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CLIENT ALERT: Will Ohio Recognize a Biddle Claim in a Post-HIPAA World?

The Ohio Supreme Court will soon determine whether Ohio will allow patients to bring a private state law claim against a healthcare provider for an alleged HIPAA violation involving the disclosure of protected health information (“PHI”), when the healthcare provider discloses PHI for the purpose of collecting payment from a patient on a past due account.  The Ohio Supreme Court will decide this issue in a case styled Menorah Park Center for Senior Living v. Irene Rolston. [1]

                                                           

In Menorah Park, a rehabilitation center, Menorah Park, filed suit in the Shaker Heights Municipal Court to collect payment from a patient, Mrs. Rolston.  When Menorah Park filed its complaint, it attached unredacted billing statements that contained PHI, including “a description of medical services provided to [Mrs. Rolston]; the dates the services were provided; medical procedure codes; charges, credits, and balances on [Mrs. Rolston’s] account; and other information.” [2] While HIPAA generally prohibits the unauthorized disclosure of PHI, HIPAA expressly authorizes the disclosure of PHI for the purpose of collecting payment from a patient.[3]    Such disclosures are subject, however, to the minimum necessary requirement which states that the healthcare provider must make reasonable efforts to limit the disclosure of PHI “to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request.”[4]

In response to Menorah Park’s complaint, Mrs. Rolston filed a class-action counterclaim, on behalf of herself and others similarly situated, claiming that Menorah Park had also improperly disclosed other patients’ PHI in over 250 similar cases filed in the same court.  Mrs. Rolston claims that she suffered between $6,000 and $15,000 in damages, and that each class member (between 40-250 patients) suffered similar damages—bringing the total potential damages of the class-action to between $240,000 to $3,750,000 (or more). 

Mrs. Rolston characterized the class-action as a breach of confidence for the unauthorized disclosure of non-public medical information that [Menorah Park] learned within a physician-patient relationship.  Mrs. Rolston claims that the Ohio Supreme Court previously recognized a similar claim, referred to as a “Biddle Claim,” in a case styled Biddle v. Warren General Hospital.[5]

In Biddle, the Ohio Supreme Court recognized an independent claim for the unauthorized, unprivileged disclosure to a third party of non-public medical information that a physician or hospital has learned within a physician-patient relationship.  The Ohio Supreme Court decided Biddle, however, on September 15, 1999, before the U.S. Department of Health and Human Services (the “HHS Department”) published HIPAA’s privacy-rule regulations on December 28, 2000.

The trial court in Menorah Park dismissed the Biddle Claim, and Mrs. Rolston appealed to the Eighth District.  On appeal, Menorah Park argued that federal HIPAA regulations preempted or trumped the patient’s Biddle Claim because as a matter of well-established federal law, HIPAA does not provide a patient with a private cause of action against a healthcare provider for violating HIPAA.  Instead, as healthcare providers know, under HIPAA only the HHS Department may penalize healthcare providers for HIPAA violations.  The Eighth District rejected Menorah Park’s arguments finding that HIPAA did not preempt a Biddle claim, and reversed and remanded the class-action to the trial court for further proceedings. 

Menorah Park appealed to the Ohio Supreme Court, claiming that a split of authority exists between the Eighth District’s decision in Menorah Park, and a post-Biddle decision by the Tenth District Court of Appeals in OhioHealth Corp. v. Ryan, in which the Tenth District dismissed a Biddle Claim like the one brought by Mrs. Rolston in Menorah Park.  The Ohio Supreme Court accepted Menorah Park’s appeal on October 1, 2019.

In OhioHealth, a hospital filed suit against a patient to collect payment. [6]  The patient countered with a Biddle Claim similar to Mrs. Rolston’s in Menorah Park.[7]  In affirming the trial court’s dismissal of the Biddle Claim in OhioHealth, the Tenth District held that “HIPAA permits the use or disclosure of individually identifiable health information when it is for the purpose of obtaining payment. . .[and] [c]onsequently, the disclosure cannot be deemed ‘unauthorized, unprivileged disclosure’ as required under the theory announced in Biddle.”[8]  The Court in OhioHealth also explained “we are aware of no applicable exceptions to preemption, and because HIPAA is applicable to these circumstances, HIPAA is the governing authority.”[9]  Finally, the OhioHealth Court noted, “[s]ignificantly, HIPAA does not allow a private cause of action, according to Ohio law[,]” and therefore, even if the patient had a claim for a HIPAA violation, “he is without authority to bring it to court.”[10]

Although not as on point as OhioHealth, the decision in Sheldon v. Kettering Health Network, decided in 2015, anticipated the problem with enforcing a Biddle Claim in a post-HIPPA world: “recognition of a Biddle claim post-HIPAA presents a seemingly unsolvable conundrum” because some cases, like Menorah Park, would involve the use of HIPAA’s authorized disclosure regulations to form the basis of a state law private cause of action when HIPAA does not provide a private cause of action.[11]

The parties in Menorah Park will submit briefing to the Ohio Supreme Court soon, and it is likely that other healthcare providers and/or healthcare provider associations may file amicus briefs with the Ohio Supreme Court to take the position that Ohio should not recognize the class-action claims filed in Menorah Park.  The recognition of such a claim could lead to a flood of other similar class-actions against healthcare providers who use Ohio’s courts to collect on past due accounts.

Even if the Ohio Supreme Court decides patients cannot bring a private cause of action for an alleged HIPAA violation, healthcare providers should still nevertheless remember that HIPAA does provide for other substantial and severe penalties, including, but not limited to, potential fines by the HHS Department.  Therefore, regardless of how the Ohio Supreme Court decides Menorah Park, healthcare providers should comply with HIPAA’s regulations governing the disclosure of PHI when pursuing payment from a patient.

[1] Ohio Supreme Court Case No. 2019-0939, on appeal from Menorah Park, 8th Dist. NO. 107615, 2019-Ohio-2114.

[2] See Menorah Park, 8th Dist. No. 107615, 2019-Ohio-2114 at ¶ 3.

[3] See 45 C.F.R. 164.502(a)(1)(ii).  HIPAA defines “payment” to include, among other things, billing, claims management, collection activities, activities undertaken by a health plan to obtain premiums or provide coverage, and activities undertaken by a healthcare provider or health plan to provide reimbursement.  See 45 C.F.R. § 164.501 (“Payment” definition).

[4] See45 C.F.R. § 164.502(b).

[5] 86 Ohio St.3d 395 (1999).

[6] 10th Dist. No. 10AP-937, 2012-Ohio-60.

[7] The patient’s counterclaim in OhioHealth v. Ryan was not a class-action, and OhioHealth filed a redacted account statement as an attachment to its complaint.

[8] OhioHealth Corp., 2012-Ohio-60 at ¶ 15.

[9] Id. at ¶ 17 (citing Lumley v. Marc Glassman, Inc., 11th Dist. No. 2007-P-0082, 2009-Ohio-540, ¶ 89).

[10] Id. at ¶ 18.

[11] 2nd Dist. No. 26432, 2015-Ohio-3268 at ¶ 28.

 

The Masks Are Back: New OSHA Regulations for Healthcare Employers

Employment Law After Hours is back with a News Break Episode. Yesterday, OSHA published new rules for healthcare facilities, including hospitals, home health employers, nursing homes, ambulance companies, and assisted living facilities. These new rules are very cumbersome, requiring mask wearing for all employees, even those that are vaccinated. The only exception is for fully vaccinated employees (2 weeks post final dose) who are in a "well-defined" area where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

New OSHA Guidance for Workplaces Not Covered by the Healthcare Emergency Temporary Standard

On June 10, 2021, OSHA issued an Emergency Temporary Standard (ETS) for occupational exposure to COVID-19, but it applies only to healthcare and healthcare support service workers. For a detailed summary of the ETS applicable to the healthcare industry, please visit https://youtu.be/vPyXmKwOzsk. All employers not subject to the ETS should review OSHA’s contemporaneously released, updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. The new Guidance essentially leaves intact OSHA’s earlier guidance, but only for unvaccinated and otherwise at-risk workers (“at-risk” meaning vaccinated or unvaccinated workers with immunocompromising conditions). For fully vaccinated workers, OSHA defers to CDC Guidance for Fully Vaccinated People, which advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, or local laws or individual business policies.

Employer Liability for COVID-19 Vaccine Side Effects

As employers encourage or require employees to obtain a COVID-19 vaccine, they should be aware of OSHA recording obligations and potential workers’ compensation liability. Though OSHA has yet to revise its COVID-19 guidance in response to the latest CDC recommendations, OSHA has revised its position regarding the recording of injury or illness resulting from the vaccine. Until now, OSHA required an employer to record an adverse reaction when the vaccine was required for employees and the injury or illness otherwise met the recording criteria (work-related, a new case, and meets one or more of the general recording criteria). OSHA has reversed course and announced that it will not require recording adverse reactions until at least May 2022, irrespective of whether the employer requires the vaccine as a condition of employment. In its revised COVID-19 FAQs, OSHA states:

The New Rule 1.510 - Radical Change for Summary Judgement Procedure in Florida

In civil litigation, where both sides participate actively, trial is usually required at the end of a long, expensive case to determine a winner and a loser. In federal and most state courts, however, there are a few procedural shortcuts by which parties can seek to prevail in advance of trial, saving time, money and annoyance. The most common of these is the “motion for summary judgment”: a request to the court by one side for judgment before trial, generally on the basis that the evidence available reflects that a win for that party is legally inevitable and thus required. Effective May 1, 2021, summary judgment procedure in Florida has radically changed.

Vacating, Modifying or Correcting an Arbitration Award Under R.C. 2711.13: Three-Month Limitation Maximum; Not Guaranteed Amount of Time

In a recent decision, the Supreme Court of Ohio held that neither R.C. 2711.09 nor R.C. 2711.13 requires a court to wait three months after an arbitration award is issued before confirming the award. R.C. 2711.13 provides that “after an award in an arbitration proceeding is made, any party to the arbitration may file a motion in the court of common pleas for an order vacating, modifying, or correcting the award.” Any such motion to vacate, modify, or correct an award “must be served upon the adverse party or his attorney within three months after the award is delivered to the parties in interest.” In BST Ohio Corporation et al. v. Wolgang, the Court held the three-month period set forth in R.C. 2711.13 is not a guaranteed time period in which to file a motion to vacate, modify, or correct an arbitration award. 2021-Ohio-1785.