State Guardian ad Litem Board

1. State Guardian ad Litem Board Access to Information Review & Update Resa Gilats, J.D., M.S.L.A. GAL Program Analyst April 12, 2012

2. Overview • Introduction • Framework for Analysis • Review of Relevant Statutes and Rules • Common Questions and Issues • Releases (HIPAA Compliant) • Overarching Guidelines

3. Introduction

4. World of Information • Framework for Analysis: The World of Information • All information—public • Anybody can get it any time however they can get it • Think of private investigators or what the Internet allows us to do to find information about people • Private information—a subset of all information • Protected, limited access • Need special right or privilege to obtain • Law is the basis of that special right or privilege

5. Publicly Accessible Information Is Everything Out Here

6. Access/Share • Access to information • Law that governs GAL access to information • GAL duty of confidentiality • Share information • GAL often asked to provide information • GAL right to share information • What is permitted after you obtain it

7. Starting Point: The Law • Starting point always the law • Access authority: • Minn. Stat. § 260C.163 Subd. 5 (b)—Juvenile court • Minn. Stat. § 518.165 Subd. 2a.—Family court • GAL Rules—907.01 Subd. 1 • Appointment order • Releases • Special court order

8. Hello, Dr. Yang. This is Abby Washington. I’m the Guardian ad Litem for Latisha W. I recently sent you a request for records of your psychological evaluation of Latisha’s father. Did you receive that request?

9. Yes, Ms Washington, I did receive your request. However, I am not able to comply – those records are private.

10. I do appreciate the privacy of these records. However, I did provide to you a copy of the court order appointing me as Latisha’s Guardian ad Litem and giving me access to records to help me do my job and work in Latisha’s best interests.

11. Yes, I did see your court order. But it relates to Latisha, and not to Latisha’s father. Therefore, I cannot send you his psychological evaluation.

12. Abby is not able to convince Dr. Yang to release records on Latisha’s father’s psychological evaluation. What should Abby do next? • Click on an answer to see feedback: • Contact her coordinator for advice. • Contact Latisha’s social worker for advice. • Get a HIPAA-compliant authorization from Latisha’s father. • Get a court order to force Latisha’s father to sign the HIPAA-compliant release form.

13. A What should Abby do next? • Click on an answer to see feedback: • Contact her coordinator for advice. • Contact Latisha’s social worker for advice. • Get a HIPAA-compliant authorization from Latisha’s father. • Get a court order to force Latisha’s father to sign the HIPAA-compliant release form. This is a good idea. Your coordinator has dealt with these situations in the past and should have good advice and direction for you. If you have not already done so, select another response to view feedback. Be sure you view all responses.

14. B What should Abby do next? • Click on an answer to see feedback: • Contact her coordinator for advice. • Contact Latisha’s social worker for advice. • Get a HIPAA-compliant authorization from Latisha’s father. • Get a court order to force Latisha’s father to sign the HIPAA-compliant release form. This might be a good idea. The social worker may have experience with this psychologist or this situation and may be able to share additional information. If you have not already done so, select another response to view feedback. Be sure you view all responses.

15. C What should Abby do next? • Click on an answer to see feedback: • Contact her coordinator for advice. • Contact Latisha’s social worker for advice. • Get a HIPAA-compliant authorization from Latisha’s father. • Get a court order to force Latisha’s father to sign the HIPAA-compliant release form. This is a good next step. Once you have an authorization from the father, the psychologist has no reason not to provide you with the requested evaluation. If you have not already done so, select another response to view feedback. Be sure you view all responses.

16. D What should Abby do next? • Click on an answer to see feedback: • Contact her coordinator for advice. • Contact Latisha’s social worker for advice. • Get a HIPAA-compliant authorization from Latisha’s father. • Get a court order to force Latisha’s father to sign the HIPAA-compliant release form. This is a last resort, but might be necessary if you cannot get a release from Latisha’s father. If you do have to go to court, you may be provided with an attorney to assist you with the process. If you have not already done so, select another response to view feedback. Be sure you view all responses.

17. To: Mike Wilson Subject: Good to see you Hey, Mike, good to see at the game last night! What a great contest, right? And great that the home team won! Mike, could you shoot me over your case notes and provider reports on Ahmed A. and his family? It would save me a lot of time and we can get this case resolved faster. Hope to see you at the next game! Maybe we can get a beer afterward. Mel Winston Winston and Salem, Attorneys 1234 Main Street Springfield, MN 55555

18. Mike knows that Mel Winston is the attorney for Ahmed A’s father. What should Mike do next? • Click on an answer to see feedback: • Provide the attorney with the requested information. • Send an email reply, refusing to provide the attorney with the requested information.

19. What should Mike do next? • Click on an answer to see feedback: • Provide the attorney with the requested information. • Send an email reply, refusing to provide the attorney with the requested information. This is not an appropriate course of action. Your notes and provider reports on Ahmed A.’s case are private information and protected by statute [Minn. Stat. § 260C.163 Subd. 5 (b)(3)]. If you have not already done so, select the other response to view feedback.

20. What should Mike do next? • Click on an answer to see feedback: • Provide the attorney with the requested information. • Send an email reply, refusing to provide the attorney with the requested information. This is your correct response. Even though the attorney is working on the same case, you are required to keep this information confidential. Your reply to the attorney could include a comment that, “I have a duty under the law to hold information about my client in confidence.” If you have not already done so, select the other response to view feedback.

21. Winston & Salem Attorneys at Law 1234 Main Street, Springfield, MN 55555 Dear Mr. Wilson: In the matter of Ahmed A., you are formally requested to remit files related to this case to our firm. We are the attorneys of record for Ahmed A’s father. As you know, there is legal precedent for this action; Guardians ad litem may be compelled to turn over requested documents. I expect to receive said documents by September 1, Mel Winston Senior Partner legal precedent compel

22. What should Mike do next? • Click on an answer to see feedback: • Provide the attorney with the requested information. • Send an equally formal letter, refusing to provide the attorney with the requested information.

23. What should Mike do next? • Click on an answer to see feedback: • Provide the attorney with the requested information. • Send an equally formal letter, refusing to provide the attorney with the requested information. This is not an appropriate course of action. The attorney may be correct that he should have access to the requested information, but he is responsible for getting it himself through proper legal channels – he may be trying to short circuit this process by having Mike simply hand the documents over. If you have not already done so, select the other response to view feedback.

24. What should Mike do next? • Click on an answer to see feedback: • Provide the attorney with the requested information. • Send an equally formal letter, refusing to provide the attorney with the requested information. This is your correct response. Your response might include the following comments: Minn. Stat. § 260C.163 Subd. 5 (b)(3) provides that I must maintain the confidentiality of information related to the case. If you have not already done so, select the other response to view feedback.

25. What will happen next? 1 • The court will grant the attorney’s motion. • Mike will turn over all records as ordered by the court. 2 • The court will deny the attorney’s motion. • Mike will not turn over requested records. 3 • The court requires a hearing on the matter. • Mike may receive a subpoena to appear in court. • Mike may be provided with an attorney. • The judge will rule for or against the motion to release records to the attorney. • Mike is obligated to comply with the ruling of the court.

26. Access—Legal Authority—Statutes • Minn. Stat. § 260C.163 Subd. 5 (b) (1)—Juvenile court • Minn. Stat. § 518.165 Subd. 2a. (1)—Family court • “…conduct an independent investigation to determine the facts relevant to the situation of the child and the family, which must include, unless specifically excluded by the court, reviewing relevant documents…”

27. Access—Legal Authority--Rules • Rules of Guardian Ad Litem Procedure • Rules 903.01 Subd. 1 juvenile court and 903.03 family court: • “A guardian ad litem shall not be appointed or serve except upon written order of the court. The order shall set forth: (a) the statute or rule providing for the appointment of the guardian ad litem.” • GAL Rules require the citation to the statute or rule authorizing the appointment of the GAL in the court order

28. Enforcement of Court Orders • Minn. Stat. § 588.01 establishes the enforceability of a valid court order: • Subd. 3 Constructive [Contempts] • “(3) disobedience of any lawful judgment, order, or process of the court.” • Sanctions for disobeying a court order may include fines or jail time or both

29. Best Practice/Acceptable Practice • Get HIPAA-compliant releases signed at the start of the case • Use the service provider’s HIPAA-compliant release is acceptable as long as re-release provision included • Even though court order ought to be sufficient, use of HIPAA-compliant releases is supported by local culture and best practices

30. HIPAA • HIPAA stands for Health Insurance Portability and Accountability Act—it’s not HIPPA!! • This is federal law, which includes regulations promulgated by the U.S. Dept. of Health and Human Services; 45 CFR 164.500-534 • Service providers who meet the definition of “covered entity” under HIPAA are bound by the provisions and are not to release “protected health information” (PHI) about their clients except as provided by law

31. HIPAA Public Policy Exception • 45 CFR 164.512 (e) states: • during the course of any judicial or administrative proceeding, a covered entity may disclose PHI in response to (1) an order of a court or administrative tribunal or (2) a subpoena, discovery request, or other lawful process that is not accompanied by an order of a court or administrative tribunal • Note this exception is stated in the affirmative for the covered entity, i.e., the covered entity may disclose rather than the third party may have access

32. HIPAA-Complaint Releases • HIPAA requires several pieces of information in a release in order for it to be HIPAA compliant • Handout on elements of HIPAA-compliant releases • Sample HIPAA-compliant release

33. Re-release Provision • HIPAA now permits guardians ad litem to redisclose or rerelease PHI they have obtained with a valid, HIPAA-compliant authorization IF the authorization contains the following element: • Once the PHI is disclosed to the recipient, it may no longer be protected under HIPAA and there is potential for redisclosure by the recipient to another entity

34. Publicly Accessible Information Is Everything Out Here

35. Requests for Information • Requests for Information from GAL/Discussion • Varying levels of formality: • Phone call • E-mail • Letter • Pleading, production of documents • Subpoena • Court order • Responses influenced by: • Claims of privilege • Statutes • Rules • Best interests • Local practices • Best practices

36. First Confidentiality • GAL Duty of Confidentiality • Assume everything confidential • First invoke duty of confidentiality • Second consult Coordinator or Manager • Risk of breaching confidentiality—lose immunity

37. Then Sharing • GAL Right to Share Information • “promoting cooperative solutions in the best interests of the child” • Caution regarding ex parte communications and duty to inform all parties