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TJ, Esq.
TJ, Esq., Attorney
Category: Consumer Protection Law
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Experience:  JD, MBA
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I am an Independent Contractor and want to keep my client files

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I am an Independent Contractor and want to keep my client files private. The person whose office I work out of says that she must be able to access my client files although she does not treat any of these clients. I am legally responsible for their treatment. She says that our field, massage therapy, does not fall under the hipaa laws but is careful to protect HER client files (which I don't want to see anyhow!) but I feel strongly that I do NOT have to give her access to my client's files. What can I do? Is there any legal recourse I can state to stand my ground?

Hello and thank you for allowing me the opportunity to assist you.

First and foremost, you don’t have to hand over your files to the office person. What I mean is, you have no legal obligation to do so. Of course, she could refuse to let you use her office in retaliation, and there’s not much you can do.

So, it sounds like you want a good excuse not to hand over the files. In my opinion, handing over the files is risky for you, so you should not do it. Contrary to the office person’s claims about HIPAA, it’s possible that HIPAA does cover massage therapists. Please note the following from a website on the issue:

The current emphasis of HIPAA compliance centers on electronic transmission of clients' Protected Health Information (PHI). When you go to the HIPAA site (See HIPAA References on page 42) and fill out the questionnaire to determine if you are a covered entity, most massage practitioners (unless they are billing insurance) will find that indeed they are not required to be HIPAA compliant. Unfortunately, this is misleading because the privacy considerations remain. According to Marilyn Allen of the American Acupuncture Council, "The privacy of every client's PHI is mandatory. When you maintain client records, gather information from a client, engage in oral communication or transmit records (whether electronic or not), you are considered a covered entity."

Moreover, even if HIPAA does not cover massage therapists, you could still be liable for common law invasion of privacy if you handed over the files. In other words, even without HIPAA, people can be liable for disclosing private information about other people. Note the following, which is a basic explanation from Wikipedia:

Public disclosure of private facts arises where one person reveals information which is not of public concern, and the release of which would offend a reasonable person. "Unlike libel or slander, truth is not a defense for invasion of privacy." Disclosure of private facts includes publishing or widespread dissemination of little-known, private facts that are non-newsworthy, not part of public records, public proceedings, not of public interest, and would be offensive to a reasonable person if made public.

Therefore, in my opinion, handing over the files is a bad idea.

Have I satisfactorily addressed your concerns? If not, then please feel free to ask for clarification.

If the information that I provided is helpful, then please remember to click the green accept button so that I will receive credit and compensation for my time. Positive feedback is always appreciated as well. Thank you and good luck!

DISCLAIMER: Please be aware that only an attorney licensed in your state is authorized to advise you in legal matters, and that the limitations of this setting may prevent your legal issues from being thoroughly addressed. Accordingly, please understand that (1) by answering your question(s) I am not acting as your attorney, (2) my answer(s) should be construed as general information only, and (3) our discussion is not an adequate substitute for an in-person consultation with an attorney.

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