A Tampa mental-health counselor who refused to turn over her patient records to the state has won the right to keep them confidential.
Joanna Theiss Mulder was allowed to withdraw as an expert witness in a case brought by the Agency for Health Care Administration, rather than turn over records of sessions with her mentally disabled clients at Hillandale Assisted Living in Pasco County.
Hillsborough Circuit Judge Robert A. Foster issued the decision in late August, freeing Mulder from the threat of an AHCA subpoena. But the decision turned on a technicality -- Hillandale dropped Mulder from the witness list, at her request -- so the decision may not offer wider protection to counselors caught in that situation.
“We are very pleased that the Agency has–at least for now—given up on the notion that it can subpoena patient records from a health care provider like Dr. Mulder who is not regulated by AHCA in any way,” said one of Mulder’s attorneys, Julie Gallagher of Akerman Senterfitt.
“In our view, had AHCA been able to obtain these records under these circumstances, it would have been a huge expansion of AHCA's regulatory reach, one that is not authorized by statute or rule,” Gallagher said.
AHCA attorney James H. Harris declined to discuss the case, as did the AHCA press office. Similarly, Mulder sent word that she did not want to be interviewed.
As Health News Florida reported in July, both AHCA and Mulder claimed the high ground in their legal proceedings as protectors of patients’ best interest.
AHCA, which licenses and inspects health-care facilities, took action against Hillandale after a June 2011 Miami Herald article said that Hillandale staff had inflicted harm on residents, including over-drugging them and locking them in dark closets.
AHCA filed an intent to end the Medicaid billing rights of Mapleway Communities, operator of Hillandale and two other ALFs. Then it filed a complaint to revoke Hillandale’s license,.
The owners, Gene and Amelia Cowles of Safety Harbor, appealed the AHCA complaint to the Division of Administrative Hearings. One of the expert witnesses on their list was Mulder, an advanced registered nurse practitioner with a PhD and a mental-health counselor’s license, whose practice is called Consult Care Inc.
Mulder was subpoenaed in April to appear at a deposition by AHCA attorney Harris in May, and was ordered to produce notes from her therapy sessions with Hillandale residents. She refused, saying the records were confidential, protected under state law.
She sought a protective order, but Administrative Law Judge Lynne Quimby-Pennock decided that as a health oversight agency, AHCA had a statutory right to the records. Mulder’s attorneys then notified all parties that the counselor would not appear for the deposition. The Hillandale owners dropped her from their witness list.
Mulder’s attorneys argued that AHCA could take no action against her because it has jurisdiction only over health-care facilities, not people. Doctors, nurses and other llcensed professionals fall under the jurisdiction of the Department of Health.
AHCA filed a motion in circuit court seeking to force Mulder to comply with the subpoena. But Judge Foster agreed with Mulder’s attorneys, saying the whole thing became moot when Hillandale took Mulder off the witness list.
AHCA could have appealed, but decided not to.
