Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016 Page 1 of 27

ATTORNEYS FOR APPELLANT

David J. Karnes

Michael G. Foley

Dennis, Wenger & Abrell P.C.

Muncie, Indiana

ATTORNEY FOR APPELLEE

Gregory K. Blanford

The Blanford Law Office

South Bend, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Meridian Health Services 

Corporation,

Appellant-Intervenor,

v.

Thomas Martin Bell,

Appellee-Respondent.

September 14, 2016

Court of Appeals Case No.

71A04-1511-DR-2005

Appeal from the St. Joseph 

Superior Court 

The Honorable Jenny Pitts Manier, 

Judge

Trial Court Cause No.

71D05-1002-DR-94

Robb, Judge.
Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016 Page 2 of 27

Case Summary and Issue

[1] Meridian Health Services Corporation (“Meridian”) appeals the trial court’s 

order finding it in contempt of court for failure to comply with a subpoena 

duces tecum and appear at a deposition and awarding attorney’s fees as a 

sanction pursuant to Indiana Trial Rules 26(C) and 37(A)(4). Concluding the 

trial court did not abuse its discretion in holding Meridian in contempt and 

ordering it to pay attorney’s fees, we affirm.

Facts and Procedural History

[2] In 2011, the trial court entered a decree dissolving the marriage of Thomas Bell 

(“Father”) and Angela Bell (“Mother”). The decree incorporated the parties’ 

agreement to share joint legal custody of their child, K.B., with Mother having 

primary physical custody. Father thereafter filed several motions to modify 

parenting time. Ultimately, Mother and Father agreed to an alternate parenting 

schedule, which the trial court approved on June 12, 2014. In the interim, 

Mother began taking K.B. to see a therapist at Meridian. 

[3] In March 2015, Father’s attorney contacted Meridian requesting K.B.’s therapy 

records in reference to an ongoing domestic relations matter. Meridian did not 

release K.B.’s records at that time, indicating Father would need to submit a 

signed medical release form. Prior to receiving Father’s release form, Meridian 

sought and received from K.B.’s physician a letter stating it was “medically 

necessary that the records of [K.B.’s] therapy sessions not be released to her 
Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016 Page 3 of 27

parents.” Corrected Appellant’s Appendix at 33 (emphasis in original). The 

letter dated April 2 explained,

Much of [K.B.]’s anxiety is related to stress within the family. 

Because [K.B.] needs to be able to openly talk with her therapist, 

she needs to be assured that her words cannot be used against her 

. . . . It is medically very important that [K.B.] continue in 

counseling and that she be confident in the safety of her 

relationship with her therapist. Any release of these records to 

[her] parent[s] could jeopardize her care and her mental and 

physical health.

Id. 

[4] Meridian received Father’s release form on May 14. Rather than release K.B.’s 

records, Meridian responded on May 15 with a letter from its counsel noting it 

had received a letter from K.B.’s physician stating “it is not in the best interests 

of [K.B.] to have her records released to her parents.” Id. at 31. Meridian 

indicated it would therefore release the records only upon the issuance of a 

court order pursuant to the procedures set forth in Indiana Code chapter 16-39-

3:

I am sure that you are aware of the strict provisions within both 

state and federal law for the disclosure of a patient’s mental 

health records especially in situations where the patient has not 

consented. In addition, Indiana law also provides for situations 

where the patient should not even be permitted disclosure of their 

own mental health records when it . . . would be detrimental to 

the physical and mental health of the patient. See Ind. Code § 16-

39-2-4. As such, we believe this physician letter properly invokes 

the language within [section] 16-39-2-4 and would restrict access 

to the patient based upon the advice and concerns of the patient’s 
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physician that disclosure would be detrimental to the physical or 

mental health of the patient. Since the Indiana Code does not 

provide any independent right to the parents of minor children to 

access their [children’s] mental health records other than the 

ability to “exercise the patient’s rights on the patient’s behalf” 

under Indiana Code Section 16-39-2-9, we believe the restrictions 

in Section 16-39-2-4 concerning disclosure when it would be 

detrimental to the physical and mental health of the patient apply 

to a parent’s request on behalf of the minor patient . . . . As such, 

it is my opinion that these records should not be released to the 

parents pursuant to any executed Medical Release or 

Authorization for Disclosures, but will be released only upon the 

issuance of a court order pursuant to the procedures set forth 

under Indiana Code [chapter 16-39-3] for disclosure without 

consent of the patient. 

Id. at 31-32. Around the same time, Mother filed a petition to suspend Father’s 

parenting time, alleging Father emotionally abuses K.B. The trial court 

modified Father’s parenting time to telephone contact only pending an 

evidentiary hearing set for July 21, 2015. 

[5] In preparation for that hearing, Father served a notice of deposition on K.B.’s 

therapist, a subpoena duces tecum for K.B.’s therapist to produce her “complete 

file in regards to [K.B.]” at the deposition, and a declaration of Father’s 

compliance with the Health Insurance Portability and Accountability Act of 

1996 (“HIPAA”). Id. at 27-30. Meridian received the notice on July 9; the 

deposition was scheduled for July 16. On July 13, Meridian filed a motion to 

quash and motion for protective order, arguing state and federal law prohibited 

Meridian from disclosing the information to Father without a court order. The 

court took no action on the motion to quash prior to the scheduled deposition. 
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After K.B.’s therapist failed to appear for her deposition on July 16, Father filed 

a motion for rule to show cause why K.B.’s therapist should not be held in 

contempt, and the trial court scheduled a hearing on both parties’ motions.

[6] K.B.’s physician and her therapist both testified at the hearing held on 

September 8. K.B.’s physician examined K.B. on two or three occasions prior 

to being contacted by Meridian and writing the letter in April 2015, although 

she could not say exactly when. As for the letter itself, 

Q [W]hat was the reason for writing this letter?

A I had been contacted by Meridian that they—that [K.B.’s] 

records were being requested. And it is our position that 

the – what is said in a therapy session or in a doctor’s 

session is not releasable . . . .

The Court: When you say “our position” do you—can you 

clarify what “our” means?

[Physician:] [I]t’s the standard position of pediatricians.

* * *

Q [W]hat was the reasoning behind writing this letter?

A [T]here is stress between the parents. And whenever we 

see stress and conflict between the parents, anything that 

puts the child or the child’s words between the parents is 

detrimental to the child. So the fact that there is conflict 

between the parents would mean that the child’s words 

should be protected so that the child is not put in between 
Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016 Page 6 of 27

in the conflict of those parents. 

* * *

Q Did you feel like this child would not be able to continue 

in therapy if she was required to have these records 

released?

A Therapy would at least—continued therapy—therapy 

would at least be put in jeopardy.

* * * 

Q And did you reflect that it was in your medical 

professional opinion very important that this child 

continue in counseling?

A Yes.

Transcript at 40, 44-45. Although K.B.’s physician mentioned protective orders 

issued against Father as an additional concern, she admitted she lacked 

personal knowledge of any such orders:

[Meridian’s Attorney] [D]o you know of anything outside of 

your HIPAA restrictions that would make you believe that 

the stressors in this situation were greater than any normal 

situation?

A Yes. . . . The fact that we are aware of restraining orders 

having been taken out.

The Court: Who’s “we?”

A Our office.
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* * *

Q What is your understanding of the restraining orders that 

you’re aware of?

A That there are restraining orders against the father with 

various agencies in the County.

Q Does your agency have such a restraining order?

A [M]y office does not.

Q Do you know what the basis of those are, based on your 

knowledge?

A No.

* * *

[Father’s attorney] So it’s your recollection that some 

agency somewhere told you something about a restraining order, 

of which you know nothing about the facts, exists against 

[Father]; correct?

A Correct.

Id. at 49-50, 52. K.B.’s physician further testified she contacted Child 

Protective Services (“CPS”) in reference to K.B.:

[Father’s attorney] About what?

[Meridian’s attorney] I would object in regards to her 
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behavioral therapy—

[Physician] I cannot say what [K.B.] said.

The Court Stop. When was the contact made, 

approximately?

[Physician] To the best of my recollection there were two 

contacts and they were both before April.

The Court Okay. And were they a result of something 

the child said or something the child’s mother 

said, or do you remember?

[Physician] Something that the child said.

The Court Okay. Was she alone with you when this 

was said?

[Physician] Yes.

The Court Okay. Do you know if anything has 

transpired as a result of those contacts?

[Physician] I know that there was an investigation, and I 

know that the child was interviewed by a 

forensic psychiatrist.

Id. at 56-57. 

[7] K.B.’s therapist echoed her physician’s concerns:

Q Is there any reason why—without revealing any 

confidential mental health records—why you feel like this 

case is stronger than others for non-release?
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A Yes. I feel like she wouldn’t open up to me. She wouldn’t 

feel the safety of therapy that needs to be there. To open 

up and talk about issues.

Q Is that a standard concern across the board with children 

of this age?

A No.

Q Is there any reason outside of your relationship . . . that 

would make you more concerned in this case than others?

A As—as [K.B.’s physician] said, just the conflict level 

between the parents.

Id. at 62. K.B.’s therapist also mentioned “[b]eing screamed at on the phone 

several times” by Father and “ending the phone call because of that.” Id. at 63.

[8] On September 15, the trial court denied Meridian’s motion to quash and 

motion for protective order, concluding the provisions of the Indiana Code 

which permit a provider to withhold a patient’s records if the information 

would be detrimental to the patient’s health do not apply to the release of 

records to third parties.1 The statute addresses a provider’s ability to withhold 

the release of records “to the patient him or herself,” the trial court explained. 

App. at 12. Moreover, since Father shares legal custody of K.B. with Mother 

 

1 The trial court cited Indiana Code section 16-39-1-5 in its order. Indiana Code chapter 16-39-1 “applies to 

all health records except mental health records . . . .” Ind. Code § 16-39-1-1(a) (emphasis added). Section 16-

39-1-5 and section 16-39-2-4 both provide for withholding requested information from the patient under 

certain conditions, but Indiana Code section 16-39-2-4, specific to mental health records, is the appropriate 

citation in this case and is the section relied upon by the parties.
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and there was no court order limiting Father’s access to K.B.’s records, the trial 

court concluded Indiana Code section 16-39-2-9 unequivocally required the 

release of K.B.’s records to Father. The trial court ultimately concluded Father 

is not required to submit to the procedures outlined in Indiana Code chapter 16-

39-3 to acquire the records but “strongly admonished [both Father and Mother] 

that neither is to convey to the child, directly or indirectly, that he or she has 

had access to the child’s records . . . .” Id. at 15. The trial court’s order noted 

that “[a]lthough [K.B.’s therapist] may determine she cannot testify at a 

deposition, she should appear, make that record and return [sic] over the 

subpoenaed records.” Id. 

[9] On September 25, Meridian filed a motion to correct error, arguing the trial 

court’s interpretation of Indiana Code chapter 16-39-2 creates a less restrictive 

standard for access to protected health information than the standard imposed 

by HIPAA at the federal level. Stated differently, Meridian argued the trial 

court’s interpretation of state law would improperly conflict with the federal 

law. See 45 C.F.R. § 160.203(b) (stating HIPAA preempts state law unless 

“[t]he provision of State law relates to the privacy of individually identifiable 

health information and is more stringent”). 

[10] On September 29, Father served a second deposition notice and subpoena 

duces tecum on K.B.’s therapist to appear on October 2. Father also filed a 

petition for attorney’s fees pursuant to Indiana Trial Rules 26(C) and 37(A)(4). 

The following day, Meridian filed a motion to stay the proceedings pending the 

court’s ruling on Meridian’s motion to correct error. Meridian also requested 
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an emergency hearing on its pending motions, but the court was unavailable for 

a hearing prior to the scheduled deposition. Therefore, on October 2, Meridian 

tendered K.B.’s records directly to the trial court, along with a motion to seal 

the records under Indiana Administrative Rule 9(G)(2). Meridian stated it 

“does not desire to violate the Court’s order . . . but continues to believe that 

disclosure could jeopardize the well-being of the child, is not in her best 

interests, and should not be required under both state and federal law.” App. at 

88. The motion to seal requested “the Court not disclose [K.B.’s] records to the 

parties or their counsel herein until resolution of all pending Motions filed by 

[Meridian] as well as any potential appellate action which may be taken by any 

of the parties . . . .” App. at 89.2 

[11] The trial court held a hearing on October 6 after which it issued a letter to the 

parties’ attorneys stating the trial court had reviewed K.B.’s records and would 

make the records available for in camera review: 

You may take notes but you will not be permitted to make any 

copies of these records and I am [directing that] you not share 

any information with your respective clients as to what you have 

discerned from your review of the health records. Rather, I 

would like the two of you to meet with one another after you 

have completed your review to discuss whether you can reach 

agreement as to how to re-institute, or not, parenting time for 

 

2 Although not entirely clear from the record, it appears K.B.’s therapist did not attend the deposition 

scheduled for October 2 because another deposition was scheduled for a later date at which the therapist 

appeared and entered an objection to answering any questions with regard to communication with K.B. See

Tr. at 109.
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[Father]. I would like you to have completed your review and 

your discussions by October 23, 2015.

Id. at 94. Father’s attorney on the same day filed a verified affidavit for 

attorney’s fees, which included as an exhibit an itemized list of the fees Father 

incurred with respect to obtaining K.B.’s records from Meridian, totaling nearly

$5,900 at that time.

[12] On October 12, Meridian filed a petition to certify for interlocutory appeal the 

trial court’s order denying Meridian’s motion to quash and motion for 

protective order. The petition asserted essentially the same argument as 

Meridian’s pending motion to correct error. The trial court declined to certify 

the order and issued a new order permitting the parties to copy the records 

tendered to the court. Thereafter, Father filed a motion for issuance of orders 

on pending motions and petitions, including Father’s petition for attorney’s 

fees. At a hearing on the pending motions, the trial court noted with respect to 

its initial determination that Meridian was required to disclose the records: 

[M]y sense of the evidentiary hearing was that the danger was no 

different than any person in—any child. You know, this is the 

environment we live in. Any child of divorce who’s in therapy is 

in no different situation than this child. I didn’t see anything 

particularly . . . no one came forth with any level of detail specific 

to this child that had the nature of the gravity that’s being 

asserted. 

Tr. at 118. The trial court granted Father’s petition for attorney’s fees, 

reasoning: 
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[Meridian’s] agent failed to appear for a deposition of which she 

had been notified and with respect to which she had been served 

a subpoena duces tecum, directing her to bring with her certain 

health care records of the parties’ child. [Meridian] did file a 

Motion to Quash and for Order of Protection two (2) days prior 

to the scheduled deposition, but that Motion was not ruled upon 

by the Court at the time of the scheduled deposition.

Subsequently, [Meridian] argued that the release of the child’s 

medical records was governed by I.C. 16-39-1 and -2, that no 

consent had been given for the release of the records, that the 

child’s health care provider had determined that the release of the 

records would be detrimental to the child’s health, and that 

further proceedings under I.C. 16-39-3 were required. The Court 

conducted such further proceedings. No substantial evidence 

was presented to support the claim that the release of the records 

to Father would be detrimental to the child. Moreover, the Court 

determined that Father should not have been required to invoke 

the procedures set forth at I.C. 16-39-3. Significant legal 

expenses were incurred needlessly by Father.

* * *

[Meridian] is determined to be in contempt of Court for failure to 

comply with the subpoena duces tecum and failure to appear at 

the deposition.

App. at 18-19. Meridian was ordered to pay to Father’s counsel $6,270 in 

attorney’s fees. This appeal followed.3

 

3

It appears the trial court never explicitly ruled on Meridian’s motion to correct error. It was therefore 

deemed denied pursuant to Trial Rule 53.3(A).
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Discussion and Decision

I. Standard of Review

[13] Meridian contends the trial court erred in awarding attorney’s fees to Father 

pursuant to Indiana Trial Rules 26(C) and 37(A). Trial Rule 26(C) allows a 

court, upon a party’s motion, to take measures to limit discovery when required 

to protect a person from “annoyance, embarrassment, oppression, or undue 

burden or expense.” The provisions of Trial Rule 37(A)(4) apply to the award 

of expenses incurred in relation to a motion for protective order. Ind. Trial 

Rule 26(C). Pursuant to Trial Rule 37(A)(4), a presumption arises that the trial 

court will also order reimbursement of the prevailing party’s reasonable 

expenses, including attorney’s fees, subject only to a showing that the losing 

party’s conduct was “substantially justified.” A person is “substantially 

justified” in resisting discovery, for purposes of avoiding the sanctions provided 

by Trial Rule 37, “if reasonable persons could conclude that a genuine issue 

existed as to whether a person was bound to comply with the requested 

discovery.” Penn Cent. Corp. v. Buchanan, 712 N.E.2d 508, 513 (Ind. Ct. App. 

1999), trans. denied.

[14] A trial court’s rulings on discovery violations and attendant sanctions are given 

a strong presumption of correctness because they are usually fact-sensitive. 

Gonzalez v. Evans, 15 N.E.3d 628, 633 (Ind. Ct. App. 2014), trans. denied. We

will reverse only upon a showing that the trial court abused its discretion. 

Huber v. Montgomery Cnty. Sheriff, 940 N.E.2d 1182, 1185-86 (Ind. Ct. App. 
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2010). An abuse of discretion occurs when the trial court’s decision is clearly 

against the logic and effect of the facts and circumstances before the court or 

when the trial court has misinterpreted the law. M.S. ex rel. Newman v. K.R., 871 

N.E.2d 303, 311 (Ind. Ct. App. 2007), trans. denied. 

II. Attorney’s Fees for Motion to Quash

[15] The trial court’s order awarding attorney’s fees to Father was the result of the 

trial court’s original decision denying Meridian’s motion to quash and motion 

for protective order, making Father the prevailing party entitled to an award of 

expenses incurred in opposing the motion. Although Meridian appeals the 

attorney’s fee order, the crux of Meridian’s argument is that the trial court’s 

original order denying the motion to quash was an abuse of discretion because 

Meridian was substantially justified in challenging the discovery request based 

on federal and state statutes relating to mental health records. Therefore, in 

order to determine whether the trial court’s award of attorney’s fees as a 

sanction for failing to comply with discovery was appropriate, we must first 

determine whether Meridian’s challenge to the request was substantially 

justified.
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A. HIPAA Privacy Rule4

[16] “HIPAA protects individuals from unwarranted dissemination of medical and 

mental health records by restricting access to such records without the 

individual’s direct consent.” E.J. ex rel. Jeffrey v. Okolocha, 972 N.E.2d 941, 945 

(Ind. Ct. App. 2012). In general, a covered entity may not use or disclose 

protected health information, except as specifically permitted. 45 C.F.R. § 

164.502(a); see also E.J. ex rel. Jeffrey, 972 N.E.2d at 945 (“In general, HIPAA 

requires that ‘covered entities’ . . . obtain patient authorization before disclosing 

protected health information.”). A health care provider is specifically permitted 

to disclose protected health information to “the individual” receiving health 

care, 45 C.F.R. § 164.502(a)(1)(i), or to a “personal representative” of the 

individual, 45 C.F.R. § 164.502(g)(1). A “personal representative” includes a

parent who has authority under applicable law to act on behalf of an 

unemancipated minor in making decisions related to health care. 45 C.F.R. § 

164.502(g)(3)(i).5 The health care provider may therefore disclose protected 

health information to the parent of an unemancipated minor in most 

 

4

Father contends Meridian waived any argument pertaining to HIPAA because Meridian first raised HIPAA 

in its motion to correct error. Although we agree a party may not raise an issue for the first time in a motion 

to correct error, Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000), we conclude Meridian sufficiently raised 

the issue prior to its motion to correct error, see, e.g., App. at 31 (letter dated May 15 stating Meridian will 

move to quash any subpoena that does not comply with the provisions set forth in Indiana Code chapter 16-

39-3 because “both federal and state law have strict disclosure restrictions”); id. at 25 (motion to quash stating 

“Indiana Code Section 16-39-2-3 and Federal law prohibit Non-Party from disclosing to [Father] the 

information requested within the Notice of Deposition and the Subpoena Duces Tecum”).

5 There are three exceptions to this general rule in which the parent will not be recognized as the personal 

representative and the minor will be treated as the individual for purposes of access to protected health 

information. 45 C.F.R. § 164.502(g)(3)(i)(A)-(C). None of those exceptions apply here.
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circumstances. Id. Regardless of whether the parent is otherwise considered a 

personal representative, HIPAA defers to state law with respect to the ability of 

the parent to obtain health information about the minor child: the health care 

provider may disclose to a parent the minor’s protected health information to 

the extent it is permitted or required by state law; conversely, the health care 

provider may not disclose the information when and to the extent state law 

prohibits such disclosure. 45 C.F.R. § 164.502(g)(3)(ii)(A), (B).

B. Indiana Law

[17] Indiana law regarding the mental health information of minors begins with the 

premise that records can be disclosed with the consent of the patient, Ind. Code 

§ 16-39-2-3, and a parent is entitled to exercise the minor patient’s rights on the 

patient’s behalf, Ind. Code § 16-39-2-9(a)(1);

6

therefore, a parent may consent to 

disclosure on behalf of his or her child. Moreover, a custodial parent and a 

non-custodial parent have equal access to a child’s mental health records. Ind. 

Code § 16-39-2-9(b); see also Ind. Parenting Time Guidelines § I(D)(4) (“Under 

Indiana law, both parents are entitled to direct access to their child’s . . . mental 

health records . . . .”). However, if there exists a court order that limits the 

noncustodial parent’s access and the health care provider has received a copy of 

the order or has actual knowledge of the order, then the provider must abide by 

the terms of the court order. Ind. Code § 16-39-2-9(b). At the outset then, state 

 

6 There are comparable provisions for non-mental health medical records in Indiana Code chapter 16-39-1.
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law required Meridian to disclose K.B.’s mental health information to both 

Father and Mother unless there was a court order limiting Father’s access. 

There was no such order in place at the time Father made his request for access 

to the records. 

[18] Not only was there no such order limiting Father’s access at that time, no such 

order has been requested since, by either Mother or Meridian. Rather than 

seeking a court order limiting Father’s access, Meridian restricted Father’s 

access on its own initiative and has asserted throughout this litigation that 

because K.B.’s therapist and physician determined that the requested 

information would be detrimental to K.B., Father was required to seek a court 

order granting him access. Indiana Code section 16-39-2-4 provides:

A patient is entitled to inspect and copy the patient’s own mental 

health record. However, if the provider that is responsible for the 

patient’s mental health records determines for good medical 

cause, upon the advice of a physician, that the information 

requested under this section is detrimental to the physical or 

mental health of the patient, or is likely to cause the patient to 

harm the patient or another person, the provider may withhold 

the information from the patient.

(Emphasis added.) As the trial court found, this provision is directed to the 

potential for harm caused by the patient inspecting his or her own records. See

App. at 12. In fact, Meridian seemed to acknowledge as much in its May 15 

letter declining to provide the records to Father after receiving his signed 

consent when it cited section 16-39-2-4 and stated, “[W]e believe this physician 

letter properly invokes the language within this Section 16-39-2-4 and would 
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restrict access to the patient . . . .” Id. at 31 (emphasis added). But Meridian also 

asserted that the only right parents have is to exercise the minor child’s rights 

on the child’s behalf and if the provider may withhold the records from the 

child pursuant to section 16-39-2-4, it may withhold the records from the 

parents, as well. Accordingly, Meridian declared it would be withholding the 

records from Father and Father’s only recourse was to seek a court order 

pursuant to Indiana Code chapter 16-39-3 when disclosure is sought absent 

patient consent.7 

[19] We understand Meridian’s concern over allowing a third party access to records 

that may be withheld from the patient. But by its plain language, section 16-39-

2-4 restricts only the patient’s access to his or her own records. Compare Ind. 

Code § 16-39-2-4 with Cal. Health & Safety Code § 123115(a)(2) (“The 

representative of a minor shall not be entitled to inspect or obtain copies of the 

minor’s patient records . . . [w]here the health care provider determines that 

access to the patient records requested by the representative would have a 

detrimental effect on the provider’s professional relationship with the minor 

patient or the minor’s physical safety or psychological well-being.”); N.Y. 

 

7 Meridian’s position is somewhat internally inconsistent. Section 16-39-2-4 states that “[i]f the provider is a 

state institution or agency, the patient may appeal the provider’s refusal to permit the patient to inspect and 

copy the patient’s own record under IC 4-21.5.” There is no corresponding provision regarding appeal when 

the provider is not a state institution or agency. It therefore appears that if K.B. were an adult being treated 

by Meridian and Meridian made the determination that release of the records to her would be detrimental, 

she would have no recourse. If, as Meridian asserts, Father’s only rights to K.B.’s records stem from K.B.’s 

own rights, then Father would likewise have no recourse, including through the provisions of chapter 16-39-

3, to which Meridian directed him.
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Mental Hygiene Law § 33.16(b)(3) (stating a facility must provide an 

opportunity for a parent to inspect records concerning the care and treatment of 

a minor upon request, “provided, however, that such parent . . . shall not be 

entitled to inspect or make copies of any clinical record concerning the care and 

treatment of an infant where the treating practitioner determines that access to 

the information requested by such parent . . . would have a detrimental effect 

on the practitioner’s professional relationship with the infant, or on the care and 

treatment of the infant or on the infant’s relationship with his or her parents”). 

We agree with the trial court that under Indiana law, Father was entitled to 

direct access to K.B.’s records and was not required to seek a court order to 

obtain them.

C. Restrictions on Access

[20] Notwithstanding the provisions of Indiana law that would allow Father access 

to K.B.’s mental health records without a court order, HIPAA places an 

additional restriction on access by a personal representative that applies 

“[n]otwithstanding a State law . . . to the contrary”:

[A] covered entity may elect not to treat a person as the personal 

representative of an individual if:

(i) The covered entity has a reasonable belief that:

(A) The individual has been or may be subjected to 

domestic violence, abuse, or neglect by such person; or
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(B) Treating such person as the personal representative 

could endanger the individual; and

(ii) The covered entity, in the exercise of professional judgment, 

decides that it is not in the best interest of the individual to treat 

the person as the individual’s personal representative.

45 C.F.R. § 164.502(g)(5).8 

[21] Although a covered entity may decline to treat a person as a personal 

representative if it believes doing so could endanger the individual, the covered 

entity’s belief to that effect must be “reasonable.” 45 C.F.R. § 164.502(g)(5)(i). 

When Father sought disclosure of K.B.’s records, Meridian requested and 

received a letter from K.B.’s physician stating that release of the records could 

“jeopardize [K.B.’s] care and her mental and physical health.” App. at 33. 

Meridian contends it reasonably believed, based on the physician’s letter, 

disclosure of K.B.’s records to her parents could endanger K.B. and on that 

basis, declined to release the records to Father. Making the initial 

determination that records should not be disclosed pursuant to this HIPAA 

provision is certainly Meridian’s right and obligation as a mental health 

provider in service of its client. Once the dispute was placed before the trial 

 

8

If a provision of HIPAA and a provision of state law conflict, the HIPAA provision overrides or preempts 

state law, with certain exceptions. 45 C.F.R. § 160.203. The state law provision will control if it “relates to 

the privacy of individually identifiable health information and is more stringent than a standard, requirement, 

or implementation specification” of the federal law. 45 C.F.R. § 160.203(b). Even without the 

“notwithstanding any contrary state law” language, if 45 C.F.R. § 164.502(g)(5) applies in this situation, it 

would preempt section 16-39-2-4 because the state law, allowing parental access to the records, is less 

stringent than the federal law in this circumstance.
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court, however, the matter of disclosure became a judicial determination rather 

than a therapeutic judgment. See 45 C.F.R. § 164.512(e)(1) (permitting 

disclosure of protected health information in response to a court order). 

[22] At the hearing on Meridian’s motion to quash and motion for protective order, 

the physician could not recall when, prior to writing the letter advising against 

disclosure, she had last seen K.B. In addition, the physician testified that it was 

the “standard position of pediatricians” that “whenever we see stress and conflict 

between parents, anything that puts the child or child’s words between the 

parents is detrimental to the child.” Tr. at 40, 44 (emphasis added). The only 

testimony from K.B.’s physician that was specific to this situation was that she 

had heard some county agencies had protective orders against Father and she 

had contacted CPS on K.B.’s behalf. However, she knew no particulars about

the protective orders and she was unable to provide any detail about what K.B. 

said that caused her to contact CPS. K.B. was apparently interviewed by CPS 

but there was no evidence regarding an ensuing CPS investigation. K.B.’s 

therapist testified that releasing the records might cause K.B. not to “feel the 

safety of therapy that needs to be there.” Tr. at 62. The therapist further 

testified that she had a greater concern for K.B. than other children of her age 

because of the conflict between her parents, but there was no testimony 

regarding why the conflict between these parents was of more concern than the 

conflict that undoubtedly exists between many divorced parents. 

[23] The trial court heard this testimony from K.B.’s physician and therapist and 

ultimately concluded, “No substantial evidence was presented to support the 
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claim that the release of the records to Father would be detrimental to the 

child.” App. at 19. The trial court also noted with respect to this issue,

[T]he pediatrician could provide no specifics other than the 

obvious, but important, observation that if a child is suffering due 

to the conflict between her parents, placing her in a position 

where she feels that one parent can use her communications to 

align her with or against a parent is the potential source of even 

greater suffering. But that would seem to ignore that as a 

consequence of the current arrangement in this case, which 

involves Mother taking the child to the pediatrician and therapist 

and participating in some sessions with the pediatrician (and 

perhaps the therapist)[,] the child is likely to see Mother as 

aligned with her and Father not.

Id. at 14. Although it was the provider’s decision to withhold the records from 

Father on the basis of “parental conflict,” we must note, as the trial court did, 

that Mother “raised no objection to the subpoena and has stood silent through 

subsequent proceedings” regarding release of the records. Id. at 19. And we

further note that this dispute arose in the larger context of a dissolution which 

had been before the trial court for several years. The trial court was no stranger 

to the family dynamics.

[24] We commend the trial court for its careful consideration of the evidence. 

K.B.’s physician testified to some concern over protective orders against Father 

(none of which were protecting K.B.) and to having made a referral to CPS for 

K.B. (which came to nothing). She also testified that the “standard position” of 

pediatricians was that therapy records should not be released to parents 

experiencing “conflict.” Tr. at 40, 44. K.B.’s physician maintained, “[T]he fact 
Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016 Page 24 of 27

that there is conflict between the parents would mean that the child’s words 

should be protected so that the child is not put in between in the conflict of 

those parents.” Id. At best, the physician’s testimony was inconsistent and did 

not clearly indicate whether her advice not to release the records stemmed from 

her standard practice in all divorce/custody cases or from “good medical 

cause” relative to K.B. See Ind. Code § 16-39-2-4. This inconsistency was a 

matter for the trial court to resolve. K.B.’s therapist also relied in large part on 

the generic “conflict” between the parents to support Meridian’s position and 

did not meaningfully distinguish this situation from any other custody dispute. 

The trial court concluded a generalized concern for children whose parents 

experience “conflict” was insufficient to demonstrate a reasonable belief that 

K.B. may be endangered and we cannot say that such a conclusion is erroneous

on this record. 

[25] Despite the lack of particularized concerns, the trial court took great care to 

protect K.B. from knowing her records had been disclosed. In its order denying

Meridian’s motion to quash and motion for protective order, the trial court 

“strongly admonished” the parents not to let K.B. know in any way they had 

access to her records and further admonished them “to comport themselves 

verbally and otherwise in a manner that does not betray their knowledge of 

[her] interactions with her care providers.” App. at 15. After the records were 

not disclosed as ordered but were instead tendered to the trial court, the trial 

court allowed the attorneys to review them in camera, but directed them to not 

share any information from those records with their respective clients. 
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[26] This brings us back to the actual order at issue in this appeal: the sanctions for 

Meridian’s contempt in failing to turn over the records after the trial court 

ordered them to be disclosed. We emphasize that the issue in this case is not 

Meridian’s initial therapeutic judgment that it should not release K.B.’s records; 

nor is the issue the trial court’s judicial determination that the records should be 

released over Meridian’s objection. The issue of a sanction arises because the 

trial court heard the dispute and made a definitive ruling that Meridian did not 

honor. Although we have held herein that Meridian did not have the right to 

withhold the records from Father under Indiana law, and the trial court found 

in its judgment that Meridian had not proved the requirements for withholding 

the records under federal law, we cannot fault Meridian for taking steps it 

thought necessary to preserve patient confidentiality and serve its patient’s best 

interest, especially considering K.B. is unable to advocate for herself, and we 

note the trial court did not sanction Meridian for objecting to release of the 

records in the first instance, either. State and federal law in this area is complex 

and very few cases have interpreted the relevant statutes to offer guidance; in 

addition, once the records have been released, they cannot be protected—so it 

was important for Meridian to exercise its therapeutic judgment until a court 

could hear and decide the matter. Had Meridian made its challenge to 

disclosure and then complied with the ensuing trial court decision, we might 

have been inclined to say a genuine issue existed as to whether it was bound to 

comply with Father’s request and Meridian was therefore substantially justified 

in initially resisting disclosure despite the ultimate determination against its 

position. 
Court of Appeals of Indiana | Opinion 71A04-1511-DR-2005 | September 14, 2016 Page 26 of 27

[27] However, the trial court ordered sanctions only after it held a hearing at which 

Meridian offered evidence in support of withholding the records from Father 

(evidence, incidentally, which Father could not meaningfully controvert 

because he did not have access to the records), it ruled against Meridian’s 

motion to quash and motion for protective order, and yet Meridian continued 

to balk at releasing the records. Meridian filed a barrage of motions and defied 

the trial court’s order that K.B.’s therapist appear at any scheduled deposition, 

make a record of her inability to testify, and turn over the subpoenaed records, 

instead tendering the records directly to the trial court under seal on the date of 

a scheduled deposition. After its initial insistence that Father seek a court order 

allowing disclosure of the records, Meridian’s ongoing defiance of the trial 

court’s order regarding this dispute was not substantially justified, and it likely 

interfered with the court’s management of the underlying dispute. The trial 

court did not abuse its discretion in finding Meridian in contempt for failing to 

provide the records to Father and ordering Meridian to pay the attorney’s fees 

Father incurred as a result of defending against a failed request for a protective 

order.

Conclusion

[28] Because HIPAA permitted and state law clearly required Meridian to release 

K.B.’s records to Father, the trial court did not abuse its discretion in ordering 

Meridian pay Father’s attorney’s fees. We therefore affirm.

[29] Affirmed. 
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Najam, J., and Crone, J., concur.