There’s a development in a medical confidentiality breach case that has been going on for years.
In December, 2015, Pro Publica reported the case of Dr. Barry Helfmann,and Short Hill Associates in New Jersey, who were being sued for revealing patients’ names and diagnostic codes and treatment codes in collection lawsuits filed by a law firm they retained to handle collections for them. As outrageous at that seemed to many people, such disclosures in court filins reportedly did not violate any New Jersey law, and it did not violate HIPAA, because the practice was not covered by HIPAA. In April, 2017, however, the state moved to revoke or suspend Helfmann’s license, accusing him, in part, of failing to prevent details of patients’ mental health diagnoses and treatments from being disclosed when his practice sued them over unpaid bills. The action was brought under state law.
In June, 2018, Pro Publica reported that New Jersey’s state Board of Psychological Examiners had upheld a decision by an administrative law judge that Helfmann,
“did not take reasonable measures to protect the confidentiality of his patients’ protected health information,” Lisa Coryell, a spokeswoman for the state attorney general’s office, said in an email.
The administrative law judge recommended that Helfmann pay a fine and a share of the investigative costs. The board went further, ordering that Helfmann’s license be suspended for two years, Coryell wrote. During the first year, he will not be able to practice; during the second, he can practice, but only under supervision. Helfmann also will have to pay a $10,000 civil penalty, take an ethics course and reimburse the state for some of its investigative costs. The suspension is scheduled to begin in September.
The investigative costs Dr. Helfmann was ordered to pay came to $110,542.08. They were explained in an August, 2018 order by the board. Because the state had prevailed on two of five counts it had filed against the psychologist, the board decided he should pay for 2/5 of the investigative costs of the case.
Dr. Helfmann appealed the state board’s decision to the Superior Court of New Jersey. He did not challenge the charge relating to inadequate record keeping on treatment, but did appeal the count concerning improper disclosing of confidential patient information. The court issued their opinion this week on May 29. They affirmed.
Because the Practicing Psychology Licensing Act (PPLA), N.J.S.A. 45:14B-1 to -48, and its implementing regulations require a psychologist to maintain—absent a statutory or other exception—the confidentiality of such patient information, and because there is no exception for the kind of information Dr. Helfmann provided to the collection attorneys, we affirm the Board’s finding that Dr. Helfmann violated the PPLA. Because the sanctions the Board imposed are not so disproportionate to the violations as to be shocking to one’s sense of fairness, and because the Board’s assessment of attorney’s fees was not an abuse of its discretion, we affirm the Board’s decision in its entirety.
The court’s opinion provides additional history and details on the case. Of note, the breach of confidentiality that the board based its decision on and that the court affirmed occurred when the doctor provided bills with confidential information like diagnosis and CPT code to the law firm retained to handle collections for them. Submitting the bills with those details to the court just made matters worse, but the breach occurred when the doctor’s office gave “true bills” (statements with diagnostic codes and CPT codes) to the collection firm:
The threshold issue we must decide is whether the Board wrongly concluded Dr. Helfmann breached his responsibilities to preserve the sanctity of the psychologist-patient relationship and to preserve the confidentiality integral to that relationship when he gave the collection attorneys true bills. We agree with the Board that he did, and that the breach occurred when the true bills were provided, not when the attorneys attached copies of the true bills to complaints they filed in the Superior Court. The Superior Court filings exacerbated the breach that had already occurred. By providing the attorneys true bills with diagnostic and treatment codes, Dr. Helfmann overlooked the psychologist-patient privilege, regulations implementing the PPLA, and his contractual commitments to his patients.
While all this has been going on, the Short Hills Associates and Dr. Helfmann sued their collection law firm in 2017. Their case was originally dismissed by the court, but the Superior Court New Jersey Appellate Division reversed and remanded in May 2019. That case is Short Hills Assoc. in Clinical Psychology v. Rothbard, Rothbard, Kohn & Kellar.