UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DUBOIS, et al.,

 Plaintiffs,

v.

LEVINE, et al.,

 Defendants.

Case No: 4:03-CV-107-SPM

ORDER OF PROTECTION OF CONFIDENTIAL INFORMATION RELATING TO

UNNAMED CLASS MEMBERS

This matter having come before the Court on joint request of counsel for the

parties in the above referenced case. 

This Court has certified a class in this action consisting of all individuals with

traumatic brain or spinal cord injuries who the state has already determined or will

determine to be eligible to receive BSCI Waiver Program services and have not

received such services (class members). 

This Court determined, on March 1, 2004 that the named Plaintiffs are

adequate class representatives and that counsel for the named Plaintiffs now

represent the class certified by the Court.

The Plaintiffs have served discovery requests seeking certain information

pertaining to individual class members. This information is in the possession of

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Defendants. Plaintiffs’ counsel requires this information to represent the class

members in this action. Certain of this information is confidential and/or individually

identifiable health information and must be treated as confidential by all parties and

their agents, all agencies maintaining such information and their agents, as well as

the Court, in accordance with the confidentiality of state and federal law. It is hereby

ORDERED AND ADJUDGED that this Order of Protection of Confidential

Information Relating to Unnamed Class Members shall control the confidentiality of

all information pertaining to class members, including unnamed class members,

that is sought by discovery in this action. The purpose of this Order is to facilitate

the production and use of such information in the litigation while simultaneously

preserving the confidentiality of such information and the privacy interests of class

members. 

1. Subject to the limitations of this Order, the Defendants shall produce,

at a mutually agreed upon schedule, all information and documents properly

requested in this litigation that otherwise would be discoverable but for confidentiality

requirements under state and federal law, including without limitation § 381.775, Fla.

Stat. (2004); 42 U.S.C. §§ 1320d-6 & 1396a; 42 C.F.R. §§ 431.300 - 431.307; 45

C.F.R. §§ 160 and 164. Disclosure in accordance with this Order shall not be

deemed a violation of any class members’ confidentiality rights or the confidentiality

of the Defendants or any of their agents.

2. “Confidential Information” means all information concerning a person’s

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social, behavioral, medical, financial history or condition, supplied by any class

member or, by any person who is a family member of any class member, to the

Defendants. 

3. “Health information” means any information, whether oral or recorded

in any form or medium, that: (1) is created or received by a health care provider,

health plan, public health authority, employer, life insurer, school or university, or

health care clearinghouse; and (2) relates to the past, present, or future physical

or mental health or condition of an individual; the provision of health care to an

individual; or the past, present, or future payment for the provision of health care to

an individual.

4. “Individually Identifiable Health Information” is information that is a

subset of health information, including demographic information collected from an

individual, and: (1) is created or received by a health care provider, health plan,

employer, or health care clearinghouse; and (2) relates to the past, present, or

future physical or mental health or condition of an individual; the provision of health

care to an individual; or the past, present, or future payment for the provision of

health care to an individual; and (i) that identifies the individual; or (ii) with respect

to which there is a reasonable basis to believe the information can be used to

identify the individual.

5. “Class Members” means members of the class defined in this Court’s

Order on Pending Motions dated March 1, 2004. 

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6. “Defendants” and “Plaintiffs” mean the named parties in this action.

7. Confidential Information and Individually Identifiable Health Information

will be used only for the purpose of litigation between the Class Members and

Defendants. 

8. Plaintiffs’ counsel are deemed to have satisfied the waiver

requirements of §381.775(1)(a), Fla. Stat. (2004), as the personal representative of

each of the class members.

9. Defendants shall permit access to and photocopying, at Plaintiffs’

expense, of the records referenced in paragraph 1 for each of the class members

at the local offices where such records are maintained. Such access is granted

solely to Plaintiffs’ counsel, Andrea Costello and Peter Sleasman, consistent with

a schedule mutually agreed upon by the parties.

10. Confidential Information and Individually Identifiable Health Information

will be disclosed only to the following:

a. Counsel for class members and one legal assistant for class

counsel to the extent necessary for purposes of routine office filing and organization

of the documents produced;

b. Counsel for Defendants and one legal assistant for Defendants’

counsel to the extent necessary for purposes of routine office filing and organization

of the documents produced;

c. Employees of the Defendants who already have access to such

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information or would in the normal course of their duties have access to such

information and who will treat the information in accordance with existing

confidentiality requirements under state and federal law; and

d. The class member that is the subject of the record, consistent

with the limitations of §381.775(1)(a), Fla. Stat. (2004).

9. Confidential Information or Individually Identifiable Information shall not

be disclosed to third parties, including other class members, except in a manner that

ensures that an individual class member cannot be identified based upon such

disclosure. 

10. Plaintiffs’ counsel shall ensure that upon termination of this action, all

copies furnished to them pursuant to this Order or copies made thereof and notes

disclosing the contents thereof to the extent they include Confidential Information

or Individually Identifiable Health Information, shall be destroyed.

11. Plaintiffs’ counsel must return to the Court to request further authority

to disclose Confidential or Individually Identifiable Information if they believe such

disclosure is necessary.

12. Plaintiffs’ counsel shall remain subject to §381.775(1), Fla. Stat.

(2004), consistent with this Order.

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DONE AND ORDERED this 15th day of July, 2004. 

s/ A. KORNBLUM 

ALLAN KORNBLUM

 UNITED STATES MAGISTRATE JUDGE

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served

via electronic notification on this 6th day of July, 2004 to the following:

George Waas and Douglas B. MacInnes

Office of the Attorney General

PL01, The Capitol

Tallahassee, FL 32399-1050

 s/ Andrea Costello 

 Andrea Costello

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