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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6376

June 30, 1986

ADMINISTRATIVE LAW AND PROCEDURES:

Validity of rule permitting examination of medical record of person with disease

DISEASES:

Authority of Department of Public Health to investigate diseases

PUBLIC HEALTH, DEPARTMENT OF:

Examination of medical record of person with disease

WORDS AND PHRASES:

'Investigate'

1981 AACS, R 325.9011, which provides that the Department of Public Health shall have access to medical records of a person with a disease, is authorized by law.

Honorable James E. O'Neill, Jr.

State Representative

Capitol Building

Lansing, Michigan 48909

You have requested my 'opinion to determine whether or not the statutory scheme authorizing promulgation of administrative rules justifies the access to medical records contemplated by Rule 325.9011(2).' More explicitly, you request my opinion on whether the Public Health Code limits the Department of Public Health to receiving and monitoring reports of reportable diseases rather than authorizing it to review medical records of patients who have reported diseases.

The Department of Public Health has promulgated 1981 AACS, R 325.9011, which reads:

'(1) Epidemiological information which identifies an individual and which is gathered in connection with the investigation of reported cases of disease or gathered during the investigation of outbreaks of disease is confidential and not to be open to public inspection without the individual's consent or the consent of the individual's guardian. The reports filed under these rules shall be made available only to the health officer, his or her representative, the department, or other persons who demonstrate a need for the information which is essential to the public health or health-related research.

'(2) Individual medical information pertaining to the cases of reportable disease, significant increases in the rate of nosocomial infection, or a declared critical health problem pursuant to Act No. 312 of the Public Acts of 1978, being Sec. 325.71 et seq, of the Michigan Compiled Laws, shall be provided, when requested, to an investigator who presents official identification of the local health department or the state health department. Such an investigator may be an employee or a temporary associate of the local or state health department. 'Medical information,' for the purposes of this rule, includes the details of a medical history, examination, laboratory test, diagnosis, treatment, outcome, and the description and source of suspected causative agents for any such illness or problem. Medical information pertaining to an individual shall be kept confidential by the investigator and public health associates and shall not be released without the consent of the individual or the individual's guardian, unless necessary to protect the public health as determined by the state or local health officer, medical director, state disease control officer, or state epidemiologist.'

Const 1963, art 4, Sec. 51, provides:

'The public health and general welfare of the people of the state are hereby declared to be matters of primary public concern. The legislature shall pass suitable laws for the protection and promotion of the public health.'

The Public Health Code, MCL 333.2221; MSA 14.15(2221), in pertinent part, provides:

'(1) Pursuant to section 51 of article 4 of the state constitution of 1963, the department shall continually and diligently endeavor to prevent disease, prolong life, and promote the public health through organized programs, including prevention and control of environmental health hazards; prevention and control of diseases . . .

'(2) The department shall:

(c) Collect and utilize vital and health statistics and provide for epidemiological and other research studies for the purpose of protecting the public health.

'(d) Make investigations and inquiries as to:

'(i) The causes of disease and especially of epidemics.

'(ii) The causes of morbidity and mortality.

'(iii) The causes, prevention, and control of environmental health hazards, nuisances, and sources of illness.'

Thus, the Department of Public Health is the state agency that is delegated the primary responsibility of providing for the protection and promotion of the public health mandated in Const 1963, art 4, Sec. 51. In respect to performing its duties to prevent and control diseases and disabilities, the Department of Public Health has been provided with certain rule-making authority in the Public Health Code, MCL 333.5111; MSA 14.15(5111), which, in pertinent part, provides:

'In carrying out its authority under this article, the department may promulgate rules to:

'(a) Designate and classify communicable, dangerous communicable, chronic, other noncommunicable diseases, and disabilities.

'(b) Establish requirements for reporting and other surveillance methods for measuring the occurrence of diseases and disabilities and the potential for epidemics.

'(c) Investigate cases and epidemics and unusual occurrences of diseases and situations with a potential for causing diseases.

'(d) Establish procedures for control of diseases including immunization and environmental controls.

'(e) Establish procedures for the prevention, detection, and treatment of disabilities and rehabilitation of individuals suffering from disabilities or disease, including nutritional problems. (Emphasis added.)

In reliance on this statutory authority, the Department of Public Health, inter alia, has promulgated 1984 AACS, R 325.9001, in which it has designated more than fifty diseases that are required to be reported. They include such diseases as botulism, cholera, diphtheria, acquired immune deficiency syndrome, legionnaire's disease, malaria, syphilis, and gonorrhea. Some of the diseases, such as diphtheria, are classified under the rule as being so hazardous to the public health as to require immediate report upon discovery. 1981 AACS, R 325.9003.

Your question asks whether the provisions of 1981 AACS, R 325.9011(2), requiring a health provider to furnish to Department of Public Health investigators the personal medical records and/or medical information of persons having reportable diseases exceed the surveillance duties and authority of the Department of Public Health.

The legislative mandate in the Public Health Code, MCL 333.2221 and 333.5111; MSA 14.15(2221) and 14.15(5111), is very clear in that the Department of Public Health 'shall continually and diligently endeavor to prevent disease, prolong life, and promote the public health through organized programs . . . and (m)ake investigations and inquiries as to . . . (t)he causes of disease and especially of epidemics.' The word 'diligently' is a forceful word. In Woodbeck v Curley (After Remand), 107 Mich App 784, 788; 310 NW2d 242 (1981), the Court of Appeals defined the word 'diligence' as a devoted and painstaking application to accomplish an undertaking. Pursuant to the Public Health Code, MCL 333.2221(2)(d); MSA 14.15(2221)(2)(d), this type of endeavor specifically includes 'investigations.'

The words 'investigation' and 'investigate' are not defined in the Public Health Code, and therefore, in accordance with MCL 8.3a; MSA 2.212(1), these words shall be understood according to the common and approved usage of the language. Goethal v Kent County Supervisors, 361 Mich 104; 104 NW2d 794 (1960). A resort to dictionary definitions is an appropriate method of achieving this result. State v Levenburg, 406 Mich 455, 465; 280 NW2d 810 (1979).

In Webster's Third New International Dictionary, Unabridged, the word 'investigate' is defined as 'to observe or study closely.'

The receiving and monitoring of reports of reportable diseases is an important function of the Department of Public Health in the detection, treatment and prevention of diseases, but such activities fall short of the statutory mandate that the Department of Public Health shall both investigate the causes of disease and diligently endeavor to prevent disease.

This is further evidenced by the rule-making authority granted to the Department of Public Health by MCL 333.5111(c); MSA 14.15(5111)(c), to conduct monitoring-type activities and to '[i]nvestigate cases and epidemics and unusual occurrences of diseases and situations with a potential for causing diseases.' Under this grant of authority, the Legislature has seen fit to authorize the Department of Public Health to conduct more detailed examinations than those which would be made by merely monitoring reports on communicable disease cases.

The Municipal Court of Appeals of the District of Columbia in Huffman v District of Columbia, 39 A2d 558, 561 (1944), sustained the reasonableness of a health regulation that provided that upon receiving a report of a communicable disease, the health officer shall make such investigation as may be necessary for the purpose of determining the source of infection and the restriction of movement, isolation or quarantine. The court stated:

'Judged by these tests we hold that the regulations are not unreasonable. True, they make no distinction between such diseases as scarlet fever and diphtheria, on the one hand--diseases which are infectious and are spread through the air we breathe and may thus become epidemic overnight--and on the other hand the venereal diseases which are communicated only through personal contact. But we recognize that to meet varying conditions and situations of varying danger to public health, there must be some generality and flexibility in the regulations. The ultimate test might often be whether there was reasonableness in the administration of the provision.'

In Irwin v Arrendale, 117 Ga App 1; 159 SE2d 719, 724 (1967), the Court of Appeals of Georgia discussed the authority to promulgate health regulations, citing Abel v State, 64 Ga App 448; 13 SE2d 507, 511 (1941), quoting from 25 Am Jur, Health, Secs. 3, 21:

". . . The enactment and enforcement of health measures find ample support in the police power which is inherent in the State and which the latter can not surrender.' (citation omitted). 'Health regulations are of the utmost consequence to the general welfare; and if they are reasonable, impartial, and not against the general policy of the State, they must be submitted to by individuals for the good of the public, irrespective of pecuniary loss. This is so whether the regulations are made by the legislature or by an agency delegated by it to act. Such regulations will be sustained, if upon a reasonable construction there appears to be some substantial reason why they will promote the public health and if they are reasonably adapted to or tend to accomplish the result sought.' . . .'

The Michigan Supreme Court in an early case, People v Brady, 90 Mich 459; 51 NW 537 (1892), indicated the importance of the reporting and control of diseases when it affirmed a statutory fine levied against a physician who had refused to report several cases of diphtheria in compliance with a statutory provision that required physicians to report to the public health officer any diseases dangerous to the public health, along with the identification of the person or persons so infected.

The Department of Public Health fulfills its duty to investigate diseases by securing all available information which will assist it in protecting the public health of all the people of this state as mandated by Const 1963, art 4, Sec. 51. Access to the medical records of persons with diseases identified and listed in 1984 AACS, R 325.9001, is vital to its ability to discharge its public duties. It is noted that 1981 AACS, R 325.9011(2), protects the confidentiality of the medical records of a person with the disease during review by the Department of Public Health.

It is my opinion, therefore, that 1981 AACS, R 325.9011(2), which requires that personal medical information of an individual with a disease shall be provided to an investigator of the Michigan Department of Public Health or a local health department, is within the statutory authority granted to the Department of Public Health by the Public Health Code to make investigations of reported cases of diseases.

Frank J. Kelley

Attorney General

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