3E-1 Medical Records: How to Get Access

Federal law permits guardians to access all medical records. It doesn’t matter who created them—an individual, private clinic, or public hospital. But there might be situations where a facility needs to restrict the records for medical reasons.

Examples of When Medical Records Are Released

Some examples when facilities may release medical records:

• To guardians if they have medical decision-making authority. 
• To supported decision-makers  if so noted in a signed agreement.
• To an attorney representing the ward in a mental health proceeding.
• When the court authorizes the release of records. An example would be when law enforcement requests to investigate alleged criminal activity.
• To provide a warning to the threatened person, if the individual declares a specific intention to harm another person. 
• To a qualified researcher, aftercare treatment provider, or a North Dakota Department of Human Services employee when necessary for medical treatment or aftercare planning for the ward, program evaluation, or compilation of treatment data records.
• To the North Dakota Department of Health, Protection and Advocacy Services, Aging Services or Long-term Care Ombudsman for purposes of monitoring facility activity and when investigating facility complaints or Medicaid fraud.  
• To the parent or next-of-kin of an individual held in a mental health facility or program, if authorization exists, a summary of the person’s treatment plan and current physical and mental condition. 

Restricting the Ward’s Access to Medical Records

Individuals always have a right to access their medical records. Unless a doctor determines this would be harmful to them. If that happens, the facility must write down the reasons for the restriction. The facility must put the restriction in the medical records. If the individual is under a guardianship, the facility must let both the ward and guardian know this is happening.

Then, within 14 days, the facility must review the restriction. The restrictions may either be renewed for another 14 days, or indefinitely.

When You Need to Request Medical Records

When you request medical records, tell the facility what records you want to review. For example, if the ward is in the hospital, you may ask for:

• Nurses’ notes
• Doctors’ daily notes
• Team meeting notes
• List of all medications (and when and how to take them)

Protecting the Ward’s Health Information

The federal law HIPAA (Health Insurance Portability and Accountability Act) protects the confidentiality of a person’s health information. If HIPAA’s laws conflict with North Dakota’s laws, the law with the most privacy protection wins.