Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for Defendant ValueOptions, Inc. IN THE UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA 8 SHANNON MICHAEL CLARK, 9 Plaintiff, 10 v. 11 VALUEOPTIONS, INC., 12 Defendant. 13 14 15 16 17 18 19 20 21 22 23 24 25 By: 26 27 28 /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc. Defendant ValueOptions, Inc. ("ValueOptions"), through undersigned counsel, hereby files its Response and Objection to Plaintiff's Motion to Reopen Discovery. Plaintiff clearly intends to utilize the requested discovery to seek disclosure of information and documents protected under the Health Insurance Portability and Accountability Act of 1996 ("HIPPA") and A.R.S. § 36-509. Plaintiff's motion should be denied since it is untimely and seeks disclosure of confidential information protected by State and Federal law. This motion is supported by the pleadings on file and the following Memorandum of Points and Authorities. DATED this 2nd day of September, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C. VALUEOPTIONS' RESPONSE AND OBJECTION TO PLAINTIFF
Case 2:03-cv-01344-EHC-HCE

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MEMORANDUM OF POINTS AND AUTHORITIES By enacting HIPPA, congress acknowledged the importance of the privacy of medical records and the strong federal policy in favor of protecting patient records. United States v. Sutherland, 143 F.Supp. 2d 609, 612 (W.D.Vir. 2001). As part of HIPPA, congress directed the Secretary of Health and Human Services to promulgate final regulations setting privacy standards for medical records. Id. HIPPA provides a general prohibition of dissemination of private patient medical records. Id. It is transparent from a review of Plaintiff's Motion to Reopen Discovery that he intends to utilize additional discovery to attempt to obtain private medical records of other ValueOptions consumers, medical records directly within the purview of HIPPA protections. In response to the congressional directive, the Secretary of Health and Human Services promulgated 45 C.F.R. § 164.512, which established narrowly tailored exceptions to HIPPA's general prohibition against the dissemination of private patient medical records. Id. 45 C.F.R. § 164.512(e)(1) specifically addresses when a covered entity may disclose protected health information in the course of judicial proceeding. A covered entity may not disclose protected health information except: (1) in response to an order of a court to the extent dissemination of the protected health information is expressly authorized by the order, 45 C.F.R. § 164.512(e)(1)(i); (2) in response to a subpoena or discovery request only after the covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iii), that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information has been given notice of the request, 45 C.F.R. § 164.512(e)(1)(ii)(A), or; (3) in response to a subpoena or discovery request only after the covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv), that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v), 45 C.F.R. § 164.512(e)(1)(ii)(B).

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Case 2:03-cv-01344-EHC-HCE

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Absent of showing that one of the narrow exceptions applies, Plaintiff cannot obtain private patient medical records due to HIPPA's general prohibition. ValueOptions cannot disclose the records referenced by Plaintiff since Plaintiff has not complied with any of the above listed requirements. Even if Plaintiff attempted to comply with one of the narrow exceptions, Plaintiff cannot make a sufficient showing justifying disclosure of the records under the judicial balancing test weighing the interest of the party requesting protected records against the strong federal policy in favor of protecting the privacy of medical records from "unreasonable or oppressive" disclosure without the opportunity for the affected patient to object. Sutherland, supra, 143 F.Supp. 2d at 613. In Sutherland, the court refused to allow the release of medical records sought by the government relating to the prosecution of medical doctor accused of criminally acting without a legitimate medical purpose and beyond the bounds of medical practice. Id. Despite the court's recognition of the government's compelling interest in obtained patient records, the court refused to allow disclosure of the records because it would be "unreasonable or oppressive" to permit disclosure of records without the affected patient's opportunity to object. Id. Similar to Sutherland, Plaintiff cannot possibly offer sufficient justification to require the release of private and confidential patient medical records of other ValueOptions consumers. Even if Plaintiff attempted comply with one of the exceptions of 45 C.F.R. § 164.512(e)(1), the strong federal policy prohibiting the disclosure of private medical records Plaintiff's interest in obtaining such records 1 .

HIPPA and the applicable federal regulations supercede any contrary provision of state law with the exception of state laws relating to the privacy of an individual the identifiable health information that is "more stringent" than HIPPA's requirements. United States of America v. The Louisiana Clinic, 2002 WL31819130, *3 (E.D.La. 2002). A.R.S. §36-509 is substantially similar to HIPPA and the applicable code of federal regulations. Similarly, A.R.S. §36-509 precludes discovery of private medical records Plaintiff seeks. 3

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1 2 3 4 5 6 7 8 9 10 11 12 13 By: 14 15 16 17 18 19 20 21 22 23 ______________________________ 24 25 26 27 28 4 Copy of the foregoing sent by U.S. mail on this _____ day of September, 2005 to: Shannon M. Clark #113372 ASPC-Lewis-Rast Unit P.O. Box 3600 Buckeye, Arizona 85326 Plaintiff pro per ORIGINAL and ONE COPY filed with the Court on this _____ day of September, 2005. /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc. CONCLUSION Plaintiff's only justification for the Motion to Reopen Discovery is to seek the disclosure of private patient medical records protected by HIPPA and A.R.S. § 36-509. Plaintiff has not shown that any of the narrowly tailored exceptions of 45 C.F.R. § 164.512(e)(1) apply. Plaintiff also cannot offer sufficient justification to overcome the strong federal policy in favor of protecting private medical records. As such, ValueOptions requests that this Court deny Plaintiff's Motion to Reopen Discovery based upon the above cited legal authorities. RESPECTFULLY SUBMITTED this 2nd day of September, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

Case 2:03-cv-01344-EHC-HCE

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