Understanding HIPAA Disclosures When Responding to CIDs in FCA Investigations

Jonathan Porter welcomes colleague Claire Postman to discuss how healthcare providers approach HIPAA when responding to civil investigative demands in False Claims Act investigations. Jonathan explains that providers often feel tension between meeting the requirements of a CID and complying with HIPAA. Claire begins by outlining HIPAA’s general prohibition on disclosing protected health information and describes the exceptions that allow disclosures in specific circumstances. She explains that HIPAA permits disclosures when required by law, including mandated reporting in situations such as abuse or neglect, and in response to court orders, grand jury subpoenas, and civil investigative demands. Claire also notes that disclosures must match the scope of the request and that de-identification may sometimes be appropriate.Jonathan and Claire then discuss HIPAA’s provisions for allowing disclosures to health oversight agencies and situations in which questions arise about how these rules apply. Claire emphasizes the importance of reviewing the language of a CID carefully to determine whether a disclosure fits within HIPAA’s exceptions. Together, they outline factors providers should consider when assessing what information may be produced and how to ensure responses remain within HIPAA’s requirements.They conclude by discussing the value of clear communication between counsel and investigators when questions about HIPAA compliance arise. Jonathan and Claire highlight how proactive dialogue can help clarify expectations and ensure that responses remain consistent with both HIPAA and the scope of the CID.Jonathan Porter | Full BiographyJonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white-collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law.Claire Postman | Full BiographyClaire Postman is a senior associate who advises healthcare clients on regulatory compliance and the application of federal and state requirements. Before attending law school, she worked as an analyst researching Medicare and Medicaid policy, which helped shape her interest in translating complex regulations for healthcare stakeholders. Claire assists clients with healthcare regulatory matters and supports organizations involved in transactions such as joint ventures, affiliations, changes of control, and mergers and acquisitions within the healthcare sector. Her background in public health and policy analysis informs her work helping clients understand how evolving regulations apply to their operations.