Healthcare providers continue to have challenges with responding to attorney requests for information and subpoenas. We highlighted some of these last year, along with some issues providers should be considering to help meet those challenges.  In this case, after the patient advised the provider not to disclose her PHI to her significant other, the provider received a subpoena in connection with a paternity suit that was sent on behalf of the significant other seeking the patient’s medical file. According to the Supreme Court’s decision, the provider “did not alert the plaintiff of the subpoena, file a motion to quash it or appear in court. Rather, the defendant mailed a copy of the plaintiff’s medical file to the court.” Without deciding whether Connecticut’s common law recognizes a negligence cause of action arising from this situation, the Court agreed with the patient, concluding such an action is not preempted by HIPAA and, further, that the HIPAA regulations may be used to establish the providers standard of care. Byrne v. Avery Center for Obstetrics and Gynecology, P.C., No. 18904.

As part of its reasoning supporting the decision, the Court pointed to language in the preamble to the final HIPAA privacy regulations discussing preemption. Specifically, the Court noted that commentators had raised the issue of whether “a private right of action is a greater penalty, since the proposed federal rule has no comparable remedy.” Standards for Privacy of Individually Identifiable Health Information, 65 Fed.Reg. 82,462, 82,582 (December 28, 2000). The Department of Health and Human Services responded:

the fact that a state law allows an individual to file [a civil action] to protect privacy does not conflict with the HIPAA penalty provisions

(While the Department’s view is not binding, the Court noted that “[w]here an agency has authoritatively interpreted its own rule, courts generally defer to that reading unless it is plainly erroneous or inconsistent with the regulation.”) The Court went on to list a number of decisions holding that HIPAA does not preempt causes of action that exist as a matter of state common or statutory law and arise from health care providers’ breaches of patient confidentiality in a variety of contexts. The Court also mentioned some of these cases permitted HIPAA to inform the relevant standard of care in such actions.

This case should be a strong reminder to covered entities, and their business associates, to be more careful when responding to requests for protected health information under HIPAA. Often documents seeking protected health information look official and threatening, but they may be nothing more than an attorney’s request for PHI, which without more generally will not justify disclosure. The fact that a private right of action does not exist under the HIPAA privacy or security regulations is not the end of the inquiry. Providers and business associates have to consider the layers of other laws that potentially could provide a patient a remedy for a questionable disclosure of the patient’s medical records, such as state health laws and regulations, common law torts, and other measures.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.