2.4DHHS Access to Confidential Records to Investigate Suspected Child Abuse or Child Neglect

“Any legally recognized privileged communication except that between attorney and client or that made to a member of the clergy^[1] in his or her professional character in a confession or similarly confidential communication is abrogated and shall not constitute grounds . . . for excluding evidence in a civil child protective proceeding resulting from a report made pursuant to [the Child Protection Law].”² MCL 722.631.

A.Medical Records

“A hospital is required, absent a parental release, to allow access to medical information on children to [DHHS] staff conducting a protective services investigation under the Child Protection Act since allowing such access does not violate the physician-patient privilege.” OAG, 1978, No 5406, p 724 (December 15, 1978). In addition, when a physician attends to a child suspected of being abused or neglected, the physician must conduct the necessary examinations and include summaries of those evaluations, including medical test results, in a written report³ to the DHHS.⁴ MCL 722.626(2). See MCL 722.623(1), which specifically requires the physician to immediately report suspected child abuse or child neglect to centralized intake (the DHHS’s “statewide centralized processing center for reports of suspected child abuse and child neglect[,]” MCL 722.622(e)).

Note: In addition, MCL 722.626(1) requires an attending physician to notify the person in charge and the DHHS when a child suspected of being abused or neglected is brought to a hospital for outpatient services or admitted to a hospital as an inpatient, and the attending physician determines that releasing the child would endanger the child’s health or welfare.

The DHHS may obtain access to otherwise confidential records of the Michigan Department of Public Health under MCL 333.2640(2):

“[I]f there is a compelling need for medical records or information to determine whether child abuse or neglect has occurred or to take action to protect a child where there may be a substantial risk of harm, the [D]epartment [of Public Health] shall give access to a [DHHS] caseworker or administrator directly involved in the investigation to the child’s medical records and information that are pertinent to the child abuse or neglect investigation. Medical records or information disclosed under this section shall include the identity of the individual to whom the record or information pertains.”

Note: The Department of Public Health must provide access to the records or information within 14 days of receiving a written request from a DHHS caseworker or administrator directly involved in the investigation. MCL 333.2640(3). Consent to release the records or information is not required. Id.

The DHHS may obtain access to the records of a licensee or registrant of the Michigan Department of Public Health under MCL 333.16281(1):

“If there is a compelling need for records or information to determine whether child abuse or child neglect has occurred or to take action to protect a child where there may be a substantial risk of harm, a [DHHS] caseworker or administrator directly involved in the child abuse or neglect investigation shall notify a licensee or registrant that a child abuse or neglect investigation has been initiated regarding a child who has received services from the licensee or registrant and shall request in writing the child’s medical records and information that are pertinent to that investigation. Upon receipt of this notification and request, the licensee or registrant shall review all of the child’s medical records and information in the licensee’s or registrant’s possession to determine if there are medical records or information that is pertinent to that investigation. Within 14 days after receipt of a request made under this subsection, the licensee or registrant shall release those pertinent medical records and information to the caseworker or administrator directly involved in the child abuse or neglect investigation.”

Note: See also 45 CFR 164.512(b)(1)(ii) (under the Health Insurance Portability & Accountability Act of 1996, PL 104-191, a “covered entity” may disclose “protected health information” to a governmental agency charged with receiving reports of child abuse or neglect); MCL 333.16648(1), (2)(h) (disclosure requirements apply to dentists); MCL 333.18117 (disclosure requirements apply to licensed professional counselors and limited licensed counselors); and MCL 333.18237 (disclosure requirements apply to psychologists).

The following privileges do not apply to a licensee or registrant releasing medical records or information for purposes of investigating alleged child abuse and neglect:

•the physician-patient privilege under MCL 600.2157;

•the dentist-patient privilege under MCL 333.16648;

•the licensed professional counselor-client privilege, and the limited licensed counselor-patient privilege under MCL 333.18117;

•the psychologist-patient privilege under MCL 333.18237; and

•any other health professional-patient privilege created or recognized by law. MCL 333.16281(2).

B.School Records

“A school or other institution must cooperate with the [DHHS] during an investigation of a report of child abuse or child neglect.” MCL 722.628(8). However, MCL 600.2165 prohibits school employees from disclosing records or confidences without the child’s consent if he or she is 18 years of age or older, or a child’s parent’s or legal guardian’s consent if the child is under 18 years of age.

C.Records of Drug Counseling

Records of the identity, diagnosis, prognosis, or treatment of any patient in any federal drug or alcohol abuse prevention program are confidential. 42 USC 290dd-2(a). However, disclosure is permissible under the following situations:

•the patient consents in writing. 42 USC 290dd-2(b)(1).

•a court may order disclosure of any or all portions of the record it deems necessary on a showing of good cause. 42 USC 290dd-2(b)(2)(C); 42 CFR 2.64(d). To make a good cause determination, “the court must find that:

(1) Other ways of obtaining the information are not available or would not be effective; and

(2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.” 42 CFR 2.64(d).⁵

Before ordering disclosure of confidential information, the circuit court should make a record of the findings that constitute good cause under 42 CFR 2.64(d). In re Petition of Attorney General for Subpoenas, 506 Mich 997 (2020). In Petition for Subpoenas, the circuit court erred when it failed to determine “whether other ways of obtaining the information in question were available or effective.” Id.; 42 CFR 2.64(d)(1). Although “[p]etitioner asserted the subpoena was the most effective method [of obtaining the information], . . . . that is not the inquiry 42 CFR 2.64(d)(1) requires.” Petition for Subpoenas, 506 Mich at 997. In addition, the circuit court failed to make the second finding required to constitute good cause—whether the public interest and need for the disclosure outweighed potential injury to the patient, to the relationship between the patient and his or her physician, and to the treatment services. Id.; 42 CFR 2.64(d)(2). In Petition for Subpoenas, 506 Mich at 997, the petitioner asserted that the court’s order for disclosure incorporated in it the contents of the petition, but the order did not expressly indicate that it did so. According to the Michigan Supreme Court, “[e]ven assuming such an incorporation would have satisfied 42 CFR 2.64(d), the best practice would clearly be for a circuit court to memorialize this type of analysis in a written order or at least on the record to facilitate appellate review.” Petition for Subpoenas, 506 Mich at 997.

Note: “Upon the granting of [a disclosure] order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.” 42 USC 290dd-2-2(b)(2)(C). Safeguards against unauthorized disclosure include “requir[ing] the deletion of patient identifying information from any documents made available to the public” (when the disclosure is being ordered in the context of a criminal or administrative investigation of a record holder); “limit[ing] disclosure to those parts of the patient’s records which are essential to fulfill the objective of the order; [l]imiting disclosure to those persons whose need for information is the basis for the order; and [i]nclude such other measures as are necessary to limit disclosure for the protection of the patient, the physician-patient relationship and the treatment services; [for example, sealing from public scrutiny the record of any proceeding for which disclosure of a patient’s record has been ordered].” 42 CFR 2.64(e); 42 CFR 2.66(d)(1).

All administrative hearings pertaining to the disclosure of confidential information need not “be closed and sealed from public scrutiny.” Petition for Subpoenas, 506 Mich at 997 n 1. “[C]ourtroom closure and sealing of records are examples of procedural safeguards a court may order [under 42 CFR 2.64(e)], but the regulation does not require these steps be fulfilled in every case so long as all necessary measures are taken to protect a patient, the patient-physician relationship, and treatment services.” Petition for Subpoenas, 506 Mich at 997 n 1.

•by court order authorizing disclosure of confidential communications made by a patient where disclosure is necessary to protect against an existing threat to life, or a threat of serious bodily injury, including circumstances that constitute suspected child abuse or neglect and verbal threats against third parties, or if disclosure is necessary to investigate or prosecute child abuse or neglect. 42 CFR 2.63(a)(1)-(2).

No hearing is required before the circuit court may issue a subpoena pursuant to 42 CFR 2.66. Petition for Subpoenas, 506 Mich at 997.

A court order is required to initiate or substantiate criminal charges against a patient or to conduct any investigation of the patient based on a record of identity, diagnosis, prognosis, or treatment. 42 USC 290dd-2(c).

D.Mental Health Records

“Case records filed with the court under the mental health code are public except as otherwise indicated in court rule or statute.” MCR 5.731.

Information in the records of a recipient of mental health services is confidential and may only be disclosed under MCL 330.1748 or MCL 330.1748a. MCL 330.1748(1). Confidential information may be disclosed when necessary to comply with another provision of law (such as the duty to report suspected child abuse or neglect) or pursuant to court order, unless protected by privilege. MCL 330.1748(5)(a); MCL 330.1748(5)(d). See OAG, 1998, No 6976 (March 26, 1998) (CPS workers are entitled to access community mental health records of the involved children and relevant records of other recipients of community mental health services).

The DHHS may obtain access to the records of a mental health professional under MCL 330.1748a(1):

“If there is a compelling need for mental health records or information to determine whether child abuse or child neglect has occurred or to take action to protect a minor where there may be a substantial risk of harm, a [DHHS] caseworker or administrator directly involved in the child abuse or neglect investigation shall notify a mental health professional that a child abuse or neglect investigation has been initiated involving a person who has received services from the mental health professional and shall request in writing mental health records and information that are pertinent to that investigation. Upon receipt of this notification and request, the mental health professional shall review all mental health records and information in the mental health professional’s possession to determine if there are mental health records or information that is pertinent to that investigation. Within 14 days after receipt of a request made under this subsection, the mental health professional shall release those pertinent mental health records and information to the caseworker or administrator directly involved in the child abuse or neglect investigation.”

The following privileges do not apply to a mental health professional releasing mental health records or information:

•the physician-patient privilege under MCL 600.2157;

•the dentist-patient privilege under MCL 333.16648;

•the licensed professional counselor-client privilege, and the limited licensed counselor-patient privilege under MCL 333.18117;

•the psychologist-patient privilege under MCL 333.18237; and

•any other health professional-patient privilege created or recognized by law. MCL 330.1748a(2).

E.Friend of the Court Records

“Friend of the court [(FOC)] records are not subject to a subpoena issued under these Michigan Court Rules. Unless another rule specifically provides for the protection or release of [FOC] records, this rule governs.” MCR 3.218(A).

If the DHHS is investigating a suspected abused or neglected child and determines that there is an open FOC case regarding the child,⁶ the DHHS must “notify the office of the [FOC] in the county in which the [FOC] case is open that there is an investigation being conducted under [the Child Protection Law] regarding that child[.]” MCL 722.628(21).

Note: “The [DHHS] must determine whether there is an open [FOC] case regarding a child who is suspected of being abused or neglected if a child protective services investigation of child abuse and child neglect allegations result in any of the following dispositions:

(a) A finding that a preponderance of evidence indicates that there has been child abuse or child neglect.

(b) Emergency removal of the child for child abuse or child neglect before the investigation is completed.

(c) The family court takes jurisdiction on a petition and a child is maintained in his or her own home under the supervision of the [DHHS].

(d) If 1 or more children residing in the home are removed and 1 or more children remain in the home.

(e) Any other circumstances that the [DHHS] determines are applicable and related to child safety.” MCL 722.628(20).

“Unless the release is otherwise prohibited by law, a[n] [FOC] office must provide access to all nonconfidential and confidential records^[7] to . . . [t]he [DHHS], as necessary to report suspected abuse or neglect or to allow the [DHHS] to investigate or provide services to a party or child in the case.”⁸ MCR 3.218(C)(2). The court rule requires the FOC to provide access to other entities, as well. See MCR 3.218(C) for a complete list.

F.Access to Information on the Law Enforcement Information Network (LEIN)

A state or county employee engaged in the enforcement of the child protection laws or rules of this state must be ensured access to information on the Law Enforcement Information Network (LEIN) concerning an individual being investigated. MCL 28.214(1)(a)(ii). The DHHS must do a LEIN check regarding “all parents, person(s) responsible for the health and welfare of the child, and all household members for all sexual abuse, physical abuse, suspected caretaker substance abuse, drug exposed infant cases, methamphetamine production allegations, and cases where domestic violence allegations may be present.” DHHS’s Children Protective Services Manual (PSM), Law Enforcement Information Network (LEIN) PSM 713-02, p 2, available at http://www.mfia.state.mi.us/olmweb/ex/PS/Public/PSM/713-02.pdf.