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Beware medical records subpoenas: Connecticut Supreme Court issues opinion on negligence for noncompliance with HIPAA standards

By Kathryn Rattigan on April 2, 2015
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Health care providers and their medical records custodians constantly find themselves under pressure to release medical records immediately upon receipt of a subpoena.  However, regardless of the subpoena or the pesky insistence of the requesting attorney, with the recent ruling by the Connecticut Supreme Court in Byrne v. Avery Ctr., 314 Conn. 433 (2014), health care providers’ responses to requests for medical records must be compliant with the Health Insurance Portability and Accountability Act (HIPAA) more than ever.  To adhere to HIPAA regulations, health care providers must first receive “satisfactory assurances” that the person whose medical records are requested received notice of the request.  While most subpoenas include some type of notice language, the Court outlined that to truly show “satisfactory assurances” the requesting attorney must have provided:

  1. Written notice to the affected individual;
  2. Sufficient information for the individual to raise an objection; and
  3. Time for the individual to raise an objection or confirm that there are no objections or that all objections have been resolved.

The requesting attorney may also provide “satisfactory assurances” that it has secured a protective order prior to the issuance of the subpoena. The Court said in its opinion that it is not enough for a subpoena to include a statement that a protective order WILL be filed or for it to include DRAFT language for a protective order. The appropriate protective order must be FILED with the court.  Remember, there could also be other state laws that apply to protected health information and state laws that are even more restrictive than HIPAA when it comes to sensitive health information such as mental health treatment or sexually transmitted diseases.

Under this new opinion from the Connecticut Supreme Court, health care providers in Connecticut who fail to comply with HIPAA may be subject to patient lawsuits and possible state damages for negligence and emotional distress, in addition to a potential federal investigation for HIPAA violations.

Photo of Kathryn Rattigan Kathryn Rattigan

Kathryn Rattigan is a member of the Business Litigation Group and the Data Privacy+ Cybersecurity Team. She concentrates her practice on privacy and security compliance under both state and federal regulations and advising clients on website and mobile app privacy and security…

Kathryn Rattigan is a member of the Business Litigation Group and the Data Privacy+ Cybersecurity Team. She concentrates her practice on privacy and security compliance under both state and federal regulations and advising clients on website and mobile app privacy and security compliance. Kathryn helps clients review, revise and implement necessary policies and procedures under the Health Insurance Portability and Accountability Act (HIPAA). She also provides clients with the information needed to effectively and efficiently handle potential and confirmed data breaches while providing insight into federal regulations and requirements for notification and an assessment under state breach notification laws. Prior to joining the firm, Kathryn was an associate at Nixon Peabody. She earned her J.D., cum laude, from Roger Williams University School of Law and her B.A., magna cum laude, from Stonehill College. She is admitted to practice law in Massachusetts and Rhode Island. Read her full rc.com bio here.

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  • Posted in:
    Health Care and Life Sciences, Privacy and Cybersecurity
  • Blog:
    Data Privacy + Cybersecurity Insider
  • Organization:
    Robinson & Cole LLP
  • Article: View Original Source

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