The Health Insurance Portability and Accountability Act (HIPAA) ensures the protection of protected health information (PHI) during divorce. It makes provisions for parental rights, privacy and confidentiality, and more.
Understanding HIPAA in divorce cases
The HIPAA Act recognizes the rights of spouses and parents in a patient's healthcare journey, but the complexities arise when a marriage ends. During a divorce, healthcare providers can find themselves caught in a clash between two parents fighting for their right to access their child's medical records and make healthcare decisions.
Parental rights and medical records
HIPAA ensures that both parents of a minor child retain the legal right to access their child's medical records, regardless of custody designations unless stated otherwise in the final separation order or divorce decree. This safeguard allows both parents to stay informed and involved in their child's healthcare, even during a contentious divorce.
Privacy and confidentiality
The HIPAA privacy rule maintains the confidentiality of medical records during legal proceedings. Failure to comply with the security rule could lead to HIPAA violations, especially when the well-being of a child or dependent family member is at stake. However, the court may order the disclosure of PHI during divorce cases in certain situations.
Loss of parental rights
While both parents have the right to access their child's medical files, the party who objects may file an opposition. This can become relevant when one party seeks support from the other due to a medical condition or disability. The court will then decide who has the authority to access the medical records, particularly if it relates to the child's custody and visitation rights. In extreme cases, the court may even remove a non-custodial parent's parental rights.
Emancipated minors
HIPAA provisions also apply to emancipated minors, who have the authority to control their own health records. Divorced parents of an emancipated minor must obtain consent from their child before requesting or disclosing their medical information, as the minor is legally responsible for themselves.
Read more: Does HIPAA apply to minors?
Common HIPAA violations in divorce proceedings
HIPAA and divorce can lead to several potential violations, which healthcare providers and divorcing parties must be aware of to avoid legal consequences.
Accessing mental health records
HIPAA's privacy rule strictly prohibits the unauthorized disclosure of a patient's mental health records. During divorce proceedings, an ex-spouse may attempt to obtain their former partner's mental health information, which would constitute a HIPAA violation. Healthcare providers are not permitted to discuss such sensitive medical information unless there is a valid court order.
Snooping into ex-partner's PHI
Another common HIPAA violation in divorce cases is snooping, where an individual, often a hospital employee, accesses their ex-partner's protected health information without authorization. This unauthorized access can result in substantial fines and penalties for the violator, and may also negatively impact the ongoing divorce case.
Best practices to prevent HIPAA violations in divorce
Signing HIPAA forms
Parents should sign HIPAA authorization forms to protect the privacy rights of their children. In the case of pending divorce cases, the parents must request copies of the temporary orders, and if the decision is final, they can request a copy of the court-approved separation agreement.
Ensuring parental rights over child's health records
Before requesting a copy of a child's PHI, parents should verify that they have the legal rights to access their child's medical records. If further litigation arises, the lawyer must ensure that all releases are HIPAA compliant for divorce clients related to the child's case notes.
Safeguarding PHI in divorce mediation and litigation
Divorce mediation can be an effective way for separated or divorced parents to cooperatively manage access to their child's medical records and safeguard protected health information. Through mutual agreement, the parents can establish a written plan for child custody, support, and PHI access.
However, in situations where the spouses cannot agree on these matters, divorce litigation may become necessary. In such cases, the court will ultimately decide the outcome of the divorce, including the retention of parental rights and access to the child's medical information.
In the news
The Indiana Court of Appeals upheld a $1.4 million verdict against Walgreen Co. and one of its pharmacists, making it clear that HIPAA violations aren't just about breaking the law—they're about real people. The pharmacist, Audra Withers, shared the medical details of her husband's ex-girlfriend, which crossed the line. This case shows that even when personal relationships are involved, patient privacy isn't up for debate, and healthcare providers can be held responsible for their employees' actions. The ruling sets a new standard for handling HIPAA violations tied to personal connections.
FAQs
Can you go to jail for violating HIPAA?
Yes, you can go to jail for violating HIPAA if you are found to have knowingly and wrongfully disclosed individually identifiable health information for impermissible use without authorization. The Department of Justice interprets "knowingly" as requiring only knowledge that the disclosure constitutes an offense, and the perpetrator doesn't need to be aware they are violating HIPAA.
What are the consequences of HIPAA violations?
The consequences of HIPAA violations can differ based on the severity and context of the breach. Consequences include civil fines that can vary from $100 to $50,000 per violation, reaching a maximum yearly penalty of $1.5 million for repeated violations of the same rule. In cases of intentional disregard, penalties can escalate, potentially leading to criminal charges. Such charges could incur fines of up to $250,000 and imprisonment for a maximum of 10 years for severe infractions.
What steps should be taken if a potential HIPAA violation is suspected?
If a potential HIPAA violation is suspected, it should be reported immediately to the organization's privacy or compliance officer. The incident should be thoroughly investigated, documented, and addressed according to established protocols. If necessary, affected individuals should be notified, and appropriate corrective actions should be taken.
Learn more: HIPAA Compliant Email: The Definitive Guide
Farah Amod
