CAUSE NO.  ____________________

THE STATE OF TEXAS

V.

JOHN DOE

§	IN THE ________________COURT
§
§	OF
§
§	________________ COUNTY, TEXAS

	MOTION FOR HIPAA ORDER FOR MEDICAL RECORDS

TO THE HONORABLE COURT OF SAID COURT:

	Defendant moves for an order to permit the prosecution and the defense to obtain medical records on complainant, __________________, for use in the above styled and numbered case as follows:
	1.  This request is made in light of statutory and regulatory requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub.  L.  No.  104-101, 110 Stat. 1936 (1996).  A portion of HIPAA mandated privacy of medical records.  42 U.S.C.A. §§ 1320 et seq.  (2003).  HIPAA directed the Secretary of Health and Human Services to create regulations to protect a patient's privacy in medical records.  42 U.S.C.A. § 1320d-1(d) & 1320d-2(e)(1)(2003).  These regulations preempt state law.  42 U.S.C.A. § 1320d-7(a)(2003) and 45 C.F.R. § 160.203(2003).  the Secretary promulgated final regulations on February 13, 2001, and theses medical records in litigation is found at 45 C.F.R. §164.512(e)(2003).  Disclosure is permitted in either a court medical official to disclose medical records.  45 C.F.R. §164.512(e)(1)(i)(2003).  Merely issuing a subpoena for records will not authorize release of the medical records unless the patient provides written authorization, the court issues an order, or unless the requesting individual can satisfy certain requirements.
	2.  To comply with HIPAA, Defendant moves for a restrictive order from the Court to permit both prosecution and defense to obtain such medical records of the complainant.
	3.  Defense counsel has talked with the minor complainant's mother and has identified at least one physician and a psychologist who have provided health care for the child during the time of the complaint.  Medical and psychological evaluations in a sexual assault case are always relevant evidence.
	Accordingly, Defendant moves for a HIPAA order from the Court.

Respectfully submitted,

_____________________________
Attorney for Defendant

CERTIFICATE OF SERVICE

	I certify a copy of this notice to disclose was hand-delivered to the________Attorney for ___________________ County, Texas on the _____ day of .

	I certify a copy of this notice to disclose was mailed to complainant and his/her parent on the _____ day of .

___________________________________
Attorney for Defendant

CAUSE NO.  ________________

THE STATE OF TEXAS

V.

JOHN DOE

§	IN THE ___________ COURT
§
§	OF
§
§	_______________ COUNTY, TEXAS

	COURT ORDER ON MEDICAL RECORDS UNDER HIPAA
(Patient ___________, DOB:  _____________)

	On this day, the Court considered the motion to secure medical records of the complainant in the above styled and numbered cause under the medical records privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub.L.No.  104-191, 110 Stat.  1936(1996), 42 U.S.C.A. §§1320d et seq.  (2003), and its implementing regualtions.  45 C.F.R. §164.512(e)(2003).  The Court finds the motion meritorious, and the Court enters the following order:
	Pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L.  No.  104-191, 110 Stat.  1936 (1996), 42 U.S.C.A. §§ 1320d et seq.  (2003), and its implementing regulations, 45 C.F.R.§164.512(e)(2003), IT IS HEREBY ORDERED that any health care provider of ______________, DOB:  ________________, may produce medical and psychological records on ________________ and may discuss medical and psychological health care matters on __________ subject to the following conditions:

	The records and the conversations may only be released to:
-Attorneys, paralegals, advocates, and investigators of the Criminal District Attorney of ____________ County, Texas, or any expert witness retained by these individuals.

-___attorney's name____________, attorney at law, or any expert witness retained by this attorney.

-In open court and trial in the case of STATE OF TEXAS VS. JOHN DOE,  case number _____________, in the ____________ Court, in the record of trial, and in any appeal documents.

		-The records may only cover the time period of _____________ to the time of trial.
-All medical and psychological records filed with the court by business record affidavit under Texas Rule of Evidence 901(10) shall be filed under seal.

-As to the health care provider, this order and authorization shall expire either on the date the trial in the __________________ case ends or December 31, , whichever event is earliest.

-This order does not preclude the patient from granting authorizations in excess of the limitations of this court order.
									
THE COURT FURTHER ORDERS THE FOLLOWING LIMITATIONS:
-The prosecuting and defense attorneys shall not release or disclose the contents of complainant's medical and psychiatric records and information to any third individual, including the press or media, other than a consulting or testifying lay or expert witness, unless there is further order of the court provided only after notice to the patient and a hearing.

-Consulting or testifying lay or expert witnesses shall neither copy these medical and psychiatric records nor disclose the records or the contents of the records to a third individual.

-The prosecuting and defense attorneys shall recover all copies of the patient's medical and psychiatric records from any consulting or testifying lay or expert witness.

-The prosecuting and defense attorneys shall surrender to the court all copies of the patient's medical and psychiatric records for destruction after the trial and all appeals, if any, are completed.	

SIGNED AND ORDERED ENTERED this the _____ day of _____, 200__.

							_______________________________________
							Judge Presiding