Mental and Physical Health Records in Child Custody Cases
Both physical and mental health records are frequently relevant to family law cases. Often, one lawyer will request the production of an opposing spouse’s records concerning drug and alcohol treatment, therapy, and psychiatric treatment. Most people assume that their records are protected by HIPAA. While this is generally the case, there are many exceptions. Both HIPAA and the Texas Rules of Evidence contain nuances that experienced lawyers can leverage to gain an advantage for their clients.
What is HIPAA?
HIPAA stands for Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The provisions of HIPAA apply only to the following persons: “a health plan,” a “health care clearinghouse” and “a health care provider.” Pursuant to HIPAA, the federal Department of Health and Human Services enacted privacy standards for individual’s medical information. The stated purposes for the regulations included the control of “inappropriate use” of “protected health information.” Under the Privacy Rules, a health care provider may not disclose “protected health information” (PHI) except as allowed by the Rules.
Release of Documents Pursuant to a Subpoena
Although cited often in support of assertions of privilege, HIPAA regulations do not uniformly prohibit the release of PHI by mental and physical health providers. Furthermore, these 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.”
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. In order to constitute a substance abuse record, the purpose of the recorded treatment must primarily concern substance abuse. The relevant 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 portions of the Texas Family Code concerning health records are extremely complex. Every patient has a right to privacy and family courts encourage honesty and open treatment. However, a court will likely weigh the value of privacy against that of gathering information needed to protect the best interests of a child. If physical or mental health records may be at issue in your divorce, it is essential that you hire an experienced attorney to advocate for your rights.