Attorney General's Opinion
Attorney General, Richard Blumenthal
October 1, 1993
Albert J. Solnit, M.D.
Commissioner
Department of Mental Health
90 Washington Street
Hartford, Connecticut 06106
Dear Commissioner Solnit:
In your letter of March 16, 1993, you requested our opinion regarding the ability of the Department of Mental Health to obtain information on individuals who are receiving services from grantee agencies of the Department of Mental Health (DMH). Specifically, DMH seeks to require these grantee agencies to supply information regarding patients which is subject to the statutory psychiatric privilege set forth in Conn.Gen.Stat. § 52-146d et seq. Disclosure of patient information to DMH without prior patient consent would be a condition of reimbursement or funding of the grantee agency. We conclude that access to patient information subject to the psychiatric privilege can be secured without patient consent pursuant to the provisions of Conn.Gen.Stat. § 52-146h and pursuant to Conn.Gen.Stat. § 52-146f(3).
By statute, the Commissioner is involved in the establishment of community mental health services for the care and treatment of the mentally ill. See e.g., Conn.Gen.Stat. § 17a-466, § 17a-476, § 17a-478 to § 17a-484. In that role, the Commissioner contracts with various private and public entities to supply services to mentally ill persons in the community. In order to administer these contracts as well as to plan the development of such services, the Commissioner requires information regarding these agencies' clients to determine the extent, locus and recipients of services which are funded by DMH. Such information is necessary in order to coordinate services both at the individual patient level and at the community and regional level. In addition, since these grantee agencies are reimbursed based on the services they have agreed to provide to clients, administration and oversight of these contracts necessitate information reflecting the performance of the services as well as the identity of recipients of the services. In some instances, the information required by the Commissioner may be subject to the statutory psychiatric privilege.
The statutory psychiatric privilege protects from disclosure "all oral and written communications and records thereof relating to diagnosis or treatment of a patient's mental condition." Conn.Gen.Stat. § 52-146d(2). The privilege applies to such communications made between a patient or a member of the patient's family and a psychiatrist or a person working towards diagnostic or treatment objectives under the supervision of a psychiatrist. Id.1 Except as provided in the statutory exemptions, "no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation, or governmental agency without consent of the patient or his authorized representative." Conn.Gen.Stat. § 52-146e(a).2
One of the exceptions to the confidentiality provided under the privilege is that mental health facilities may transmit information and records without patient consent, if requested, to the Commissioner of Mental Health pursuant to Conn.Gen.Stat. § 52-146h. This provision states:
(a) Any mental health facility may transmit information and records, if requested, to the commissioner of mental health pursuant to his obligation under section 17a-451 to maintain ... the overall responsibility for the care and treatment of the mentally ill. The commissioner of mental health may collect and use the information and records for administration, planning or research....
(b) Identifiable data shall be removed from all information and records before the issuance from the mental health facility which prepared them, and a code, the key to which shall remain in the possession of the issuing facility and otherwise be available only to the commissioner of mental health for purposes of planning, administration or research, shall be the exclusive means of identifying patients. The key to the code shall not be available to any data banks in which the information is stored or to any other persons, corporations or agencies, private or governmental.
Conn.Gen.Stat. § 52-146h.
Under this provision, grantee agencies may supply patient information and records without violating the psychiatric privilege for the Commissioner's use in administration and planning of community mental health services.3 Information which can identify a patient that is requested by the Commissioner must be transmitted in a coded format, the key to which would be in the possession of only the grantee agency and the Commissioner.4
In addition to the foregoing exception to the requirement of patient consent prior to disclosure of psychiatric records, another applicable exception is set forth in Conn.Gen.Stat. § 52-146f(3). This provision states:
[T]he name, address and fees for psychiatric services to a patient may be disclosed to individuals or agencies involved in the collection of fees for such services. In cases where a dispute arises over the fees or claims or where additional information is needed to substantiate the fee or claim, the disclosure of further information shall be limited to the following: (A) That the person was in fact a patient; (B) the diagnosis; (C) the dates and duration of treatment; and (D) a general description of the treatment, which shall include evidence that a treatment plan exists and has been carried out and evidence to substantiate the necessity for admission and length of stay in a health care institution or facility.
Conn.Gen.Stat. § 52-146f(3).
Pursuant to this provision, the Commissioner may require the specific information delineated to "substantiate" the payment by DMH for services rendered by grantee agencies. Note that while the information subject to disclosure is more limited than that available under Conn.Gen.Stat. § 52-146h, the coding of information is not required under this provision.
Finally, it is noteworthy that whenever possible, voluntary patient consent to disclosure of information is the prudent method of securing disclosure of privileged communications and records.5
Very truly yours,
Richard Blumenthal
Attorney General
Henry A. Salton
Assistant Attorney General
RB:HAS
1 It is important to note that communications and records which do not involve either a psychiatrist or "a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment" are not subject to the privilege. Conn.Gen.Stat. § 52-146d(2). Thus, there may be some grantee agencies whose records are not subject the privilege's restrictions.
2 Communications or records "identify a patient" if they "contain (A) names or other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to, or codes or numbers which are in general use outside of the mental health facility which prepared the communications and records." Conn.Gen.Stat. § 52-146d(4).
3 "Administration" is defined as the "management of affairs" and "[t]he activity of a sovereign state in the exercise of its powers or duties." The American Heritage Dictionary (2nd College Ed.1982).
4 Note that disclosure of information pursuant to this statute would allow disclosure by grantee agencies to the Commissioner. It does not allow disclosure to other entities.
5 It is important to note that the exceptions to the confidentiality provided to psychiatric records do not apply to disclosure of records of substance abuse treatment programs which is governed by the specific provisions of federal law. See 42 CFR Part 2.