Is it Necessary to Secure a Separate HIPAA Release to Disperse Records to an Expert Witness?
Although workers' compensation matters are exempted from HIPAA, it is a regular practice to have the claimant sign HIPAA releases so that the employer's attorney can review all of the claimant's medical records. Does this release give the defense attorney the right to re-disclose the records to an expert witness?
Probably so. 45 C.F.R.164.508 (c)(2)(iii) of the Health Insurance Portability and Accountability Act (HIPAA) states that in every HIPAA release, language must be included that puts the patient on notice of, “The potential for information disclosed pursuant to the authorization to be subject to re-disclosure by the recipient and no longer protected by this subpart.”
While any HIPAA compliant release should put the claimant on notice that the records may be re-disclosed, there is no harm in clarifying that this means the records will likely be shown to an expert witness. Including language like, “I understand that once the above information is disclosed, it may be re-disclosed by the recipient and the information may not be protected by federal privacy laws or regulations, including disclosure to expert witnesses who may review the records for litigation purposes,” is probably a good practice. It will put the claimant on notice that an expert witness will possibly review his records and will help the defense to avoid any allegations that they released records without permission. The defense should also have the expert witness sign a non-disclosure/confidentiality agreement in regards to the records in order to further protect the plaintiff’s Personal Health Information.
If the client is a covered entity then it is necessary for there to be a Business Associate Agreement in place between the attorney and the client before any records can be released to the attorney. Covered entities include health care providers, health care clearinghouses, and health insurance plans (but not workers’ compensation insurance carriers). Once the Business Associate Agreement is in place, the attorney must then have the expert witness enter into a written agreement where he agrees to be bound by all the restrictions of the attorney-client Business Associate Agreement.