On October 10, 2014, a three-member panel of the U.S. Court of Appeals for the Eleventh Circuit (“Appeals Court”) overturned a lower federal court’s decision that the written authorization form required to be provided by Florida medical malpractice plaintiffs as set forth in Florida Statute § 766.1065 is in conflict with the federal Health Insurance Portability and Accountability Act (“HIPAA”) and therefore was preempted by federal law.
The federal district court had held that the written authorization form required by Florida law as a presuit condition for medical malpractice plaintiffs is not voluntary; because the authorization form is not voluntary, it would result in disclosure of the medical malpractice plaintiff’s HIPAA-protected health information without his consent and without other safeguards in HIPAA and its regulations.
The appeal involved the presuit requirement in Florida Statute § 766.1065, which became effective on July 1, 2013, that a medical malpractice plaintiff execute a written authorization form for release of protected health information as a pre-condition to filing a medical negligence claim. The plaintiff argued that the requirement for a written authorization form that allows the prospective medical malpractice defendant to obtain documents and to conduct ex parte interviews of the prospective plaintiff’s medical providers on matters pertinent to the medical negligence claim was preempted by HIPAA and its accompanying regulations (45 C.F.R. §§ 164.508, 164.512).
The Florida Medical Malpractice Statute
Florida Statute § 766.106(2)(a)-(3)(a) requires a prospective plaintiff to give a 90-day notice of the intent to initiate litigation for medical negligence (“presuit notice”); no medical malpractice lawsuit may be filed for 90 days after the notice is mailed. In addition to the presuit notice, the plaintiff must provide a verified written medical expert opinion from a medical expert to corroborate his reasonable grounds to initiate medical negligence litigation. § 766.203(2).
The presuit notice is required to include: (1) a list, if available, of all known health care providers seen by the plaintiff for the injuries complained of subsequent to the alleged act of negligence; (2) a list, if available, of all known health care providers who treated or evaluated the plaintiff during the 2-year period prior to the alleged act of negligence; (3) copies of all medical records the plaintiff’s experts relied upon in forming their opinions; and (4) an executed authorization form permitting the release of medical information. § 766.106(2)(a).
§ 766.1065(3) specifically requires that the written authorization be construed in accordance with the “Standards for Privacy of Individually Identifiable Health Information” in 45 C.F.R. parts 160 and 164, and that the written authorization must inform the plaintiff that signing the form is not a condition for continued treatment, payment, enrollment, or eligibility for health plan benefits. § 766.1065(3)(H).
The Florida Statute provides that the written authorization form must expressly allow ex parte interviews (“This authorization expressly allows the persons or class of persons listed . . . above to interview the health care providers listed . . . above, without the presence of the Patient or the Patient’s attorney”) but does not require the treating provider to submit to a request for an interview. § 766.106(6)(b)(5). The written authorization form must warn the plaintiff that information used or disclosed under the authorization may be subject to additional disclosure by the recipient and may not be protected by federal HIPAA privacy regulations. § 766.1065(3)(I). The “persons or class of persons” include the doctor defendant, his insurer, adjuster, experts, and attorneys. § 766.1065(3)(D)-(E).
State laws that conflict with federal law are without effect. A state law conflicts with federal law when it is impossible for a private party to comply with both state and federal requirements. “Express preemption” occurs where a federal statute contains explicit preemptive language. The HIPAA statute and its regulations use preemptive language (the HIPPA requirements supersede any contrary provision of State law (42 U.S.C. § 1320d-7(a)(1)); the HIPAA regulations also state that a HIPAA requirement that is contrary to a provision of state law preempts the provision of state law (subject to exceptions). 45 C.F.R. § 160.203.
However, in areas traditionally regulated by the states, there is a presumption against preemption. This presumption applies not only to whether Congress intends preemption but also to the scope of its intended invalidation of state law. If the terms of the federal statute can be read sensibly not to preempt state law, the presumption controls: if the federal preemption clause is susceptible to multiple plausible interpretations, the courts ordinarily accept the reading that disfavors pre-emption.
The HIPPA regulations permit covered entities to disclose protected health information when certain requirements are met, including disclosure made through the judicial process (§ 164.512(e)) or disclosure if an individual expressly authorizes release of his or her medical information in a valid authorization form (§ 164.502(a)(1)(iv)). The HIPAA regulations prohibit only the conditioning of medical treatment or health care benefits on the execution of a HIPAA authorization. C.F.R. § 164.508(b)(4).
§ 766.1065 And HIPAA Requirements
The Appeals Court noted that the HIPAA regulations expressly allow the release of protected health information upon the signing of a valid authorization. Subsection (2) of § 766.1065 contemplates a plaintiff’s ability to revoke the required authorization and subsection (3) explicitly requires that the authorization include the phrase “the Patient has the right to revoke this authorization in writing.” Although there is a consequence for revocation (the presuit notice is deemed retroactively void), the Appeals Court stated that the HIPAA regulations do not require that a person be able to revoke an authorization free of any consequences — the regulations just require that an authorization be revocable, which the Florida statute requires. Furthermore, the HIPAA regulations do not require that authorizations be narrow but only that they be specific (the Appeals Court stated that doctors will have no difficulty discerning the obvious purpose of a defendant’s request when presented with a signed authorization).
The Appeals Court concluded that the authorization form required in § 766.1065 complies with HIPAA, and that had the drafters of the HIPAA regulations wished to preclude a state legislature from conditioning a public benefit—such as filing a lawsuit—on signing a HIPAA authorization, they could have easily done so, just as they generally prohibit doctors from conditioning medical treatment on signing a HIPAA authorization. Because the HIPPA regulations do not do so, the Appeals Court stated it must give effect to the regulations’ silence.
The Appeals Court further stated that Florida medical malpractice plaintiffs voluntarily choose to seek redress for grievances through Florida’s judicial system. By enacting § 766.1065, Florida conditioned an individual’s ability to use a state-provided resource to advance medical negligence claims—the state judicial system—upon that individual’s executing a limited HIPAA authorization in a form that complies with HIPAA’s requirements. An individual retains the choice whether to file suit, and therefore whether to sign the authorization form.
Source Glen Murphy, Plaintiff-Appellee versus Adolfo C. Dulay, Adolfo C. Dulay, M.D., P.A., State of Florida, Defendants-Appellants, No. 13-14637 (D.C. Docket No. 4:13-cv-00378-RH-CAS).
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