Ex Parte Interviews Not Preempted by HIPAA

In Caldwell v. Baptist Memorial Hosp., No. W2015-01076-COA-R10-CV (Tenn. Ct. App. June 3, 2016), the Court of Appeals held that the Tennessee Health Care Liability Act’s allowance for ex parte interviews between defendant and plaintiff’s health care providers was not preempted by HIPAA and was permissible under the federal law.

In this case, plaintiff filed an HCLA claim against multiple defendants, and one defendant “filed a petition for a qualified protective order (QPO) pursuant to Tenn. Code Ann. § 29-26-121(f) to allow ‘the defendant and his attorneys the right to obtain protected health information during interviews, outside the presence of claimant or claimant’s counsel, with the patient’s treating healthcare providers.’” While plaintiff acknowledged that defendant had complied with the statutory requirements under Tennessee law, she asserted that HIPAA preempted this Tennessee law and that the interviews should thus not be allowed. The trial court denied the defendant’s request for QPOs, and the defendant appealed.

On the state level, Tenn. Code Ann. § 29-26-121(f) “allows for the disclosure of protected health care information in ex parte interviews conducted during judicial proceedings,” provided certain conditions are met. The statute requires that the petition identify the healthcare provider to be interviewed; that the plaintiff can object based on the provider not possessing relevant information; that the QPO “shall expressly limit the dissemination of any protected health information to the litigation pending before the court and require the defendant or defendants who conducted the interviews to return…or destroy any protected health information obtained…at the end of the litigation;” and that the QPO must state that participation in the interview is voluntary.

On the federal level, “HIPAA governs the dissemination of protected health information.” (internal citation omitted). HIPAA regulations “contain an express preemption clause,” which states that “[a] standard, requirement, or implementation specification adopted under this subchapter that is contrary to a provision of State law preempts the provision of State law.” (45 C.F.R. § 160.203). Contrary is defined to mean that an entity would “find it impossible to comply with both the State and Federal requirements,” or that the “State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives [of HIPAA].” (45 C.F.R. § 160.202). Importantly, a state law will not be preempted if it is “more stringent” than HIPAA. (45 C.F.R. § 160.203(b)).

Under HIPAA, certain regulations known as the Privacy Rule “provide[] that a covered entity may not disclose protected health information except as permitted by the provisions of the rule.” (citation omitted). One exception to the Privacy Rule, listed in 45 C.F.R. § 164.512(e), is that “[a] covered entity may disclose protected health information in the course of any judicial or administrative proceeding,” provided that either “(1) reasonable efforts have been made to provide notice to the patient, or (2) reasonable efforts have been made to secure a [QPO] that prohibits disclosure for any purpose other than the litigation and requires the return or destruction of the health information at the end of the litigation.”

Considering both the federal regulations and state law at play here, the Court of Appeals held that the ex parte interviews allowed by Tennessee’s HCLA law were not preempted by HIPAA. The Court noted that “[b]y pursuing a malpractice claim, the plaintiff consents to the disclosure of relevant medical information.” (internal quotation and citation omitted). The Court found that Tenn. Code Ann. § 29-26-121(f) “is consistent with HIPAA and includes some additional requirements.” The Court therefore determined that this statute was not “an obstacle to the accomplishment of the purposes of HIPAA,” and pointed out that most other states that had considered this question had decided the same.

After determining that HIPAA did not preempt the allowance of ex parte interviews under Tennessee law, the Court then looked specifically at the trial court’s denial of the requested QPOs in this case and overturned that decision. The Court pointed that that there were “no dispute[s] that all of the preceding conditions are satisfied,” and that plaintiff “made no objection to the form of the petition or any objection based upon good cause showing that a treating physician did not have relevant information.” Accordingly, the trial court was reversed, and the case was remanded for entry of the requested QPOs.

Considering how the Tennessee law is written and the requirements therein, the Court was most likely correct in ruling that this statutory provision allowing ex parte interviews is not preempted by HIPAA. Just because these interviews are legally allowed, however, does not necessarily mean they are a good idea. As the Court noted in its opinion, plaintiff argued that the statutory requirements “are not effective safeguards and discuss[ed] policy arguments as to why ex parte interviews should not be allowed.” The Court stated, in response, that it was “not the role of this court to make policy decisions that contradict a statutory provision.” For now, then, it appears that these ex parte interviews will continue to be allowed in HCLA cases.

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