The Walters Gilbreath, PLLC Blog

Health Records in Child Custody Cases

by Jake Gilbreath on July 4, 2019

Mental and Physical Health Records in Child Custody Cases

The issue of physical and mental health records comes up often in family law cases. It is common that one parent seeks the production of the other parent’s mental health or physical health records. This is particularly the case in cases involving drugs and alcohol and treatment records. Other records commonly sought include therapy notes and psychiatric records.

Most people assume, somewhat incorrectly, that their records are protected by HIPAA and the mental health and physical health privilege. This is correct, but there are many exceptions. Both HIPAA and the Texas Rules of Evidence have nuances that can be difficult to follow. It is important to understand arguments both for the production and the protection of mental and physical health information. These arguments can be found by exploring HIPAA and Rule 509 and 510 of the Texas Rules of Civil Procedure.

What is HIPAA?

HIPAA stands for Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Pub. L. No 104-191, 110 Stat. 1936 (1996) (codified as amended at 42 U.S.C. §§ 1320d-1320d8 (2007). The provisions of HIPAA apply only to the following persons: “a health plan,” a “health care clearinghouse” and “a health care provider.” 42 U.S.C. § 1320d-1.

Pursuant to HIPAA, in 2000 the federal Department of Health and Human Services promulgated privacy standards for individual medical information (the “Privacy Rules”). See Standards for Privacy of Individually Identifiable Health Information, 65 Fed.Reg. 82, 462 (Dec. 28, 2000) (codified as amended at 45 C.F.R. §§ 160 & 164 (2006). The stated purposes for the regulations included the control of “inappropriate use” of “protected health information” (PHI). 65 Fed.Reg. at 82, 463. Under the Privacy Rules, a health care provider may not disclose “protected health information” (PHI) except as allowed by the Rules. 45 C.F.R. § 164.502(a).

Release of Documents Pursuant to a Subpoena

Although cited often in in support of an assertion of privilege regarding PHI, the HIPAA regulations do nothing more than govern the release of PHI by mental and physical health providers. See 45 C.F.R. § 164.502(a). Furthermore, as it pertains to physical and mental health providers, the regulations specifically authorize the disclosure of PHI “in response to an order of a court” and “in response to a subpoena, discovery request, or other lawful process.” 45 C.F.R. § 164.512 (e)(i)&(ii). Therefore, under the Privacy Rules, a health care provider is authorized to disclose the requested PHI and there is not privilege created under HIPAA.

Heightened Standard for Disclosure of Substance Abuse Records

Under Federal Law there is a heightened privacy standard for records arising from the treatment of substance abuse. See 42 U.SC. § 290dd-2. In order to constitute a substance abuse record, the purpose of the treatment from which the record arises must have been primarily concerning the issue of substance abuse. See, e.g., Tatum v. State, 919 S.W.2d 910 (Tex. App.—Fort Worth 1996, no pet.) (Holding that although under Tex. R. Evid. 509(b) there is a privilege for substance abuse treatment, the privilege does not apply to a situation in which defendant sought treatment for sexual deviancy, but during the course of his treatment it was determined that he had an alcohol problem.); see also, e.g., Foreman v. State, 995 S.W.2d 854, 856-57 (Tex. App.—Austin, 1999, pet. ref’d) (citing Tatum with approval and holding that privilege concerning substance abuse treatment was inapplicable in situation in which defendant had sought treatment for a problem other than substance abuse but substance abuse was discussed during the treatment.).

Substance abuse treatment programs must comply with the Privacy Rule. 45 C.F.R. § 160.103. The restrictions and regulations for disclosure of substance abuse records were initially authorized by section 408 of the Drug Abuse Prevention Treatment and Rehabilitation Act (21 U.S.C. 1175). That section as amended was transferred by Pub. L. 98-24 to section 527 of the Public Health Service Act which was codified at 42 U.S.C. § 290ee-3 and now at 42 U.SC. § 290dd-2. The regulations promulgated pursuant to the statute are found at 42 C.F.R. Part 2.

That statute reads as follows:

Records of the identity, diagnosis, prognosis or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research…[shall] be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.

……

[t]he content of such record may be disclosed as follows:

If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefore, including the need to avert a substantial risk of death or serious bodily harm.” In accessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services.

42 U.SC. § 290dd-2.

The “good cause” requirement of section 290dd-2 as it pertains to child custody proceedings was addressed by the Texarkana Court of Appeals in In re K.C.P. and J.D.P., 142 S.W.3d 574 (Tex. App.—Texarkana 2004, no pet.). In In re K.C.P., mother argued on appeal that the trial court had erred in admitting her drug treatment records in a termination case. Id. at 578. The Court stated:

The ‘good cause’ requirement, in this context, is essentially a balancing test. The court is to balance the right to rely on confidentiality on the part of the parent against the needs of the children, and the potential dangers to them, in light of the public policies designed to protect children. Id. at 584.

The Court went on to point out that “one of the multitude of reasons that may justify termination of parental rights includes the parent’s use of a controlled substance in a manner that endangered the health or safety of the child.” Id at 585. The Court also observed out that the information contained in the documents provided insight “as to the nature, mindset, and behavior of the parent that would be of considerable use to a fact-finder.” Id. Because of these reasons, the Court held that the trial court did not abuse its discretion by admitting the records into evidence. Id.

What are Rule 509 and Rule 510 of the Texas Rules of Evidence?

Rule 509 of the Texas Rules of Evidence states:

(a) Definitions. In this rule:

(1) A “patient” is a person who consults or is seen by a physician for medical care.

(2) A “physician” is a person licensed, or who the patient reasonably believes is licensed, to practice medicine in any state or nation.

(3) A communication is “confidential” if not intended to be disclosed to third persons other than those:

(A) present to further the patient’s interest in the consultation, examination, or interview;

(B) reasonably necessary to transmit the communication; or

(C) participating in the diagnosis and treatment under the physician’s direction, including members of the patient’s family.

(b) Limited Privilege in a Criminal Case. There is no physician–patient privilege in a criminal case. But a confidential communication is not admissible in a criminal case if made:

(1) to a person involved in the treatment of or examination for alcohol or drug abuse; and

(2) by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse.

(c) General Rule in a Civil Case. In a civil case, a patient has a privilege to refuse to disclose and to prevent any other person from disclosing:

(1) a confidential communication between a physician and the patient that relates to or was made in connection with any professional services the physician rendered the patient; and

(2) a record of the patient’s identity, diagnosis, evaluation, or treatment created or maintained by a physician.

(d) Who May Claim in a Civil Case. The privilege may be claimed by:

(1) the patient; or

(2) the patient’s representative on the patient’s behalf.

The physician may claim the privilege on the patient’s behalf—and is presumed to have authority to do so.

(e) Exceptions in a Civil Case. This privilege does not apply:

(1) Proceeding Against Physician. If the communication or record is relevant to a claim or defense in:

(A) a proceeding the patient brings against a physician; or

(B) a license revocation proceeding in which the patient is a complaining witness.

(2) Consent. If the patient or a person authorized to act on the patient’s behalf consents in writing to the release of any privileged information, as provided in subdivision (f).

(3) Action to Collect. In an action to collect a claim for medical services rendered to the patient.

(4) Party Relies on Patient’s Condition. If any party relies on the patient’s physical, mental, or emotional condition as a part of the party’s claim or defense and the communication or record is relevant to that condition.

(5) Disciplinary Investigation or Proceeding. In a disciplinary investigation of or proceeding against a physician under the Medical Practice Act, Tex. Occ. Code § 164.001 et seq., or a registered nurse under Tex. Occ. Code § 301.451 et seq. But the board conducting the investigation or proceeding must protect the identity of any patient whose medical records are examined unless:

(A) the patient’s records would be subject to disclosure under paragraph (e)(1); or

(B) the patient has consented in writing to the release of medical records, as provided in subdivision (f).

(6) Involuntary Civil Commitment or Similar Proceeding. In a proceeding for involuntary civil commitment or court-ordered treatment, or a probable cause hearing under Tex. Health & Safety Code:

(A) chapter 462 (Treatment of Persons With Chemical Dependencies);

(B) title 7, subtitle C (Texas Mental Health Code); or

(C) title 7, subtitle D (Persons With an Intellectual Disability Act).

(7) Abuse or Neglect of “Institution” Resident. In a proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of a resident of an “institution” as defined in Tex. Health & Safety Code § 242.002.

(f) Consent For Release of Privileged Information.

(1) Consent for the release of privileged information must be in writing and signed by:

(A) the patient;

(B) a parent or legal guardian if the patient is a minor;

(C) a legal guardian if the patient has been adjudicated incompetent to manage personal affairs;

(D) an attorney appointed for the patient under Tex. Health & Safety Code title 7, subtitles C and D;

(E) an attorney ad litem appointed for the patient under Tex. Estates Code title 3, subtitle C;

(F) an attorney ad litem or guardian ad litem appointed for a minor under Tex. Fam. Code chapter 107, subchapter B; or

(G) a personal representative if the patient is deceased.

(2) The consent must specify:

(A) the information or medical records covered by the release;

(B) the reasons or purposes for the release; and

(C) the person to whom the information is to be released.

(3) The patient, or other person authorized to consent, may withdraw consent to the release of any information. But a withdrawal of consent does not affect any information disclosed before the patient or authorized person gave written notice of the withdrawal.

(4) Any person who receives information privileged under this rule may disclose the information only to the extent consistent with the purposes specified in the consent.

Rule 510 of the Texas Rules of Evidence states:

(a) Definitions. In this rule:

(1) A “professional” is a person:

(A) authorized to practice medicine in any state or nation;

(B) licensed or certified by the State of Texas in the diagnosis, evaluation, or treatment of any mental or emotional disorder;

(C) involved in the treatment or examination of drug abusers; or

(D) who the patient reasonably believes to be a professional under this rule.

(2) A “patient” is a person who:

(A) consults or is interviewed by a professional for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism and drug addiction; or

(B) is being treated voluntarily or being examined for admission to voluntary treatment for drug abuse.

(3) A “patient’s representative” is:

(A) any person who has the patient’s written consent;

(B) the parent of a minor patient;

(C) the guardian of a patient who has been adjudicated incompetent to manage personal affairs; or

(D) the personal representative of a deceased patient.

(4) A communication is “confidential” if not intended to be disclosed to third persons other than those:

(A) present to further the patient’s interest in the diagnosis, examination, evaluation, or treatment;

(B) reasonably necessary to transmit the communication; or

(C) participating in the diagnosis, examination, evaluation, or treatment under the professional’s direction, including members of the patient’s family.

(b) General Rule; Disclosure.

(1) In a civil case, a patient has a privilege to refuse to disclose and to prevent any other person from disclosing:

(A) a confidential communication between the patient and a professional; and

(B) a record of the patient’s identity, diagnosis, evaluation, or treatment that is created or maintained by a professional.

(2) In a civil case, any person—other than a patient’s representative acting on the patient’s behalf—who receives information privileged under this rule may disclose the information only to the extent consistent with the purposes for which it was obtained.

(c) Who May Claim. The privilege may be claimed by:

(1) the patient; or

(2) the patient’s representative on the patient’s behalf.

The professional may claim the privilege on the patient’s behalf—and is presumed to have authority to do so.

(d) Exceptions. This privilege does not apply:

(1) Proceeding Against Professional. If the communication or record is relevant to a claim or defense in:

(A) a proceeding the patient brings against a professional; or

(B) a license revocation proceeding in which the patient is a complaining witness.

(2) Written Waiver. If the patient or a person authorized to act on the patient’s behalf waives the privilege in writing.

(3) Action to Collect. In an action to collect a claim for mental or emotional health services rendered to the patient.

(4) Communication Made in Court-Ordered Examination. To a communication the patient made to a professional during a court-ordered examination relating to the patient’s mental or emotional condition or disorder if:

(A) the patient made the communication after being informed that it would not be privileged;

(B) the communication is offered to prove an issue involving the patient’s mental or emotional health; and

(C) the court imposes appropriate safeguards against unauthorized disclosure.

(5) Party Relies on Patient’s Condition. If any party relies on the patient’s physical, mental, or emotional condition as a part of the party’s claim or defense and the communication or record is relevant to that condition.

(6) Abuse or Neglect of “Institution” Resident. In a proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of a resident of an “institution” as defined in Tex. Health & Safety Code § 242.002.

Rule 509 and 510 Allows Disclosure if Records are Part of a “Claim or Defense”

Rule 510 states that “[c]ommunciation between a patient and professional is confidential and shall not be disclosed in civil cases” and that “[r]ecords of the identity, diagnosis, evaluation, or treatment of a patient which are created or maintained by a professional are confidential and shall not be disclosed in civil cases. Tex. R. Evid. 510(b)(1),(2). However, the rule provides for an identical exception for the privilege:

As to communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as part of the party’s claim or defense.

Tex. R. Evid. 510(d)(5).

The Texas Supreme Court in R.K. v. Ramirez, 886 S.W.2d 836, 843 (Tex. 1994) in interpreting what constituted “part” of claim or defense of a party under the Rule 510 exceptions stated:

As a general rule, a mental condition will be a ‘part’ of a claim or defense if the pleadings indicate that the jury must make a factual determination concerning the condition itself. In other words, information communicated to a doctor or psychotherapist may be relevant to the merits of an action, but in order to fall within the litigation exception to the privilege, the condition itself must be of legal consequence to a party’s claim or defense. Id.

The exception “draws no distinction on the basis of which party is relying on the patient’s medical condition.” S.A.B. v. Schattman, 838 S.W.2d 290, 295 (Tex. App.–Fort Worth 1992, orig. proceeding).

The Claim or Defense Exception is Properly Applied to Alcohol Abuse Cases

The 510(d)(5) exception to mental health information privilege has been applied before in Texas to cases involving allegations of alcohol abuse. See, e.g., Schattman, 838 S.W.2d 290. In Schattman, plaintiffs sued defendant on the theory of medical malpractice and claimed that defendant was addicted to drugs and/or alcohol during the time of the malpractice. Id. Plaintiffs subpoenaed medical records from a hospital in which defendant had been admitted for treatment of addiction approximately one year after the malpractice. Id. Defendant filed a motion to quash, which was denied by the trial court citing Tex. R. Evid. 510(d)(5). The Fort Worth Court of Appeals in upholding the trial court held that the “clear language” of the 510 exception permitted the disclosure of the requested records. Id. at 295.

There have been other cases similar to Schattman involving allegations of alcohol abuse. See, e.g., Gustafson v. Chambers, 871 S.W.2d 938, 941 (Tex. App.–Houston [1st Dist.] Houston 1994, orig. proceeding). In Gustafson, another medical malpractice case involving addiction, plaintiff alleged that defendant’s abuse of intoxicants affected his judgment at the time he was treating Ms. Gustafson. Id. Plaintiffs requested in discovery information about mental health treatment sought for addiction issues and defendant objected. Id.

The trial court sustained defendant’s objections, and the plaintiff petitioned for a writ of mandamus. Id. at 941-942. The Houston First Court of Appeals pointed out that “one of the primary issues in the lawsuit is whether J.P. was impaired by intoxicant abuse during the time he treated Ms. Gustafson.” Id. at 942. Citing this reason, Rule 510(d)(5), and Schattman, the Court held, “The clear language of the rule permits the plaintiffs in this case to discover the mental health records of J.P.” Id.

The Claim or Defense Exception is Properly Applied to Cases Concerning Child Custody

The 510 exception to mental health privilege have been routinely applied in child possession and access cases. In fact, the comments to Rule 510 state that the previous provision governing disclosures in SAPCRs was eliminated “not because there should be no exception to the privilege in suits affecting the parent-child relationship, but because the exception in such suits is property considered under subparagraph (d)(5), as construed in R.K. v. Ramirez.” See Comments, Tex. R. Evid. 510. Thus, the analysis for a child custody case should be the same R.K. test as for any other civil case.

For example, in Garza v. Garza, 217 S.W.3d 538 (Tex. App.–San Antonio 2006, no pet.) mother argued on appeal that the trial court erred in allowing the admission of her medical and mental health records because said records were privileged under Rule 510. Id. at 554. The San Antonio Court of Appeals agreed that the records were privileged, but pointed out that “these privileges are not absolute.” Id. The Court pointed out that mother's “medical condition relating to her personality and bipolar disorders was relevant to the issue of whether appointing her sole managing conservator was in her children's best interests.” Id. at 555. Therefore, according to the Court, the admission of the medical and mental health records was not error under the exceptions to Rules 510 and under R.K. v. Ramirez. Id.

Conclusion

Mental and physical health records are an extremely sensitive topic in Texas Family Code. The patient of course has a right to and expectation of privacy. Family Courts want to encourage honest and open treatment. On the flip side though, the court wants information needed to determine the best interest of the child. These two goals can come in conflict. It is critical that when arguing either side a lawyer understand the nuances and purpose of the rules found in HIPAA and the Texas Rules of Evidence.

Topics: Child Custody