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
COMMUNITY HEALTH,
DEPARTMENT OF:
MENTAL HEALTH:
PRIVACY:
SOCIAL SECURITY:
Use of recipient's social security number to report health care information
The Mental Health Code authorizes the Michigan Department of Community Health to require a county community mental health agency to use a mental health service recipient's social security number for reporting demographic and service information to the Michigan Department of Community Health.
Federal law does not prohibit a county community mental health agency from using a mental health recipient's social security number for reporting demographic and service information to the Michigan Department of Community Health.
If a county community mental health agency requires a person to disclose his or her social security number, the agency must inform that person whether the disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.
Opinion No. 7001
December 16, 1998
Honorable Sharon Gire
State Representative
The Capitol
Lansing, MI 48909-7514
You have asked two questions regarding a county community mental health agency's use of a mental health service recipient's social security number for purposes of reporting demographic and service information to the Michigan Department of Community Health (MDCH). My staff is advised that information proposed to be shared between a community mental health agency and the MDCH consists of information contained in a recipient's record that is necessary in order for the MDCH to discharge responsibilities imposed by law.
Your first question asks whether the Mental Health Code, 1974 PA 258, MCL 330.1100 et seq; MSA 14.800(100) et seq, authorizes the MDCH to require a county community mental health agency to use a mental health service recipient's social security number for reporting demographic and service information to the MDCH.
The Mental Health Code (Code) codifies, revises and consolidates the laws relating to mental health services. Section 116(2)(b) mandates "the objective of the department to shift primary responsibility for the direct delivery of public mental health services from the state to a community mental health services program." Pursuant to section 200a et seq, the MDCH contracts with county community mental health agencies. This contractual relationship generally requires a community mental health agency to provide and deliver mental health services in accordance with the requirements of the Code and the provisions of the community mental health services program contract. One of the primary responsibilities of the MDCH, as it relates to county community mental health agencies, is contained in section 116(2)(f) which mandates the MDCH to "assure the review and evaluation of mental health services provided by community mental health services programs."
Section 748(1) of the Code provides that information contained in recipient records on file with the MDCH and a community mental health agency is confidential and subject to disclosure only under specified circumstances.
(1) Information in the record of a recipient, and other information acquired in the course of providing mental health services to a recipient, shall be kept confidential and shall not be open to public inspection. The information may be disclosed outside the department, community mental health services program, licensed facility, or contract provider, whichever is the holder of record, only in the circumstances and under the conditions set forth in this section.
Section 748(5)(e) mandates disclosure of confidential recipient record information to the MDCH "if the information is necessary in order for the department to discharge a responsibility placed upon it by law." (Emphasis added.)
Section 116 of the Code defines the MDCH's responsibilities, which include the following:
(2) The department shall do all of the following:
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(b) Administer the provisions of chapter 2 so as to promote and maintain an adequate and appropriate system of community mental health services programs throughout the state. . . .
(c) Engage in planning for the purpose of identifying, assessing, and enunciating the mental health needs of the state.
(d) Submit to the members of the house and senate standing committees and appropriation subcommittees with legislative oversight of mental health matters an annual report summarizing its assessment of the mental health needs of the state and incorporating information received from community mental health services programs under section 226. The report shall include an estimate of the cost of meeting all identified needs. Additional information shall be made available to the legislature upon request.
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(f) Review and evaluate the relevance, quality, effectiveness, and efficiency of mental health services being provided by the department and assure the review and evaluation of mental health services provided by community mental health services programs. The department shall establish and implement a structured system to provide data necessary for the reviews and evaluations.
The MDCH has determined that an effective and practical method for collecting and maintaining confidential recipient information necessary to carry out its statutory duties is through the use of recipients' social security numbers. Because each number is unique, using a recipient's social security number allows the community mental health agency to share the required information with the MDCH without disclosing the identity of the recipient. This technique also minimizes duplicate and erroneous data and enables the MDCH to accurately review and evaluate the mental health services provided by community mental health agencies. Upon receipt of any recipient information, including social security numbers, the MDCH and community mental health agencies are bound by the parameters of the confidentiality provisions of the Code.
The language contained in the Code sections quoted above is plain, certain and unambiguous. Section 748(5)(e) mandates the disclosure of confidential recipient record information to the MDCH for any purpose necessary "in order for the department to discharge a responsibility placed upon it by law." Section 116(1) establishes the department's primary statutory responsibility to "continually and diligently endeavor to ensure that adequate and appropriate mental health services are available to all citizens throughout the state." Where a statute is plain, certain and unambiguous, the Legislature must have intended what it has clearly stated. Owendale-Gagetown School Dist v State Bd of Education, 413 Mich 1, 8; 317 NW2d 529 (1982).
The confidentiality provisions contained in section 748 of the Code apply to both the MDCH and to county community mental health agencies. Accordingly, information contained in a recipient's record, including his or her social security number, is confidential and may be disclosed by the MDCH or by a county community health agency only under the circumstances specified in section 748.
Another privacy safeguard is contained in section 244(b) of the Code which specifies that the MDCH "shall not collect any information that would make it possible to identify by name any individual who receives a service from a community mental health services program." Using a recipient's social security number as a means of reporting confidential information eliminates the need to identify the recipient by name and is a reasonable method for the MDCH to comply with section 244(b). The MDCH, in requiring that community mental health agencies utilize a recipient's social security number for reporting demographic and service information, complies with the confidentiality requirements of section 244(b). This procedure also enables the MDCH to discharge its planning, evaluation and reporting responsibilities, and to carry out its section 116(2)(f) mandate to "assure the review and evaluation of mental health services provided by community mental health services programs." Moreover, the use of such a procedure enables the MDCH to "[e]ngage in planning for the purpose of identifying, assessing, and enunciating the mental health needs of the state," as required by section 116(2)(c).
It is my opinion, therefore, in answer to your first question, that the Mental Health Code authorizes the Michigan Department of Community Health to require a county community mental health agency to use a mental health service recipient's social security number for reporting demographic and service information to the MDCH.
Your second question asks whether federal law prohibits a county community mental health agency from using a mental health recipient's social security number for reporting demographic and service information to the Michigan Department of Community Health.
The disclosure and use of social security numbers by state and local governmental agencies is governed "to some extent by federal statute." Doyle, Jr. v Wilson, 529 F Supp 1343, 1348 (DC Delaware, 1982). There are three federal statutes that bear upon the instant question: section 7 of the Privacy Act of 1974 (Privacy Act), 5 USC 552a note; section 1320b-7 of the Public Health and Welfare Act, 42 USC 1320 et seq; and section 405(c)(2)(C) of the Social Security Act, 42 USC 405.
Subject to certain restrictions, the codified provisions of the Privacy Act restricts the disclosure of information contained within governmental records. Mount v United States Postal Service, 79 F3d 531, 533 (CA 6, 1996). Section 7 of the act, which is an uncodified provision of the Privacy Act, governs the mandatory and discretionary disclosure of social security numbers. Pub L 93-579, 88 Stat 1896, 1909 (1974), set out at 5 USC 552a note.1 Section 7 provides as follows:
(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his social security account number.
(2) the provisions of paragraph (1) of this subsection shall not apply with respect to -
(A) any disclosure which is required by Federal statute, or
(B) the disclosure of a social security number to any Federal, State or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.
(b) Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.
(Emphasis added.)
It must now be determined whether federal law mandates or permits governmental entities to request or require the disclosure of social security numbers in the circumstances referenced by your question. Independent of that answer, however, any request concerning the disclosure of social security numbers must comply with the notice requirements set forth in section 7(b) of the Privacy Act.
The disclosure and use of social security numbers are mandated by section 1320b-7 of the Public Health and Welfare Act, supra, in certain specified situations. Specifically, the federal law requires states to have in effect an income and eligibility verification system that determines a person's eligibility for specified federal benefits. The federal law further mandates that a state's income and eligibility verification system must include the compilation of certain types of information, including social security numbers. In pertinent part, section 1320b-7 provides:
(a) Requirements of State eligibility systems
In order to meet the requirements of this section, a State must have in effect an income and eligibility verification system which meets the requirements of subsection (d)2 and under which--
(1) the State shall require, as a condition of eligibility for benefits under any program listed in subsection (b) of this section, that each applicant for or recipient of benefits under that program furnish to the State his social security account number . . . and the State shall utilize such account numbers in the administration of that program so as to enable the association of the records pertaining to the applicant or recipient with his account number;
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(b) Applicable programs
The programs which must participate in the income and eligibility verification system are
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(1) any State program funded under part A of subchapter IV of this chapter [42 USCS 601 et seq.] [aid to families with dependent children];
(2) the medicaid program under subchapter XIX of this chapter [42 USCS 1396 et seq.];
(3) the unemployment compensation program under section 3304 of Title 26 [the Internal Revenue Code 26 USCS 3304.];
(4) the food stamp program under the Food Stamp Act of 1977 (7 U.S.C.A. 2011 et seq.); and
(5) any State program under a plan approved under subchapter I [old age assistance programs], X [aid to the blind], XIV [grants to the disabled, or XVI [supplemental security income for disabled persons] of this chapter [42 USCS 301 et seq., 1201 et seq., 1351 et seq., 1381 et seq.].
(Emphasis added.)
Accordingly, under the Public Health and Welfare Act, a state must have in effect an income and eligibility verification system that requires an applicant for, or a recipient of, benefits pursuant to a program listed in section 1320b-7(b) to furnish his or her social security number as a condition of eligibility for benefits. The federal law further requires the state to "utilize such account numbers in the administration of that program."
Pursuant to Chapter 8 of the Mental Health Code, the MDCH and county community mental health services agencies have established an income and eligibility verification system that conforms to section 1320b-7 of the Public Health and Welfare Act. That system, as mandated by the Code, treats all persons receiving mental health services as applicants for purposes of potentially receiving benefits under section 1320b-7(b) of the federal law. Thus, federal law requires the state to compel the disclosure of social security numbers by persons seeking mental health services.
For example, for those persons receiving inpatient or residential services, Code section 817(1) requires financial liability determinations to be completed after the mental health services have commenced. For those persons receiving nonresidential mental health services, Code section 817(2) permits financial liability determinations to be completed "before, or as soon as practical after, the start of services." These provisions complement Code sections 208(4) and 810 which provide that no person can be denied services based on an inability to pay.
Further, Code section 804(2) provides that the MDCH and community mental health services agencies shall charge recipients of mental health services that portion of financial liability not covered by insurance coverage. Code section 800(f) defines insurance coverage as including Medicaid benefits. Thus, and in effect, every person seeking mental health services is screened as to his or her eligibility for Medicaid benefits.
Moreover, the Code provides that financial liability determinations must be completed for persons seeking and/or receiving mental health services, on an annual basis, or more frequently if there is a change in an applicant's ability to pay for services. Thus, every person seeking mental health services is screened on an annual basis, in order to determine his or her ability to pay, as well as his or her eligibility for any type of public or private third-party financial assistance, including Medicaid and the other programs listed in section 1320b-7 of the Public Health and Welfare Act. These annual screenings enable the MDCH and community mental health services agencies to comply with section 1320b-7 and to "[t]ake those actions it considers necessary and appropriate to secure private, federal, and other public funds to help support the community mental health services program" as required by Code section 226(h). Thus, it must be concluded that the MDCH and community mental health services agencies have in effect an income and eligibility system that treats recipients of mental health services as applicants for federal assistance for purposes of section 1320b-7(b); and, therefore, federal law requires the state to compel the disclosure of social security numbers by persons seeking those services.
Although the MDCH and community mental health services agencies must require the disclosure of social security numbers, the numbers may only be used for the "administration of that program so as to enable the association of the records pertaining to the applicant or recipient with his account number." Further, any request for social security number disclosure, whether it be mandatory or voluntary, "shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it." (Emphasis added.) Section 7(b) of the Privacy Act.
Section 405(c)(2)(C)(i) of the Social Security Act, supra, provides that a state or a political subdivision of the state may require an individual to disclose his or her social security number for the administration of any tax, general public assistance, driver's license, or motor vehicle registration law for the purpose of establishing the identification of persons affected by such law. However, in light of the foregoing analysis concerning section 1320b-7 of the Public Health and Welfare Act, it is not necessary to determine whether mental health services programs constitute general public assistance.3
Even where federal law compels the disclosure of social security numbers, another federal statute limits the use of social security numbers. Specifically, section 405(c)(2)(C)(viii) of the Social Security Act provides:
(viii)(I) Social security account numbers and related records that are obtained or maintained by authorized persons pursuant to any provision of law enacted on or after October 1, 1990, shall be confidential, and no authorized person shall disclose any such social security account number of related record.
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(III) For purposes of this clause, the term “authorized person”
means . . . an officer or employee of any State, political subdivision of a State, or agency of a State or political subdivision of a State, and any other person . . . who has or had access to social security account numbers or related
records. . . .
(IV) For purposes of this clause, the term “related record” means any record, list, or compilation that indicates, directly or indirectly, the identity of any individual with respect to whom a social security account number or a request for a social security account number is maintained pursuant to this clause.
(Emphasis added.)
Pursuant to section 405(c)(2)(C)(i) of the Social Security Act, the Michigan Department of Treasury may require the disclosure of social security numbers for purposes of administering the homestead property tax exemption. OAG 1993-1994, No 6814, p 183 (August 19, 1994). Since the tax law at issue in OAG 1993-1994, No 6814, supra, was enacted after 1990, it was also subject to the confidentiality and nondisclosure provisions of section 405(c)(2)(C)(viii). Id. Your question, however, does not involve a statute enacted on or after October 1, 1990. Rather, the relevant provisions of section 1320b-7 of the Public Health and Welfare Act were in effect prior to 1990. It must be concluded, therefore, that social security numbers maintained pursuant to section 1320b-7 are not subject to the confidentiality requirements imposed by section 405(c)(2)(C)(viii) of the Social Security Act.
It is my opinion, therefore, in answer to your second question, that federal law does not prohibit a county community mental health agency from using a mental health recipient's social security number for reporting demographic and service information to the Michigan Department of Community Health.
It is my further opinion that if a county community mental health agency requires a person to disclose his or her social security number, the agency must inform that person whether the disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.
FRANK J. KELLEY
Attorney General
1 Although this section is not codified, it is set forth in the notes following the codified law and it does constitute law. Alice I. Youmans et al., Questions & Answers, 78 L Libr J 585, 590-92 (1986). See also, Doyle, Jr. v Wilson, 529 F Supp 1343, supra; Greidinger v Davis, 988 F2d 1344 (CA 4, 1993).
2 Subsection (d) of section 1320b-7, which concerns citizenship and immigration status requirements for purposes of benefit eligibility, is not relevant to your question.
3 Social welfare programs, including general assistance, are generally directed toward the objective of income maintenance. Franks v White Pine Copper, 422 Mich 636, 654; 375 NW2d 715 (1985). Such income maintenance legislation is designed to restore a portion of lost wages because of physical disability, unemployment or old age. Drouillard v Stroh Brewery Co, 449 Mich 293, 299; 536 NW2d 530 (1995). Mental health services programs are not directed toward the objective of income maintenance. Accordingly, such services do not appear to constitute general public assistance.