How to Litigate an HIV confidentiality case

How to Litigate an HIV

confidentiality case

Sally FriedmanLegal DirectorLegal Action Center(212) 243-1313www.lac.org

[email protected]

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Today’s topics

Part 1: HIV stigma & discrimination

Part 2: Substantive HIV confidentiality protections

Part 3: How to Litigate an HIV confidentiality case

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Part 1: Rationale for HIV confidentiality law

StigmaSee articles in hand-outs.

Discrimination

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Part 2

Substantive HIV confidentiality

Protections

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Applicable laws

Article 27-F, NYS Public Health Law Secs. 2780 et. seq.

HIPAA Fiduciary duty of confidentiality Constitutional right to privacy Privacy Act (federal)

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Today’s focus:

Article 27-F, NYS Pub. Health Law HIPAA

Will touch on fiduciary duty of confidentiality

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What is Article 27-F?

• HIV testing• HIV confidentiality

• Today’s focus – the confidentiality provisions

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Article 27-F Who is Bound by the Law? ANY person who receives HIV-related

information about a protected individual:• while providing a “health or social service” OR• pursuant to a proper written consent

NY governmental agencies that: provide, supervise or monitor health or social

services OR obtain HIV related info pursuant to Article 27-F

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Article 27-F Does NOT apply to:

Protected individuals themselves Friends, relatives Courts Insurers Federal agencies (military, federal prisons) Schools (except medical staff) Employers

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Article 27-F What information is protected?

HIV test HIV test results, even if negative HIV infection or HIV related illness or AIDS HIV related condition Medication specific to HIV disease Contact of someone with HIV:

Sexual partner, spouse, needle sharing

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What is HIPAA?

HealthInsurancePortabilityAccountabilityAct of 1996

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HIPAAGenerally

Establishes a federal floor of safeguards to protect the privacy of medical records and other “personal health information”

Applies to health information transmitted in any form: electronic, written or oral.

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HIPAAWho is Covered?

Covered Entities Are:• Health Care Providers• Health Plans• Health Care Clearinghouses

IF they transmit health information electronically in connection with certain covered transactions – generally concerning billing and eligibility

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HIPAACovered Transactions• processing claims• payment and remittance• coordination of benefits• claim status• enrollment and disenrollment in a health plan• health plan eligibility• health plan premium payments• referral certification and authorization• first report of injury

• health claims attachments

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HIPAA & Article 27-FWho Must Comply with Both?

• Most health care providers in New York State, provided they transmit health information electronically for purposes of billing or reimbursement.

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When Federal & State Laws Regulate the Same Subject

HIPAA pre-empts any “contrary” state law provision except when, among other things:

The state law relates to privacy AND is “more stringent” than the HIPAA provision.

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HIPAAMore Stringent Test

Provides greater privacy protection for the individual who is the subject of protected information.

Gives an individual greater rights to access or to amend his/her own health records;

Provides more information to an individual regarding a use, disclosure, or rights and remedies;

Provides a narrower scope or duration, or affords increased privacy protections, for express legal permissions for use or disclosure, or reduces the coercive effect of such permissions;

Provides for the retention or reporting of more detailed information in an accounting of disclosures;

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What is “fiduciary duty of confidentiality?”

Requires fiduciary to maintain confidentiality of HIV (and other) information

Covers: Health care providers Pharmacists Other fiduciaries

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What is Constitutional right to privacy?

Protects against disclosure of certain intimate information

Protects confidentiality of HIV information. Doe v. City of NY, 15 F.3d 264 (2d Cir. 1994)

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Constitutional right to privacy: who is covered?

Government employees, officials, and agents acting under color of local, state, or federal law

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What is Privacy Act?

Prohibits some federal agencies from disclosing private information

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Article 27-F & HIPAA

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What’s the Law?The General Rule HIPAA: A covered entity may not “use or disclose”

protected health information which is created or received by a covered entity AND relates to the past, present or future physical or mental health of an individual.

Article 27-F: Health & social service providers AND people who receive HIV related info pursuant to written release may not disclose (or redisclose) any HIV related information about a protected individual. (§ 2782)

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Article 27-F

Protected Persons

Person who has HIV Person who has had an HIV test Contacts (spouse, sexual partner or needle-sharing partner)

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The Main “Exceptions” permitting disclosure Both HIPAA & Article 27-F have “exceptions”

that allow entities to share HIV information.

This training will cover five of them: Written consent Internal communications health care Partner notification Court order

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CONSENT

Requirements for written consent:

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Article 27-FConsent

Voluntary & Revocable at any time Written Contain specific elements required by

both HIPAA & Art. 27-F Form must be approved by DOH (see

sample) Will be necessary during litigation.

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Article 27-FNo Redisclosure

Person receiving information pursuant to consent may not redisclose

Person providing information pursuant to consent must provide notice prohibiting redisclosure (see sample). This needs to happen during litigation!

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Internal communications

Requirements under Art. 27-F and HIPAA:

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Article 27-FInternal communications

Agency staff may share HIV related information IF the staff members:• Are allowed access to client records in

ordinary course of business; • Are specifically authorized in the agency’s

written “need-to-know” protocol; OR• Have a reasonable need to know or share

the information to carry out their authorized duties

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Identify & document members of the workforce who need access

Identify & document the categories of information to which they need access

Identify & document any conditions to their access

HIPAAMinimum Necessary Standard

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To Health Care Providers

May disclose HIV related information to a health care provider when it is necessary to provide care to:

1. The individual2. His or her child OR3. A contact

Document the disclosure.

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To Health Care Providers (cont.)

This exception only operates if the disclosure is for the purpose of providing health care to the protected person (or his/her child or contact) –

and not for purposes such as: workers compensation, Infection control

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Case Reporting & Partner Notification

Physicians & labs who diagnose HIV are required to report every case of HIV infection, HIV related illness and AIDS diagnosis to DOH

Report to State DOH

State rediscloses contact info to local DOH for partner notification

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Case Reporting & Partner Notification (cont.)

Physicians report Known contacts Domestic violence risk Whether contacts have been notified

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ONLY physicians and special Dept of Health staff are permitted to notify named partners of HIV infected individual

NO ONE ELSE is permitted to do partner notification

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Physicians may notify contact if: Significant risk of infection Counsels about need to notify Does domestic violence screen Informs patient that –

Intends to notify & must tell DOH Can choose to have DOH notify Source person’s name won’t be revealed

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Court Orders & Subpoenas

Subpoenas do NOT authorize disclosure of HIV-related information – even if “so ordered” by court

• Need client consent to respond to subpoena

• If no consent, may redact HIV information from records if possible

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Article 27-FCourt OrdersCourt may order disclosure IF:

Compelling need for adjudication of lawsuit, or

Clear and imminent danger to life or health of persons unknowingly at significant risk, or

Applicant is lawfully entitled and disclosure is consistent with Article 27-F.

(NYS Pub. Health Law § 2785)

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Article 27-FCourt Order Procedure

Notice Opportunity to be heard Fictitious name Confidential proceeding

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Article 27-FComplaints & Violations

$5,000 civil fine criminal penalty if willful private right of action (can sue) file complaint with DOH: (800) 962-

5065

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No private right of action May file a complaint with the Covered Entity and/or

Office of Civil Rights of the U.S. Dept. of Health & Human Services within 180 days of the violation

Penalties range from civil fine ($100 per violation to maximum $25,000 per calendar year) to various criminal fines & imprisonment. Rarely – if ever – imposed.

HIPAAEnforcement and Complaints

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Part 2

How to Litigate an Article 27-F Case

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Establish what client wants

Clients goals often change. Usual range: acknowledgment that someone hurt

them money BUT don’t forget about effect of

lump sum on public benefits policy change & training: “it shouldn’t

happen to anyone else” It’s largely about stigma & dignity

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LawsuitsArticle 27-F

Individuals may sue in court for violations of Article 27-F

Damages include: Emotional harm Lost wages Other out-of-pocket losses Punitive damages

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LawsuitsHIPAA

Individuals may not bring lawsuits to enforce HIPAA

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LawsuitsFiduciary duty of confidentiality

May add a claim for breach of common law fiduciary duty of confidentiality

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Lawsuits Don’t give client unrealistic expectation of

easy money Downside to lawsuits:

Can take many years Hard to find free legal counsel Have to relive the trauma through testimony and

continuous contact with attorney Client’s medical (some) and mental health (most

or all) records are discoverable

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Lawsuits

Downside to lawsuits (cont.): Adversarial model can make clients

even angrier, as “breacher” defends position

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Lawsuits

Advantages of lawsuits: Might win or get good settlement Victory/good settlement might feel like

“justice” Advocacy by counsel can restore client’s

dignity

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Pre-litigation negotiations

Explain pros & cons of early settlement: Pros:

Spares client tremendous emotional toll: Probing associated with litigation (mental

health & medical records are shared) Reliving the event

Get “something” as opposed to risk losing

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Pre-litigation negotiations (cont.)

Cons: May be unsuccessful and delay an ultimate

resolution

Pre-litigation negotiations may be more productive if client doesn’t seek high monetary damages

See sample demand letter

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Getting the Litigation Started

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Releases for Disclosure to Opposing Counsel and the Courts

Need client’s written consent to release HIV-related information to opposing counsel (this includes their insurers)

Also need written consent to file HIV-related information with the courts

Will need more consents for discovery

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Releases for Disclosure to Opposing Counsel and the Courts

REMEMBER: people who receive HIV information pursuant to a release become bound by Art. 27-F too.

Must send the Notice Prohibiting Redisclosure!

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Motion to Proceed Under Pseudonym

Client may not want to proceed under real name

May file Order to Show Cause to proceed under pseudonym Different courts have different practices Some may barely be familiar with it Check with clerk

See sample papers

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Complaint

Decide: Defendants – individual who committed

breach & employer? Relief (more on this later) Jury?

See sample, Doe v. Family Aides

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Confidentiality During Discovery See sample confidentiality stipulations.

Educate opposing counsel about how HIV confidentiality rules affect discovery!

Don’t have health care providers send documents to the court record room unless confidentiality protections are put in place.

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Settlement Negotiations Don’t forget about injunctive relief.

Easy to get sidetracked on damages alone.

Confidentiality clauses (gag rules): try to limit them, but it’s the client’s ultimate decision.

Do NOT forget about effect of money on client’s government benefits. Call Legal Action Center for help.

How to put a price tag on emotional harm? (Next slide)

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Proving Harm: Damages

Different treatment by outside world: Ostracism Problems at work Physically accosted

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Damages: how much?Subjective changes

Depression Paranoia Isolation Sleeplessness Lost appetite

Headaches Quarreling with

loved ones Got therapy Physical

manifestations

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For more information

Legal Action Center can provide:

detailed memo on caselaw awarding damages for privacy violations

Sample client affidavits regarding emotional harm

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Recent successes

$65,000 settlement: Social Security Administration

$50,000 settlement: medical office $35,000 settlement: police officer

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Administrative Remedies

Administrative remedies can be pursued simultaneously (though note deadlines). US – HHS, Office of Civil Rights NYS - Dept of Health NYS - Office of Prof. Medical Conduct NYS - Office of the Professions

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Administrative remediesArticle 27-F – DOH Process

File complaint with DOH-AIDS Institute, Special Investigation Unit

Complaint form is in hand-outs (800) 962-5065 Unit might refer it to agency overseeing or

employing “breacher” HRA, DOH Home Care or Hospitals Bureaus, Dept

of Corrections

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Administrative remediesArticle 27-F – DOH Process (cont’d)

5,000 civil fine criminal penalty if willful Usual remedy = “statement of

deficiencies” requiring corrective action

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Administrative remedies:Article 27-F – DOH Process (cont’d)

Monitor progress of complaint If don’t get resolution, keep calling!

Speed and thoroughness of investigations may vary by agency

No pre-set timeframes

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Administrative remedies:Article 27-F – DOH Process (cont’d)

Appeal: May appeal within 60 days of mailing of

the finding But client likely will not be advised of

right to appeal

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Administrative RemediesNYS Office of Professional Medical Conduct

Violation of Article 27-F and HIPAA also can violate State laws/rules governing the professions

Complaints against physicians may be filed with Office of Professional Medical Conduct

[email protected] Complaint form is in hand-outs

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Administrative RemediesNYS Office of the Professions

HIV confidentiality breaches by other licensed professions (e.g., social workers, nurses, pharmacists)

Complaints can be filed with NYS Education Dept., Office of the Professions

Central office: 212/951-6400 Complaint form is in hand-outs

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Questions?

For help with HIV confidentiality litigation, call Legal Action Center and ask for:

Sally Friedman Renee Martinez

212-243-1313

Documents

How to Litigate an HIV confidentiality case