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Chris T., JD
Chris T., JD, Attorney
Category: Legal
Satisfied Customers: 3587
Experience:  Experienced in both state and federal court.
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What is the title for responding to HIPAA Qualified Protective

Customer Question

What is the title for responding to HIPAA Qualified Protective Order? Response to Responden't HIPAA Qualified Protective Order? It is confusing because it states the matter coming to be heard by agreement of the parties...
Submitted: 1 year ago.
Category: Legal
Expert:  Chris T., JD replied 1 year ago.

TexLawyer :

Good evening. I'll be assisting you with your question.

TexLawyer :

Could you explain the case and what's going on a little further?

TexLawyer :

I ask because typically a motion for a qualified protective order is not a matter of a great deal of litigation.

Customer :

I'm pro se and I have to respond to my x who has presented me with a HIPAA Qualified Protective Order. It reads from the beginning this matter coming to be heard by agreement of the parties for this entry...which leads me to then believe I'm not doing a response?

TexLawyer :

Typically that is an agreed motion, since disclosure of medical records in some cases is necessary, but the attorneys and the HIPAA covered entity want protection when they disclose that information. If it says that it is an agreed motion, the other side is representing to the judge that you are "on board" with the motion.

TexLawyer :

They should have contacted you about that before they put in the motion that it was an agreed motion.

Customer :

It isn't agreed and will go for hearing...I know that I am to respond to the proposed HIPAA order and am looking for a sample response.

TexLawyer :

On what grounds are you objecting to the protective order?

Customer :

good question...

Customer :

1. these records will not only go to the attorney

Customer :

2. they don't want to give prior disclosure if they are going to use this information

TexLawyer :

OK. I understand. Fighting the protective order is the wrong place for you to be fighting this battle.

Customer :

ok so I call my x's attorney and speak of what I want changed over the phone?

TexLawyer :

All they are asking the judge to do is restrict to whom the medical records may be disclosed. You may feel that they will not follow that order, but the proper way to address this issue is not by asking the judge to deny the protective order.

TexLawyer :

First off, the judge is going to grant this motion as a matter of course. If you object, it will give the appearance that you don't know what you are doing.

TexLawyer :

You should be objecting to the issuance of the subpoena or court order that compelled the medical provider to disclose the records at all.

TexLawyer :

Second, if they are given over to your wife's lawyers, you should file a motion for contempt after they violate the judge's order.

Customer :

There has not been the issuance of the subpeona or order yet...this HIPAA Qualified Protective Order would allow authorization to receive, subpeona and transmit the PHI.

TexLawyer :

Right. The HIPAA rules require that the order be requested before they will disclose the records. That is where your objection should be.

TexLawyer :

Objecting to the protective order is essentially asking the judge to not restrict what can happen to your medical records, which, clearly, you don't want to do.

TexLawyer :

You want to object to the HIPAA entity releasing the records, which is a different argument than the protective order (although, the two are obviously related). Does that make sense?

TexLawyer :

Alternatively, if you lose your objection to the release of the records, your next course would be to file a motion for contempt if the lawyers or your ex disclose the records in violation of the protective order.

Customer :

I'm sorry I need clarification...my x's attorney says I have to respond to the proposed HIPAA order and does that mean a call to say agreement?

TexLawyer :

Yes. These are almost always agreed motions.

TexLawyer :

In fact, I've never seen anyone not agree to a HIPAA protective order since it is to the party's benefit to not have their private medical information spread all over the place.

Customer :

How am I supposed to respond then?

Customer :

writing that I agree

TexLawyer :

You should call, email or write the other attorney and tell him that you agree.

Customer :

when you asked me what I objected to do any of those bullits matter?

TexLawyer :

Yes, it matters, but objecting to the protective order is not the right way to get what you want. If you think the attorney or party are going to disclose it in violation of the order, the right way is not to prevent the court from ever issuing the order. The right way is to object to the subpoena or court order requesting that the records are disclosed, or waiting until it is disclosed in violation of the court's order and asking the party to be held in contempt.

TexLawyer :

But, you shouldn't ask the judge to deny the request for the protective order because you think they will violate it in the future.

TexLawyer :

Does that make sense?

Customer :

Are you saying that once the Judge agrees to the HIPAA order I can object to?

TexLawyer :

No. Once they get the protective order, they will then request medical records from some HIPAA covered entity. Correct?

Customer :

Yes you are correct

TexLawyer :

OK. When they request those records, they will do so by issuing a subpoena or asking the judge to order the entity to disclose those records. That is a separate motion from the protective order. With me so far?

Customer :

I understand- so I can respond to that motion...

TexLawyer :

Yes. If they request the records by subpoena, you will file a motion to quash the subpoena.

Customer :

this HIPPA order states authorization for subpeona

TexLawyer :

There will be a separate subpoena issued.

Customer :

3. Subject to the limitations set forth in paragraph l.a. above, all "covered entities" (as
defined by 45 CFR 160.103) are hereby authorized to disclose PHI pertaining to
the minor children to all attorneys now of record in this matter or who may
become of record in the future of this litigation, as well as custody evaluations, court-
appointed experts, or experts that may be retained by either party throughout the entirety of
this case.

Customer :

I disagree to this...

TexLawyer :

That just means that WHEN they are served with a subpoena, they are allowed under HIPAA to disclose the records. That does not prevent you from objecting.

TexLawyer :

I think you are getting confused about what the protective order is.

TexLawyer :

Under HIPAA rules, the doctor is not allowed to disclose medical information. But, HIPAA makes an exception when there is litigation IF the party gets a disclosure order from the court requiring that the party not disclose the information to anyone else.

Customer :

I'm worried that the PHI also gives them permission without a subpoena because their order doesn't say 5. 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.

TexLawyer :

If you want something included in the order, you can tell the other lawyer that. I'm sure he'll agree to put it in. That is not a reason to file a response.

Customer :

I'm filing a response because my x's attorney put in an Order of Continuance that I'm to respond

TexLawyer :

OK. That would be normal to respond to a request for a continuance, but that is a separate issue from the protective order.

Customer :

the continuance is the protective order hearing and so I guess I will write something

TexLawyer :

Those are two separate issues, so you can object to the continuance without objecting to the protective order. It is my advice that you file your objection to the continuance and make your changes to the protective order and agree to the rest.

TexLawyer :

You don't want the judge to think you are being difficult about everything. If you do, he'll not take your objections as seriously.

Customer :

HIPPA order is set for hearing and x's attorney wants my response prior

TexLawyer :

OK.

TexLawyer :

Do you have any questions?

Customer :

I reviewed a sample of this type of order and am wondering why this is left out...5. 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.

TexLawyer :

I can't answer why they left that out. It is not required by statute, but it is often included. If you want it included, simply tell the other attorney that you want it included, and you will agree to the motion if it is included.

TexLawyer :

Does that makes sense?

Customer :

How can I determine if they left something out important?

TexLawyer :

You read their proposed order. You have to decide what you want in the motion and what you don't. I can't really tell you what's important to you and your case. That's one of the disadvantages of going pro se.

Customer :

when I compare from the state's sample to my X's order and items are way off or not included could that be a red flag?

TexLawyer :

Not really. There are lots of examples out there. There isn't one way to do things. The key thing in it is that the records can't be disclosed beyond the attorneys and parties in the case.

TexLawyer :

But, just because it doesn't look like the sample you have, that doesn't mean they are up to something. In fact, given how ordinary HIPAA protective order are, it would really surprise me if they were. The judge knows what's normal, and they don't want the judge to think they are trying to take advantage of a pro se litigant.

TexLawyer :

But, if you have various samples, you can pick and choose the parts you want and ask that the be included.

Customer :

ok and they add that in addition to the parties it will go to custody evaluators,court experts, and experts retained- is that k? Do I a proof of service since it is in an order for me to respond to the proposed order?

TexLawyer :

Yes, that is OK. Yes, there should be proof of service.

Customer :

A proof of service would mean a formal written response ...we come full circle

TexLawyer :

No, proof of service is just a statement at the end of the motion that says they served you with a copy.

TexLawyer :

That does not require you to respond to their motion.

TexLawyer :

I can assure you that you are not required to file a response. All you need to do is call or write the other attorney and work out the order.

Customer :

thank you

TexLawyer :

Glad to help!

TexLawyer :

If I can't do anything else for you, please remember to "rate" my answer. Good luck!

TexLawyer :

Can I help you with anything else?

TexLawyer :

I see that you are offline. Please remember that I only get credit for my answer if you "rate" my answer and we spent over an hour and a half working on your issue.

Chris T., JD, Attorney
Category: Legal
Satisfied Customers: 3587
Experience: Experienced in both state and federal court.
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