Re: Rewarding the sharks

[deirdre@cdt.org (Deirdre Mulligan)]

To build upon what Bob said, 
The minimization requirement that obligates trustees to disclose the
minimum amount of information necessary applies to all disclosures,
including those that occur under an exception.  That means the trustee of
the obligation has an independent obligation, regardless of the request by
the opposing party and whether you the record subject object or not, to
release only the smallest amount of information necessary. This will
prevent the mass disclosure of entire files in response to a workers comp
claim which happens with alarming frequency.  

Second, as Bob mentioned, these statutory obligations:  establishing a
formal process to govern requests, limiting the instances in which they can
occur, providing the individual with notice and objection, and creating an
independent obligation on the part of the trustee to protect your records
by limiting the amount of info disclosed, are all _in addition to_ any
state or federal privilege that you might have.
Deirdre

>On Mon, 27 Nov 1995, James Love wrote:
>
>> here is the Sec. 210 language, regarding access to your medical records 
>> for judicial or administrative purpose.  jl
>
>The text is reproduced below.
>
>I thought that I would add a word of explanation for those who need it.  
>All of the uses for judicial and administrative purposes authorized in 
>the section below are routine today.  However, the terms and conditions 
>proposed in the legislation are more restrictive than is common today.
>
>Note that disclosures pursuant to rules of procedure are limited to
>cases where the patient is a party and has placed his/her condition in
>issue.  If the patient is not a party, then this authorized disclosure
>does not apply.  
>
>Second, the section requires that the patient be given
>notice of the discovery request and be provided an opportunity to
>challenge it in court.  This is a right that is not always available
>today.  A guaranteed chance to fight back against unreasonably broad 
>discovery demands!
>
>Third, any person receiving information under this section 
>becomes a health information trustee and is restricted by section 201 
>from using or disclosing the information for noncompatible secondary 
>uses.  This is a brand new statutory restriction that applies to the 
>lawyer for the other side.  This means that you have a remedy if your 
>records are misused.
>
>Finally, note that section 210 does not require any disclosure.  It only 
>authorizes a trustee to make a disclosure.  The trustee may have other 
>grounds for resisting or fighting a requested disclosure.
>
>This is a lot better than current law!!!
>
>Bob Gellman

>
>> 
>> On Wed, 22 Nov 1995 JWRCLUM@aol.com wrote:
>> > Refer to section 210 (a) of the Bennett bill.
>>           SEC. 210. JUDICIAL AND ADMINISTRATIVE PURPOSES.  
>>             (a) IN GENERAL- A health care provider, health plan, health  
>>           oversight agency, employer, school, university, insurer, or person
>> 
>>           who receives protected health information under section 206, may  
>>           disclose protected health information--  
>>                 (1) pursuant to the Federal Rules of Civil Procedure, the  
>>               Federal Rules of Criminal Procedure, or comparable rules of  
>>               other courts or administrative agencies, in connection with  
>>               litigation or proceedings to which the individual who is the  
>>               subject of the information is a party and in which the  
>>               individual has placed his or her physical or mental condition 
>> 
>>               at issue;  
>>                 (2) to a court, and to others ordered by the court, if the  
>>               protected health information is developed in response to a  
>>               court-ordered physical or mental examination; or  
>>                 (3) pursuant to a law requiring the reporting of specific  
>>               medical information to law enforcement authorities.  
>>             (b) OBLIGATIONS OF RECIPIENT- A person seeking protected health  
>>           information pursuant to subsection (a)--  
>>                 (1) shall notify the individual or the individual's attorney
>> 
>>               of the request for the information;  
>>                 (2) shall provide the health information trustee with a   
>>               signed document attesting--  
>>                     (A) that the individual has placed his or her physical
>>or  
>>                   mental condition at issue in litigation or proceedings in  
>>                   which the individual is a party; and  
>>                     (B) the date on which the individual or the individual's
>> 
>>                   attorney was notified under paragraph (1); and  
>>                 (3) shall not accept any requested protected health  
>>               information from the trustee until the termination of the   
>>               10-day period beginning on the date notice was given under  
>>               paragraph (1).  
>> 

Deirdre K. Mulligan
Staff Counsel
Center for Democracy and Technology
1001 G Street, NW
Suite 500 East
Washington, DC
20001
(202)637-9800
(202)637-0968
http://www.cdt.org/