HIPAA (Continued from page 22)


formation from a healthcare pro- vider in order for the health plan to resolve member or internal griev- ances, provide customer service, arrange for legal services, or con- duct medical review or auditing activities. A number of commenters requested that the pro- posal be expanded to allow for disclosures for another covered entity’s underwriting or premium rating.


. . . .


The Department also was not persuaded by the comments that the proposal should be broadened to allow disclosures for other types of healthcare operations activities, such as resolution of internal griev- ances, customer service, or medical review or auditing activities. Thus, there is an excellent argument that the 164.506 does not authorize ex parte contacts in medical negligence in- vestigations.


C. Section 164.512 Section164.512(a) provides that a cov-


ered entity may disclose information “required by law.” That phrase is defined, in turn, in 164.501, as follows: Required by law means a mandate contained in law that compels a covered entity to make a use or dis- closure protected health information and that is enforceable in a court of law. …


Importantly, by only authorizing disclo- sure of information “required” by law, the discretionary provision of Maryland Health General Annotated Code §4- 305(b) is pre-empted. As a reminder, under that section, a healthcare provider


is given the option, but is not required, to disclosure a medical record to any healthcare provider’s insurer or legal coun- sel concerning an actual or potential claim. Thus, it would appear that HIPPA shuts down the Maryland practice of pre- litigation meetings with patients’ treating physician. With regard to disclosures required by law, §164.512(a) provides as follows:


(a) Standard: Uses and disclosures re- quired by law. (1)A covered entity may use or disclose protected health infor- mation to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirement of such law.


(2)A covered entity must meet the requirements described in para- graphs (c), (e) or (f) of this section for uses and disclosures required by law.


Subsection (c) concerns disclosures about victims of abuse, neglect, or domestic vio- lence and subsection (f ) concerns disclosures for law enforcement purposes, and as a result, subsection (e) is the sub- section that applies to the context of this memorandum. Under 512(e)(1), a covered entity may disclose protected health information in the course of any judicial or administra- tive proceeding in response to an order of court, or in response to a subpoena, dis- covery request or “other lawful process that is not accompanied by an order of court.” However, when not responding to an actual court order, there are a num- ber of requirements that a covered entity must meet before providing information pursuant to a subpoena, discovery request or other lawful process.


Presumably,


“other lawful process” would encompass Maryland Health General Annotated


Code §4-306(b)(3)’s provision regarding providing medical records to an insurer or counsel for a health care provider after a civil action has been initiated. The additional requirements that must be met before responding to a subpoena, discovery request, or other lawful process are as follows. The covered entity can re- lease the information if they have been provided assurance that the requesting party has notified the patient and pro- vided the patient with an opportunity to object. Additionally, a covered entity can release the information if the party seek- ing the information “has requested a qualified protective order from such court or administrative tribunal.” Qualified protective order is defined as meaning an order of court or stipulation of the par- ties that has certain safeguards restricting the use of the information to the legal proceedings and requiring destruction of the documents at the conclusion of the proceedings. Finally, the covered entity may provide the information if they pro- vide notice directly to the patient and provide an opportunity for the patient to object.


When the requirements of 512(e) are


read altogether, the bottom line is that a defendant seeking a patient’s medical in- formation must either apply to the court for an order, obtain an agreement from the patient’s counsel, or provide written notice to the patient that they are seeking the information. Alternatively, the healthcare provider from whom the in- formation is sought can provide written notice to the patient.


III. PRACTICE CONSIDERATIONS It would be advisable practice to pro- vide letters to treating doctors warning them that HIPAA precludes ex parte con- tacts with defense representatives. The only arguable exception is if suit has been filed and notice is provided to the patient, and that situation can be met with the advisory that the patient wants to attend any meeting that takes place and that the doctor will be deposed anyhow. A HIPAA warning likely will be taken seriously since HIPAA already is notori- ous in the medical community. Doctors are afraid of its enforcement mechanisms. They are aware of its importance. Many have had to remodel their waiting areas so that patients cannot see a general sign in sheet or overhear information about the identity of other patients. The bottom line, HIPAA appears to


require doctors to put patients first over other doctors in litigation. Refreshing news, indeed.


24 Trial Reporter Spring 2003


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