Cohan v. Ayabe.Â

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Electronically Filed
Supreme Court
SCPW-13-0000092
27-FEB-2014
10:48 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
RICHARD COHAN, Petitioner,
vs.
THE HONORABLE BERT I. AYABE, JUDGE OF THE CIRCUIT COURT OF THE
FIRST CIRCUIT, STATE OF HAWAI#I, Respondent,
and
MARRIOTT HOTEL SERVICES, INC. DBA MARRIOTT’S KO OLINA BEACH CLUB
and MARRIOTT OWNERSHIP RESORTS, INC. DBA MARRIOTT VACATION CLUB
INTERNATIONAL, Respondents, Real Parties in Interest.
SCPW-13-0000092
ORIGINAL PROCEEDING
(CIV. NO. 11-1-2192)
FEBRUARY 27, 2014
ACOBA, McKENNA, AND POLLACK, JJ., WITH RECKTENWALD, C.J., CONCURRING,
WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY POLLACK, J.
Petitioner Richard Cohan (Cohan) filed a Petition for
Writ of Mandamus (Petition) requesting this court to compel the
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respondent judge to: (1) vacate his order affirming an
arbitration decision that compelled Petitioner to sign
authorizations for release of medical records, and (2) order that
the qualified protective order proposed by Petitioner be utilized
instead.
We hold that the privacy provision of the Hawai#i
Constitution, article I, section 6, protects Cohan’s health
information against disclosure outside the underlying litigation.
Therefore we grant the Petition, and the respondent judge is
directed to: (1) vacate the order affirming the arbitration
decision, and (2) order that the qualified protective order and
the authorizations for release of medical records be revised
consistent with this opinion.
I.
In September 2009, Cohan and his wife visited Hawai#i
from California. While dining at Chuck’s Steak & Seafood at
Marriott’s Ko Olina Beach Club, Cohan fell into a koi pond and
was injured.
Cohan and his wife sued Marriott Hotel Services, Inc.
dba Marriott’s Ko Olina Beach Club and Marriott Ownership
Resorts, Inc. dba Marriott Vacation Club International
(collectively, “Marriott”) and RRB Restaurants, LLC dba Chuck’s
Steak and Seafood (Restaurant) for damages. The case was placed
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in the Court Annexed Arbitration Program (CAAP). Courtney Naso,
Esq., was appointed the arbitrator.
On April 30, 2012, Marriott sent Cohan thirteen
authorizations to obtain medical records and two authorizations
for release of employment records, and asked him to sign the
forms. The medical records authorizations included the following
provisions:
Unless otherwise revoked, this authorization will expire on
the following date or event: the final conclusion of the
proceeding, for which this authorization is being signed.
If a date or event is not specified, this authorization will
expire one year from my date of signature below.
. . . .
I understand that the health information released under this
authorization may be re-disclosed by the recipient, in
relation to the case/matter for which this authorization is
provided, and may no longer be protected under the federal
privacy regulations.
. . . .
I release the above-named health care provider and
recipient(s) from all liability and claims whatsoever
pertaining to the disclosure of information as contained in
the records released pursuant to this authorization.
(Emphases added). The employment records authorizations, which
include medical records, accident reports, and claims for
benefits made during employment, included the following language:
I further authorize [Marriott’s counsel] to further disclose
this authorization and all information obtained by its use,
regardless of content, to any and all persons involved in
the lawsuit/claim, . . . including, but not limited to,
opposing counsel, experts, consultants, court personnel,
private investigators, copy services, court reporting
companies, parties, and insurance representatives.
. . . .
The undersigned . . . waives any applicable requirements and
provisions of the Federal Privacy Act (5 U.S.C. Section 525,
525(a) et seq.), the provisions of 42 U.S.C. Section 4582,
the provisions of Chapter 334 of the Hawaii Revised
Statutes, and Chapter 325 of the Hawaii Revised Statutes
restricting the use and dissemination of the aforesaid
information . . . including but not limited to information
(if any) regarding the psychiatric, psychological, social
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work, infectious disease, HIV testing records, alcohol and
other substance abuse treatment.
(Emphases added). Cohan returned the authorizations unsigned and
informed Marriott that the authorizations did not comply with the
federal Health Insurance Portability and Accountability Act of
1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996).1 Cohan
notified Marriott that he would not consider signing any
authorizations unless Marriott first sought to obtain the records
1
45 C.F.R. § 164.512, which sets forth the uses and disclosures
under HIPAA, provides:
(e) Standard: Disclosures for judicial and administrative
proceedings.
(1) Permitted disclosures. A [medical provider] may
disclose protected health information in the course of any
judicial or administrative proceeding:
. . . .
(ii) in response to a subpoena, discovery request, or
other lawful process, that is not accompanied by an
order of a court or administrative tribunal, if:
. . . .
(iv) . . . .
(A) The parties to the dispute giving rise to
the request for information have agreed to a
qualified protective order and have presented
it to the court or administrative tribunal with
jurisdiction over the dispute;
. . . .
(v) For purposes of paragraph (e)(1) of this section,
a qualified protective order means, with respect to
protected health information requested under
paragraph (e)(1)(ii) of this section, an order of a
court or of an administrative tribunal or a
stipulation by the parties to the litigation or
administrative proceeding that:
(A) Prohibits the parties from using or
disclosing the protected health information for
any purpose other than the litigation or
proceeding for which such information was
requested; and
(B) Requires the return to the [medical
provider] or destruction of the protected
health information (including all copies made)
at the end of the litigation or proceeding.
(Emphasis added).
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pursuant to Hawai#i Rules of Civil Procedure (HRCP) Rule 312 or by
way of a motion to compel. In the alternative, Cohan proposed
that the parties enter into a stipulated qualified protective
order (SQPO).
Cohan forwarded a draft order that contained provisions
patterned after HIPAA (i.e. prohibiting use or disclosure of the
information outside the underlying litigation without Cohan’s
consent and requiring Marriott to return the documents or destroy
them at the end of litigation). Marriott rejected the draft
protective order and proposed that the parties use a form adopted
by the Hawai#i State Bar Association (HSBA). Cohan rejected the
HSBA-approved form as too expansive and asked Marriott to delete
several provisions:
2
HRCP Rule 31 governs depositions upon written questions and
delineates the subpoena procedure for obtaining documents.
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The HSBA-approved language Cohan’s proposed changes
(offered by Marriott)
1. Non-Disclosure Requirement:
Except as provided herein, none of
Plaintiff’s/Claimant’s Health
Information obtained from any source
shall be disclosed or used by anyone
or by any entity for any purpose,
without Plaintiff’s/Claimant’s
explicit written consent.
(b) Specifically Allowable Uses,
Disclosures, and Maintenance: It is
specifically understood and agreed
that Plaintiff’s/Claimant’s Health
Information may be used, and/or
disclosed, and/or maintained, without
Plaintiff’s/Claimant’s consent as may
be required to comply with state or
federal laws, rules, and court,
arbitrator, or administrative orders
(including subpoenas duces tecum),
and in relation to any claim,
litigation, and/or proceeding arising
out of the accident/incident of
______ (“Subject Accident”),
including the following:
1.(b)(2) for Defendants’ and/or 1.(b)(2) for Defendants’ and/or their
insurer’s internal review and/or insurer’s internal review and/or
auditing, including the handling and auditing, including the handling and
disposition of any claim or matter disposition of any claim or matter
related to the Subject Occurrence, related to the Subject Occurrence,
communication between Defendants and communication between Defendants and
their insurers/underwriters/agents; their insurers/underwriters/ agents;
relating to the review and/or audit relating to the review and/or audit
of claims for the purpose of setting of claims for the purpose of setting
premiums, calculating reserves, premiums, calculating reserves,
calculating loss experience, and/or calculating loss experience, and/or
procuring additional coverage, it procuring additional coverage, it
being understood and agreed that being understood and agreed that
information will not be used for any information will not be used for any
record compilation or database of record compilation or database of
Plaintiff’s claim history; Plaintiff’s claim history;
1.(b)(3) for external review and/or
auditing, such as by reinsurers, the Delete entire provision
Insurance Commissioner, or external
auditors;
1.(b)(6) for any legally required
reporting to governmental health or
medical insurance organizations or Delete entire provision
their private contractors for
Plaintiff’s health care and expenses
related to the Subject Occurrence;
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The HSBA-approved language Cohan’s proposed changes
(offered by Marriott)
1.(b)(7) for statistical or
analytical purposes, provided that
Plaintiff’s personal identification
information (e.g., name, specific Delete entire provision
street address, specific birth date,
Social Security number, driver’s
license number) is not included in
such review or use of Health
Information; and
1.(b)(8) for any record keeping
requirements or obligations relating Delete entire provision
to any of the foregoing, and
pertaining to the Subject Occurrence.
The above-noted permissible uses, The above-noted permissible uses,
disclosures, and maintenance disclosures, and maintenance
provisions are not intended to provisions are not intended to
unreasonably limit a party’s or their unreasonably limit a party’s or their
counsel’s or insurer’s record-keeping counsel’s or insurer’s record-keeping
obligations or requirements. obligations or requirements.
Defendants or their agents, Defendants or their agents,
attorneys, or insurers may request attorneys, or insurers may request
that additional permissible that additional permissible
categories of uses, disclosures, or categories of uses, disclosures, or
maintenance be added. Plaintiff maintenance be added. Plaintiff
shall not unreasonably withhold shall not unreasonably withhold
consent, provided that the additional consent, provided that the additional
categories requested are consistent categories requested are consistent
with the intent of this Order. with the intent of this Order.
Cohan indicated that if Marriott modified its version
of the protective order to delete the stricken language, or used
the form he proposed, Cohan would agree to the SQPO, which could
then be attached to subpoenas for the sought-after records.
At the June 26, 2012 pre-hearing CAAP conference, the
parties discussed the different versions of the protective order.
By letter dated July 3, 2012, the arbitrator informed the parties
of her decision that they use the form that appears on the HSBA
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website under “Stipulated Qualified Protective Order (for
litigation use)”:
During the second CAAP pre-hearing conference held on June
26, 2012, we discussed the form of the Stipulated Qualified
Protective Order as [the Cohans] were requesting certain
deletions from the form proposed by [Marriott]. After
hearing from all counsel and discussing each counsel’s
position, it was decided the form to be used shall be the
Stipulated Qualified Protective Order (for litigation use)
that appears on the Hawaii State Bar Association (HSBA)
website under Health Care Information Privacy Protection
Forms.
[The Cohans’] counsel shall inform [Marriott’s] counsel, in
writing, no later than Friday, July 6, 2012, whether they
intend to adhere to the Arbitrator’s above-stated decision.
In the event one or more parties decides not to adhere to
the above-stated decision the parties shall file the
appropriate motions in court to further resolve this issue.
(Underlining in place of italics in the original). By e-mail
dated July 6, 2012, Cohan informed Marriott that the HSBA form
was unacceptable:
The HSBA stipulated qualified protective order has no
mention in Hawaii Rules of Civil Procedure noting that it
is legally required. It is no more than some form of an
agreeable agreement, perhaps, but it is a tempest in a tea
pot as Rule 31, HRCP is available. Rule 31 is a better
avenue as defense would have to obtain the records, again,
to be admissible in evidence. Therefore, we cannot agree.
Marriott thereafter moved for an order compelling Cohan
to sign the fifteen authorizations so that it could obtain the
medical and employment records via subpoena. By order entered on
September 7, 2012, the arbitrator granted the request and ordered
Cohan to sign the authorizations, as well as the form protective
order from the HSBA website.
Eleven days later, by letter dated September 18, 2012,
Cohan appealed the arbitrator’s September 7, 2012 decision to the
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CAAP Administrator. Cohan argued that Marriott was not entitled
to the relief requested because it did not utilize the discovery
methods authorized by the HRCP and had proposed a protective
order that was too broad. He further argued that the court
lacked jurisdiction to compel him to sign a document not mandated
by state law, rule, regulation, or decision. The CAAP
Administrator affirmed the arbitrator’s decision.
Cohan appealed the CAAP Administrator’s decision to the
Honorable Bert I. Ayabe, the Arbitration Judge. Again, Cohan
argued that there was no law requiring a party to sign
authorizations or a qualified protective order, and he has a
right to the privacy of his health information. Judge Ayabe
affirmed the CAAP Administrator’s decision by order entered on
November 13, 2012.
II.
On February 14, 2013, Cohan filed the Petition and a
Memorandum in Support of Petition (Petition Memorandum). Cohan
argued that Judge Ayabe abused his discretion by affirming the
arbitrator’s order on the grounds that: (1) the order violates
Cohan’s right of privacy under HIPAA, article I, section 6 of the
Hawai#i Constitution, and Hawai#i case law; (2) the version of the
protective order proposed by Marriott wrongfully allows Cohan’s
health information to be used for purposes beyond the litigation;
(3) the authorizations fail to limit disclosure of Cohan’s
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private health information; and (4) no statute, law, or rule
requires Cohan to sign the authorizations or the protective
order. Cohan asked the court to:
• Order Judge Ayabe to vacate his order;
• Enter a protective order requiring Marriott to
pursue HRCP Rule 31, using HIPAA-compliant
language, prior to the use of any SQPO;
• Order that no law requires Cohan to sign the
authorizations for the medical and employment
information; and
• Enter a qualified protective order consistent with
Cohan’s proposed version or with the version
proposed by Marriott with Cohan’s proposed
modifications.
This court, by order entered on March 14, 2013, ordered
Marriott and the Restaurant to answer the Petition. In their
joint Response, filed on April 3, 2013, Marriott and the
Restaurant argued that Cohan waived his right to challenge the
form of the SQPO because he failed to appeal the CAAP
arbitrator’s July 3, 2012 letter. They also argued that their
form of the HSBA-approved SQPO effectively protects any privacy
concerns Cohan may have regarding his health information.
On July 26, 2013, we issued an order instructing each
party to file a supplemental brief addressing whether the SQPO
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and medical authorizations required to be signed by the CAAP
Administrator complied with federal and state law.
On August 9, 2013, Cohan submitted a Supplemental
Memorandum in Support of Petition for Writ of Mandamus. Cohan
reiterates challenges to Marriott’s SQPO and medical
authorizations set forth in his Petition Memorandum. Cohan
maintains that the SQPO does not meet the minimum federal
requirements for a protective order as required by HIPAA, much
less the more stringent privacy requirements of the Hawai#i
Constitution.3 Cohan additionally argues that the medical
authorizations negate the protective safeguards required by HIPAA
and the Hawai#i Constitution because the authorizations expressly
allow for re-disclosure of protected information without
referencing the existence of any limitations imposed by the SQPO.
On August 9, 2013, Marriott submitted its Supplemental
Answering Brief to Petitioner Cohan’s Petition for Writ of
Mandamus. Marriott argues that: (1) the medical authorizations
comply with federal and Hawai#i state law, (2) Marriott’s SQPO
complies with federal and Hawai#i state law, and (3) the
employment authorizations comply with federal and Hawai#i state
law.
3
Cohan argues that the Hawai#i Constitution requires more than the
minimum protections provided by HIPAA, as article I, section 6 recognizes that
“[t]he right of the people to privacy . . . shall not be infringed without the
showing of a compelling state interest . . . .[and] [t]he legislature shall
take affirmative steps to implement this right.”
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III.
A writ of mandamus is an extraordinary remedy that will
not issue unless the petitioner demonstrates a clear and
indisputable right to relief and a lack of alternative means
adequate to redress the alleged wrong or to obtain the requested
action. Kema v. Gaddis, 91 Hawai#i 200, 204, 982 P.2d 334, 338
(1999). Where a court has discretion to act, mandamus will not
lie to interfere with or control the exercise of that discretion,
even when the judge has acted erroneously, unless the judge has
exceeded his or her jurisdiction, has committed a flagrant and
manifest abuse of discretion, or has refused to act on a subject
properly before the court under circumstances in which it is
subject to a legal duty to act. Id. at 204-05, 982 P.2d at 338-
39. This court has held that “‘[m]andamus is the
appropriate remedy where [a] court issues an order releasing
confidential files . . . and the order is not immediately
appealable.’” Brende v. Hara, 113 Hawai#i 424, 429, 153 P.3d
1109, 1114 (2007) (per curium) (quoting Kema, 91 Hawai#i at 205,
982 P.2d at 339).4
4
Marriott urges the court to find Cohan’s challenge to the July 3,
2012 letter regarding the use of the HSBA-approved stipulated qualified
protective order as untimely. See Haw. Arb. R. 11(B) (a party is required to
challenge an arbitrator’s decision within ten days from the date of the
challenged act). Cohan, however, was not required to appeal from the July 3,
2012 letter. Instead, he appealed from the arbitrator’s September 7, 2012
order, which he was authorized to do. Although the letter of appeal is dated
September 18, 2012, both the CAAP Administrator and Judge Ayabe declined to
rely upon a purported rule violation, and ruled on the merits of the issue in
affirming the arbitrator’s decision. Under Haw. Arb. R. 11(B), “The
(continued...)
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IV.
A.
HIPAA is “a complex piece of legislation that addresses
the exchange of health-related information,” Nat’l Abortion Fed’n
v. Ashcroft, No. 03 Civ. 8695(RCC), 2004 WL 555701, at *2
(S.D.N.Y. Mar. 19, 2004)), one that has “radically changed the
landscape of how litigators can conduct informal discovery in
cases involving medical treatment.” Law v. Zuckerman, 307 F.
Supp. 2d 705, 711 (D. Md. 2004). The HIPAA regulations permit
discovery of protected health information5 “so long as a court
order or agreement of the parties prohibits disclosure of the
information outside the litigation and requires the return of the
information once the proceedings are concluded.” Id. at 708(quoting A Helping Hand, LLC v. Baltimore Cnty., 295 F. Supp. 2d
585, 592 (D. Md. 2003)).
4
(...continued)
Arbitration Judge shall have the non-reviewable power to uphold, overturn or
modify the decision of the Arbitration Administrator, including the power to
stay any proceeding.” The decision by the Arbitration Judge to review the
merits of Petitioner’s appeal has not been challenged by Marriott as a
flagrant abuse of discretion in an original proceeding or in this case. In
any event, under the circumstances, it clearly was not a flagrant abuse of
discretion for the Arbitration Judge to review the Administrator’s order
involving an issue of constitutional magnitude.
5
Health information includes any information, whether oral or
recorded in any form or medium, that: (1) is created or received by a health
care provider, health plan, public health authority, employer, life insurer,
school or university or health care clearinghouse; and (2) relates to the
past, present or future physical or mental health or condition of an
individual; the provision of health care to an individual; or the past,
present or future payment for the provision of health care to an individual.
45 C.F.R. § 160.103.
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HIPAA provides the “federal floor of privacy
protections that does not disturb more protective rules or
practices . . . . The protections are a mandatory floor, which
other governments and any [Department of Health and Human
Services regulated] entities may exceed.” Brende, 113 Hawai#i at
429, 153 P.3d at 1114 (quoting 65 Fed. Reg. 82,462 (Dec. 28,
2000)).
Section 264 of HIPAA directs the Secretary of Health
and Human Services to promulgate regulations to protect the
privacy of medical records, but provides in subsection (c)(2)
that such a regulation “shall not supersede a contrary provision
of State law, if the provision of State law imposes requirements,
standards, or implementation specifications that are more
stringent than the requirements, standards, or implementation
specifications imposed under the regulation.” HIPAA, Pub. L. No.
104-191, § 264, 110 Stat. 1936 (1996); see also 45 C.F.R. §
160.203(b). A state standard is “more stringent” if it “provides
greater privacy protection for the individual who is the subject
of the individually identifiable health information.” 45 C.F.R.
§ 160.202(6); see also Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923,
924 (7th Cir. 2004).
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Hawai#i is one of ten states that expressly recognize a
right to privacy in their constitutions.6 Article I, section 6
of the Hawai#i Constitution provides in relevant part that “[t]he
right of the people to privacy is recognized and shall not be
infringed without the showing of a compelling state interest.”
In promulgating this privacy provision, the 1978 Constitutional
Convention intended “that privacy [be] treated as a fundamental
right for purposes of constitutional analysis.” Comm. Whole Rep.
No. 15, in 1 Proceedings of the Constitutional Convention of
Hawai#i of 1978 (Proceedings), at 1024. This express right of
privacy is “a recognition that the dissemination of private and
personal matters, be it true, embarrassing or not, can cause
mental pain and distress far greater than bodily injury. . . .
In short, this right of privacy includes the right of an
individual to tell the world to ‘mind your own business.’”
Stand. Comm. Rep. No. 69, in 1 Proceedings at 674.
In Brende, this court held that article I, section 6 of
the Hawai#i Constitution protects private health information from
disclosure outside of the underlying litigation. 113 Hawai#i at
426, 153 P.3d at 1111. In that case, in which the underlying
6
Catherine Louisa Glenn, Protecting Health Information Privacy:
The Case for Self-Regulation of Electronically Held Medical Records, 53 Vand.
L. Rev. 1605, 1609 n.25 (2000) (identifying the constitutions of Alaska,
Arizona, California, Florida, Hawai#i, Illinois, Louisiana, Montana, South
Carolina, and Washington as protecting health information privacy). See also
Christopher R. Smith, Somebody’s Watching Me: Protecting Patient Privacy in
Prescription Health Information, 36 Vt. L. Rev. 931, 945 n.90 (2012) (citing
several state court cases recognizing a state constitutional right to
privacy).
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litigation arose out of a motor vehicle tort, the plaintiffs
petitioned this court for a writ of mandamus directing the
respondent judge “to revise a medical information protective
order to prohibit any person or entity from disclosing, for
purposes outside the underlying litigation and without [the
plaintiffs’] consent, [plaintiffs’] health information produced
in discovery.” Id.The plaintiffs proposed a stipulated order patterned
after HIPAA and Hawai#i law, including article I, section 6 of
the Hawai#i Constitution. Id. at 426-47, 153 P.3d at 1111-12.
The proposed order prohibited the defendant from using the
plaintiffs’ health information obtained in discovery from a
health plan, health care provider, or any other source outside
the underlying litigation and without the plaintiffs’ consent.
Id. The order further required the health information to be
returned to the health care entities, if applicable, or otherwise
be destroyed at the end of the litigation. Id. The defendant
argued that the proposed order was not necessary and refused to
stipulate to the provision prohibiting the use or disclosure of
information obtained from sources other than health care
providers. Id. at 427, 153 P.3d at 1112.
In granting the petition, the Brende court first noted
that HIPAA applies only to “health information obtained in
discovery directly from health care entities.” Id. at 429, 153
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P.3d at 1114. Because HIPAA regulations establish a “federal
floor of privacy protections,” in Hawai#i “a medical information
protective order issued in a judicial proceeding must, at a
minimum, provide the protections of the HIPAA.” Id. (emphasis
added). The court further held that article I, section 6 of the
Hawai#i Constitution, establishing the right of privacy, applies
to “informational privacy” and protects “the right to keep
confidential information which is highly personal and intimate.”
Id. at 430, 153 P.3d at 1115 (quotation marks and brackets
omitted). Because health information is “highly personal and
intimate,” it is protected by the informational prong of article
I, section 6.7 Id.Thus, we held that the “constitutional provision
protects the disclosure outside of the underlying litigation of
petitioners’ health information produced in discovery.”8 Id.7
The Brende court noted that the “privacy of health information was
previously codified in Hawai#i Revised Statutes chapter 323C (Supp. 1999)
(Privacy of Health Care Information), which prohibited anyone from disclosing,
outside of a civil action, health information discovered in the proceedings.”
Brende, 113 Hawai #i at 430 n.5, 153 P.3d at 1115 n.5. The law was enacted in
1999, but was subsequently repealed in 2001 upon the legislature’s finding of
“‘little support for a Hawaii Medical Privacy Law in light of the adoption of
[HIPAA],’ ‘no evidence of widespread abuse [of medical records privacy] in
Hawaii,’ and a need for ‘a clear understanding of what, if any, problems
Hawaii faces in protecting medical privacy.’” Id. (quoting 2001 Haw. Sess. L.
Act 244).
8
Finally, the Brende court held that the plaintiffs had also
demonstrated “good cause” for a protective order that provided disclosure
protections in excess of what was required by HIPAA, and thus directed the
trial judge to issue an order prohibiting the defendant from using or
disclosing health information obtained from any source. Id. at 431-32, 153
P.3d at 1116-17 (citing HRCP Rule 26(c)). The court reasoned that
“determining whether good cause exists . . . requires a balancing of
respondent’s need, outside of the underlying litigation, for petitioners’
(continued...)
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(emphasis added). The court noted, “once the information is
disclosed, the potential harm cannot be undone.” Id.Accordingly, the court held that the plaintiffs were entitled to
mandamus relief. Id. at 431-32, 153 P.3d at 1116-17.
B.
Hawai#i’s protection of a person’s health information
is based on an overarching constitutional principle of
informational privacy that prohibits the disclosure of health
information outside the underlying litigation without a showing
of a compelling state interest. In contrast, the HIPAA
regulations are “dense, complex, confusing, and lengthy.” Smith,
supra, note 6, at 978.9
This complexity is exemplified by HIPAA’s treatment of
“de-identified” health information.10 Marriott’s SQPO includes a
8
(...continued)
health information produced in discovery against the injury that might result
from the disclosure of that health information outside of the litigation.”
Id. at 431, 153 P.3d at 1116. The court found no legitimate need, outside of
the underlying litigation, for the plaintiffs’ health information produced in
discovery. Id.9
The complete text, including amendments, of 45 C.F.R. parts 160
and 164, which specifically set out the privacy and security standards, “now
consist of fifty-five pages of dense regulatory language.” Nicholas P. Terry,
What’s Wrong with Health Privacy, 5 J. Health & Biomedical L. 1, 31 (2009).
See also Laura Parker, Medical-privacy law creates wide confusion, USA Today
(Oct. 16, 2003, 11:01 PM), http://usatoday30.usatoday.com/news/nation/2003-10-
16-cover-medical-privacy_x.htm (last updated Oct. 17, 2003, 9:47 AM)(noting
that though the privacy provisions in the original HIPAA began as a 337-word
guideline, the final regulations swelled to 101,000 words).
10
Robert Gellman, The Deidentification Dilemma: A Legislative and
Contractual Proposal, 21 Fordham Intell. Prop. Media & Ent. L.J. 33, 37-38
(2010) (noting that HIPAA “provides an example of the difficulty of achieving
– or even defining – deidentification”).
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de-identification provision. HIPAA defines de-identified health
information as heath information “that does not identify an
individual and with respect to which there is no reasonable basis
to believe that the information can be used to identify an
individual . . . .” 45 C.F.R. § 164.514(a). Once health
information has been de-identified, it is no longer protected by
HIPAA. Further, because HIPAA allows “more stringent” state law
to preempt federal law only when it relates to the privacy of
“individually identifiable health information,” 45 C.F.R. §
160.203(b), this leads to the conclusion that state law also does
not protect de-identified information. Nw. Mem’l Hosp., 362 F.3d
at 926.
As an initial matter, the de-identifying process itself
is extremely complex and problematic. Under the rigorous,
comprehensive scheme for de-identification established by 45
C.F.R. § 164.514(b), there are two methods to achieve de-
identification.11 The first, known as the “Expert Opinion”
method, requires a “person with appropriate knowledge of and
experience with generally accepted statistical and scientific
principles and methods for rendering information not individually
identifiable” to apply those methods and then determine that the
11
See Guidance Regarding Methods for De-identification of Protected
Health Information in Accordance with the Health Insurance Portability and
Accountability Act (HIPAA) Privacy Rule, U.S. Dep’t of Health & Human Serv.,
http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/De-
identification/guidance.html (last visited Feb. 26, 2014).
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recipient of the information could identify the individual. 45
C.F.R. § 164.514(b)(1). The second, known as the “Safe Harbor”
method, requires the removal of eighteen types of identifiers,
such as account numbers, telephone numbers, license plate
numbers, and e-mail addresses. Id. § 164.514(b)(2). Health
information is considered sufficiently de-identified when “[t]he
covered entity does not have actual knowledge that the
information could be used alone or in combination with other
information to identify an individual who is a subject of the
information.” Id. § 164.514(b)(2)(ii). But, HIPAA expressly
allows a covered entity to re-identify previously de-identified
information, provided that it adopts certain safety measures. 45
C.F.R. § 164.514(c). Once re-identified, the information is
subject to the privacy rules. Id.In the event of a discovery dispute, judges would be
required to determine if information has been sufficiently de-
identified so as to escape HIPAA protection and state law
preemption. If identifiers remain and HIPAA therefore applies,
judges would determine whether health information has been
adequately protected, and in doing so, apply an intricate web of
regulations related to covered entities’ internal operations.12
12
For example, covered entities must identify “[t]hose persons or
classes of persons, as appropriate, in its workforce who need access to
protected health information to carry out their duties” and “[f]or each such
person or class of persons, the category or categories of protected health
information to which access is needed and any conditions appropriate to such
access.” 45 C.F.R. § 164.514(d)(2)(i). Further, for those disclosures that a
(continued...)
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Because HIPAA also permits a covered entity to disclose protected
health information to a “business associate” to conduct the de-
identification process on its behalf,13 judges would need to
examine the stringent requirements governing that relationship as
well.14 If information is sufficiently de-identified, however, no
12
(...continued)
covered entity makes on a routine basis, it must “implement policies and
procedures (which may be standard protocols) that limit the protected health
information disclosed to the amount reasonably necessary to achieve the
purpose of the disclosure.” 45 C.F.R. § 164.514(d)(3)(i). But for all other
disclosures, it must “[d]evelop criteria designed to limit the protected
health information disclosed” and “[r]eview requests for disclosure on an
individual basis in accordance with such criteria.” 45 C.F.R. §
164.514(d)(3)(ii). The Privacy Rule permits incidental uses and disclosures
that occur as a by-product of another permissible or required use or
disclosure, as long as the covered entity has applied reasonable safeguards.
45 C.F.R. § 164.502(a)(1)(iii). There are several other regulations related
to a covered entity’s uses and disclosures of protected health information,
such as requests for health information (45 C.F.R. § 164.514(d)(4)), data use
agreements (45 C.F.R. § 164.514(e)), fundraising communications (45 C.F.R. §
164.514(f)), and insurance underwriting or premium rating (45 C.F.R. §
164.514(g)).
13
The applicable HIPAA regulation states, in relevant part, “[a]
covered entity may use protected health information to create information that
is not individually identifiable health information or disclose protected
health information only to a business associate for such purpose, whether or
not the de-identified information is to be used by the covered entity.” 45
C.F.R. § 164.502(d)(1) (emphases added).
14
There are several regulations concerning a covered entity’s
relationship with a business associate, defined as one who “creates, receives,
maintains, or transmits protected health information for a function or
activity regulated by this subchapter, including claims processing or
administration, data analysis, processing or administration, utilization
review, quality assurance, patient safety activities listed at 42 CFR 3.20,
billing, benefit management, practice management, and repricing” or
“[p]rovides, other than in the capacity of a member of the workforce of such
covered entity, legal, actuarial, accounting, consulting, data aggregation [],
management, administrative, accreditation, or financial services to or for
such covered entity, or to or for an organized health care arrangement in
which the covered entity participates[.]” 45 C.F.R. § 160.103(1)(ii).
Further, the definition goes on to state that a “covered entity may be a
business associate of another covered entity,” id. at § 160.103(2), and
enumerate which entities may or may not be classified as business associates.
Id. at §§ 160.103(3)-(4).
See, e.g., 45 C.F.R. § 164.502(a)(3) (providing that a business
associate may use or disclose protected health information only as permitted
or required by its business associate contract or other arrangement); id. at §
(continued...)
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such analysis is required, and the covered entity may share the
data without restriction.15
Apart from these technical considerations, there is the
very complicated issue as to whether a patient has a legitimate
basis for being concerned about what happens to their personal
health information once it is de-identified.16 The Seventh
Circuit has held that “[e]ven if there were no possibility that a
patient’s identity might be learned from a redacted medical
record, there would be an invasion of privacy.” Nw. Mem’l Hosp.,
362 F.3d at 929. If citizens feel that their privacy rights in
health care information are not adequately protected, this may
14
(...continued)
164.502(e) (providing that a covered entity may disclose protected health
information to a business association and allow the business associate to
“create, receive, maintain, or transmit protected health information on its
behalf” if the covered entity “obtains satisfactory assurance that the
business associate will appropriately safeguard the information”); id. at §
164.504(e) (setting forth requirements for business associate contracts).
15
Guidance Regarding Methods for De-identification of Protected
Health Information in Accordance with the Health Insurance Portability and
Accountability Act (HIPAA) Privacy Rule, U.S. Dep’t of Health & Human Serv.,
http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/De-
identification/guidance.html (last visited Feb. 26, 2014). Though the Privacy
Rule does not limit how a covered entity may disclose de-identified
information, a covered entity may require the recipient of such information to
enter into a data use agreement to access files with known disclosure risk.
Id.
16
Despite the identification provisions’ intricacy, the risk of re-
identification remains, as there is “no national, uniform standard governing
the level of identifier-stripping necessary to guarantee that de-identified
data cannot be re-identified.” Smith, supra, at 935. Along with concerns
related to the security of this information once distributed, some patients
have subjective privacy concerns. Id. at 936 (arguing that the issue is one
of “dehumanization [in] having one’s most intimate information circulated by
an indifferent and faceless infrastructure without any control over the
process or content”) (quoting Will Thomas DeVries, Protecting Privacy in the
Digital Age, 18 Berkeley Tech. L.J. 283, 298 (2003)). It is noted that this
invasion of privacy occurs only because of the alleged wrongful conduct of a
defendant in the first instance.
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lead to various negative outcomes for patients, including “social
and psychological harm through embarrassment, economic harm
through job discrimination and job loss, patient difficulty in
obtaining health insurance, health care fraud, and patient
reluctance to share sensitive information with their doctors or
pharmacists.” Smith, supra, at 943 (citing Juliana Bell, Privacy
at Risk: Patients Use New Web Products to Store and Share
Personal Health Records, 38 U. Balt. L. Rev. 485, 489 (2009)).
This anxiety is exacerbated by the “realities of the
modern health information domain,” which have overwhelmed the
traditional legal protection of patient data achieved principally
through the patient-physician relationship. Nicholas P. Terry,
What’s Wrong with Health Privacy, 5 J. Health & Biomedical L. 1,
23 (2009). “The patient data contained in modern longitudinal
systems is comprehensive, portable, and manipulatable.” Id.Thus, the “potential for abuse is immense” – “there are many
parties . . . that crave access to this data.” Id. (footnote
omitted).
In sum, this scheme requires judges and arbitrators,
when examining the validity of medical authorizations, to not
only interpret and apply an intricate law subject to change by
regulation, but also to keep pace with rapidly evolving
technology shaping the disclosure of information.
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In contrast, Hawai#i’s Constitution, by precluding the
disclosure of private health information outside of the
underlying litigation, obviates application of an inordinately
complex law that may result in expensive discovery disputes,
appeals, and litigation delays to resolve such disagreements.
The very purpose of disclosing Cohan’s health information in
discovery is to resolve the underlying dispute. To allow this
information to be used outside the litigation, regardless of
whether it is de-identified or not, would reach beyond what the
Hawai#i Constitution permits in the absence of a showing of a
compelling state interest.
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V.
A.
The parties dispute six provisions that are included in
Marriott’s SQPO.17 Each provision, and its compliance with the
Hawai#i Constitution, will be discussed in turn.
1. SQPO paragraph 1(b)(2) — Review and Audit of Claims for
Internal Businesses Purposes
SQPO paragraph 1(b)(2) provides that Cohan’s health
information may be used, disclosed or maintained, without Cohan’s
consent, for purposes of Marriott’s internal reviews or “audit of
claims for the purpose of setting premiums, calculating reserves,
calculating loss experience, and/or procuring additional
coverage[.]”
17
Cohan, in his Supplemental Memorandum, contended that the SQPO’s
paragraph 1(b) allows disclosure in relation to “any claim, litigation, and/or
proceeding arising out of the . . . subject accident” whereas the Hawai#i
Constitution permits disclosure only as to the “underlying litigation.”
(Emphasis added). During oral argument, Cohan’s counsel acknowledged that the
originally contested provision matched his own proposed SQPO language at the
trial court level. Consequently, we do not consider this provision in
determining the merits of the Petition.
Similarly, Cohan waived his argument as to Marriott’s SQPO
paragraph 1(b)(6), which provides that Cohan’s health information may be used
“for any legally required reporting to governmental health or medical
insurance organizations or their private contractors for [Cohan’s] health care
and expenses related to the Subject Accident.” (Emphasis added). Cohan’s
proposed SQPO provides that “[i]t is specifically understood and agreed that
plaintiff’s health information may be used, and/or disclosed, and/or
maintained, without plaintiff’s consent as may be required to comply with
state or federal laws/rules[.]” (Emphasis added). Because this language is
also used in Marriott’s SQPO paragraph 1(b) and Cohan did not directly address
this provision in his Supplemental Memorandum, we do not consider this
provision in deciding whether the Arbitration Judge abused his discretion. In
light of Cohan’s waiver of his argument to this provision, we also need not
determine whether Marriott demonstrated a compelling state interest for
disclosure of health information in order to satisfy a legally required
reporting mandate.
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Cohan argues that the “language, if retained, would
improperly put at risk Cohan’s medical information for matters
far beyond the scope of his underlying personal injury tort
litigation, such that forcing him to sign it without the . . .
modifications would violate the privacy protections afforded him
by both state and federal law.”
Marriott contends that Cohan cannot show harm resulting
from the language he seeks to strike from paragraph 1(b)(2)
because the paragraph already provides that it is “understood and
agreed that information will not be used for any record
compilation or database of Plaintiff’s claim history.”
Regardless of whether Cohan can show harm, the
“internal review” provision allows Cohan’s health information to
be used to audit claims to set premiums and to calculate reserves
and “loss experience,” purposes that are outside the underlying
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litigation.18 Accordingly, the language of SQPO paragraph 1(b)(2)
exceeds the scope allowed by the State Constitution.
2. SQPO paragraph 1(b)(3) — External Review of Health Information
SQPO paragraph 1(b)(3) provides that Cohan’s health
information may be used for “external review and/or auditing,
18
An analysis under HIPAA arguably may lead to a different result.
SQPO paragraph 1(b)(2) provides that Cohan’s health information may be used,
disclosed or maintained, without his consent, for purposes of Marriott’s
internal reviews or audits. The applicable HIPAA regulation states that a
“covered entity,” which is defined as a 1) a health plan; (2) a health care
clearinghouse; or (3) a health care provider who transmits any health
information in electronic form in connection with a transaction covered by
this subchapter (45 C.F.R. § 160.103), “may use or disclose protected health
information for its own treatment, payment, or health care operations.” 45
C.F.R. § 164.506(c)(1). “Health care operations” is defined to include the
following activities of the covered entity (to the extent the activities are
related to covered functions):
(5) Business planning and development, such as conducting
cost-management and planning-related analyses related to
managing and operating the entity, including formulary
development and administration, development or improvement
of methods of payment or coverage policies; and
(6) Business management and general administrative
activities of the entity, including, but not limited to:
. . . .
(ii) Customer service, including the provision of
data analyses for policy holders, plan sponsors, or
other customers, provided that protected health
information is not disclosed to such policy holder,
plan sponsor, or customer;
45 C.F.R. § 164.501. Marriott asserts that the language of SQPO paragraph
1(b)(2) is consistent with 45 C.F.R. § 164.506(c) given that § 164.506(c)(1)
provides that insurance companies “may use or disclose protected health
information for its own treatment, payment, or health care operations.”
Further, Marriott notes that “health care operations” includes “business
management and general administrative activities.”
While Marriott relies upon § 164.501(6), it would appear that §
164.501(5) provides a better rationale for the SQPO language, as it relates to
internal review functions such as “[b]usiness planning and development, such
as conducting cost-management and planning-related analyses related to
managing and operating the entity[.]” 45 C.F.R. § 164.501(5). Thus, the
language of paragraph 1(b)(2) may satisfy the HIPAA requirement, but
apparently not under the provision that Marriott references.
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such as by reinsurers, the Insurance Commissioner, or external
auditors.”
Cohan argues that the use of his health care
information for purposes of an external review by undisclosed
external auditors does not pertain to the underlying litigation.
Marriott argues that HIPAA allows use of health care information
for external review.
This provision clearly allows for the use of Cohan’s
health information outside of the present litigation and does not
limit re-disclosure by such entities. Accordingly, the provision
violates Cohan’s right to privacy under the State Constitution.19
19
Cohan argues that “external review and/or auditing” does not
qualify under HIPAA as a use of the information in “the litigation or
proceeding for which such information was requested.” Marriott argues that
Cohan cannot show that he is harmed by the language of paragraph 1(b)(3)
because the use of health care information for external review and/or auditing
by reinsurers, the Insurance Commissioner, or external auditors is allowed by
45 C.F.R. § 164.501(4), which states that insurance companies may conduct or
arrange “medical review, legal services, and auditing functions” as part of
their health care operations. The applicable HIPAA regulation states that “a
covered entity may use or disclose protected health information for its own
treatment, payment, or health care operations.” 45 C.F.R. § 164.506(c)(1).
The applicable definition of “health care operations” provides: “Conducting or
arranging for medical review, legal services, and auditing functions,
including fraud and abuse detection and compliance programs[.]” 45 C.F.R. §
164.501(4) (emphasis added). However, paragraph 1(b)(3) would allow Cohan’s
information to be disclosed to business associates of Marriott. Under HIPAA,
the covered entity and its business associates must comply with strict
requirements. See 45 C.F.R. § 164.502(a)(3) (business associate may use or
disclose protected health information only as permitted or required by its
business associate contract or other arrangement); 45 C.F.R. § 164.504(e)
(setting forth requirements for business associate contracts). Because these
comprehensive requirements are not set forth in the SQPO, this provision
appears to violate HIPAA.
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3. SQPO paragraph 1(b)(7) — Disclosure of De-Identified
Information
SQPO paragraph 1(b)(7) provides that Cohan’s health
information may be used “for statistical or analytical purposes,
provided that [Cohan’s] personal identification information
(e.g., name, specific street address, specific birth date, Social
Security number, driver’s license number) is not included in such
review or use of Health Information.”
Cohan contends that the entire provision should be
excised from the protective order because the language “put[s] at
risk Cohan’s medical information for use for matters far beyond
the scope of his underlying personal injury tort litigation[.]”
Marriott argues that Cohan cannot show that he is harmed by the
provision.
This provision does not explain what type of analysis
will be conducted, who will compile the statistics, and whether
the results will be made available to entities outside the
litigation. Presumably, there is no need to strip the health
information of identifiers if it remains inside the litigation.
Because de-identified information is for use outside of the
present litigation, the provision is not in accord with the
Hawai#i constitutional protection for health information.20
20
As discussed in the earlier section, the HIPAA regulations related
to de-identified information are inordinately complex. The applicable HIPAA
regulation states, in relevant part, “[a] covered entity may use protected
(continued...)
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4. SQPO paragraph 1(b)(8) — Disclosure of Health Information for
Record Keeping Requirements
SQPO paragraph 1(b)(8) provides that Cohan’s health
information may be used “for any record keeping requirements or
obligations relating to any of the foregoing, and pertaining to
the Subject Accident.”
Cohan proposes to strike the provision from the
protective order and argues that “[t]he stricken language, if
retained, would improperly put at risk Cohan’s medical
information for use for matters far beyond the scope of the
underlying personal injury tort litigation.” Marriott counters
that Cohan cannot show he is harmed by the provision.
The requirement of disclosure of health information
“for any record keeping requirements or obligations relating to
any of the foregoing, and pertaining to the Subject Accident,”
provides no ostensible limitation to allowing use of Cohan’s
20
(...continued)
health information to create information that is not individually identifiable
health information or disclose protected health information only to a business
associate for such purpose, whether or not the de-identified information is to
be used by the covered entity.” 45 C.F.R. § 164.502(d)(1) (emphasis added).
Marriott contends that HIPAA does not protect de-identified information
because, pursuant to 45 C.F.R. §§ 164.502(d)(1)-(2), “[c]overed entities,
i.e., insurance companies, may use protected health information to create
information that is not individually identifiable health information, and such
‘de-identified’ information is not subject to the requirements of [45 C.F.R. §
164.502].” This argument rests on whether the information is fully de-
identified. However, Marriott’s de-identification provision in SQPO paragraph
1(b)(7) does not comply with the minimal requirements of 45 C.F.R. §§
164.502(d)(1)-(2), which codifies a comprehensive set of regulations for the
de-identification of health care information, set forth in 45 C.F.R. §§
164.514(a)-(b).
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information outside the subject litigation, and therefore
violates the Hawai#i Constitution.21
5. SQPO paragraph 1(b)(8) — Unreasonably Withholding Consent to
Disclosure of Health Information
SQPO paragraph 1(b)(8) also provides that Marriott or
its “agents, attorneys, or insurers may request that additional
permissible categories of uses, disclosures, or maintenance be
added” to the SQPO, and Cohan “shall not unreasonably withhold
consent [to disclosure of health information], provided that the
additional categories requested are consistent with the intent of
this Order/Agreement.”22
Cohan contends that the language, if retained, would
improperly risk disclosure of Cohan’s medical information for
matters beyond the scope of the underlying litigation and violate
the private protections afforded him by state and federal law.
Marriott argues that the provision, which “relate[s] to
[Marriott’s] reservation to request additional permissible uses,”
21
Although Marriott cites to 45 C.F.R. §§ 164.502(d)(1)-(2)
(relating to uses and disclosures of de-identified information) as a statutory
basis for SQPO paragraph 1(b)(8), the cited regulations are not related to the
subject of paragraph 1(b)(8). Furthermore, SQPO paragraph 1(b)(8), which
provides that Cohan’s health information may be used “for any record keeping
requirements or obligations relating to any of the foregoing, and pertaining
to the Subject Accident” (emphasis added), does not identify the entities that
may use Cohan’s health information or require them to conform to HIPAA
requirements.
22
There is no HIPAA regulation addressing the subject of this
provision, which provides that Cohan “shall not unreasonably withhold consent
[to disclosure of health information], provided that the additional categories
requested are consistent with the intent of this Order/Agreement.”
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is “not harmful because it does not impose unilaterally any
additional uses without the consent of [Cohan].”
However, the provision does not limit the use or
disclosure of Cohan’s health information to the underlying
litigation. Further, the provision does not limit Marriott and
its agents in requesting additional categories of uses and
disclosures for Cohan’s health information, but at the same time
limits Cohan’s power to withhold consent provided that the
additional categories are consistent with the intent of the SQPO.
Therefore, requiring Cohan to comply with SQPO paragraph 1(b)(8)
would not comport with the protections provided for health
information under the Hawai#i Constitution.
6. SQPO paragraph 5 — Time Deadline to Return Health Information
SQPO paragraph 5, entitled “Return or Destruction of
All Copies,” provides that Marriot must return Cohan’s health
information to Cohan’s counsel or destroy the information within
ninety days after the “final conclusion of the . . . case/claim
by fully-executed non-litigation settlement agreement.”
This SQPO provision provides a ninety-day grace period
after the end of litigation for Marriott to return or destroy
Cohan’s protected health information. Because article I, section
6 of the Hawai#i Constitution prohibits the use of such
information outside the present litigation, it would, by
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inference, require parties to return records immediately after
the litigation concludes.23
B.
In this case, application of the Hawai#i Constitution
establishes that the six contested provisions of the SQPO are not
in compliance with state law. The six provisions – paragraph
1(b)(2) (internal review); paragraph 1(b)(3) (external review);
paragraph 1(b)(7) (de-identification); paragraph 1(b)(8) (record
keeping requirements); paragraph 1(b)(8) (preventing Cohan from
unreasonably withholding consent); and paragraph 5 (time deadline
for returning health information) – all allow Cohan’s health
information to be used for purposes outside the underlying
litigation without any showing of a compelling state interest.
Therefore, the respondent judge erred in affirming the CAAP
Administrator’s order and requiring Cohan to sign the SQPO.
VI.
In addition to requiring the execution of Marriott’s
SQPO, the arbitrator’s order mandates that Cohan sign Marriott’s
23
The corresponding HIPAA regulation requires, in relevant part,
“the return to the covered entity or destruction of the protected health
information (including all copies made) at the end of the litigation or
proceeding.” 45 C.F.R. § 164.512(e)(1)(v)(B) (emphasis added). In contrast,
SQPO paragraph 5 provides that Marriott must return the information within
ninety days after the “final conclusion of the . . . case/claim by fully-
executed non-litigation settlement agreement.” Marriott argues that the SQPO
provision complies with the HIPAA regulation because Marriott must return
protected health information within ninety days after the conclusion of the
case. But, the ninety-day grace period in the SQPO is more than what HIPAA
allows.
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proposed authorizations for medical and employment records.24
Cohan separately objected to the language contained in these
authorizations as overly broad. The medical authorizations
submitted to Cohan by Marriott,25 if signed by Cohan, would grant
Marriott’s counsel authorization to disclose Cohan’s health
information to any and all persons as follows:
I further authorize [Marriott’s counsel] to further disclose
this authorization and all information obtained by its use,
regardless of content, to any and all persons involved in
the lawsuit/claim, for which this authorization is being
signed, including, but not limited to, opposing counsel,
experts, consultants, court/administrative agency personnel,
government agencies, private investigators, copy services,
court reporting companies, parties, and insurance
representatives.
(Emphasis added).
Additionally, the medical authorizations would grant
Marriott permission to re-disclose Cohan’s health information,
“in relation to the [case] for which [the] authorization is
provided,” and provide that such information “may no longer be
protected under federal privacy regulations”:
“I understand that the health information released under
this authorization may be re-disclosed by the recipient in
relation to the case/matter for which this authorization is
provided, and may no longer be protected under the federal
privacy regulations.”
24
Cohan argues that Hawai#i Rules of Evidence (HRE) Rule 504,
entitled “Physician-patient privilege,” provides supplementary protection
against the disclosure of his health information. In light of the court’s
determination as to informational protection under the Hawai#i Constitution,
this contention need not be addressed.
25
Although Marriott references “employment authorizations” in its
Supplemental Memorandum, all of the authorizations submitted by the parties
appear to be medically related.
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(Emphasis added). The authorizations would also “release
[Marriott] from all liability and claims whatsoever pertaining to
the disclosure of information as contained in the records
released pursuant to [the] authorization.”
Cohan argues that the clause providing for re-
disclosure of his information “in relation” to the case in a
manner that “may no longer be protected under the federal privacy
regulations” has the effect of “negat[ing] the protective
safeguards” of HIPAA and article I, section 6 of the Hawai#i
Constitution. Cohan notes that the authorizations make no
reference to the SQPO or the limitations on the disclosure of his
health information set forth in the SQPO, thereby allowing for
the potential disclosure of his health information “to a wide
group of people” with no way of preventing the recipients of the
information from re-disclosing it to parties unrelated to the
underlying litigation. Consequently, while recipients of Cohan’s
health information would be apprised of the protections against
disclosure listed in the authorizations, they would lack notice
of the more restrictive protections against certain types of
disclosure that may be contained in a proper SQPO.
The authorizations require Cohan to sign a release
expressly stating that his information may no longer be protected
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by federal privacy regulations.26 Additionally, the
authorizations do not provide that the recipient of the re-
disclosed information is subject to the disclosure restrictions
set forth in the SQPO. The authorizations also do not require
that Cohan be notified before his health information is re-
disclosed, thereby eliminating his ability to know or challenge
the dissemination of his protected health information.
While discovery of Cohan’s medical records are relevant
to the subject matter of his claims, article I, section 6 of the
Hawai#i Constitution protects the disclosure of health
information produced in discovery and limits such disclosure to
the underlying litigation. This right of the people to privacy
“is recognized and shall not be infringed without the showing of
a compelling state interest.” Brende, 113 Hawai#i at 430, 153
P.3d at 1115.
Thus, the respondent judge’s order requiring Cohan to
sign an authorization that would allow Marriott to “disclose
[Cohan’s health information] outside of the underlying
litigation” without his consent is a violation of Cohan’s
“constitutional right to informational privacy.” Id. at 431, 153
26
If, pursuant to Brende, any “medical information protective order
issued in a judicial proceeding must, at a minimum, provide the protections of
the HIPAA,” 113 Hawai #i at 429, 153 P.3d at 1114, then it follows that a party
may not be required to sign an authorization form that does not provide the
same minimum protections.
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P.3d at 1116. Therefore, the respondent judge erred by requiring
Cohan to sign the authorizations.
VII.
Cohan is entitled to mandamus relief because the
Arbitration Judge’s order is not appealable and results in the
release of confidential health information outside the underlying
litigation. See Brende, 113 Hawai#i at 429, 153 P.3d at 1114
(citing Kema, 91 Hawai#i at 205, 982 P.2d at 339).
Therefore we grant the Petition, and the respondent
judge is directed to: (1) vacate the order affirming the
arbitration decision, and (2) order that the qualified protective
order and the authorizations for release of medical records be
revised consistent with this opinion.
James Krueger, /s/ Simeon R. Acoba, Jr.
Cynthia K. Wong, and
Loren K. Tilley /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Sidney K. Ayabe and
Ryan I. Inouye
for respondents
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