Dear Senator Dardenne:
This office is in receipt of your recent request for an opinion of the Attorney General relative to the retention policy established by the Health Care Centers in Schools. Your question in regard to patient record retention encompasses an opinion from the malpractice and liability insurance carrier utilized by Health Care Centers in Schools, which recommends retention of health records for ten years in conformity with Federal Guidelines. Furthermore, you are seeking clarification between the federal and state statutes.
In answer to your inquiry, a determination must first be made as to whether the records in question are "public records".
An individual's personal medical records are both privileged and confidential records as to that individual. This is well settled principle in Louisiana and throughout the United States. The fact that an individual's personal medical records have been compiled and held by a public health institution does not alter the confidential nature of those records under the State's Public Record Act La.R.S. 44:1, et seq.). Access to an individual's medical records cannot be gained through use of the Public Record Act. (See Attorney General Opinion Numbers 93-615 and 93-285, attached hereto.) The Legislature has considered the subject of student medical records and has determined that student records that are personally identifiable with that student are not public records and cannot be released without consent. (LA-R.S. 44:77, Attorney General Opinion Number 76-186, attached hereto.)
LA-R.S. 40:1299.96 requires that "medical records shall be retained by a physician . . . for a minimum period of six years from the date the patient is last treated by the physician". If patients of Health Care Centers in Schools are treated by physicians, the aforementioned Louisiana statute would be applicable.
Furthermore, LA-R.S. 40:1299.96(2)(a) states medical records of a patient maintained in a health care provider's office are the property and business records of the health care provider.
There is no statutory requirement as to the length of time Health Care Centers in Schools or similar equivalent programs must maintain records. Schools and Superintendents are required to keep records, pursuant to LA-R.S. 17:415, as prescribed by the Superintendent of Education. School boards may adopt their own policies for the retention and destruction of student records after the student has ceased to be enrolled in school (Attorney General Opinion Number 93-285, attached hereto.)
It is understood through discussions with Sue Catchings, Director of Health Care Centers in Schools, that the program is funded by both State and Federal funds.
As noted in Attorney General Opinion Number 79-387 (attached hereto), when a program is partially or fully funded by Federal monies, it is subject to Federal as well as State law on retention of designated records. 20 U.S.C. § 1232(f):
Each recipient of Federal funds under any applicable program through any grant, subgrant, contract, subcontract, loan, or other arrangements . . . shall keep records which fully disclose the amount and disposition by the recipient of those funds, the total cost of the activity for which the funds are used, the share of that cost provided from other sources, and such other records as will facilitate an effective audit. The recipient shall maintain such records for five years after the completion of the activity for which the funds are used.
It should be noted that under Federal law, the confidentiality of student records is protected by 20 U.S.C. § 1232(g). The only federal provisions concerning a time period for the retention of such records, however, deals specifically with the records of special education students. See 42 Fed. Reg. 121 A. 573. (Attorney General Opinion No. 93-285).
Senator Jay Dardenne
We hope the foregoing is helpful to you.
Yours very truly,
RICHARD P. IEYOUB ATTORNEY GENERAL
ANN EVANS WALL Assistant Attorney General
RPI/AEW;dsc
OPINION NUMBER 93-615
February 17, 1994
La. State Const. of 1974, Art. 1. Section 5 LSA-R.S. 44:1 et seq. LSA-R.S. 23:1293 LA Dept. of Education's Handbook of School Administrators, Bulletin 741 22-A EDUCATION — Department of 100 — SCHOOL SCHOOL DISTRICTS — Teachers, Principals Superintendent, Sabbatical Leave, extracurricular activities, Students
As required by the Louisiana Department of Education's Handbook for School administrator, Bulletion 741, No. 1.010.02:
1. Webster Parish School Board should have a policy for admitting and excluding students with communicable diseases. In adopting or creating a policy, the Board should be aware that there are certain constitutional rights that a child must be afforded. Please refer to the recommendations of the Department of Education.
2. If the School Board enrolls a student carrier of Hepatitis B other students could be immunized against Hepatitis B, but the State Epodemiologist does not think that it is necessary to prevent transmission since the disease is not spread by casual contact.
3. The School Board cannot notify the parents of the other children concerning the infected student and not run afoul of the student's constitutional right to privacy as afforded by Article 1, Section 5 of the Louisiana State Constitution.