Contributed by Elizabeth R. Larkin and Jessica Forbes Olson

Health care providers know about and have worked with HIPAA privacy and security rules for well over a decade. They have diligently applied it to their covered entity health care provider practices and to their patients and think they have HIPAA covered.

What providers may not realize is that they may actually have two separate HIPAA covered entities. A provider that offers an employee group health plan (which includes a self-insured medical, dental, or vision plan, an employee assistance program, a health reimbursement arrangement, and any health flexible spending account benefits) has a covered entity health plan and there are some additional and different HIPAA requirements that must be addressed.

Health care providers need to ensure they have implemented HIPAA for their covered entity group health plans and plan participants (employees) and their dependents who are enrolled in coverage. Providers should not rely on the HIPAA compliance documentation that they use for patients for use with their group health plans.

HIPAA applies differently to covered entity health care providers and covered entity group health plans. For example:

  • A group health plan is required to have a HIPAA plan document amendment that includes specific promises to comply with the HIPAA rules, including an obligation of the plan sponsor (employer) to not use protected health information (PHI) for employment related reasons or for any benefits other than the group health plan without signed authorizations from impacted group health plan participants and their dependents. The plan document amendment needs to be adopted (signed) in the same manner as other group health plan amendments.
  • A group health plan needs to indicate in the plan document amendment which employees are allowed to have access to group health plan PHI to perform group health plan administration activities. This will be limited to a small group of individuals (e.g., individuals in HR/benefits and payroll and IT personnel who provide support services to them along with the HIPAA privacy and security officials for group health plans).
  • A group health plan is required to have a document certifying that they have the appropriate HIPAA plan document amendment in place.
  • HIPAA training for the group health plans is limited to those workforce members listed in the HIPAA plan amendment as being entitled to access PHI in connection with performing plan administration functions (instead of the entire company workforce).
  • A group health plan needs its own HIPAA notice of privacy practices that describes how the group health plan will use and disclose PHI, which will be different from the notice of privacy practices it uses as a health care provider. (For example, one main reason a provider will use PHI is for treatment for its patients.  This will not apply to a group health plan since it does not provide treatment, but instead pays for covered treatment.)
  • The posting and distribution requirements for a group health plan notice of privacy practices to plan participants are different than the posting and distribution requirements that apply to patients.
  • A group health plan may not have to comply with more stringent state privacy or security laws due to ERISA preemption.
  • A group health plan needs HIPAA policies and procedures, but due to the differences between covered entity providers and covered entity group health plans, they will be different.
  • A group health plan needs a HIPAA privacy and HIPAA security official appointed. They can be the same individuals that act in this capacity for the covered entity provider, but do not have to be and often are not, at least for the HIPAA privacy official.  Group health plans often appoint as their HIPAA privacy official someone senior who is responsible for overseeing employee benefits (e.g., VP of Compensation and Benefits or Director of Benefits), while covered entity providers often appoint an organization-wide compliance officer or someone who works closely with that person to be the HIPAA privacy official.

The U.S. Department of Health and Human Services (HHS) is in the process of selecting covered entities and their business associates to audit for HIPAA compliance, and it is possible that HHS could select the health care provider’s covered entity group health plan to audit rather than (or in addition to) the covered entity health care provider practice. HHS can impose separate penalties for covered entity group health plan violations.  The range of possible penalties is the same for covered entity group health plans and covered entity health care providers.

Not only do covered entity health care providers have an obligation to ensure that their separate covered entity group health plans are in compliance with HIPAA, it will reflect poorly on a practice to have a HIPAA violation with respect to its group health plan. If you don’t comply with HIPAA for your employee group health plans, patients may assume that you don’t comply with HIPAA for your practice.

In short, health care providers need to make certain that they comply with HIPAA with respect to both their practices and their employee group health plans.

My heart goes out to any family member trying desperately to get news about a loved one in the hours and days following an individual or widespread tragedy, irrespective of whether it was triggered by an act of nature, an act of terrorism, or any other violent, unanticipated, life-taking event. My mind, though, struggles with the idea that HIPAA could actually exacerbate and prolong a family member’s agony.

HIPAA is, generally speaking, intended to protect our privacy when it comes to health status, treatment, or payment and to facilitate appropriate access to our health information. But, as is typical with federal laws intersecting areas historically governed by State law, HIPAA defers to State law in some key respects.  For example, if a HIPAA provision is contrary to a similar provision of State law, it preempts State law unless the State law relates to the privacy of individually identifiable health information and is “more stringent” than the comparable HIPAA provision.  HIPAA also references “applicable law” in describing who can get information as a personal representative of an individual or act on behalf of a deceased individual.

So what does this mean in the context of family members seeking information about loved ones following the devastating Orlando, Florida night club shooting or following some other violent tragedy?

If a victim is hospitalized and a friend or family member is trying to get information about the victim, HIPAA permits the hospital to share information under the following circumstances:

*          A hospital may use protected health information (PHI) to notify or assist in the notification of a family member, personal representative or other person responsible for the patient’s care of the patient’s location, general condition or death

*          A hospital can use a facility directory to inform visitors and callers of a patient’s location and general condition

*          A hospital can release information as to the victim of a crime in response to law enforcement’s request for such information under certain circumstances, and law enforcement can notify the families

*          If the patient is competent, the patient can tell the hospital that it may release all information to their family and friends

*          If the patient is not competent to authorize release of information, a “personal representative” (a person authorized under State law to act on behalf of the patient to make health care decisions) can have all information necessary to make decisions.  That person can also authorize release of information to others

Sadly, the agony of loved ones seeking information about a patient may be prolonged if they are not viewed as family members or if State law does not recognize the loved one as a “personal representative”.  Sure, the federal Department of Health and Human Services (HHS) could amend the HIPAA regulations to deem certain individuals (for example, same-sex partners who are not legally married) to be personal representatives for purposes of access to PHI.  [Note: HHS treats legally married same-sex spouses as “family members” under HIPAA — see special topic publication available here.]

However, if the State law does not recognize these certain individuals as personal representatives, perhaps because the State law is “more stringent than” HIPAA in affording the patient greater privacy, HHS might also have to amend its HIPAA preemption regulations.

Hospitals and other health care professionals are constantly called upon to exercise discretion in dealing with requests for PHI from family members and loved ones of patients while complying with HIPAA.   HIPAA regulations may need to be modified or perhaps could be “waived” (as described yesterday’s Washington Post article) in some cases, but only when doing so furthers the fundamental HIPAA goals of privacy protection and facilitation of appropriate access.

Because of the enormity of the Orlando tragedy, some State legislatures may be expected to consider whether changes are necessary to promote information sharing in exigent circumstances while preserving the State’s interest in affording patients greater privacy protection than that afforded by HIPAA.

Daily struggles to protect personal data from hacking, phishing, theft and loss make it easy to forget that HIPAA is not just about privacy and security.  It also requires covered entities (CEs) to make an individual’s protected health information (PHI) accessible to the individual in all but a few, very limited circumstances.  Recent guidance published by the Department of Health and Human Services (HHS Guidance) emphasizes the need for covered entities to be able to respond to an individual who says “I want my PHI” in a way that complies with HIPAA and state law access requirements, even when these requirements seem confusing and contradictory.

HIPAA authorizations are, perhaps, one of the most commonly misunderstood and misused forms. The HHS Guidance helpfully reminds CEs that authorizations are not needed for a CE to share PHI for treatment, payment and health care operations, and, of course, a CE can share PHI with a business associate under a HIPAA-compliant business associate agreement.  But when an individual requests PHI, whether directly or through a third party, it’s critical that the CE understand whether it is an access request or a request for disclosure pursuant to a HIPAA-compliant authorization.

My law partner and fellow HIPAA enthusiast Beth Larkin comments on some of the difficulties a CE faces when responding to an individual’s access request, highlighting the need to distinguish between an access request and disclosure pursuant to an authorization:

The HHS guidance wants CEs to provide individuals “easy access” to their health information.  CEs still, however, have to deal with other HIPAA requirements, including verification of the identity of the requestor, securing the PHI from unauthorized access and determining breach if there is unauthorized access.  Also, it is not always clear whether a patient is exercising an access right or requesting PHI pursuant to an authorization.  The patient may not know the difference and just indicates he or she wants copies of records and may present either an access request or an authorization form.

The HHS Guidance explains that while a CE can require an individual to submit a written access request, it can’t do so in a manner that creates a barrier or would delay the individual’s access:

For example, a doctor may not require an individual: …  [t]o use a web portal for requesting access, as not all individuals will have ready access to the portal …

If a CE uses a written form for individuals to request access to records (and ensures the form is readily accessible in multiple ways), the CE should give individuals as much information as possible about each form.

For example, as illustrated in the chart included in the HHS Guidance, a HIPAA authorization permits, but does not require, a CE to disclose the PHI.  An access request requires the disclosure (and requires the CE to act on the request within 30 days).  In addition, HHS explains that fees charged by the CE are limited when the individual requests access, and not when PHI is requested pursuant to an authorization (though certain charges might be prohibited under HIPAA regulations proscribing the receipt of remuneration for the disclosure of PHI). Finally, HHS notes that PHI sent pursuant to an authorization must be sent securely, while an individual can request that PHI sent pursuant an access request can be sent through an unsecure medium (though the risks of such a choice should be communicated to the individual if feasible).  If the CE makes all of this information clear and encourages the individual to ask questions as to which form should be used, it seems reasonable for a CE to then be able to rely on the individual’s choice of form.

When a third party requests an individual’s PHI, though, it can be especially difficult for a CE to figure out whether an authorization form has been sent when an access request would have been appropriate. Here, HHS suggests the CE reach out to the individual:

Where it is unclear to a covered entity, based on the form of request sent by a third party, whether the request is an access request initiated by the individual or merely a HIPAA authorization by the individual to disclose PHI to a third party, the entity may clarify with the individual whether the request was a direction from the individual or a request from the third party.

In short, if a HIPAA authorization is really an individual’s misguided attempt to say “I want my PHI!”, the CE will need to make sure it follows the individual access right requirements in responding.

Our partner Elizabeth Litten and I were featured again by our good friend Marla Durben Hirsch in her article in the April 2016 issue of Medical Practice Compliance Alert entitled “5 safeguards to take with patient-employee health records.” Full text can be found in the April, 2016 issue, but a synopsis is below.

For her article, Marla asked us to comment about physician medical practices that provide medical treatment to their own employees and other staff or affiliates (collectively, “Patient-Employees”). She observed that “These medical records [of Patient-Employees] are not fair game for colleagues to view unless there’s a job-related reason for them to do so.”

Marla quoted Kline as saying that “It’s human nature to talk about others [that you know]. You also have rogue employees who are ‘frenemies’ [Or simply curious about a co-worker’s treatment].” Nonetheless, as Marla observed, events of improper access are not just potential HIPAA violations; they can also have a negative impact on the workplace.

Our five tips for reducing the risks of improper breaches of Patient-Employees’ health information that were developed with Marla follow:

Litten: Include employee privacy in your HIPAA education. “This is a topic for specific training.” For example, make sure that everyone in the office knows the practice’s HIPAA policies and procedures, and that all patients, even those who are employees are entitled to their privacy rights. Emphasize the fact that employees should only review records when it is necessary to do their job.

Kline: Limit access to the records. “For instance, not all employees need unfettered access to electronic medical records, so different staff members can have different levels of access.    Human resources shouldn’t be able to find out that an employee came in for [medical] help.”

Litten and Kline: Take consistent disciplinary action when warranted. An employee may need to be retrained, disciplined or even fired, and treat all workforce members the same, whether licensed professionals or other staff.

Litten: Require staff to report these kinds of breaches. “At the least the practice can argue that the employee had an obligation to report, and by not doing so the fault lay with the employee, not the employer.”

Litten and Kline: Don’t let Patient-Employees take shortcuts to access their records. All patients are entitled to access their records; Patient-Employees should be required to go through the same procedures to access their records as any non-Patient-Employee.

In this ever more-challenging environment of compliance with the privacy and security requirements of HIPAA (and other applicable federal and state laws), a health care provider should limit the risks appurtenant to providing treatment to its own employees as patients, especially since it may be an economical and efficient alternative. There are enough external risks lurking about. Through establishing discrete policies and procedures, a provider can do much to control its internal risks involving Patient-Employees.

Jessica Forbes Olson and T.J. Lang write:

In Part 1, we noted that on March 21, 2016, the Office of Civil Rights (“OCR”) announced it will launch a second round of HIPAA audits this year. As with the first round of audits, in round two OCR will be reviewing compliance with HIPAA Privacy, Security and Breach Notification rules. New for this round, the 2016 audits will focus on covered entities, including health care providers and health insurers, and their business associates.

A HIPAA compliance checklist for health care providers and insurers follows:

  • Determine whether for HIPAA purposes you are a hybrid entity, an affiliated covered entity or part of an organized health care arrangement. Document that status.
  • Appoint a HIPAA privacy official.
  • Appoint a HIPAA security official.
  • Appoint a HIPAA privacy contact person who will handle complaints and respond to the exercise of patient or participant rights.
  • Determine where PHI is located, whether hard copy, electronic, or spoken.
  • Determine the reasons why PHI is used or disclosed (e.g., treatment, payment, health care operations, public health reasons, public policy reasons, to government agencies or officials).
  • Determine which departments and workforce members have access to PHI, why they have such access and the level of access needed.
  • Identify and document the routine requests, uses and disclosures of PHI and the minimum necessary for those requests, uses and disclosures.
  • Identify all business associates: vendors that create, maintain, use or disclose PHI when performing services for your entity.
  • Have executed business associate agreements with all business associates.
  • Have and follow written HIPAA privacy, security and breach notification policies and procedures.
  • Train all workforce members who have access to PHI on the policies and procedures and document the training.
  • Have and use a HIPAA-compliant authorization form.
  • Have and follow process for verifying the status of personal representatives.
  • Distribute a notice of privacy practices and providers must attempt to obtain acknowledgment of receipt of notice from patients and post one in each facility where patients can view it.
  • Establish and document reasonable administrative, technical and physical safeguards for all PHI, including hard copy and spoken PHI.
  • Conduct and document a HIPAA security risk analysis for all electronic PHI (e.g., PHI on desktops, laptops, mobile phones, iPads and other electronic notebooks, copy machines, printers, discs and thumb drives).
  • Address risks to ePHI that are identified in the HIPAA security risk analysis.
  • Update your HIPAA security risk analysis periodically or when there is a material change in your environment that does or could impact PHI or if there are changes in the law impacting PHI.
  • Encrypt PHI to fall within the breach safe harbor.
  • Have written disaster recovery and contingency plans.
  • Prepare for and respond to security incidents and breaches.
  • Comply with HIPAA standard transactions and code set rules related to electronic billing and payment.
  • Although it will not be covered by the audits, comply with more stringent state privacy and security laws (e.g., document retention; patient consent; breach reporting).
  • Maintain HIPAA compliance documentation in written or electronic form for at least 6 years from the date the document was created or last in effect.

For more information about OCR audits or assistance in conducting a HIPAA compliance review, please contact any member of the Fox Rothschild Health Law practice group.


Jessica Forbes Olson is a partner and TJ Lang is an associate, both resident in the firm’s Minneapolis office.

Jessica Forbes Olson and T.J. Lang write:

HIPAA and Health Records
Copyright: zimmytws / 123RF Stock Photo

On March 21, 2016, the Office of Civil Rights (“OCR”) announced it will launch a second round of HIPAA audits during 2016. As with the first round of audits, in round two OCR will be reviewing compliance with HIPAA Privacy, Security and Breach Notification rules. New for this round, the 2016 audits will focus on covered entities, including health care providers and health insurers, and their business associates.

The round two audits will occur in three phases: desk audits of covered entities, desk audits of business associates, and finally, follow-up onsite reviews. It is reported OCR will conduct about 200 total audits; the majority of which will be desk audits.

OCR has already begun the process of identifying the audit pool by contacting covered entities and business associates via email.  Health care providers,   insurers and their business associates should be on the lookout for automated emails from OCR which are being sent to confirm contact information. A response to the OCR email is required within 14 days. OCR instructed covered entities and business associates to check their spam or junk email folders to verify that emails from OCR are not erroneously identified as spam.

After the initial email, OCR will send a pre-audit questionnaire to entities it may choose to audit. Receiving a pre-audit questionnaire does not guarantee your entity will be audited. The purpose of the questionnaire is to gather information about entities and their operations, e.g., number of employees, level of revenue, etc. The questionnaire will also require covered entities to identify all of their business associates. Health care providers and insurers who have not inventoried business associates should do so now.

Entities who fail to respond to the initial OCR email or questionnaire will still be eligible for audit. OCR will use publicly available information for unresponsive entities to create its audit pool.

OCR will then, in the “coming months,” randomly select entities to audit and notify them via email that they have been selected for audit.

Health care providers, health insurers and business associates should check their HIPAA compliance status before they are contacted by OCR. Once selected for an audit, entities will only have 10 business days to provide the requested information to OCR.

Recent OCR enforcement activity has shown that noncompliance with HIPAA can be costly:

  • A Minnesota-based hospital entered into a $1.55 million settlement for failure to implement one business associate agreement and failure to conduct a HIPAA security risk analysis;
  • A teaching hospital of a university in Washington entered into a $750,000 settlement for failure to conduct an enterprise-wide HIPAA security risk analysis;
  • An insurance holding company based in Puerto Rico entered into a $3.5 million settlement for failure to implement a business associate agreement, conduct a HIPAA security risk analysis, implement security safeguards and for an improper disclosure of protected health information (“PHI”);
  • A radiation oncology physician practice in Indiana entered into a $750,000 settlement for failure to conduct a HIPAA security risk analysis and implement security policies and procedures.

If you receive any communications from OCR, please contact a member of the Fox Rothschild Health Law practice group immediately. A proactive review of your HIPAA compliance status can identify potential gaps and minimize the risk of potential penalties.

In Part 2, we’ll provide a HIPAA compliance checklist for healthcare providers and insurers. Stay tuned!


Jessica Forbes Olson is a partner and TJ Lang is an associate, both resident in the firm’s Minneapolis office.

“Maybe” is the take-away from recent guidance posted on OCR’s mHealth Developer Portal, making me wonder whether the typical health app user will know when her health information is or is not subject to HIPAA protection.

The guidance is clear and straightforward and contains no real surprises to those of us familiar with HIPAA, but it highlights the reality that HIPAA, originally enacted close to 20 years ago, often becomes murky in the context of today’s constantly developing technology. Here’s an excerpt from the guidance that illustrates this point:

Consumer downloads to her smart phone a mobile PHR app offered by her health plan that offers users in its network the ability to request, download and store health plan records. The app also contains the plan’s wellness tools for members, so they can track their progress in improving their health.  Health plan analyzes health information and data about app usage to understand the effectiveness of its health and wellness offerings.  App developer also offers a separate, direct-to-consumer version of the app that consumers can use to store, manage, and organize their health records, to improve their health habits and to send health information to providers.

Is the app developer a business associate under HIPAA, such that the app user’s information is subject to HIPAA protection?

Yes, with respect to the app offered by the health plan, and no, when offering the direct-to-consumer app. Developer is a business associate of the health plan, because it is creating, receiving, maintaining, or transmitting protected health information (PHI) on behalf of a covered entity.  Developer must comply with applicable HIPAA Rules requirements with respect to the PHI involved in its work on behalf of the health plan.  But its “direct-to-consumer” product is not provided on behalf of a covered entity or other business associate, and developer activities with respect to that product are not subject to the HIPAA Rules.  Therefore, as long as the developer keeps the health information attached to these two versions of the app separate, so that information from the direct-to-consumer version is not part of the product offering to the covered entity health plan, the developer does not need to apply HIPAA protections to the consumer information obtained through the “direct-to-consumer” app.

So if I download this app because my health plan offers it, my PHI should be HIPAA-protected, but what if I inadvertently download the “direct-to-consumer” version? Will it look different or warn me that my information is not protected by HIPAA?  Will the app developer have different security controls for the health plan-purchased app versus the direct-to-consumer app?

HIPAA only applies to (and protects) individually identifiable health information created, received, maintained or transmitted by a covered entity or business associate, so perhaps health app users should be given a “Notice of Non-(HIPAA) Privacy Practices” before inputting health information into an app that exists outside the realm of HIPAA protection.

The following post was contributed by our colleague Lucy Li.

HIPAA itself does not provide a private right of action. So when a hacker or rogue employee impermissibly accesses or interferes with electronic data or data systems containing protected health information, an employer subject to HIPAA cannot sue the perpetrator under HIPAA.  Similarly, when a ransomware attack blocks access to protected health information, employers also cannot sue under HIPAA.  HIPAA violations and ransomware attacks and can be costly to deal with.  Just ask Hollywood Presbyterian Medical Center. But employers have one potential remedy: suing the perpetrator of the access, interference, or misuse for violating the Computer Fraud and Abuse Act (“CFAA”).

The CFAA is a federal law that prohibits fraudulent access to protected computer information. The law prevents unauthorized access or access that exceeds the user’s authority to a protected computer to obtain private information, such as patient data or trade secrets.  The law also prohibits the use of ransomware to extort money or anything of value. If these cyber-attacks occur, the CFAA allows the employer to file a civil lawsuit against the hacker or the rogue employee to recover damages for economic harm.

Best Practices and CFAA Tips

  1. Prevention is best. Encrypt your data and use sophisticated firewalls and security patches to prevent hackers from accessing protected information. Litigation is a tool to recover for economic harm, but it is costly.
  2. Limit electronic access. Give employees or contractors just enough access to perform their job duties. Nothing more.
  3. Disable log-in rights of an ex-employee or contractor as soon as the employment or contractual relationship ends.
  4. State law. The applicability of the CFAA varies by state. Individual states may also have their own causes of action under state computer fraud laws or trade secret appropriation for stealing patient lists.  These laws may be additional tools to help you recover from a HIPAA violation or a ransomware attack.

Matthew Redding contributed to this post.

It’s a familiar story: a HIPAA breach triggers an investigation which reveals systemic flaws in HIPAA compliance, resulting in a seven-figure settlement.  A stolen laptop, unencrypted data, a missing business associate agreement, and an aggressive, noncompliant contractor add to the feeling of déjà vu.

North Memorial Health Care of Minnesota, a not-for-profit health care system, settled with the Office of Civil Rights for the Department of Health and Human Services (OCR) for $1.55 million resulting from allegations that it violated HIPAA by failing to timely implement a Business Associate Agreement with Accretive Health, Inc., a major contractor, and failing to institute an organization-wide risk analysis to address the risks and vulnerabilities to its patient information.

The OCR’s investigation arose following North Memorial’s reporting of a HIPAA breach on September 27, 2011, which indicated that an unencrypted, password-protected laptop was stolen from a workforce member of a business associate’s (BA’s) locked vehicle, impacting the ePHI of almost 10,000 individuals. The investigation further revealed that, North Memorial began providing Accretive with access to its PHI on March 21, 2011, and the parties did not enter into a business associate agreement until October 14, 2011

In addition to the fine, North Memorial is required to develop policies and procedures specific to documenting the BA relationship, modify its existing risk analysis process, and develop and implement an organization-wide risk management plan. The Resolution Agreement is available here.

In a press release, OCR director Jocelyn Samuel said:

“Two major cornerstones of the HIPAA Rules were overlooked by this entity.  Organizations must have in place compliant business associate agreements as well as an accurate and thorough risk analysis that addresses their enterprise-wide IT infrastructure.”

Accretive Health, Inc. may be a familiar name to readers of this blog.  In 2012, the Minnesota Attorney General’s office filed suit against Accretive for allegedly mining, analyzing and using their hospital clients’ data for purposes that were not disclosed to patients and which may adversely affect their access to care.  This suit was subsequently settled for $2.5 million under an agreement under which Accretive agreed to cease operations in Minnesota.  The AG’s lawsuit was triggered by the same laptop theft which compromised the healthcare data of North Memorial and another facility, Fairview Health  Services.  One stolen, unencrypted laptop of a BA has resulted in over $4 million in aggregate liabilities to three covered entities.

The lessons for covered entities from this continuing saga are clear:

  • Encrypt your electronic data. All of it, everywhere it resides and whenever it is transmitted, and pay particular attention to laptops, mobile devices and media.  (While you’re at it, be sure to protect paper data as well and shred it when it is no longer needed  — it can be easily exploited by thieves and dumpster-divers).
  • Make sure you have Business Associate Agreements with all business associates, and review them to make sure they are current and require appropriate safeguards and indemnify you from the costs of the BA’s breaches.
  • Know your BAs and control what they do with your data.  Accretive’s alleged aggressive collection efforts, such as accosting patients on gurneys in the emergency department or while recovering from surgery, did not reflect well on their hospital clients.
  • Do not take your HIPAA obligations lightly.  North Memorial’s incomplete HIPAA implementation and lack of attention to risk analysis may have contributed to the severity of the result.

This week’s headlines read: “Scalia’s death probably linked to obesity, diabetes and coronary artery disease, physician says” and “Scalia suffered from many health problems”.   An article from a couple of weeks ago, immediately following reports of Justice Scalia’s February 13th death, reported that Scalia’s doctor said he had chronic cardiovascular disease.

These articles do not say whether the physician(s) who released Scalia’s health information did so in compliance with HIPAA, or whether any subsequent release of this information was HIPAA-compliant. The HIPAA regulations make it clear that the death of an individual does not mean the death of that individual’s right to have his or her individually identifiable health information protected under HIPAA (at least, not until the individual has been deceased for more than 50 years).

Justice Scalia’s status as a public figure, and the public’s general interest in the news of his death, also does not affect his HIPAA rights. As noted in Bill Maruca’s post about New York Giants’ defensive end Jason Pierre-Paul’s injuries last summer, there is no “public figure exception” to HIPAA.  Bill also accurately noted, in his blog about the Ebola cases treated in Texas in 2014, that there is no HIPAA exception for “newsworthy or unusually terrifying medical conditions.”

HIPAA permits a covered entity to disclose protected health information (PHI) to a coroner or medical examiner for the purpose of identifying a cause of death, but does not authorize  the coroner or medical examiner to further disclose the PHI. Because HIPAA also permits an executor, administrator, or other person who has authority to act on behalf of a deceased individual to act as the deceased person’s personal representative, such an authorized person might have provided a HIPAA-compliant authorization to Scalia’s health care providers to disclose Scalia’s PHI to third parties.  In addition, there are other ways in which PHI of someone who has died might be disclosed in compliance with HIPAA, but none of the articles I read provide the detail needed to see whether these circumstances existed.

The articles do, however, make it clear that the late Justice suffered an array of health issues that were not publicized prior to his death.

What would Justice Scalia have said, if, in fact, his PHI was disclosed improperly? His decisions involving the Fourth Amendment may provide some clues, but they are not precisely on point, and we cannot ask the Justice.  We can simply remind covered entities that HIPAA protections have an after-life —  and deserve (in fact, require) post-mortem respect.