Transcript slides - Legal Action Center

How to Litigate
an HIV Confidentiality
Case in New York
February 24, 2016
Who is your trainer?
Sally Friedman, Esq.
Legal Director
Legal Action Center
2
Technical Difficulties?
Please email Vanessa Severino at
[email protected] or send her a private
chat through the webinar platform.
3
Who is the
Legal Action Center?
 Non-profit law & policy organization
 Anti-discrimination & privacy work
 Substance Use Disorders
 HIV/AIDS
 Criminal Records
 Legal services, litigation, policy, technical
assistance
4
How to get help?
 Great resources on LAC’s website!
 www.lac.org
 Free publications, webinars, and more
 Call with questions about privacy or
discrimination – HIV/AIDS, substance use
disorders, and/or criminal records. Ask for
paralegal or attorney-on-call
 (212) 243-1313
 NY individuals and providers/attorneys
5
Help from
Legal Action Center
 We provide free legal services,
including:
 Assistance with HIV testing & confidentiality
 Assistance with claims of discrimination based
on:
 HIV status
 History of substance use disorder
 Criminal record:
 Rap sheet review & error correction
 Certificates of Relief & Good Conduct
 Job & housing discrimination
6
Get Credit for your Attendance!
HAVE YOU REGISTERED?
If you haven’t officially registered with
the NYS Department of Health AIDS
Institute, please do it now:
http://www.hivtrainingny.org/
If you need assistance, contact Vanessa
Severino at [email protected]
7
Who is this training for?
 NY attorneys & advocates representing
PLWHAs – including pro bono lawyers (out of
state attorneys might find part 3 useful).
 Attorneys at health care facilities and other
entities required to maintain confidentiality.
 Not a basic HIV confidentiality law overview.
For that, take free webinar, “HIV/AIDS
Confidentiality Law Overview,” available at
http://www.hivtrainingny.org/
8
Training objectives
By the end of this training, you will be able to:
1. Counsel clients (potential Plaintiffs) about
pros/cons of HIV confidentiality litigation.
2. As defense counsel, identify common
confidentiality concerns of patients/clients.
3. Identify administrative remedies and litigation
strategies for HIV privacy breaches.
4. State where to access sample forms and
further help.
9
Hand-outs
 Sample demand letter
 Sample Complaint – State court
 Sample motion to proceed under pseudonym
 Visit www.lac.org (“resources/HIV”) for
 HIV/AIDS: Testing, Confidentiality &
Discrimination: What You Need to Know
About New York Law
Call LAC for more forms (discovery, etc.)
10
Today’s topics
Part 1:
Substantive HIV confidentiality
protections – quick review
Part 2:
Administrative remedies
Part 3:
Litigating an HIV confidentiality case
11
Who is in the audience?
Poll:
Are you:
a) Attorney
b) Paralegal
c) Privacy Officer for Health Care Facility
d) Other
12
Who is in the audience?
Poll:
Do you –
A. Advocate for people with privacy breach
claims?
B. Defend entities accused of privacy
breaches?
C. Both
D. Neither
13
Part 1
Substantive HIV
confidentiality
Protections
14
Rationale for HIV
confidentiality law
Pervasive HIV Stigma (even today!) leads
to:
 Discrimination
 Fear of getting HIV tested
 Fear of getting HIV medical care
15
Rationale for HIV
confidentiality law
HIV privacy = critical element in:
NY Campaign to
End AIDS by 2020
16
Applicable laws
 Art. 27-F, NYS Public Health Law
 Secs. 2780 et. seq. (today’s focus)





HIPAA
Fiduciary duty of confidentiality
Constitutional right to privacy
Privacy Act (federal)
Americans with Disabilities Act
(employment)
17
Article 27-F
Who Must Comply?
ANY person who receives HIV-related information
about a protected individual:
• while providing a “health or social service”
OR
• pursuant to a proper written consent
NY governmental agencies that:
 provide, supervise or monitor health or
social services OR
 obtain HIV related info per Article 27-F
18
Art. 27-F
Does NOT apply to:
 Protected individuals themselves
 Friends, relatives
 Courts
 Insurers
 Federal agencies (military, federal prisons)
 Schools (except medical staff)
 Employers
 Pharmacies
But other laws may apply….
19
Constitutional right to privacy
 Protects against disclosure of certain intimate
information – including HIV information.
 Doe v. City of NY, 15 F.3d 264 (2d Cir.
1994)
 Applies to gov’t employees, officials, & agents
acting under color of local, state, or federal law
 Generally must prove “failure to train” per
Monell; one bad actor not enough. Do FOIL
request.
20
Other HIV confidentiality
protections
 Privacy Act: Prohibits some federal agencies
from disclosing private information.
 Fiduciary duty of confidentiality (NY
common law): requires fiduciary to maintain
confidentiality of HIV (and other) information.
 Covers health care providers, pharmacists &
others. Important for pharmacy claims (not
covered by Art. 27-F).
 Professional licensing rules (e.g.,
pharmacies)
 ADA, Title I – employment
21
Art. 27-F
What information is protected?
“Confidential HIV related information”:

Had an HIV-related test

HIV test results, even if negative

HIV infection, HIV related illness or AIDS

Any information “which identifies or
reasonably could identify an individual
as having such conditions,
including…contacts.” (e.g., HIV meds)
NY Pub. Health Law 2780.
22
Compare with HIPAA
 Federal law -- minimum safeguards to
protect “personal health information.”
 Applies to health care providers, health plans, &
health care clearinghouses who transmit health
information electronically in connection with
certain covered transactions – generally
billing and eligibility.
23
HIPAA & Art 27-F interplay
 HIPAA pre-empts “contrary” state law provisions
except when, among other things:
 The state law is “more stringent” than HIPAA.
 “More stringent” includes providing greater
privacy protections.
 Art. 27-F is usually “more stringent” than HIPAA.
24
Art. 27-F & HIPPA:
General Non-Disclosure Rule
 HIPAA: A covered entity may not “use or disclose”
protected health information which is created or
received by a covered entity AND relates to the past,
present or future physical or mental health of an
individual.
 Article 27-F: Health & social service providers AND
people who receive HIV related info pursuant to written
release may not disclose (or redisclose) any HIV
related information about a protected individual.
(§ 2782)
25
Art. 27-F – Protected Persons

Person who has HIV

Person who has had an HIV test

Contacts (spouse, sexual partner
or needle-sharing partner)
26
“Exceptions” permitting
disclosure
 HIPAA & Art. 27-F have “exceptions” allowing
disclosure of HIV-related information.
 This training reviews only five Art. 27-F
exceptions (& related HIPAA exceptions):
1. Written release
2. Internal communications
3. Health care
4. Case reporting & partner notification
5. Court order
27
Written release
 Written – never oral.
 Contain elements per HIPAA & Art. 27-F.
 Form must be approved by DOH. Can use
these:
 http://www.health.ny.gov/forms/doh2557.pdf (HIV only)
 http://www.health.ny.gov/forms/doh5032.pdf (HIV, mental health, substance
use).
 Will be necessary during litigation.
28
Art. 27-F
No Redisclosure
 Person receiving information per consent may
not redisclose (no such protection in HIPAA)
 Notice prohibiting redisclosure required for
every disclosure of HIV information except to:
 Protected individual
 Health care providers (more later)
 Third party reimbursers of health care
 Contact/partner notification (more later)
 Parents/guardians of minors (by doctors)
Cont
 You must do this during litigation!
…. 29
Art. 27-F
No Redisclosure
30
Written release
Case study
 Sandy is in hospital. Mom is visiting. Sandy
has never told her mom that she has HIV.
Doesn’t want mom to know.
 Nurse enters hospital room, with mom present,
and asks Sandy about her “HIV medication.”
Mom is shocked.
 Sandy did not sign an HIV-specific release for
hospital to disclose HIV status to Mom but
listed mom as “emergency contact.”
 Did nurse violate Art. 27-F?
31
Written release
Case study
1. Yes
2. No
3. Need more information.
32
Written release
Case study answer
1. Yes
 No disclosures to friends/family permitted
under Art. 27-F without HIV-specific release.
 True even for emergency contacts and people
accompanying patient to doctor or visiting.
 Different from HIPAA, which permits incidental
disclosures – unless Sandy restricted
“restriction on disclosure.”
33
Art. 27-F
Internal communications
Agency staff may share HIV related
information IF the staff members:
• Are allowed access to client records in ordinary
course of business;
• Are specifically authorized in the agency’s
written “need-to-know” protocol; OR
• Have a reasonable need to know or share the
information to carry out their authorized
duties.
34
HIPAA
Minimum Necessary Standard
 Identify & document
 members of the workforce who need
access,
 categories of information to which they
need access, and
 any conditions to their access.
35
Art. 27-F & HIPAA Internal
Communications
 Relevant in cases involving electronic
health records systems in health care
facilities.
 Unauthorized access within the
facility? What were facility’s protocols?
36
To Health Care Providers
Art. 27-F: May disclose HIV related information
to a health care provider when necessary to
provide care to the individual, his/her child, or
contact.
Document the disclosure. No prohibition on
redisclosure.
HIPAA: May disclose personal health information
for “treatment.”
37
To Health Care Providers
Art. 27-F exception only applies if the disclosure is
for the purpose of providing health care to
the protected person (or his/her child or
contact) –
and not for purposes such as:
 Workers compensation,
 Infection control
38
Case Reporting &
Partner Notification
 Confidentiality breaches sometimes occur
because a health or social service provider
wants to “warn” a friend or family member
about the HIV status of a client/patient in the
same social circle.
 NYS has formal process for “partner
notification,” consistent with public health
goals.
39
Case Reporting &
Partner Notification
1. HIV/AIDS case reporting:
 Physicians and others who diagnose HIV,
HIV-related illness and AIDS report to
State DOH.
 State DOH rediscloses contact info to
local DOH for partner notification.
NY Pub. Health Law 2130
40
Case Reporting &
Partner Notification
2. Physician notification.
Physicians may notify contact if significant risk
of infection, counsels about need to notify,
does domestic violence screen, & informs
patient that –
 Intends to notify & must tell DOH,
 Can choose to have DOH notify, &
 Source person’s name won’t be revealed.
41
Case Reporting &
Partner Notification
 ONLY physicians and special Dept.
of Health staff are permitted to
notify named partners of HIV infected
individual.
 NO ONE ELSE is permitted to do
partner notification.
42
Court Orders & Subpoenas
Case study
 Hospital receives court-ordered subpoena for
patient’s records. HIV information in record.
 Releases full record without checking to see if
patient signed HIV-specific release.
 Patient did not sign HIV-specific release.
Violated Art. 27-F?
43
Court Orders & Subpoenas
Case study
1. Yes.
2. No.
3. Need more information.
44
Court Orders & Subpoenas
Case study answer:
3.
Need more information – but probably
 No “exception” for subpoena – even if ordered
by a court (see next slide).
 Unless the court order satisfied stringent
requirements of Art. 27-F (Sec. 2785), or some
other exception, the disclosure violated Art. 27F.
45
Court Orders & Subpoenas
Subpoenas do NOT authorize disclosure of HIVrelated information under Art. 27-F – even if
“so ordered” by court.
• Need client’s written release to disclose HIVrelated information pursuant to subpoena.
• If no release, may redact HIV information from
records if possible
HIPAA – less stringent, so Art. 27-F applies.
46
Art. 27-F
Court Orders
Court may order disclosure IF:
 Compelling need for adjudication of lawsuit, or
 Clear and imminent danger to life or health of
persons unknowingly at significant risk, or
 Applicant is lawfully entitled and disclosure is
consistent with Art. 27-F. NY Pub. Health Law
§ 2785.
Extra procedural requirements too – including
notice (to P and record holder) of opportunity
to be heard. Case study didn’t mention notice.
More stringent standard than HIPAA court order.
47
Additional HIPAA
requirements
Notice & Complaint Procedure
Covered entity must:
 Provide Notice of Privacy Practices, upon
request, and post on website (45 C.F.R. §§
164.520(b), (c);
 Have written complaint procedures.
(164.530(d), (i)).
 Failure to do either can be additional HIPAA
violation.
48
Questions?
49
Part 2
Administrative
Remedies
50
Art. 27-F – DOH Process
 File complaint with DOH-AIDS Institute, Special
Investigation Unit – within 1 year
 Complaint form available at
http://www.health.ny.gov/forms/doh-2865.pdf
 (800) 962-5065
 Might refer to agency overseeing breacher
 DSS/HRA, DOH Div. of Certification &
Surveillance (hospitals), Dept. of
Corrections
51
Art. 27-F – DOH Process
 $5,000 civil fine
 Criminal penalty if willful
 Usual remedy = “statement of
deficiencies” requiring corrective action
52
Art. 27-F – DOH Process
 Monitor progress of complaint
 Speed and thoroughness may vary
 No pre-set timeframes
 Appeal: 60 days (but may not get notice of
appeal right)
 DOH finding of breach may be beneficial in
litigation. Or may be useful in deciding
whether to use and/or settlement strategy.
 FOIL request – useful to get info from
investigation
53
NYS Office of Professional
Medical Conduct
 Violation of Article 27-F and HIPAA also can
violate State laws/rules governing the
professions
 Complaints against physicians may be filed
with Office of Professional Medical Conduct
 Complaint form available at
https://www.health.ny.gov/forms/doh3867.pdf
54
NYS Office of the Professions
 Complaints of confidentiality breaches by other
licensed professions (e.g., social workers,
nurses, pharmacists) can be filed with NYS
Education Dept., Office of the Professions
 (800) 663-6114 – for questions
 Complaint form available at
https://www.health.ny.gov/professionals/docto
rs/conduct/file_a_complaint.htm
55
HIPAA - OCR
 No private right of action
 May file complaint with Office of Civil Rights,
U.S. Dept. of Health & Human Services within
180 days of violation
 Form available at http://www.hhs.gov
/hipaa/filing-a-complaint/index.html
 Penalties: civil fine ($1,000-$50,000 per
violation; max. $1.5M per calendar year),
criminal fines & imprisonment.
45 CFR §160.404(2)(iii)
56
HIPAA - OCR
 Remember – HIPAA may not be as protective
of HIV confidentiality as Art. 27-F.
 A disclosure could violates Art. 27-F but not
HIPAA.
 But often – Art. 27-F violations do also violate
HIPAA. Can file both complaints.
57
Questions?
58
Part 3
Litigating an Article HIV
Confidentiality Case
59
DECIDING WHETHER
TO LITIGATE
60
What are client goals?
 Goals often evolve and include:
 Acknowledgment of wrong done
 Money BUT
 Counsel: no easy money; temper
expectations
 Assess effect of lump sum on gov’t
benefits – do this upfront!
 Policy change & training: “shouldn’t
happen to anyone else.”
 Restoring dignity; fighting stigma.
61
Litigation Options
Art. 27-F
 Individuals may sue in court for violations of
Article 27-F.
 Damages include:
 Emotional harm
 Lost wages
 Other out-of-pocket losses
 Punitive damages
62
Litigation Options
Other Claims
 HIPAA: Individuals may not bring
lawsuits to enforce HIPAA.
 May litigate claims under:
 Fiduciary duty of confidentiality,
 Privacy Act,
 Constitutional right to privacy
63
Lawsuits – pros & cons
Downside to lawsuits:
 Can take many years.
 May have to relive the trauma through
testimony and continuous contact with attorney.
 Client’s medical (some) and mental health
(most or all) records are discoverable.
Cont
….
64
Lawsuits – pros & cons
 Friends/family and others may be
subpoenaed.
 Pseudonymous protection likely, not
guaranteed.
 Defense could demand jury trial.
 Adversarial model can make clients even
angrier, as “breacher” defends position.
 Effect on government benefits.
65
Lawsuits – pros & cons
Advantages of lawsuits:
 Might win or get good settlement.
 Victory/good settlement might feel like
“justice.”
 Advocacy by counsel can restore client’s
dignity.
66
Pre-litigation
negotiations
Advantages:
 Spares client tremendous emotional toll
(everything described in prior slides)
 Get “something” as opposed to risk losing –
can secure policy changes/training +
damages
 Get closure faster.
 Jury/judge damage awards are variable; not
clear that would get more after “win” at trial
(but might).
67
Another option:
Pre-litigation negotiations
Disadvantages:
 May be unsuccessful and delay an
ultimate resolution
 Generally wouldn’t demand as much relief
in pre-litigation negotiations. Extremely
high demand lessens chance of
settlement.
See sample demand letter in hand-outs.
68
Decided to Litigate?
Getting the
Litigation Started
69
Notice of Claim?
Case study
 Mary sues city agency for Art. 27-F violation 1
year after violation occurred.
 She did not file a Notice of Claim.
 City makes motion to dismiss for failure to file
Notice of Claim.
 Should City win the motion?
70
Notice of Claim?
Case study
1. Yes
2. No
71
Notice of Claim?
Case study answer
2. No
72
Notice of Claim?
 Notices of claim (for suits against
municipalities) not required in Art. 27-F cases.
 Not “personal injury” action. Statutory claim, more
akin to discrimination cases. Doe v. Belmare, 2011
WL 1439153 (S. Ct. Kings Cty).
 But can file notice of claim to ward off defense.
 Shortened statutes of limitation also not
applicable. Doe v. Belmare.
73
Notice of Claim?
 Cases against the State – Court of Claims
 File “claim” within 90 days for “personal
injury,” (though arguably not Art. 27-F
violations), or Notice of Intent to File a Claim
(within 90 days, but must file Claim within 2
years, or 1 year for intentional torts)
 https://www.nycourts.gov/COURTS/nyscourtof
claims/faq.shtml
74
Releases Forms
 Need client’s written consent on DOH
HIV/HIPAA release form to disclose HIV-related
information to anyone, including opposing
counsel (include insurers) and the court;
 Must be on HIV-specific form!! Recall Part 2
(links to DOH forms).
 Will need more release forms in discovery & to
review client’s medical records.
75
Release Forms
 REMEMBER: people who receive
HIV information pursuant to a release
become bound by Art. 27-F too.
 Must send the Notice Prohibiting
Redisclosure!
76
Pseudonyms
 Client may prefer to proceed pseudonymously.
 May file Order to Show Cause.
 Different courts have different practices.
 Some may barely be familiar with it.
 Check with clerk.
 See sample papers (though State & Federal
court standards differ).
Cont
….
77
Pseudonyms
 Defense counsel generally agree to
pseudonymous prosecution.
 Any concerns usually relate to discovery.
Details can be worked out in confidentiality
stipulations.
 Courts generally grant pseudonymous
protection in HIV cases.
78
The Complaint
Decide:
 Defendants – individual who committed
breach & employer?
 Relief (more on this later)
 Jury? (though defense can demand even
if plaintiff does not)
Cont
….
79
The Complaint
Claims: To add tort claims, such as
negligence & malpractice? Generally
unnecessary. Can add needless complications,
such as:
 Separate medical malpractice part with
different requirements.
 Shortened statutes of limitation, including
those in personal injury cases against
municipalities.
 Medicaid liens & recoupment.
80
The Complaint
Art. 27-F is a statutory claim. Not subject to
rules related to personal injury & medical
practice.
But note –
 Defense counsel often treat Art. 27-F
lawsuits as medical malpractice or
personal injury cases.
 Serve irrelevant, boilerplate discovery
demands.
81
Confidentiality During
Discovery
 Confidentiality stipulations - may be
required, as noted above
 Subpoenas: Do not have health care
providers send documents to court record
room unless confidentiality protections are put
in place.
 HIV-specific release forms only!
82
Damages: How to Calculate?
 Tangible costs: Include lost wages and other
tangible costs, if applicable (rarely are).
 Emotional harm: How to put a price tag on
emotional harm? Damages awards vary widely.
 Under NY law, mental health treatment not
required (though helpful) to prove emotional
harm.
 Plaintiff’s own testimony suffices.
Cont
….
83
Damages: How to Calculate?
 Probe your client deeply and sensitively.
Speak to witnesses (friends/family who can
describe changes in behavior, mood, etc.).
 Can speak to mental health care providers.
Cont
….
84
Damages: How to Calculate?
Different treatment by outside world:
 Ostracism (e.g., family visits less; shunned
at gatherings).
 People treat client differently (even if
“caring” but paternalistic).
 Problems at work.
 Physically accosted or threatened.
85
Damages: How to Calculate?
Subjective changes
 Depression and isolation.
 Paranoia, perception that others are talking
about HIV status.
 Sleeplessness or lost appetite.
 Headaches and other physical symptoms
(can talk to client’s doctor).
86
Damages: How to Calculate?
Subjective changes
 Mistrust of health care providers (if breach
was by health care providers)
 Not taking HIV (& other) medications.
 Damaged relationships with family/friends
 Received mental health treatment?
87
Damages: Defenses
Defense likely will argue:
 Any harm was caused by other factors:
 Diagnosis itself
 Other trauma
 But pre-existing emotional harm does not
negate harm from disclosure. Plaintiff’s
lawyer should try to separate out harm from
disclosure from these other issues.
88
Settlement Negotiations
 Include injunctive relief where possible.
 Confidentiality clauses: try to narrow them to
minimize client’s exposure and to allow your nonprofit organization (if applicable) to use the case in
education about HIV privacy. Legal Action Center can
help.
 Do NOT forget about effect of money on client’s
government benefits. Make sure client has made
necessary arrangements.
Cont
….
89
Effect on
Government Benefits
Cont
….
 Settlement award can significantly affect
means-based benefits:
 Recoupment/liens (P.A. & Medicaid) –
though should not apply to statutory claims.
May need to file “affidavit of no liens” (DSS
will provide.)
 Disqualification going forward
 Loss of housing (HASA-related especially)
90
Effect on
Government Benefits
Cont
….
 Self-settled trusts are one means of
protecting settlement funds.
 Assets held in trusts are not considered
available resources or income.
 But strict limits on expenditures.
 Nonprofit organizations have established
trusts in which individuals may enroll.
 No need to find a trustee or obtain court
approval for an individual trust (though can).
91
Effect on
Government Benefits
 Plan ahead.
 Learn all government benefits received by
client and make a plan.
 May need to connect client to legal services
office with government benefits expertise.
92
Help is available!
Legal Action Center can provide:
 Information about case law awarding
damages for privacy violations
 Help crafting legal claims and countering
defenses
 Sample forms/papers
Cont
….
93
Help is available!
 For help with HIV confidentiality litigation in
NY, call Legal Action Center.
 Ask for “attorney on call.”
 212-243-1313.
 Monday – Friday, 1 to 5 pm.
94
Questions?
95
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96
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