IN THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT
IN AND FOR
ADMINISTRATIVE ORDER NO. 2006-017 PA/PI-CIR
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RE: DISCLOSURE
OF PROTECTED HEALTH INFOR
The federal Health Insurance Portability and Accountability Act of 1996 (HIPPA), Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26, 29 and 42 U.S.C.) authorizes an entity covered by federal regulations to disclose protected health information in response to a subpoena, discovery requests, or other lawful process under certain circumstances see 45 C.F.R. parts 160-164; and
A qualified protective order is a court order or stipulation by the parties to litigation that prohibits the parties from using or disclosing protected health information for any purpose other than the litigation and requires the information to be returned or destroyed at the conclusion of the litigation; and
The many requests the Court receives for such orders make it desirable to have a form qualified protective order and order to disclose protective health information available to the litigants and the Bar and it is desirable to update the existing form order; it is therefore
ORDERED:
1. The form HIPPA Qualified Protective Order and Order to Disclose Protected Health Information, attached hereto as Exhibit “A,” is made available for use in the Sixth Judicial Circuit. Any deviation from this form should be brought to the court’s attention by the party seeking the order.
2. This administrative order does not limit the discretion of the trial judge to enter other appropriate orders in matters before the Court.
3. Where a party who obtains protected health information from a covered entity by subpoena, other discovery, or in response to a qualified protective order, and the party files such information with the Court, the party shall identify such information to the Clerk of the Circuit Court for sealing. A separate order sealing the records is not required. Discovery shall only be filed with the Court in accordance with the Florida Rules of Procedure.
4. Any party who obtains protected health information from a covered entity where such information is admitted into evidence shall identify such information to the Court and the Clerk of the Circuit Court for a determination by the Court at that time whether the evidence will be sealed.
5. The Clerk of the Circuit Court shall retain protected health information identified by the parties in the court file or received into evidence by the Court in accordance with Rule of Judicial Administration 2.051 and shall destroy such records in accordance with Rule of Judicial Administration 2.075 and applicable federal regulations.
Administrative Order 2003-014 PA/PI-CIR is hereby rescinded in its entirety.
DONE AND ORDERED in Chambers at
________________________________
David A. Demers, Chief Judge
cc: All Judges
The
Honorable
The Honorable Robert Dillinger, Public Defender
The
Honorable
The
Honorable
Gay Inskeep, Trial Courts Administrator
Betty Henderson, Assistant Court Services Director, Pasco County Clerk’s Office
All Hearing Officers and General Magistrates
Kerry L.
Rice, Senior Deputy Courts Administrator,
Bar
Associations,
Law
Libraries,
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND
CIVIL DIVISION
______________________________
______________________________
______________________________,
Plaintiff(s), CASE NO
UCN ______________________________
vs.
_____________________________
_____________________________
_____________________________,
Defendant(s).
ORDER ON DEFENDANT(S)’ MOTION FOR A HIPAA
QUALIFIED PROTECTIVE ORDER AND ORDER TO DISCLOSE PROTECTED HEALTH
INFORMATION
This matter is before the Court on the motion of Defendant(s),
_________________________, for a Qualified Protective Order and Order to
Disclose Protected Health Information pursuant to the federal Health Insurance
Portability and Accountability Act of 1996 (HIPAA), Pub
ORDERED AND ADJUDGED as follows:
1. Defendant(s)’ motion is GRANTED.
Qualified Protective Order
2. In accordance with and as defined by
the regulations promulgated under HIPAA, specifically 45 C.F.R. section
164.512(e)(1)(ii)(B) and (v), the Court hereby enters a HIPAA Qualified
Protective Order (QPO). Pursuant to this
QPO, all parties to this lawsuit are:
a)
prohibited from using or disclosing protected heath information
(PHI) for any purpose other than the litigation of the above-styled lawsuit;
and
b)
required to destroy all copies of the PHI or to return them to the
disclosing entity at the conclusion of the above-styled lawsuit.
3. For purposes of this QPO, “conclusion”
is understood to include the time for any records retention requirement and
statute of limitations applicable to a party or a party’s counsel. “Litigation” is understood to include all
appellate proceedings or the expiration of time to commence such appellate
proceedings without appeal.
4. Based upon this QPO and commencing
immediately from the date of this QPO, all persons, including but not limited
to physicians and other medical providers,
a) shall
comply with any and all subpoenas for records without deposition pursuant to
Florida Rule of Civil Procedure 1
b) are
authorized and ordered to use or disclose PHI in response to said subpoenas
Authorization and Order to Disclose PHI in the Course
of Discovery and Judicial
Proceedings (Order to Disclose)
5. Additionally, pursuant to 45 C.F.R.
section 164.512(e)(1)(i) and for purposes of HIPAA compliance, and without
waiver of any right to the prepayment of costs or any other appropriate
objection or privilege that may be timely asserted, the attorneys, employees,
agents, or designees of each party or each party’s legal counsel in this case,
and all duly noticed persons, are expressly and specifically AUTHORIZED and ORDERED to:
a)
respond to valid Interrogatories served pursuant to the Florida
Rules of Civil Procedure in the above-styled matter seeking PHI;
b)
respond to valid Requests for Production served pursuant to the
Florida Rules of Civil Procedure in the above-styled matter seeking PHI;
c)
respond to valid and timely Requests for Copies or Requests for
Production from Non-Parties served pursuant to the Florida Rules of Civil
Procedure in the above-styled matter for production of documents and things
without deposition concerning PHI; and
d)
respond to each of a party’s own experts who request, either
orally or in writing, PHI for the purposes of reviewing the above-styled matter
in whole or in part, regardless of whether the expert is a consulting or trial
expert or is considered retained for compensation or not retained,
by disclosing and providing such
requested PHI.
6. Additionally, pursuant to 45 C.F.R.
section 164.512(e)(1)(i) and for purposes of HIPAA compliance, without waiver
of any right to the prepayment of costs or any other appropriate objection or
privilege that may be timely asserted, each deponent duly noticed for
deposition in the above-styled litigation, including but not limited to a
party, a fact witness, a records custodian, an expert, or a healthcare provider
of any type, is expressly and specifically AUTHORIZED
and ORDERED to use or to disclose to
the attorneys, agents, employees, and designees of each party or each party’s
legal counsel in this case the PHI of a party that is responsive to deposition
questions or a valid subpoena duces tecum at such duly-noticed deposition in
the above-styled litigation.
7. Additionally, pursuant to 45 C.F.R.
section 164.512(e)(1)(i) and for purposes of HIPAA compliance, without waiver
of any right to the prepayment of costs or any other appropriate objection or
privilege that may be timely asserted, all witnesses duly appearing at, or
subpoenaed for, any judicial proceeding related to this litigation, including
but not limited to trial, are specifically and expressly AUTHORIZED and ORDERED
to use and disclose the PHI of a party in any form at such judicial
proceeding.
8. In compliance with both HIPAA and any
applicable state law not preempted by HIPAA, the authorizations and orders set
forth in paragraphs 5, 6, and 7 of this Order to Disclose expressly include PHI
concerning psychological and mental heath records, disability status and
records, substance abuse and treatment history, and HIV status, as well as
records concerning other sexually transmitted diseases if so requested.
9. The commands of the Court in paragraphs
5, 6 and 7 of this Order to Disclose are a separate authorization for use or
disclosure of PHI in addition to, and potentially inclusive of, the use and
disclosures authorized under paragraph 2 of the QPI.
10. Violation of paragraphs 5, 6, or 7 of the
Order to Disclose may subject the non-compliant party, or that party’s counsel,
to sanctions, including but not limited to the costs and attorney’s fees
attributable to such non-compliance, the striking of evidence or testimony, or
the striking of the party’s claims or defenses.
11. Pursuant to 45 C.F.R. section
164.512(e)(1)(i) and for purposes of HIPAA compliance, without waiver of any
right to the prepayment of costs or any other appropriate objection or
privilege that may be timely asserted, any person or entity authorized or
ordered above to use or disclose PHI is expressly and specifically AUTHORIZED and ORDERED to do so with, to, or before any court reporter service,
videographer service, translation service, photocopy service, document management
service, records management service, graphics service, or other such litigation
service, designated by a party or a party’s legal counsel in this case. The protections and requirements of paragraph
2 of the QPI apply to such service providers.
Each party or the party’s legal counsel is charged with obtaining
advance consent of such service to comply with this paragraph. Upon such consent, the service provider will
be deemed to have voluntarily submitted to this Court’s jurisdiction during the
pendency of the above-styled matter for purposes of enforcement of this
paragraph, including but not limited to the imposition of such sanctions as may
be appropriate for any non-compliance.
12. Except for business associate agreements
(as defined by HIPAA) entered into by a party or a party’s legal counsel for
purposes of satisfying the requirements of paragraph 11 of the Order to
Disclose, the uses and disclosures of PHI authorized under the Order to
Disclose are separate from, and not to be deemed subject to, any business
associate agreement that has been or will be executed by any party, any party’s
legal counsel, or any disclosing person or entity. No use or disclosure made pursuant to the
Order to Disclose shall be deemed to require the execution of a business
associate agreement (as defined by HIPAA).
The intent of the Order to Disclose is that such business associate
agreements, including any requirement for such agreements under the HIPAA
regulations, should be construed as inapplicable to uses and disclosures under
this Order and as limited only to uses and disclosures of PHI outside of the
Order to Disclose.
13
14
15
16. A copy of this QPI and Order to Disclose
shall be valid as an original
DONE AND ORDERED in Chambers, at
______________________,
________________________
Circuit Judge