Civil/HIPAA Rights and release requirements with Family Court Studies

[beanlynch]

What is the name of your state (only U.S. law)?
Wisconsin

I live in Dane County in Wisconsin. In our county when there is a child custody dispute the case gets referred to the Family Court Counseling Service who does a case study. One of the first things they do in this case study is to ask you about all your physical and mental health providers and then ask you to sign releases to all these providers (regardless of whether there are accusations of abuse and/or competency issues) so that the service can collect general information to see if there is something they should be concerned about. My case is long over and my ex-wife and I settled (so the results of the study were never released), but I remembered feeling like I didn't have a choice but to sign these releases and after the fact I felt a sense of violation and I feel untrusting about seeing therapists again for fear that anything I disclose might be used against me if my ex-wife were ever to challenge my equality as a parent again. I have always felt that the Family Court Counseling service should be required to give us a pamphlet of what our rights are not just for our own sake, but so that the service itself is clear what the law is and what its responsibility is to the law.

I've currently been monitoring the situation of the sister of a friend who has been going through a custody case. She is poor, can't afford a lawyer, has a criminal record, and isn't the best communicator in representing herself. In the current case when she went through this study she was asked by the Family Court Counseling Service to sign a release for her medical records, she refused. After the fact, when the study was released it included the following line:

During the meeting with the FCCS counselor and the Guardian Ad Litem, (*her name) became agitated and defensive. When questioned about her current pregnancy (*her name) escalated yet further and and refused to sign required releases of information for collaterals.

Now there is no doubt about it, this woman didn't do herself any favors by becoming agitated with the FCCS and GAL. But what drew my attention right away is the statement in a report that it is stated in the report that it is a "requirement" to sign away your rights to privacy. My understanding is that if there are concerns about issues of abuse, neglect, or competency, the court can order this information to be released. But to make it a requirement for someone to sign away their rights to privacy would suggest that they don't have those rights in the first place. While we all might be concerned that if we don't fully cooperate with an agency of this sort there might be some form of subtle retaliation (hence the need for pamphlet stating our rights), to have this stated to be a mark against someone in a report seems to me that there is an acknowledged consequence of someone not signing away their rights to privacy, which suggests that these aren't rights at all and which I would think would be a violation of the HIPAA law.

I'd like to see if anyone can help clarify federal law regarding this issue for me. I'm posting it here in the civil rights section as opposed to the family law section because I have found that most family law attorney's aren't as focused on civil rights issues.

 

[Proserpina]

What is the name of your state (only U.S. law)?
Wisconsin

I live in Dane County in Wisconsin. In our county when there is a child custody dispute the case gets referred to the Family Court Counseling Service who does a case study. One of the first things they do in this case study is to ask you about all your physical and mental health providers and then ask you to sign releases to all these providers (regardless of whether there are accusations of abuse and/or competency issues) so that the service can collect general information to see if there is something they should be concerned about. My case is long over and my ex-wife and I settled (so the results of the study were never released), but I remembered feeling like I didn't have a choice but to sign these releases and after the fact I felt a sense of violation and I feel untrusting about seeing therapists again for fear that anything I disclose might be used against me if my ex-wife were ever to challenge my equality as a parent again. I have always felt that the Family Court Counseling service should be required to give us a pamphlet of what our rights are not just for our own sake, but so that the service itself is clear what the law is and what its responsibility is to the law.

I've currently been monitoring the situation of the sister of a friend who has been going through a custody case. She is poor, can't afford a lawyer, has a criminal record, and isn't the best communicator in representing herself. In the current case when she went through this study she was asked by the Family Court Counseling Service to sign a release for her medical records, she refused. After the fact, when the study was released it included the following line:

Now there is no doubt about it, this woman didn't do herself any favors by becoming agitated with the FCCS and GAL. But what drew my attention right away is the statement in a report that it is stated in the report that it is a "requirement" to sign away your rights to privacy. My understanding is that if there are concerns about issues of abuse, neglect, or competency, the court can order this information to be released. But to make it a requirement for someone to sign away their rights to privacy would suggest that they don't have those rights in the first place. While we all might be concerned that if we don't fully cooperate with an agency of this sort there might be some form of subtle retaliation (hence the need for pamphlet stating our rights), to have this stated to be a mark against someone in a report seems to me that there is an acknowledged consequence of someone not signing away their rights to privacy, which suggests that these aren't rights at all and which I would think would be a violation of the HIPAA law.

I'd like to see if anyone can help clarify federal law regarding this issue for me. I'm posting it here in the civil rights section as opposed to the family law section because I have found that most family law attorney's aren't as focused on civil rights issues.

Either party is absolutely free to deny signing those releases.

However, if ordered by the court, they can be held in contempt.

You need to understand HIPAA. To help us help you though, what do you think is or isn't covered by HIPAA?

 

[FlyingRon]

To spoon feed you what Prosperina is trying to get you to learn yourself: HIPAA only covers health care providers, health care clearinghouses, and health plans that use electronic communication for healthcare information. Courts, your relatives, lawyers, etc... are not covered by HIPAA at all. Even if these people were covered entities, I see no HIPAA violation here anyhow.

 

[Proserpina]

To spoon feed you what Prosperina is trying to get you to learn yourself: HIPAA only covers health care providers, health care clearinghouses, and health plans that use electronic communication for healthcare information. Courts, your relatives, lawyers, etc... are not covered by HIPAA at all. Even if these people were covered entities, I see no HIPAA violation here anyhow.

Agreed.

Now I'm going to confiscate your spoon

 

[beanlynch]

Okay, I can understand if the HIPAA law only applies to certain fields, so let me refocus the question as a general Civil Rights question.

 

[Ohiogal]

Okay, I can understand if the HIPAA law only applies to certain fields, so let me refocus the question as a general Civil Rights question.

Not your problem and not your legal issue. And quite frankly, her disclosing it to you -- did that violate HIPAA? There was a court hearing. She got due process. She could have argued then that it was a "Civil Rights" issue. Apparently the court ordered the parties to sign releases. Hence, that became a requirement. She didn't comply with the requirement. But again, not your issue.

 

[beanlynch]

Either party is absolutely free to deny signing those releases.

So my question is then, is there some form of violation if a Family Court Counseling Study Report states the line in my original post which stated that this was required, and that it be used against her?

However, if ordered by the court, they can be held in contempt.

Two follow up questions to this one.

The first is if you mean "ordered by the 'court'", you mean by a judge? The reason I'm asking is because I'm trying to figure out if the FCCS has the authority to make this determination themselves.

The second follow up question is this, if there is cause can't the court order this information to be released without a signature? I've always assumed a signature suggested consent. For the court to order consent in giving up rights seems like a violation of those rights.

 

[Proserpina]

So my question is then, is there some form of violation if a Family Court Counseling Study Report states the line in my original post which stated that this was required, and that it be used against her?





Two follow up questions to this one.

The first is if you mean "ordered by the 'court'", you mean by a judge? The reason I'm asking is because I'm trying to figure out if the FCCS has the authority to make this determination themselves.

The second follow up question is this, if there is cause can't the court order this information to be released without a signature? I've always assumed a signature suggested consent. For the court to order consent in giving up rights seems like a violation of those rights.

Would you consider a court terminating parental rights to also be a violation of rights?

You're not getting this.

 

[beanlynch]

Not your problem and not your legal issue. And quite frankly, her disclosing it to you -- did that violate HIPAA? There was a court hearing. She got due process. She could have argued then that it was a "Civil Rights" issue. Apparently the court ordered the parties to sign releases. Hence, that became a requirement. She didn't comply with the requirement. But again, not your issue.

I have reasons for being concerned about this issue, so while I appreciate your insight, I'd also appreciate it if you'd allow me to determine if it's a subject of interest for me.

As far as whether she violated the law by sharing this information or not, I don't really I think I gave you enough information to make that conclusion. I'm just looking for information and I really don't want to get derailed on tangents or debate.

 

[TheGeekess]

I have reasons for being concerned about this issue, so while I appreciate your insight, I'd also appreciate it if you'd allow me to determine if it's a subject of interest for me.

As far as whether she violated the law by sharing this information or not, I don't really I think I gave you enough information to make that conclusion. I'm just looking for information and I really don't want to get derailed on tangents or debate.

Alrighty then.

 

[beanlynch]

Would you consider a court terminating parental rights to also be a violation of rights?

You're not getting this.

If you think there is something I'm not getting, could you explain it to me then? I don't really understand where you're coming from and I'm not sure you understand where I'm coming from any better.

I would only consider the court terminating parental rights to be a violation of rights if due process wasn't followed and the rights were violated in the process of that determination. I really want to avoid getting into a debate about speculation. I already appreciate the information that both you and Flying Ron has provided me and it's helping me better focus the issue for me. But I'm asking questions because I'm interested in learning information about the law. Your responses come off as a little flippant to me and I'm jsut looking for answers, not trying to offend your sensibilities. My assumption was that this is a place I can ask questions and people might be able to give me answers or point me to where I might find them.

 

[beanlynch]

I'm still hoping to get my question answered. I do appreciate the information about HIPAA law. So I'm going to condense my question and you can forget about the details about the case that I described above because that seems to be leading to tangents that might be helpful if I was asking about this for other reasons than what I am.

If there isn't a Judge's order that a parent sign disclosure of medical information, is it a violation of his/her civil rights if a government agency tells him/her that this is required, and uses it against them if they do not surrender these rights.

 

[Proserpina]

I'm still hoping to get my question answered. I do appreciate the information about HIPAA law. So I'm going to condense my question and you can forget about the details about the case that I described above because that seems to be leading to tangents that might be helpful if I was asking about this for other reasons than what I am.

If there isn't a Judge's order that a parent sign disclosure of medical information, is it a violation of his/her civil rights if a government agency tells him/her that this is required, and uses it against them if they do not surrender these rights.

NO.



Happy New Year

 

[Proserpina]

And seriously - this is NOT YOUR LEGAL PROBLEM.

Have one of the parties sign up if they have questions.

Thanks!

 

[PQN]

Now I am curious. We tell posters all the time that they do not have to provide CPS with any releases unless CPS obtains a court order. Why would this be any different? If the judge ordered the parties to sign releases, then clearly they need to sign or risk contempt. But, without a judicial order, I would say that they could (politely) refuse to sign. Now, the GAL/FCCS could note that in the report (that they requested it and mom declined) but -- in and of itself -- the refusal to sign is legal and should not be counted against mom. (Of course, then we run into the same hamster track as with CPS, they will assume you are hiding something if you don't sign and that will impact their report-which is a subjective opinion based on their experience and the information available to them).