United States District Court, N.D. Georgia, Atlanta Division
ORDER AND FINAL REPORT AND RECOMMENDATION
K. LARKINS III UNITED STATES MAGISTRATE JUDGE.
September 4, 2018, a grand jury seated in the Northern
District of Georgia returned a superseding indictment
charging Defendant Kinsley Kilpatrick and his wife, Defendant
Tracie Kilpatrick, in connection with an alleged scheme to
fraudulently obtain disability benefits from the Department
of Veterans Affairs (the “VA”) and the Social
Security Administration (the “SSA”). [Doc. 37.]
The charges arise out of a VA investigation that purportedly
revealed that Defendants embellished Mr. Kilpatrick's
physical limitations to obtain VA and SSA disability
benefits. Defendants are jointly charged with one count of
mail fraud conspiracy to defraud the VA, 18 U.S.C. §
1349; two corresponding substantive counts of mail fraud, 18
U.S.C. § 1341; one count of mail fraud conspiracy to
defraud the SSA, 18 U.S.C. § 1349; and one corresponding
substantive count of mail fraud, 18 U.S.C. § 1341. The
Kilpatricks are also each charged separately with making
false statements in forms they allegedly submitted to the
SSA, 18 U.S.C. § 1001.
Order and Report and Recommendation addresses Defendant
Kinsley Kilpatrick's Preliminary Motion to Suppress
Evidence [Doc. 23] and Amended Motion to Suppress Evidence
[Doc. 35], in which he moves to suppress VA health records
seized by the government without a warrant and an audio/video
recording of a physical examination with VA physician Dr.
Jacqueline Rosenthal. This decision also addresses the
government's motion to strike an amended reply brief that
Mr. Kilpatrick filed late. [Doc. 60.] For the reasons that
follow, it is RECOMMENDED that the motion to
suppress be DENIED, and it is
ORDERED that the motion to strike be
October 11, 2017, Mr. Kilpatrick underwent a physical
examination with Dr. Rosenthal at the VA Medical Center.
[Doc. 35 at 2.] Ms. Kilpatrick also attended the encounter.
Unbeknownst to the Kilpatricks, Special Agent Tracy
Brumfield, an agent with the VA's Office of Inspector
General (“VA-OIG”), had obtained consent from Dr.
Rosenthal to record the examination, and the examination was,
in fact, recorded. [Doc. 35 at 2; Doc. 36 at 2; Doc. 60-1;
Doc. 60-2.] As part of the VA-OIG investigation, SA Brumfield
also interviewed other VA physicians who examined or treated
Mr. Kilpatrick and the VA ratings quality review specialist
who assessed Mr. Kilpatrick's disability rating. [Doc. 35
at 2; Doc. 36 at 2.] SA Brumfield also accessed Mr.
Kilpatrick's VA medical records. [Doc. 35 at 2; Doc. 36
Kilpatrick moves to suppress (1) the recording of the October
11, 2017 examination; (2) information that law enforcement
obtained through interviews with Mr. Kilpatrick's medical
providers at the VA; and (3) VA medical records that the
government obtained. [Doc. 35.] Mr. Kilpatrick argues that he
had a privacy interest in his medical and health information
under the Health Insurance Portability and Accountability Act
of 1996 (“HIPAA”), and, therefore, the government
should have obtained all the foregoing information through a
warrant. [Id. at 3-5.] With respect to the
recording, Mr. Kilpatrick further argues that law enforcement
was prohibited from surreptitiously recording his encounter
with Dr. Rosenthal under a Georgia law that prohibits the
recording of private activities of other persons.
[Id. at 5-6 (citing O.C.G.A. §§
16-11-62(2), 16-11-64, 16-11-66).]
government responds that SA Brumfield could lawfully access
Mr. Kilpatrick's VA medical records without a warrant or
any other formal legal process because the records were
records of the VA and, as a special agent with the VA-OIG, SA
Brumfield could lawfully access the medical records as part
of his investigation in the fraud and abuse in VA programs.
[Doc. 36 at 3.] The government alternatively argues that,
even if some legal process were required to obtain Mr.
Kilpatrick's medical records, the government could have
obtained the information by way of a subpoena because there
is no statute that would have required the government to
obtain the records pursuant to a search warrant.
[Id. at 4.]
government also argues that no HIPAA violation occurred
because a law enforcement exception to the law authorizes the
government to obtain otherwise protected information. [Doc.
36 at 4-5.] In the alternative, the government argues that,
even if Mr. Kilpatrick could show that a HIPAA violation
occurred, suppression is not the appropriate remedy.
with respect to the video recording, the government responds
that federal law controls. [Doc. 36 at 6-7.] Under federal
law, the government contends, a person acting under color of
law may record a communication (including by video) where
such person is a party to the communication or where one of
the parties has given consent. Here, Dr. Rosenthal gave
consent to the recording of the examination; thus, the
recording was lawful. [Id.]
A warrant was not necessary for law enforcement to interview
physicians or obtain VA medical records.
1978, due to a concern that fraud and abuse in federal
programs was “reaching epidemic proportions, ”
Congress enacted the Inspector General Act of 1978, which
created offices of inspectors general in several governmental
departments, including the VA, “to more effectively
combat fraud, abuse, waste and mismanagement in the programs
and operations of those departments and agencies.”
Inspector Gen. of U.S. Dep't of Agric. v. Glenn,
122 F.3d 1007, 1009 (11th Cir. 1997) (citations to Senate
report omitted); see also 5 U.S.C. app. 3
§§ 1-12. The duties of inspectors general include,
among other things, conducting “audits and
investigations relating to the programs and operations”
of the specific government agency. 5 U.S.C. app. 3 §
4(a)(1). To that end, the Act vests inspectors general with
investigative tools, including “access to all records,
reports, audits, reviews, documents, papers, recommendations,
or other materials available to the [agency] which relate to
[the agency's] programs and operations . . . .” 5
U.S.C. app. 3 § 6(a)(1). The Act additionally requires
inspectors general to “report expeditiously to the
Attorney General whenever the Inspector General has
reasonable grounds to believe there has been a violation of
Federal criminal law.” 5 U.S.C. app. 3 § 4(d).
the Court readily concludes that Mr. Kilpatrick's medical
records qualify as records of the VA that relate to the
program and operations of the agency. As such, SA Brumfield
was statutorily authorized to access Mr. Kilpatrick's VA
medical records without additional legal process. Though Mr.
Kilpatrick asserts that he had an expectation of privacy with
respect to those records, he cites no authority to support
his contention that the VA-OIG was required to get a warrant
to inspect or obtain the VA's own patient records when
investigating fraud, waste or abuse within the
Kilpatrick's reliance on HIPAA is also misplaced. HIPAA
permits a “covered entity” to “disclose to
a law enforcement official protected health information that
the covered entity believes in good faith constitutes
evidence of criminal conduct that occurred on the premises of
the covered entity.” 45 C.F.R. § 164.512(f)(5).
Covered entities include a “health plan, ” a
“health care clearinghouse, ” and a “health
care provider who transmits any health information in
electronic form in connection with a transaction” that
HIPAA covers. Id. § 164.104(a). It is not clear
at what point in the investigation Mr. Kilpatrick contends
that HIPAA was violated, as he simply asserts that the
“Government” violated the act when it obtained
his medical records. [Doc. 35 at 5.] Presuming that Mr.
Kilpatrick means to refer to VA-OIG's or the Department
of Justice's obtaining of the medical records in
connection with the investigation and prosecution of this
case, HIPAA has no application because neither VA-OIG nor the
Department of Justice qualifies as a covered entity under
HIPAA. See United States v. Prentice, 683 F.Supp.2d
991, 1001 (D. Minn. 2010) (“[A] law enforcement agency
is not a covered entity, subject to the restraints on the use
or receipt of protected medial information.”);
United States v. Elliott,676 F.Supp.2d 431, 440 (D.
Md. 2009) (“Law enforcement agencies, including the
office of the prosecuting attorney, are not covered entities
under [HIPAA]”). Even so, assuming arguendo
that the “Government” somehow violated HIPAA by
providing access to patient records to VA-OIG, the Court
agrees with the government that Mr. Kilpatrick has not shown
that suppression would be an appropriate ...