Virginia Qui Tam Law.com
  • ABOUT VAQUITAMLAW.COM
Browsing: / Home / Healthcare Records, Qui Tam Whistleblowers and HIPAA
Print Email Shortlink

Healthcare Records, Qui Tam Whistleblowers and HIPAA

By Zachary Kitts on April 29, 2018 in False Claims Act Practice in Virginia, How to be a successful qui tam whistleblower, Legal Ethics, Qui Tam practice in Virginia

Virginia Qui Tam and False Claims Act Lawyers

 

 

 

 

 

 

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 is important to qui tam practice under the federal False Claims Act and the Virginia Fraud Against Taxpayers Act.

Why are copies of medical records so important to health care qui tam cases anyway?

The article 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. 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, before the Complaint is ever filed.  Copies of documents assist the relator’s lawyers in their efforts to flesh out and master every nuance in the case.  Such information can also help to establish their client’s position as the original source of the information.

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 to 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.  In other words, 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 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.

HIPAA protects qui tam whistleblowers who engage in very specific types of “protected activity”

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.  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.  Parties are not, therefore, protected when they show the records to the attorney for a third-party.   Nor is a disclosure of PHI to the EEOC in support of an individual’s employment-discrimination claim protected.  That is because the EEOC does not enforce laws against fraud on the government.  Vaughn v. Epworth Villa, 537 F.3d 1147, 1153 (10th Cir. 2008).

As always, don’t forget the relevant lawyer ethics opinions

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 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.  Also, in the healthcare context, removing a patient’s medical chart certainly seems to show an utter disregard for the rights of the individual patient.

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.

 

Virginia False Claims Act Lawyers

 

 

 

Share this on: Mixx Delicious Digg Facebook Twitter
copying medical records for use in litigationexceptions to HIPAA privacy rulehealthcare records and qui tamHIPAA privacy rule
  • Related Stories
  • Most Popular
  • The federal False Claims Act is Important because it reduces corruption in American Society
  • Blog Author Zachary Kitts Announces Second-Largest Settlement in Virginia for 2021
  • K&G Law Group Announces Partial Settlement of Qui Tam Action for $12.7 million (Part I)
  • PRESIDENTIAL IMPEACHMENT PART II OF II: WHAT’S PAST IS PROLOGUE
  • PRESIDENTIAL IMPEACHMENT AND LEGAL ETHICS: WHAT’S PAST IS PROLOGUE
  • Justice Department Recovers over $3 Billion from False Claims Act Cases in Fiscal Year 2019
  • The Blog of Legal Times on argument in Allison Engine Company v. United States ex rel Thacker
  • Practice Examples: Fairfax County Budget Woes and the Virginia Fraud Against Taxpayers Act
  • Qui Tam Resource Tip: the Project on Government Oversight
  • Virginia Achieves A-minus Rating for Good Government
  • Qui Tam Practice Example: Documentation of a Qui Tam Claim is not to be taken lightly by potential relators
  • LexisNexis and the National Institute for Trial Advocacy (NITA) to publish new practice commentaries on the Federal False Claims Act
← Previous Next →

Search

Monthly Archives

  • October 2022
  • April 2022
  • June 2021
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • August 2019
  • July 2019
  • June 2019

Authors

  • Zachary Kitts

Copyright © 2023 Virginia Qui Tam Law.com.

Virginia Qui Tam Law.com is the first blog dedicated to the Virginia Fraud Against Taxpayers Act and to false claims act litigation in Virginia.