Admissibility of Evidence - Inadmissibility of Evidence Protected by the Health Insurance Portability and Accountability Act
The Health Insurance Portability and Accountability Act of 1996 (HIPAA)[1], Privacy Rule protects all "individually identifiable health information" held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. The Privacy Rule calls this information "protected health information (PHI)”.[2]
"Individually identifiable health information" is information, including demographic
data, that relates to the individual’s past, present or future physical or mental health or condition, the provision of health care to the individual, or the past, present, or future payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe can be used to identify the individual. [3] Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number).
Covered entities may disclose protected health information in a judicial or administrative proceeding if the request for the information is through an order from a court or administrative tribunal. Such information may also be disclosed in response to a subpoena or other lawful process if certain assurances regarding notice to the individual or a protective order are provided.[4] However, it is error for a court to permit a physician to testify in a custody proceeding, in violation of HIPPA, about another child of the parties who is not a party to the custody proceeding.[5]
The HIPAA regulations authorize a "covered entity" to disclose "protected health information" where the entity is required to report suspected child maltreatment under state law. [6] The regulations explicitly authorize the disclosure of medical or hospital records without the consent of the patient about victims of child abuse, neglect or domestic violence to any appropriate government authority authorized to receive such reports, to the extent the disclosure is required by law and complies with and is limited to the requirements of such law. [7]
[1] Pub. L. 104-191.
[2] 45 C.F.R. § 160.103.
[3] 45 C.F.R. §160.103
[4] 45 C.F.R. § 164.512(e).
[5] In Matter of Brown v Simon, 123 A.D.3d 1120, 1 N.Y.S.3d 238 (2d Dept, 2014), after the child's day care provider reported to the father that the child was not allowing herself to be cleaned when her diaper was being changed, and her resistance had gotten worse, the parties filed petitions to modify their joint custody order. Although an examination of the child by her pediatrician revealed no physical evidence of sexual abuse, the day care provider reported her concerns to the Office of Child Protective Services (CPS). The Appellate Division held that Family Court erred in overruling the mother's objection to the testimony of her other daughter's treating physician about his treatment of that child on the ground that the Privacy Rule standard of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) for disclosure of her other daughter's medical information was not met (45 CFR 164.512 [e] [1] [i], [ii]). The mother's other daughter was not a party to the proceeding, and permitting her treating physician to testify in violation of HIPAA directly impaired the interest protected by the HIPAA Privacy Rule of keeping one's own medical records private. As such, the Family Court should have sustained the mother's objection to this testimony. This error could not be deemed harmless, as the physician's testimony was used by the father and the attorney for the subject child to portray the mother's other daughter as seriously disturbed.
[6] 45 CFR § 512[a]; 160.202; § 160.203; 42 USCA § 1320d-7 [B]
[7] See 45 CFR § § 164.512[b] [1] [ii]; [c] [1] [I].
The Health Insurance Portability and Accountability Act of 1996 (HIPAA)[1], Privacy Rule protects all "individually identifiable health information" held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. The Privacy Rule calls this information "protected health information (PHI)”.[2]
"Individually identifiable health information" is information, including demographic
data, that relates to the individual’s past, present or future physical or mental health or condition, the provision of health care to the individual, or the past, present, or future payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe can be used to identify the individual. [3] Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number).
Covered entities may disclose protected health information in a judicial or administrative proceeding if the request for the information is through an order from a court or administrative tribunal. Such information may also be disclosed in response to a subpoena or other lawful process if certain assurances regarding notice to the individual or a protective order are provided.[4] However, it is error for a court to permit a physician to testify in a custody proceeding, in violation of HIPPA, about another child of the parties who is not a party to the custody proceeding.[5]
The HIPAA regulations authorize a "covered entity" to disclose "protected health information" where the entity is required to report suspected child maltreatment under state law. [6] The regulations explicitly authorize the disclosure of medical or hospital records without the consent of the patient about victims of child abuse, neglect or domestic violence to any appropriate government authority authorized to receive such reports, to the extent the disclosure is required by law and complies with and is limited to the requirements of such law. [7]
[1] Pub. L. 104-191.
[2] 45 C.F.R. § 160.103.
[3] 45 C.F.R. §160.103
[4] 45 C.F.R. § 164.512(e).
[5] In Matter of Brown v Simon, 123 A.D.3d 1120, 1 N.Y.S.3d 238 (2d Dept, 2014), after the child's day care provider reported to the father that the child was not allowing herself to be cleaned when her diaper was being changed, and her resistance had gotten worse, the parties filed petitions to modify their joint custody order. Although an examination of the child by her pediatrician revealed no physical evidence of sexual abuse, the day care provider reported her concerns to the Office of Child Protective Services (CPS). The Appellate Division held that Family Court erred in overruling the mother's objection to the testimony of her other daughter's treating physician about his treatment of that child on the ground that the Privacy Rule standard of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) for disclosure of her other daughter's medical information was not met (45 CFR 164.512 [e] [1] [i], [ii]). The mother's other daughter was not a party to the proceeding, and permitting her treating physician to testify in violation of HIPAA directly impaired the interest protected by the HIPAA Privacy Rule of keeping one's own medical records private. As such, the Family Court should have sustained the mother's objection to this testimony. This error could not be deemed harmless, as the physician's testimony was used by the father and the attorney for the subject child to portray the mother's other daughter as seriously disturbed.
[6] 45 CFR § 512[a]; 160.202; § 160.203; 42 USCA § 1320d-7 [B]
[7] See 45 CFR § § 164.512[b] [1] [ii]; [c] [1] [I].
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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