Military Law Newsletter - Spring 2012
Getting Military Health and Education Records
by Mark E. Sullivan*
Mr. Sullivan is a retired Army Reserve JAG colonel and a board-certified specialist in family law who practices in Raleigh, NC. He is the author of The Military Divorce Handbook (American Bar Association, 2nd Ed., 2011), from which portions of this article are adapted. He serves as a consultant to attorneys nationwide on military divorce and pension division issues.
Obtaining Documents from the Government
When requesting government records, remember that personnel records are governed by the Privacy Act of 1974. Be prepared to jump over some hurdles to get what you want, and don’t expect results overnight. When requesting personnel records, you will usually need to obtain consent of the individual concerned or else an order from a court of competent jurisdiction. This order could be a subpoena, but it still must be signed by a judge, and it is recommended that the records be returnable to the court.
An example that the author used in a custody case (with fictitious names and other information) is found at Attachment A. This is a motion to obtain Department of the Navy disciplinary and investigative records, along with a subpoena and a letter to the Office of General Counsel, Department of the Navy. All these documents were prepared pursuant to the regulations cited therein and with unofficial guidance by a command judge advocate at the installation involved, who knew the contents of the records and was willing to point out what needed to be done to obtain their release. Despite all these precautions, the Navy denied the request and directed the author to federal court if he wanted to challenge the ruling! Based on this experience, the author cautions that one should not assume that every document request, even when done properly, will result in compliance; some cases are just too sensitive for release of their documents to a court in a divorce case without the intervention of a federal district court judge, which most clients cannot afford.
The Department of Defense has established its own regulations, pursuant to the Act and to DoD Directive 5400.11, and this privacy publication is set out in “Department of Defense Privacy Program,” DoD 5400.11-R (May 14, 2007). You can find the directives, publications, administrative instructions, memoranda, and forms you need from the “DoD Issuances” website, located at http://www.dtic.mil/whs/directives/. As an agency of DoD, the Defense Finance and Accounting Service is bound by these rules. The specific rules that DFAS has promulgated regarding release of information are found at DoD Financial Management Regulation, Volume 7B, Chapter 18, “Release of Information,” which contains specific references to the regulations of each of the DoD branches of service. The DoDFMR can be found at http://comptroller.defense.gov/fmr. Rules for the Coast Guard, an agency of the Department of Homeland Security, are found at the CG-61 Reference Guide, published by the USCG Office of Information Management. Go to http://www.uscg.mil and type “CG-61 Reference Guide” into the SEARCH window. Extensive information about release of information from the Coast Guard may be found at the USCG’s Freedom of Information & Privacy Act website located at http://www.uscg.mil/foia.
In addition to income documents, such as Retiree Account Statements and Leave and Earnings Statements, attorneys often need to see the discharge form of servicemembers to determine years of creditable service. The National Personnel Records Center (NPRC) has provided the following website for veterans to gain access to their DD-214s online: http://www.archives.gov/veterans. Military veterans and the next of kin of deceased former military members may now use a new online military personnel records system to request documents. Other individuals with a need for documents must still complete the Standard Form 180, which can be downloaded from the online website. Because the requester will be asked to supply all information essential for NPRC to process the request, delays that normally occur when NPRC has to ask veterans for additional information will be minimized. The new web-based application was designed to provide better service on these requests by eliminating the records center’s mailroom processing time. When requesting government records, remember that personnel records are governed by the Privacy Act. Be prepared to jump over some hurdles to get what you want, and don’t expect results overnight. When requesting personnel records, you will usually need to obtain consent of the individual concerned or else an order from a court of competent jurisdiction. This order could be a subpoena, but it still must be signed by a judge, and it is recommended that the records be returnable to the court.
Medical and School Records
In many domestic cases involving one or both parents who are in the armed forces, it may be necessary to obtain school and medical records of the children involved. Far from being a minefield, as most civilian practitioners suspect, the procedures for access to military educational and health records are simple and straightforward.
Obtaining Health Records
Obtaining health records sometimes is necessary in a custody case. There is nothing unique about obtaining medical information from a military medical treatment facility (MTF), as opposed to a civilian facility; both are governed by HIPAA when the disclosure is voluntary. The primary legal and regulatory references pertaining to the release of medical information are the following:
1. Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. §§ 1320d–1320d-8 (1996);
2. DoD Reg. 6025.18-R, DoD Health Information Privacy Regulation and DoD Directive 5405.2; and
3. AR (Army Regulation) 40-400, Patient Administration, AR 40-66, Medical Record Administration and Health Care Administration, and AR 27-40, Litigation.
The references in #3 above are for cases involving U.S. Army records.
Perry Wadsworth, a hospital attorney for Womack Army Medical Center at Fort Bragg, North Carolina, and an Army Reserve JAG Lieutenant Colonel,1 describes the records access issues as follows:
The old “Privacy Act versus FOIA” analysis used to be one of our standards for determining release of medical information, but HIPAA is now the most controlling Federal legal authority. The law was not written for the military per se; this has caused some confusion in its application, particularly because military functions and command authority are fairly broad-based in comparison to civilian institutions. One key distinction between the Privacy Act and HIPAA analyses is that health information survives the death of the patient. The protections afforded by the Privacy Act for information typically do not survive the death of the subject.
Requesting records from a military treatment facility (MTF) can be both easy and hard. The request is easy, but getting the records is sometimes hard. The spectrum, from easy to hard, is summarized as follows:
1. Easy. If the patient is requesting the records himself or completes a HIPAA release form giving authority to someone else to get the records, then the request is straightforward. The MTF will release copies of the records in the normal course of business. This is the preferred method. If an attorney is representing a client whose records are needed, then he can simply have the client complete the appropriate release form with the HIPAA language. The attorney then mails the request and release form to “Medical Correspondence, Patient Administration Division, ___MTF.” If the case involves a tort action, it may behoove the attorney to state the purpose of the request, such as the case “involves a motor vehicle accident,” or the case “involves a potential federal tort claim.” If the government has an interest in the case, whether it is the opportunity to recover money for the treatment it provided or it is likely to be accused of a tort, then the case can flow more smoothly through a forthright request. If you have points of contact in the JAG claims office, they can usually assist you in getting the records in these cases because they have an interest in obtaining the records as well.2
2. Moderately Easy. When litigation is involved and the judge signs an order or a subpoena for the release of records, the release process is relatively easy. Attorneys for the patient or party opponent often make it difficult by not getting a judge’s signature on the subpoena or order. They frequently issue subpoenas in their own names. This makes it more difficult and delays the whole process, because the MTF will contact its servicing JAG office, and the request for records will be denied. Private attorneys do not have subpoena powers over federally maintained records. The other factor that most commonly causes a denial or delay of the release is the failure to make a timely request. An Army facility needs to get the judge’s order or subpoena at least 14 days in advance of the date the materials are due. AR 27-40 details this from the Army’s perspective.
3. Hard. Whether litigation is involved or not, when there is no judge’s order and no release authorization signed by a proper representative, the analysis becomes more nuanced. We then have to look to exceptions under HIPAA and implementing agency regulations for release of medical information. Child custody disputes seem to bring out the worst case scenarios. Other common examples include criminal investigations or social service involvement (e.g., child abuse) or command-directed mental health evaluations. The main reason these types of cases can be more complicated is because often there is one party who does not want the records released; yet, the requesting party argues that some other interest is more compelling than the individual’s right to privacy, such as the best interest of a child, a government investigation, or the need for justice.3 An MTF may choose to honor the request, but if legal grounds exist to release PHI (Protected Health Information), the requestor’s desire to restrict the release of his health information is not ultimately dispositive.
4. The constraints on release of medical information also apply to conversations with or testimony of health care providers, not just the release of medical records. Some attorneys would like to get information directly from the physicians as a back-door approach to avoid requesting the records. Unfortunately, this can backfire on the attorneys. If or when the physician mentions it to his legal counsel (the JAG officer or federal attorney representing the MTF), he or she will be reminded of the rules of release and may be hesitant to cooperate in the future. AR 27-40 provides a great deal of leeway in allowing a military command (through its attorney) to determine whether a physician can provide testimony and, if so, what the limits of that testimony will be. Overall, it is better for attorneys and patients to be candid and honest about their intentions in a case. Most of them are, but there are exceptions. It leaves a bad taste in one’s mouth and decreases the spirit of cooperation that might otherwise prevail. For example, I’ve seen doctors who were willing to bend over backwards just a few days before their deployment or change of duty station or discharge from service to provide testimony or talk to an attorney about the patient - even if they had not received timely notice. This is because they cared about their patients and the patients’ attorneys were fully honest about the type of testimony they were seeking. If the providers had felt they were being tricked or misled by the patient or his/her attorney, then they would not have assisted in the legal aspects of the case. There are also patients who doggedly pursued their doctors to take sides in custody disputes or domestic cases. Rather than asking the doctor to help in providing factual information to assist in the determination of the child’s best interest, these patients only succeeded in killing any interest that the doctor had to help out. In such situations, a doctor may use any excuse available, including technical regulatory excuses, to avoid testifying.
5. Note that some medical information related to children may not be protected by HIPAA if it is in the school system records. The release of this information is covered under The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99.).4
6. It is helpful to have a copy of 32 C.F.R. §§ 516.40–46 for information on Army litigation policies regarding the release of information. Briefly summarized, this regulation provides as follows:
a. Except as provided in the regulation, Department of the Army (DA) personnel will not disclose official information in response to subpoenas, court orders, or requests.
b. The appropriate legal authority (e.g., staff judge advocate or hospital legal advisor) must approve in writing the release of information.
c. If DA personnel receive a subpoena, court order, or request for attendance at a trial, deposition, or interview that reasonably might require disclosure of official information, they should immediately contact the appropriate legal authority, who will attempt to satisfy the subpoena, order, or request informally under the regulation or will consult with the Litigation Division, Headquarters, Department of the Army.
d. Those who seek official information must submit at least 14 days before the desired date of production a specific written request setting out the nature and relevance of the official information sought, and DA personnel may only disclose those matters specified in writing and approved by the appropriate legal authority.5
e. DA personnel will not release originals; only authenticated copies will be provided when disclosure is authorized.
f. AR 37-60 provides a schedule of fees and charges for searching, copying, and certifying Army records for release in response to litigation-related requests.
g. If the request complies with the regulation, it is DA policy to make the information available for use in court unless the information is classified, privileged, or otherwise restricted from public disclosure.
h. There are a number of factors that must be considered in determining whether to release information; such factors are found at 32 C.F.R. § 516.44(b)
i. If the deciding official determines that all or part of the requested documents or information shall not be disclosed, then the official will promptly communicate directly with the attorney who requested the documents or information to attempt to resolve the matter informally. If the order or subpoena is invalid, the official should explain to the attorney why it is invalid and why the records requested are privileged from release. The official should try to obtain the attorney’s agreement to withdraw or modify the subpoena, order, or request.
j. A subpoena duces tecum or other legal process signed by an attorney or a clerk for DA records protected by the Privacy Act, 5 U.S.C. § 552a, does not justify the release of the protected records. The deciding official should explain to the requester that the Act precludes the release of such records without the written consent of the individual involved or “pursuant to the order of a court of competent jurisdiction.”6 Such an order is one signed by a judge or magistrate.
k. If the records are unclassified and are otherwise privileged from release under 5 U.S.C. § 552a, they may be released to the court if there is an order signed by a judge or magistrate directing the person to whom the records pertain to release the specific records, or that orders copies of the records to be delivered to the clerk of court and indicates that the court has determined the materiality of the records and the absence of a claim of privilege. The clerk must be empowered to receive the records under seal subject to a request that they be withheld from the parties until the court determines whether they are material to the issues and until any question of privilege is resolved.
l. A subpoena or court order for alcohol abuse or drug abuse treatment records is processed under 42 U.S.C. §§ 290dd-3 and 290ee-3 and Public Health Service regulations published at 42 C.F.R. §§ 2.1–2.67.
m. The HIPAA Privacy and Security Rules are implemented within the Military Health System (MHS) by DoD 6025.18-R, “Department of Defense Health Information Privacy Regulation,” January 24, 2003, and DoD 8580.02-R, “Department of Defense Health Information Security Regulation,” July 12, 2007. The final rule on Standards for Privacy of Individually Identifiable Health Information, published by the Department of Health and Human Services, is found at 45 C.F.R. Parts 160 and 164.
Obtaining Educational Records
Many on-base primary and secondary schools for military dependent children are run by the Department of Defense Education Activity (DoDEA). The schools operated by DoDEA in the United States are known as the Defense Dependents Elementary and Secondary Schools (DDESS) and the schools operated overseas are known as the Department of Defense Dependents Schools (DODDS). -As in non-DODEA schools, parents of children under age 18 have the right to access and review the school records of their children enrolled at such facilities (including academic records, disciplinary files, and other student information). These records are available to a parent or legal guardian without regard to who has custody of the child, unless the decree of divorce or dissolution or the court-approved parenting plan (including a custody order) requires that records access be denied or denies the non-custodial parent access to the child. The requesting parent must be prepared to produce documentation to establish that he or she is the child’s parent. The documentation required is the same as that described below when the parent is requesting a copy of the records by mail.
If a child is presently in a non-DoDEA school (e.g., private school, charter school, or public school), the records from previous DoDEA schools will not be in the child’s educational records folder unless a parent copied the records and brought them to the non-DoDEA school or unless that school, with the consent of a parent, requested the DoDEA records from a previous DoDEA school. Under the Privacy Act, a non-DoDEA school cannot request prior military school records without a parental consent form accompanying the school’s request. Conversely, on-base schools may and usually do require previous non-DoDEA schools to copy and produce the child’s records for inclusion in the child’s DoDEA educational records folder.
If a parent is not located near the school where a child is enrolled, he or she may request that a DoDEA school copy and mail the child’s records. A copy of the “systems notice” governing student educational records is found at Appendix B. The systems notice identifies the records that the school maintains on children, the disposition of those records, and the address to which one mails a request for copies of student records. The request for student records is made under the Privacy Act of 1974, as amended. Below is a description of the information that a parent must be prepared to provide if he or she is close to the school, or that the parent must include in a written request sent by mail:
Note: Include a certified copy of the child’s birth certificate, adoption decree, guardianship order, divorce decree, and custody order, as appropriate. Also needed, when records are requested by the non-custodial parent, is a signed statement by the custodial parent (and the child, if age 18 or over), granting the non-custodial parent access to the child’s records.
Appendix A (.pdf)
Appendix B (.pdf)
2 Department of Defense Form 2870, “Authorization for Disclosure of Medical or Dental Information,” is the most commonly used release authorization in military facilities. MTFs may still honor other formats.