Courts obviously have a significant role in making judgments regarding access to and disclosure of individually identifiable information. Both HIPAA and 42 CFR, Part 2 permit disclosures pursuant to court order.
One important role courts can play in assuring clarity in information sharing is to insert paragraphs in their orders explicitly permitting or restricting the use of certain types of information. For example, the judicial order from Georgia makes clear that probation officers are not covered entities under HIPAA and may therefore disclose (and have access to) otherwise protected health information. Note that this is an example of a blanket court order that is legally effective. In general, blanket court orders that direct agencies to release information about youth involved in the juvenile court are not legally effective when governing laws require that entities provide notice to the subject of the information prior to releasing the information. For example, an order that all schools are to release educational records of youth under probation supervision to the juvenile probation would not work because FERPA requires schools to alert the parents of students about the order before the school complies.
There are also circumstances in which an attorney for a party may seek a court order permitting access to protected health information. An example of a protective order from Cook County, Illinois is included.
1I. Seek approval of any drafted tools such as information sharing agreements, practitioner’s guides, and authorization to release of information forms from the participating agencies and their legal counsels.
In order to ensure implementation of the tools and policies you have developed, it is important to get stakeholder buy-in. Contact the participating agencies and their legal counsel to get approval of the tools you’ve developed.