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 l4 September l982 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. § 7A544 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 physican 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 l982, 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. § 7A544, 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