Munger v. United States ( 2022 )

1 THE HONORABLE THOMAS S. ZILLY 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 NO. 3:19-cv-005571-TSZ STEVEN MUNGER as PERSONAL 11 REPRESENTATIVE of the ESTATE of STIPULATED REQUEST FOR AN ORDER MATTHEW MUNGER, 12 COMPELLING PRODUCTION OF ADULT Plaintiffs, PROTECTIVE SERVICES RECORDS 13 vs. 14 UNITED STATES OF AMERICA, DON CIANCI PROPERTIES, LLC, a 15 Washington Company, JOHN DOES 1-5, 16 Defendants. 17 Plaintiff Steven Munger (“Plaintiff”) and Defendants Don Cianci Properties, LLC 18 19 (“Defendant Cianci”), and United States of America (“Defendant USA”), by and through their 20 respective counsel of record, respectively submit this Stipulated Request for an Order 21 compelling the Production of Adult Protective Services (“APS”) records (the “Stipulated 22 Request”), with reference to the following facts: 23 1. On June 21, 2019, a complaint was filed on behalf of Matthew Munger alleging that 24 while at the office of the Social Security Administration (“SSA”), in Longview, 25 Washington, Mr. Matthew Munger tripped and fell on a rug sustaining injuries. Dkt. 1 Betts Patterson Mines STIPULATED REQUEST FOR AN ORDER 1 2. Matthew Munger subsequently passed on February 14, 2021. Thereafter, Steven 2 Munger was appointed personal representative of the Estate of Matthew Munger, and 3 a Fourth Amended Complaint was filed on October 1, 2021. Dkt. 76. 4 3. On November 24, 2021, all parties signed a revised stipulation to obtain the DSHS 5 records of Matthew Munger. See Ex. A. 6 4. On November 29, 2021, the parties requested all records related to Mr. Munger from 7 DSHS and included an Authorization to Disclose form signed by Steven Munger, as 8 personal representative of the Estate of Matthew Munger. See Ex. B. 9 5. On December 1, 2021, DSHS denied the request, stating that it required a court order 10 to complete this request because the documentation did not prove that the personal 11 representative of Mr. Munger’s estate had specific authority to authorize the release 12 of confidential DSHS client records of the deceased. See Ex. C. 13 6. As noted by the prior release signed by Steven Munger, Plaintiff consents to the 14 disclosure of the DSHS records in accordance the rules set out in RCW 70.02.030. 15 Plaintiff’s consent includes “All parts of the Department of Social and Health 16 Services records, including, but not limited to all Adult Protective Services records.” 17 Id. This consent also allows for the disclosure of all HIV/AIDS and STD test results, 18 diagnosis or treatment records, mental health records, and substance use disorder 19 records. Id. 20 7. The parties requested that the Court enter an Order requiring DSHS to produce all 21 parts of the DSHS records related to Matthew Munger. This included, but was not 22 limited to, all Adult Protective Services records and disclosure of all HIV/AIDS and 23 24 25 Betts Patterson Mines STIPULATED REQUEST FOR AN ORDER 1 STD test results, diagnosis or treatment records, mental health records, and substance 2 use disorder records. Dkt. 85. The Court entered the Order on April 1, 2022. Dkt. 86. 3 8. While DSHS has produced records, counsel for APS has indicated that different 4 language is necessary for the production of APS records in compliance with RCW 5 74.34.995. Accordingly, the parties now seek an Order directed specifically at 6 production of APS records. 7 9. As Matthew Munger is deceased, the parties know of no danger presented by the 8 disclosure of APS records to the life or safety of a vulnerable adult or reporter. 9 IT IS SO STIPULATED THROUGH COUNSEL OF RECORD. 10 DATED this 19th day of May, 2022. 11 12 RUSSEL & HILL, PLLC UNITED STATES ATTORNEY’S OFFICE 13 14 /s/ Brandon K. Batchelor /s/ Whitney Passmore Brandon K. Batchelor, WSBA No. 42477 Whitney Passmore, Florida Bar No. 91922 15 Attorneys for Plaintiff Munger Attorneys for Defendant United 3811A Broadway States of America 16 Everett, WA 98201 700 Stewart Street, Suite 5220 17 brandon@russellandhill.com Seattle, WA 98101 Whitney.passmore@usdoj.gov 18 19 BETTS PATTERSON & MINES, P.S. 20 /s/ Dawna J. Campbell 21 Dawna J. Campbell, WSBA No. 27335 Attorneys for Defendant Don Cianci Properties, LLC 22 Betts, Patterson & Mines, P.S. 701 Pike Street, Suite 1400 23 Seattle, WA 98101 24 dcampbell@bpmlaw.com 25 Betts Patterson Mines STIPULATED REQUEST FOR AN ORDER 1 ORDER 2 I. Findings and Conclusions 3 1.1 Disclosure of Adult Protective Services (“APS”) records is necessary in this 4 5 matter and in the interests of justice. 6 1.2 Disclosure of APS records apparently will not endanger the life or safety of a 7 vulnerable adult or reporter. 8 II.Order 9 2.1 The requesting party (Defendant Cianci) is authorized to receive a copy of the 10 APS records, if any, relating to Matthew Munger, provided that APS shall not be required to 11 release the identities of persons making reports under RCW 74.34.035, and shall have the right to 12 13 reserve other privileged or confidential information as it deems appropriate to protect the alleged 14 incapacitated person. RCW 42.56.640. APS shall have the option of redacting identifying 15 information of persons other than the protected person, who are named in the record, pending 16 notification that release of the record has been ordered by a court or consented to by the named 17 witnesses, residents, patients, clients, or complaints, pursuant to RCW 74.34.095 and RCW 18 43.190.110. 19 20 2.2 The authorized production of APS records includes disclosure of all HIV/AIDS 21 and STD test results, diagnosis or treatment records, mental health records, and substance use 22 disorder records. 23 2.3 The documents released are provided for the purpose of proceeding in the above- 24 referenced action. It shall be the responsibility of the requesting party (Defendant Cianci), and 25 not APS, to provide discovery to any other required parties. Betts Patterson Mines STIPULATED REQUEST FOR AN ORDER -4 - One Convention Place 1 2.4 The parties will destroy all medical records containing protected health 2 information and mental health treatment records at the conclusion of the above-referenced legal 3 4 matter. 5 6 Dated this 23rd day of May, 2022. 7 A 8 ________________________________ 9 Thomas S. Zilly United States District Judge 10 11 12 Approved as to form; Notice of Presentation Waived: 13 OFFICE OF THE ATTORNEY GENERAL 14 15 By /s/ Courtney Vale Lyon 16 Courtney Vale Lyon, WSBA #43226 Assistant Attorney General 17 Attorneys for Adult Protective Services 18 19 20 21 22 23 24 25 Betts Patterson Mines STIPULATED REQUEST FOR AN ORDER -5 - One Convention Place EXHIBIT A 1 The Honorable Thomas S. Zilly 2 3 4 5 UNITED STATED DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 9 STEVEN MUNGER, as Personal Representative of the ESTATE OF No. 3:19-cv-05571-TSZ 10 MATTHEW MUNGER, 11 STIPULATION TO OBTAIN THE DSHS 12 Plaintiff, RECORDS OF MATTHEW MUNGER 13 vs. 14 15 UNITED STATES OF AMERICA; et al. 16 Defendants. 17 18 19 COME NOW the parties hereto, through their respective counsel, and stipulate 20 as follows: 21 22 That the records librarian of the named facility attached is hereby authorized to 23 release copies of, or make available for copying by a field representative of T-Scan, 24 25 4200 23rd Avenue West, Suite 200, Seattle, Washington 98199, the complete records 26 of the person disclosed herein, pursuant to the attached Authorization For The Release 27 28 Of Records in accordance with changes in federal law under HIPAA and consistent with 29 Washington law requirements and that the facility will be paid by T-SCAN, INC. at the 30 31 time of copying said materials, with T-Scan subsequently being reimbursed by each of 32 1 || the respective counsel who shall be responsible for payment to T-Scan for their copying 2 3 services, upon receipt of copies of the records. 4 The copies so produced shall be identified as the authenticated records of 5 6 || MATTHEW L. MUNGER _ Further identification at the time of hearing or trial being ’ || waived, but objections as to competency, materiality and relevance being reserved until 8 g || the time of hearing or trial. The parties agree that the records will not be used for any 10 purpose outside of this litigation. If either party intends to file any portion of these 11 12 |}records in court, the filing party will take appropriate measures to protect confidential 1 information, including, redacting the document of all confidential information, and/or 15 seeking permission to file such documents under seal. 16 17 |[DATED: 11/24/2021 DATED:_July 27, 2020 18 19 |} Se . 59 || -tei= /s/ Nancy T. McKinle © || Brandon K. Batchelor, WSBA #42477 Nancy T. McKinley, WSBA #7992 21 || Attorney for Plaintiff Attorney for Defendant Don Cianci 22 Properties 23 Copies requested: YES No xX Copies requested: YES No 24 25 96 || DATED: 11/23/2021 27 ||P 28 29 30 /s/Heather C. Costanzo 31 || Heather C. Costanzo, FL #37378 Attorney 32 || for Defendant USA Copies requested: YES_——No__X __ FALLON McKINLEY PLLC ATTORNEYS AT LAW 155 NE 100'4 STREET, SUITE 401 EXHIBIT B Authorization AUTHORIZATION TO DISCLOSE DSHS RECORDS OF: NAME FIRST MIDDLE DATE OF BIRTH Munger Matthew Lee 7/15/1961 . FORMER NAMES The following information may help in locating records: CLIENT IDENTIFICATION NUMBER | OTHER IDENTEICATION NUMBER | DATES OF SERVICE LOCATION OF SERVICE SSN: ii Medicare: All dates of service on record All locations of service on □□□□□□ DISCLOSE TO: recreate: NAME . FIRST Joh MIDDLE TITLE Trieu onnny Account/Records Specialist ORGANIZATION OR BUSINESS NAME IF APPLICABLE TScan Corporation ADDRESS CITY STATE ZIP CODE 4200 23rd Avenue West Seattle WA 98199 TELEPHONE NUMBER (INCLUDE AREA CODE) | FAX NUMBER (INCLUDE AREA CODE) E-MAIL ADDRESS 206-285-6322/206-829-2105 johnny .trieu@tscan. biz REASON FOR DISCLOSURE (NOT REQUIRED) AUTHORIZATION: SOURCES: | authorize the follow ing DSHS programs to disclose or give access to confidential information about me as described below . Information may be provided verbally or by computer data transfer, mail, fax, or hand delivery. The follow ing programs only (check all that apply): Behavioral Health Administration (BHA) L] Community Services (CSD — public assistance) child Support (DCS) C] Home and Community Services (HCS) Developmental Disabilities (DDA) Residential Care Services (RCS) [1 Vocational Rehabilitation (DVR) CJ State Mental Health Institutions (ESH, WSH, CSTC) Special Comritment Center (SCC) [-] Human Resources and Payroll Df Other: _ All DSHS records. including, but not limited to all Adult Protective Services records. All parts of the Department of Social and Health Services (DSHS) RECORDS: | authorize the follow ing DSHS records to be disclosed: L] Client records held by parts of DSHS marked above XX] All my client records Other confidential records held by parts of DSHS marked above 1] Records on the attached list Personal information in employment-related records The follow ing records only: | w ant to limit the records to be disclosed as follows (by date, type of record, etc.): [J asking that records be disclosed at this time. Please place this authorization in my client file. PLEASENOTE: If your client or other confidential records include any of the following information, you must also complete the below section to allow disclosure of these records. RECORDS: | give my permission to disclose the follow ing information held in DSHS records (check all that apply): HIV/AIDS and STD test results, diagnosis or treatment records (RCW 70.02.220) [A Mental health records (RCW 70.02.230 or 240) Substance Use Disorder records (42 CFR Part 2) ® This permission is valid for 180 days or 1 until (date or event, if not checked, will be 180 days). |may revoke or withdraw my permission in writing at any time, but that will not affect information already produced. e |understand that my records may no longer be protected under the laws that apply to DSHS after this they are produced. @ of this formis valid to give my permission to disclose records. DSHS may charge to provide copies of its records. AUTHORIZED BY (SIGNATURE) DATE SIGNED TELEPHONE NUMBER { AREA CODE) Ox. 11/24/2021 PRINT NAME WITNESS/NOTARY (SIGN AND PRINT NAME, IF APPLICABLE) Steven munger if | amnot the person who is the subject of the records, | am authorized to sign because | amthe: (attach proof of authority) C1 Parent of minor Legal Guardian Personal Representative [] Other: Notice to those receiving information: If these records contain information about HIV, STDs, or alcohol or drug abuse, you may not further disclose that information under federal and state law without specific permission of the subject and meeting specific legal requirements. PAGE 1C DSHS 17-063 (REV. 12/2019) may limit your permission to specific records or parts of the agency. This form w ill also permit DSHS to discuss your situation verbally w ith the person you authorize. Notice to Clients: Most client information DSHS has is confidential and w ill not be disclosed to others unless you grant permission or if disclosure is allow ed by law . After DSHS discloses your confidential information, please be aw are that the recipient may not protect your records under the same law s that apply to DSHS. DSHS cannot refuse you benefits if you do not sign this form to allow disclosures to DSHS unless your authorization is needed to determine eligibility. For information on how DSHS health care components covered by HIPAA share protected health information and your privacy rights, please consult the DSHS Notice of Privacy Practices at www.dshs.wa.gov or ask the person w ho gave you this form. You may get a copy of this form. Use: You may fill out this form electronically or by hand. Use the tab key on a computer to move betw een fields. A separate form must be completed for each person whose records are requested, including children. “You” refers to the subject of the records. Parts of Form: IDENTIFICATION OF SUBJECT OF RECORDS: • Name: Provide your full name or the name of the person whose records are requested if you are acting for someone else. • Date of birth: Please include this information needed to identify you from persons with similar names. OPTIONAL INFORMATION to help locate records: • Former names: Include any other names that have been used when receiving benefits or services. • Client identification number: Provide any number that DSHS may have assigned. • Other identification number: Include any other identifier that could help locate DSHS records. Only provide a social security number if necessary. • Date and location of services: Provide this information to help DSHS identify and locate the records you want disclosed. PERSON RECEIVING RECORDS: • Identification: Please fill out this section as fully as possible so we can contact the person or organization who will have access to your confidential information. • Reason for Disclosure: This information is required before DSHS can share drug and alcohol or mental health records. If you do not fill in this field, DSHS will note the reason for disclosure as being at your request. AUTHORIZATION: • Parts of DSHS: Please mark either the parts of DSHS you want to disclose records or mark the bottom box in this section if you want to give access to any records DSHS has about you. Write in the name of program in “Other” if not in the list. • Information disclosed: Indicate what recordsthat you want disclosed. You may allow disclosure of all or part of your DSHS client or other confidential records. You may also limit disclosure to client records held only by the parts of the agency marked in the section above, or to specific records listed on this form or on an attachment you sign. If there are any limitations on what records you want disclosed, either list specific records or describe the limits, such as by date of services or type of record. • Restricted records: If any of the records may include information about HIV/AIDS or STD testing or treatment, mental health treatment, or substance use disorder services, you must check each item to allow DSHS to disclose these records. Use Psychotherapy Authorization,form DSHS 17-270, to authorize disclosure of psychotherapy notes (45 CFR 164.508(b) (3) (ii)). • Validity: This form is valid to give access to information currently held by DSHS. Your permission expires 180 days after signature or on any other date or event you provide. If you do not provide a date, the authorization will be valid for 180 days. You may revoke the authority to release records in writing at any time but it will be too late to take back information already produced. • Cost: The public records act in RCW 42.56.120 and WAC 388-01-080 allow DSHS to charge for copies of records plus mailing costs. State hospitals and health care facilities may charge for patient records under Chapter 70.02 RCW. SIGNATURES: • If you are the subject of the records,signand also print or type your name below. Insert the date you signed plus your telephone or contact number. • If you are signing for another person, indicate why you can do so on the last line and attach a copy of the court order or other document giving you legal authority. Children must also sign to give permission to disclose their own confidential records if they are over the age of consent (13 for mental health and drug and alcohol services; 14 for information about HIV/AIDS or other STDs; any age for birth control and abortions; 18 for health or other records). • Witness or notary: A witness or notary may be needed to verify your identity if you do not submit this form in person or if a program requests verification. This person should sign and print his or her name. NOTICE TO DSHS: If these records contain HIV or STD information, DSHS must notify recipients that the information is confidential and that they may not further disclose the records without a specific authorization as required by RCW70.02.300. If DSHS sends copies of records regarding substance use disorder services under this authorization, DSHS must include the following statement when disclosing information as required by 42 CFR 2.32: This information has been disclosed to you from records protected by Federal confidentiality rules (42 CFR part 2). The Federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by 42 CFR part 2. A general authorization for the release of medical or other information is NOT sufficient for this purpose. The Federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient. EXHIBIT C STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES Office of the Secretary Information Governance PO Box 45135: Olympia Washington 98504-5135 December 1, 2021 Johnny Trieu T-Scan Corporation 4200 234 Avenue West Suite 200 Seattle WA 98199 Emailed to: johnny.trieu@tscan.biz and aminfo92(@tscan.biz RE: Request for Public Records - DSHS Request ID # 202111 PRR 497 Dear Johnny Trieu: This letter responds to your request under the Public Records Act, Ch. 42.56 RCW. We received your request on November 29, 2021. Please use the above request ID number when contacting us about this request. You asked for client records regarding Matthew Munger. Any client records held by DSHS about this person would be confidential and privileged under RCW 74.04.060, and other state and federal laws that govern DSHS programs. We must have a valid authorization or court order to allow us to give you client records held by DSHS. Because some parts of DSHS are the health care components of a HIPAA-covered entity and/or are subject to Washington’s health care information access and disclosure law, authorizations must meet the requirements of 45 C.F.R. §164.508 and RCW 70.02.030(3). Court orders must be entered after notice to DSHS and must meet the requirements in any applicable confidentiality laws. You have not sent proof of legal authority to allow DSHS to give client records to you. We received the Letter of Administration you provided; however, due to the confidentiality laws that govern DSHS programs, we require legal documentation that details the authority of an appointed Administrator prior to processing requests for client records. In addition, you sent a stipulation related to this request signed by the attorneys in this case; however, the stipulation documents we received did not include the judge’s signature, required with a court order. The document you sent shows that the signer of the authorization has been appointed by the court as the Personal Representative of the Estate. It does not provide documentation regarding the personal representative’s specific authority as it relates to requesting or authorizing the release of confidential DSHS client records of the deceased. Due to the confidentiality laws that govern our programs, we require confirmation that the orders authorize the release of our confidential records before we can release records. Once we receive the documents that detail the extent of the legal authority of the Administrator, we may proceed with processing this request. Please send the requested documents to our office. December 1, 2021 Page 2 We must deny your request for client records and cannot process it further until we receive the documentation detailing the authority of the Administrator to permit us to disclose information to you. After you send this documentation, we will respond further with an estimate of the time needed to provide any client records that DSHS may hold for this person. If you do not submit this within two weeks, December 15, 2021, 2019, we will consider your request to be withdrawn and will no longer process the request. If you have any questions, please feel free to contact our office. Sincerely, Aran SWwo Andrea Sterzer DSHS Public Records Specialist Phone: 360-902-8484/Fax: 360-902-7855 / DSHSPublicDisclosure@dshs.wa.gov