On December 2, 2011, the United States District Court for the Northern District of Florida, Tallahassee Division, granted summary judgment in a declaratory judgment action in favor of a group of nursing homes on the grounds that Florida Statutes Section 400.145 is preempted by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Opis Mgmt. Resources, LLC et al. v. Dudek, No. 4:11-cv-400/RS-WCS (N.D. Fla. Dec. 2, 2011).
HIPAA preempts any state health privacy law unless the state law affords greater privacy protections than HIPAA. Generally, HIPAA prohibits covered entities from disclosing the protected health information (PHI) of an individual to any person other than the individual herself or such individual’s “personal representative.” The term “personal representative” is defined by HIPAA to include an “executor, administrator, or other person [who] has authority [under applicable state law] to act on behalf of a deceased individual or of the individual’s estate.”
Florida Statutes Section 400.145 requires that nursing homes “furnish to the spouse, guardian, surrogate, proxy, or attorney in fact…of a former resident…a copy of that resident’s records which are in the possession of the facility.” The statute further provides that “copies of such records shall not be considered part of the deceased resident’s estate and may be made available prior to the administration of an estate, upon request, to the spouse, guardian, surrogate, proxy, or attorney in fact.” Plaintiffs contended that HIPAA preempted Section 400.145 because it conflicted with HIPAA and contained less stringent protections of PHI. The court agreed and held that Section 400.145 was preempted. The court reasoned that Section 400.145 permits disclosure of medical records containing PHI to persons who are not personal representatives under HIPAA, because they are not legally authorized to act on the deceased individual’s behalf (e.g., spouses who do not qualify to act as the deceased individual’s executor).
The district court’s decision is available by clicking here.