Recently, it has been reported that the Cali. Medical Board has sued the San Diego School District to order the releasae of vaccine medical exemptions records in its possession.
Here is an article explaining it, which provides a telling statement from the School District. See if you can spot it and what you think it means.
So, what’s going on?
Less than meets the eye.
First, a point of legal clarification. School records are not HIPAA protected, rather they are protected by another federal statute FERPA. So, don’t bother complaining that your child’s school records are federally protected by HIPAA, because they are not, as HIPAA only protects medical records, and once the doctor’s medical exemption is tendered to the school, the federal protection changes from HIPAA to FERPA. Got it?
Next important point (and the most important point). California citizens have a state constitutional privacy right to have their medical records remain private. That privacy right was extended to include medical records in a case in the late 1970’s. However, in the last dozen years or so, that right has been eroded by the medical board’s successful efforts to obtain patient medical records over patient objection.
This has happened by way of the medical board filing special proceedings/motions to compel compliance with investigative subpoenas. These special proceedings are not full lawsuits. There is no discovery. There is no evidentiary hearing (technically there could be but they are never granted). There is just some paperwork submitted to a “Law and Motion Judge”. These judges are very, very busy. There are usually 10 to 20 motions on the judge’s docket on the day these motions are heard. The day before the so called “hearing,” a “tentative decision” is issued, which gives the result, and explains the reasoning. If the losing party wants to tell the judge why he/she is wrong, he or she can attend the “hearing.” Good luck with that.
The standard for granting these motions to compel compliance with the board’s investigative subpoena is “good cause.” It is established by the board submitting a declaration (affidavit) from a doctor who says that she has reviewed what ever information she has reviewed and it seems like the doctor has violated the standard of care for whatever reason (in these cases, for giving a ME which is not in compliance with ACIP guidelines), but the board needs the patient medical records to be sure. It’s very hard to counter argue. It’s not the judge’s job to weigh medical opinions, even if you put in a counter opinion. Bottom line, now that the board has figured out what it has to say to get the medical records, the courts just grant the board’s request and issues the requested court order.
I am aware of three such motions against physicians issuing ME’s. I was the attorney on one of them. All three resulted in an order forcing the doctor to turn over the records. One case went up on appeal (not my case, as I wouldn’t appeal this kind of special proceeding with the limited record) and that resulted in an appellate court saying some very harsh words about the doctor, and now there is negative appellate court authority on the issue which is a bad thing.
OK so what’s the deal with the action against the San Diego School District Thing?
As I said, the state constitutional privacy right belongs to the patient/family. It does not belong to the doctor or possessor of the information like the school district. So, while the doctor has been given the legal standing to assert the patient’s rights, arguably, neither the physician nor the school district have the authority to waive these rights, that is to say, produce the records without a court order.
So, out an abundance of caution, the San Diego school district is refusing to comply with the board subpoena absent a court order to do so. A court order will give the school district perfect and absolute protection from irate parents who object to the release of their child’s school records.
This is exactly what happened in NorCal about a year ago when the board filed motions to compel a school district and a HMO to produce FERPA and HIPAA protected records. They basically told the court that they needed a court order to produce the records. And in those two cases, they were the entities that filed the complaints. So, I think it’s fair to assume that the reasons the student records are being subpoenaed from the San Diego school district is because someone (probably in the nurse’s offices) filed complaints with the board about permanent medical exemptions for seemingly healthy (or very healthy) students. I cannot think of anyone else who would have access to this school information, other than the school itself.
So, what does not mean that the medical board has sued the San Diego School District for the release of medical exemption records?
It means that this is how the game is played. The board is giving the school district the legal cover to provide the records that the school district wants the board to have, so the board can investigate the complaints filed by the school district, and get these kids vaccinated or removed from the school district. And that’s all it means.
Rick Jaffe, Esq.