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Navigating HIPAA

7 Critical Considerations in

Conducting Discovery and

Responding to Subpoenas

Presented by:

Meggan Bushee, Associate, McGuireWoods LLP Amanda L. Enyeart, Associate, McGuireWoods LLP Nathan A. Kottkamp, Partner, McGuireWoods LLP

Jason D. Stevens, Assistant General Counsel, Novant Health, Inc. April 8, 2014

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Introduction: HIPAA Core Elements

• What is HIPAA?

– Health Insurance Portability & Accountability Act of 1996 – Privacy Rule

– Security Rule

– Breach Notification Rule – Enforcement Rule

• What does HIPAA protect?

– Protected Health Information

• Who does HIPAA apply to?

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1. Judicial Proceedings: Exception to Authorization

• Subpoenas

– State-defined language for notice to providers and/or patients – State-defined timing requirements for patient to object

– HIPAA protections of alcohol and drug abuse patient records

• Qualified Protective Orders

– Agreed by parties, entered by the court

• Court Orders

• Operational Considerations

– Do you really need a subpoena?

– Can you meet the subpoena requirements? – Should you treat all subpoenas the same?

– Is further disclosure necessary and permitted by the relevant order?

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2. Patient Authorization for Disclosure of PHI

• Describe the information to be disclosed.

• Who is authorized to disclose?

• Who is authorized to receive?

• Describe the purpose of the disclosure.

• Indicate the expiration date or event.

• Must be signed and dated by patient.

• Must include statement regarding right to revoke, potential for

disclosure by recipient.

• Must be drafted in plain language.

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3. Considerations if Patient is/is not a Party

• Patient is plaintiff and requests own records

• Patient and provider are both parties

– Patient has placed medical condition in question – waiver

1. Waivers of medical record confidentiality is not expressly noted in HIPAA regulations.

2. Safest course of action: seek a protective order.

– Still may need and can obtain authorization for provider to use records

• Patient is a party, but provider is not • Patient is not a party

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4. State Law Considerations

• Physician-patient privilege • Ex parte communications

• State law protections that increase privacy requirements

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5. Responding to OCR

• Recognize that the OCR investigators have strong knowledge about the Privacy Rule, but are not typically lawyers.

• Strike the right balance between being amicable and protecting your rights.

• Understand that OCR’s approach to a matter will be decided by how serious it perceives the problem.

– Awareness letters (and then close matter) – Response

– Back-and-forth letter campaigns

• There is considerable variability in enforcement

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6. Disclosures of Sensitive Information

• HIV/AIDS information

– HIPAA silent but take note of applicable state law

• Mental health records

– Redisclosure limitations

• Psychotherapy notes

– Patient authorization required per 42 C.F.R. 165.508(a)(2)

• Drug and alcohol treatment

– 42 C.F.R. Part 2 – State law

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7. HIPAA and Workers’ Compensation

• One of the “grand” exceptions to HIPAA

– 45 CFR 164.512(l)

– Disclosure must be authorized by applicable state law

• Heavily nuanced by state law and by decisions related to the claim (i.e., claim denial, discontinuation, etc.)

• Operationally difficult when a physician provides both

occupational medicine and primary or routine care to a patient. • Practical tips

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Tips

• Know your state statutes and local rules, and follow the more restrictive rule.

• Careful drafting is crucial.

• HIPAA requires minimum necessary disclosure.

• Do not have paralegal sign requests or other subpoena documents.

• Do not allow Business Associates to respond to subpoenas without at least providing notice.

– Ensure your Business Associate Agreement contains appropriate language regarding the process to be followed when they receive a subpoena or Court Order.

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For more information, contact:

Meggan Bushee McGuireWoods LLP Charlotte mbushee@mcguirewoods.com 704.343.2360

Jason D. Stevens Novant Health, Inc. jdstevens@novanthealth.org

704.384.9454

Nathan A. Kottkamp McGuireWoods LLP

Richmond

nkottkamp@mcguirewoods.com 804.775.1092

Amanda L. Enyeart McGuireWoods LLP

Chicago

aenyeart@mcguirewoods.com 312.849.8106

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