HIPAA AND PARTY-OPPONENT MEDICAL RECORDS IN FLORIDA DIVORCE
A party’s medical or therapy records arguably may be relevant to an issue in a divorce or paternity action. The party to whom the records belong often objects to disclosure based on HIPAA or Florida law. However, these laws do not prevent disclosure of a party-opponent’s medical records if disclosure is pursuant to a duly issued request to produce, subpoena, or court order under Florida law, and any necessary “satisfactory assurances” under HIPAA are made.
The typical scenario involving medical records in family law cases is where a party seeks a party-opponent’s (i) treatment records pursuant to a request to produce or a non-party subpoena or (ii) forensic records generated as a result of a court-ordered examination or evaluation.
HIPAA’s Privacy Rule, 45 CFR Part 160 and 164, is the federal law that governs disclosure of protected health information. Various provisions in Florida’s constitution, statutes, and rules of procedure govern medical record disclosure and doctor-patient confidentiality. HIPAA preempts less stringent state law.
Disclosure of Treatment 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 requested pursuant to a subpoena in a divorce or paternity action. Both HIPAA and Florida law allow for disclosure if the party is provided with notice and opportunity to object.
There is no “federal” family law. Florida statutes, family law rules of procedure, and interpreting case law establish the substantive requirements for compelled disclosure, as well as the procedural method for issuance of an enforceable subpoena. Therefore, Florida law is generally more stringent than HIPAA in the context of compelled disclosure of treatment records pursuant to subpoena.
Disclosure of Records Generated from Compulsory Forensic Examination or Evaluation
HIPAA and Florida law both allow for compelled, court-ordered physical examinations and non-physical evaluations (e.g. psychological, mental health, psychiatric, vocational, or substance abuse evaluations) of an opposing party. HIPAA does not include an explicit requirement that the party-opponent be given notice or opportunity to object. Florida procedural rules and interpreting caselaw establish the substantive and procedural requirements for obtaining a compelled evaluation, including that the party-opponent be given notice and opportunity to object, as well as requiring the movant to prove the additional elements of “in controversy” and “good cause”. Therefore, Florida law is generally more stringent than HIPAA in the context of compelled court-ordered examinations or evaluations.
HIPAA’s “Satisfactory Assurances”
Notwithstanding the foregoing, one aspect of HIPAA appears more stringent than Florida law.
HIPAA requires that a subpoena to a non-party medical provider be accompanied by “satisfactory assurances” that the individual was provided notice and opportunity to object, and either no timely objections were made or were resolved by the court.
HIPAA requires that a court order served on a non-party provider be accompanied by “satisfactory assurances’ that the requesting party sought a “qualified” court order. A “qualified” court order includes language that prohibits the use or disclosure of records for any purpose other than the instant litigation and requires their return or destruction at the conclusion of the proceeding.
The requirement to provide “satisfactory assurances” is more stringent than Florida law, which does not require the subpoena recipient to be provided “satisfactory assurances” in addition to the subpoena, nor require a moving party provide “satisfactory assurances” that certain conditions were requested for inclusion in the court order.
HIPAAs “satisfactory assurances” requirement seems redundant, or at least superfluous, in the context of party-opponent record requests, as party-opponents necessarily receive notice and opportunity to object under Florida’s procedural rules governing subpoena issuance. The requirement is likely intended to provide protection to non-party individuals who may be less likely than party-opponents to receive notice and opportunity to be heard. However, HIPAA does not make a distinction, and so “satisfactory assurances” are required for requests for party-opponent medical records as well as the medical records of non-party individuals.
HIPAA and Florida law generally prohibit disclosure of medical records and therapy records without patient authorization or consent. HIPAA preempts less stringent state law. Both HIPAA and Florida law permit compelled disclosure in open litigation pursuant to a request to produce, subpoena, or court order. Florida law is generally “more stringent,” as that term is defined by HIPAA, because Florida law specifies the substantive and procedural requirements for issuing a request to produce or subpoena and obtaining a court order. Therefore, HIPAA does not prevent disclosure of a party-opponent’s medical records in a divorce or paternity action if disclosure is permitted under Florida law, and any necessary “satisfactory assurances” under HIPAA are made.
Michael P. DeVoe, Esq., of DeVoe Law Firm, practices family law in Orlando, Florida, including dissolution of marriage, paternity, child support, injunctions, and dependency. He is a member of the Central Florida Family Law Inns of Court and serves on the OCBA Family Law Executive Committee.
 Florida law is clear that a person’s medical records enjoy a confidential status. First, the right to privacy contained in Article I, section 23 of the Florida Constitution has been extended to preclude dissemination of medical records. See State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002). Second, confidential medical records are protected from disclosure as provided in Florida statutory law. See F.S. § 456.057(7)(a) Third, F.S. 90.503(2) provides that under the psychotherapist-patient privilege, a patient has a privilege to refuse to disclose confidential information or records made for the purpose of diagnosis or treatment of mental conditions, including any diagnoses made by the psychotherapist. See S.P. ex rel. R.P. V. Vecchio, 162 So. 3d 75, 79 (Fla. 4th DCA 2014).
 See 45 CFR 160.203(b). See also 45 CFR 160.202 (defining “state law” as “a constitution, statute, regulation, rule, common law, or other state action having the force and effect of law.”) See also 45 CFR 160.202(4) (defining “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.”). See also Paylan v. Fitzgerald, 223 So. 3d 431 (Fla. 2d DCA 2017) (addressing compelled disclosure of non-party records held by non-party providers).
 Cf. 45 CFR §164.512(e)(1)(ii)-(vi) and F.S. §456.057(7)(a)(3).
 See e.g. Rule 12.350, Fla. Fam. L. R. Pr. (providing procedure for production of documents from a party) and Rule 12.351, Fla. Fam. L. R. Pr. (providing procedure for production of documents from a non-party). Legal objections based on relevance are governed by state law. See F.S. 90.402 and F.S. 90.403. See also e.g. Tanner v. Hart, 313 So. 3d 805 (Fla. 2d DCA 2021) (addressing negligence plaintiff’s relevance-based objection to a request for ten years of medical records). Objections may also be based on privilege, such as the psychotherapist-patient privilege established by F.S. §90.503, which is interpreted by state-level case law. See e.g. Miraglia v. Miraglia, 462 So. 2d 507 (Fla. 4th DCA 1984) (treatment records are privileged from disclosure absent calamitous event); Critchlow v. Critchlow, 347 So. 2d 453 (Fla. 3d DCA 1977) (treatment records are privileged from disclosure absent calamitous event); Leonard v. Leonard, 673 So. 2d 97 (Fla. 1st DCA 1996) (independent evaluator may not access treatment records absent calamitous event); and Smith v. Smith, 64 So. 3d 169 (Fla. 4th DCA 2011) (privilege is only waived to the extent records relate to calamitous event, in camera review may be necessary to determine which records are discoverable).
 See definition of “more stringent” in fn.2, supra.
 See e.g. 45 CFR §164.512(e)(1)(i) and F.S. 456.057(7)(a)(2).
 See 45 CFR §164.512(e)(1)(i).
 See Rule 12.360, Fla. Fam. L. R. Pr. Specifically, in the case of physical examinations, the party-opponent has opportunity to object by filing a motion for protective order. For non-physical evaluations, there must be a prior hearing, at which the party-opponent 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. See also e.g. Oldham v. Green, 263 So. 3d 807 (Fla. 1st DCA 2018); Reno v. Reno, 282 So. 3d 163 (Fla. 1st DCA 2019); Zarzaur v. Zarzaur, 213 So. 3d 1115 (Fla. 1st DCA 2017); Koch v. Koch, 961 So. 2d 1134 (Fla. 4th DCA 1994); Leonard v. Leonard, 673 So. 2d 97 (Fla. 1st DCA 1996); and Schouw v. Schouw, 593 So. 2d 1200 (Fla. 2d DCA 1992).
 See definition of “more stringent” in fn.2, supra.
 See 45 CFR §164.512(e)(1)(iii). A copy of the subpoena alone is sufficient if on its face it meets the requirements of 45 CFR 164.512(e)(1)(iii). See U.S. Dept. of Health and Human Servs., Office of Civ. Rights, FAQ 706, Accordingly, “satisfactory assurances” would be satisfied by serving the subpoena together with the e-filed notice of intent to issue subpoena and the e-filed notice of non-objection, each with a complete certificate of service. Notice to an individual’s attorney constitutes notice to the individual. See U.S. Dept. of Health and Human Servs., Office of Civ. Rights, FAQ 707.
 45 CFR §164.512(e)(1)(iv) requires only that the movant sought inclusion of the language. It does not require that the order include the language. There may be valid reasons that the language is not included. See fn.12, infra.
 45 CFR §164.512(e)(1)(v). The requirement to return or destroy protected health information at the conclusion of litigation has received withering criticism. See Subpoenas Duces Tecum vs. HIPAA: Which Wins?, Fla. Bar. J. (Feb. 2005).
 See 45 CFR §164.512(e)(1)(v). Cf. Rule 12.280(d), Fla. Fam. L.R.P.