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Health Insurance Portability and Accountability Act of 1996 (HIPAA) and Family Law

In general, HIPAA governs the confidentiality of medical records and regulates how certain health information can be used or disclosed by certain persons and entities while protecting patient privacy. Issues related to confidential medical records and health information often arise in family law matters. Judges are frequently called upon to weigh the privacy interests of a party against the best interests of the children. In addition to HIPAA, New Jersey case law has historically emphasized the importance of protecting a party's privacy, while at the same time underscoring the importance of balancing the competing interests at hand before ordering a party to produce his or her medical records and information.

For instance, in Massaro v. Massaro, 2006 N.J. Super. Unpub. LEXIS 371, *4-11, 2006 WL 350065 (App. Div. Feb. 17, 2006), the plaintiff mother argued that the "best interests of the child" standard required the defendant husband (with admitted serious medical and psychiatric disorders) to execute authorizations for the release of his medical records to their children's doctors in case such records became necessary at some point in the future for medical treatment of the children. The plaintiff claimed that without the children having immediate access to the defendant's medical records, their health may suffer or become endangered and under such circumstances the "best interests of the children" test outweighed the defendant's privacy concerns.

The Massaro court touched upon the patient-physician privilege, remarking it "'has a strong tradition in New Jersey[,]'" and "the privacy right on which [it] is based has been held to a level warranting constitutional protection." Id. However, the court acknowledged that information concerning a patient's medical condition could be disclosed where "the physical condition of the patient is made an element of a claim." Id. (Internal citations omitted) (Emphasis added). In opposing plaintiff's application, however, the defendant in Massaro did not request any relief based upon his health, which would have made his medical records relevant. For that reason, the Massaro court found that the defendant did not waive his privacy rights. The court also cited HIPAA in its opinion, stating:

As with the patient-physician privilege outlined in N.J.S.A. 2A:84A-22.2, the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. 1320(d), likewise supports defendant's privacy protection claim. [] Congress in [] HIPAA has expressed a strong policy position designed to insure a patient's privacy protection of his medical records. Id.

The Appellate Division held that there was no evidence of an existing effect on the parties' children by withholding the defendant's medical information. The Appellate Division also found the trial court's underlying order adequately addressed the potential future need for defendant's medical records (in the event they become necessary for the medical treatment of the parties' children), while simultaneously protecting defendant's privacy rights.

In Kinsella v. Kinsella, 150 N.J. 276 (1997), the plaintiff husband filed for divorce, claiming mental cruelty, and the defendant wife filed to obtain conversations and notes taken between the plaintiff and his therapist. The plaintiff objected, arguing the material was not discoverable under the patient-therapist privilege. New Jersey's Supreme Court held that the patient-therapist privilege is very broad, especially in marital proceedings, and can only be pierced under the following test (referred to as "the Kozlov test"):

(1) There must be a legitimate need for the evidence;

(2) The evidence must be relevant and material to the issue before the court; and

(3) By a fair preponderance of the evidence, the party must show that the information could not be secured from any less intrusive source.

In re Kozlov, 79 N.J. 232 (1979) (Emphasis added).

The Supreme Court found the plaintiff in Kinsella did not waive his patient-therapist privilege by filing a petition for divorce on the grounds of mental cruelty, and the defendant wife was not entitled to pierce the privilege under the Kozlov test, as it was not an issue relevant to obtaining a divorce, alimony, or child custody.

The defendant Fazio v. Apisa, 2012 N.J. Super. Unpub. LEXIS 2785, *14-16, 2012 WL 6632788 (App. Div. Dec. 21, 2012), repeatedly sought the plaintiff's medical records. In order to be successful in her request, the court in Fazio held the defendant needed to satisfy the three-prong test set forth in Kinsella, supra, stressing the third prong of the test, specifically that if a less intrusive means for obtaining the same information is available, that method is preferable to disclosure of a patient's medical records. The lower court in Fazio held the plaintiff had indeed provided the requested information through less intrusive means, including letters from his doctors. The Appellate Division agreed, finding the defendant received all that she was due regarding plaintiff's medical information through such less intrusive means.

In compliance with HIPAA, New Jersey Court Rule 4:10-2 requires that the patient must first authorize an interview by the adverse party of his or her treating physician before it may take place. See Pressler & Verniero, Current New Jersey Court Rules, Comment 5.5 to R. 4:10-2 (2015). The case Runyon v. Smith, 322 N.J. Super. 326 (App. Div. 1999), aff'd, 163 N.J. 439 (2000) involved an underlying family law hearing, during which the defendant psychologist had testified against the plaintiff mother. The family court ultimately awarded the father custody of the parties' children, relying upon the psychologist's adverse testimony and report. The Appellate Division found the plaintiff had a cause of action against the psychologist for the unauthorized disclosure of confidential health information and, in doing so, the psychologist breached a duty owed to the patient.

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