                                                                      FILED
                                                                 Sep 14 2016, 8:22 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
David J. Karnes                                          Gregory K. Blanford
Michael G. Foley                                         The Blanford Law Office
Dennis, Wenger & Abrell P.C.                             South Bend, Indiana
Muncie, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Meridian Health Services                                 September 14, 2016
Corporation,                                             Court of Appeals Case No.
Appellant-Intervenor,                                    71A04-1511-DR-2005
                                                         Appeal from the St. Joseph
        v.                                               Superior Court
                                                         The Honorable Jenny Pitts Manier,
Thomas Martin Bell,                                      Judge
Appellee-Respondent.                                     Trial Court Cause No.
                                                         71D05-1002-DR-94



Robb, Judge.




Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016             Page 1 of 27
                                Case Summary and Issue
[1]   Meridian Health Services Corporation (“Meridian”) appeals the trial court’s

      order finding it in contempt of court for failure to comply with a subpoena

      duces tecum and appear at a deposition and awarding attorney’s fees as a

      sanction pursuant to Indiana Trial Rules 26(C) and 37(A)(4). Concluding the

      trial court did not abuse its discretion in holding Meridian in contempt and

      ordering it to pay attorney’s fees, we affirm.



                            Facts and Procedural History
[2]   In 2011, the trial court entered a decree dissolving the marriage of Thomas Bell

      (“Father”) and Angela Bell (“Mother”). The decree incorporated the parties’

      agreement to share joint legal custody of their child, K.B., with Mother having

      primary physical custody. Father thereafter filed several motions to modify

      parenting time. Ultimately, Mother and Father agreed to an alternate parenting

      schedule, which the trial court approved on June 12, 2014. In the interim,

      Mother began taking K.B. to see a therapist at Meridian.


[3]   In March 2015, Father’s attorney contacted Meridian requesting K.B.’s therapy

      records in reference to an ongoing domestic relations matter. Meridian did not

      release K.B.’s records at that time, indicating Father would need to submit a

      signed medical release form. Prior to receiving Father’s release form, Meridian

      sought and received from K.B.’s physician a letter stating it was “medically

      necessary that the records of [K.B.’s] therapy sessions not be released to her


      Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 2 of 27
      parents.” Corrected Appellant’s Appendix at 33 (emphasis in original). The

      letter dated April 2 explained,


              Much of [K.B.]’s anxiety is related to stress within the family.
              Because [K.B.] needs to be able to openly talk with her therapist,
              she needs to be assured that her words cannot be used against her
              . . . . It is medically very important that [K.B.] continue in
              counseling and that she be confident in the safety of her
              relationship with her therapist. Any release of these records to
              [her] parent[s] could jeopardize her care and her mental and
              physical health.


      Id.


[4]   Meridian received Father’s release form on May 14. Rather than release K.B.’s

      records, Meridian responded on May 15 with a letter from its counsel noting it

      had received a letter from K.B.’s physician stating “it is not in the best interests

      of [K.B.] to have her records released to her parents.” Id. at 31. Meridian

      indicated it would therefore release the records only upon the issuance of a

      court order pursuant to the procedures set forth in Indiana Code chapter 16-39-

      3:

              I am sure that you are aware of the strict provisions within both
              state and federal law for the disclosure of a patient’s mental
              health records especially in situations where the patient has not
              consented. In addition, Indiana law also provides for situations
              where the patient should not even be permitted disclosure of their
              own mental health records when it . . . would be detrimental to
              the physical and mental health of the patient. See Ind. Code § 16-
              39-2-4. As such, we believe this physician letter properly invokes
              the language within [section] 16-39-2-4 and would restrict access
              to the patient based upon the advice and concerns of the patient’s
      Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 3 of 27
              physician that disclosure would be detrimental to the physical or
              mental health of the patient. Since the Indiana Code does not
              provide any independent right to the parents of minor children to
              access their [children’s] mental health records other than the
              ability to “exercise the patient’s rights on the patient’s behalf”
              under Indiana Code Section 16-39-2-9, we believe the restrictions
              in Section 16-39-2-4 concerning disclosure when it would be
              detrimental to the physical and mental health of the patient apply
              to a parent’s request on behalf of the minor patient . . . . As such,
              it is my opinion that these records should not be released to the
              parents pursuant to any executed Medical Release or
              Authorization for Disclosures, but will be released only upon the
              issuance of a court order pursuant to the procedures set forth
              under Indiana Code [chapter 16-39-3] for disclosure without
              consent of the patient.


      Id. at 31-32. Around the same time, Mother filed a petition to suspend Father’s

      parenting time, alleging Father emotionally abuses K.B. The trial court

      modified Father’s parenting time to telephone contact only pending an

      evidentiary hearing set for July 21, 2015.


[5]   In preparation for that hearing, Father served a notice of deposition on K.B.’s

      therapist, a subpoena duces tecum for K.B.’s therapist to produce her “complete

      file in regards to [K.B.]” at the deposition, and a declaration of Father’s

      compliance with the Health Insurance Portability and Accountability Act of

      1996 (“HIPAA”). Id. at 27-30. Meridian received the notice on July 9; the

      deposition was scheduled for July 16. On July 13, Meridian filed a motion to

      quash and motion for protective order, arguing state and federal law prohibited

      Meridian from disclosing the information to Father without a court order. The

      court took no action on the motion to quash prior to the scheduled deposition.

      Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 4 of 27
      After K.B.’s therapist failed to appear for her deposition on July 16, Father filed

      a motion for rule to show cause why K.B.’s therapist should not be held in

      contempt, and the trial court scheduled a hearing on both parties’ motions.


[6]   K.B.’s physician and her therapist both testified at the hearing held on

      September 8. K.B.’s physician examined K.B. on two or three occasions prior

      to being contacted by Meridian and writing the letter in April 2015, although

      she could not say exactly when. As for the letter itself,


              Q        [W]hat was the reason for writing this letter?


              A        I had been contacted by Meridian that they—that [K.B.’s]
                       records were being requested. And it is our position that
                       the – what is said in a therapy session or in a doctor’s
                       session is not releasable . . . .


              The Court: When you say “our position” do you—can you
                         clarify what “our” means?


              [Physician:] [I]t’s the standard position of pediatricians.


              ***


              Q        [W]hat was the reasoning behind writing this letter?

              A        [T]here is stress between the parents. And whenever we
                       see stress and conflict between the parents, anything that
                       puts the child or the child’s words between the parents is
                       detrimental to the child. So the fact that there is conflict
                       between the parents would mean that the child’s words
                       should be protected so that the child is not put in between

      Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 5 of 27
                 in the conflict of those parents.

        ***

        Q        Did you feel like this child would not be able to continue
                 in therapy if she was required to have these records
                 released?

        A        Therapy would at least—continued therapy—therapy
                 would at least be put in jeopardy.

        ***

        Q        And did you reflect that it was in your medical
                 professional opinion very important that this child
                 continue in counseling?

        A        Yes.


Transcript at 40, 44-45. Although K.B.’s physician mentioned protective orders

issued against Father as an additional concern, she admitted she lacked

personal knowledge of any such orders:

        [Meridian’s Attorney]       [D]o you know of anything outside of
              your HIPAA restrictions that would make you believe that
              the stressors in this situation were greater than any normal
              situation?


        A        Yes. . . . The fact that we are aware of restraining orders
                 having been taken out.


        The Court: Who’s “we?”


        A        Our office.

Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 6 of 27
        ***


        Q        What is your understanding of the restraining orders that
                 you’re aware of?


        A        That there are restraining orders against the father with
                 various agencies in the County.


        Q        Does your agency have such a restraining order?


        A        [M]y office does not.


        Q        Do you know what the basis of those are, based on your
                 knowledge?


        A        No.


        ***


        [Father’s attorney]     So it’s your recollection that some
        agency somewhere told you something about a restraining order,
        of which you know nothing about the facts, exists against
        [Father]; correct?

        A        Correct.


Id. at 49-50, 52. K.B.’s physician further testified she contacted Child

Protective Services (“CPS”) in reference to K.B.:

        [Father’s attorney]               About what?

        [Meridian’s attorney]             I would object in regards to her

Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 7 of 27
                                                behavioral therapy—

              [Physician]               I cannot say what [K.B.] said.

              The Court                 Stop. When was the contact made,
                                        approximately?

              [Physician]               To the best of my recollection there were two
                                        contacts and they were both before April.

              The Court                 Okay. And were they a result of something
                                        the child said or something the child’s mother
                                        said, or do you remember?

              [Physician]               Something that the child said.

              The Court                 Okay. Was she alone with you when this
                                        was said?

              [Physician]               Yes.

              The Court                 Okay. Do you know if anything has
                                        transpired as a result of those contacts?

              [Physician]               I know that there was an investigation, and I
                                        know that the child was interviewed by a
                                        forensic psychiatrist.


      Id. at 56-57.


[7]   K.B.’s therapist echoed her physician’s concerns:

              Q        Is there any reason why—without revealing any
                       confidential mental health records—why you feel like this
                       case is stronger than others for non-release?


      Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016     Page 8 of 27
               A        Yes. I feel like she wouldn’t open up to me. She wouldn’t
                        feel the safety of therapy that needs to be there. To open
                        up and talk about issues.

               Q        Is that a standard concern across the board with children
                        of this age?

               A        No.

               Q        Is there any reason outside of your relationship . . . that
                        would make you more concerned in this case than others?

               A     As—as [K.B.’s physician] said, just the conflict level
               between the parents.


      Id. at 62. K.B.’s therapist also mentioned “[b]eing screamed at on the phone

      several times” by Father and “ending the phone call because of that.” Id. at 63.


[8]   On September 15, the trial court denied Meridian’s motion to quash and

      motion for protective order, concluding the provisions of the Indiana Code

      which permit a provider to withhold a patient’s records if the information

      would be detrimental to the patient’s health do not apply to the release of

      records to third parties.1 The statute addresses a provider’s ability to withhold

      the release of records “to the patient him or herself,” the trial court explained.

      App. at 12. Moreover, since Father shares legal custody of K.B. with Mother




      1
        The trial court cited Indiana Code section 16-39-1-5 in its order. Indiana Code chapter 16-39-1 “applies to
      all health records except mental health records . . . .” Ind. Code § 16-39-1-1(a) (emphasis added). Section 16-
      39-1-5 and section 16-39-2-4 both provide for withholding requested information from the patient under
      certain conditions, but Indiana Code section 16-39-2-4, specific to mental health records, is the appropriate
      citation in this case and is the section relied upon by the parties.

      Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016                      Page 9 of 27
       and there was no court order limiting Father’s access to K.B.’s records, the trial

       court concluded Indiana Code section 16-39-2-9 unequivocally required the

       release of K.B.’s records to Father. The trial court ultimately concluded Father

       is not required to submit to the procedures outlined in Indiana Code chapter 16-

       39-3 to acquire the records but “strongly admonished [both Father and Mother]

       that neither is to convey to the child, directly or indirectly, that he or she has

       had access to the child’s records . . . .” Id. at 15. The trial court’s order noted

       that “[a]lthough [K.B.’s therapist] may determine she cannot testify at a

       deposition, she should appear, make that record and return [sic] over the

       subpoenaed records.” Id.


[9]    On September 25, Meridian filed a motion to correct error, arguing the trial

       court’s interpretation of Indiana Code chapter 16-39-2 creates a less restrictive

       standard for access to protected health information than the standard imposed

       by HIPAA at the federal level. Stated differently, Meridian argued the trial

       court’s interpretation of state law would improperly conflict with the federal

       law. See 45 C.F.R. § 160.203(b) (stating HIPAA preempts state law unless

       “[t]he provision of State law relates to the privacy of individually identifiable

       health information and is more stringent”).


[10]   On September 29, Father served a second deposition notice and subpoena

       duces tecum on K.B.’s therapist to appear on October 2. Father also filed a

       petition for attorney’s fees pursuant to Indiana Trial Rules 26(C) and 37(A)(4).

       The following day, Meridian filed a motion to stay the proceedings pending the

       court’s ruling on Meridian’s motion to correct error. Meridian also requested

       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 10 of 27
       an emergency hearing on its pending motions, but the court was unavailable for

       a hearing prior to the scheduled deposition. Therefore, on October 2, Meridian

       tendered K.B.’s records directly to the trial court, along with a motion to seal

       the records under Indiana Administrative Rule 9(G)(2). Meridian stated it

       “does not desire to violate the Court’s order . . . but continues to believe that

       disclosure could jeopardize the well-being of the child, is not in her best

       interests, and should not be required under both state and federal law.” App. at

       88. The motion to seal requested “the Court not disclose [K.B.’s] records to the

       parties or their counsel herein until resolution of all pending Motions filed by

       [Meridian] as well as any potential appellate action which may be taken by any

       of the parties . . . .” App. at 89.2


[11]   The trial court held a hearing on October 6 after which it issued a letter to the

       parties’ attorneys stating the trial court had reviewed K.B.’s records and would

       make the records available for in camera review:

               You may take notes but you will not be permitted to make any
               copies of these records and I am [directing that] you not share
               any information with your respective clients as to what you have
               discerned from your review of the health records. Rather, I
               would like the two of you to meet with one another after you
               have completed your review to discuss whether you can reach
               agreement as to how to re-institute, or not, parenting time for




       2
         Although not entirely clear from the record, it appears K.B.’s therapist did not attend the deposition
       scheduled for October 2 because another deposition was scheduled for a later date at which the therapist
       appeared and entered an objection to answering any questions with regard to communication with K.B. See
       Tr. at 109.

       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016               Page 11 of 27
               [Father]. I would like you to have completed your review and
               your discussions by October 23, 2015.


       Id. at 94. Father’s attorney on the same day filed a verified affidavit for

       attorney’s fees, which included as an exhibit an itemized list of the fees Father

       incurred with respect to obtaining K.B.’s records from Meridian, totaling nearly

       $5,900 at that time.


[12]   On October 12, Meridian filed a petition to certify for interlocutory appeal the

       trial court’s order denying Meridian’s motion to quash and motion for

       protective order. The petition asserted essentially the same argument as

       Meridian’s pending motion to correct error. The trial court declined to certify

       the order and issued a new order permitting the parties to copy the records

       tendered to the court. Thereafter, Father filed a motion for issuance of orders

       on pending motions and petitions, including Father’s petition for attorney’s

       fees. At a hearing on the pending motions, the trial court noted with respect to

       its initial determination that Meridian was required to disclose the records:

               [M]y sense of the evidentiary hearing was that the danger was no
               different than any person in—any child. You know, this is the
               environment we live in. Any child of divorce who’s in therapy is
               in no different situation than this child. I didn’t see anything
               particularly . . . no one came forth with any level of detail specific
               to this child that had the nature of the gravity that’s being
               asserted.


       Tr. at 118. The trial court granted Father’s petition for attorney’s fees,

       reasoning:


       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 12 of 27
         [Meridian’s] agent failed to appear for a deposition of which she
         had been notified and with respect to which she had been served
         a subpoena duces tecum, directing her to bring with her certain
         health care records of the parties’ child. [Meridian] did file a
         Motion to Quash and for Order of Protection two (2) days prior
         to the scheduled deposition, but that Motion was not ruled upon
         by the Court at the time of the scheduled deposition.


         Subsequently, [Meridian] argued that the release of the child’s
         medical records was governed by I.C. 16-39-1 and -2, that no
         consent had been given for the release of the records, that the
         child’s health care provider had determined that the release of the
         records would be detrimental to the child’s health, and that
         further proceedings under I.C. 16-39-3 were required. The Court
         conducted such further proceedings. No substantial evidence
         was presented to support the claim that the release of the records
         to Father would be detrimental to the child. Moreover, the Court
         determined that Father should not have been required to invoke
         the procedures set forth at I.C. 16-39-3. Significant legal
         expenses were incurred needlessly by Father.


         ***


         [Meridian] is determined to be in contempt of Court for failure to
         comply with the subpoena duces tecum and failure to appear at
         the deposition.


App. at 18-19. Meridian was ordered to pay to Father’s counsel $6,270 in

attorney’s fees. This appeal followed.3




3
 It appears the trial court never explicitly ruled on Meridian’s motion to correct error. It was therefore
deemed denied pursuant to Trial Rule 53.3(A).

Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016                      Page 13 of 27
                                  Discussion and Decision
                                      I. Standard of Review
[13]   Meridian contends the trial court erred in awarding attorney’s fees to Father

       pursuant to Indiana Trial Rules 26(C) and 37(A). Trial Rule 26(C) allows a

       court, upon a party’s motion, to take measures to limit discovery when required

       to protect a person from “annoyance, embarrassment, oppression, or undue

       burden or expense.” The provisions of Trial Rule 37(A)(4) apply to the award

       of expenses incurred in relation to a motion for protective order. Ind. Trial

       Rule 26(C). Pursuant to Trial Rule 37(A)(4), a presumption arises that the trial

       court will also order reimbursement of the prevailing party’s reasonable

       expenses, including attorney’s fees, subject only to a showing that the losing

       party’s conduct was “substantially justified.” A person is “substantially

       justified” in resisting discovery, for purposes of avoiding the sanctions provided

       by Trial Rule 37, “if reasonable persons could conclude that a genuine issue

       existed as to whether a person was bound to comply with the requested

       discovery.” Penn Cent. Corp. v. Buchanan, 712 N.E.2d 508, 513 (Ind. Ct. App.

       1999), trans. denied.


[14]   A trial court’s rulings on discovery violations and attendant sanctions are given

       a strong presumption of correctness because they are usually fact-sensitive.

       Gonzalez v. Evans, 15 N.E.3d 628, 633 (Ind. Ct. App. 2014), trans. denied. We

       will reverse only upon a showing that the trial court abused its discretion.

       Huber v. Montgomery Cnty. Sheriff, 940 N.E.2d 1182, 1185-86 (Ind. Ct. App.


       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 14 of 27
       2010). An abuse of discretion occurs when the trial court’s decision is clearly

       against the logic and effect of the facts and circumstances before the court or

       when the trial court has misinterpreted the law. M.S. ex rel. Newman v. K.R., 871

       N.E.2d 303, 311 (Ind. Ct. App. 2007), trans. denied.


                      II. Attorney’s Fees for Motion to Quash
[15]   The trial court’s order awarding attorney’s fees to Father was the result of the

       trial court’s original decision denying Meridian’s motion to quash and motion

       for protective order, making Father the prevailing party entitled to an award of

       expenses incurred in opposing the motion. Although Meridian appeals the

       attorney’s fee order, the crux of Meridian’s argument is that the trial court’s

       original order denying the motion to quash was an abuse of discretion because

       Meridian was substantially justified in challenging the discovery request based

       on federal and state statutes relating to mental health records. Therefore, in

       order to determine whether the trial court’s award of attorney’s fees as a

       sanction for failing to comply with discovery was appropriate, we must first

       determine whether Meridian’s challenge to the request was substantially

       justified.




       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 15 of 27
                                           A. HIPAA Privacy Rule4
[16]   “HIPAA protects individuals from unwarranted dissemination of medical and

       mental health records by restricting access to such records without the

       individual’s direct consent.” E.J. ex rel. Jeffrey v. Okolocha, 972 N.E.2d 941, 945

       (Ind. Ct. App. 2012). In general, a covered entity may not use or disclose

       protected health information, except as specifically permitted. 45 C.F.R. §

       164.502(a); see also E.J. ex rel. Jeffrey, 972 N.E.2d at 945 (“In general, HIPAA

       requires that ‘covered entities’ . . . obtain patient authorization before disclosing

       protected health information.”). A health care provider is specifically permitted

       to disclose protected health information to “the individual” receiving health

       care, 45 C.F.R. § 164.502(a)(1)(i), or to a “personal representative” of the

       individual, 45 C.F.R. § 164.502(g)(1). A “personal representative” includes a

       parent who has authority under applicable law to act on behalf of an

       unemancipated minor in making decisions related to health care. 45 C.F.R. §

       164.502(g)(3)(i).5 The health care provider may therefore disclose protected

       health information to the parent of an unemancipated minor in most




       4
         Father contends Meridian waived any argument pertaining to HIPAA because Meridian first raised HIPAA
       in its motion to correct error. Although we agree a party may not raise an issue for the first time in a motion
       to correct error, Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000), we conclude Meridian sufficiently raised
       the issue prior to its motion to correct error, see, e.g., App. at 31 (letter dated May 15 stating Meridian will
       move to quash any subpoena that does not comply with the provisions set forth in Indiana Code chapter 16-
       39-3 because “both federal and state law have strict disclosure restrictions”); id. at 25 (motion to quash stating
       “Indiana Code Section 16-39-2-3 and Federal law prohibit Non-Party from disclosing to [Father] the
       information requested within the Notice of Deposition and the Subpoena Duces Tecum”).
       5
         There are three exceptions to this general rule in which the parent will not be recognized as the personal
       representative and the minor will be treated as the individual for purposes of access to protected health
       information. 45 C.F.R. § 164.502(g)(3)(i)(A)-(C). None of those exceptions apply here.

       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016                       Page 16 of 27
       circumstances. Id. Regardless of whether the parent is otherwise considered a

       personal representative, HIPAA defers to state law with respect to the ability of

       the parent to obtain health information about the minor child: the health care

       provider may disclose to a parent the minor’s protected health information to

       the extent it is permitted or required by state law; conversely, the health care

       provider may not disclose the information when and to the extent state law

       prohibits such disclosure. 45 C.F.R. § 164.502(g)(3)(ii)(A), (B).


                                                 B. Indiana Law
[17]   Indiana law regarding the mental health information of minors begins with the

       premise that records can be disclosed with the consent of the patient, Ind. Code

       § 16-39-2-3, and a parent is entitled to exercise the minor patient’s rights on the

       patient’s behalf, Ind. Code § 16-39-2-9(a)(1);6 therefore, a parent may consent to

       disclosure on behalf of his or her child. Moreover, a custodial parent and a

       non-custodial parent have equal access to a child’s mental health records. Ind.

       Code § 16-39-2-9(b); see also Ind. Parenting Time Guidelines § I(D)(4) (“Under

       Indiana law, both parents are entitled to direct access to their child’s . . . mental

       health records . . . .”). However, if there exists a court order that limits the

       noncustodial parent’s access and the health care provider has received a copy of

       the order or has actual knowledge of the order, then the provider must abide by

       the terms of the court order. Ind. Code § 16-39-2-9(b). At the outset then, state




       6
           There are comparable provisions for non-mental health medical records in Indiana Code chapter 16-39-1.


       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016                  Page 17 of 27
       law required Meridian to disclose K.B.’s mental health information to both

       Father and Mother unless there was a court order limiting Father’s access.

       There was no such order in place at the time Father made his request for access

       to the records.


[18]   Not only was there no such order limiting Father’s access at that time, no such

       order has been requested since, by either Mother or Meridian. Rather than

       seeking a court order limiting Father’s access, Meridian restricted Father’s

       access on its own initiative and has asserted throughout this litigation that

       because K.B.’s therapist and physician determined that the requested

       information would be detrimental to K.B., Father was required to seek a court

       order granting him access. Indiana Code section 16-39-2-4 provides:


               A patient is entitled to inspect and copy the patient’s own mental
               health record. However, if the provider that is responsible for the
               patient’s mental health records determines for good medical
               cause, upon the advice of a physician, that the information
               requested under this section is detrimental to the physical or
               mental health of the patient, or is likely to cause the patient to
               harm the patient or another person, the provider may withhold
               the information from the patient.


       (Emphasis added.) As the trial court found, this provision is directed to the

       potential for harm caused by the patient inspecting his or her own records. See

       App. at 12. In fact, Meridian seemed to acknowledge as much in its May 15

       letter declining to provide the records to Father after receiving his signed

       consent when it cited section 16-39-2-4 and stated, “[W]e believe this physician

       letter properly invokes the language within this Section 16-39-2-4 and would

       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 18 of 27
       restrict access to the patient . . . .” Id. at 31 (emphasis added). But Meridian also

       asserted that the only right parents have is to exercise the minor child’s rights

       on the child’s behalf and if the provider may withhold the records from the

       child pursuant to section 16-39-2-4, it may withhold the records from the

       parents, as well. Accordingly, Meridian declared it would be withholding the

       records from Father and Father’s only recourse was to seek a court order

       pursuant to Indiana Code chapter 16-39-3 when disclosure is sought absent

       patient consent.7


[19]   We understand Meridian’s concern over allowing a third party access to records

       that may be withheld from the patient. But by its plain language, section 16-39-

       2-4 restricts only the patient’s access to his or her own records. Compare Ind.

       Code § 16-39-2-4 with Cal. Health & Safety Code § 123115(a)(2) (“The

       representative of a minor shall not be entitled to inspect or obtain copies of the

       minor’s patient records . . . [w]here the health care provider determines that

       access to the patient records requested by the representative would have a

       detrimental effect on the provider’s professional relationship with the minor

       patient or the minor’s physical safety or psychological well-being.”); N.Y.




       7
         Meridian’s position is somewhat internally inconsistent. Section 16-39-2-4 states that “[i]f the provider is a
       state institution or agency, the patient may appeal the provider’s refusal to permit the patient to inspect and
       copy the patient’s own record under IC 4-21.5.” There is no corresponding provision regarding appeal when
       the provider is not a state institution or agency. It therefore appears that if K.B. were an adult being treated
       by Meridian and Meridian made the determination that release of the records to her would be detrimental,
       she would have no recourse. If, as Meridian asserts, Father’s only rights to K.B.’s records stem from K.B.’s
       own rights, then Father would likewise have no recourse, including through the provisions of chapter 16-39-
       3, to which Meridian directed him.

       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016                      Page 19 of 27
       Mental Hygiene Law § 33.16(b)(3) (stating a facility must provide an

       opportunity for a parent to inspect records concerning the care and treatment of

       a minor upon request, “provided, however, that such parent . . . shall not be

       entitled to inspect or make copies of any clinical record concerning the care and

       treatment of an infant where the treating practitioner determines that access to

       the information requested by such parent . . . would have a detrimental effect

       on the practitioner’s professional relationship with the infant, or on the care and

       treatment of the infant or on the infant’s relationship with his or her parents”).

       We agree with the trial court that under Indiana law, Father was entitled to

       direct access to K.B.’s records and was not required to seek a court order to

       obtain them.


                                     C. Restrictions on Access
[20]   Notwithstanding the provisions of Indiana law that would allow Father access

       to K.B.’s mental health records without a court order, HIPAA places an

       additional restriction on access by a personal representative that applies

       “[n]otwithstanding a State law . . . to the contrary”:

               [A] covered entity may elect not to treat a person as the personal
               representative of an individual if:


               (i) The covered entity has a reasonable belief that:


                        (A) The individual has been or may be subjected to
                        domestic violence, abuse, or neglect by such person; or




       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 20 of 27
                         (B) Treating such person as the personal representative
                         could endanger the individual; and


                (ii) The covered entity, in the exercise of professional judgment,
                decides that it is not in the best interest of the individual to treat
                the person as the individual’s personal representative.


       45 C.F.R. § 164.502(g)(5).8


[21]   Although a covered entity may decline to treat a person as a personal

       representative if it believes doing so could endanger the individual, the covered

       entity’s belief to that effect must be “reasonable.” 45 C.F.R. § 164.502(g)(5)(i).

       When Father sought disclosure of K.B.’s records, Meridian requested and

       received a letter from K.B.’s physician stating that release of the records could

       “jeopardize [K.B.’s] care and her mental and physical health.” App. at 33.

       Meridian contends it reasonably believed, based on the physician’s letter,

       disclosure of K.B.’s records to her parents could endanger K.B. and on that

       basis, declined to release the records to Father. Making the initial

       determination that records should not be disclosed pursuant to this HIPAA

       provision is certainly Meridian’s right and obligation as a mental health

       provider in service of its client. Once the dispute was placed before the trial




       8
          If a provision of HIPAA and a provision of state law conflict, the HIPAA provision overrides or preempts
       state law, with certain exceptions. 45 C.F.R. § 160.203. The state law provision will control if it “relates to
       the privacy of individually identifiable health information and is more stringent than a standard, requirement,
       or implementation specification” of the federal law. 45 C.F.R. § 160.203(b). Even without the
       “notwithstanding any contrary state law” language, if 45 C.F.R. § 164.502(g)(5) applies in this situation, it
       would preempt section 16-39-2-4 because the state law, allowing parental access to the records, is less
       stringent than the federal law in this circumstance.

       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016                    Page 21 of 27
       court, however, the matter of disclosure became a judicial determination rather

       than a therapeutic judgment. See 45 C.F.R. § 164.512(e)(1) (permitting

       disclosure of protected health information in response to a court order).


[22]   At the hearing on Meridian’s motion to quash and motion for protective order,

       the physician could not recall when, prior to writing the letter advising against

       disclosure, she had last seen K.B. In addition, the physician testified that it was

       the “standard position of pediatricians” that “whenever we see stress and conflict

       between parents, anything that puts the child or child’s words between the

       parents is detrimental to the child.” Tr. at 40, 44 (emphasis added). The only

       testimony from K.B.’s physician that was specific to this situation was that she

       had heard some county agencies had protective orders against Father and she

       had contacted CPS on K.B.’s behalf. However, she knew no particulars about

       the protective orders and she was unable to provide any detail about what K.B.

       said that caused her to contact CPS. K.B. was apparently interviewed by CPS

       but there was no evidence regarding an ensuing CPS investigation. K.B.’s

       therapist testified that releasing the records might cause K.B. not to “feel the

       safety of therapy that needs to be there.” Tr. at 62. The therapist further

       testified that she had a greater concern for K.B. than other children of her age

       because of the conflict between her parents, but there was no testimony

       regarding why the conflict between these parents was of more concern than the

       conflict that undoubtedly exists between many divorced parents.


[23]   The trial court heard this testimony from K.B.’s physician and therapist and

       ultimately concluded, “No substantial evidence was presented to support the

       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 22 of 27
       claim that the release of the records to Father would be detrimental to the

       child.” App. at 19. The trial court also noted with respect to this issue,


               [T]he pediatrician could provide no specifics other than the
               obvious, but important, observation that if a child is suffering due
               to the conflict between her parents, placing her in a position
               where she feels that one parent can use her communications to
               align her with or against a parent is the potential source of even
               greater suffering. But that would seem to ignore that as a
               consequence of the current arrangement in this case, which
               involves Mother taking the child to the pediatrician and therapist
               and participating in some sessions with the pediatrician (and
               perhaps the therapist)[,] the child is likely to see Mother as
               aligned with her and Father not.


       Id. at 14. Although it was the provider’s decision to withhold the records from

       Father on the basis of “parental conflict,” we must note, as the trial court did,

       that Mother “raised no objection to the subpoena and has stood silent through

       subsequent proceedings” regarding release of the records. Id. at 19. And we

       further note that this dispute arose in the larger context of a dissolution which

       had been before the trial court for several years. The trial court was no stranger

       to the family dynamics.


[24]   We commend the trial court for its careful consideration of the evidence.

       K.B.’s physician testified to some concern over protective orders against Father

       (none of which were protecting K.B.) and to having made a referral to CPS for

       K.B. (which came to nothing). She also testified that the “standard position” of

       pediatricians was that therapy records should not be released to parents

       experiencing “conflict.” Tr. at 40, 44. K.B.’s physician maintained, “[T]he fact

       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 23 of 27
       that there is conflict between the parents would mean that the child’s words

       should be protected so that the child is not put in between in the conflict of

       those parents.” Id. At best, the physician’s testimony was inconsistent and did

       not clearly indicate whether her advice not to release the records stemmed from

       her standard practice in all divorce/custody cases or from “good medical

       cause” relative to K.B. See Ind. Code § 16-39-2-4. This inconsistency was a

       matter for the trial court to resolve. K.B.’s therapist also relied in large part on

       the generic “conflict” between the parents to support Meridian’s position and

       did not meaningfully distinguish this situation from any other custody dispute.

       The trial court concluded a generalized concern for children whose parents

       experience “conflict” was insufficient to demonstrate a reasonable belief that

       K.B. may be endangered and we cannot say that such a conclusion is erroneous

       on this record.


[25]   Despite the lack of particularized concerns, the trial court took great care to

       protect K.B. from knowing her records had been disclosed. In its order denying

       Meridian’s motion to quash and motion for protective order, the trial court

       “strongly admonished” the parents not to let K.B. know in any way they had

       access to her records and further admonished them “to comport themselves

       verbally and otherwise in a manner that does not betray their knowledge of

       [her] interactions with her care providers.” App. at 15. After the records were

       not disclosed as ordered but were instead tendered to the trial court, the trial

       court allowed the attorneys to review them in camera, but directed them to not

       share any information from those records with their respective clients.


       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 24 of 27
[26]   This brings us back to the actual order at issue in this appeal: the sanctions for

       Meridian’s contempt in failing to turn over the records after the trial court

       ordered them to be disclosed. We emphasize that the issue in this case is not

       Meridian’s initial therapeutic judgment that it should not release K.B.’s records;

       nor is the issue the trial court’s judicial determination that the records should be

       released over Meridian’s objection. The issue of a sanction arises because the

       trial court heard the dispute and made a definitive ruling that Meridian did not

       honor. Although we have held herein that Meridian did not have the right to

       withhold the records from Father under Indiana law, and the trial court found

       in its judgment that Meridian had not proved the requirements for withholding

       the records under federal law, we cannot fault Meridian for taking steps it

       thought necessary to preserve patient confidentiality and serve its patient’s best

       interest, especially considering K.B. is unable to advocate for herself, and we

       note the trial court did not sanction Meridian for objecting to release of the

       records in the first instance, either. State and federal law in this area is complex

       and very few cases have interpreted the relevant statutes to offer guidance; in

       addition, once the records have been released, they cannot be protected—so it

       was important for Meridian to exercise its therapeutic judgment until a court

       could hear and decide the matter. Had Meridian made its challenge to

       disclosure and then complied with the ensuing trial court decision, we might

       have been inclined to say a genuine issue existed as to whether it was bound to

       comply with Father’s request and Meridian was therefore substantially justified

       in initially resisting disclosure despite the ultimate determination against its

       position.
       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 25 of 27
[27]   However, the trial court ordered sanctions only after it held a hearing at which

       Meridian offered evidence in support of withholding the records from Father

       (evidence, incidentally, which Father could not meaningfully controvert

       because he did not have access to the records), it ruled against Meridian’s

       motion to quash and motion for protective order, and yet Meridian continued

       to balk at releasing the records. Meridian filed a barrage of motions and defied

       the trial court’s order that K.B.’s therapist appear at any scheduled deposition,

       make a record of her inability to testify, and turn over the subpoenaed records,

       instead tendering the records directly to the trial court under seal on the date of

       a scheduled deposition. After its initial insistence that Father seek a court order

       allowing disclosure of the records, Meridian’s ongoing defiance of the trial

       court’s order regarding this dispute was not substantially justified, and it likely

       interfered with the court’s management of the underlying dispute. The trial

       court did not abuse its discretion in finding Meridian in contempt for failing to

       provide the records to Father and ordering Meridian to pay the attorney’s fees

       Father incurred as a result of defending against a failed request for a protective

       order.



                                               Conclusion
[28]   Because HIPAA permitted and state law clearly required Meridian to release

       K.B.’s records to Father, the trial court did not abuse its discretion in ordering

       Meridian pay Father’s attorney’s fees. We therefore affirm.


[29]   Affirmed.

       Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 26 of 27
Najam, J., and Crone, J., concur.




Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016   Page 27 of 27
