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Government's Unopposed, Time Sensitive Motion for Order Directing the Release of Defendant's Medical Records — United States v. Evan…

No. 6:22-cr-00201-AGM-LHP · Doc. 153 · Docket on CourtListener

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Case 6:22-cr-00201-AGM-LHP Document 153 Filed 04/26/24 Page 1 of 7 PageID 704

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 6:22-cr-00201-WWB-LHP

EVAN EDWARDS
a/k/a Ian Heringa

GOVERNMENT’S UNOPPOSED, TIME SENSITIVE MOTION FOR ORDER
DIRECTING THE RELEASE OF DEFENDANT’S MEDICAL RECORDS

The United States of America by Roger B. Handberg, United States Attorney

for the Middle District of Florida, hereby moves the Court for entry of an order

directing (1) that the defendant, through his third party custodian, provide the identity

of his medical provider(s); and (2) that the defendant’s medical provider(s) and

its/their employees and/or agents (together, the “Medical Provider”) provide the

defendant’s medical records required by USMS, and states in support as follows:

BACKGROUND

1. Evan Edwards (the “Defendant”) has been found incompetent to stand

trial under 18 U.S.C. § 4241(b) and this Court has ordered treatment pursuant to 18

U.S.C. § 4241(d). Doc. 136.

2. The Defendant is under the care of his wife, Mary Jane Edwards (“Ms.

Edwards”), who is the third party custodian in this case. Doc. 114.

3. The BOP has set the voluntary surrender date for the Defendant as May

15, 2024 by 2:00 p.m. The designated facility is FMC Devens. As requested by the
Case 6:22-cr-00201-AGM-LHP Document 153 Filed 04/26/24 Page 2 of 7 PageID 705

Defendant, USMS is facilitating the Defendant’s transport to FMC Devens. Docs.

139, 145. However, in order to transport the Defendant, JPATS requires certain

medical information (the “Medical Information”), which includes the information

listed on Exhibit A attached hereto, no less than one week in advance of the voluntary

surrender date. Thus, the Medical Information must be provided to JPATS on or

before May 8, 2024.

4. Pursuant to this Court’s Order dated March 28, 2024 (the “March 28,

2024 Order”), the Defendant is required to “cooperate in the collection of all necessary

information by the USMS for the purposes of obtaining medical clearance to be

transported.” Doc. 145.

5. USMS has been diligently requesting the Medical Information from the

Defendant through defense counsel. To date, USMS has received no Medical

Information from the Defendant.

6. On April 17, 2023, and after significant efforts by defense counsel to

secure the requested records, defense counsel informed the undersigned that he would

provide the records as soon as he had them, and that he had made the request for the

records to Defendant’s wife (the third-party custodian in this case). According to

defense counsel, the Defendant’s wife reported that she was waiting on the information

from the Defendant’s health care providers.

7. On April 24, 2023, the undersigned spoke with defense counsel, who

requested that the undersigned and Supervisory Deputy U.S. Marshal meet with him

and Ms. Edwards the next day via Zoom to discuss the need for the Medical
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Information.

8. On April 25, 2023, the undersigned, Penelope Knox, and defense counsel

met via Zoom. Defense counsel advised at that time, however, that Ms. Edwards was

refusing to participate in the meeting. In the Government’s view, Ms. Edwards is not

complying with the March 28, 2024 Order requiring her cooperation with the

collection of medical information.

9. If the required medical records are not timely received, then USMS will

be unable to transport the Defendant for the May 15, 2024 voluntary surrender date,

and the facility will likely open the spot to another patient. This will cause

unnecessary delay in providing the Defendant with competency restoration treatment.

10. Therefore, the United States hereby requests that the Court enter an

Order (1) directing the Defendant, through his third party custodian, to submit to the

Court the name of his Medical Provider on or before April 29, 2024; and (2) directing

the Medical Provider (once identified) to provide the Medical Information to USMS

on or before May 3, 2024. This will allow USMS time to confirm that all necessary

Medical Information has been provided in advance of the May 8, 2024 JPATS

deadline, and to request additional records if needed.

11. On April 25, 2024, the undersigned conferred with defense counsel, Brian

Phillips, who has no objection to the relief sought herein.

MEMORANDUM

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)

controls when and how “covered entities” may disclose protected heath information.
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See generally 45 C.F.R. pts. 160-164. HIPAA prohibits covered entities 1 from

disclosing or using protected health information absent a specific provision of the

HIPAA regulations which permits a disclosure. 45 C.F.R. § 164.502. Generally, the

HIPAA privacy rule requires patient consent for all disclosures of protected health

information by a covered entity, unless the rule explicitly permits disclosure. Id.

One such instance where the rule permits disclosure of protected health information

without patient consent is if the disclosure is “required by law.” The rule defines

“required by law” as any “mandate contained in law that compels a covered entity to

make a disclosure of protected health information and that is enforceable in a court of

law.” 45 C.F.R. § 164.501. Included in the definition of “required by law” are court

orders. Id.

Specifically, the rule provides that “[a] covered entity may use or disclose

protected health information to the extent that such use or disclosure is required by

law and the use or disclosure complies with and is limited to the relevant requirements

of such law.” 45 C.F.R. § 164.512(a)(1). Additionally, a covered entity must meet

certain requirements for uses or disclosures required by law. 45 C.F.R. §

164.512(a)(2). Hence, even if a disclosure is otherwise required by law, it must

nevertheless meet the conditions contained in a provision of the HIPAA rule relevant

to certain situations, for example: § 164.512(e) (disclosures in judicial or administrative

proceedings; or § 164.512(f) (disclosures for law enforcement). Specifically, under §

1
Covered entities include, but are not limited to, a health plan, a healthcare clearinghouse,
and a health care provider. See 45 C.F.R. § 160.103.
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164.512(f), “[a] covered entity may disclose protected health information in the course

of any judicial or administrative proceeding” provided that such disclosure is made

“[i]n response to an order of a court or administrative tribunal” and “provided that the

covered entity discloses only the protected health information expressly authorized by

such order.” 45 C.F.R. § 164.512(f).

Here, a court order requiring the Medical Provider to release the Medical

Information in the course of this judicial proceeding would permit the Medical

Provider to disclose the Defendant’s protected health information under HIPAA

without the defendant’s consent. See, e.g., United States v. Wilson, 2020 WL 1429497,

at *3 (E.D. Mich., 2020) (“the protections afforded by HIPAA do not come into play

because an exception applies. Disclosure of information by way of a court order in a

judicial proceeding triggers application of the exception in subsection (e)(1), without a

release of information from [the defendant]”); Such release of the Defendant’s Medical

Information is needed in this case to facilitate the Defendant’s transport to FMC

Devens for competency restoration treatment.

CONCLUSION

The United States, without objection from counsel for the Defendant,

respectfully request that this Court enter an Order requiring (1) that the Defendant,

through his third party custodian, submit to the Court the name of his Medical

Provider on or before April 29, 2024; and (2) that the Medical Provider provide the

Medical Information on or before May 3, 2024. This will ensure that USMS has the

information required by JPATS to transport the Defendant by the voluntary surrender
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date of May 15, 2024.

WHEREFORE, the United States respectfully requests that this Court enter an

Order directing (1) the Defendant, through the third party custodian, Mary Jane

Edwards, to submit the name of his Medical Provider to the Court on or before April

29, 2024; and (2) the Medical Provider to provide the Medical Information to USMS

(through Penelope Knox) on or before May 3, 2024.

Respectfully submitted,

ROGER B. HANDBERG
United States Attorney

By: /s/ Kara M. Wick
Kara M. Wick
Assistant United States Attorney
Florida Bar No. 0085578
400 W. Washington Street
Suite 3100
Orlando, Florida 32801
Telephone: (407) 648-7500
Fax: (407) 648-7643
E-mail: Kara.wick@usdoj.gov

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 26, 2024, a true and correct copy of the

foregoing was filed via the CM/ECF filling system, which will send service to all

counsel of record:

A. Brian Phillips, Esq.

/s/ Kara M. Wick
Kara M. Wick
Assistant United States Attorney
Florida Bar No. 0085578
400 W. Washington Street
Suite 3100
Orlando, Florida 32801
Telephone: (407) 648-7500
Fax: (407) 648-7643
E-mail: Kara.wick@usdoj.gov

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