Medical records are not protected from internet publication by the new Access Rules. They SHOULD be protected. As the Access Rule Commentary to Section 4.50 admits, HIPAA does not protect such documents because state courts are not included within the definition of “health care entities”.
“The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and regulations adopted pursuant to it limit disclosure of certain health related information about people by certain healthcare entities. 42 U.S.C. § 1320d; 45 C.F.R. Part 160 and 164. Whether the limitation extends to state court records is not clear, however, state courts are not included within the definition of health care entities that are covered by HIPAA.” See Access Rule Commentary to Section 4.50.
Once a medical record, psychological evaluation, child custody evaluation and other similar documents are admitted into evidence or attached as exhibits to affidavits filed before the courts, they become “court records” under Section 3.10 of the Access Rules. All court records except for records that are expressly not publicly available are slated for internet publication under the Access Rules.
In my family law practice it is not unusual to have psychologists involved to help the court decide contested parenting plan cases. The reports from psychologists performing custody evaluations include a detailed personal history of the adults, the children, psychological testing results, mental health diagnoses and recommendations of the professional for the court.
Why are not medical records, including psychological evaluations and medical and mental health related information categorically protected from internet publication? Why did not the Task Force add these records to 4.50 (c)?
As the Montana Psychological Association comment from June 1, 2006 noted, lots of harm to Montanans can come from unrestricted internet publication of such records.
We should routinely file motions to seal these documents in light of the harm to be done by internet publication.
