THE PEOPLE, Plaintiff and Respondent, v. JOSEPH H. THAYER et al., Defendants and Appellants.
Ball, Hunt & Hart, Joseph A. Ball and Harman M. Hitt for Defendants and Appellants.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Jack K. Weber, Deputy Attorney General, for Plaintiff and Respondent.
Defendants Thayer and Magruder were convicted of 22 counts of violating section 72 of the Penal Code by submitting false and fraudulent claims to the Bureau of Public Assistance of Los Angeles County and of conspiring to submit such claims. They appeal from the judgments on the sole ground that records used as evidence against them were unconstitutionally obtained.
Defendant Thayer is a physician; defendant Magruder is his office assistant. Dr. Thayer treated patients whose medical care was paid for by the Bureau of Public Assistance. For each patient he submitted a "medical care statement" to the bureau and certified thereon that he had performed the services described, that the amount was due and unpaid, and that the stated fee represented the entire charge for services to the patient.
At the trial, the prosecution sought to prove that the bureau was billed for services never performed and for services also billed to others. It introduced into evidence medical care statements submitted to the bureau and corresponding medical care records taken from Dr. Thayer's files under a search warrant. Charges for visits and treatments on the statements were not shown in Dr. Thayer's records. In addition, many of the records contained illegible scrawls or wavy lines corresponding to items billed on the statements. Several of Dr. Thayer's employees testified that they used these records in preparing the statements and that they were instructed to show at least four visits on each statement whether or not there had been that many visits. There was also testimony [63 Cal. 2d 637] that the wavy lines were written by Dr. Thayer to indicate visits or treatments that were to be billed to the bureau even though they had never occurred.
Defendants contend that the seizure of the records and their use as evidence constituted an unreasonable search and seizure and a violation of their privilege against self-incrimination under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and corresponding provisions of the California Constitution. They urge that the records could not be seized even under a warrant concededly authorized by statute (Pen. Code, § 1524), because they were merely evidence of crime and not contraband, instruments of crime, or fruits of crime.
The asserted rule that mere evidence cannot be seized under a warrant or otherwise is condemned as unsound by virtually all the modern writers. It is typically described as "unfortunate" (8 Wigmore, Evidence (McNaughton rev. 1961) § 2184(a), pp. 45-46) and is a commonly-used example of a legal absurdity. (See, e.g., Kamisar, Public Safety v. Individual Liberties: Some "Facts" and "Theories" (1962) 53 J.Crim.L., C.&P.S. 171, 177; Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law (1961) 49 Cal.L.Rev. 474, 477-479; Comment, Limitations on Seizure of "Evidentiary" Objects: A Rule in Search of a Reason (1953) 20 U.Chi.L.Rev. 319; Traynor, Mapp v. Ohio At Large in the Fifty States, 1962 Duke L.J. 319, 330- 331.) Although often invoked in cases involving the seizure of papers, the rule is not limited to papers at all but purports to prohibit the seizure of any object that is merely evidentiary. The rationale for this curious doctrine has never been satisfactorily articulated. It creates a totally arbitrary impediment to law enforcement without protecting any important interest of the defendant. A person has a constitutional right to be secure from unreasonable searches and seizures by the police. When the search itself is reasonable, however, it is impossible to understand why the admissibility of seized items should depend on whether they are merely evidentiary or evidentiary plus something else. The rule seems to have its basis in property concepts, in a theory that the sovereign may seize only those objects that it is illegal to possess, or to which the sovereign may assert a claim because they have been wrongfully obtained or used. (Gouled v. United States (1921) 255 U.S. 298, 309 [41 S. Ct. 261, 65 L. Ed. 647].) The modern view, however, is that the exclusionary rules of evidence exist [63 Cal. 2d 638] primarily to protect personal rights rather than property interests and that common-law property concepts are usually irrelevant. (Jones v. United States (1960) 362 U.S. 257, 266 [80 S. Ct. 725, 4 L. Ed. 2d 697, 78 A.L.R.2d 233].) Determining the admissibility of evidence on the basis of the sovereign's right at common law to replevy the items is anachronistic. It inevitably gives rise to technical rules that are entirely unrelated to the real issues of individual privacy and law enforcement that are involved.
Although property notions fathered the rule, some of the opinions imply that its major purpose is to prevent exploratory searches. (See, e.g., United States v. Lefkowitz (1932) 285 U.S. 452, 465-466 [52 S. Ct. 420, 76 L. Ed. 877, 82 A.L.R. 775].) If that is the purpose of the rule, it is certainly not its effect. The rule does not prevent exploratory searches at all; it prevents the seizure of mere evidence in the course of any search, reasonable or unreasonable, specific or general. It has also been suggested that the rule protects privacy by preserving a man's most private papers from any scrutiny or seizure, however reasonable. (Comment (1953) 20 U.Chi.L.Rev. 319, 327.) The difficulty with this rationale is that the rule protects, not private papers, but mere evidence.  "There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized." (Gouled v. United States (1921) 255 U.S. 298, 309 [41 S. Ct. 261, 65 L. Ed. 647].)private papers that are the instruments of crime, such as a spy's code books (Abel v. United States (1960) 362 U.S. 217 [82 S. Ct. 683, 4 L.Ed.2d 668]) may be seized. Finally, it is impossible to sustain the mere evidence rule as a corollary of the privilege against self- incrimination. It is not limited to self-incriminating writings, and when such writings are obtained by seizure, instead of by subpoena, the defendant does not impliedly admit their genuineness. (See Maguire, Evidence of Guilt (1959) p. 23; Meltzer, Required Records, the McCarren Act, and the Privilege Against Self-Incrimination (1951) 18 U.Chi.L.Rev. 687, 700; cf. Boyd v. United States (1886) 116 U.S. 616 [6 S. Ct. 524, 29 L. Ed. 746].) Moreover, the papers are no less self-incriminating when they can be classified as contraband, instruments of crime, or fruits of crime.
Gouled v. United States is a particularly apt candidate for such reinterpretation, for its adoption of the mere evidence rule as a constitutional standard was not necessary to the result in the case. The validity of a warrant authorizing the seizure of materials stipulated to be merely evidentiary was challenged. The federal statute under which the warrant was issued authorized seizure only when the property was "stolen or embezzled" or "used as the means of committing a felony." [63 Cal. 2d 640] (40 Stat. 228.) Instead of basing its decision on the statute the court said that the search and seizure violated the Fourth and Fifth Amendments. Perhaps it meant no more than that the seizure was unconstitutional because seizures that exceed statutory authority are always unreasonable.
The Supreme Court itself has not treated the Gouled rule as a fundamental constitutional standard. Although the rule is now set forth in Federal Rules of Criminal Procedure, rule 41(b), the court has refused without explanation to apply it to evidence other than tangible objects, such as that obtained by electronic devices designed to intercept conversations, although no policy reason for the distinction suggests itself. (On Lee v. United States (1952) 343 U.S. 747, 753 [72 S. Ct. 967, 96 L. Ed. 1270].) No Supreme Court case since Gouled has excluded evidence solely because of the Gouled rule. The rule has been distinguished nearly out of existence by the instrumentality exception. The Gouled case recognized that instruments used in the commission of crime may be seized because of the public's interest in preventing their use in subsequent crimes. This policy, however, furnishes no justification for the use of the instrument as evidence if such use would otherwise violate the Fourth and Fifth Amendments. It is not necessary to use the instrument as evidence to prevent its use in future crimes. Sending the owner to prison may prevent future crimes, but this consideration applies to mere evidence as well as instrumentalities. The same might be said of the other categories of evidence that may be seized, contraband and the fruits of crime. Certainly the sovereign or the rightful owner may replevy such items, but why the admission of evidence should turn on the law of replevin is a mystery. (See State v. Bisaccia (1965) 45 N.J. 504 [213 A.2d 185].) Nor is it clear by what means it can be determined whether or not an object is the instrument or fruit of crime until the owner's guilt or innocence is determined at the trial.
The first Supreme Court case to interpret the Gouled rule was also the first case to use the instrumentality exception to restrict its scope severely. In Marron v. United States (1927) 275 U.S. 192 [48 S. Ct. 74, 72 L. Ed. 231], federal officers lawfully entered a saloon and observed illegal sales of liquor. They then arrested the employees and patrons, and seized a business ledger and some utility bills. The search and seizure were held reasonable because they were incident to an arrest, and the ledger and bills were admitted into evidence. The court met the assertion that the Gouled rule required their exclusion by holding that utility bills and business [63 Cal. 2d 641] accounts are convenient if not necessary for conducting an illegal liquor business and are therefore seizable instrumentalities of the crime. No one claimed that seizure of the ledger and bills would in any way prevent future crimes except by enabling the government to obtain convictions.
It is contended that the Supreme Court retreated somewhat from this position in United States v. Lefkowitz (1932) 285 U.S. 452 [52 S. Ct. 420, 76 L.Ed 877, 82 A.L.R. 775]. In Lefkowitz, as in Marron, federal agents raided an illegal liquor business and seized a number of items, including business records and utility bills. The difference was that in Lefkowitz the officers did not limit themselves to seizing items plainly visible, but made a thorough search of the drawers, cabinets and waste-baskets. The court suppressed the evidence because the search was too broad, and because the items seized were mere evidence. The manner in which Marron v. United States was distinguished, however, hardly served to reinforce the Gouled rule. In Marron, the court said, the search was reasonable and the items were held to be instruments of the crime. Since the items seized and the offense charged were almost precisely the same in both cases, the distinction between the two cases was only the scope of the search. When the search was so broad as to be exploratory in nature, the mere evidence rule was resurrected as an alternative (and superfluous) ground for exclusion. When the search was otherwise reasonable, the same items became instruments of crime.
The judgments are affirmed. The appeals from the nonappealable orders denying motions for a new trial are dismissed.


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R. Laubenbacher and D. Pengelley, “Voici ce que j’ai trouvé:” Sophie Germain’s grand plan to prove Fermat’s Last Theorem, Historia Mathematica, 2009, in press.
E. Dimitrova, P. Vera-Licona, J. McGee, R. Laubenbacher, Comparison of data discretization methods for inference of biochemical networks, J. Comp. Biol., 2009, in press.
R. Robeva and R. Laubenbacher, Mathematical biology education: beyond calculus, Science 325, No. 5940, pp. 542-543, July 31, 2009.
R. Laubenbacher and A. Jarrah, Algebraic models in systems biology, Methods in Enzymology, 467, 163-196, 2009.
R. Laubenbacher, V. Hower, A. Jarrah, S. V. Torti, V. Shulaev, P. Mendes, F. M. Torti, and S. Akman, A systems biology view of cancer, Biochim Biophys Acta, 2009, 1796(2):129-39.
R. Laubenbacher, A. S. Jarrah, E. Dimitrova. B. Stigler, and P. Vera-Licona, 15th IFAC Symposium on System Identification, St. Malo, France, July 2009.
V. Hower, P. Mendes, F. M. Torti, R. Laubenbacher, S. Akman, V. Shulaev, and S. V. Torti, A General Map of Iron Metabolism and Tissue-specific Subnetworks, Molecular Biosystems 5 (5) 422-443, 2009.
R. Laubenbacher and B. Sturmfels, Computer algebra in systems biology, The American Mathematical Monthly, 2009, in press.
E. Sontag, A. Veliz-Cuba, R. Laubenbacher, and A. Jarrah. (2008). The effect of negative feedback loops on the dynamics of Boolean networks. Biophysical Journal, 95 (2):518-26.
P. V. Licona and R. Laubenbacher, Inference of ecological interaction networks, Annales Zoologici Fennici, 2008; 45: 459-464.
V. Choi, Y. Huang, V. Lam, D. Potter, R. Laubenbacher, and K. Duca, (2008). Using formal concept analysis for microarray data comparison, Journal of Bioinformatics and Computational Biology 6 (1). PMID: 18324746.
A. Martins, P. Vera-Licona, and R. Laubenbacher. ‘Model your genes the mathematical way’ –a mathematical biology workshop for secondary school teachers, Teaching Mathematics and its Applications 2008; 27: 91-101.
M. Shapiro, K. Duca, E. Delgado-Eckert, V. Hadinoto, Jarrah A., R. Laubenbacher, K. Lee, N. Polys, and D. Thorley-Lawson (2008). A Virtual Look at Epstein-Barr Virus Infection: Simulation Mechanism. Journal of Theoretical Biology. Feb 16 [Epub ahead of print] PMID: 18371986.
D. Camacho, P. Vera-Licona, P. Mendes, and R. Laubenbacher. Comparison of reverse engineering methods using an in silico network. Annals of the New York Academy of Sciences, 2007; 1115:73-89.
A. Jarrah and R. Laubenbacher. Discrete Models of Biochemical Networks: The Toric Variety of Nested Canalyzing Functions, Proc. of the Second Intl.Conf. on Algebraic Biology, 2007; LNCS 4545, pp. 15-22.
A. Jarrah, B. Raposa and R. Laubenbacher. Nested Canalyzing, Unate Cascade, and Polynomial Functions. Physica D: Nonlinear, 2007; Vol. 233 (2), 167-174.
B. Stigler, A. Jarrah, M. Stillman, and R. Laubenbacher R. Reverse-Engineering of Dynamic Networks, Annals of the New York Academy of Sciences. 2007; Vol. 1115, 168-177.
K.Duca, M.Shapiro, E.Delgado-Eckert, V. Hadinoto, A. Jarrah, R. Laubenbacher & D.A. Thorley-Lawson. A Virtual Look at Epstein–Barr Virus Infection: Biological Interpretations. PLoS Pathog 2007; 3(10): 1388-400.
F. Castiglione, K.A. Duca , A.S. Jarrah, R. Laubenbacher, D. Hochberg, D.A. Thorley-Lawson, Simulating Epstein-Barr virus infection with C-ImmSim, Bioinformatics 2007; 23 (11): 1371-1377.
A. Jarrah, R. Laubenbacher, B. Stigler, and M. Stillman, Reverse-engineering polynomial dynamical systems, Adv. In Appl. Math. 2007; 39:477–489.
V. Choi, Y. Huang, V. Lam, D. Potter, R. Laubenbacher, and K. Duca, Using formal concept analysis for microarray data comparison, 5th Asia-Pacific Biocomputing Conference, 2006.
O. Colon-Reyes, A. Jarrah, R. Laubenbacher, and B. Sturmfels, Fixed points of monomial dynamical systems over finite fields, Complex Systems 2006 16:333-342.
R. Laubenbacher, B. Pareigis, Update schedules of sequential dynamical systems, Discrete Applied Mathematics 2006; 154:980-994.
L. Garcia, A. S. Jarrah, and R. Laubenbacher, Sequential dynamical systems over words, Applied Math and Comp. 2006; 174:500-510.
E. Babson, H. Barcelo, M. de Longueville, and R. Laubenbacher, Homotopy theory of graphs, J. Alg. Comb. 2006; 24:31-44.
O. Colon-Reyes, R. Laubenbacher, B. Pareigis, Boolean Monomial Dynamical Systems, Annals of Combinatorics 2004; 8: 425-439.
A. Jarrah, H. Vastani, K. Duca, and R. Laubenbacher, An optimal control problem for in vitro virus competition, Proc. Of the 43rd IEEE Conference on Decision and Control, Bahamas, Dec. 2004.
A. Jarrah, R. Laubenbacher, Generic Cohen-Macaulay monomial ideals. Ann. Comb. 2004; 8: 45-61.
R. Laubenbacher and B. Stigler, A computational algebra approach to the reverse-engineering of gene regulatory networks, J. Theor. Biol. 2004; 229:523-537.
N. F. Polys, D. A. Bowman, C. North, R. Laubenbacher, and K. Duca, PathSim Visualizer: an information rich virtual environment framework for systems biology, Proc. SIGGRAPH Web3D Session, Los Angeles, 2004.
A. Jarrah, R. Laubenbacher, and V. Romanovski, The Sibirsky component of the center variety of polynomial differential systems, J. Symbolic Comput. 2003; 35: 577-589.
R. Laubenbacher, A computational algebra approach to reverse-engineering of biological systems, Proceedings of the Intl. Symposium on Symbolic and Algebraic Computation, Assoc. Comp. Mach., 2003.
R. Laubenbacher and B. Pareigis, Decomposition and simulation of sequential dynamical systems, Advances in Applied Math 2003, 30: 655-678.
G. McGrath, R. Laubenbacher, and D. Pengelley, Lagrange and the solution of numerical equations, Historia Mathematica 2001; 28: 220-231.
E. Aguirre, A. Jarrah, R. Laubenbacher, A. Ortiz-Navarro, and R. Torrez, Generic ideals and the Moreno-Socias conjecture, Proceedings of the 2001 International Symposium on Symbolic and Algebraic Computation, ACM, New York, 2001.
H. Barcelo, X. Kramer, R. Laubenbacher, and C. Weaver, Foundations of a connectivity theory for simplicial complexes, Advances in Applied Math 2001; 26: 97-128.

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Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992), an oft-cited federal appeals court decision, highlights the contours of the Supreme Court’s major trilogy of student free expression cases: Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986), and Hazelwood School District v. Kuhlmeier (1988).
The case began in February 1990, when public school teachers in McMinnville, Oregon, began a lawful strike.
When school officials prevented the two students from wearing the buttons, the students filed a federal lawsuit, claiming a violation of their First Amendment rights.
School officials asserted a legal right to force the students to remove the buttons because they were offensive and disruptive within the meaning of the Supreme Court’s decision in Fraser establishing the principle that public school officials can punish students for vulgar and lewd speech (in the case of Fraser, at a school assembly). A federal district court agreed with the school officials and dismissed the lawsuit.
On appeal, the Ninth Circuit Court of Appeals reversed and reinstated the students’ lawsuit.
The court reasoned that Hazelwood did not govern Chandler’s case because the buttons were not school-sponsored speech. Fraser did not govern the case because the “scab” buttons and the word scab were not vulgar, lewd, or plainly offensive within the meaning of Fraser.
The Ninth Circuit then concluded that the district court should have evaluated the students’ case under Tinker — which involved the political expression of anti-war black armbands — and determined whether the buttons were substantially disruptive of school activities.
Many other lower courts have cited Chandler for its explanation of Supreme Court student speech jurisprudence.
The Ninth Circuit relied on its Chandler precedent to rule in Frederick v. Morse (2006) that the Tinker standard controlled the analysis in whether a student could be punished for displaying a “Bong Hits 4 Jesus” banner across from his school. Although the Supreme Court overruled that decision in Morse v. Frederick (2007), Chandler remains an important lower court, student speech precedent.

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Before SHEDD, DAVIS, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the opinion, in which Judge Shedd and Judge Wynn joined.
Sean Siebert, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Neil H.
events that followed it, and there was no objection to that testimony.
and registration, and explained the reason for the stop.
"especially" popular "with people involved with drugs"
TracFone on [them]." J.A. 43.
from the passengers to see if the occupants will give conflicting stories. J.A. 45.
Vaughan about the purpose of his travels, or whether Vaughan volunteered that information.
Homiak went back to the rental vehicle to speak with Scott.
a way that appeared to Homiak to be "a stalling technique."
nine minutes after he initiated the traffic stop.
back not on file." J.A. 46.
sweep allowed Homiak to continue the traffic stop without prolonging it.
"a couple minutes." J.A. 51.
Homiak was in possession of Vaughans identifying information and the vehicle rental agreement.
Vaughan that the troopers were going to search the vehicle.
Vaughan continued to display "very high levels of nervousness, continued with the shaking and the heavy breathing,"
handgun played in the prosecution of this case.
A search of the vehicle revealed a handgun in the center console and 830.6 grams of cocaine.
beyond the necessary time to issue a traffic summons."
of criminal activity to justify a brief extension of the stop.
construe the evidence in the light most favorable to the government." United States v. Mubdi, 691 F.3d 334, 339 (4th Cir.
2012) (citations and internal quotation marks omitted).
against unreasonable searches and seizures." U.S. Const.
persons within the meaning of this provision." Whren v.
police conduct in routine traffic stops." United States v.
United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992)).
the officers action was "justified at its inception,"
the officers suspicion in a short period of time." Id.
consent or a reasonable suspicion that illegal activity is afoot." Id.
check, and issuing a ticket." United States v.
officer may also, "in the interest of personal safety,"
prolong the seizure. United States v. SorianoJarquin, 492 F.3d 495, 50001 (4th Cir. 2007).
take other actions that do not constitute "searches"
the duration of the stop." Johnson, [555 U.S. at 333].
stopped car to exit his vehicle." Maryland v. Wilson, 519 U.S.
whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing." United States v.
Arvizu, 534 U.S. 266, 273 (2002) (citation omitted).
his suspicions through the canine sweep of the vehicle.
the stop would have become such an investigative detention.
Scotts explanations of their travels.
First, Scotts behavior was nervous and evasive.
observe on a daily basis what transpires on the street,"
Branch, 537 F.3d at 336-37 (citation omitted).
"[m]ost people when they are pulled over by the police are nervous."
States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011).
the presence of the phones constitutes a valid factor in a reasonable suspicion analysis.
suspicion is weak, but the changing story remains a valid factor contributing to reasonable suspicion.
stayed and the real purpose of their travel." 628 F.3d at 129.
an explanation for his travels that conflicted with Vaughans.
denial of Vaughans motion to suppress.
CB Domz Ando Duyogan Jr.

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We use it to be able to track the behaviour of the visitors to our website when they have been redirected to the website of the seller after they clicked a Facebook advertisement. This enables us to analyse the efficiency of the Facebook advertisements for statistical and marketing research purposes and to optimise future advertising measures.
The collected data is anonymous for us as the operator of this website; we are not able to draw any conclusions as to the identity of the users. The data is, however, stored and processed by Facebook, so that a connection to the respective user profile is possible and Facebook is able to use the data for their own advertising purposes, in accordance with Facebook's guideline concerning the use of data. This enables Facebook to place advertisements on the pages of Facebook as well as outside of Facebook. We, as the operator of this website, have no influence on this use of the data.
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Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section.
(2) In case any such cause of action arises during the fifth or sixth year after substantial completion of the improvement to real property, said action shall be brought within two years after the date upon which said cause of action arises.
C.R.S. § 13-80-104 (emphasis added).
As the battle raged on at the trial court level, subcontractors and design professionals argued that their work should be deemed “substantially complete” when they finished their discrete scope of work within a project. Developers and general contractors, seeking to maintain third-party claims against the subcontractors and design professionals, typically argued either that the subcontractors’ and design professionals’ work should be deemed “substantially complete” upon the issuance of the final certificate of occupancy on the project, or upon the issuance of the final certificate of occupancy for the last building within a project on which the subcontractor or design professional worked. Trial court judges and arbitrators have been split on this issue, with perhaps a slight majority favoring one or the other approaches advocated by developers and general contractors, that the subcontractors’ and design professionals’ work is “substantially complete” upon the issuance of the last certificate of occupancy in a project (the minority view) or upon the issuance of the last certificate of occupancy for the last building within a project on which the subcontractor of design professional worked (the majority view).
When the Court of Appeals analyzed this issue in 2012, in Shaw Construction, LLC v. United Builder Services, 296 P.3d 145 (Colo. App. 2012), it held that: “an improvement may be a discrete component of an entire project, such as the last of multiple residential buildings. Therefore, we need not resolve subcontractors’ argument that an improvement should be determined even more narrowly on a trade-by-trade basis.” Id. at 154. This case did not fully resolve the issue and the battle raged on at the trial court level, with more than a few judges and arbiters commenting in their orders on the issue that the Shaw decision was not particularly helpful in explaining the applicable law.
Our prior decisions have recognized that, depending upon the circumstances, “substantial completion” of a project can occur by the time mechanics’ liens could be filed “after the completion of the building, structure, or other improvement,” or, in the case of subcontractors working on the last building in a condominium complex, when a certificate of occupancy was issued.
But as the division in Shaw pointed out, CDARA does not define “substantial completion.” In 1986, an amendment removed the prior definition, “the degree of completion of an improvement to real property at which the owner can conveniently utilize the improvement for the purpose it was intended.” The legislative history does not explain the reason for this deletion.
In settling this dispute, at least for the time being, the Court of Appeals ruled that “a subcontractor has substantially completed its role in the improvement at issue when it finishes working on the improvement.” Id. at *5.
The obvious impact of this ruling will be that if substantial completion of a subcontractor’s or design professional’s work is to be determined under Colorado case law, the claims against the subcontractor or design professional will become stale before the owner’s claims against the developer or general contractor. For this reason, there will be a gap in the risk management program, such that developers and general contractors will be left holding the bag with respect to liability to the owner.
In order to combat the risk of this occurrence, it would behoove developers and general contractors to include clauses in their subcontract agreements contractually defining “substantial completion” in such a way as to make it contemporaneous with the substantial completion of the developer’s or general contractor’s work on the project. By doing so, developers and general contractors can prevent their claims against subcontractors and design professionals from becoming stale before an owner’s claims against them become stale.
To learn more about the Sierra Pacific case or to discuss updating your subcontract agreement to define substantial completion in such a way as to avoid the pitfall of the Sierra Pacific case, you can reach Dave McLain by telephone at (303) 987-9813 or by e-mail at mclain@hhmrlaw.com.
David M. McLain is a founding Member of Higgins, Hopkins, McLain & Roswell, LLC and is proud to have received the CLM designation as a Certified Litigation Management Professional. When not representing Colorado’s construction professionals in construction defect litigation, Mr. McLain serves as a member of the Colorado Association of Home Builders’ Board of Directors, Executive Committee, and Government Affairs Committee, serving as the chairman of its Construction Defect Task Force. In 2015, Law Week Colorado named Mr. McLain as the Barrister’s Best Construction Defects Lawyer for Defendants.
Higgins, Hopkins, McLain & Roswell is looking for the next great associate attorney to add to our growing litigation team.
Higgins, Hopkins, McLain & Roswell, LLC is looking to add a new associate to our construction litigation and general casualty defense practice. Our ideal candidate is one with three to five years of experience in the litigation of construction defect, personal injury, and/or general casualty claims. We have a lot of trials and arbitrations on the calendar for the foreseeable future and we don’t expect to slow down any time soon, so we need an associate to participate in all facets of a busy litigation practice.
Instead of assigning new associates to the same, repetitive task in each case, we typically assign a new associate to a new file and mentor him or her on all aspects of that case as it proceeds through the initial investigation and pleading stages, written and testimonial discovery, motions practice and, eventually, trial or arbitration. To be successful a candidate, you must be an optimist, well spoken, have exceptional research and writing skills, and be able to think on your feet. Given that most of our files are document-intensive, you must also be very organized and detail-oriented.
To apply for the position, please send a cover letter, resume, and writing sample to our office administrator, Ms. Lauren Parks, Higgins, Hopkins, McLain & Roswell, LLC, 100 Garfield Street, Suite 300, Denver, CO 80206, or by e-mail at parks@hhmrlaw.com.
Higgins, Hopkins, McLain & Roswell (“HHMR”) exists to embody and exemplify the principles of service and stewardship. In everything we do, we focus on serving our clients selflessly and to the best of our ability. In doing so, we always have in the forefront of our minds our obligation to act as the stewards of our clients’ trust, confidences, and resources.
HHMR is highly regarded for its expertise in construction law and the litigation of construction related claims, including the defense of large and complex construction defect matters. In addition to their construction law background, HHMR’s attorneys are well versed and experienced in tort, contract, property, and general casualty litigation ranging from products liability to personal injury and premises liability claims.
I am happy to have been asked to serve as an instructor at this year's CLM Claims College – School of Construction, to be held at the Marriott Baltimore Waterfront in Baltimore, Maryland on Wednesday, September 7, 2016 through Saturday, September 10, 2016.
Construction claims present myriad complexities in claim handling. Construction defect lawsuits are often multi-party cases with cross claims and third-party claims between and among the numerous defendants. Insurance coverage is intertwined and complex due to the interplay of primary, excess, wrap, and additional insurers for the numerous defendants. All this is further complicated by statutes and regulations, inconsistent case law and procedural peculiarities throughout the United States. The economic stakes are high as the damages claims can be in the multi-millions.
Competent construction claims handling requires an understanding of the distinct legal and practical issues between commercial and residential claims. This is no place for the average adjuster and certainly no place for the adjuster who has not been properly trained.
The School of Construction will provide adjusters with the knowledge, tools, and understanding required to navigate these complex claims. Professionals seeking to expand their knowledge of construction risk concepts and seasoned professionals looking to move into construction claims are encouraged to attend.
Upon satisfactory completion of all three levels, graduates will receive the Certified Claims Professional (CCP) in Construction designation.
The Claims and Litigation Management (CLM) Alliance is the only national organization created to meet the needs of professionals in the claims and litigation management industries. Founded in 2007, the CLM currently has more than 30,000 Members and Fellows — a number that grows by hundreds each month.
As an instructor, I have the ability to offer three scholarships (registration fee only) to industry professionals (insurance - risk, adjusters, claims, etc. and corporate) to attend Claims College. In order to attend, you need not to be a current CLM Fellow – however you will need to register (at no cost) to receive the scholarship. If you are interested in attending, please let me know by August 1st so that I can put you in touch with the proper person at the CLM to register. I look forward to the event and hope that there are folks out there interested in taking advantage of the scholarships.
I am a founding member of Higgins, Hopkins, McLain & Roswell, LLC, a firm which specializes in construction law and construction litigation throughout Colorado. I completed the Claims and Litigation Management Alliance Litigation Management Institute, earning the designation from that organization as a Certified Litigation Management Professional and have a general civil litigation practice with an emphasis on the defense of complex construction lawsuits on behalf of developers and general contractors. As a result of the experience gained by defending some of Colorado’s largest construction defect lawsuits, developers, general contractors, and subcontractors seek me out to consult on risk avoidance and risk management strategies. In 2015, Law Week Colorado named me as the Barrister’s Best Construction Defects Lawyer for Defendants. I am an AV® Preeminent™ Peer Review Rated attorney by Martindale-Hubbell and am a regular speaker at local, regional, and national seminars regarding construction defect litigation.
We have previously reported on the Vallagio v. Metropolitan Homes case, in which the Colorado Court of Appeals upheld a provision in an association's declaration of covenants, conditions, and restrictions, which required declarant consent before an arbitration provision could be amended out of the document. To read the past articles on the case, please review Vallagio v. Metropolitan Homes: The Colorado Court of Appeals' Decision Protecting a Declarant’s Right to Arbitration in Construction Defect Cases and The Vallagio HOA Appeals the Decision from the Colorado Court of Appeals.
Whether the court of appeals erred by holding as a matter of first impression that Colorado’s Common Interest Ownership Act (“CCIOA”) permits a developer-declarant to reserve the power to veto unit owner votes to amend common interest community declarations.
Whether the court of appeals erred in holding that Colorado’s Consumer Protection Act (“CCPA”) claims are subject to pre-dispute mandatory arbitration provisions where this Court previously held, “We leave open the question of whether CCPA claims might be deemed non-arbitrable,” Ingold v. AIMCO/Bluffs, LLC Apartments, 159 P.3d 116, 122 n.5 (Colo. 2007).
The Supreme Court denied the petition for writ of certiorari on all other issues.
For more information about the Vallagio case or construction law in Colorado, you can reach David M. McLain by e-mail at mclain@hhmrlaw.com or by telephone at (303) 987-9870.
For more information about this event or to register to attend, please visit http://junelnl.eventbrite.com.
The Homeownership Opportunity Alliance’s diverse coalition includes more than 50 organizations from across Colorado. The coalition also includes individual mayors and 14 different communities that have passed local ordinances to address attainable condominium development.
“Affordable and attainable housing has been a top priority of the 41-member Metro Mayors Caucus for decades,” said Lakewood Mayor Adam Paul. “Throughout this process, we have partnered with affordable housing advocates and the business community because we know that providing a spectrum of housing, from millennials to seniors, is so critical to creating and maintaining inclusive communities."
The coalition also has featured our state’s leading affordable-housing advocates, including Housing Colorado, Habitat for Humanity and the Urban Land Conservancy.
“Housing Colorado’s interest in this issue has always been—and will remain—seeking reform that will result in more affordable, entry-level homeownership opportunities for moderate income Coloradans,” said Sara Reynolds, executive director of Housing Colorado. “We are profoundly disappointed that once again, the opportunity for meaningful reform on construction-defects litigation has failed due to long-standing and entrenched political alliances."
“The construction defects issue is a complex one, but the tools were available to provide a common-sense solution that would address many of the flaws in our current system. The opportunity has been lost. With median home prices leaping 12 percent in just one year alone, homeownership will continue to get farther and farther out of reach for hundreds of thousands of Coloradans,” Reynolds concluded.
In Colorado, the “complaint rule” requires insurance carriers to provide a defense to its insured when the allegations contained in the complaint allege any set of facts that may fall within an insurance policy. Some insurers have pushed back on this rule arguing that it may cause an insurer to exercise its duty to defend although the underlying facts ultimately do not fall within the policy.
KF 103 v. American Family arose out of an underlying easement dispute. KF 103 purchased a piece of property from the Infinity Group and, as a condition of the purchasing agreement, KF 103 required the Infinity Group to make improvements to an intersection near the property. Several neighbors complained, contending that the improvements interfered with their easements adjacent to the property.
KF 103 brought a quiet title action and, on October 13, 2010, the state district court ruled that the improvement was trespass and intentional damage to the easement, ordering KF 103 to restore the easement. In a second hearing to determine remedies, the El Paso County Court held KF 103 liable for trespass, conspiracy to trespass, and negligence. KF 103 requested that American Family reimburse it for its attorney’s fees and defense costs, which it refused. KF 103 then brought suit against American Family alleging breach of contract and bad faith for its refusal to defend. The case was removed to federal district court where American Family was found to have no duty to defend KF 103 because the claims did not fall within the coverage. KF 103 appealed.
Specific to KF 103, its general liability insurance policy with American Family covered damages that KF 103 “becomes legally obligated to pay” because of “property damage” resulting from an “occurrence.” Additionally, the policy excluded damages “expected or intended from the standpoint of the insured.” To determine whether American Family had a duty, the Tenth Circuit analyzed only “the factual allegations in the complaint, and not the legal claims …” Gerrity Co. v. CIGNA Prop. & Cas. Ins. Co., 850 P.2d 606, 607 (Colo. App. 1993).
American Family argued that the claims, like trespass, brought against KF 103 are intentional torts and therefore, excluded from the policy. However, the Tenth Circuit found that volitional acts do not always have “expected or intended” damages. Trespass only requires the intent to do the act that itself constitutes, or inevitably causes—the intrusion; intent to violate property rights is not required. Burt v. Beautiful Savior Lutheran Church, 809 P.2d 1064, 1067 (Colo. App. 1990). Thus, KF 103 could be liable for trespass because it intended to alter the property but still covered by the policy because it did not intend to harm the neighbors’ easement rights.
Furthermore, the Tenth Circuit found that where the allegations asserted KF 103 was deliberate in its actions, they also asserted KF 103 was reckless as an alternative. Recklessness is not necessarily conduct causing damage that is “expected or intended” from the standpoint of the insured. Because there is some doubt as to whether the damage to the easement rights was “expected or intended,” the Tenth Circuit held that the allegations are arguably covered by the policy as an occurrence. It stated that terms of an insurance policy should be construed broadly in favor of a duty to defend. The district court decision was reversed and remanded finding that American Family had a duty to defend.
The complaint rule remains the general rule. Developments in KF 103 v. American Family indicate that some Colorado courts view intentional claims as exclusions to insurance policies. However, the Tenth Circuit challenges such courts to place the burden on the insurer regarding the duty to defend, then conduct a more in-depth analysis of exclusions of intentional claims.
For more information regarding the KF 103 decision or Colorado construction litigation, you can reach Adria Robinson by e-mail at robinson@hhmrlaw.com or by telephone at (303) 987-9814.
Despite the unique facts and circumstances relating to the questionable dealings by the developer, Mr. Zachary Davidson, the decision now stands to turn the Colorado real estate development business on its head. Specifically, a group of condominium owners, who did not live in the Village, learned that their properties had been included in a special district, the Marin Metropolitan District (“District”), to finance the Village. Prior to their purchase, Mr. Davidson failed to disclose to the condominium owners that they would be responsible for financing the Village’s development through previously issued bonds by the District to be paid for through their property taxes. Understandably frustrated by this discovery the condominium owners, through the Landmark Towers Association, Inc. (“Landmark HOA”), investigated the origin of these unforeseen property taxes.
The owners discovered that, prior to the construction of their condominium units; Mr. Davidson bought land near their units and created the District under Title 32, Article 1 of the Colorado Revised Statutes including their future units in the District. Mr. Davidson included their condominiums specifically to provide a sufficient tax base for the Village construction. Once the District was created, by means of misrepresentations to the city and fraud on the district court, Mr. Davidson and other organizers (his associates) then submitted a service plan for the District which provided that the District could issue up to $35,000,000.00 in general obligation bonds bearing an interest rate of as much as 12% which would be paid over a thirty-year period. The service plan also provided that the District would give notice of the special district to individuals under contract to the condominium units before conveyance of title. It failed to provide such notice. Mr. Davidson and the other organizers then filed a petition for organization with the district court which then instructed that an organizational election had to be held for the District’s service plan to be ratified.
So that Mr. Davidson could in effect ratify his own service plan, he and his associates entered into sham transactions to become “eligible electors” under C.R.S. § 32-1-103(5)(a). Specifically, they executed contracts to purchase 1/20th interests in ten-by-ten parcels in the District. They did so as a thinly veiled attempt to comply with the Tax Payer Bill of Rights (“TABOR”). Not surprisingly, the “tax bill,” Mr. Davidson’s concocted service plan, passed with voter approval. Skipping over a litany of fraud, the condominium unit owners then purchased their units without notice of their impending tax debt, discovered the tax debt, and then brought this case an attempt to recover taxes paid to the District. The Court ruled the organizers’ contracts did not make them eligible electors under TABOR. Thus, the organizers illegally participated in the election and their votes were void.
Unfortunately, the Colorado Court of Appeals in issuing its ruling appears to have used too broad of a brush to wipe away Mr. Davidson’s pervasive fraud and invalidated a common practice among real estate developers. In Colorado, it is common among real estate developers, when dealing with undeveloped parcels, to make themselves eligible electors through similar small transactions in the subject development. The reason for this being that it is an undeveloped lot and there is no one to vote. What is not common is concealing the impending tax liability from prospective purchasers and sticking them with the bill for pay for developments which do not benefit the district.
To fully appreciate the ramifications of the Landmark case it is important to consider the following: 1) there has been over $9,000,000,000 in local government debt issued in Colorado since 2001; 2) a significant portion of that debt is held by local investors; and 3) a perception that the debt is at risk due to potential legal claims could negatively impact Colorado’s credit rating. Further, in direct response to the Landmark case, seven transactions, worth in excess of $73,000,000 have been postponed due the financial uncertainty the case has created.
In sum, immediate legislative action is required to resolve the well intentioned, but perhaps financially devastating effects of Landmark ruling. Should nothing be done, Coloradoans can anticipate a significant reduction in housing development, construction layoffs, and small investors losing collectively large sums of money.
For more information regarding the Landmark case, you can reach Jean Meyer by telephone at (303) 987-9815 or by e-mail at meyer@hhmrlaw.com.


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PASSENGER IN BUS ACCIDENT LOSES SUMMARY JUDGMENT BECAUSE OF "EMERGENCY DOCTRINE"
Order, Supreme Court, New York County (George J. Silver, J.), entered October 11, 2011, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint based on the grounds of lack of negligence and failure to establish a serious injury under the permanent loss, permanent consequential and significant limitation categories of Insurance Law Sec. 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.
Defendants made a prima facie showing that defendant bus driver acted reasonably in an emergency situation not of his own making and thus was not negligent (see Caristo v. Sanzone, 96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36 ; Rahimi v. Manhattan & Bronx Surface Tr. Operating Auth., 43 A.D.3d 802, 803, 843 N.Y.S.2d 557 ). Indeed, the bus driver testified that the bus was crossing an intersection when a car, traveling in the opposite direction, crossed over the double yellow lines and cut in front of the bus in order to make a left turn, forcing the bus driver to apply the brakes. Plaintiff's testimony that the bus driver was "speeding" was insufficient to raise a triable issue of fact (see Alston v. American Tr., Inc., 82 A.D.3d 546, 547, 919 N.Y.S.2d 15 ).
Defendants also made a prima facie showing that plaintiff did not suffer a serious injury within the meaning of Insurance Law Sec. 5102(d) by submitting expert medical reports finding normal ranges of motion in the claimed affected body parts and no objective evidence that any limitations resulted from the accident (see Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590, 920 N.Y.S.2d 24 ). The finding of a minor limitation in plaintiff's lumbar spine by one of defendants' physicians was "insignificant for purposes of Insurance Law Sec. 5102(d)" (Rosa-Diaz v. Maria Auto Corp., 79 A.D.3d 463, 464, 913 N.Y.S.2d 51 ). In opposition, plaintiff failed to raise a triable issue of fact, since she did not submit any objective evidence of limitations based on a recent examination of any of the subject body parts (see Shu Chi Lam v. Wang Dong, 84 A.D.3d 515, 516, 922 N.Y.S.2d 381 ; Townes v. Harlem Group, Inc., 82 A.D.3d 583, 584, 920 N.Y.S.2d 21  ). The most current medical evidence upon which plaintiff relied was the affirmed report of one of her treating physicians, outlining treatment she received in 2007, nearly three years before defendants' experts' findings of full range of motion (see Zambrana v. Timothy, 95 A.D.3d 422, 943 N.Y.S.2d 92 ).

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Mention the Health Insurance Portability and Accountability Act of 1996,1 otherwise known as HIPAA, to someone in law enforcement or a county or district attorney’s office and you’ll likely receive one of a few responses: “[expletive deleted],” “I don’t have to worry about HIPAA because it doesn’t apply to me,” or “I can’t ever get the medical records I need without a fight!” It’s often accompanied by changes in a person’s physical appearance: redness of the face and neck, clenched fists, increased and rapid heart rate, and an unwavering glare. You can’t help but wonder which of these responses is correct.
It’s been my experience that it’s easier to learn something when you see how it applies in the real world, so this article presents a fairly straightforward hypothetical about health information and then analyzes the issues it presents under HIPAA’s Privacy Rule and several relevant Texas confidentiality statutes. It concludes with a “final answer” for each issue as to whether and how health information can be disclosed, plus what the requestor’s office must do to comply with HIPAA and with Texas law.
An assistant district attorney (ADA) is preparing his burglary case against a defendant. He issues a subpoena to the county hospital requesting the defendant’s medical records; she had cut her arm on the glass door of a house she had broken into (allegedly to burgle) as she tried to flee from the homeowner. The homeowner heard someone breaking into her house and immediately called the police. The homeowner then chased the defendant into the backyard, tackled her to the ground, and held her until police arrived. The defendant was taken to the county hospital for treatment for her injuries and was then taken to the county jail.
The ADA also sends a subpoena for the homeowner’s medical records to the hospital where she was treated for cuts and bruises she sustained during her fight with the defendant.
• May the ADA get the defendant’s medical records from the county hospital?
• May the ADA get the homeowner’s medical records from the other hospital?
• If the ADA obtains copies of the medical records he’s requested, must he protect the confidentiality of those records or take any special precautions with respect to handling or disposing of them?
The defendant’s medical records. When the defendant was taken to the county hospital, she was treated like any member of the general public who presents for treatment: She was registered as a patient in the emergency room and received treatment for her injuries, and that treatment was recorded in detail in her medical record. She was then discharged back to the police for transport to the county jail.
When the county hospital receives a request for the defendant’s health information, the county hospital has an obligation (as a covered entity under both HIPAA and Texas law) to protect it. HIPAA applies only to “covered entities”: 1) health plans, 2) healthcare clearinghouses, and 3) healthcare providers that transmit health information electronically in connection with HIPAA-defined transactions.2 Under Texas Health & Safety Code Chapter 181, aka “Texas’s HIPAA,” the term “covered entity” is broader, covering not just those individuals and entities, but also any individual or entity that comes into possession of health information. Therefore, the county hospital must determine 1) whether HIPAA’s Privacy Rule or Texas law will control the release of this individual’s records in this situation, and 2) whether that law requires or permits the county hospital to produce the requested medical records to the ADA in accordance with a subpoena, or whether the county hospital must obtain the defendant’s permission first.
In reality, however, while the county hospital is permitted to release the requested medical records solely because the ADA’s subpoena is valid, it is important to note that 1) such a disclosure is not mandated, it’s only allowed;13 and 2) occasionally, Texas hospitals will also require the ADA to provide a “HIPAA letter” or a “HIPAA affidavit” in addition to a subpoena before they will release the requested medical records. The HIPAA letter or affidavit sets forth the conditions that must be met under HIPAA’s Privacy Rule’s law enforcement purposes exception before the covered entity can release an individual’s PHI without first obtaining the individual’s authorization to law enforcement.14 The subpoena must specify that the information being requested is “relevant and material to a legitimate law enforcement inquiry,” that the subpoena is limited in scope and that “[d]e-identified information could not reasonably be used.” Covered entities that require HIPAA letters or affidavits in addition to valid subpoenas are in essence ensuring that their disclosure could be found proper under two exceptions to HIPAA’s Privacy Rule.
The homeowner’s medical records. While the ADA can obtain the defendant’s medical records without her written authorization under both HIPAA’s Privacy Rule and Texas law, the hospital at which the homeowner was treated will not be able to provide her medical records to the ADA until the homeowner authorizes their disclosure. In the ADA’s case against the defendant, the homeowner is a victim, not a party, so the exception allowed under Texas Health & Safety Code §241.153(20) does not apply to her.
6) the individual’s signature and date signed or, if signed by someone other than the individual, the signature of that individual, the date she signed, and a description of the authority of that individual to act on behalf of the individual.
Many covered entities prefer (or require) the requestor to use the covered entity’s HIPAA Authorization. In some cases, the reason for this requirement is because the employees responsible for confirming an authorization is “valid,” as required by HIPAA’s Privacy Rule, are unfamiliar with forms other than those on which they have received training.
3) permitted uses and disclosures.
Texas’s HIPAA’s “covered entity” is defined as any person who handles PHI, including a business associate, healthcare payer, governmental unit, information or computer management entity, school, health researcher, healthcare facility, clinic, healthcare provider, or person who maintains an Internet site.19 Texas’s definition is far broader than HIPAA’s.
Unlike HIPAA’s Privacy Rule, which describes in some detail what a covered entity can do with PHI and how the covered entity must do it, the primary focus of Texas’s HIPAA is on what the covered entity is prohibited from doing with PHI.25 Under Texas’s HIPAA, the prosecutor’s office’s sole affirmative obligation to the individuals whose PHI is obtained by and stored in the office is to notify them that their PHI is subject to electronic disclosure.26 Nonetheless, the fact that the prosecutor office is required to conduct training that addresses both state and federal law could be interpreted to mean that Texas covered entities are expected to protect the PHI in their possession. The Texas Attorney General is responsible for enforcing Texas Health & Safety Code Chapter 181 and has the power to seek injunctive relief and impose civil penalties against a Texas covered entity for a violation of the law. In addition, §181.202 provides that “a covered entity that is licensed by an agency of this state is subject to investigation and disciplinary proceedings, including probation or suspension by the licensing agency.” While the likely intent of the Texas Legislature was that §181.202 would apply only to covered entities that were licensed healthcare individuals and entities, the section could also be interpreted to include attorneys who use and/or access PHI. While state attorneys general can enforce HIPAA, it is not common—only four have ever done it, and Texas’s AG has never taken any such action.
Evaluating and adopting the relevant administrative requirements in HIPAA’s Privacy Rule27 would certainly help the prosecutor’s office demonstrate it had taken “reasonable steps” to protect the PHI in its possession.
Many prosecutors reading this article may wonder what, if anything, they must do to protect the health information they obtain given their discovery obligations under the Michael Morton Act.28 The good news is, provided that the ADA has properly obtained that information in accordance with HIPAA’s Privacy Rule and with Texas law, and provided that the prosecutor’s office has implemented “reasonable steps” to protect the health information in its possession, health information need not be treated any differently from any other documents, papers, or written or recorded statements related to the criminal case during discovery.
The ADA is not a covered entity under HIPAA’s Privacy Rule, so the prosecutor is free to disclose health information without regard to HIPAA’s Privacy Rule. The ADA is a covered entity only under Texas’s HIPAA, and Texas’s HIPAA does not prohibit the ADA from re-disclosing health information, only from selling it, using the health information for marketing purposes, or re-identifying the individual from the health information.29 Because disclosing the health information in accordance with the Michael Morton Act is not one of the prohibited disclosures under Texas’s HIPAA, prosecutors should not be concerned about potential enforcement activities, either under HIPAA or under Texas’s HIPAA, with respect to their providing health information to the defense during discovery in accordance with the Michael Morton Act.
HIPAA’s Privacy Rule, and to an extent Texas law, requires covered entities to protect the health information in their possession, and these laws subject those covered entities to significant civil and criminal penalties30 if they fail. Covered entities rightly fear being held liable for those penalties, so they take extra care to ensure that every disclosure is proper, which occasionally makes even the simplest release take longer than it should.
Law enforcement and prosecutors should recognize they’re more likely to receive the health information they request when they 1) convey their identity and the fact that they have the authority to obtain the information, 2) describe their reason for needing the information (i.e., describe the purpose of the disclosure), 3) ensure that the facts and circumstances of their request meet the criteria of an authorized disclosure, and 4) make their request in a professional and respectful manner. And when law enforcement and prosecutors come into possession of health information, they must recognize that Texas law imposes an obligation on their employers to properly train employees and take “reasonable steps” to protect and safeguard that information.
Please note: The views and opinions expressed in this paper are those of the author and do not necessarily reflect the official policy or position of Harris County.
1 Pub. L. No. 104-191, 110 Stat. 1396 (1996).
2 See 42 U.S.C. §1320d-1(a). See also 45 C.F.R. §160.103.
3 See 45 C.F.R. §160.200 et seq.
4 Find it at https://www.texasattorneygeneral.gov/files/agency/hipaa.pdf.
6 45 C.F.R. §164.512(f). Disclosures that are allowed for law enforcement purposes are to be made to a law enforcement official 1) pursuant to laws that require reporting of certain types of wounds or injuries; 2) pursuant to court orders, court-ordered warrants, or a subpoena or summons signed by a judicial officer; 3) provided the information disclosed is limited and will be used only to locate and/or identify a suspect, fugitive, material witness, or missing person; 4) when the individual is suspected to be a victim of a crime; 5) to advise law enforcement that a decedent might have died as a result of criminal conduct; 6) to report a good faith belief that a crime was committed on the covered entity’s premises; or 7) to report a real or suspected crime in an emergency.
10 Texas Health & Safety Code §241.153(20).
11 Texas AG Preemption Analysis, supra note 6, at 225.
12 Tex. Code Crim. Proc. Art. 24.03. Because the defendant is the individual on trial, she is a “party to the judicial proceeding” as required for the county hospital to release her records to the ADA under Texas Health & Safety Code §241.153(20).
13 Texas Health & Safety Code §241.153.
14 See 45 C.F.R. §164.512(f)(1)(ii)(C).
15 See 45 C.F.R. §164.512(f)(2).
18 Texas Health & Safety Code §181.001(b)(2)(B).
20 Texas Health & Safety Code §181.101(a).
21 See 45 CFR §164.530(b)(1); Texas Health & Safety Code §181.101(a).
22 See Daniel J. Solove, HIPAA Training Requirements, Frequently Asked Questions, Teach Privacy, available at https://teachprivacy.com/hipaa-training-requirements/ (last visited July 31, 2018).
23 This article’s author has recorded two different videos accredited for MCLE hours through the Texas Bar. One is a 45-minute video on HIPAA only; it’s available at http://www.harriscountycao.org/hipaa-training-program. The other is a 75-minute video at http://www.harriscountycao.org/hipaa-181-training; it covers both HIPAA and Texas’s HIPAA. Each one has a link to YouTube in case the video can’t be viewed through the Harris County website. There’s also a form at the bottom of each page that viewers can complete to receive MCLE hours.
24 Texas Health & Safety Code §181.101. HIPAA’s Privacy Rule requires those statements be maintained for a minimum of “six years from the date [the statement is signed].” 45 CFR §164.530(j)(2).
25 See Texas Health & Safety Code, Chapter 181, Subchapter D. A covered entity cannot 1) re-identify or attempt to re-identify an individual based on his or her PHI unless the covered entity obtains the individual’s consent or authorization; 2) use PHI for marketing purposes; or 3) sell PHI for direct remuneration. A covered entity is also prohibited from electronically disclosing an individual’s PHI without first obtaining his or her authorization unless the disclosure is for purposes of treatment, payment, or healthcare operations. Note that legal offices are not “custodians” of the records they receive for case preparation, so they are not bound by the authorization requirement. In the electronic service of medical records filed with the court for use at trial, I strongly recommend that both the State and defense counsel file a joint protective order to protect medical records from everyone but the lawyers, the parties, and the court.
26 Texas Health & Safety Code §181.154(s).
27 See 45 C.F.R. §164.530. Besides training, the most relevant administrative requirements to consider would be the Safeguards Standard (45 C.F.R. §164.530(c)(1)), Sanctions Standard (45 C.F.R. §164.530(e)(1)), and Policies and Procedures Standard (45 C.F.R. §164.530(i)(1)).
28 See Tex. Code Crim. Proc. Art. 39.14.
29 See supra, note 25.
30 A detailed description of HIPAA’s civil and criminal penalties is beyond the scope of this article. See 42 U.S.C. §1320d-5 for a description of HIPAA’s civil penalties, and see 42 U.S.C. §1320d-6 for a description of HIPAA’s criminal penalties. See also Texas Health & Safety Code, Chapter 181, Subchapter E for a description of the Texas Attorney General’s enforcement powers under Texas’ HIPAA.