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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102495
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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The VA mishandled my Protected Medical records and sent my

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The VA mishandled my Protected Medical records and sent my entire mental health file to entities who did not request them, but by doing so, jeopardized our chances to become foster parents. this has also caused my wife and I untold grief, rage, and stress. I haven't been able to find an attorney to handle my case. Can you help???

Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. Can you please tell me:

1) Just a bit about what happened, and
2) Where you have already attempted to look, so that my answer does not repeat what you have already attempted.

Also, note that I cannot refer you to specific attorneys - the site disallows this for ethical reasons. So I can explain the situation, and then perhaps help you find counsel using a third-party referral service.

If this is acceptable, please reply.

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 4 years ago.

We are grandparents who have guardianship of 4 grandchildren of her oldest daughter. We are trying to get custody of two of her youngest daughter's children. Children, Youth and Family Department (CYFD) put us thru foster care training. My wife sometimes joins my VA counselling sessions. That day she joined us by phone. We explained to him that CYFD needed to know his opinion of how our grandchildren would fare with two more children of "high needs" placed in the family. So I needed to give my counselor permission to talk to and send a letter of recommendation to CYFD. As the session was over the time limit, I signed a blank form and he assured me that the correct information for the permission would be filled in. Instead, my entire file was sent to my wife's counselor, and to CYFD, neither of who requested it. I especially did not want CYFD to have the file as it would be used against us.

We spent all day trying to get someone from the VA to get my file back before it was opened by CYFD. No one would help.

This was a devastating situation, and I am still very angry with the way the VA handled - and mishandled! - the entire situation.

Thank you.

Has this entire file had a negative effect on CYFD's decision? Or, are you upset at the privacy violation?
Customer: replied 4 years ago.

Yes, and yes.

Thank you, friend. I am afraid I have one more question - I thank you for your continuous patience. As they say - the devils is in the details.

How has this negatively affected CYFD's decision?
Customer: replied 4 years ago.

We were denied a foster care license, so we are appealing (thru our current attorney). CYFD controls the entire process, including the appeal.

Thank you. Please allow me a second to type out my answer; apologies in advance for the wait...
My apologies for the wait.

Here is the issue - what they did is arguably a HIPAA violation. HIPAA is a federal law that in part provides privacy rights to individuals for their private healthcare information. 45 C.F.R. 164.524(b) et seq. Any authorization must be in writing.

However, you state that you gave them a BLANK form. This means that if the form was blank for ALL the records, then they simply provided all records.

Now I know that you have talked with them and told them specifically what was needed, and not all the records, but this falls under something called the parol evidence rule Wilburn v. Stewart, 794 P. 2d 1197 - NM: Supreme Court 1990. This means that if something was verbally stated but also written (as the blank form was, and later filled in), the writing controls. IN OTHER WORDS, IT SEEMS LIKE YOU GAVE THEM PERMISSION FOR THE WHOLE FILE.

There is another issue - HIPAA does not give the right to SUE for a violation. However, this may be overcome by suing for "negligence per se" in state court. Statutory violations are negligence per se if the statute violated was enacted for the benefit of the person injured. Bouldin v. Sategna, supra; Hayes v. Hagemeier, 75 N.M. 70, 400 P.2d 945 (1963). This has been sometimes successful to provide an avenue of relief for a HIPAA violation. But, the case is not easy.

May I recommend the NM Bar referral programs - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

OR, try here for another trusted directory.

I hope this helps and clarifies. Good luck.

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