Open Records Decision No. 507
October 6, 1988

	Re:  Whether information used or developed in a Department of Health 
investigation of complaint about a home health agency is confidential under section 10(d) 
of article 4447u, V.T.C.S., and section 3(a)(1) of article 6252-17a, V.T.C.S.  (RQ-1446)

Robert Bernstein, M.D., F.A.C.P.
Commissioner
Texas Department of Health
1100 West 49th Street
Austin, Texas  78756-3199

Dear Dr. Bernstein:

	The Department of Health received a request for records of an investigation of a 
complaint against a home health agency.  The requestor sought the results of an 
investigation of a complaint which he had filed on behalf of his father, who was a patient 
of the home health agency.

	Home health agencies provide nursing care and other health services in the 
patient's home.  V.T.C.S. art. 4447u, § 1.  The department is responsible for licensing 
and regulating home health agencies, id. §§ 9, 11, and has authority to investigate 
complaints about the provision of home health services.  Such investigations and the 
records thereof are governed by the following provisions of section 10 of article 4447u, 
V.T.C.S.:

	(c)	The department or its authorized representative shall 
investigate each complaint received regarding the provision of home 
health services and may, as a part of such investigation:

	(1)	conduct an unannounced inspection of a place of business, 
including an inspection of medical and personnel records . . . ;

	(2)	conduct an interview with any recipient of home health 
services which may be conducted in the home if the recipient 
consents;

	(3)	interview any physician or other health care practitioner, 
including home health agency personnel, who cares for a recipient 
of home health services.

	(d)	The reports, records, and working papers used or 
developed in an investigation made under this section are 
confidential.

	(e)	. . . The department's representative shall hold a conference 
with the person who is in charge of the agency when the inspection 
is completed, and the department's representative shall identify any 
records that were duplicated.  Any agency records that are removed 
from an agency shall be removed only with the consent of the 
agency.  (Emphasis added.)

V.T.C.S. art. 4447u, § 10.

	The investigative file that you have forwarded consists of a complaint report, 
which records the information provided by the complainant, and the investigator's report, 
titled "Complaint Investigation."  The latter document summarizes information learned 
from interviews with employees of the agency, and from reviews of the agency's 
personnel files and the patient's clinical record kept by the agency.  Rules of the 
Department of Health require the home health agency to maintain a clinical record which 
includes the physician's treatment plan, clinical and progress notes written by the home 
health agency's employees, a medication sheet and medication administration records.  
See 25 T.A.C. §§ 115.2, 115.10(c)(1).

	These documents are "reports [or] records . . . used or developed in an 
investigation" made under section 10 of article 4447u, V.T.C.S.  Accordingly, section 10 
makes them confidential, and they are excepted from public disclosure under the Open 
Records Act by section 3(a)(1) of that statute as "information deemed confidential by 
law, either Constitutional, statutory, or by judicial decision . . . ."  V.T.C.S. art. 6252-
17a, § 3(a)(1) (emphasis added).

	The patient of the home health agency has sent you his written authorization for 
you to release to the requestor any records, including medical records, which pertain to 
him.  Section 10(d) of article 4447u, V.T.C.S., is a comprehensive confidentiality 
provision, and nothing in its language suggests that a patient has any right to see 
information concerning him in the records of an investigation, nor that the department 
has any power to make this information available to him.  See generally Open Records 
Decision No. 501 (1988) (concluding that article 9.39 of the Insurance Code does not 
prohibit the State Board of Insurance from releasing audit report to title company that 
furnished it to board); see also Open Records Decision No. 481 (1987) (providing that 
common law right of privacy does not prohibit subject of information from inspecting it).

	The Open Records Act deals primarily with the general public's access to records.  
But see art. 6252-17a, §§ 3(a)(14), 14(c).  It gives neither the subject of records nor his 
representative a special right of access to records concerning him, although he may use 
its procedures to gain access to information closed to the public by other law but open to 
him.  Attorney General Opinions MW-381 (1981); MW-95 (1979); see Open Records 
Decision Nos. 501 (1988); 481 (1987).  In this case you suggest that information in the 
investigative report extracted from the clinical record may be a medical record subject to 
the physician-patient privilege of the Medical Practice Act and possibly disclosable to the 
requestor under that provision.  See V.T.C.S. art. 4495b, § 5.08.

	Section 5.08 of article 4495b, V.T.C.S., the Medical Practice Act, provides as 
follows for the confidentiality of medical records:

	(b)	Records of the identity, diagnosis, evaluation, or treatment 
of a patient by a physician that are created or maintained by a 
physician are confidential and privileged and may not be disclosed 
except as provided in this section.

V.T.C.S. art. 4495b, § 5.08(b).

	The Complaint Investigation summarizes information from the patient's clinical 
record including the physician's order and nurses' notes about the patient.  Some of this 
information can be described as "[r]ecords of the identity, diagnosis, evaluation, or 
treatment of a patient by a physician" that are created by a physician.  Id.; see also Open 
Records Decision No. 487 (1988) (providing that section 5.08 of article 4495b, V.T.C.S., 
applies to records created under physician's supervision).  It is unnecessary to decide 
which portions of the Complaint Investigation are confidential medical records because 
we have concluded that the Medical Practice Act does not authorize the Department of 
Health to make any such medical records available to the patient or the requestor.

	The following provisions of section 5.08 of the Medical Practice Act are relevant 
to this information:

	(c)	Any person who receives information from confidential 
communications or records as described in this section other than 
the persons listed in Subsection (h) of this section who are acting on 
the patient's behalf may not disclose the information except to the 
extent that disclosure is consistent with the authorized purposes for 
which the information was first obtained.

	. . . .

	(h)	Exceptions to the privilege of confidentiality, in other than 
court or administrative proceedings, allowing disclosure of 
confidential information by a physician, exist only to the following:

	(1)	governmental agencies if the disclosures are required or 
authorized by law;

	. . . .

	(5)	any person who bears a written consent of the patient or 
other person authorized to act on the patient's behalf for the release 
of confidential information, as provided by Subsection (j) of this 
section;

	. . . .

	(j)(1)	Consent for the release of confidential information must 
be in writing and signed by the patient . . . .

	(k)	A physician shall furnish copies of medical records 
requested, or a summary or narrative of the records, pursuant to a 
written consent for release of the information as provided by 
Subsection (j) of this section, except if the physician determines that 
access to the information would be harmful to the physical, mental, 
or emotional health of the patient, and the physician may delete 
confidential information about another person . . . . The information 
shall be furnished by the physician within a reasonable period of 
time . . . .  (Emphasis added.)

V.T.C.S. art. 4495b, § 5.08.

	The Department of Health, in accordance with subsection (c) of section 5.08,

may not disclose the information except to the extent that disclosure 
is consistent with the authorized purposes for which the information 
was first obtained.

Id. § 5.08(c).  The department obtained the medical information under its statutory 
authority to investigate complaints about home health agencies and subject to the 
confidentiality requirement set out in section 10(d) of article 4447u, V.T.C.S.  It has no 
authority to disclose the information to the patient or his representative.  See generally 
Open Records Decision No. 314 (1982) (discussing application of article 5561h, 
V.T.C.S., to school district's records of teacher's psychiatric evaluation).

	Moreover, the provision in subsection (k) of section 5.08 on the release of 
medical records pursuant to a written consent applies only to a physician.  Not only does 
this subsection refer repeatedly to "the physician," but it also allows him to withhold 
information if he "determines that access to the information would be harmful to the 
physical, mental, or emotional health of the patient . . . ."  This determination can only be 
made by the patient's physician, and not by a state agency which has acquired the records 
in connection with an investigation of a health services provider.  The Department of 
Health has no authority under section 5.08 of the Medical Practice Act to release medical 
records to the patient or to the requestor who has the patient's written consent.  
Accordingly, the Department of Health may not disclose to the requestor any portion of 
the documents submitted for our review.

SUMMARY

	Reports, records, and working papers used or developed by the 
Department of Health in an investigation of a home health agency 
under section 10 of article 4447u, V.T.C.S., are made confidential 
by section 10(d) of article 4447u, V.T.C.S.  They are therefore 
excepted from public disclosure under article 6252-17a, V.T.C.S., 
of the Open Records Act, by section 3(a)(1) thereof.

	Section 5.08(k) of article 4495b, the Medical Practice Act, 
provides that a physician shall furnish copies of a patient's medical 
records pursuant to the patient's written consent for release unless 
the physician determines that access to the information would harm 
the physical, mental, or emotional health of the patient.  This section 
does not authorize the Department of Health to release a patient's 
medical records acquired in an investigation of a home health 
agency to the patient or to any person who has the patient's written 
consent for release of the records.

Very truly yours,

Jim Mattox
Attorney General of Texas

Mary Keller
First Assistant Attorney General

Lou McCreary
Executive Assistant Attorney General

Judge Zollie Steakley
Special Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Jennifer S. Riggs
Chief, Open Government Section
Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General