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March 18, 2004.

NATIONAL ABORTION FEDERATION, MARK I. EVANS, M.D., CAROLYN WESTHOFF, M.D., M.Sc., CASSING HAMMOND, M.D., MARC HELLER, M.D., TIMOTHY R.B. JOHNSON, M.D., STEPHEN CHASEN, M.D., GERSON WEISS, M.D., on behalf of themselves and their patients, Plaintiffs, -against- JOHN ASHCROFT, in his capacity as Attorney General of the United States, along with his officers, agents, servants, employees, and successors in office, Defendant.

The opinion of the court was delivered by: RICHARD CASEY, District Judge.


Now before the Court is Defendant's motion to enforce a subpoena against the New York and Presbyterian Hospital pursuant to Federal Rule of Civil Procedure 45(c)(2)(B). For the reasons stated below, the motion is GRANTED.


  Plaintiffs, a group of physicians and medical providers, filed this action on November 4, 2003, to challenge the constitutionality of the Partial-Birth Abortion Ban Act of 2003 ("the Act"), 18 U.S.C. § 1531, which imposes criminal and civil sanctions on physicians who perform certain abortion procedures. This Court temporarily enjoined enforcement of the Act on November 6,2003, and set the matter for trial to commence March 29, 2004. Plaintiffs assert that the Act is unconstitutional, among other reasons, because it lacks an exception to protect a woman's health as required under the Supreme Court's decision in Stenberg v. Carhart, 530 U.S. 914 (2000).

  During the discovery process, the Attorney General of the United States ("Defendant") issued Page 2 subpoenas to a number of hospitals throughout the country seeking medical records of women on whom the plaintiff physicians performed certain abortion procedures. One of those hospitals is the New York and Presbyterian Hospital ("the Hospital").

  On December 18, 2003, this Court issued an order that authorized, but did not require, the Hospital to produce the records. On December 22, Defendant served a subpoena on the Hospital, accompanied by the Court order, demanding production of "all medical records associated with those medical record numbers to be identified by plaintiffs Carolyn Westhoff, M.D. and Stephen Chasen, M.D. in response to the discovery demands served upon them in" this case. Drs. Westhoff and Chasen, both plaintiffs in this suit, are employed on the faculties of Columbia and Cornell medical schools, which are both affiliated with the Hospital. According to the Hospital, both are attending physicians at, but not employees of, the Hospital. (Memorandum of Law of Non-Party the New York and Presbyterian Hospital in Opposition to Defendant's Motion to Enforce Subpoena, at 2.)

  Defendant also issued similar subpoenas to other hospitals. One such institution, Northwestern University Hospital in Illinois, moved to quash the subpoena in the United States District Court for the Northern District of Illinois. Chief Judge Charles P. Kocoras granted Northwestern's motion on February 4,2004. See Nat'l Abortion Fed'n v. Ashcroft, No. 04 C 55, 2004 WL 292079 (N.D. Ill. Feb. 4, 2004). In a parallel case challenging the Act, Judge Phyllis Hamilton of the Northern District of California denied Defendant's motion to compel discovery seeking similar medical records from health care providers in California and elsewhere. See Planned Parenthood Fed'n of Am. Inc. v. Ashcroft, No. C 03-4872, 2004 WL 432222 (N.D. Cal. Mar. 5, 2004). Defendant has appealed Judge Kocoras's decision to the Seventh Circuit Court of Appeals.*fn1 Page 3 The Court is unaware whether Defendant has also appealed Judge Hamilton's order to the Ninth Circuit.

  In this case, Defendant brought a motion to enforce the subpoena and compel production of the documents. By stipulation of the parties in this case, the Court issued a protective order on January 23, 2004, that requires redaction of individual identification material prior to disclosure. The Hospital argues that the protective order is insufficient under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub.L. No. 104-191, §§ 261-264, 110 Stat. 1936 (Aug. 21, 1996), because HIPAA incorporates New York State law requiring patient consent before disclosure. Defendant responds that disclosure is required because the protective order complies with administrative regulations promulgated pursuant to HIPAA. See 45 C.F.R. § 164.512(e) (providing conditions for disclosure of protected health information in judicial proceedings).


  This issue brings into conflict two profoundly important interests: respect for the sanctity of the physician-patient relationship, and the search for truth at the heart of the litigation process. Resolution of the issue requires careful attention to HIPAA and the regulatory framework promulgated to implement it.

 A. The Statutory and Regulatory Framework

  HIPAA is a complex piece of legislation that addresses the exchange of health-related information. Title II of HIPAA includes provisions entitled "Administrative Simplification." See 110 Stat. 1936, 2021-2034 (codified at 42 U.S.C. § 1320d-1320d-8). In one of the Administrative Simplification provisions, Congress delegated to the Secretary of Health and Human Services ("HHS") the authority to make final regulations concerning the privacy of individually identifiable Page 4 health information.*fn2 See HIPAA, § 264(b), (c)(1), 110 Stat. 1936,2033. Those regulations were to address, among other things, the rights of individuals with regard to their health information, the procedures by which individuals may exercise their rights, and the uses and disclosures of health information that may be authorized or required. Id. § 264(b).

  In accordance with this rulemaking authority, in February 2001, HHS promulgated regulations to protect the privacy of protected health information. See 45 C.F.R. § 164.500-.534; South Carolina Medical Ass'n v. Thompson, 327 F.3d 346, 349 (4th Cir. 2003). Protected health information means individually identifiable health information transmitted or maintained in any form or medium. 45 C.F.R. § 160.103. HHS explicitly addressed disclosure of protected health information during judicial or administrative proceedings. See id. § 164.512(e). That provision permits health care providers and other covered entities to disclose protected health information without patient consent: (1) in response to a court order, provided only the information specified in the court order is disclosed; or (2) in response to a subpoena or discovery request if the health care provider receives adequate assurance that the individual whose records are requested has been given sufficient notice of the request, or if reasonable efforts have been made to secure a protective order. Id. § 164.512(e)(1)(i), (ii). Protective orders must (1) prohibit use of the protected health Page 5 information outside the litigation process; and (2) require the return or destruction of the records, including all copies made, at the conclusion of the litigation. Id. § 164.512(e)(1)(v).

  The regulations also provide that health records are not considered individually identifiable, and thus not "protected health information," if certain information is redacted. HHS determined that "[h]ealth information that does not identify an individual and with respect to which there is no reasonable basis to believe that information can be used to identify an individual is not individually identifiable health information." Id. § 164.514(a). The following identifiers must be removed to render medical records not individually identifiable: names; geographic subdivisions smaller than a state (including addresses and full zip codes); all dates except years; telephone and fax numbers; email addresses; social security numbers; medical record numbers; health plan beneficiary numbers; account numbers; license numbers; vehicle identifiers; device identifiers; internet addresses; biometric identifiers such as finger and voice prints; photographs of ...

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