SENATE BILL NO. 1225 June 25, 1998, Introduced by Senator CISKY and referred to the Committee on Families, Mental Health and Human Services. A bill to amend 1974 PA 258, entitled "Mental health code," by amending section 748 (MCL 330.1748), as amended by 1996 PA 588. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 748. (1) Information in the record of a recipient, and 2 other information acquired in the course of providing mental 3 health services to a recipient, shall be kept confidential and 4 shall not be open to public inspection. The information may be 5 disclosed outside the department, community mental health serv- 6 ices program, licensed facility, or contract provider, whichever 7 is the holder of the record, only in the circumstances and under 8 the conditions set forth in this section. 9 (2) If information made confidential by this section is 10 disclosed, the identity of the individual to whom it pertains 02621'97 * GWH 2 1 shall be protected and shall not be disclosed unless it is 2 germane to the authorized purpose for which disclosure was 3 sought; and, when practicable, no other information shall be dis- 4 closed unless it is germane to the authorized purpose for which 5 disclosure was sought. 6 (3) An individual receiving information made confidential by 7 this section shall disclose the information to others only to the 8 extent consistent with the authorized purpose for which the 9 information was obtained. 10 (4) For case record entries made subsequent to March 28, 11 1996, information made confidential by this section shall be dis- 12 closed to an adult recipient, upon the recipient's request, if 13 the recipient does not have a guardian and has not been adjudi- 14 cated legally incompetent. The holder of the record shall comply 15 with the adult recipient's request for disclosure as expedi- 16 tiously as possible but in no event later than the earlier of 30 17 days after receipt of the request or, if the recipient is receiv- 18 ing treatment from the holder of the record, before the recipient 19 is released from treatment. 20 (5) Except as otherwise provided insubsection (4), (6),21(7), or (9)THIS SECTION, when requested, information made con- 22 fidential by this section shall be disclosed only under 1 or more 23 of the following circumstances: 24 (a) Pursuant toordersAN ORDER orsubpoenasA SUBPOENA 25 of a court of record,orsubpoenasA SUBPOENA of the legis- 26 lature, unless the information ismadeprivileged by law. 02621'97 * 3 1 (b) To a prosecuting attorney as necessary for the 2 prosecuting attorney to participate in a proceeding governed by 3 this act. 4 (c) To an attorney for the recipient, with the consent of 5 the recipient, the recipient's guardian with authority to con- 6 sent, or the parent with legal and physical custody of a minor 7 recipient. 8 (d) If necessary in order to comply with another provision 9 of law. 10 (e) To the department if the information is necessary in 11 order for the department to discharge a responsibility placed 12 upon it by law. 13 (f) To the office of the auditor general if the information 14 is necessary for that office to discharge its constitutional 15 responsibility. 16 (g) To a surviving spouse of the recipient or, if there is 17 no surviving spouse, to the individual or individuals most 18 closely related to the deceased recipient within the third degree 19 of consanguinity as defined in civil law, for the purpose of 20 applying for and receiving benefits. 21 (6) Except as otherwise provided in subsection (4), if con- 22 sent is obtained from the recipient, the recipient's guardian 23 with authority to consent, the parent with legal custody of a 24 minor recipient, or the court-appointed personal representative 25 or executor of the estate of a deceased recipient, information 26 made confidential by this section may be disclosed to all of the 27 following: 02621'97 * 4 1 (a)ProvidersA PROVIDER of mental health services to the 2 recipient. 3 (b) The recipient or his or her guardian or the parent of a 4 minor recipient orany otherANOTHER individual or agency 5 unless in the written judgment of the holder the disclosure would 6 be detrimental to the recipient or others. 7 (7) Information may be disclosed in the discretion of the 8 holder of the record UNDER 1 OR MORE OF THE FOLLOWING 9 CIRCUMSTANCES: 10 (a) As necessary in order for the recipient to apply for or 11 receive benefits. 12 (b) As necessary for the purpose of outside research, evalu- 13 ation, accreditation, or statistical compilation., provided14that theTHE individual who is the subject of the information 15canSHALL NOT be identifiedfromIN the disclosed information 16only if suchUNLESS THE identification is essential in order to 17 achieve the purpose for which the information is sought or if 18 preventingsuchTHE identification would clearly be impracti- 19 cal, butin no eventNOT if the subject of the information is 20 likely to be harmed by the identification. 21 (c) ToprovidersA PROVIDER of mental or other health 22 services or a public agency, if there is a compelling need for 23 disclosure based upon a substantial probability of harm to the 24 recipient or other individuals. 25 (8) If required by federal law, the department or a commu- 26 nity mental health services program or licensed facility shall 27 grant a representative of the protection and advocacy system 02621'97 * 5 1 designated by the governor in compliance with section 931 access 2 to the records of all of the following: 3 (a) A recipient, if the recipient, the recipient's guardian 4 with authority to consent, or a minor recipient's parent with 5 legal and physical custody of the recipient has consented to the 6 access. 7 (b) A recipient, including a recipient who has died or whose 8whereabouts areLOCATION IS unknown, if all of the following 9 apply: 10 (i) Because of mental or physical condition, the recipient 11 is unable to consent to the access. 12 (ii) The recipient does not have a guardian or other legal 13 representative, or the recipient's guardian is the state. 14 (iii) The protection and advocacy system has received a com- 15 plaint on behalf of the recipient or has probable cause to 16 believe based on monitoring or other evidence that the recipient 17 has been subject to abuse or neglect. 18 (c) A recipient who has a guardian or other legal represen- 19 tative if all of the following apply: 20 (i) A complaint has been received by the protection and 21 advocacy system or there is probable cause to believe the health 22 or safety of the recipient is in serious and immediate jeopardy. 23 (ii) Upon receipt of the name and address of the recipient's 24 legal representative, the protection and advocacy system has con- 25 tacted the representative and offered assistance in resolving the 26 situation. 02621'97 * 6 1 (iii) The representative has failed or refused to act on 2 behalf of the recipient. 3 (9) The records, data, and knowledge collected for or by 4 individuals or committees assigned a peer review function, 5 including the review function under section 143a(1), are confi- 6 dential, shall be used only for the purposes of peer review, are 7 not public records, and are not subject to court subpoena. This 8 subsection does not prevent disclosure of individual case records 9 pursuant to this section. 10 (10) The holder of an individual's record,whenIF autho- 11 rized to release information for clinical purposes by the indi- 12 vidual or the individual's guardian or a parent of a minor, shall 13 release a copy of the entire medical and clinical record to the 14 provider of mental health services. 15 (11) IF THERE IS A COMPELLING NEED FOR RECORDS TO DETERMINE 16 WHETHER CHILD ABUSE OR NEGLECT HAS OCCURRED OR TO TAKE ACTION TO 17 PROTECT A CHILD WHERE THERE MAY BE A SUBSTANTIAL RISK OF HARM, 18 THE DEPARTMENT AND EACH COMMUNITY MENTAL HEALTH SERVICES PROGRAM 19 SHALL GIVE ACCESS TO A FAMILY INDEPENDENCE AGENCY EMPLOYEE 20 DIRECTLY INVOLVED IN THE INVESTIGATION TO DIAGNOSTIC AND TREAT- 21 MENT RECORDS PERTAINING TO A CHILD WHO IS A SUBJECT OF A CHILD 22 ABUSE OR NEGLECT INVESTIGATION OR PERTAINING TO AN INDIVIDUAL 23 SUSPECTED AS A PERPETRATOR IN THE INVESTIGATION. A RECORD DIS- 24 CLOSED UNDER THIS SECTION SHALL INCLUDE THE IDENTITY OF THE INDI- 25 VIDUAL TO WHOM THE RECORD OR INFORMATION PERTAINS. 26 (12) IF THERE IS A COMPELLING NEED FOR RECORDS OR 27 INFORMATION TO DETERMINE WHETHER CHILD ABUSE OR NEGLECT HAS 02621'97 * 7 1 OCCURRED OR TO TAKE ACTION TO PROTECT A CHILD WHERE THERE MAY BE 2 A SUBSTANTIAL RISK OF HARM, A LICENSED MENTAL HEALTH PROFESSIONAL 3 WHO HAS PROVIDED MENTAL HEALTH SERVICES TO A MINOR WHO IS THE 4 SUBJECT OF AN INVESTIGATION UNDER THE CHILD PROTECTION LAW, 1975 5 PA 238, MCL 722.621 TO 722.638, SHALL GIVE ACCESS TO RECORDS AND 6 INFORMATION IN THE MINOR'S MENTAL HEALTH SERVICES RECORD TO A 7 FAMILY INDEPENDENCE AGENCY EMPLOYEE DIRECTLY INVOLVED IN THE 8 INVESTIGATION. 9 (13) A DEPARTMENT EMPLOYEE SHALL NOT BE GIVEN THE ACCESS 10 DESCRIBED BY SUBSECTION (11) OR (12) UNLESS THE DEPARTMENT 11 EMPLOYEE REQUESTS THE RECORDS AND INFORMATION IN WRITING. WITHIN 12 14 CALENDAR DAYS AFTER THE RECORD HOLDER RECEIVES THE WRITTEN 13 REQUEST, THE DEPARTMENT, COMMUNITY MENTAL HEALTH SERVICES PRO- 14 GRAM, OR LICENSED MENTAL HEALTH PROFESSIONAL SHALL GIVE THAT 15 ACCESS REGARDLESS OF THE CONSENT OF THE PERSON FROM WHOM CONSENT 16 WOULD OTHERWISE BE REQUIRED. 17 (14) THE FOLLOWING PRIVILEGES DO NOT APPLY TO INFORMATION 18 RELEASED OR MADE AVAILABLE UNDER SUBSECTION (12): 19 (A) THE PHYSICIAN-PATIENT PRIVILEGE CREATED IN SECTION 2157 20 OF THE REVISED JUDICATURE ACT OF 1961, 1961 PA 236, MCL 21 600.2157. 22 (B) THE DENTIST-PATIENT PRIVILEGE CREATED IN SECTION 16648 23 OF THE PUBLIC HEALTH CODE, 1978 PA 368, MCL 333.16648. 24 (C) THE LICENSED PROFESSIONAL COUNSELOR-CLIENT AND LIMITED 25 LICENSED COUNSELOR-CLIENT PRIVILEGE CREATED IN SECTION 18117 OF 26 THE PUBLIC HEALTH CODE, 1978 PA 368, MCL 333.18117. 02621'97 * 8 1 (D) THE PSYCHOLOGIST-PATIENT PRIVILEGE CREATED IN SECTION 2 18237 OF THE PUBLIC HEALTH CODE, 1978 PA 368, MCL 333.18237. 3 (E) ANY OTHER HEALTH PROFESSIONAL-PATIENT PRIVILEGE CREATED 4 OR RECOGNIZED BY LAW. 5 (15) TO THE EXTENT NOT PROTECTED BY THE IMMUNITY CONFERRED 6 BY 1964 PA 170, MCL 691.1401 TO 691.1415, AN INDIVIDUAL WHO IN 7 GOOD FAITH GIVES ACCESS TO A RECORD AS REQUIRED BY THIS SECTION 8 IS IMMUNE FROM CIVIL OR ADMINISTRATIVE LIABILITY ARISING FROM 9 THAT CONDUCT, UNLESS THE CONDUCT WAS GROSS NEGLIGENCE OR WILLFUL 10 AND WANTON MISCONDUCT. 02621'97 * Final page. 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