What is it about?
There has been an ongoing controversy, since the inception of HIPAA, regarding whether forensic evaluators are regulated by HIPAA. There have been several arguments made against regulation, but one of the primary reasons proffered is that HIPAA regulates only those records that are generated pursuant to healthcare treatment services. Thus, the argument goes, since forensic evaluations do not include treatment, they are not regulated by HIPAA. This article discusses several of the logical inconsistencies contained within this argument - for example, that HIPAA regulates people, not records, and the fact that forensic evaluators are also regulated by state licensing law, that likely has requirements similar/identical to HIPAA. Finally, although there are no cases directly on point, case law and HHS example cases point to regulation.
Featured Image
Why is it important?
Forensic evaluators may be subject to a number of sanctions, by a variety of regulatory bodies. Withholding records when disclosure is required (or vice versa) can result in a HIPAA of licensing complaint, or a civil lawsuit (for example). Thus, forensic evaluators should have a clear understanding of our legal requirements.
Perspectives
I began to research this area in 2008. Prior to this time, the consensus was that evaluees do not have a right to obtain copies of the records about them. Dozens of 'reasons' for withhold records from evaluees have been advanced in the research and have been proffered to me personally. However, despite thousands of hours of research, I have not found any support for this view. Further, the vast majority of research in this area is subject to the woozle effect - the authors do not use primary sources, merely continuing the same mistakes made by earllier authors. In my opinion, this article was foundational, in that it tears at the heart of the 'do not disclose to evaluees' position - if HIPAA requires disclosure, then the other arguments are also suspect.
Dr. Bruce G Borkosky
Ohio Wesleyan University
Read the Original
This page is a summary of: Are Forensic Evaluations “Health Care” and Are They Regulated by HIPAA?, Psychological Injury and Law, June 2013, Springer Science + Business Media,
DOI: 10.1007/s12207-013-9158-7.
You can read the full text:
Contributors
The following have contributed to this page
