Healthcare Records, Qui Tam Whistleblowers and HIPAA
This month I published an article in the Journal of the Virginia Trial Lawyers Association entitled Healthcare Records, Qui Tam Whistleblowers and HIPAA.
Regular readers of this blog will be familiar with much of the article’s content. In a nutshell, the article examines the text of HIPAA itself and looks at the “privacy rule” portion of HIPAA — found at 45 CFR 164.502(j) — and explains why that rule — and why healthcare records — feature so prominently into qui tam practice under the federal False Claims Act and the Virginia Fraud Against Taxpayers Act.
The article then looks at the reason — or rather, reasons — why it is important for relators to copy healthcare records in the first place. In the opinion of this writer, there are two primary, interrelated reasons for relators to copy documents like healthcare records. First, qui tam litigation under the FCA and VFATA is a practice heavy on forensic investigation skills. Copies of the documents assist the relator’s lawyers in their efforts to flesh out and master every nuance in the case and to establish their client’s position as the original source of the information. Unlike most civil litigation, much of the real work of a qui tam case is done by the relator’s lawyers in the early stages of the case. Moreover, even the most sophisticated clients tend to combine emotions with their facts. Copies of documents and other evidence assist the relator’s lawyers in their efforts separate emotion from fact and assemble the bigger picture and its potential implications. Copies of relevant documents also can help lawyers identify other individuals or companies who may share liability.
Second, government lawyers handling qui tam cases essentially do battlefield triage when they sort through new cases – that is, they have to make quick decisions about which cases get attention and which cases do not. Cases which can be presented to the government in a thorough, well-documented and thoughtful manner stand a much greater chance of receiving attention than those that do not.
For lawyers, this should be easy to understand — the government’s lawyers look at cases much in the same way that we do when a new potential client approaches us. So just try to imagine your ideal client and how you would like to have the information about a potential case presented to you.
Next the article looks at what is — and what is not — protected activity under HIPAA. There are very few cases examining whistleblower activity in the context of the HIPAA privacy rule, and the cases that do exist bear few surprises. For example, in Howard ex rel. U.S. v. Arkansas Children’s Hosp., 2015 WL 4042170 (E.D. Ark., 2015) two whistleblowers survived a summary judgment motion asserting that they were not “whistleblowers” as defined by the FCA and were therefore not entitled to have the PHI in their possession.
In Monarch Fire Protection Dist. of St. Louis County, Missouri v. Freedom Consulting & Auditing Services, Inc., 678 F.Supp.2d 927 (E.D.Mo. 2009) the Court held that the whistleblower exception in HIPAA applies only to an individual showing the information to his or her own attorney for purposes of getting legal advice; parties are not, therefore, protected when they show the records to the attorney for a third-party for potential use in an unrelated case. Nor is a disclosure of PHI to the EEOC in support of an individual’s employment-discrimination claim protected, because the EEOC does not enforce laws against fraud on the government. Vaughn v. Epworth Villa, 537 F.3d 1147, 1153 (10th Cir. 2008).
Finally, the article examples Virginia Legal Ethics Opinion 1786 and its guidance for qui tam relators. Simply put, LEO 1786 is a must-read for lawyers practicing in this area; the hypothetical deals with a client who brings a collection of healthcare records to her lawyers to evaluate a potential case. The client considers the documents to be confidential; the client had access to the documents as part of her work for the target defendant. In formulating its answer, the Committee identified four factors as important ethical considerations: (1) the nature of the documents, (2) the nature of the sources of the information, (3) the method used by the client to gather the information, and (4) whether the attorney directed the client to gather the information. The Committee points out that the attorney can only use the information if Virginia Ethics Rules 3.4(a) (which prohibits a lawyer from obstructing another party’s access to evidence and information) and 4.4 (concerning respect for the rights of third-persons) are not violated.
These rules, taken together, make it clear that potential qui tam relators should never remove original documents from their place of employment. Doing so would obstruct the defendants’ access to those documents and, in the healthcare context, removing a patient’s medical chart certainly shows an utter disregard for the rights of the individual patient and his or her health.
I would like to thank VTLA for inviting me to write the article and especially Virginia lawyer Richard Armstrong for his work on behalf of VTLA.