[ Tuesday, January 24, 2006 ]


HIPAA in the Courts: Two new court decisions with HIPAA implications are in the news today. First, a Federal District Court in California (no free cite yet, BNA users can look here) has confirmed what we all know, that there's no private cause of action against a covered entity for a HIPAA violation. A Rite-Aid pharmacy sent prescription information to Ron Poli's employer after he was discovered in possession of Xanax, allegedly without a prescription, during a traffic stop. The plaintiff sought a public policy reason to allow him to sue Rite-Aid directly for the potential HIPAA violation, but the court shot him down. The court pointed out that he still had breach of privacy and negligence claims he could pursue against Rite-Aid, which is the correct conclusion. I would expect his counsel to allege that HIPAA set the standard for a pharmacy's duty of confidentiality, and that if the action violated HIPAA, clearly it would also be a violation of the duty of confidentiality.

In the other case, the New Hampshire Supreme Court has waded into the impact of HIPAA on the ability of a parent to obtain counseling records of his child. The case (natch) involved a divorce, and the child's father sought the child's counseling records under the HIPAA obligation to provide an individual his own records, along with the requirement to treat the child's personal representative the same as the child. The plaintiff apparently asserted a parental right to obtain the information, but the court noted that there is not such an absolute parental right. Instead, the parent must first show that the parent is the personal representative (largely a state-law issue) and even then, a covered entity is not obligated to disclose the information to the personal representative if the CE determines that doing so would be bad for the patient. The court apparently did not get into the question of whether the counseling records were "psychotherapy notes," which get special treatment under HIPAA.

Jeff [1:50 PM]

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