*1 2, 2009. Dеcided November Samuel, Lea, for Garland, Loeb, William C. & Donald F. Samuel appellant. Peggy Attorney, Katz, Howard, Jr., R. Assistant District
Paul L. appellee. Attorney, District CENTER, INC. ALVISTAHEALTHCARE
S09G1005. MILLER. et al. v.
(686 SE2d Presiding Justice. CARLEY, surviving spouse Mary Miller, who of Stanton is the Miller facility operated nursing Alvista owned and care resided 2006, 19, he died intestate on March Center, Inc. After Healthcare wrongful investigating potential action, death Miller, who was Ms. January copies requested and records from Alvista of his medical ground requests that, under were denied on the 2008. Those March Accountability Portability Act of 1996 and Health Insurance (HIPAA) regulations promulgated thereunder, the and the permanent or adminis- to a executor could be released records unrepresented. On estate, which was still of Mr. Miller’s trator March against brought Alvista and 2008, Miller this action Ms. restraining temporary (Appellants), seeking order related entities injunction requiring pеrmanent records, the medical release of declaratory judgment is entitled to those that she as well as a records. determining granted requested that, relief, all The trial court (a) (2) (B) specifically authorizes a surviv- 31-33-2
because OCGA spouse’s ing spouse records, medical obtain access to her deceased authority of a deceased individual Miller “has Ms. therefore, and, must be treated the individual’s estate” “personаl representative” to whom Appeals The Court of be disclosed. 45 CFR 164.502 pursue surviving spouse holding who wishes to affirmed, that a wrongful on his death has to act for the decedent’s action damages behalf, as the measure him, than to the the decedent’s life to rather
the full value of brings surviving spouse Center v. the action. Alvista Healthcare 637) (2009). Having App. 133, 137 Miller, 296 Ga. judgment ruling, granted to review this we affirm certiorari Appeals, basis. We hold that but on a different the Court to act on authorizes a
123 and, behalf of the decedent or his estate in medical records therefore, that the is entitled to access the dece- § dent’s health information in accordance with 45 CFR 164.502 Secretary Department
HIPAA “authorized the of Health promulgate regulations and Human Services to rules and which [USC] patients’ would ensure the 42 medical information. (d) (A).” Austin, 730, 1320d-2 Moreland v. 731 “ 68) (2008). privacy regulations apply Those ‘to the (f)
health information of a deceased individual.’ 45 C.F.R. 164.502 entity individual, .... In cases of a deceased the covered must ‘treat personal representative as the individual.’ 45 C.F.R. 164.502 (1).” (Kan. 2005). App. Broderick, 564, Estate 125 P3d 570 applicable
If executor, administrator, under law an or other to act behalf of a deceased indi- entity estate, vidual or of the individual’s a covered must personal representative treat such under this subchapter, respect with health information personal representation. relevant such and, This definition is a functional one “applicable regulation clearly
therefore, the law” to which the refers Lawyers Evans, B. is state law. See Daniel What Estate Need to Know Information”, about and “Protected Health 18-AUGProb. & (2004); Prop. Statutory 20, Gunnarsson, 22 Are Helen W. Health Care (2004) (“ HIPAA-Compliant?, ‘Applicable 302, POAs 92 Ill. B.J. generally governs law, means what law’ state since that’s another.”). act on behalf of Ms. Miller asserts that OCGA 31-33-2 (a) (2) (B) “applicable gives constitutes the law” which her “author- ity [the] to act on behalf of deceased individual or of the individual’s estate.” expressly recognize 2006,
Prior to OCGA 31-33-2 did not applicability specified persons, any HIPAA, and it several different patient’s pp. 2002, of whom could obtain a deceased record. Ga. L. Assembly 641, 642, 2006, however, 2. In the General amended (a) (b) change subsections of the statute so as “to certain provisions furnishing relating copy patient, of records to provider, person” provide compliance or other authorized and “to (b) (1) p. Thus, with” HIPAA. Ga. L. 494. provides, part, pertinent any request now for a deceased patient’s by person medical records authorized under subsection (a) (2) accompanied by compliance shall be an authorization implementing rеgulations. requires HIPAA and its Subsection patient’s copy provider record of a deceased to furnish a
a healthcare upon written
(A) temporary administra- executor, administrator, or person has been estate if such tor for the decedent’s temporary appointed; executor, administrator, If ap- not been estate has administrator for the decedent’s *3 (C) surviving surviving spouse; pointed, by If is no there the (D) surviving spouse, by any child; If there is no and by any parent. surviving сhild, (a) (2) priority order of with a definite
Thus, subsection establishes patient’s respect medical to obtain a deceased to who is authorized (a) (2) (A), § priority, in 31-33-2 set forth OCGA records. The first § (g) specification obviously in 45 CFR 164.502 with the is consistent (4) person having authority administrator, to or other of an (a) (2) § 31-33-2 decedent or his estate. OCGA act on behalf of the (B) applies administrator has not been if an executor or (a) (2), purpose appointed. conjunction in when read The evident of subsection (b) (1), identify persons, several the with subsection is to surviving being first choice and the or administrator executor being spouse second, to submit an authori- who have compliance to obtain medical records with zation Accordingly, that we conclude of the decedent or his estate. behalf (a) applicable § which state law to 31-33-2 constitutes OCGA (a) (2) (B) § (g) and that subsection CFR 164.502 refers 45 neсessarily implies administrator, that, there is no executor or when granted authority surviving spouse is respect requests medical records. with for decedent or his estate entity” requires such as that “a covered 45 CFR 164.502 having authority person” on behalf of the to act Alvista “treat such respect personal representative . . . with “as a decedent or his estate personal represen- information relevant to such to tation.” As the health (a) (2) preceding 31-33-2 discussion of OCGA surviving spouse personal clear, treats the makes representative that statute respect in lieu of the executor or administrator (a) (2) requests of the statute for medical records. Subsection to establishes surviving spouse personal representation in the a limited express purpose decedent’s medical records for the provide compliance does not fоr with HIPAA. statute purposes. representation by for other types permits obtain all of medical However, the statute her to excepted by records, as OCGA other than mental health records subject preservation in OCGA 31-33-6 of the 31-33-4, and to the recognized privileged communications or confidential nature of carefully Therefore, other laws. OCGA 31-33-2 is tailored to provide authority contemplated by
Except for health mental records and records which remain privileged confidential, all of the decedent’s personal representation relevant the limited (a) (2) (B). granted surviving spouse by to a by qualifying personal repre- Therefore, Miller, Ms. limited requesting sentation and medical records which she is authorized to request by representation, every requirement virtue of such has met of 45 CFR 164.502
Contrary regulation dissent, to the contention of the the federal require person having authority does not that the to act on behalf of requesting the decedent or his estate and medical records must fiduciary capacity intend to make future use of those records in her personal representative. person having authority aas When the act on behalf of the decedent or his estate makes a *4 scope authority, very medical records which is within the request of that person’s capacity constitutes an action as a limited personal representative. only Indeed, such is the action personal representation which can come within limited estab- (a) (2) § by purpose obtaining lished OCGA 31-33-2 for the by person medical records. Once the medical are obtained a records by authorized state law to act on behalf of the or his decedent estate (4) § by requesting (g) them, 45 CFR 164.502 does not restrict the obtaining rеcords, future use of those records. After therefore, the medical surviving spouse may pursue wrongful claim, a death may appointment bring she seek as administrator order to § pursuant survival action on behalf of the estate to OCGA 51-4-5 (b), may may both, she do or she do neither. logical analysis result of the dissent’s is that a § complaint, together by required
death affidavit with OCGA opened, 9-11-9.1, cannot be filed and until an unless estate has been appоintment there has been an of an executor or administrator who willing cooperate potential wrongful claimant, is with the and the executor or administrator has made a for the enough prevent decedent’s medical records soon the action from being nothing However, barred the statute of limitations. in either (a) (2) (4) § § (g) requires or 45 CFR 164.502 appointment of an executor or administrator and what be an unnecessary contrary, оtherwise administration of an estate. To the regulation provide both the statute and the federal for a request by person an who is neither executor nor an administrator. (4) § very comply (g) If the with 164.502 statute tailored to 45 CFR provide anyone could not be than an considered to other executor or authority administrator with the decedent or his 126 portion purpose records, then that medical
estate for the person[s]” having regulation specifies which “other of the federal authority individual or his estate act on behalf of the deceased meaningless respect to this state. would be (4) (g) preempts Appellants contend that 45 CFR 164.502 (a) (2). regula However, HIPAA and the related 31-33-2 OCGA provides stringent preempt any which more do not state law tions requirements health information. for the disclosure of (1), Wright, supra 9, 12 733; Allen v. Austin, v. at Moreland 814) (2007). permits 45 164.502 14 CFR administrator, other authorized tо act on or some protected health his estate to obtain behalf of the decedent or (a) (2) However, whom OCGA 31-33-2 information. only estate is of the deceased individual or his allows to act on behalf represented, and if the estate is the executor or administrator unrepresented. surviving spouse if one exists and the estate is stringent than, and thus Therefore, 31-33-2 is more OCGA (4). Compare preempted by, Moreland v. is not (1), supra; Wright, suprа Austin, Allen v. at (a) Accordingly, that, 31-33-2 we hold when OCGA applicable, thereunder to act on by requesting his medical records of the decedent or his estate behalf decedent’s and, thus, is entitled to access the pursuant 164.502 We further hold to 45 CFR correctly entry Appeals affirmed the trial court’s that the Court of injunctive *5 declaratory Contrary Appellants’ contention, and relief. Appeals did not hold that a trial court could circumvent thе Court of production merely by entering compelling of HIPAA an order any Appeals clearly required of that such medical records. The Court order HIPAA “ ‘compl[y] here, must, as did the trial court’s order [Cit.]” requirements records.’ for the disclosure of such (2). entry supra Miller, of the the Healthcare Center v. at 138 Alvista ground order was not erroneous on the trial court’s constitutional King right privacy, State, in v. 272 Ga. as set forth 492) (535 (2000), prior personal required notice to the SE2d 788 right privacy gener- representative That of the decedent’s estate. patient ally and, to the extent that does not survive the death of the the relatives of the deceased. does, it its assertion is a matter for Change King, Jr., v. American Martin Luther Center Social (296 (1) (1982). Heritage Products, 135, 139 SE2d 250 Ga. compliance regulations, Furthermore, datory with HIPAA the man- due to violating injunction place Appellants danger in did not law, the trial court was authorized to find the absence of federal and legal remedy, impending expiration any “adequate due to the of the wrongful of limitation.” Alvista Healthcare Center v. death statute (3). supra Miller, at 138 Judgment except Melton, J., concur, All the Justices affirmed.
who dissents. dissenting.
MELTON, Justice, Accountability Portability Under the Health Insurance and Act (HIPAA) may regulations, entity of 1986 and its a covered release the requesting protected health information of a deceased individual to a requirements law, if individual three are met: under state requesting executor, administrator, individual the information is “an [who] person authority of a deceased or other has estate”; executor, adminis- individual or of the individual’s acting capacity trator, in on behalf of a or other this estate; deceased individual or his and being requested is “relevant to such information which is representation.” irrespеctive case, 164.502 In this 45 CFR authority Mary might request pro- Miller have to raw information of her deceased husband under tected health law, acting not on her husband’s behalf when she made the she was contrary, subject litigation. request which is the of this To the she acting pursuit claim, on her own behalf of a was any authority request way her for records was no relevant to Accordingly, Miller’s to act on behalf of her deceased husband. (4), satisfy requirements 164.502 did not of 45 CFR respectfully and I must dissent. guarantee patient’s passed of a HIPAA was Austin,
medical information. Moreland v. 68) goal, places strict limitations on To achieve this may request protected persons health information and both the requests be made. These limitations are the reasons for which necessary prerequisites for a valid reflected the three First, of a decedent. under state the law, health information requesting a decedent’s health infor-
the individual [who] administrator, “an or other mation must be act on behalf of a deceased individual or *6 words, In the other individual’s estate.” person requesting protected autho- the health information must be fiduciary by personal representative in a law to act as a rized state fiduciary capacity A is a on behalf of the decedent or his estate. “person required on all who is to act for the benefit of another relationship; scope one who owes to matters within the of their good faith, trust, confidence, and candor.” another the duties of (8th 2004). Dictionary Black’s Law ed. In sufficient, not however. addition
Mere authorization to act is seeking protected having authorization, the health an individual satisfy prerequisite of the second a decedent must information of (4) making request appropriate by in the 45 CFR 164.502 fiduciary capаcity. request be words, for records must In other appropriate purpose pursuant which will benefit to an made by emphasized requirement is further estate. This decedent or his protected request prerequisite health informa- that the for the final repre- personal requesting individual’s to the tion must be relevant re- This means that decedent or his estate. sentation of the quested appropriate connection information must have some health requesting duty act for the benefit of the individual to to a requesting party Therefore, if has the even a decedent or his estate. authority may representative, personal he or she not to act as a non-fiduciary personal, request All reasons. for health information prerequisites of records were enacted to ensure the these even after death. prerequisites
Applying case, this Miller has to the facts of these request records of the law to the health some under state allows a decedent. OCGA 31-33-2 request if administra- of a decedent no the health records Accordingly, appointed. temporary has been tor, or administrator arguably prerequisite This bare be satisfied. HIPAA’s first authority, remaining standing satisfy two re- alone, does not request quirements health HIPAA, however. For her request in her valid, Miller must have made her information to be capacity representative, requested and the documents responsibilities as a furtherance of her must be relevant personal representative. to the undisputed her desire the basis for Miller’s was It is wrongful benefit of a action. Such an action is for the to file a death See Lovett v. survivors, not the decedent or his estate. decedent’s (208 (“the 838) (1974) gist of the action is Garvin, SE2d 232 Ga. injury by injury deceased, suffered but the not the suffered dеceased”). resulting See also beneficiaries, from the death of the Dept. Resources, 624, 626, n. 14 Human Williams v. Ga. requested Therefore, Miller her de when information, she did not do so health ceased husband’s a representative capacity of her deceased husband. for the benefit contrary, requested the information as an individual Quite to the she wishing pursue action for her own benefit. information under these Moreover, her any рersonal the furtherance of has no relevance to circumstances explicit representation estate, his and neces of the decedent or prerequisites sary requirement result, law. As a under federal *7 Appeals erred in satisfied, and the Court of HIPAA have not been finding that Miller’s health information was proper. majority opinion only otherwise,
To find the focuses on the first prerequisite properly under HIPAA and fails to сonsider the other deficiency majority’s holding, two. This is in evident the which (a) (2) (B) states: “We hold that OCGA 31-33-2 authorizes a surviving spouse in of the decedent surviving spouse and, therefore, medical records that the is entitled to access the decedent’s health accordance (4).” (g) explained above, however, with 45 CFR 164.502 As the standing decedent, alone, mere to act on behalf of the is pierce privacy guarantees Authority insufficient to оf HIPAA. to appropriate fiduciary purpose, be act must protected combined with an and the completion health information must be relevant to the fiduciary purpose. By failing give this full consideration to these requirements, majority exacting additional privacy protections eliminates the more stringent require-
of a federal law with the less
require
ments of a state law which does not
that the release of health
сare records of a deceased
representation
be relevant
to the
problem
of the deceased. The fundamental
with the
majority’s analysis
interprets
is that it
HIPAA as if it were concerned
only
identity
requests protected
with the
who
health
any
purpose
information without
consideration for the
or nature of
request. By
alone,
status
is allowed to access
irrespective
decedent,
health information of thе
whether she intends to use that information for her own benefit. In
majority’s analysis,
possible
fact, under the
it would be
for a
surviving spouse,
will,
been disinherited under a decedent’s
immediately request care records before an administrator
appointed
hardly
or
is
executor
order to raise a caveat. This would
qualify
by personal representative
under
scenario as an act
opposite
is,
fact,
behalf of the decedеnt. It
extreme
party acting against
self-interested
the interest of the
decedent
his
majority
short,
In
estate.
misconstrues 45 CFR 164.502
by effectively deleting the words “on behalf of” from text and
its
ignoring
meaning
“personal representa-
the most basic
of the term
tive.”
persons
While 45 CFR 164.502
restricts the field of
qualified
purposes
documents and the
for which such
requests may
made,
be
OCGA 31-33-2 limits
the field of
persons,
purposes.
majority
reason,
not
For this
is also incorreсt
preemption analysis.
stringent
in its
is more
pro-
than OCGA
Because HIPAA
31-33-2.
allows the release of
purpose
tected health information for a much more limited
than
(a) (2),
any conflict,
to the extent that
there
*8
Wright,
preempts
Deсided Bring, Gregory, Hendrix, E. Arnall, Glenn P. Jason Golden & Gregory, Strang Rissler, III, L. for J. Charles Robert T. William appellants. Stephen Chance, Lourie,
Watkins, Lourie, D. Roll & Lance appellee. Chance, for HOTELS.COM, L.P. v. CITY OF COLUMBUS.
S09A0906. 91)
(686 SE2d
Justice.
Thompson,
arguments
appeal
virtually
in this
are
identical
The facts and
City
Expedia,
Columbus,