April 10, 2013

HIPAA Preempts Florida Nursing Home Records Law

Holland & Knight Privacy Blog
Shannon Britton Hartsfield
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."

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