We propose to permit covered entities to disclose protected health information in a judicial or administrative proceeding if the request for such protected health information is made through or pursuant to a court order or an order by an administrative law judge specifically authorizing the disclosure of protected health information. The exception to this requirement is where the protected health information being requested relates to a party to the proceeding whose health condition is at issue, and where the disclosure is made pursuant to lawful process (e.g., a discover order) or is otherwise authorized by law. We note that this would not apply where the disclosure would otherwise be permitted under this rule.
The proposed provisions of this section are intended to apply to the broad spectrum of judicial and administrative procedures by which litigants, government agencies, and others request information for judicial or administrative proceedings, including judicial subpoenas, subpoenas duces tecum, notices of deposition, interrogatories, administrative subpoenas, and any disclosure pursuant to the Federal Rules of Civil Procedures, the Federal Rules of Criminal Procedures, comparable rules of other courts (including State, tribunal, or territorial courts) and comparable rules of administrative agencies. Under the rule, a covered entity could not respond to such requests unless they determined that the request is pursuant to a court order authorizing disclosure of protected health information or if the individual who is the subject of the protected health information is a party to the proceeding and his or her medical condition or history is at issue.
Covered entities generally would not be required to conduct any independent investigation of the legality of the process under which the protected health information is being sought, but would need to review the request protected health information to ensure that the disclosure would meet the terms of this provision. Where the request is accompanied by an order from a court, the covered entity could rely on a statement in the order authorizing disclosure of protected health information. The statement could be a general one, indicating that protected health information is relevant to the matter, or it could identify specifically what protected health information may be disclosed. The covered entity could rely on either type of statement, but it could not disclose more information than was authorized by the court where the scope of the authorized disclosure is clear.
Where the request is not accompanied by a court order or order from an administrative law judge, the covered entity would be required to determine whether the request relates to the protected health information of a litigant whose health is at issue, a written statement from the requester certifying that the protected health information being requested is about a litigant to the proceeding and that the health condition of such litigant is at issue at such proceeding. Such a certification could be from the agency requesting the information (e.g., in an administrative proceeding) or from legal counsel representing a party to litigation. We invite comments on whether this requirement is overly burdensome and on whether it is sufficient to protect protected health information from unwarranted disclosures.
We are not proposing to preclude a covered entity from contesting the nature or scope of the process when the procedural rules governing the proceeding so allow and covered entities could well choose to assert privileges against disclosure on behalf of individuals.
In developing our proposal, we considered permitting covered entities to disclose protected health information pursuant to any request made in conjunction with a judicial or administrative proceeding. We rejected this option because we believe that current procedures for document production could result in unwarranted disclosure of protected health information. Under current practice, requests for documents are developed by the parties to a proceeding, with little review or oversight unless the request is challenged by the opposing party. In many instances, the parties make very broad discovery requests that result in the production of large numbers of documents for review. Recipients of broad motions for document production often provide the requester with a substantial quantity of material, expecting the requester to page through the documents to identify the ones that are relevant to the proceeding. While such a process may be appropriate for many types of records, we are concerned that it could lead to substantial breaches of privacy where the material being requested is protected health information. We are unsure if it is appropriate for private attorneys, government officials and others who develop such requests to be able to circumvent the protections provided by this rule with simple motions for document production that have not been subject to third-party review.
Under our proposal, therefore, a party to a proceeding that wishes production of information that includes protected health information would generally need to seek judicial review of the request. If a court determines that a request for protected health information is appropriate to the proceeding, a covered entity can produce the protected health information pursuant to an otherwise lawful request.
We propose an exception to the general requirement for judicial review for protected health information for instances in which the protected health information of a party to the proceeding is relevant to the proceeding. In such instances, the party will have counsel who can object to an overly broad or unwarranted discovery of the party’s protected health information or will receive the discovery request directly and, again, will have an opportunity to object prior to disclosure.
We note that there are other existing legal requirements governing the disclosure of protected health information, and which govern the procedures in federal, State and other judicial and administrative proceedings. For example, 42 U.S.C. 290dd-2 and the implementing regulations, 42 CFR part 2, will continue to govern the disclosure of substance abuse patient records. There may also be provisions of a particular State’s law governing State judicial or administrative proceedings, including State medical record privacy statutes, as well as precedential court opinions, which apply to the circumstances described in the section, that will not be preempted by this part. Also, the discovery of psychiatric counseling records in federal proceedings governed by section 501 of the Federal Rules of Evidence, has been restricted in certain circumstances, by Jaffee v. Redmond, 116 S. Ct. 1923 (1996). These more stringent rules would remain in place.