When a Mississippi regional mental health commission is decertified and dissolves, who handles the disposition of patient medical records?
Plain-English summary
The Region 11 Mental Health Commission, which served counties in southwest Mississippi, was decertified by the Mississippi State Department of Mental Health. The counties that used to be in Region 11 have joined other regional mental health commissions to keep mental health services available. Region 11 itself now provides no services and has no facilities, employees, income, or funding. But it still has medical records of its former patients, and neither of the new regions covering that territory will take them.
Commissioner Wilkerson asked: what do we do with the records? Specifically, do they fall under the hospital records statutes in §§ 41-9-61 et seq., with the State Department of Health as the licensing agency that handles preservation and final disposition?
The AG said no. Regional mental health commissions are not "hospitals" as defined in § 41-9-3(a), so the hospital records statutes do not apply. Instead, the State Board of Mental Health has authority over regional mental health commissions and their records. Section 41-4-7(j) gives the State Board of Mental Health power to set standards for "the admission, diagnosis, care, treatment, transfer of patients and their records" at facilities within its regulatory reach.
The practical answer for Region 11: contact the State Board of Mental Health and follow its guidance. The Board has rulemaking authority over regional commissions; it can specify how records are stored, retained, accessed by patients, and ultimately disposed of when a commission winds up.
The AG also flagged § 41-21-102(7), which protects patient access to medical records: "Unless disclosure is determined to be detrimental to the physical or mental health of the patient, and unless notation to that effect is made in the patient's record, a patient has the right of access to his medical records." That access right runs regardless of who holds the records, so even after Region 11 dissolves, former patients should still be able to get their records (subject to the detrimental-disclosure exception).
What this means for you
If you are dissolving a Mississippi regional mental health commission
Three steps:
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Contact the State Board of Mental Health for guidance on records retention, transfer, storage, and final disposition. The Board has the regulatory authority and likely has experience or a procedure for similar wind-downs.
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Maintain patient access during the transition. Section 41-21-102(7) gives patients access rights. Set up a process for former patients (or their authorized representatives) to obtain their records during and after the wind-down. The State Board's guidance should address this.
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Consider HIPAA and other federal law. The AG opinion is state-law only. Federal HIPAA rules separately govern the privacy and security of mental health records. Records cannot just be discarded; HIPAA-compliant destruction procedures apply.
If you were a patient of Region 11 (or another decertified regional commission)
Your records still exist somewhere. Section 41-21-102(7) protects your right to access them. Contact the Mississippi Department of Mental Health for guidance on where the records are now located and how to request them. Bring identification and any records you already have to help the records custodian locate your file.
If you are at the State Board of Mental Health
This opinion confirms your authority over regional mental health commission records, including disposition when a commission dissolves. If you do not have a written policy or procedure for record handling during a commission wind-down, this is a good time to develop one. The 2024 amendment to § 41-19-33 (H.B. 1640) reorganized regional commission authority, and the records issue may come up more often as regions consolidate.
If you are a regional mental health commission attorney
Build records-disposition planning into your routine compliance and into any planning for consolidations or wind-downs. The framework runs through the State Board of Mental Health, not the Department of Health, and not the hospital records statutes. Keep the State Board notified of any changes in service delivery that affect records.
If you are a county supervisor whose county was in a decertified region
The records issue can become a county responsibility if the State Board's guidance points that way, or it may stay with the dissolving regional commission's wind-down arrangements. Coordinate with the State Board, the new region serving your county, and the dissolving commission so the records do not fall through the cracks.
Common questions
Q: Why aren't regional mental health commissions "hospitals" under the records statutes?
A: Section 41-9-3(a) defines "hospital" for records purposes. The AG read it to exclude regional mental health commissions, which are political subdivisions established under § 41-19-33 to administer regional mental health programs. Regional commissions may operate clinics, outpatient programs, and similar facilities, but the AG concluded they are not "hospitals" within the meaning of the records statutes.
Q: What does HIPAA require for records destruction?
A: HIPAA requires that protected health information be disposed of in a way that prevents reasonably foreseeable risks of unauthorized disclosure. Common methods include shredding, secure incineration, or wiping/destroying electronic media. The opinion does not address HIPAA, but compliance is required regardless of state law.
Q: How long must mental health records be retained before disposition?
A: Mississippi Board of Mental Health rules and federal regulations both have retention requirements. The opinion does not specify a retention period; the answer depends on the type of record and applicable rules. Expect retention requirements measured in years, not months.
Q: Who pays for records storage and access during a wind-down?
A: That depends on how the State Board structures the wind-down. The dissolving commission's remaining assets, the new regions absorbing the territory, the counties involved, or the state may share responsibility. The AG opinion does not allocate the cost.
Q: Can a patient obtain records from a dissolved regional commission?
A: Yes, subject to the detrimental-disclosure exception in § 41-21-102(7). The records have to exist somewhere; the patient's access right does not evaporate just because the commission dissolved. The State Board of Mental Health is the practical contact point for finding where the records are.
Q: What about records of patients who were dual diagnoses or had treatment at multiple regions?
A: Records would generally be held by whichever facility provided the treatment. A patient who was at Region 11 for one period and another region for another period would have separate records at each. The dissolving commission's records contain its own treatment history.
Q: Does this opinion affect private mental health providers?
A: No. The opinion is about regional mental health commissions, which are political subdivisions. Private mental health providers (private practices, hospital psychiatric units) operate under different records frameworks (HIPAA, state licensing, professional rules).
Background and statutory framework
Regional mental health commissions are established under § 41-19-33 to "administer mental health/intellectual disability programs certified and required by the State Board of Mental Health and as specified in Section 41-4-1(2)."
Section 41-4-1(2) gives the State Board of Mental Health authority to ensure mental health services "are provided throughout the state through the regional mental health/intellectual disability commissions and centers or through other providers."
Section 41-4-7 enumerates the State Board's powers and duties, including:
(i) To certify, coordinate and establish minimum standards and establish minimum required services, as specified in Section 41-4-1(2), for regional mental health and intellectual disability commissions . . . ; and
(j) To establish and promulgate reasonable minimum standards for the construction and operation of state and all Department of Mental Health certified facilities, including reasonable minimum standards for the admission, diagnosis, care, treatment, transfer of patients and their records, and also including reasonable minimum standards for providing day care, outpatient care, emergency care, inpatient care and follow-up care, when such care is provided for persons with mental or emotional illness, an intellectual disability, alcoholism, drug misuse and developmental disabilities . . . .
The hospital records statutes (§§ 41-9-61 et seq.) impose requirements on facilities that meet the definition of "hospital" in § 41-9-3(a). Regional mental health commissions do not meet that definition, so the hospital records framework does not govern.
Section 41-21-102(7) is the patient access right: patients have a right to their records unless disclosure would be detrimental to their physical or mental health (with notation in the record to that effect).
Citations
- Miss. Code Ann. § 41-19-33
- Miss. Code Ann. § 41-19-33(1) (amended by 2024 Miss. Laws H.B. 1640)
- Miss. Code Ann. § 41-4-1(2)
- Miss. Code Ann. § 41-4-7
- Miss. Code Ann. § 41-9-3(a)
- Miss. Code Ann. § 41-9-61(b), (e)
- Miss. Code Ann. § 41-9-63
- Miss. Code Ann. § 41-9-69
- Miss. Code Ann. § 41-9-79
- Miss. Code Ann. § 41-21-102(7)
- Miss. Code Ann. § 7-5-25
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/08/D.Wilkerson-August-12-2024-Disposition-of-Medical-Records.pdf
Original opinion text
August 12, 2024
David N. Wilkerson
Commissioner, Region 11 Mental Health Commission
Post Office Box 1284
Woodville, Mississippi 39669
Re: Disposition of Medical Records
Dear Commissioner Wilkerson:
The Office of the Attorney General has received your request for an official opinion.
Background
You provide the following in your request: the Region 11 Mental Health Commission ("Region 11") is a political subdivision that was established pursuant to Mississippi Code Annotated Section 41-19-33. Region 11 has recently been decertified by the Mississippi State Department of Mental Health, and the counties forming Region 11 have since joined new regions to cover their mental health services. Region 11 currently provides no services and has no facilities, employees, income, or funding. Region 11 is unsure how to proceed with its medical records. Neither of the regions that now service the geographic area of the former Region 11 are willing to take possession of the medical records of the former Region 11 patients.
Questions Presented
1. Since Region 11 was a place devoted to the treatment and care of those suffering from mental infirmity, do its medical histories, records, reports, summaries, diagnoses and prognoses, records of treatment and medication ordered and given, notes, entries, and other written graphic data fall under the definition of "hospital records" in Mississippi Code Annotated Section 41-9-61(b)?
2. If so, is it your opinion that the medical records would fall under the purview of Section 41-9-79 as to their final disposition?
3. If so, is it your opinion that the State Department of Health is the "licensing agency" responsible to store, retain, retire, and provide access to the medical records, as defined in Section 41-9-61(e)?
4. If the answer is no to any of these questions, my commission desires an opinion as to what the commission is lawfully able to do with its medical records when Region 11 dissolves.
Brief Response
1. According to your request, Region 11 is a regional mental health commission and as such, its medical records are not hospital records as defined in Section 41-9-61(b) but instead are governed by the applicable provisions of Sections 41-19-31, et seq., for regional mental health commissions.
2. This question is rendered moot by Response 1.
3. This question is rendered moot by Response 1.
4. As a regional mental health commission, Region 11 falls under the purview of the State Board of Mental Health and should follow its guidance with respect to the disposition of medical records.
Applicable Law and Discussion
As an initial matter, opinions of this office are limited to prospective questions of state law and not federal law. Miss. Code Ann. § 7-5-25. Your questions may implicate federal laws or regulations. However, this opinion does not consider those implications as they are outside the scope of an official Attorney General's Opinion.
Regional mental health commissions are established pursuant to Section 41-19-33 and have the duty "to administer mental health/intellectual disability programs certified and required by the State Board of Mental Health and as specified in Section 41-4-1(2)." Miss. Code Ann. § 41-19-33(1) (amended by 2024 Miss. Laws H.B. 1640). Section 41-4-1(2) authorizes the State Board of Mental Health "to promulgate regulations to ensure that core adult mental health services, child mental health services, intellectual/developmental disability services, and substance abuse prevention and treatment/rehabilitation services are provided throughout the state through the regional mental health/intellectual disability commissions and centers or through other providers."
Pursuant to Section 41-4-7, the State Board of Mental Health has the power and duty: "(i) To certify, coordinate and establish minimum standards and establish minimum required services, as specified in Section 41-4-1(2), for regional mental health and intellectual disability commissions . . ." and:
(j) To establish and promulgate reasonable minimum standards for the construction and operation of state and all Department of Mental Health certified facilities, including reasonable minimum standards for the admission, diagnosis, care, treatment, transfer of patients and their records, and also including reasonable minimum standards for providing day care, outpatient care, emergency care, inpatient care and follow-up care, when such care is provided for persons with mental or emotional illness, an intellectual disability, alcoholism, drug misuse and developmental disabilities . . . .
In your request, you reference Sections 41-9-61, et seq., which govern medical records for hospitals. Pursuant to Section 41-9-63, these hospitals have the duty to prepare and maintain hospital records in accordance with regulations adopted by the Department of Health. As you point out in your request, the "hospitals" referenced in Section 41-9-61 are broadly defined in Section 41-9-3(a). However, it is the opinion of this office that the records of regional mental health commissions fall under the purview of the State Board of Mental Health pursuant to Section 41-4-7(j) and are not "hospital records" as defined in Section 41-9-3(a). Thus, Region 11 should follow the guidance of the State Board of Mental Health with respect to the disposition of its patient's medical records and any other law(s) pertaining to an individual's right to their medical records and information. See Miss. Code Ann. § 41-21-102(7) ("Unless disclosure is determined to be detrimental to the physical or mental health of the patient, and unless notation to that effect is made in the patient's record, a patient has the right of access to his medical records."). Sections 41-9-69 and 41-9-79, which provide for the preservation of hospital records and the disposition of records upon a hospital's closing, do not apply to regional mental health commissions.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General