St. Petersburg, Florida, Law Blog

• 18
• May
  2012

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) imposes a misdemeanor penalty on "[a] person who knowingly and in violation of this part . . . obtains individually identifiable health information relating to an individual." 42 U.S.C. § 1320d-6(a)(2) (emphasis supplied). Huping Zhou, a research assistant at UCLA's Health System (UHS) was charged under the statute for accessing patient records of various celebrities after he was no longer working at UHS. Zhou moved to dismiss the information filed against him, arguing that it failed to allege he knew that HIPAA prohibited him from obtaining the health information. After his motion was denied he entered a conditional guilty plea and appealed.

The Ninth Circuit in U.S. v. Zhou, 2012 WL 1626109 (9th Cir. May 10, 2012) affirmed his conviction and four month prison sentence, holding that "the plain text of Section 1320d-6(a)(2) is not limited to defendants who knew that their actions were illegal." The word "and," the court reasoned, "unambiguously indicates that there are two elements of a Section 1320d-6(a)(2) violation: 1) knowingly obtaining individually identifiable health information relating to an individual; and 2) obtaining that information in violation" of HIPAA; not that the individual knew HIPAA prohibited him from accessing the information.

The court's holding only intensifies the need for health service providers and their employees to maintain vigilance to insure that there is no unauthorized access to patient information. At least, according to the Ninth Circuit, under various aspects of HIPAA, ignorance of the law will not be a defense.

• 19
• April
  2012

Recently, in Glarum v. LaSalle Bank Nat. Ass'n, 36 Fla. L. Weekly D2526 (Fla. 4th DCA 2011), the Fourth District Court of Appeal called into further question the broadly drafted and seemingly impermeable affidavits of bank document specialists in the state of Florida. To set the stage, the issue of the homeowner's default on the note and mortgage was not in question. The only issue was whether the trial court committed reversible error in granting LaSalle Bank's motion for summary judgment of foreclosure based on the affidavit of LaSalle Bank's loan specialist as to the amount of indebtedness.

The loan specialist ("Orsini") swore under oath that he had personal knowledge as to the amount of indebtedness, which was purportedly in excess of $340,000. The homeowners opposed the motion for summary judgment and filed Orsini's deposition in support of their argument that Orsini did not have any personal knowledge of the amount of indebtedness. While many bank records and affidavits may have fallen through the judicial cracks over the years based on the business records exception to the hearsay rule, the Fourth District took a closer look at Orsini's actual personal knowledge regarding the amount of indebtedness. In particular, the Court focused on Orsini's inability to show that the purported bank records were made by or from information transmitted by a person with knowledge.

At his deposition, Orsini testified that he did not know who, how or when the data entries were made into Home Loan Services' (LaSalle Bank's loan servicing company) Computer system. In fact, despite his intimate knowledge of how the computer system works, he had no knowledge of how that data was produced or entered into the system or whether it was entered by a person with knowledge. As is often the case, Orsini simply derived the amount of indebtedness from his company's computer system. Equally as problematic for LaSalle Bank and its "specialist" was that the determination as to the amount of indebtedness relied in part on data retrieved from a prior servicer of the homeowner's loan, the operations of which Orsini had even less personal knowledge. At bottom, Orsini could state that the data in the affidavit was accurate only insofar as it replicated the numbers derived from the company's computer system.

As affiants for many foreclosing banks are increasingly reliant upon all-encompassing affidavits from specialists like Orsini, and several loan servicing companies or banking institutions are often involved in receiving and processing payments, homeowners and their attorneys should be aware of the courts' ever more insistence on compliance with the rules of evidence to obtain a judgment of foreclosure.

• 10
• April
  2012

The Florida Legislature wrapped up the 2012 regular session last month. A frequent subject area our Legislature has dealt with the last several years has been Florida's No-Fault/Personal Injury Protection law. This year was no different with perhaps more pomp surrounding the announcement of the changes. What do this year's changes mean to you as a car owner in Florida? Time will tell as the changes are staggered in over the next several months and years. Here are those changes and when they come into play as it pertains to the car owner:

July 1, 2012

The State will create an Insurance Fraud Strike Force with a focus on lowering No-Fault fraud throughout the State.

By September 15, 2012

The State Office of Insurance Regulation is to submit a report from an independent consultant as to the expected savings from the changes the new law brings.

By October 1, 2012

Insurance companies are to make rate filings. The process of how insurance premium rates are approved was previously discussed by this author (here). If the requested rate does not decrease by at least 10 percent, they must provide a detailed explanation. Thus, by the fall we will know how much savings the insurance companies anticipate.

Starting on January 1, 2013,

• No-Fault/PIP benefits, which you are required to carry and pay a premium for, will be available only if the injured person seeks treatment within 14 days of the car accident. Some people not suffering life-threatening injuries from an accident wait to get treatment with the hopes that the aches and pains they are experiencing will resolve on their own. Under the changes, if such a person waits too long, they will not be able to use their No-Fault benefits.

• If a physician, physician assistant, dentist, or nurse practitioner (chiropractors were specifically not included) finds the injured person had an "emergency medical condition," they are eligible for the full $10,000 of No-Fault for which a premium was paid. If there is not such a finding, the benefits are limited to $2,500. "Emergency medical condition" is defined by the changes as a medical condition with acute symptoms of sufficient severity, including pain, that without treatment there would be serious jeopardy to the patient's health, serious impairment of a bodily function, or serious dysfunction of an organ or body part. Expect that insurance companies will contest many treating provider's findings of "emergency medical condition" so as to limit the amount of benefits available.

• No fault/PIP benefits cannot be used to pay for massage or acupuncture. This is regardless of whether treatment begins within 14 days or a diagnosis of emergency medical condition.

• Death benefits of $5,000 are separated from the available medical and disability benefits.

By January 1, 2014

Insurance companies must make another rate filing. This time, an explanation must be provided if the rate is not at least 25% less than today's rate.

There are also changes on the requirements for officers investigating accidents, the registration of medical clinics, and insurance company claims processing/fraud reporting.

Lastly, there is a change that makes examinations under oath (EUO) a prerequisite to receiving the benefits. EUO's were previously discussed by this author (here). I expect the use of these to become more prevalent. The statute does say the scope of questioning during an EUO is limited to relevant information, so hopefully the pretense for such uses previously discussed are avoided.

If you have a question regarding your benefits under the No Fault/PIP statute, you should consider consulting an attorney.

• 02
• April
  2012

Under federal law, despite the Fifth Amendment's protection against self-incrimination, the government can apply to the court for an order immunizing a witness subpoenaed before the grand jury (or a potential defendant) from the use of his testimony against him and thus compel the witness' testimony. See 18 U.S.C. § 6003. In U.S. v. Doe, 2012 WL 579433 (11th Cir. 2/22/12) the Government did just that and the trial court ordered the immunized witness to decrypt computer hard drives in connection with its child pornography investigation of the witness. While the order covered the "act of production," it did not immunize him from the government's derivative use of the decrypted contents.

Needless to say the witness still declined to testify or decrypt the hard drives as he was still exposed to derivative use of the information by the government. As a result, he was held in contempt of court, which ruling the witness appealed.

The 11th Circuit reversed, holding that the act of "decryption and production of the contents of the hard drives, which were not immunized, would be testimonial" and thus would violate his Fifth Amendment right against self-incrimination.