When a private doctor performs a child medical evaluation for DSS in a suspected abuse case, are the doctor's records confidential, or do they become public once they leave DSS custody?

Plain-English summary

A physician leading Wake Medical Center's Child Sexual Abuse Team asked whether records retained by physicians in the Child Medical Evaluation (CME) Program remained confidential when a referred child was not in DSS protective custody. The AG concluded that they did. The question concerned evaluations performed by participating physicians at a county department of social services' request during a protective services investigation.

The opinion distinguished G.S. § 7A-675, which concerned juveniles in DSS custody or court placement, from G.S. § 7A-544. The latter required DSS to hold all information received in a protective services investigation "in strictest confidence." Administrative rules required confidential protective services case records and limited outside examination of them. State DSS policy carried those rules into its Family Services Manual.

The AG also reviewed the CME program contracts. The DSS contract with UNC's School of Medicine required compliance with applicable law and limited use or disclosure of personally identifiable information to purposes directly connected with administering the program. Approved subcontracts were subject to its conditions. A participating physician's agreement required evaluations under Child Examiner Guidelines, which directed physicians to send reports to the CME Program and barred publishing or using medical data outside service delivery.

The AG concluded that CME information did not lose confidentiality simply because the evaluating physician retained it. The opinion did not decide how a physician should respond to a subpoena, whether a separate confidentiality privilege applied, or whether a report could be shared with another treating clinician.

Currency note

This opinion applied the 1993 juvenile statutes, administrative rules, DSS policy, and CME contracts. Check their current versions before deciding how to handle records today.

Background and statutory framework

The opinion's statutory starting point was G.S. § 7A-544's protection for information received by DSS in a protective services investigation. The cited rules required the county director to keep the case record confidential and restricted examination by outsiders, with stated exceptions. The AG then explained how DSS policy and program contracts applied confidentiality requirements to participating physicians.

The conclusion was limited to information forming part of a CME performed at a county DSS request in an investigation under G.S. § 7A-544. It did not announce a general rule for every medical record a physician might hold.

Common questions

Does confidentiality depend on DSS having protective custody of the child?

The AG said no for the CME records at issue. G.S. § 7A-544 protected information in a DSS protective services investigation, and the program requirements extended to the participating physician's evaluation.

Did the opinion prescribe a response to a subpoena for CME records?

No. It concluded that the records remained confidential in the physician's hands but did not discuss subpoenas, privileges, or a production procedure.

Did it authorize sharing the report with other treating clinicians?

No such question was answered. The opinion described a contract limiting use or disclosure of personally identifiable information to purposes directly connected with administering the program and guidelines requiring reports to be sent to the CME Program.

Did it decide whether a deidentified case study could be published?

No. It reported a guideline that participating physicians would not publish or use medical data outside the delivery of services. It did not address deidentification or permission for a case study.

Citations

• N.C.G.S. § 7A-544 (DSS protective services investigation; "strictest confidence")
• N.C.G.S. § 7A-675 (juveniles in protective custody or under court placement; companion confidentiality)
• 10 NCAC 41I .0312(a) (protective services case records kept confidential)
• 10 NCAC 41I .0313(a) (limits on outside access to protective services case records)
• State Division of Social Services Family Services Manual, Vol. I, ch. VIII, § 1428
• Prior NC AG opinion, Henry T. Rosser (Sept. 14, 1982) (confidentiality of CME records)
• Contract between DSS and UNC-Chapel Hill School of Medicine for the CME Program
• Letter of Agreement and Child Examiner Guidelines between UNC and participating physicians

Source

• Landing page: https://ncdoj.gov/opinions/confidentiality-of-child-medical-evaluation-records/

Original opinion text

October 19, 1993

V. Denise Everett, M.D. Director Child Sexual Abuse Team Wake Medical Center

P. O. Box 14465 Raleigh, NC 27620-4465

Re: Advisory Opinion (Confidentiality of Child Medical Evaluation Records)

Dear Dr. Everett:

You have asked about the confidentiality of the medical records retained by physicians participating in the Child Medical Evaluation (CME) Program. In particular, you are concerned that the confidential nature of these records may be affected when a referred juvenile is not in the protective custody of the Department of Social Services. After reviewing your concern in light of our previous opinion pertaining to the confidentiality of CME records written on 14 September 1982 by Mr. Henry T. Rosser, other pertinent statutes, administrative rules, and the contracts pertaining to the CME Program, we conclude that these records remain confidential.

While N.C.G.S. § 7A-675 applies to protective services cases of juveniles under the protective custody of the Department of Social Services or under placement by the court, N.C.G.S. § 7A-544 contains a blanket provision which provides that in a protective services investigation "all information received by a Department of Social Services shall be held in strictest confidence by the Department". In addition, several administrative rules promulgated by the Social Services Commission to implement these statutes and which have the force and effect of law provide, in pertinent part, as follows:

"(a) The county director shall maintain a separate case record or separate section in a case record on a child for whom protective services are initiated or who is placed in the custody of the county department of social services by the court. The case record documentation shall be kept confidential." 10 NCAC 41I .0312(a) (emphasis added). "(a) The county director shall not allow anyone outside of the county department of social services other than state and federal agency personnel carrying out their lawful responsibilities for program audit and review to examine a protective services case record as described in Rule .0312 of this Subchapter unless: (1) the judge orders the county director to allow examination; or (2) the child or the child's attorney requests to examine his own record. 10 NCAC 41I .0313(a) (emphasis added).

These provisions regarding the confidentiality of protective services records are then carried forward into policy by the State Division of Social Services (DSS) as set forth in its Family Services Manual, Vol. I, Chapter VIII, Section 1428.

The above-referenced statutes, administrative rules, and DSS policy are specifically applicable to the CME Program through the contract which exists between the Division of Social Services and the University of North Carolina at Chapel Hill, School of Medicine. This contract pertains to the administration of the CME Program and the recruitment of local physicians to provide medical evaluations in protective services cases. It provides, in pertinent part, that the "Provider" (Department of Pediatrics) will comply with all laws, regulations, policies and standards applicable to the program under contract, that the use or disclosure of personally identifiable information obtained in connection with the program is restricted to purposes directly connected with the administration of the service program, and that any approved subcontract shall be subject to all conditions of the contract. These above-referenced provisions, in turn, are applicable to the individual medical evaluations performed by a local physician participating in the CME Program. In a Letter of Agreement with the Department of Pediatrics, a local physician agrees to perform medical evaluations of abused and neglected children at the request of a local department of social services and in accordance with Child Examiner Guidelines. These guidelines specifically provide that the physician shall send all the reports to the CME Program, that the evaluation, the submitting of the required reports, the taking of a photograph(s), and the arrangement of and participation in a case conference shall be performed according to program guidelines, that the physician will not publish or use medical data for purposes other than the delivery of services, and that the agreement may be monitored for compliance with state program and fiscal policies by state and federal officials.

All of the above clearly leads to the conclusion that any information that is part of a Child Medical Evaluation performed by a physician participating in the CME Program at the request of a county department of social services which is conducting an investigation under N.C.G.S. § 7A-544 is confidential. Paraphrasing from our previous opinion of 14 September 1982, to conclude that the reports are confidential in the hands of the department of social services, but not in the hands of the attending physician, would utterly defeat the purposes of N.C.G.S. § 7A-544, the above-referenced administrative rules, State DSS policy, and the contracts surrounding the CME Program.

If you have any questions concerning this opinion, or if ever I can be of further assistance, please feel free to call on me.

Ann Reed Senior Deputy Attorney General

David Gordon Assistant Attorney General