral testing scores from patients or their self- and legally-approved advocates. This includes intelligence scores. A patient has full right to see all his mental health records in Pennsylvania regardless of where the records originated. The only exception is records demonstrably requiring confidential protection to protect a source or patient. School district assessment scores usually do not qualify as confidential precluding access to the patient or advocate.
More information is available on Watchdog’s Scribed website:June 14, 2015 at 7:48 am #7466
PaFOIA site Administrator — I do not know why the Watchdog website pages appear above. I included only the URL link to the Scribd Watchdog website article. However, that resulted in the complete article being posting to PaFOIA website. That was not my intent and has not occurred before on my other PaFOIA postings which included URL links. My apologies if that creates a problem. Please advise.June 14, 2015 at 9:49 pm #7468
I don’t know why this happens … but it’s not a problem. Probably there is some “embed the link” preference in the system.June 14, 2015 at 9:53 pm #7469
Thanks for the further explanation — It’s important for people to realize that the Right to Know Law is NOT the “be-all/end-all” law when it comes to accessing records.
There are MANY other laws, state and federal, that already control access to certain government records … and those laws ALWAYS take precedence over the Right to Know Law, whether they provide access or deny access to a record.
It can be confusing.
But just because an agency can deny access to a record under the Right to Know Law — if the request for it is made citing the RTK, or using a RTK request form — that doesn’t mean the record can’t be obtained. There may be other laws that apply.
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