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STATE BAR OF TEXAS
MARRIAGE DISSOLUTION: 2015
APRIL 10, 2015
DALLAS, TEXAS
HIPAA is the federal law which protects the
confidentiality of a patient’s protected health
information (“PHI”) which is maintained by a
covered entity.
-45 C.F.R. § 160.103 (2009)
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Protected Health Information:
All individually identifiable health information held or
transmitted by a covered entity or its business
associate, in any form or media, whether electronic,
paper, or oral.
(Excludes individually identifiable health information
in certain education records and employer files)
Individually identifiable health information:
Information, including demographic data, collected from the
individual, that is:



(1) created or received by a health-care provider, health plan,
employer, or health-care clearinghouse,
(2) relates to:
•the individual’s past, present or future physical or
mental health,
•the provision of health care to the individual, or
•the past, present, or future payment for the provision of
health care to the individual, and
(3) that identifies the individual, or for which there is a
reasonable basis to believe it can be used to identify the
individual.
Covered entity:
Health plan, health-care clearinghouse, and a
health-care provider who transmits any health
information in electronic form in connection
with a transaction covered by 45 C.F.R.
subchapter C.
1. Patient may personally request the
information;
2. Patient may sign an authorization in
favor of a third party;
3. Party seeking the information may
obtain a court order pursuant to 45
C.F.R. §164.512(e); or
4. Party seeking the information can use a
subpoena, discovery request, or other
lawful process.
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A covered entity may also disclose PHI in response to:
(1)
Subpoena,
(2)
Discovery request, or
(3)
Lawful process not accompanied by a court order.
Party seeking information must provide covered entity
satisfactory assurance that reasonable efforts have been
made to:
(1)
ensure that the individual who is the subject of the
requested PHI has been given notice of the request, or
(2)
to secure a qualified protective order that meets the
requirements of 45 C.F.R. section 164.512(e)(1)(v).
-45 C.F.R. § 164.512(e)(1)(ii)(A), (B).
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Provide covered entity with a
documentation demonstrating that:
written
statement
and
accompanying
(1) Party requesting PHI has made a good faith attempt to provide written notice
to the individual (or, if the individual's location is unknown, to mail a notice to
the individual's last known address);
(2) The notice included sufficient information about the litigation in which the
PHI is requested to permit the individual to raise an objection; and
(3) The time for the individual to raise objections to the court or administrative
tribunal has elapsed, and:
(i) No objections were filed; or
(ii) All objections have been resolved by the court and the disclosures
being sought are consistent with such resolution.
-45 C.F.R. § 164.512(e)(1)(iii)
Provide a written statement and accompanying documentation
demonstrating that:
(A) The parties have agreed to a qualified protective order; or
(B) The party seeking the PHI has requested a qualified protective
order from the court.
Qualified Protective Order:
(A) Prohibits the parties from using or disclosing the PHI for any
purpose other than the litigation or proceeding for which such
information was requested; and
(B) Requires the return to the covered entity or destruction of the PHI at
the end of the litigation or proceeding.
-45 C.F.R. § 164.512(e)(1)(iv)
Tex. Health & Safety Code § 181.001(2) expands
HIPAA’s definition of “covered entities” as including a
person or entity that:
◦ (a) Engages in the practice of assembling,
collecting, analyzing, using, evaluating, storing, or
transmitting PHI;
◦ (b) Comes into possession of PHI;
(c) Obtains or stores PHI; or
◦ (d) Is an employee, agent, or contractor of a person
described in (a) – (c ).
Attorney’s are held to the privacy
and security standards of the Texas
Health & Safety Code.
Attorneys are now subject to
criminal and civil penalties for
privacy and security violations.
-Tex. Health & Safety Code §181.001 et. seq
◦ Obtain an authorization from your client to allow
you to use their medical records in the course of
the lawsuit, including when responding to
discovery requests.
◦ Include language in authorization presented to
opposing party for obtained records to be used in
hearings, trial, and deposition.


Covered entity must provide notice to an
individual for whom the covered entity
creates or receives PHI if the individual’s PHI
is subject to electronic disclosure.
A general notice can satisfy this requirement.
◦ Practice Pointer: Post written notice in the office, on
firm’s website, or any other place where it is likely
to be seen.
-Tex. Health & Safety Code § 181.154 (a)

All employees of a covered entity must be trained
on applicable state and federal law concerning the
protection of health information.

Training to be commensurate with employee’s
duties.

Training should include:




Security and access of PHI
Proper disclosure or release of PHI, and
How to properly request PHI from third parties.
Personnel not working directly on a specific case or matter should
not have access to any PHI or other confidential information.
-Tex. Health & Safety Code § 181.101 (a)


Health provider using an electronic record
system is not required to produce medical
records upon request, even with a written
authorization, in less than 15 business days.
15 day turn around time applies to health
providers and not “covered entities.”
-Tex. Health & Safety Code § 181.102(a)


Texas health care providers have a right to
require a reasonable fee for copying the
records.
Can refuse to produce records even with an
appropriate
patient
authorization
if
reasonable fee is not paid.
-Tex. Health & Safety Code § 241.154(b);
22 Tex. Admin Code § 165.2(b)
Confidential Mental Health Information:
1) Communications between a patient and a
professional, and
2) Records of the identity, diagnosis,evaluation,
or treatment of a patient that are created or
maintained by a professional.
-Tex. Health & Safety Code § 611.002(a).
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"Patient" means a person who consults or is
interviewed by a professional for diagnosis,
evaluation, or treatment of any mental or
emotional condition or disorder, including
alcoholism or drug addiction.
-Tex. Health & Safety Code § 611.001
1. A person authorized to practice medicine in any
state or nation;
2. A person licensed or certified by Texas to
diagnose, evaluate, or treat any mental or
emotional condition or disorder; or
3. A person the patient reasonably believes is
authorized, licensed, or certified as provided by
Texas Health and Safety Code § 611.001(2).
-Tex. Health & Safety Code § 611.001
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Confidential communications or records may
not be disclosed except as authorized by:
1. Health and Safety Code Section 611.004,
2. Health and Safety Code Section 611.0045,
3. Health and Safety Code Section 611.006.
-Tex. Health & Safety Code § 611.002(b).
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A professional may disclose confidential
information to:
(1) A person who has the written consent of
the patient, or
(2) A parent if the patient is a minor, or
(3) A guardian if the patient has been
adjudicated as incompetent to manage
the patient's personal affairs.
A patient is entitled to have access to the content
of a confidential record made about the patient,
except that –
the professional may deny access to any
portion of a record if the professional
determines that release of that portion would
be harmful to the patient's physical, mental, or
emotional health.
A professional may disclose confidential information in:
(1) a judicial proceeding in which the patient waives in writing
the right to the privilege of confidentiality;
(2) a judicial proceeding if the judge finds that the patient, after
having been informed that communications would not be
privileged, has made communications to a professional in the
course of a court ordered examination relating to the patient's
mental or emotional condition or disorder;
(3) a judicial proceeding affecting the parent
child relationship;
(4) a judicial or administrative proceeding
where the court or agency has issued an order
or subpoena.
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

Parent’s right of access to a child’s psychological
records is not absolute despite court-ordered right to
access child’s psychological records and statute
authorizing disclosure of confidential information to
a parent.
Mental health professional is not required to provide
access to a child’s confidential records if parent who
requests them is not acting on behalf of the child.
Professional may also deny a parent who is acting on
the child’s behalf access to child’s records under
Section 611.0045(b).



Individual may petition the district court of the
county in which the person resides for
appropriate relief to contest the denial of access.
If individual is not a resident of Texas, person
may petition a Travis County district court.
If professional denies access to patient, process
to compel records is outlined in Health & Safety
Code § 611.0045, and burden of proving denial
is proper is on the professional denying access.
-Texas. Tex. Health & Safety Code § 611.005.


A person who receives information from
confidential communications or records may
not disclose the information beyond the
authorized purposes for which the person
obtained the information.
A person aggrieved by improper disclosure of
confidential information has a civil cause of
action for damages.
-Tex. Health & Safety Code § § 611.004(d);
611.005(c).
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The following records are generally confidential and
may be disclosed only for specified purposes –
Records of the identity, diagnosis, prognosis, or
treatment of any patient that are maintained in
connection with the performance of any program or
activity relating to alcoholism or drug abuse or
alcohol/drug-abuse education, training, treatment,
rehabilitation, or research that is conducted,
regulated, or directly or indirectly assisted by any
federal department or agency.
-42 C.F.R. § § 2.1; 2.2.
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Consent Requirements:
 Specific name or general designation of the program or
person permitted to make the disclosure;
 Name or title of the individual or the name of the
organization to which disclosure is to be made;
 Purpose of the disclosure;
 How much and what kind of information is to be disclosed;
 Expiration date, event, or condition
reasonably necessary to fulfil purpose;
no
later
than
 Statement that consent is subject to revocation anytime.
-42 C.F.R. § 2.31(a).
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

Any person having a legally recognized
interest in the disclosure can petition court
for disclosure in civil proceeding.
Application may be filed independently or as
part of a pending civil suit.
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 Must use a fictitious name (i.e. John Doe) to refer to patient.
 May not contain or otherwise disclose any patient identifying
information, unlessa) patient is the applicant,
b) patient has given written consent to disclosure, or
c) court has ordered the record of the proceeding
sealed.
 Adequate notice to patient and person holding the records to
file a written response or to appear in court to provide
evidence on the statutory and regulatory criteria for
disclosure. Required notice cannot disclose patient identifying
information to other persons.
.
-42 C.F.R. § 2.64(a); 42 C.F.R. § 2.64(b).
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 Any oral argument, review of evidence, or
hearing on the application must be held in the
judge’s chambers or in some manner which
ensures that patient identifying information is
not disclosed to anyone other than a party to the
proceeding, the patient, or the person holding
the record, unless the patient requests an open
hearing in a manner that meets the written
consent requirements of the regulations.
 Judge may examine patient records sought in the
application.
-42 C.F.R. § 2.64(c).
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Order for disclosure of the records can only be
entered if court determines “good cause” exists
for disclosure.
Good cause exists when:
(1) no other means of obtaining the
information are available; and
(2) the public interest and the need for
disclosure outweighs the injury to the patient,
to the physician-patient relationship, and to
the treatment services.

 Court may order disclosure of confidential
communications made by a patient to a
program in the course of diagnosis, treatment,
or referral for treatment only if:
1.
Disclosure is necessary to protect against an
existing threat to life or of serious bodily injury,
including circumstances that constitute suspected child
abuse and neglect and verbal threats against third
parties;
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2. Disclosure is necessary in connection with the
investigation or prosecution of an extremely
serious crime, such as one that directly threatens
loss of life or serious bodily injury, including
homicide, rape, kidnapping, armed robbery,
assault with a deadly weapon, or child abuse and
neglect; or
3. Disclosure is in connection with litigation or other
administrative proceedings in which the patient
offers testimony or other evidence pertaining to
the content of the confidential communications.
-42 C.F.R. § 2.63(a).
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
Any person who violates the regulations
relating to the confidentiality of alcohol- or
drug-treatment records shall be fined not
more than $500 in the case of a first offense
and not more than $5,000 in the case of
each subsequent offense.
-42 C.F.R.§ 2.4.
Except as provided by TFC § 261.203, the following
information is confidential, and is not subject to public
release under Chapter 552, Government Code:
(1) a report of alleged or suspected abuse or neglect
made under TFC Chapter 261 and the identity of the
person making the report; and
(2) except as otherwise provided in this section, the
files, reports, records, communications, audiotapes,
videotapes, and working papers used or developed
in an investigation or in providing services as a
result of an investigation.
 Notwithstanding Subsection (b), the department,
on request and subject to department rule, shall
provide to the parent, managing conservator, or
other legal representative of a child who is the
subject of reported abuse or neglect information
concerning the reported abuse or neglect that
would otherwise be confidential if the
department has edited the information to protect
the confidentiality of the identity of the person
who made the report and any other person
whose life or safety may be endangered by the
disclosure.
A court may order the disclosure of information
that is confidential under TFC § 261.201 if:
(1)
a motion has been filed with the
requesting the release of the information;
court
(2) a notice of hearing has been served on the
investigating agency and all other interested parties;
and
(3) after hearing and an in camera review of the
requested information, the court determines that
the disclosure of the requested information is:
(A) essential to the administration of justice;
and
(B) not likely to endanger the life or safety of:
(i) a child who is the subject of the report of
alleged or suspected abuse or neglect;
(ii) a person who makes a report of alleged
or suspected abuse or neglect; or
(iii) any other person who participates in an
investigation of reported abuse or neglect or
who provides care for the child.
-TFC § 261.201(b)
Court, on its own motion, may order disclosure
of information that is confidential under TFC §
261.201 if:
(1) the order is rendered at a hearing for which
all parties have been given notice;
(2) the court finds that disclosure of the
information is:
(A) essential to the administration of justice; and
(B) not likely to endanger the life or safety of:
 (i) a child who is the subject of the report of alleged
or suspected abuse or neglect;
 (ii) a person who makes a report of alleged or
suspected abuse or neglect; or
 (iii) any other person who participates in an
investigation of reported abuse or neglect or who
provides care for the child; and
(3) the order is reduced to writing or made
on the record in open court.
◦ Texas Finance Code § 59.006
◦ Freedom of Information Act
◦ Chapter 522 of Texas Government
Code (Texas Public Information
Act)
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