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Kevin O'Flaherty

In this article we answer the question, “does HIPAA prevent the disclosure of medical records and mental health records in Illinois litigation?”

Since the passage of HIPAA (The Health Insurance Portability and Accountability Act of 1996), the disclosure requirements of mental and physical health records have become significantly more complicated. The rules provide that patient information may not be disclosed without the patient’s consent.  These rules protect all medical records and other individually identifiable health information. “Health information” is defined in part by HIPAA as any information that “relates to the past, present, or future physical or mental health or condition of an individual.” These requirements apply to any healthcare provider, including  physicians, health insurance companies, pharmacies laboratories, and life insurance companies.

The Privacy Rule within HIPAA  sets standards for protecting health data to make it more difficult for health information to be accessed by individuals who had no right to view the information. Ensuring strong privacy protections is critical to maintaining the patient’s  trust in their health care providers and willingness to obtain needed health care services.  These protections are especially important where very sensitive information is concerned, such as mental health information. In regards to mental health records, the Privacy Rule includes an exception to an individual’s (or personal representative’s) right of access for psychotherapy notes. The Privacy Rule distinguishes between mental health information and a mental health professional’s private notes. These notes are primarily for the personal use by the health care provider and are kept separate from the rest of the patient’s medical record.

Even if the privacy rule applies, HIPAA does permit disclosures “made pursuant to court or administrative orders or by subpoena, discovery, or other legal processes.” Motions seeking a court order need to demonstrate that the applicant has made reasonable efforts to request authorization and that the data will only be used for the reason asserted. This legislation recognizes circumstances where health information may need to be shared to ensure the patient receives the best treatment and for other important purposes, such as for the health and safety of the patient or others.

For more, check out our articles: The Written Discovery Phase of Litigation Explained and Disclosure of Medical Records and Mental Health Records in Illinois Child Custody Cases.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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