The Advocate, Journal of the Nevada Trial Lawyer’s Association, April 2003 issue.

As most of you probably already know, there is now a new Federal law which goes into effect April 14, 2003. The law is HIPAA Rule Section 164.508.

Although it will be a hassle for all of us to have our clients resign new release authorizations, I think that in the end this will have a positive effect for all of us.

In the past, insurance adjusters and defense attorneys have always requested plaintiff's counsel to sign "carte blanche" release authorizations. I have always been amazed that some plaintiff's attorneys or paralegals have permitted their clients to sign these carte blanche release authorizations, as this has never been required by Nevada law (which restricts the right of defense attorneys to only have information that is relevant to the case. Our office has always maintained the position that defense counsel is only entitled to get a release authorization for specific providers, to be limited to obtaining records only. That is, in fact, the law in the state. See Schlatter vs. Eighth Jud.Dis.Ct., 561 P.2d 1342.

Now, all argument over this is ended by the new law. Insurance adjusters and defense lawyers are only entitled to get release authorizations for specific providers. They will be violating the federal law if they use a carte blanche release authorization.

I also note, as an aside, that it has been the practice of a handful of defense attorneys here in Las Vegas to send out subpoenas for medical records and other documents without release authorizations, in the hope that records clerks will simply overlook the fact that the release authorization was not attached to the subpoena, and send copies of the records. Oftentimes, these subpoenas are sent out without notice of depo, and the plaintiff's attorney does not even know that the defense firm is subpoenaing these records. I have always been disappointed that some of the local judges, when this egregious practice is brought to their attention, have not given the most severe sanctions to the handful of "bad egg" defense attorneys who have done this in the past. In fairness, I want to make clear that I have only noticed this practice from two defense firms, and from various attorneys who were trained at those firms and later on went out on their own, thinking that this was an acceptable "bending of the rule." The vast majority of insurance defense lawyers do not engage in this practice.

The new HIPAA Rule does not require that a certain specific form has to be used. It only requires that certain information be noted in the forms. I am sure that we will encounter many medical providers who will insist that their particular release authorization form has to be used, when such is not the case. Likely we will all have to prepare some sort of form letter to send to these providers telling them that HIPAA only requires that certain matters be put into the release form; and that as long as these are set forth in the form, the particular type of form is not needed.

It was also brought to my attention that under the new rule, doctors offices are not permitted to give out information over the telephone without the release authorization; and that when they do give out telephone information with releases sent, they must make some sort of charting about it. I would guess that most doctors or hospital offices will now request that any request for information be done by fax, so that they can comply with the new rule to show when such information was given.

The new HIPAA Rule has the following requirements.

• A specific and meaningful description of the information to be disclosed.

• The name of the covered entity or individual authorized to make the disclosure.

• The name of the covered entity or person to whom the medical entity can make the disclosure.

• An expiration date or event that relates to the individual or the purpose of the use or disclosure.

• A statement of the individuals right to revoke the authorization in writing.

• A statement about the exceptions to the right to revoke.

• A description of how the individual may revoke the authorization.

• A statement that information user disclose pursuant to the authorization may be subject to re-disclosure by the recipient and no longer be protected by the rule.

• Signature of the individual.

• The date.

• If the authorization is signed by a personal representative of the individual, a description of such representative's authority to act for the individual.

The Rule further goes on to state that a release is not valid if it has any of the following defects:

• The expiration date or event is passed.

• The authorization has not been filled out completely with respect to the required content listed above.

• The authorization is known by the covered entity to have been revoked.

• The authorization is a prohibited type of compound authorization (must not be combined with any other document or request)

• Any material information in the authorization is known by the medical provider to be false.

I have just now prepared two release authorization forms for use by my office. One is for the use by our office and it is in the following form.

MEDICAL RECORDS AND BILLS RELEASE AUTHORIZATION

The below described patient hereby authorizes Burris, Thomas & Springberg to obtain information, pursuant to HIPAA Rule (Section 164.508) the following information or documents upon the below described terms.

1. The medical provider is authorized to provide any information requested,

including all reports, electronic data, lab tests, x-rays, billing information, or any other documents; also the below described provider is authorized to provide written or oral reports as requested by Burris, Thomas & Springberg.

2. The entity to whom this authorization is directed is:

3. The above entity can make disclosure of medical information or billing

information to Burris, Thomas & Springberg or any employee or agent of said law firm.

4. The purpose of this disclosure is to obtain information for use by my

attorneys in connection with a legal claim or proceeding. The expiration date of this authorization is five years from the date of signature below.

5. The undersigned understands that he or she may revoke this authorization

at any time, without exceptions, by sending a written request to Burris, Thomas, & Springberg.

6. The undersigned understands that the information obtained by Burris,

Thomas & Springberg pursuant to this authorization may be used by them for purposes of any legal claims being presented by Burris, Thomas & Springberg on behalf of the below described individual. The undersigned understands that if medical records are obtained by Burris, Thomas & Springberg, that said records or copies thereof may be provided to those entities, or their representatives, against whom legal claims are being presented; and said records will be subject to examination by Burris, Thomas Springberg and those employees or agents hired by Burris, Thomas & Springberg to examine said documents for purposes of legal claims or proceedings. If said information is provided to insurance adjusters, defense lawyers, or others against whom the legal proceeding or claim is presented, said disclosure will not be subject to the HIPAA rule.

DATED THIS ____ day of _______________, 200__

___________________________________

If this box is checked, it is requested that the medical provider send copies of all medical records, data, and billing statements to the above requesting party.

If this box is checked, the medical provider is only to send those items specifically designated in addendum "A" attached hereto.

I have done a separate Release Authorization to send to insurance adjusters or defense attorneys. It is in this form:

LIMITED RELEASE AUTHORIZATION

The undersigned hereby gives consent to

to obtain copies of medical records and billing statements on the terms and conditions set forth below pursuant to HIPAA Rule (Section 164.508).

1. The information that can be provided will include any existing medical

records, lab reports, copies of x-ray films (not originals), copies of other radiologic films (but not originals); billing information, and any other data entered in the patient's chart or billing records.

2. THIS RELEASE DOES NOT AUTHORIZE THE MEDICAL FACILITY,

PHYSICIAN, OR EMPLOYEES TO PREPARE WRITTEN REPORTS, OR ORALLY DISCUSS THE PATIENT'S CASE, WITH ANY REPRESENTATIVES OF THE BELOW DESCRIBED ENTITY TO WHOM DISCLOSURE CAN BE MADE.

3. The entity to whom the above-described entity can make disclosure is:

4. The expiration date of this Release Authorization is five years from the date

of signature below.

5. The patient may revoke this authorization at any time. Said revocation may

be done by the patient, or by the patient's attorneys, Burris, Thomas & Springberg. There are no exceptions to this right to revoke. The revocation can be made any time in writing, or by fax or e-mail communication to the entity to whom the disclosure can be made.

6. It is understood by the below-described patient that the information obtained

by the above-described insurance company or law firm will be used for purposes of legal proceedings or insurance claims matters, and that once said information or data is obtained by the above-described entity it is no longer protected from disclosure by HIPAA Rule Section 164.508.

DATED this ______ day of _________________, 200__.

____________________________________

As my suggested forms have not yet been "tested" I cannot guarantee that they are fail proof. But as best I can tell, the forms I have prepared, shown above, do contain all the requested points under the new law and should work.

As a side note, I wonder how this new law will affect medical malpractice cases. The current Screening Panel law requires a specific format be used for the release authorization, which is not in compliance with the new Federal law. (I know that few cases are being filed with the Screening Panel now but there are still some pending, and legislation has been proposed to re-enact the Screening Panel.) One positive thing that I can see happening as a result of this new law, vis a vis medical malpractice cases, is it will prevent treating physicians from cooperating with defense counsel unless the patient specifically authorizes this to be done. As anyone who does med-mal cases knows, the common procedure is for the treating physicians to "circle their wagons" to protect the offending doctor, and they are usually very wiling to fully cooperate with defense counsel in preparing affidavits or testimony to be used against the victim of the malpractice. This particular practice has always been particularly troubling to me, since these very same treating physicians who are only too anxious to sign affidavits prepared for them by defense counsel usually will refuse to even meet or talk with the attorney for their patient. I think that under this new HIPAA law, it would be unlawful for the treating physicians to "discuss" the patient's legal case among themselves, which practice has been widely utilized by them to make sure that the version of facts that they come up with is consistent with whatever defense posture is being taken by the tortfeasor physician. (Have you ever noticed how in a deposition of a treating physician who claims he never talked to the tortfeasor physician, he/she comes up with little phrases or obscure facts that the treating physician said in his deposition a week earlier? If you think this is just a coincidence, then I have a bridge in Brooklyn I can sell you for a cheap price.)