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Olivia Kent
Olivia Kent, Attorney
Category: Legal
Satisfied Customers: 6213
Experience:  Partner at Kent Law Group, LLC
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HIPAA law question Your turf? Florida. Threats of action by

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Hi
JA: Hi. How can I help?
Customer: HIPAA law question Your turf?
JA: What state is this in? It matters because laws vary by location.
Customer: Florida
JA: What steps have been taken so far?
Customer: Threats of action by previous employer
JA: Anything else you want the lawyer to know before I connect you?
Customer: Breach of computer system

Hello and welcome to JustAnswer. My name is ***** ***** I'm an attorney. Please note this site is for general information for educational purposes only and does not constitute legal advice. Communicating with an expert on this site does not establish an attorney-client relationship. You might be offered a phone call, but you are under no obligation to accept; the phone call requests don’t come from me - they’re offered by the site - but if you do want a phone call I’d be happy to do that as well.
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What can I answer for you? I see what you've written but I don't see a question listed.

Customer: replied 7 months ago.
My friend worked as a contract massage therapist for a local company. She brought clients to the company and also got walkins that she performed massages services on. The scheduling system used by the company emailed the client contact information to her gmail account. After a period of time, she left their establishment and emailed the clients offering massage at her new location. They are claiming a HIPAA violation and emailed all their clients mentioning her by name, stating that she breached their computers and were contacting the authorities/department of health. Was emailing the clients (bulk without reference to any specific past experience or condition) a HIPAA violation? Did the commit libel in emailing their entire client list?
Customer: replied 7 months ago.
The site is acting weird. Did you receive my updated question?
Customer: replied 7 months ago.
Some extra background information. She did not sign a non-disclosure/non-competition agreement. The scheduling system is in "the cloud" and states that they are a scheduling system and they do not collect medical history (https://support.schedulicity.com/setup-guide/is-schedulicity-hipaa-compliant).

Bear with me as I type out an answer... but the short answer is she cannot have violated HIPAA based on the circumstances you describe.

First off, even before you told me that they do not collect medical history I was going to tell you that they don't collect medical history - a massage parlor is no more a "covered entities" (health care clearinghouses, employer sponsored health plans, health insurers, and medical service providers) than a hair or nail salon....

IF ANYTHING, their emailing all of their customers stating that she violated their HIPAA rights might be construed by some to be DEFAMATION!

Customer: replied 7 months ago.
Thank you. Is there a definitive resource on HIPAA "covered entities" that you can point me to? They also claimed in the email that she "breached" their system that they provided her a login and access to (and paid for) and that they were going to the authorities (police?). Is there a concern of criminal charges being filed? If so, is there something she can do now?

Sure, here you go: https://www.hhs.gov/hipaa/for-professionals/covered-entities/index.html

One can't breach a system that one is given a username and password ***** and weren't told he or she no longer has access to - at least that's what most people would argue. Smarter people would have inactivated her account...

Customer: replied 7 months ago.
I just checked the HHS.gov site and found the covered entities definition. Thank you. So, in their rage they opened themselves up to a serious libel case?

It would seem :) And it's my pleasure - happy to help! If you wouldn't mind, could you please take a moment to submit a rating so that I receive credit for working with you. If you have any follow up questions I would be *happy* to answer them. Experts only get credit for the time and effort we spend on our answers if you rate positively - 5 stars is definitely appreciated but not required! It DOES NOT cost you anything at all to submit a rating; it just allows me to get credit for helping you. You CAN still ask follow up questions after rating.

Customer: replied 7 months ago.
I sure will. Thank you. Are you knowledgeable in trade secret protections in Florida? Do they have a claim that, even if she did not sign a non-compete/disclosure/trade secret protection agreement, that she stole "trade secrets" at the state or federal level? I've read a lot on the subject and see it as murky at best.

And I would agree with you that it's murky at best. Frankly, it's surprising that there was no non-solicitation contract she had to sign; that would have solved their problem.

Customer: replied 7 months ago.
They tried to get her to sign the non-solicitation agreement (along with all the other therapists). She declined and left which is what precipitated the whole thing. Karma is a bear ;-)

That it is!

Customer: replied 7 months ago.
They emailed their client base and claimed "breach". I think that is libelous. Even if a trade secret claim is made, does the libel still stand?
Customer: replied 7 months ago.
The question is, I guess, is it better to file a libel suit now as a defensive move or wait until the authorities weigh in or not?

Defamation (libel) requires that an untrue statement be made/published and the person knew it to be untrue and said/wrote it anyway - and it caused damages.... The authorities are unlikely to weigh in on anything related to this case ... If you decide to pursue a defamation claim, martindale.com is a good place to look for attorneys.

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Reminder: This site is for general information for educational purposes only and does not constitute legal advice.

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Customer: replied 7 months ago.
Are defamation cases typically handled by retainer, % of award or mix based upon attorney?

It honestly depends upon the attorney. They decide whether it's "worth it" to them to float a case to settlement or trial. There is no hard and fast rule though.

Thanks for your rating :)

I will be logging off now but if I can help you with anything in the future, please reach out!

Customer: replied 7 months ago.
just your opinion, do you play "wait and see" what they do? If so, how long?
Customer: replied 7 months ago.
Thanks again. I'll probably have some follow-ups once I have time to mull our conversation over. You were great.