Does HIPAA Prevent Disclosure of a Party’s Medical or Therapy Records in a Florida Divorce or Father’s Rights Case?
A party’s medical records or therapy records may be relevant to an issue in a divorce or a father’s rights case. The patient/client to whom the records belong often objects to disclosure based on HIPAA or Florida’s medical records law. However, HIPAA generally does not prevent disclosure of an opposing party’s medical records in a divorce or father’s rights case if disclosure is permitted under Florida law.
HIPAA’s Privacy Rule, 45 CFR Part 160 and 164, is a federal law that governs disclosure of protected health information. Florida’s medical records law, F.S. §456.057, is the state equivalent that governs medical record disclosure and doctor-patient confidentiality.
HIPAA preempts less stringent state law. HIPAA may specify the type of directive (e.g. subpoena or court order) that is required for compelled disclosure of medical records, but its ultimate focus is on the substantive due process protections that must be satisfied to obtain the directive, such as notice or opportunity to object. See 45 CFR 160.203(b); 45 CFR 160.202 (defining “more stringent” and “state law” as used in HIPAA) ; and Paylan v. Fitzgerald, 223 So. 3d 431 (Fla. 2d DCA 2017).
Whether federal or Florida law is more stringent depends in part on what entity is requesting the records.  Whether federal or Florida law is more stringent also depends whether the patient/client whose records are sought is a party or non-party to the litigation.  Florida law governs the procedure for obtaining a subpoena or court order, and may provide different due process protections to parties and non-parties.
The most common scenario involving medical records in divorce or father’s rights cases is when one party seeks compelled disclosure of the other party’s medical records either (i) pursuant to a subpoena or (ii) in connection with a court-ordered examination or evaluation.
Disclosure of Medical and Therapy Records Pursuant to Subpoena
HIPAA and Florida law include the same general level of protection for a party’s medical and therapy records that are sought pursuant to a subpoena in a divorce or father’s rights case. Both laws allow for disclosure of medical and therapy records pursuant to a subpoena if the patient is provided with notice and opportunity to object. See 45 CFR §164.512(e)(1)(ii)(A); 45 CFR §164.512(e)(1)(ii)(B), (iii)(B); F.S. §456.057(7)(a)(3). Florida procedural law, which governs the issuance of a subpoena in a family law cases, provides more detail about the method for issuance of an enforceable subpoena, and, in that sense, is more stringent than HIPAA.
Under Florida law, objections to disclosure must be legal objections, not just a party’s general disapproval or disagreement with the record request. Most legal objections are directed at relevance, and are governed by state law. See e.g. Tanner v. Hart, 313 So. 3d 805 (Fla. 2d DCA 2021) (plaintiff in negligence action objected based relevance to the production of ten years of his medical records). Objections may also be based on privilege, such as the psychotherapist-patient privilege established by F.S. §90.503.
Disclosure of Medial and Therapy Records Relating to Compulsory Examinations and Evaluations
HIPAA and Florida law both allow for compelled, court-ordered physical examinations and non-physical evaluations (e.g. psychological, mental health, psychiatric, or substance abuse evaluations) of an opposing party. See e.g. 45 CFR §164.512(e)(1)(i) and F.S. 456.057(7)(a)(2). HIPAA does not include an explicit requirement that the opposing party/patient be given notice or opportunity to object. See 45 CFR §164.512(e)(1)(i). Florida procedural law, which governs family law cases, provides more detail about the method and requirements for obtaining a compelled examination or evaluation, including notice and opportunity to object, and, in that sense, is more stringent than HIPAA. See Rule 12.360, Fla. Fam. L. R. Pr. In the case of physical examinations, the opposing party/patient has opportunity to object by filing a motion for protective order. In non-physical evaluations, there must be a prior hearing, at which the opposing party/patient will have opportunity to object. For both types of examinations and evaluations, the requesting party must satisfy the additional elements of “good cause” and “in controversy,” which are further parsed in Florida caselaw. See Rule 12.360(a)(1), (2), Fla. Fam. L. R. Pr.
HIPAA and Florida law generally prohibit disclosure of medical records and therapy records without patient authorization. Exceptions to both laws permit compelled disclosure in open litigation pursuant to subpoena or court order. HIPAA preempts less stringent state law. However, Florida law generally is “more stringent,” as that term is defined by HIPAA, because Florida procedural law details the process and specific requirements for obtaining an enforceable subpoena or court order for a party’s medical or therapy records in a divorce or father’s rights case. In most instances, HIPAA does not prevent disclosure of an opposing party’s medical records in a divorce or father’s rights case if disclosure is permitted under Florida law.
Michael DeVoe, Esq. practices family law in Orlando, Florida, including dissolution of marriage, paternity, child support, injunctions, and dependency cases. Call DeVoe Law Firm at 407-284-1620 for assistance with your divorce or father’s rights case.
 45 CFR 160.202(4) defines “more stringent” as “a State law that . . . with respect to the form, substance, or the need for express legal permission from an individual, who is the subject of the individually identifiable health information, for use or disclosure of individually identifiable health information, provides requirements that narrow the scope or duration, increase the privacy protections afforded (such as by expanding the criteria for), or reduce the coercive effect of the circumstances surrounding the express legal permission, as applicable.”
45 CFR 160.202 defines “state law” as “a constitution, statute, regulation, rule, common law, or other state action having the force and effect of law.”
 For example, medical and therapy records might be requested by one treating physician from another, by a public health authority, by a poison control authority, by DCF for the purpose of investigating abuse reports, a medical or allied health licensure board for disciplinary proceedings, or for statistical or scientific research. See F.S. 456.057.
 Cf. Rule 12.350, Fla. Fam. L. R. Pr. (providing procedure for production of documents from a party) with Rule 12.351, Fla. Fam. L. R. Pr. (providing procedure for production of documents from a non-party).