22 Nevada Lawyer
oering you generous ee splitting pursuant to rpC 1.5()
(702) 384-3616www.cogburnlaw.comLas Vegas
Cogburn Law Oces is pleased to announce the addition o
Andrew L. Rempfer
Focusing on Plaintifs’ Employment & Labor Law
M. rm c amc’ b d mmm wh h d t Vii,aDea,aDa,erisa,dlsa cm, c p’ mm db cm Cb lwofc. M. rm hh dd b h vd b b cd “r s” b slw mz 2009 & 2010. M. rm dmd h ehh d nh Cc C ad d d c nvd d iw.
THE PRIVAcY RULE MEETs THEPRIVAcY AcT
continued from page 21
So far as HIPAA is concerned,such a subpoena duces tecum maybe more than enough to permitthe covered entity to disclose PHIto the issuer without the patient’sauthorization. However, as notedabove, the Privacy Rule is not theonly player in federal law whenit comes to disclosing recordscontaining personal informationto outside entities. Specifically,medical, dental, mental health andother healthcare-related documentsmaintained by the DOD comprisegovernment systems of recordssubject to the Privacy Act. As aresult, PHI from such records “…may only be disclosed if disclosureis authorized under both” the HIPAA Privacy Rule and the Privacy Act.
The Privacy Act enables agenciesto disclose records without theconsent of the individual to whomthey pertain “…pursuant to theorder of a court of competent jurisdiction.”
The DOD’s regulatoryimplementation of this provisioninterprets such an order to be, at aminimum, one specifically “signed bya judge.”
The Defense Privacy Board,which is charged with oversightresponsibility for implementing theDOD Privacy Program,
has opinedthat “…to allow nonconsensualdisclosure pursuant to a subpoena…would permit disclosure of protectedrecords at the whim of any litigant,whether prosecutor, criminaldefendant, or civil litigant.” As such,disclosure of records under the courtorder exception “…requires that thecourt specifically order disclosure.”
In terms of what constitutes “thecourt,” and an order thereof, theDefense Privacy Board has furtherdetermined that “…a subpoenasigned by a clerk of a federal or statecourt, without specific approvalof the court [i.e., judge] itself,”is not sufficient for purposes of nonconsensual disclosures underthe Privacy Act. “Even though asubpoena signed by a clerk of thecourt is issued in the name of thecourt and carries with it the threatof contempt to those who ignore it,”