Can A Tenant Can’t Sue a Landlord for a HIPPA Violation
The Health Insurance Portability and Accountability Act, HIPPA, is thrown around a lot among landlords and property investors.
You hear HIPPA used when referring to the screening process and verifying if a tenant should be allowed to have a service animal, or an emotional support animal, and you want to contact a healthcare provider to verify.
HIPPA also come up when a tenant requests a reasonable accommodation, and you want to speak with their provider to see if it is necessary.
Despite what you may have been told, HIPPA does not apply to you as a landlord. If your property management company has told you different, they are wrong.
Landlords and property owners, cannot be sued under HIPPA for asking a provider questions about the tenant.
HIPPA does, however, apply to the tenant’s medical provider, as well as other covered entities.
This doesn’t, however, limit a tenant’s ability to sue under some other legal theory such as the American with Disabilities Act, Fair Housing Act, a separate and distinct privacy law violation, or some other discriminatory conduct.
The right to sue the landlord, or the health care provider for that matter, under HIPPA simply isn’t available to the tenant.
What Entities are Covered Under HIPPA?
There are only three entities covered by HIPPA regulations.
These entities are:
- health care providers;
- health plans; and
- health care clearing houses, which process information to be transmitted between providers and insurance companies for example.
If these three covered entities have business associates, then the business associates would also be covered under HIPPA when they are operating in a capacity for the benefit of the covered entity.
Business associates can include legal, consulting, accounting, management, and administrative services.
Again, HIPPA doesn’t apply as a blanket to these business associates, only when they are performing a function for one of the three covered entities.
What Tenant Information Is Covered Under HIPPA?
If HIPPA applied to landlords and property investors, there are three specific areas which are covered:
- a tenant’s past, present, or future physical or mental health or condition;
- treatment provided to the tenant; or
- past, present, or future payment for healthcare the tenant receives.
Can a Tenant Sue for Information Obtained in Violation of HIPPA
As stated earlier, the tenant does not have the right to sue the landlord for violating HIPPA. The next question, however, is if the tenant can sue the health care provider who disclosed HIPPA protected information to the landlord.
The answer is yes and no.
Yes, the tenant can sue the health care provider.
No, the tenant cannot sue under HIPPA.
Although it was the tenant’s information that was compromised, the tenant cannot directly sue the provider, because HIPPA does not allow for a private cause of action for a violation of any of the HIPPA regulations.
Cases alleging a violation of HIPPA must be brought forth by a governmental entity, which usually means the tenant filing a HIPPA complaint with the Department of Health and Human Services, Office of Civil Rights.
The Office of Civil Rights is responsible for investigating the tenant’s HIPPA complaint, and taking action, or bringing charges in federal court.
The tenant can also file a complaint for the HIPPA violation with the relevant state regulatory agency.
The option for the tenant to recover personally from the HIPPA violation, is to file a state cause of action. Some plausible violations of state law may include:
- improper disclosure of medical records or confidentiality;
- invasion of privacy; and
- negligence in the handling of the records.
As a landlord, and not a covered entity under HIPPA, the tenant may be able to sue you for a violation of state law (or as we said earlier under the ADA of FHA if applicable).
A state law violation would be a stretch, as you were not the custodian of the records.
One important thing to consider is the fact that the tenant must prove damages have occurred. While it is problematic that the provider violated HIPPA by disclosing the tenant’s protected information, there must be actual damages for the tenant to recover for the HIPPA violation.
Federal HIPPA laws set forth the amount of civil penalties a provider can face, making the issue of damages moot.
Unless the tenant’s state specifically sets damages related to the cause of action, the tenant has the affirmative duty to state what damages have occurred.
Although not exhaustive, some ways a tenant can demonstrate damages for a violation of HIPPA include:
- mental health counseling as a result of the HIPPA violation.
- denial of a right because of the HIPPA violation.
- the tenant’s loss of a home or rental property because of the HIPPA violation.
- subsequent treatment by another individual who relied on the tenant’s health status.
So How Do I Get Tenant Information That Might Be Covered Under HIPPA
Although you can’t be sued for violating a tenant’s protections under HIPPA, the health care provider can.
And no health care provider is going to risk their business or livelihood to provide you with information.
There is a right way and and a wrong way to go about getting information.
The wrong way is calling up the health care provider and asking for information. This is a quick way to be politely told to get lost.
The right way is to communicate with the tenant that you would like to gather additional facts to make your determination. Then have the tenant sign an acknowledgement in writing as to the purpose of your inquiry. Finally, have the tenant execute a HIPPA waiver with their provider, so the provider can discuss the matter with you.
Following those steps will get you all the information you need, and not open the health care provider up to legal trouble from HIPPA, or you from legal challenges from possible state laws.
Key Takeaway on Landlord-Tenant HIPPA Violations
The key takeaway for you as a landlord when it comes to HIPPA, is to establish a policy that takes into account the tenant’s right to privacy, as well as your right to have enough information to make a decision concerning your investment property.
Our recommendation is to get written permission from the tenant to discuss matters with their provider. The tenant should also fill out a HIPPA release form with their health care provider, which will allow the health care provider to have an open discussion with you about the tenant.
You don’t have to walk on eggshells when trying to negotiate this process, just make sure you are checking all of the blocks.
Your inquiry, so long as it is done correctly, won’t set you, or the health care provider up for any liability.
Contact Us for Help
As the only property management company in Fayetteville, NC owned by a retired military attorney, and licensed North Carolina lawyer, we are in a unique position to assist you with the management of tenant private information.
If you have any questions, don’t hesitate to reach out to us.
We are here to help.
The Team at Linchpin Property Management
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As always, information on this website is not intended to constitute legal advice, or the retention of our property management services, and is for general information purposes only.
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