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HIPAA/LAW:
April 2004
"State Privacy Protections:
How Do They Relate to Civil Suits Concerned with HIPAA Law?"
By Steve Fox, Esq., Pepper Hamilton LLP
Last month, we discussed one of the questions raised by the Justice
Department's subpoenas to Planned Parenthood affiliates and hospitals
nationwide in connection with lawsuits aimed at determining whether
the so-called "Partial Birth Abortion Ban" is constitutional:
when you receive a subpoena for protected health information ("PHI")
in civil litigation, do you abide by state law, HIPAA, or both?
In the article, we noted that there was an ongoing debate on whether
state privacy protections for PHI apply in civil suits aimed entirely
at resolving matters of federal law.
To illustrate that ongoing debate, we described the Northern District
of Illinois' decision in National Abortion Federation v. Ashcroft,
2004 U.S. Dist. LEXIS 1701 at *8 (N.D. Ill. February 6, 2004). In
that case, the Court found that where state privacy laws offer more
protections for PHI than HIPAA, state privacy laws apply even in
cases that do not involve state law. The Seventh Circuit Court of
Appeals has since reviewed the National Abortion Federation v. Ashcroft
decision and determined that more stringent privacy protections
under state law do not necessarily apply to cases involving purely
federal questions.
In a somewhat complicated decision, the Seventh Circuit stated,
"Although the issue is not free from doubt, we agree with the
government that the HIPAA regulations do not impose state evidentiary
privileges on suits to enforce federal law." Northwestern Memorial
Hosp. v. Ashcroft, Case No. 04 C 5 at 3-4 (7th Cir. March 26, 2004).
However, the Court went on to say that where it is possible to apply
the state's privacy law protections without frustrating the implementation
or intent of federal law, then federal courts should use the state
privacy law out of respect for the state. See id. at 15 ("[The
doctrine of] comity 'impels federal courts to recognize state privileges
where this can be accomplished at no substantial cost to federal
substantive and procedural policy.'") (citation omitted). The
Court also held that because the privacy rights intruded upon by
disclosure of the records were significant and the probative value
of the medical records was small, the subpoenas were too burdensome
and did not need to be complied with. Consequently, the Seventh
Circuit upheld the ultimate decision of the Northern District of
Illinois and prevented the disclosure of the patients' PHI.
What does this mean for covered entities who receive subpoenas
for protected health information in connection with a case aimed
at answering questions involving only federal law? If you receive
such a subpoena, then you should be prepared to produce the records
if the requesting entity has met all of the requirements of 45 C.F.R.
§ 164.512(e). As last month's article noted, the requirements
of HIPAA apply in all cases, no matter whether the cases involve
questions of state law or federal law.
However, based on the Seventh Circuit's decision in Northwestern
Memorial Hosp. v. Ashcroft, covered entities who receive subpoenas
for PHI in civil cases involving only federal law (known as "federal
question" cases) must decide whether to oppose producing the
PHI on the grounds that state privacy laws protect the PHI from
disclosure. Covered entities may argue that state privacy law privileges
apply to PHI in civil federal question cases where (1) the state
privacy laws are more stringent than HIPAA (as the previous article
stated) and (2) enforcing the state privacy laws would not unduly
interfere with the federal government’s policies for the protection
and proper disclosure of PHI.
If you receive a subpoena in a civil federal question case, and
the entity seeking the PHI has complied with the requirements of
45 C.F.R. § 164.512(e), then you should consult with counsel
about whether to claim that the subpoenaed PHI is nevertheless protected
from disclosure by state privacy laws. In addition (unless you are
located in the Seventh Circuit, which encompasses Indiana, Illinois
and Wisconsin), you should determine whether federal courts in your
jurisdiction have answered the question of the applicability of
state privacy laws to federal question cases.
Since, as the Seventh Circuit acknowledged, this issue is "not
free from doubt," courts in various jurisdictions may reach
different conclusions on this point. Assuming, however, that state
privacy laws do not apply, the decision on whether to attempt to
assert their protections in a federal question case will depend
on the specific circumstances of the case and the interaction between
your state's privacy laws and the aims of federal procedure and
policy under those circumstances.
Read
past HIPAA Legal articles.
Steve Fox, Esq., is a partner at the Washington, DC office of Pepper
Hamilton LLP, www.pepperlaw.com  .
He may be reached at foxsj@pepperlaw.com.
Disclaimer: This information is general in nature and should
not be relied upon as legal advice.
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