Shannon Hartsfield Salimone is a Partner in our Tallahassee office
On April 9, 2013, the 11th Circuit Court of Appeals issued an
opinion in Opis Management Resources LLC v. Secretary Florida
Agency for Health Care Administration, holding that Section
400.145, Florida Statutes, which requires the release of medical
records of deceased residents of nursing homes to certain specified
individuals, is preempted by HIPAA. The statute requires disclosure
of nursing home records to the resident's spouse, guardian,
surrogate, proxy, or attorney in fact. The court stated that it
agreed with the district court "that the Florida statute
stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of HIPAA in keeping an
individual's protected health information strictly
confidential." What's very interesting is that HIPAA does
not preempt disclosures required by law. Since Section 400.145
requires certain disclosures, it is possible to comply with both
HIPAA and state law. The court stated, however, that it would not
address that issue because the "State Agency did not advance
this argument before the district court, and we decline to consider
it for the first time on appeal . . . Thus, nothing that we have
said should be inferred as expressing an opinion regarding the
'required by law' provision." You can find the whole
opinion at this link:
http://www.ca11.uscourts.gov/opinions/ops/201212593.pdf
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