Domestic Diversions

A parent of a child has a right to access to, and copies of, his or her child’s medical records under most circumstances.

1. Under Michigan’s new Medical Records Access Act(2004 PA 47), a parent can request and obtain copies of his or her child’s medical records (other than pharmacology and mental health records; and except for records of procedures or services for which parental consent was not required, and records obtained under a confidentiality agreement) upon payment of the required fees, regardless of whether a civil action (e.g., divorce, negligence, etc) is pending and without need to resort to discovery rules. The Act does not apply to pharmacists, psychiatrists, psychologists, social workers, or professional counselors who provide only mental health services.

2. In situations where the Medical Records Access Act applies, the medical records custodian may charge a fee for supplying the information that is not more than the amounts specified in the Act: (1) an initial fee of $20.00 per request (no initial fee may be charged to a patient); (2) for paper copies, $1.00 per page for the first 20 pages, $.50 per page for pages 21 through 50, and $.25 per page for pages 51 and over; (3) the actual cost of producing a duplicate of a nonpaper record; (4) postage and shipping costs; and (5) the actual cost of retrieving records more than seven years old that are not maintained or accessible on site. However, the custodian of the records shall waive all fees for the first set of records requested by a medically indigent patient. Under the Medical Records Access Act the medical records custodian must respond within 30 days to a written request that is dated and signed not more than 60 days before being submitted to the custodian or, if the medical record is not maintained on site, not more than 60 days after receipt of the request. In addition to making the records available or providing a copy, the provider may respond to the request by stating that the records cannot be found or do not exist, by providing the name and address (if known) of the records custodian, or by denying a request for a medical record obtained from another health care provider under a confidentiality agreement.

3. A parent who has joint legal custody of a child, even without physical custody, may consent to the release of and have access to the child’s mental health records under
MCL 330.1748(6), unless in the written judgment of the holder of the records the disclosure would be detrimental to the child or others. See Opinion of Attorney General (OAG) OAG #7149. That statute does not apply to private providers who do not offer residential services, and who are not under contract with a public health agency. A parent without legal custody who requests copies of the mental health care records of his or her child from the other parent could be met with a claim of privilege, and denied access. This Attorney General Opinion, and the statute, apply whether or not a civil action is pending, but by it’s reference to court orders, the Opinion would seem most applicable to postjudgment factual situations. This Opinion clarified an earlier, ambiguous opinion issued on 10-16-01 (OAG #7092), which determined that “Section 10 of the Child Custody Act of 1970 does not require disclosure of a minor’s mental health services records to the child’s noncustodial parent without the consent of the custodial parent required by section 748(6) of the Mental Health Code.”

4. The confidentiality (and access) applicable to the mental health records of a private provider who does not offer residential services, and who is not under contract with a public health agency, is controlled by the provisions of various privilege and confidentiality statutes concerning the provider. The list of statutes includes: MCL 333.6111 (treatment for alcohol or substance abuse); MCL 333.18117 (licensed professional counselor); MCL 333.18237 (psychologist-patient); MCL 333.18513 (social worker); MCL 600.2157 (physician-patient); and MCL 600.2157a (sexual assault or domestic violence counsel).