How to Litigate an HIV confidentiality case
description
Transcript of How to Litigate an HIV confidentiality case
How to Litigate an HIV
confidentiality case
Sally FriedmanLegal DirectorLegal Action Center(212) 243-1313www.lac.org
3
Today’s topics
Part 1: HIV stigma & discrimination
Part 2: Substantive HIV confidentiality protections
Part 3: How to Litigate an HIV confidentiality case
4
Part 1: Rationale for HIV confidentiality law
StigmaSee articles in hand-outs.
Discrimination
5
Part 2
Substantive HIV confidentiality
Protections
6
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)
7
Today’s focus:
Article 27-F, NYS Pub. Health Law HIPAA
Will touch on fiduciary duty of confidentiality
8
What is Article 27-F?
• HIV testing• HIV confidentiality
• Today’s focus – the confidentiality provisions
9
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
10
Article 27-F Does NOT apply to:
Protected individuals themselves Friends, relatives Courts Insurers Federal agencies (military, federal prisons) Schools (except medical staff) Employers
11
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
12
What is HIPAA?
HealthInsurancePortabilityAccountabilityAct of 1996
13
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.
14
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
15
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
16
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.
17
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.
18
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;
19
What is “fiduciary duty of confidentiality?”
Requires fiduciary to maintain confidentiality of HIV (and other) information
Covers: Health care providers Pharmacists Other fiduciaries
20
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)
21
Constitutional right to privacy: who is covered?
Government employees, officials, and agents acting under color of local, state, or federal law
22
What is Privacy Act?
Prohibits some federal agencies from disclosing private information
23
Article 27-F & HIPAA
24
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)
25
Article 27-F
Protected Persons
Person who has HIV Person who has had an HIV test Contacts (spouse, sexual partner or needle-sharing partner)
26
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
27
CONSENT
Requirements for written consent:
28
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.
29
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!
30
Internal communications
Requirements under Art. 27-F and HIPAA:
31
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
32
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
33
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.
34
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
35
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
36
Case Reporting & Partner Notification (cont.)
Physicians report Known contacts Domestic violence risk Whether contacts have been notified
37
Case Reporting & Partner Notification (cont.)
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
38
Case Reporting & Partner Notification (cont.)
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
39
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
40
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)
41
Article 27-FCourt Order Procedure
Notice Opportunity to be heard Fictitious name Confidential proceeding
42
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
43
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
44
Part 2
How to Litigate an Article 27-F Case
45
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
46
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
47
LawsuitsHIPAA
Individuals may not bring lawsuits to enforce HIPAA
48
LawsuitsFiduciary duty of confidentiality
May add a claim for breach of common law fiduciary duty of confidentiality
49
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
50
Lawsuits
Downside to lawsuits (cont.): Adversarial model can make clients
even angrier, as “breacher” defends position
51
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
52
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
53
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
54
Getting the Litigation Started
55
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
56
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!
57
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
58
Complaint
Decide: Defendants – individual who committed
breach & employer? Relief (more on this later) Jury?
See sample, Doe v. Family Aides
59
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.
60
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)
61
Proving Harm: Damages
Different treatment by outside world: Ostracism Problems at work Physically accosted
62
Damages: how much?Subjective changes
Depression Paranoia Isolation Sleeplessness Lost appetite
Headaches Quarreling with
loved ones Got therapy Physical
manifestations
63
For more information
Legal Action Center can provide:
detailed memo on caselaw awarding damages for privacy violations
Sample client affidavits regarding emotional harm
64
Recent successes
$65,000 settlement: Social Security Administration
$50,000 settlement: medical office $35,000 settlement: police officer
65
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
66
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
67
Administrative remediesArticle 27-F – DOH Process (cont’d)
5,000 civil fine criminal penalty if willful Usual remedy = “statement of
deficiencies” requiring corrective action
68
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
69
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
70
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
71
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
72
Questions?
For help with HIV confidentiality litigation, call Legal Action Center and ask for:
Sally Friedman Renee Martinez
212-243-1313