A law enforcement warrant overrides HIPAA when it comes to the seizure of protected health information (PHI) -- but what about a legislative subpoena? That's being asked in Missouri, where lawmakers are trying to access patient records -- but two Part B News experts think they don't have a case.
In our March 21 issue (subscription), PBN gave guidance on how to deal with law enforcement raids on a physician practice. One point that came up: The HIPAA Privacy Rule, which generally keeps covered entities such as physicians from disclosing PHI without patient authorization, does not apply in such cases. The U.S. Department of Health and Human Services interprets the law to mean that covered entities are permitted "to comply with a court order or court-ordered warrant, a subpoena or summons issued by a judicial officer or a grand jury subpoena" and other, similar law-enforcement purposes.
The limits of that authority are tested by Republicans in the Missouri state senate, who have subpeonaed "six years' worth of documents pertaining to fetal tissue and other information about Planned Parenthood operations," according to the St. Louis Post-Dispatch, and are threatening the president of a local Planned Parenthood office and a lab owner with jail for refusing to turn these documents in.
Among other objections, the Planned Parenthood president and lab owner argue that to comply would violate HIPAA. And two of the experts who contributed to our practice-raid story tend to side them.
"A search warrant, which is only issued by a judge after a hearing at which he determines that there is probable cause to suspect that a crime has been committed and that evidence of it can be found, is vastly different form a subpoena of any kind," says George F. Indest, president and managing partner of The Health Law Firm in Orlando, Fla.
"In this case, we are speaking of a legislative subpoena, not a search warrant," Indest continues. "HIPAA and the HIPAA Privacy Rule, enacted to implement it, are federal law -- actually, a federal law and a federal regulation. Federal law is superior to any state law. States and their agencies, including the state legislature, may not legally violate federal law, and no state law or action is allowed to violate the federal law."
"I believe the president of Planned Parenthood is correct in her actions and will prevail on this issue," Indest concludes.
HIPAA allows disclosures "required by law," says Barbara J. Zabawa, attorney and founder of the Center for Health Law Equity in McFarland, Wis., "but one can argue that a legislative request is not 'law.'" She agrees that "HIPAA would neither permit nor require Planned Parenthood to disclose the PHI to the Missouri legislative leaders."