Motion for HIPAA Order for Medical Records

Defendant moves for an order to permit the prosecution and the defense to obtain medical records on complainant XXXX for use in the above styled and numbered case as follows:

  1.     This request is made in light of statutory and regulatory requirements of the Health Insurance Portabil­ity and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Slat. 1936 (1996). A portion of HIPAA mandated privacy of medical records. 42 U.S.C.A. §§1320d et seq. (2003). HIPAA directed the Secretary of Health and Human Services to create regulations to protect a patient's privacy in medical records. 42 U.S.C.A. §1320d-l(d) & 1320d-2(e)(1)(2003). These regulations preempt state law. 42 U.S.C.A. §1320d-7(a)(2003) and 45 C.F.R. §160.203 (2003). The Secretary promulgated final regulations on February 13, 2001, and these regulations became effective on April 14, 2003.45 C.F.R. 534 (2003). The primary regulation for disclosure of medical records in litigation is found at 45 C.F.R. §164.512(e)(2003). Disclosure is permitted in either a court or an administrative hearing. Section 164.512(e) permits disclosure. A judge can issue an order permitting a medical official to disclose medical records. 45 C.F.R. §164.512(e) ( I)(i)(2003). Merely issuing a subpoena for records will not authorize release of the medical records unless the patient provides written authorization, the court issues an order, or unless the requesting individual can satisfy certain requirements.

  2.     To comply with HIPAA, Defendant moves for a restrictive order from the court to permit both the prosecution and defense to obtain such medical records of the complainant.

3.     Defense counsel has talked with the minor complainant's mother and has identified at least one physi­cian and a psychologist who have provided health care for the child during the time of the complaint. Medical and psychological evaluations in a sexual assault case are always relevant evidence. Accordingly, defendant moves for a HIPAA order from the court.  

Respectfully submitted,