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United States v. Kilpatrick

United States District Court, N.D. Georgia, Atlanta Division

November 1, 2018




         On 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.

         This 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 DENIED.[1]

         I. Background

         On 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 at 2.]

         Mr. 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).]

         The 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.]

         The 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. [Id.]

         Finally, 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.]

         II. Analysis

         A. A warrant was not necessary for law enforcement to interview physicians or obtain VA medical records.

         In 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).

         Here, 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 agency.[2]

         Mr. 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 ...

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