Illinois Mental Health Confidentiality Act And Comparison With FERPA And Other Provisions
The purpose of this memorandum is to summarize the provisions of the DMHDD Confidentiality Act, which is a federal grant act, and to highlight certain similarities to the Family Education and Right to Privacy Act (FERPA). The central themes are the right to inspect and review records and the restriction of personally identifiable information. FERPA is selected for certain comparisons because it contains many of the provisions found in state confidentiality statutes, including those found in Illinois.
The MHDDCA contains the following relevant definitions:
Â§2. The terms used in this Act, unless the context requires otherwise, have the meanings ascribed to them in this Section.
(1) “Confidential communication” or “communication” means any communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health or developmental disability services to a recipient. Communication includes information which indicates that a person is a recipient.
(2) “Guardian” means a legally appointed guardian or conservator of the person.
(3) “Mental health or developmental disabilities services” or “services” includes but is not limited to examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare, habilitation or rehabilitation.
(4) “Personal notes” means:
(i) information disclosed to the therapist in confidence by other persons on condition that such information would never be disclosed to the recipient or other persons;
(ii) information disclosed to the therapist by the recipient which would be injurious to the recipient’s relationships to other persons, and
(iii) the therapist’s speculations, impressions, hunches, and reminders.
(5) “Parent” means a parent or, in the absence of a parent or guardian, a person in loco parentis.
(6) “Recipient” means a person who is receiving or has received mental health or developmental disabilities services.
(7) “Record” means any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided. Record does not include the therapist’s personal notes, if such notes are kept in the therapist’s sole possession for his own personal use and are not disclosed to any other person, except the therapist’s supervisor, consulting therapist or attorney. If at any time such notes are disclosed, they shall be considered part of the recipient’s record for purpose of this Act.
(8) “Record custodian” means a person responsible for maintaining a recipient’s record.
(9) “Therapist” means a psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services or any other person not prohibited by law from providing such services or from holding himself out as a therapist if the recipient reasonably believes that such person is permitted to do so. Therapist includes any successor of the therapist.
FERPA defines Sole Possession Records at 20 U.S.C. Â§1232(g)(a)(4)(B) as follows:
(B) The term “education records” does not include –
(i) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute. (Emphasis added.)
FERPA applies to educational institutional recipients of federal financial assistance. The fundamental consequence for non-compliance with FERPA is that the agency in question (such as a state university) will not receive federal money if the provisions of the act are not obeyed. For example, if due process is not provided, the following FERPA provision applies:
(2) No funds shall be made available under any applicable program to any educational agency or institution unless the parents of students who are or have been in attendance at a school of such agency or at such institution are provided an opportunity for a hearing by such agency or institution, in accordance with regulations of the Secretary, to challenge the content of such student’s education records, in order to insure that the records are not inaccurate, misleading, or otherwise in violation of the privacy rights of students, and to provide an opportunity for the correction or deletion of any such inaccurate, misleading or otherwise inappropriate data contained therein and to insert into such records a written explanation of the parents respecting the content of such records.
II. WHAT RECORDS ARE PROTECTED?
Under both laws, all records are “protected” except those specifically mentioned in the Act. Such exceptions might include separate law enforcement files, records of persons employed but not in attendance, physician/psychologist records if generated by them in that capacity and if the subject is 18 years of age or older, so-called “directory” information, and “sole possession” records. None of these kinds of records are subject to disclosure under any circumstances, for the simple reason that they are not defined as “records” under FERPA. A closer examination of “sole possession” records may be helpful.
Sole possession records are not subject to disclosure if they fit within the above definitions contained in either law, the MHDDCA being far more specific. One who is seeking disclosure of the file cannot under any circumstances inspect, copy or challenge the contents of sole possession records. However, the courts’ interpretations have been strict in this regard. Such records must be private notes, intended as personal memory aids, and inaccessible by others. A similar definition of so-called “personal notes” holds generally in most states.
In Illinois, there are even more specific provisions relating to personal notes and protocols:
110/3. Records and communications – Personal notes of therapist – Psychological test material
Â§3. (a) All records and communications shall be confidential and shall not be disclosed except as provided in this Act.
(b) A therapist is not required to but may, to the extent he determines it necessary and appropriate, keep personal notes regarding a recipient. Such personal notes are the work product and personal property of the therapist and shall not be subject to discovery in any judicial, administraive or legislative proceeding or any proceeding preliminary thereto.
(c) Psychological test material whose disclosure would compromise the objectivity or fairness of the testing process may not be disclosed to anyone including the subject of the test and is not subject to disclosure in any administrative, judicial or legislative proceeding. However, any recipient who has been the subject of the psychological test shall have the right to have all records relating to that test disclosed to any psychologist designated by the recipient. Requests for such disclosure shall be in writing and shall comply with the requirements of subjection (b) of Section 5 of this Act.
The MHDDCA’s list of persons entitled to inspect and copy a mental health file upon request, without consent, is very specific:
110/4. Persons entitled to inspect and copy recipient’s record
Â§4. (a) The following persons shall be entitled, upon request, to inspect and copy a recipient’s record or any part thereof:
(1) the parent or guardian of a recipient who is under 12 years of age;
(2) the recipient if he is 12 years of age or older;
(3) the parent or guardian of a recipient who is at least 12 but under 18 years, if the recipient is informed and does not object or if the therapist does not find that there are compelling reasons for denying the access. The parent or guardian who is denied access by either the recipient or the therapist may petition a court for access to the record;
Note here that there is no therapist “waiver” where
(4) the guardian of a recipient who is 18 years or older;
(5) an attorney or guardian ad litem who represents a minor 12 years of age or older in any judicial or administrative proceeding, provided that the court or administrative hearing officer has entered an order granting the attorney this right; or
(6) an agent appointed under a recipient’s power of attorney for health care or for property, when the power of attorney authorizes the access. (Emphasis added.)
Further, agency attempts to restrict access by requiring that someone “assist” the recipient in interpreting the file are improper if imposed over a recipient’s refusal:
Â§4. (b) Assistance in interpreting the record may be provided without charge and shall be provided if the person inspecting the record is under 18 years of age. However, access may in no way be denied or limited if the person inspecting the record refuses the assistance. A reasonable fee may be charged for duplication of a record. (Emphasis added.)
III. RIGHT TO CHALLENGE
Under FERPA, there is a due process right to a hearing, as outlined on page 3, for the purpose of challenging the accuracy of the contents of a particular file. There is also a privilege for the subject of the record to insert his or her own version of an incident or occurrence, and should that record ever be disclosed, the subject’s explanation must also be disclosed. There is a similar right in the DMHDDCA at 740 ILCS 110/4(c):
Â§4. (c) Any person entitled to access to a record under this Section may submit a written statement concerning any disputed or new information, which statement shall be entered into the record. Whenever any disputed part of a record is disclosed, any submitted statement relating thereto shall accompany the disclosed part. Additionally, any person entitled to access may request modification of any part of the record which he believes is incorrect or misleading. If the request is refused, the person may seek a court order to compel modification.
(d) Whenever access or modification is requested, the request and any action taken thereon shall be noted in the recipient’s record.
IV. CONSENTS FOR RELEASE OF INFORMATION
The MHDDCA is one of the country’s most complicated in this area:
110/5. Written consent for disclosure of records and communications
Â§5. (a) Except as provided in Sections 6 through 12.2 of this Act, records and communications may be disclosed to someone other than those persons listed in Section 4 of this Act only with the written consent of those persons who are entitled to inspect and copy a recipient’s record pursuant to Section 4 of this Act.
(b) Every consent form shall be in writing and shall specify the following:
(1) the person or agency to whom disclosure is to be made;
(2) the purpose of which disclosure is to be made;
(3) the nature of the information to be disclosed;
(4) the right to inspect and copy the information to be disclosed;
(5) the consequences of a refusal to consent, if any; and
(6) the calendar date on which the consent expires, provided that if no calendar date is stated, information may be released only on the day the consent form is received by the therapist; and
(7) the right to revoke the consent at any time.
The consent form shall be signed by the person entitled to give consent and the signature shall be witnessed by a person who can attest to the identity of the person so entitled. A copy of the consent and a notation as to any action taken thereon shall be entered in the recipient’s record. Any revocation of consent shall be in writing, signed by the person who gave the consent and the signature shall be witnessed by a person who can attest to the identity of the person so entitled. No written revocation of consent shall be effective to prevent disclosure of records and communications until it is received by the person otherwise authorized to disclose records and communications.
(c) Only information relevant to the purpose for which disclosure is sought may be disclosed. Blanket consent to the disclosure of unspecified information shall not be valid. Advance consent may be valid only if the nature of the information to be disclosed is specified in detail and the duration of the consent is indicated. Consent may be revoked in writing at any time; any such revocation shall have no effect on disclosures made prior thereto. (Emphasis added.)
And note that although redisclosures are not permitted, the patient may waive this right and authorize redisclosures in advance:
(d) No person or agency to whom any information is disclosed under this Section may redisclose such information unless the person who consented to the disclosure specifically consents to such redisclosure. (Emphasis added.)
Confidentiality of mental health records in Illinois survives death, as opposed to ordinary medical records:
(e) Except as otherwise provided in this Act, records and communications shall remain confidential after the death of a recipient and shall not be disclosed unless the recipient’s representative, as defined in the Probate Act of 19751 and the therapist consent to such disclosure or unless disclosure is authorized by court order after in camera examination and upon good cause shown. (Emphasis added.)
But ordinary consents are permitted in insurance coverage matters:
(f) Paragraphs (a) through (e) of this Section shall not apply to and shall not be construed to limit insurance companies writing Life, Accident or Health insurance as defined in Section 4 of the Illinois Insurance Code,2 and Non-Profit Health Care Service Plan Corporations, writing Health Care Service contracts, under The Non-Profit Health Care Service Plan Act,3 in obtaining general consents for the release to them or their designated representatives of any and all confidential communications and records kept by agencies, hospitals, therapists or record custodians, and utilizing such information in connection with the underwriting of applications for coverage for such policies or contracts, or in connection with evaluating claims or liability under such policies or contracts, or coordinating benefits pursuant to policy or contract provisions.
And in certain applications for benefits, no consent is required:
110/6. Information used in application for benefits – Disclosure without consent.
Â§6. Such information from a recipient’s record as is necessary to enable him to apply for or receive benefits may be disclosed with consent obtained pursuant to Section 5 of this Act. Disclosure may be made without consent when despite every reasonable effort it is not possible to obtain consent because the person entitled to give consent is not capable of consenting or is not available to do so. The recipient shall be informed of any disclosure made without consent. The information disclosed without consent under this Section may include only the identity of the receipient and therapist and a description of the nature, purpose, quantity, and date of the services provided. Any request for additional information shall state with particularity what further information is needed and the reasons therefor. Refusal to consent to the disclosure of more information than is necessary to apply for or receive direct benefits shall not be grounds for in any way denying, limiting, or cancelling such benefits or refusing to accept an application or renew such benefits. Such information shall not be redisclosed except with the consent of the person entitled to give consent. (Emphasis added.)
Section 110/7.1 of the MHDDCA also allows certain interagency disclosures without consent. Section 110/9.2 also states:
110/9.2 Interagency disclosure of recipient information.
Â§9.2. Interagency disclosure of recipient information. For the purposes of continuity of care, the Department of Menthal Health and Developmental Disabilities and community agencies funded by the Department of Mental Health and Developmental Disabilities may disclose a receipient’s record or communications, without consent, to each other, but only for the purposes of admission, treatment, planning, or discharge. Entities shall not redisclose any personally identifiable information, unless necessary for admission, treatment, planning, or discharge of the identified recipient to another setting. (Emphasis added.)
V. MANDATED DISCLOSURES
In certain instances, disclosures are required:
110/11. Disclosure of records and communications.
(Risk of Harm)
Â§11. Disclosure of records and communications. Records and communications may be disclosed, (i) in accordance with the provisions of the Abused and Neglected Child Reporting Act;1 (ii) when, and to the extent, a therapist, in his or her sole discretion, determines that disclosure is necessary to initiate or continue civil commitment proceedings under the laws of this State or to otherwise protect the recipient or other person against a clear, imminent risk of serious physical or mental injury or disease or death being inflicted upon the recipient or by the recipient on himself or another; (iii) when, and to the extent disclosure is, in the sole discretion of the therapist, necessary to the provision of emergency medical care to a recipient who is unable to assert or waive his or her rights hereunder; (iv) when disclosure is necessary to collect sums or receive third party payment representing charges for mental health or developmental disabilities services provided by a therapist or agency to a recipient under Chapter V of the Mental Health and Developmental Disabilities Code2 or to transfer debts under the Uncollected StatesClaims Act …; (v) when requested by a family member, the Department of Mental Health and Developmental Disabilities may assist in the location of the interment site of a deceased recipient …; (vi) in commitment proceedings under the Mental Health and Developmental Disabilities Code and proceedings and investigations preliminary thereto, to the State’s Attorney for the county or residence of a person for whom involuntary or judicial admission is sought, or in which the person is found, or in which the facility is provided that the information so disclosed shall not be utilized for any other purpose nor be re-disclosed except in connection with the proceedings or investigations; (vii) when, and to the extent disclosure is necessary to comply with the requirements of the Census Bureau in taking the federal Decennial Census; and (viii) when, and to the extent, in the therapist’s sole discretion, disclosure is necessary to warn or protect a specific individual against whom a recipient has made a specific threat of a specific threat of violence where there exists a therapist-recipient relationship or a special recipient-individual relationship. Any person, institution, or agency, under this Act, participating in good faith in the making of a report under the Abused and Neglected Child Reporting Act or in the disclosure of records and communications under this Section, shall have immunity from any liability, civil, criminal or otherwise, that might result … (Emphasis added.)
The most important mandated releases above cover abused children and the codified Tarasoff duty.
There is also a more specific provision at Â§110/9:
110/9. Disclosure by therapist without consent.
Â§9. In the course of providing services and after the conclusion of the provision of services, a therapist may disclose a record or communications without consent to:
(1) the therapist’s supervisor, a consulting therapist, members of a staff team participating in the provision of services, a record custodian, or a person acting under the supervision and control of the therapist;
(2) persons conducting a peer review of the services being provided;
(3) the Institute for Juvenile Research and the Institute for the Study of Developmental Disabilities; and
(4) an attorney or advocate consulted by a therapist or agency which provides services concerning the therapist’s or agency’s legal rights or duties in relation to the recipient and the services being provided.
In the course of providing services, a therapist may disclose a record or communications without consent to any department, agency, institution or facility which has custody of the recipient pursuant to State statute or any court order of commitment.
Information may be disclosed under this Section only to the extent that knowledge of the record or communications is essential to the purpose for which disclosure is made and only after the recipient is informed that such disclosure may be made. A person to whom disclosure is made under this Section shall not redisclose any information except as provided in this Act. (Emphasis added.)
VI. SUBPOENA SERVICE
The DMHDD Confidentiality Act has been amended to restrict service of subpoenas in certain circumstances, without an accompanying court order. The new provision, which is contained at 740 ILCS 110/10(d) states:
(d) No party to any proceeding described under paragraphs (1), (2), (3), (4), (7), or (8) of subsection (a) of this Section, no rhis or her attorney, shall serve a subpoena seeking to obtain access to records or communications under this Act, unless the subpoena is accompanied by a written order issued by a judge, authorizing the disclosure of the records or the issuance of the subpoena. No person shall comply with a subpoena for records or communications under this Act, unless the subpoena is accompanied by a written order authorizing the issuance of the subpoena or the disclosure of the records. (Source: P.A. 86-1417.) (Emphasis added.)
In order to become acquainted with the operation of this new section, which serves as a statutory command to all “persons” not to comply with an improperly served subpoena, it is necessary to examine the sections referred to. That is the purpose of this memorandum.
A. Civil, Criminal, or Administrative Proceedings
Where Patient’s Mental Conditional is Introduced
Section 10(a)(1) concerns records and communications which are subpoenaed pursuant to a “civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense.” Such disclosures are to be made only after the judge or hearing officer examines the documents in camera and determines:
- disclosure is relevant and probative;
- disclosure will not be unduly prejudicial or inflammatory;
- disclosure is otherwise clearly admissible;
- other satisfactory evidence (other than that contained in the confidential record) is “demonstrably unsatisfactory”;
- disclosure is more important to the “interests of substantial justice” than protection from injury to the therapist-recipient relationship or to the recipient “or other” whom the disclosure is likely to harm.
This section goes on to say that no record or communication between a therapist and patient is deemed “relevant” except the fact of treatment, the cost of services, and the ultimate diagnosis unless the party seeking disclosure of the communication clearly establishes in the trial court a “compelling need” for production of the document, or if the proceeding is a criminal trial in which insanity is claimed as a defense.
B. Documents Sought After Death of Patient
Where Mental Condition is at Issue
Section 10(a)(2) concerns civil proceedings in which a document is sought to be introduced after the death of the patient. The same procedure regarding an in camera examination by the judge or hearing officer is outlined. Post-death disclosures under this section must also involve the patient’s physical or mental condition having been introduced in the procedures as an element of a claim or defense, by any party.
C. Actions by Patient or, if Deceased,
Patient’s Representative, Against Therapist
Section 10(a)(3) describes actions by a patient, or by a representative of a deceased patient, against the therapist alleging that the therapist or other practitioner caused the injury complained of in the course of providing services to the patient.
D. Records Generated in the Course of a Court Ordered Evaluation
Section 10(a)(4) concerns records and communications “made to or by a therapist in the course of examination ordered by a court.” These communications may be disclosed in civil, criminal, or administrative proceedings or in appropriate pretrial proceedings provided that the court has found that the patient has been adequately and “as effectively as possible” informed before submitting to such examination that such records would not be considered confidential or privileged. However, these records are only admissible as to issues involving the patient’s physical or mental condition and only to the extent that they are germane to the proceedings.
E. Proceedings Involving Validity of Insurance
Coverage When Mental Condition of Patient is at Issue
Section 10(a)(7) concerns records and communications of the recipient being disclosed in any civil or administrative proceeding involving the validity of benefits under a life, accident, health, or disability insurance policy or certificate, or health care service plan contract. However, disclosure is only allowed to the extent that the patient’s mental condition or treatment or services is a material element of any claim or defense.
F. In Any Proceedings Under the DMHDD Confidentiality Act
Section 10(a)(8) concerns records or communications being disclosed pursuant to any action brought under the DMHDD Confidentiality Act, provided that the information disclosed shall not be utilized for “any other purpose.”
VII. NON-DISCLOSURE OF PERSONALLY IDENTIFIABLE INFORMATION
As can be seen, the most fundamental rule of any confidentiality code is that personally identifiable information is prohibited from being disclosed except with the consent of the subject of the record in question. There are other exceptions, which might include the various school administrative officials, officials in an institution where a student seeks to enroll, disclosures in connection with an application for financial aid, natural parents, disclosures necessary to protect the health and safety of the subject of the record, or in response to judicial order or lawful subpoena. Any disclosures made by the institution must be documented. Under both acts, when a student or other subject of a file reaches the age of 18, only he or she may consent to the disclosure, not the parents.
VIII. CONFIDENTIALITY RULES UNDER THE EDUCATION OF THE HANDICAPPED ACT
The Education of the Handicapped Act (EHA) also has its own confidentiality provision. This act is broader than FERPA and encompasses children age 3 to 21 on whom files are generated. The act applies to all agencies involved in receiving money under the Education of the Handicapped Act. The right to access by parents is more extensive, and the parental consent requirements are slightly different. There are more detailed procedures for safekeeping and destruction of files. Unlike FERPA, when the student reaches 18, the severity of his or her disability must be considered before the rights transfer to the pupil. Each state is required to have enforcement sanctions in the event of non-compliance with the EHA confidentiality provision.
A note on substance abuse: a physician may disclose to parents the fact that their minor child has sought substance abuse counseling or treatment from him, but the physician must tell the parents of an age-12-or-older minor after the second treatment. The only exception to mandatory disclosure after the second treatment for substance abuse problems is certification by the physician that doing so would jeopardize treatment. In that instance, the physician may wait up to three months before disclosing. However, if a member of the family is abusing drugs or alcohol, no disclosure need be made (see more detailed memo on this subject).
A note on abuse reporting: In all states, confidentiality is waived when a mandated reporter has reasonable cause to believe an abuse or neglect situation is present. Moreover, any reports pursuant to abuse reporting acts are immune from civil suit. Depending on the state, sanctions may be present, for the failure of a mandated reporter to submit a report of abuse or neglect. Such sanctions might include loss of a professional license.
This means a preliminary review of the restricted file, by the judge, in his office and off the record.
It is our position that subpoenas received in the course of proceedings pursuant to the Mental Health Code, such as, for example, Involuntary Admission, are included in this section. Thus, if a subpoena is received from a party to these proceedings, it must be accompanied by a court order, unless the therapist has determined a disclosure is necessary to “initiate or continue civil commitment proceedings” per 740 ILCS 110/11 (outlined at Section V)