more on Wow... no privacy left, is there? - DoJ, subpoenas & HIPAA

[Dave Farber <dave () farber net>]

Date: Sat, 14 Feb 2004 10:55:23 -0500 (EST)
From: Valid reason, so I removed id djf
Subject: Re: [IP] more on Wow... no privacy left, is there? - DoJ,
 subpoenas & HIPAA

Ethan Ackerman's interpretation of the HIPAA Privacy Rule applies only to
subpoenas that are NOT accompanied by an order of a court or administrative
tribunal.

It does NOT apply to court orders.  In response to a court order, HIPAA allows
a covered entity (e.g. hospital) to disclose whatever information is expressly
authorized by the order.  There is no requirement to obtain a qualified
protective order, or even to require assurances that the requestor has tried
to notify the patient.

Since the disclosure is permissive ("may disclose" rather than "shall
disclose"), the hospital can choose to hand the information over, negotiate
terms, fight it, or ignore it and face the penalties, all without being in
violation of HIPAA.  They can't, however, claim that HIPAA bars them from
responding to it without a qualified protective order.

The actual language:

164.512(e) Standard: disclosures for judicial and administrative proceedings.

  (1) Permitted disclosures. A covered entity may disclose protected health
      information in the course of any judicial or administrative proceeding:

      (i) In response to an order of a court or administrative tribunal,
          provided that the covered entity discloses only the protected health
          information expressly authorized by such order; or

      (ii) In response to a subpoena, discovery request, or other lawful
          process, that is not accompanied by an order of a court or
          administrative tribunal, if:

             (rules on qualified protective orders, reasonable assurances,
              etc. omitted)

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