TRIAL PRACTICE
The HIPAA Hurdle

By Peter M. Bryniczka

Attorneys routinely are confronted with the need to obtain medical records related to litigants or collateral parties to a case at bar. Lawyers must not only navigate the various state-law roadblocks to overcoming the doctor-patient privilege but also wrestle with the threshold need to comply with federal procedures under the Health Insurance Port-ability and Accountability Act of 1996 (HIPAA).

Who and what does HIPAA cover? Covered entities are defined as (1) health plans, (2) health-care clearinghouses, and (3) health-care providers who transmit health information in electronic form in connection with a transaction under HIPAA. Mental health professionals (MHPs) fall into the category of health-care providers. However, for a health-care provider to be covered by HIPAA, it must “transmit” health information in electronic format in connection with certain transactions covered by HIPAA. A therapist who, for example, takes payment by cash, check, or credit card and, therefore, does not make claims on the patient’s insurance would arguably not be covered. By understanding how the MHP conducts his or her transactional business and by developing an awareness of the factors that make a MHP a covered entity, a family law attorney can determine whether HIPAA will be an issue in discovery and possibly eliminate this issue at an early state.

How to get the covered records? HIPAA provides a detailed mechanism for disclosure of protected information in a judicial proceeding. These procedures can best be described as a series of hoops a lawyer must jump through and which afford the health-care provider with a paper trail amounting to a “get-out-of-jail-free card” if the patient ever tries to sue for wrongful disclosure of health information under HIPAA.

If you are lucky enough to have already obtained a court order requiring disclosure of HIPAA-protected information, you are all set. In the absence of a court order—but still in the context of a judicial or administrative proceeding, such as early in discovery—you can still obtain the material by two methods. The first method requires the parties to either agree to or request from the court a confidentiality agreement. The second method requires the lawyer to demonstrate in writing to the health-care provider that reasonable efforts have been made to notify the person whose medical records are sought in connection with the litigation that a reasonable time for objections has elapsed and that either no objections were raised or objections were denied (or resolved in some fashion consistent with disclosure). The health-care provider may then release the records to the party seeking them.

It is important to note that under HIPAA a covered entity may disclose protected health information to avert a serious health or safety issue, provided that disclosure is made to a person or entity reasonably able to prevent or lessen the damage. Therefore, in the event of such a threat in a family law case, a MHP covered by HIPAA would arguably be allowed to make disclosures to entities such as counsel for minor children, a guardian ad litem, law enforcement, a court-appointed custody evaluator, or the department of children and families.

The qualified protective order. To be a bona fide “qualified pro- tective order,” the confidentiality agreement or court order must: (1) prohibit the parties from using or disclosing health information for a purpose other than the litigation and (2) require either return to the covered entity or destruction of protected information at the end of the litigation or proceeding. Interestingly, the rule about the qualified protective order appears to allow a covered entity to release protected health information not only upon being presented with an actual qualified protective order but also upon receiving a written statement and accompanying documentation that a qualified protective order has been requested from the court. Arguably, this could mean that HIPAA allows the release of records by a covered entity merely upon a showing that the party seeking records has filed a motion with the court requesting a qualified protective order, even if that motion has not come up on the court calendar or been acted on.

Get documents first. Remem-ber, the initial goal is to get the information disgorged from the covered entity by following HIPAA procedures. Only then can you get to the next step, at which you and opposing counsel will likely argue about whether the information is privileged and is admissible under state laws. HIPAA does not address where material is to be sent once it is disclosed by the covered entity.

If the records issue is hotly contested, suggest to opposing counsel or the court that the records be lodged with the court or a third-party attorney serving as “discovery master” or interim record keeper instead of insisting that the records be turned over immediately to the party seeking them. Opposing counsel will be more likely to agree to a qualified protective order if he or she is not convinced that doing so will automatically place reams of documents into your hands before any privilege-based objections can be asserted. Having the court or a discovery master hold the records means that the records can easily and quickly be disseminated to you and your experts once the court resolves any objections opposing counsel may have.

At this point it is crucial to highlight a key factor in dealing with HIPAA, namely that state law privilege and state law evidentiary rules ultimately will determine whether a mental health record is discovered and admitted into evidence and to what extent the record can be utilized by your own expert witness(es). HIPAA, as it relates to judicial proceedings, merely provides a procedure for the release of documents by the health-care provider. If the procedure is followed and the health-care provider has a written paper trail establishing that disclosure was proper, then what ultimately happens to the material is no longer the responsibility of the covered entity or a concern under HIPAA.

State laws govern (or might). Given that state law sets forth myriad variations on the doctor-patient privilege and that HIPAA does not create any privileges, state law is the only game in town when it comes to the issue of whether the information received from a covered entity ultimately is discoverable or admissible. State black letter law provides that if a party is going to use mental state or condition as an element of any claim or defense, then the party cannot assert related privileges. Thus, in a family law case, if the opposing party places mental condition at issue, the only roadblock to getting the related records into evidence is to get the actual records from the MHP. Be sure to comply with the HIPAA procedures described above when doing so.

Another important question controlled by state law is whether, in the specific context of a family law case, a litigant automatically puts his or her mental condition at issue by contesting custodial or parenting issues. States are by no means unified in their approach to the issue. Therefore, an important parallel course of action in addition to dealing with HIPAA is to determine whether and how the doctor-patient or psychotherapist-patient privilege applies in your jurisdiction to the mental state of a litigant in a custody dispute.

For More Information About the Section of Family Law

- This article is an abridged and edited version of one that originally appeared on page 22 of Family Advocate, Spring 2008 (30:4).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/family.

- Periodicals: Family Advocate, quarterly magazine with three issues that include how-to articles and current trends in family law for lawyers, and a fourth “Client Manual” issue for lawyers and their clients covering aspects of the divorce process; Family Law Quarterly, a scholarly journal that offers an analytical view of family law issues, including “Family Law in the Fifty States.”

- Books and Other Recent Publications: The Family Lawyer’s Guide to Bankruptcy, 2d ed.; The Indian Child Welfare Act Handbook, 2d ed.; The Family Lawyer’s Guide to Stock Options; The Military Divorce Handbook; Assisted Reproductive Technology; How to Build and Manage a Family Law Practice; Creating Effective Parenting Plans; The Divorce Trial Manual.

- CLE and Other Educational Programs: The Trial Advocacy Institute offers an intense learning experience and is the nation’s premier trial training program for family lawyers. Other CLE programming includes teleconferences, spring and fall conferences, and our popular Hot Tips program at the ABA Annual Meeting. Past program materials are available for purchase on our website.

- Member Benefits: Discount on Family Law Section publications and CLE materials; Committees on topics such as adoption, custody, law practice management, and reproductive and genetic technologies; Case Update, a monthly digest of family law case decisions around the nation; monthly eNewsletter.

Peter M. Bryniczka is an associate with Schoonmaker, George & Colin, P.C., in Greenwich, Connecticut. He may be reached at pbryniczka@sgcfamlaw.com.

Copyright 2009

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