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Jackson Walker L.L.P.

Public Entities and HIPAA: When Public Information Laws and HIPAA collide
Most public or governmental entities are subject to “sunshine” laws that require them to operate in a fashion that is open to public view. Because those entities are beholden to the taxpayers as their “shareholders,” they generally must keep their deliberative processes and records open to any member of the general public who wants to observe or review them. Most jurisdictions have open meetings, open records, and public information or freedom of information acts, and public entities must meet the requirements of those laws.

This openness requirement presents a unique problem for public hospitals and the like, whose business normally consists of dealing with medical information and other records that are usually thought of as confidential. Particularly, it can be problematic when state open records laws seem to conflict with the Privacy Rule under the Health Insurance Portability and Accountability Act of 1996, commonly known as HIPAA.

This collision of openness and privacy is particularly accentuated by a circular feature of HIPAA. The general rule of HIPAA is that “protected health information” or “PHI” may not be used or disclosed by covered entities unless specifically allowed by HIPAA. HIPAA-allowed uses and disclosures include medical treatment, payment, and healthcare operations, but there are a handful of other allowed uses and disclosures, including disclosures that are required by law. However, HIPAA also states that any state laws that are less protective of privacy are superseded by HIPAA. Of course, any state law that requires a disclosure other than for treatment, payment, or healthcare operations would probably be considered less protective of privacy than HIPAA, so it should be superseded. But, HIPAA specifically allows disclosures required by state law.

The Ohio Supreme Court addressed the issue earlier this year, and last Friday, June 16, a Texas court of appeals in Austin ruled, in Abbott v. Texas Dept. of Mental Health and Mental Retardation, that HIPAA did not prevent a state regulatory agency from disclosing information pursuant to a request that met the requirements of the Texas Public Information Act (“PIA”). The information in question involved statistics of abuse and assault at facilities run by the Texas Department of Mental Health and Mental Retardation. A newspaper reporter sought, under the PIA, statistics regarding incidents of sexual abuse and assault at TDMHMR facilities, investigations conducted and the results of the investigations, and the names of the facilities and dates that the alleged events occurred. TDMHMR released some statistics on all abuse allegations, but did not identify facilities, claiming that the information would be PHI.

The appeals court noted that it was skeptical of whether the information was actually PHI, but since neither party raised the characterization of the information, the court proceeded to reach an opinion of whether the information should be disclosed, assuming it was PHI. The court determined that the information could still be disclosed under the PIA because that is a disclosure “required by law” and thus is permissible under HIPAA. The court rejected the arguments of TDMHMR that HIPAA made the requested information “confidential” and therefore not disclosable under the PIA, or that the PIA was superseded by HIPAA as a state law less protective of privacy.

Early press reports of the decision note it as a case of state law overriding HIPAA, but that’s a mischaracterization. In this case, because of the “required by law” provisions of HIPAA, both HIPAA and the PIA could be accommodated. It should also be noted that the PIA and the Texas Open Records Act have exceptions for information that is confidential under case law, statute, or the constitution, as well as other exceptions for other personal or private information. The attorney general determined that the information sought, even if it was PHI, was not the type of information that would meet an exception to disclosure under the PIA.

Public hospitals must comply with the requirements of HIPAA, as well as the requirements of the PIA. The PIA has a “default” setting that encourages disclosure, but recognizes that some information should not be publicly available. If a public hospital is requested to disclose information that may contain PHI under a PIA or open records request, it must determine if an exception to disclosure under PIA exists. In most cases involving medical records, there will be relief under the “confidentiality” exception. But if there’s no exception under PIA or the Open Records Act, the public hospital must disclose the information. Note, however, that if a hospital determines that there is an exception, the hospital does not get to unilaterally invoke the exception; rather, the hospital must submit the issue to the Attorney General’s office for a ruling.

On a final note, recently passed legislation requires each director and most officers of public entities, including public hospitals, to receive Open Meetings Act and Open Records Act training. Therefore, public hospitals should be more prepared than ever to address potential conflicts between their “public” nature and their HIPAA obligations.

07-07-2006

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Jackson Walker L.L.P.

Burlington Northern v. White: U.S. Supreme Court Clarifies Title VII Anti-Retaliation Law
Title VII of the Civil Rights Act of 1964 forbids employment discrimination against “any individual” based on that individual’s race, color, religion, sex, or national origin. It also forbids an employer from discriminating against an employee or job applicant because the individual “opposed any practice” made unlawful by Title VII or “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation. The various federal courts of appeals were divided over the proper test to determine what acts constitute unlawful retaliation. The federal Fifth Circuit Court of Appeals used the “ultimate employment decision” test; this test limited actionable conduct to “significant” actions by an employer such as refusal to hire, demotion or discharge. Other federal courts of appeals have used a less stringent test.

New Rule in Burlington Northern: Reasonable Employee Standard

On June 22, 2006, the Supreme Court resolved this division by announcing a new rule making it much easier for employees to show they have suffered retaliation after complaining of workplace discrimination. The Court specifically rejected the “ultimate employment decision” standard in favor of a different test.

Under the new test, an employee will merely have to show that the challenged action is “materially adverse” – that is, conduct of a kind which dissuades a reasonable worker from making or supporting a charge of discrimination. The new test reaches many employer actions not directly related to employment, including those that cause harm to an employee outside of the workplace.

Most Trivial Conduct Not Actionable, But May Require Case-By-Case Determination

In declaring this new standard, the Supreme Court noted that Title VII was not designed to set forth “a general civility code for the American workplace.” Therefore, an employee’s report of discriminatory behavior does not immunize that employee from petty slights, minor annoyances or a simple lack of good manners that can occur at work.

However, the Court also noted that the significance of any claimed act of retaliation must be determined by the particular circumstances in which the action occurs. In other words, context matters. In this regard, the Court stated “the real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” To illustrate, the Court offered two examples of conduct now potentially deemed as retaliatory: an otherwise benign schedule change may have a significant effect on a young working mother with school age children; and a supervisor’s refusal to invite an employee to lunch may impact the employee if he is excluded from weekly training that contributes to his professional advancement.

Given these examples, it appears that the Court in this case has established a test for retaliation that may well require case-by-case determinations on claims of retaliatory conduct.

07-07-2006

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Hunton & Williams, LLP

New Legislation Shortens Time Requirements for Brownfields Agreements
The North Carolina General Assembly has just enacted legislation (SB 1121) that significantly shortens several time requirements that have unnecessarily slowed the process of negotiating a brownfields agreement (BFA).

07-07-2006

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Brown, Raysman, Millstein, Felder & Steiner, L.L.P.

Brown Raysman Expands Silicon Valley Presence With New Partner, Riaz A. Karamali
Brown Raysman Millstein Felder & Steiner LLP is proud to announce that Riaz A. Karamali has joined the firm’s Silicon Valley office as a partner in the Corporate and Technology, Media and Communications departments. Mr. Karamali joins the current Silicon Valley team, Marc Sockol, Leah Sherry and Matthew Kaufman, and will supplement their patent practice with his experience in outsourcing, mergers and acquisitions and venture capital matters.

Riaz Karamali was previously at Perkins Coie, LLP in Menlo Park, CA. His practice focuses on company formation, licensing and technology transactions, outsourcing, mergers and acquisitions, venture capital and domestic and international joint ventures. Mr. Karamali represents a broad range of clients including emerging technology start-ups and Fortune 500 companies. He received his B.A. from Rice University and his J.D. from Columbia University School of Law.

“I am thrilled to be joining the dynamic team of talented attorneys at Brown Raysman,"" said Mr. Karamali. “In recent years, I have been increasingly involved in advising companies on their outsourcing initiatives, and I am particularly excited to be able to tap into the incredible resources and expertise that Brown Raysman brings to the outsourcing area.""

Co-managing partner of the firm, Peter Brown said, “Riaz is a welcome addition to our Silicon Valley office and to our Corporate and Technology, Media and Communications teams. With over 18 years of experience in the corporate and outsourcing area, his practice will greatly enhance our capabilities in Northern California.”

The firm opened its Silicon Valley office in January 2006 to better serve its high-technology clients in the Northern California Region and plans to continue expansion to offer a full range of legal services to clients in that area. Brown Raysman also has an office in Los Angeles with capabilities in venture capital, corporate, transactional, real estate and litigation law.

07-07-2006

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Brown, Raysman, Millstein, Felder & Steiner, L.L.P.

Brown Raysman Expands Long Island Presence With the Addition of Two Partners, Richard F. Harrison and Eric G. Waxman
Brown Raysman Millstein Felder & Steiner LLP is proud to announce that partners Richard F. Harrison and Eric G. Waxman have joined the firm’s Long Island office.

Mr. Harrison concentrates on matters relating to consumer compliance and commercial litigation, with particular emphasis on the residential mortgage lending industry. His litigation practice focuses on civil litigation representing regional and national lenders in defense of consumer claims. A former prosecutor, Richard has served as lead counsel in the defense of white-collar criminal offenses and engaged in representations covering mutual and hedge fund activities and the health care and banking industries. He received his B.A. and M.P.A. from Long Island University and his J.D. degree from Pace University.

Mr. Waxman’s practice focuses on the areas of bankruptcy, financial institution/insurer insolvency, and creditors' rights, with particular emphasis on business reorganizations and debt restructuring/workouts. Mr. Waxman also assists property/casualty and health insurance companies, sureties, and other financial institutions in maximizing recoveries in both out-of-court settlements and bankruptcy cases. Mr. Waxman has served as an Adjunct Professor, teaching a variety of commercial law courses at Long Island's Touro College Jacob D. Fuchsberg Law Center and Hofstra Law School. He received his B.A. from the University of Virginia and his M.B.A. and J.D. from New York University.

“The firm has been involved in some very high-profile litigation cases recently,” said Richard Harrison, “and I look forward to working with such a talented group of attorneys.” Eric Waxman said, “The firm has an extraordinary bankruptcy and creditors’ rights practice. I expect the practice to expand out on Long Island.”

Co-managing partner Richard Raysman said, “We are excited to have Richard and Eric join our Long Island office. Their practice will enhance our capabilities to better serve our clients both on a regional and national level.

07-07-2006

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Fox Rothschild LLP

Fox Rothschild Welcomes New Attorney
Fox Rothschild LLP welcomes J. Mark Hand, Esq., as a Partner in its Corporate Department, resident in the Philadelphia office.

Hand, a member of the firm’s Intellectual Property Group, focuses his practice on intellectual property matters, with an emphasis on biotechnology related issues. He has over 14 years of experience in biotechnology and pharmaceutical patent practice, including 10 years with Merck & Co., Inc.

Hand is admitted to practice in Pennsylvania and Florida, and before the U.S. Patent & Trademark Office. He earned his J.D. in 1992 from Temple University School of Law, his Ph.D and M.S. degrees from Rutgers University in 1988 and 1981, respectively, and a B.S. in 1978 from the University of Florida.

07-07-2006

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Sheppard, Mullin, Richter & Hampton, LLP

Sheppard Mullin D.C. Adds Highly Regarded White Collar Partner David Geneson
David F. Geneson has joined the Washington, D.C. office of Sheppard, Mullin, Richter & Hampton LLP as a partner in the White Collar and Civil Fraud Defense practice group. Geneson most recently practiced with Hunton & Williams in Washington, D.C.

Geneson's practice focuses on white-collar criminal defense and civil enforcement litigation. His areas of experience include: numerous significant federal and state criminal and civil trials; domestic and international internal investigations; SEC investigations and enforcement proceedings; criminal and civil environmental enforcement; Medicare and Medicaid fraud; litigation of monetary transactions, including tax and securities transactions; customs inquiries; civil and criminal forfeiture proceedings; Independent Counsel and Congressional inquires; and proceedings before international tribunals.

Prior to private practice, Geneson practiced law publicly for 15 years as a federal prosecutor in the following positions Assistant United States Attorney, District of Columbia 1984-1990; Senior Trial Attorney, Fraud Section, Criminal Division of the U.S. Department of Justice, 1978-1984; Assistant United States Attorney, Southern District of Florida, 1975-1977.

""David is a perfect fit for Sheppard Mullin,"" said Guy Halgren, chairman of the firm. ""His impressive skills and experience complement our strong national White Collar group. We anticipate continued growth in this key practice area.""

Bob Rose, chair of the practice group, added, ""David is a veteran prosecutor with extensive federal court trial experience who knows the inner workings of government. He brings additional strength to our practice and extends our ability to deliver representation connected to federal criminal matters.""

""I look forward to growing the firm's White Collar practice in the D.C. office,” Geneson said. “Sheppard Mullin is a growing national firm with an excellent reputation and I am thrilled to be working with the great lawyers here.""

""I am excited to have David join us,"" said Edward Schiff, managing partner of the firm's Washington, D.C. office. ""His specialization is an excellent fit for us, given the litigation matters which we handle and the strong regulatory focus the office has built in the government contracts, antitrust, corporate compliance, communications, and food and drug practice areas.""

Geneson has conducted numerous internal investigations in the U.S. and abroad, both to identify and deal with financial fraud and abuse, and to defend against regulatory and criminal investigations. He has represented corporations and corporate officials in Medicare, Medicaid and qui tam matters including obtaining the acquittal of a senior corporate officer of the largest hospital holding company in the U.S. after a multi-month trial relating to alleged Medicare fraud and abuse. Geneson has represented companies in environmental investigations, including obtaining uniquely successful results in a federal grand jury investigation and subsequent DOJ enforcement action against the largest oil pipeline in the country.

Geneson has represented corporations and corporate officials in grand jury proceedings and enforcement matters, including successfully representing the largest chemical company in the world in parallel multidistrict enforcement cases alleging billions of dollars in potential penalties. He has represented one of the largest electronics companies in the world in international investigations and numerous proceedings, including a uniquely successful defense of a multi-million dollar federal trial named as one of the “Top Twenty Defense Wins” by the National Law Journal. Geneson has represented both a senior political official and a foreign government in proceedings before the International Criminal Tribunal for the former Yugoslavia.

Additionally, Geneson has represented various political officials and others during Independent Counsel and Congressional investigations. As a federal prosecutor, he prosecuted Israeli spies Jonathan and Anne Pollard; prosecuted Chilean Army Major Armando Fernandez Larios in connection with the assassination of ambassador Orlando Letelier; prosecuted Deputy Mayor of Washington, D.C., Ivanhoe Donaldson for fraud and corruption; prosecuted the Director and Deputy Director of INTELSAT and others for a multi-million dollar fraud scheme; prosecuted the largest tax shelter cases brought by the Tax Division of the Department of Justice; and received numerous awards from the Department of Justice and various federal law enforcement agencies.

Geneson earned his law degree from University of Miami School of Law in 1974 and graduated from Rensselaer Polytechnic Institute, with a B.S. in 1969. For over twenty years, he has taught trial practice throughout the United States for the National Institute for Trial Advocacy (NITA) and at numerous law schools.

07-07-2006

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