IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION MICHAEL J. CHANEY, individually, )
and on behalf of others similarly situated, )
) vs. ) Case No. 1:06-cv-1583-SEB-VSS
SISTERS OF ST. FRANCIS HEALTH SERVICES, INC., )
GREATER LAFAYETTE HEALTH SERVICES, INC., )
ADVANCED RECEIVABLES STRATEGY, INC., )
PEROT SYSTEMS CORPORATION, and, )
JANE DOE, individually and as an employee, )
Defendants. ) MEMORANDUM IN SUPPORT OF DEFENDANTS' JOINT MOTION TO DISMISS
Defendants Sisters of St. Francis Health Services, Inc., Greater Lafayette Health
Services, Inc., Advanced Receivables Strategy, Inc., Perot Systems Corporation, Sisters of St.
Francis Health Services, Inc. and Greater Lafayette Health Services, Inc. ("Defendants")
respectfully submit this Memorandum in Support of Defendants' Joint Motion to Dismiss the
Plaintiff's Class Action Complaint (the "Complaint"). Plaintiff, Michael J. Chaney ("Plaintiff") seeks relief for alleged violations of the
Health Insurance Portability and Accountability Act of 1996 and regulations promulgated
thereunder ("HIPAA"). It is well settled that HIPAA does not provide a private right of action.
Therefore, the Plaintiff's private claims for alleged HIPAA violations should be dismissed for
failure to state a claim for which relief can be granted. Plaintiff also alleges that the Defendants have violated his rights under the Fourth
and Fifth Amendments of the United States Constitution and seeks relief on that basis. The
Fourth and Fifth Amendments protect citizens from the actions of the Federal government; they
are wholly inapplicable to the actions of private persons. The Defendants are all private actors and no government involvement is alleged. Because the Complaint alleges only private action, Plaintiff's claims for alleged violations of the Fourth and Fifth Amendments of the United States Constitution fail to state a claim for which relief can be granted and should be dismissed in its entirety.
Pursuant to Rule 12(b)(6), this action should be dismissed. STATEMENT OF RELEVANT FACTS
The following statement of facts reflects the allegations contained in Plaintiff's Complaint. Defendants' recitation here of facts alleged in the Complaint is not an admission of any fact alleged in the Complaint. In Counts One, Two and Three, Plaintiff alleges that Defendants violated HIPAA Privacy Rules, 45 CFR Parts 160 and 164. Complaint ¦¦ 31, 33, 35. In a second Count Three, Plaintiff alleges that the Defendants have deprived the Plaintiff of his "right to privacy" under the Fourth and Fifth Amendments to the United States Constitution. Complaint ¦¦ 37. Plaintiff also alleges that the Defendants deprived the Plaintiff of his right to procedural and substantive due process under the Fifth Amendment to the United States Constitution. Complaint ¦ 39.
The Defendants are Sisters of St. Francis Health Services, Inc., Greater Lafayette Health Services, Inc., Advanced Receivables Strategy, Inc., Perot Systems Corporation and Jane Doe. Complaint ¦ 1. Defendant Sisters of St. Francis Health Services, Inc. is an Indiana non¥profit corporation. Complaint ¦ 10. Defendant Greater Lafayette Health Services, Inc. is an Indiana non-profit corporation. Complaint ¦ 11. Defendant Advanced Receivables Strategy, Inc. is a Delaware corporation. Complaint ¦ 12. Defendant Perot Systems Corporation is a Delaware corporation. Complaint ¦ 13. Defendant Jane Doe is an adult female, who is being sued individually and as an employee of Defendants Advanced Receivables Strategy, Inc. and Perot Systems Corporation. Complaint ¦ 14. ARGUMENTA motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint. A complaint may be dismissed pursuant to Rule 12 (b)(6) when it appears to a certainty on its face that the complaining party is not entitled to relief. Waste, Inc. Cost Recovery Group v. Allis Chalmers Corp., 51 F. Supp.2d 936, 939 (N.D. Ind. 1999). A complaint should be dismissed "when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. A. The Plaintiff's HIPAA Claims Should be Dismissed Because HIPAA Does Not Create A Private Right of Action
The Plaintiff claims the Defendants' acts and omissions described in the Complaint violate HIPAA, and, in particular, the regulations thereunder, 45 CFR Parts 160 and 164. Complaint, ¦¦ 31, 33, 35, 37. The Plaintiff seeks damages and injunctive relief for alleged violations of HIPAA.
At least two courts in the Seventh Circuit have addressed the issue of private rights of action under HIPAA. In Swift v. Lake Park High School District 108, et al., the Northern District of Illinois decided that the plaintiff, a former school district employee, could not obtain relief under HIPAA. 2003 WL 22388878, *4 (N.D. Ill. 2004). The Court held that the Plaintiff could not maintain a cause of action under HIPAA and dismissed her claim, stating, "[n]o federal court reviewing the matter has ever found that Congress intended HIPAA to create a private right of action." Id.
Indeed, the lack of a "private right of action" under HIPAA is so well-established that in Johnson v. Milwaukee County, et al., the Eastern District of Wisconsin was able to fit its HIPAA "discussion" in a footnote, as the simplicity of the issue required no further analysis. 2006 WL 272754, *3, n.1 (E.D. Wis. 2006). After noting that the plaintiff did not wish to withdraw his claim for an alleged HIPAA violation, the Court stated simply, "Johnson's claim for declaratory judgment on his HIPAA claim cannot proceed. There is no private right of action under HIPAA. Thus, Johnson's HIPAA claim must be dismissed in its entirety." Id. Even outside the Seventh Circuit, the overwhelming majority of courts that have considered this issue have held that private individuals do not have a private right of action for HIPAA violations. See, e.g., Picayune Clinic, L.L.C. v. Dar, 2006 WL 1272621, *4 (S.D. Miss. May 5, 2006) (noting that "HIPAA does not create a private right of action for disclosure of medical information"); Agee v. United States, 72 Fed. Cl. 284, 289-90 (2006) (dismissing plaintiff's claims concerning violations of HIPAA because the statute does not provide for a private right of action); Haranzo v. Dept. of Rehabilitative Serv., 2005 WL 3019240, *4 (W.D. Va. November 10, 2005) (noting that no private right of action exists for HIPAA violations and dismissing the claim); Runkle v. Gonzales, 391 F. Supp. 2d 210, 237 (D.D.C. 2005) (dismissing the plaintiff's HIPAA claim after noting that no federal court has ever found a private right of action under HIPAA); Johnson v. Quander, 370 F. Supp. 2d 79, 99-100 (D.D.C. 2005); (dismissing claim because no private right of action exists under HIPAA); Dominic J. v. Wyoming Valley West High School, 362 F. Supp. 2d 560, 573 (M.D. Pa. 2005) (dismissing HIPAA claim because there is no private right of action; Univ. of Co. Hosp. Auth. v. Denver Pub. Co., 340 F. Supp.2d 1142, 1145-46 (D. Colo. 2004) (dismissing plaintiff's HIPAA claim because a private right of action under HIPAA does not exist); O'Donnell v. Blue Cross Blue Shield of Wyo., 173 F. Supp. 2d 1176, 1179-80 (D. Wyo. 2001) (holding that HIPPA does not expressly or impliedly provide for a private right of action). For all the above reasons, there is absolutely no basis for the Plaintiff to assert a private right of action for the Defendants' alleged HIPAA violations. Therefore, all of the Plaintiff's HIPAA claims must be dismissed for failure to state a claim upon which relief can be granted. B. Plaintiff Failed to State a Claim For Relief for Violation of The Fourth and Fifth Amendments Because the Claims Do No Arise Under the Constitution of the United States
The Plaintiff claims that the Defendants violated his right to privacy and personal
security and his right to procedural and substantive due process under the Fourth and Fifth
Amendments of the United States Constitution. Complaint ¦¦ 5, 37, 39.
The Fourth Amendment provides that:
the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., Amend. IV. The purpose of the Fourth Amendment is to protect citizens against government encroachment. The United States Supreme Court consistently has construed this protection as proscribing only governmental action. United States v. Jacobson, 466 U.S. 109, 113 (1984). It is wholly inapplicable to actions, even unreasonable ones, by private entities that are not acting as agents of the government, or with the participation or knowledge of any government official. Id. (citing Walter v. United States, 447 U.S. 649, 662 (1980)); United States v. Ginglen, 2006 WL 3162183, *3 (7th Cir. Nov. 6, 2006). The Fifth Amendment provides that: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
U.S. Const., Amend. V. The Fifth Amendment likewise applies to and restricts only the federal government, not private entities. Pub. Utils. Commission v. Pollack, 343 U.S. 451, 461 (1952). The Plaintiff must show that the deprivation of a protected right was caused by governmental conduct, as it is well settled that the due process provision of the Fifth Amendment serves as a limitation only on government, and not private, action. Velez-Diaz v. Vega-Irizarry, 421 F.3d 71, 79 (1st Cir. 2005). The Plaintiff alleges that the Defendants violated his right to privacy and deprived him of his right to procedural and substantive due process under the Fourth and Fifth Amendment of the United States Constitution. The Complaint contains no allegations that the government directed, assisted or even had knowledge of the Defendants' conduct. Accordingly, the Plaintiff has failed to state a claim for violation of the Fourth and Fifth Amendments by the Defendants. Gantt v. Security, USA Inc., 356 F.3d 547, 552 (4th Cir. 2004) (affirming dismissal of plaintiff's Bivens claim for violation of Fifth Amendment rights because the defendant was a private entity and so no Bivens claim could lie against the defendant); Cremin v. Merrill Lynch Pierce Fenner & Smith, 957 F. Supp. 1460, 1465 (N.D. Ill. 1997) (dismissing plaintiff's Fifth Amendment claim, and noting that the due process clause in the Fifth Amendment affords no relief from purely private conduct, no matter how unfair or reprehensible). Plaintiff's Complaint alleges only action by private entities and individuals. Therefore, the Plaintiff's claims based upon violations of the Fourth and Fifth Amendments must be dismissed for failure to state a claim for relief. Gantt v. Security, USA, Inc., 356 F.3d 547, 552 (4th Cir. 2004); Love v. Bolinger, 927 F. Supp. 1131, 1137 (S.D. Ind. 1996). CONCLUSION For the foregoing reasons, the Defendants respectfully move this Court to dismiss
this action against them with prejudice pursuant to Rule 12(b)(6). Respectfully submitted,
BAKER & DANIELS LLP
/s/ Nancy G. Tinsley Nancy G. Tinsley Kristiana M. Brugger BAKER & DANIELS LLP 300 North Meridian Street, Suite 2700 Indianapolis, Indiana 46204 Telephone: (317) 237-0300 Facsimile: (317) 237- 1000 [email protected] [email protected]
Attorneys for Defendants Advanced Receivables Strategy, Inc. and Perot Systems Corporation
/s/ Jeffrey C. McDermott_____________________ Jeffrey C. McDermott Libby Y. Mote Matthew R. Stryznski KRIEG DeVAULT One Indiana Square Suite 2800 Indianapolis, IN 46204-2079 Telephone: (317) 636-4341 Facsimile: (317) 636-1507 [email protected] [email protected] [email protected]
Attorneys for Defendants Sisters of St. Francis Health Services, Inc. and Greater Lafayette Health Services, Inc. CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy for the foregoing has been served
upon the following electronically by operation of the Court's electronic filing system this 20th
day of November, 2006:
Douglas A. Crawford Scott A. Benkie BENKIE & CRAWFORD 47 S. Meridian Suite 305 Indianapolis, IN 46204
The undersigned hereby certifies that a copy of the foregoing has been served
upon the following via U.S. mail this 20th day of November, 2006:
Rodney V. Taylor 1219 North Delaware Street Indianapolis, IN 46202
/s/ Nancy G. Tinsley ___________________