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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 37007
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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My X is taking me to court to try to get an Agreed Hippa Protective

Customer Question

My X is taking me to court to try to get an Agreed Hippa Protective Order. What is this?
Submitted: 1 year ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

HIPAA is a federal law protecting the patient's privacy and confidentiality pertaining to medical treatment, care, symptoms, diagnosis, or other medical concerns. A HIPAA Protective Order is a request to the judge that the holder of the order can then completely control medical information to the other party for purposes of litigation. In essence the ex is requesting that you cannot ever disclose her medical records if the order is granted other than for purposes of this litigation. It is essentially a request that the confidentiality of her medical records extend to you as well because otherwise you, as a non-medical party, have no legal basis or requirement to keep her medical information private once you know her medical information.

Good luck.

Customer: replied 1 year ago.

I am not clear please tell me what is the benefit of my x wanting this? I gather that since my x wants to litigate this I should disagree?

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up. I will be more than happy to explain it further.

Just because your ex wants it does not mean you need to disagree necessarily. What this is ultimately is a request that you likewise keep confidential her medical concerns. For example if you find out that she has a high stage of cancer, or an extremely serious sexually transmitted disease, without this order in place nothing blocks you from telling the world, be it on facebook or to mutual friends, or otherwise. With the order in place she is requesting that anything you find is not disclosed to others, because otherwise that duty does not reach to you (unless this order is granted). There is really no benefit to you to deny her request unless you wish to maintain your options and have a good reason as to why you wish to maintain such rights, but frankly the judges tend to rule on this orders as a matter of course in the favor of the petitioner.

Hope that helps.

Customer: replied 1 year ago.

This is evidence that will be used in trial and they want to be authorized to receive, subpoena and transmit all protected health information and want me to agree to use this info in any manner...I feel that this is a little more complex in what needs to done in response.

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

That's the point, really, the HIPAA protective order protects the information from being used in 'any manner', the information would instead be ONLY used for litigation and only for this specific legal matter. That is how the medical information ends up being protected for the holder of the protective order. Please review below:

http://www.hhs.gov/hipaafaq/permitted/judicial/711.html

Specifically:
"
A qualified protective order is an order of a court or administrative tribunal or a stipulation by the parties that prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and requires the return to the covered entity or destruction of the protected health information (including any copies) at the end of the litigation or proceeding.
"

Good luck.

Customer: replied 1 year ago.

thank you! So why do they need to litigate to get this if this seems ok? and is there anything inside of the the law Pub. L. 104-191, 110 Stat. 1936 that I would want to disagree on?

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up. You are most welcome!

The only reason they have to litigate this is because you are not bound otherwise under law to keep her information private. Under HIPAA he only 3 types of parties that are required to protect information are health care providers (facilities, doctors, etc..), health plans, and health care clearinghouses (for example those that do medical billing). Notice this list does not include spouses, current or former, attorneys, or anyone else. Because you have a right to discuss, for you to agree to give up that right and to maintain confidentiality, they must take you to court to do so. They do not generally need to litigate unless you fight it, but there is generally no inherent benefit in fighting this request, it does not cost you anything to agree in this particular situation.

Good luck.

Customer: replied 1 year ago.

thanks- may I clarify this is to get PHI on the children and please clarify...you are not saying that in my response I should be I agree?

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

My apologies but I see no reason to disagree to the request. It does not cost you anything to agree to such a demand.

 

Good luck.

 

Customer: replied 1 year ago.

thank you. XXXXX look at a sample HIPPA Protective order it states


3. that this info goes to just OC but in my x's petition it states that and custody evaluators, court appointed experts or experts retained.


on the sample it states


5. In the sample it states Prior to disclosing Plaintiff’s protected health information to persons involved in this litigation, counsel shall inform each such person that Plaintiff’s protected health information may not be used or disclosed for any purpose other than this litigation. Counsel shall take all other reasonable steps to ensure that persons receiving Plaintiff’s protected


health information do not use or disclose such information for any purpose other than this litigation .......but in my x's petition it states PHI shall be subject to any and all other protective orders in the above captioned litigated? mentions nothing of prior to inform anything...

6. In the sample it states 45 days after the conclusion of the litigation but my x's petition is after trial, appelate and supreme proceedings are exhausted...?

8. my X's counsel give an exception which is they want more than records but also notes, memoranda, correspondence, too

Do these things OC say seem ok?
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.


3. that this info goes to just OC but in my x's petition it states that and custody evaluators, court appointed experts or experts retained.

Those are all authorized parties as they are all direct or indirect parties to the case, as they may have the need to evaluate the medical information.

 

on the sample it states

 

5. In the sample it states Prior to disclosing Plaintiff’s protected health information to persons involved in this litigation, counsel shall inform each such person that Plaintiff’s protected health information may not be used or disclosed for any purpose other than this litigation. Counsel shall take all other reasonable steps to ensure that persons receiving Plaintiff’s protected

 

health information do not use or disclose such information for any purpose other than this litigation .......but in my x's petition it states PHI shall be subject to any and all other protective orders in the above captioned litigated? mentions nothing of prior to inform anything...
You can add such language, and file an answer with such modification if you like.

 

6. In the sample it states 45 days after the conclusion of the litigation but my x's petition is after trial, appelate and supreme proceedings are exhausted...?

 

8. my X's counsel give an exception which is they want more than records but also notes, memoranda, correspondence, too
You can directly petition to claim that this is beyond the scope and while you can agree to general medical records provided, you do not agree to attorney work product or outside correspondence that is not a part of the medical file.

Good luck and kindly rate my answers to you at this time. Thank you!
Customer: replied 1 year ago.

Can I propose that it only be general medical records prior to reaching an agreement?

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

I am not sure what you mean by 'general' medical records. If someone is specifically seeking medical records pertaining to mental health, it would still be able to be obtained since it would be relevant to the case. This agreement is not a agreement to limit discovery or scope of records, it is to limit the ability of those records to be used beyond the case that you are currently involved in. So while you can propose a limitation, this isn't really the time to do so.

Good luck and kindly rate my answers to you at this time so I can be compensated for assist you with your concerns.

Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 37007
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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