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HIPAA AND PARTY-OPPONENT MEDICAL RECORDS IN FLORIDA DIVORCE

A party’s medical or therapy records may arguably 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’s medical records law. However, these laws do not prevent disclosure of a party-opponent’s medical records if disclosure is pursuant to a duly issued subpoena or court order under Florida law, and satisfactory assurances of due process under HIPAA are made.

Preemption

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 party or non-party subpoena or (ii) forensic medical records generated as a result of a court-ordered examination or evaluation.

HIPAA’s Privacy Rule45 CFR Part 160 and 164, is the federal law that governs disclosure of protected health information. Florida’s medical records law, F.S. §456.057, is the Florida law that governs medical record disclosure and doctor-patient confidentiality. HIPAA preempts less stringent state law.[1]

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 laws allow for disclosure if the party is provided with notice and opportunity to object.[2]

There is no “federal” family law. Divorce and paternity cases are governed by Florida statutes, family law rules of procedure, and case law. Florida’s family law rules of procedure establish the method and requirements for issuance of an enforceable subpoena, as well as any privilege that might apply to prevent disclosure.[3] Therefore, Florida law is generally more stringent than HIPAA in the context of compelled disclosure of treatment records pursuant to subpoena.[4]

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.[5] HIPAA does not include an explicit requirement that the party-opponent be given notice or opportunity to object.[6] Florida rules of procedure, and interpreting caselaw, govern family law cases and provide more detail about the method and requirements for obtaining a compelled examination or evaluation. This process requires that the party-opponent be given notice, opportunity to object, and satisfy other rule-based requirements.[7] Therefore, Florida law is generally more stringent than HIPAA in the context of compelled disclosure of treatment records pursuant to court-ordered examination or evaluation.[8]

HIPAA’s “Satisfactory Assurances”

Notwithstanding the foregoing, HIPAA requires that subpoenas to non-party medical providers be accompanied by “satisfactory assurances” that the party-opponent was provided notice and opportunity to object to the subpoena, and either no timely objections were made or were resolved by the court.[9] Court orders must prohibit use or disclosure of records for any purpose other than the instant litigation and require their return or destruction at the conclusion of the proceeding.[10] These requirements are arguably more stringent than Florida law, which does not require the non-party provider be provided an additional statement of “satisfactory assurances” or require a court order to contain any specific conditions on disclosure.

Conclusion

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 laws permit compelled disclosure in open litigation pursuant to subpoena or court order. However, Florida law is generally “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 as well as the parameters of any statutory privilege preventing disclosure of treatment records. 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 “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.

— ENDNOTES —

[1] 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).

[2] Cf. 45 CFR §164.512(e)(1)(ii)-(vi) and F.S. §456.057(7)(a)(3).

[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) (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, 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).

[4] See definition of “more stringent” in fn.1, supra.

[5] See e.g. 45 CFR §164.512(e)(1)(i) and F.S. 456.057(7)(a)(2).

[6] See 45 CFR §164.512(e)(1)(i).

[7] 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.

[8] See definition of “more stringent” in fn.1, supra.

[9] 45 CFR §164.512(e)(1)(iii).

[10] 45 CFR §164.512(e)(1)(v). The requirement to return or destroy protected health information at the conclusion of litigation has been subjected to withering criticism. See Subpoenas Duces Tecum vs. HIPAA: Which Wins?, Fla. Bar. J. (Feb. 2005).

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