Florida and federal court clash over health privacy laws

McClatchy NewspapersApril 10, 2013 

— The federally protected privacy rights of Florida nursing home patients extend beyond the grave, under a new appellate court ruling that makes it harder for surviving spouses to obtain the health records of their late loved ones.

In a clash between state and federal powers, the 11th U.S. Circuit Court of Appeals has ruled unanimously that a strict federal health privacy law trumps a more lenient, decades-old Florida statute that governs access to health records. The result complicates life for family members, challenges Florida legislators and cheers the state’s nursing home operators, who’ve been caught in the middle of conflicting mandates.

Opis Management Resources, which runs nursing homes throughout Florida, had joined other nursing home companies, including Cypress Health Group and Gulf Coast Health Care, in a 2011 lawsuit that led to the appellate court ruling issued Tuesday.

It’s “pleased with the recent decision by the appellate court, and its interpretation of the requirements of federal patient privacy law,” Opis declared Wednesday in a statement, adding that officials will continue their “diligent efforts” to protect patients’ privacy.

The conflict over who gets access to the health records of a deceased nursing home patient pits a Florida law that first passed in 1987 against the federal Health Insurance Portability and Accountability Act of 1996. The sweeping federal law imposes strict privacy requirements.

It’s the reason, for instance, that pharmacies might paint lines behind which waiting customers stand so they don’t overhear prescription talk, and it’s why hospital employees take great care in the messages they leave with family members.

The federal law also has sharp teeth. Federal authorities received more than 9,000 complaints alleging violations of the law in 2011, and resulting fines sometimes have exceeded several million dollars.

The state law requires licensed nursing homes to disclose deceased residents’ medical records to certain individuals who request them, including spouses, guardians, surrogates or attorneys. The federal law, by contrast, permits the release of records only to the designated “personal representative.”

Simply being a spouse isn’t enough to qualify under federal law. In Florida, to be considered a personal representative to comply with the federal law, an individual must be the fiduciary appointed by a court to administer the estate.

“The unadorned text of the state statute authorizes sweeping disclosures, making a deceased resident’s protected health information available to a spouse or other enumerated party upon request, without any need for authorization, for any conceivable reason, and without regard to the authority of the individual making the request to act in a deceased resident’s stead,” Judge Susan H. Black wrote for the Atlanta-based appellate court.

The Florida law, Black added, “frustrates the federal objective of limiting disclosures of protected health information” and is therefore “pre-empted by the more stringent privacy protections” imposed by the federal law.

The conflict hit home when family members who’d been denied access to health records filed complaints with federal authorities. The federal Department of Health and Human Services Office for Civil Rights sided with the Florida nursing homes. The Florida Agency for Health Care Administration sided with family members and cited the nursing homes for violating the state’s law.

Shelisha Coleman, a spokeswoman for the Florida agency, said Wednesday that officials would comply immediately with the court's decision.

"Nursing homes affected by this ruling are governed by other Florida statutory provisions and rules concerning confidential medical records that are unaffected by this ruling," Coleman said.

The three-member appellate court panel said it was confident that Florida legislators could bring the state law into compliance with federal law “in any number of ways,” though the judges didn’t elaborate on what that might mean.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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