May a covered entity use or disclose protected health information for litigation? May a covered entity use or disclose protected health information for litigation?
May a covered entity use or disclose protected health information for litigation?
Answer:
A covered entity may use or disclose protected health information as permitted or required by the Privacy Rule, see 45 CFR 164.502(a)
(PDF); and, subject to certain conditions the Rule typically permits
uses and disclosures for litigation, whether for judicial or
administrative proceedings, under particular provisions for judicial and
administrative proceedings set forth at 45 CFR 164.512(e) (GPO), or as part of the covered entity’s health care operations, 45 CFR 164.506(a) (PDF).
Depending on the context, a covered entity’s use or disclosure of
protected health information in the course of litigation also may be
permitted under a number of other provisions of the Rule, including uses
or disclosures that are:
- required by law (as when the court has ordered certain disclosures),
- for a proceeding before a health oversight agency (as in a contested licensing revocation),
- for payment purposes (as in a collection action on an unpaid claim), or
- with the individual’s written authorization.
Where a covered entity is a party to a legal proceeding, such as
a plaintiff or defendant, the covered entity may use or disclose
protected health information for purposes of the litigation as part of
its health care operations. The definition of “health care operations”
at 45 CFR 164.501
(GPO) includes a covered entity’s activities of conducting or arranging
for legal services to the extent such activities are related to the
covered entity’s covered functions (i.e., those functions that make the
entity a health plan, health care provider, or health care
clearinghouse), including legal services related to an entity’s
treatment or payment functions. Thus, for example, a covered entity that
is a defendant in a malpractice action or a plaintiff in a suit to
obtain payment may use or disclose protected health information for such
litigation as part of its health care operations. The covered entity,
however, must make reasonable efforts to limit such uses and disclosures
to the minimum necessary to accomplish the intended purpose. See 45 CFR 164.502(b) , 164.514(d).
Where the covered entity is not a party to the proceeding, the
covered entity may disclose protected health information for the
litigation in response to a court order, subpoena, discovery request, or
other lawful process, provided the applicable requirements of 45 CFR 164.512(e) (GPO) for disclosures for judicial and administrative proceedings are met.
| Public Hospital Corrects Impermissible Disclosure of PHI in Response to a Subpoena Covered Entity: General Hospital Issue: Impermissible Uses and Disclosures A public hospital, in response to a subpoena (not accompanied by a court order), impermissibly disclosed the protected health information (PHI) of one of its patients. Contrary to the Privacy Rule protections for information sought for administrative or judicial proceedings, the hospital failed to determine that reasonable efforts had been made to insure that the individual whose PHI was being sought received notice of the request and/or failed to receive satisfactory assurance that the party seeking the information ...read more |
| Private Practice Revises Policies and Procedures Addressing Activities Preparatory to Research Covered Entity: Private Practice Issue: Impermissible Disclosure-Research A private practice physician who was the principal investigator of a clinical research study disclosed a list of patients and diagnostic codes to a contract research organization to telephone patients for recruitment purposes. The disclosure was not consistent with documents approved by the Institutional Review Board (IRB). The private practice maintained that the disclosure to the contract research organization was permissible as a review preparatory to research. Activities considered “preparatory to research” include: preparing a research protocol; developing a research hypothesis; ...read more |
| DOVER (Oct. 21, 2022) – The Delaware Division of Developmental Disabilities Services is announcing today that it is mailing letters to service recipients and legal guardians who were impacted by a recent data breach incident and is providing information to the public regarding the incident. On August 23, 2022, staff within the Division of Developmental Disabilities Services (DDDS) discovered that in the process of creating new user accounts in the division’s client database, DDDS staff inadvertently provided access to individual records of 7074 individuals. As a result of these actions, 159 new users had potential access to service recipients’ ...read more |
| If a CSP stores only encrypted ePHI and does not have a decryption key, is it a HIPAA business associate? Answer: Yes, because the CSP receives and maintains (e.g., to process and/or store) electronic protected health information (ePHI) for a covered entity or another business associate. Lacking an encryption key for the encrypted data it receives and maintains does not exempt a CSP from business associate status and associated obligations under the HIPAA Rules. An entity that maintains ePHI on behalf of a covered entity (or another business associate) is a business associate, even if the entity cannot actually ...read more |
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11/12/22 May a covered entity use or disclose protected health information for litigation?
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