Munger v. United States of America, No. 3:2019cv05571 - Document 88 (W.D. Wash. 2022)

Court Description: ORDER granting Parties' 87 Stipulated MOTION Compelling Production of Adult Protective Services Records. Signed by Judge Thomas S. Zilly.(MW)

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Munger v. United States of America Doc. 88 Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 1 of 14 THE HONORABLE THOMAS S. ZILLY 1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE STEVEN MUNGER as PERSONAL REPRESENTATIVE of the ESTATE of MATTHEW MUNGER, 12 13 14 Plaintiffs, NO. 3:19-cv-005571-TSZ STIPULATED REQUEST FOR AN ORDER COMPELLING PRODUCTION OF ADULT PROTECTIVE SERVICES RECORDS vs. 15 UNITED STATES OF AMERICA, DON CIANCI PROPERTIES, LLC, a Washington Company, JOHN DOES 1-5, 16 Defendants. 17 18 Plaintiff Steven Munger (“Plaintiff”) and Defendants Don Cianci Properties, LLC 19 (“Defendant Cianci”), and United States of America (“Defendant USA”), by and through their 20 respective counsel of record, respectively submit this Stipulated Request for an Order 21 compelling the Production of Adult Protective Services (“APS”) records (the “Stipulated 22 Request”), with reference to the following facts: 23 24 25 1. On June 21, 2019, a complaint was filed on behalf of Matthew Munger alleging that while at the office of the Social Security Administration (“SSA”), in Longview, Washington, Mr. Matthew Munger tripped and fell on a rug sustaining injuries. Dkt. 1 STIPULATED REQUEST FOR AN ORDER COMPELLING PRODUCTION OFAPS RECORDS Betts Patterson Mines -1- One Convention Place Suite 1400 701 Pike Street Seattle, Washington 98101-3927 (206) 292-9988 Dockets.Justia.com Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 2 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 2. Matthew Munger subsequently passed on February 14, 2021. Thereafter, Steven Munger was appointed personal representative of the Estate of Matthew Munger, and a Fourth Amended Complaint was filed on October 1, 2021. Dkt. 76. 3. On November 24, 2021, all parties signed a revised stipulation to obtain the DSHS records of Matthew Munger. See Ex. A. 4. On November 29, 2021, the parties requested all records related to Mr. Munger from DSHS and included an Authorization to Disclose form signed by Steven Munger, as personal representative of the Estate of Matthew Munger. See Ex. B. 5. On December 1, 2021, DSHS denied the request, stating that it required a court order to complete this request because the documentation did not prove that the personal representative of Mr. Munger’s estate had specific authority to authorize the release of confidential DSHS client records of the deceased. See Ex. C. 6. As noted by the prior release signed by Steven Munger, Plaintiff consents to the disclosure of the DSHS records in accordance the rules set out in RCW 70.02.030. 15 Plaintiff’s consent includes “All parts of the Department of Social and Health 16 Services records, including, but not limited to all Adult Protective Services records.” 17 18 19 20 21 22 Id. This consent also allows for the disclosure of all HIV/AIDS and STD test results, diagnosis or treatment records, mental health records, and substance use disorder records. Id. 7. The parties requested that the Court enter an Order requiring DSHS to produce all parts of the DSHS records related to Matthew Munger. This included, but was not limited to, all Adult Protective Services records and disclosure of all HIV/AIDS and 23 24 25 STIPULATED REQUEST FOR AN ORDER COMPELLING PRODUCTION OFAPS RECORDS Betts Patterson Mines -2- One Convention Place Suite 1400 701 Pike Street Seattle, Washington 98101-3927 (206) 292-9988 Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 3 of 14 1 2 3 4 5 6 7 8 9 STD test results, diagnosis or treatment records, mental health records, and substance use disorder records. Dkt. 85. The Court entered the Order on April 1, 2022. Dkt. 86. 8. While DSHS has produced records, counsel for APS has indicated that different language is necessary for the production of APS records in compliance with RCW 74.34.995. Accordingly, the parties now seek an Order directed specifically at production of APS records. 9. As Matthew Munger is deceased, the parties know of no danger presented by the disclosure of APS records to the life or safety of a vulnerable adult or reporter. IT IS SO STIPULATED THROUGH COUNSEL OF RECORD. 10 11 12 DATED this 19th day of May, 2022. RUSSEL & HILL, PLLC UNITED STATES ATTORNEY’S OFFICE /s/ Brandon K. Batchelor Brandon K. Batchelor, WSBA No. 42477 Attorneys for Plaintiff Munger 3811A Broadway Everett, WA 98201 brandon@russellandhill.com /s/ Whitney Passmore Whitney Passmore, Florida Bar No. 91922 Attorneys for Defendant United States of America 700 Stewart Street, Suite 5220 Seattle, WA 98101 Whitney.passmore@usdoj.gov 13 14 15 16 17 18 19 20 21 22 23 24 BETTS PATTERSON & MINES, P.S. /s/ Dawna J. Campbell Dawna J. Campbell, WSBA No. 27335 Attorneys for Defendant Don Cianci Properties, LLC Betts, Patterson & Mines, P.S. 701 Pike Street, Suite 1400 Seattle, WA 98101 dcampbell@bpmlaw.com 25 STIPULATED REQUEST FOR AN ORDER COMPELLING PRODUCTION OFAPS RECORDS Betts Patterson Mines -3- One Convention Place Suite 1400 701 Pike Street Seattle, Washington 98101-3927 (206) 292-9988 Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 4 of 14 1 ORDER 2 I. Findings and Conclusions 3 4 5 6 7 1.1 Disclosure of Adult Protective Services (“APS”) records is necessary in this matter and in the interests of justice. 1.2 Disclosure of APS records apparently will not endanger the life or safety of a vulnerable adult or reporter. 8 II. Order 9 2.1 The requesting party (Defendant Cianci) is authorized to receive a copy of the 10 11 APS records, if any, relating to Matthew Munger, provided that APS shall not be required to 12 release the identities of persons making reports under RCW 74.34.035, and shall have the right to 13 reserve other privileged or confidential information as it deems appropriate to protect the alleged 14 incapacitated person. RCW 42.56.640. APS shall have the option of redacting identifying 15 information of persons other than the protected person, who are named in the record, pending 16 notification that release of the record has been ordered by a court or consented to by the named 17 witnesses, residents, patients, clients, or complaints, pursuant to RCW 74.34.095 and RCW 18 19 20 43.190.110. 2.2 The authorized production of APS records includes disclosure of all HIV/AIDS 21 and STD test results, diagnosis or treatment records, mental health records, and substance use 22 disorder records. 23 24 2.3 The documents released are provided for the purpose of proceeding in the above- referenced action. It shall be the responsibility of the requesting party (Defendant Cianci), and 25 not APS, to provide discovery to any other required parties. STIPULATED REQUEST FOR AN ORDER COMPELING PRODUCTION OF DSHS RECORDS Betts Patterson Mines -4- One Convention Place Suite 1400 701 Pike Street Seattle, Washington 98101-3927 (206) 292-9988 Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 5 of 14 1 2.4 The parties will destroy all medical records containing protected health 2 3 4 information and mental health treatment records at the conclusion of the above-referenced legal matter. 5 6 Dated this 23rd day of May, 2022. 7 A 8 ________________________________ Thomas S. Zilly United States District Judge 9 10 11 12 Approved as to form; Notice of Presentation Waived: 13 14 15 16 17 OFFICE OF THE ATTORNEY GENERAL By /s/ Courtney Vale Lyon Courtney Vale Lyon, WSBA #43226 Assistant Attorney General Attorneys for Adult Protective Services 18 19 20 21 22 23 24 25 STIPULATED REQUEST FOR AN ORDER COMPELING PRODUCTION OF DSHS RECORDS Betts Patterson Mines -5- One Convention Place Suite 1400 701 Pike Street Seattle, Washington 98101-3927 (206) 292-9988 Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 6 of 14 EXHIBIT A Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 7 of 14 1 The Honorable Thomas S. Zilly 2 3 4 5 UNITED STATED DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 9 10 STEVEN MUNGER, as Personal Representative of the ESTATE OF MATTHEW MUNGER, 11 Plaintiff, 12 13 14 15 No. 3:19-cv-05571-TSZ STIPULATION TO OBTAIN THE DSHS RECORDS OF MATTHEW MUNGER vs. UNITED STATES OF AMERICA; et al. 16 Defendants. 17 18 19 20 21 22 23 24 25 COME NOW the parties hereto, through their respective counsel, and stipulate as follows: That the records librarian of the named facility attached is hereby authorized to release copies of, or make available for copying by a field representative of T-Scan, 4200 23rd Avenue West, Suite 200, Seattle, Washington 98199, the complete records 26 27 28 of the person disclosed herein, pursuant to the attached Authorization For The Release Of Records in accordance with changes in federal law under HIPAA and consistent with 29 30 31 Washington law requirements and that the facility will be paid by T-SCAN, INC. at the time of copying said materials, with T-Scan subsequently being reimbursed by each of 32 STIPULATION TO OBTAIN THE DSHS RECORDS OF MATTHEW MUNGER - Page 1 FALLON McKINLEY PLLC A T T O R N E Y S A T 155 NE 100TH STREET, SUITE 401 SEATTLE, WASHINGTON 98125 (206) 682-7580 FAX (206) 682-3437 L A W Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 8 of 14 1 the respective counsel who shall be responsible for payment to T-Scan for their copying 2 3 4 services, upon receipt of copies of the records. The copies so produced shall be identified as the authenticated records of 5 6 7 MATTHEW L. MUNGER Further identification at the time of hearing or trial being waived, but objections as to competency, materiality and relevance being reserved until 8 9 10 the time of hearing or trial. The parties agree that the records will not be used for any purpose outside of this litigation. If either party intends to file any portion of these 11 12 13 14 15 16 17 records in court, the filing party will take appropriate measures to protect confidential information, including, redacting the document of all confidential information, and/or seeking permission to file such documents under seal. 11/24/2021 DATED: _________________________ DATED: July 27, 2020 ________________________________ Brandon K. Batchelor, WSBA #42477 Attorney for Plaintiff /s/ Nancy T. McKinley Nancy T. McKinley, WSBA #7992 Attorney for Defendant Don Cianci Properties X Copies requested: YES ____ No ____ Copies requested: YES ____ No ____ 18 19 20 21 22 23 24 25 26 27 DATED: __11/23/2021_______________________ 28 29 30 31 32 __/s/Heather C. Costanzo____________ Heather C. Costanzo, FL #37378 Attorney for Defendant USA Copies requested: YES ____ No __X__ FALLON McKINLEY PLLC STIPULATION TO OBTAIN THE DSHS RECORDS OF MATTHEW MUNGER - Page 2 155 NE 100TH STREET, SUITE 401 SEATTLE, WASHINGTON 98125 (206) 682-7580 FAX (206) 682-3437 A T T O R N E Y S A T L A W Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 9 of 14 EXHIBIT B Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 10 of 14 Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 11 of 14 INSTRUCTIONS FOR COMPLETION OF AUTHORIZATION FORM Purpose: You should use this form w hen you w ant DSHS to be able to disclose confidential information about you to another person (including an attorney, a legislator, or a relative). You may give permission to disclose all confidential records DSHS has about you or you may limit your permission to specific records or parts of the agency. This form w ill also permit DSHS to discuss your situation verbally w ith the person you authorize. Notice to Clients: Most client information DSHS has is confidential and w ill not be disclosed to others unless you grant permission or if disclosure is allow ed by law . After DSHS discloses your confidential information, please be aw are that the recipient may not protect your records under the same law s that apply to DSHS. DSHS cannot refuse you benefits if you do not sign this form to allow disclosures to DSHS unless your authorization is needed to determine eligibility. For information on how DSHS health care components covered by HIPAA share protected health information and your privacy rights, please consult the DSHS Notice of Privacy Practices at w w w .dshs.w a.gov or ask the person w ho gave you this form. You may get a copy of this form. Use: You may fill out this form electronically or by hand. Use the tab key on a computer to move betw een fields. A separate form m ust be com pleted for each person w hose records are requested, including children. “You” refers to the subject of the records. Parts of Form : IDENTIFICATION OF SUBJECT OF RECORDS: • Name: Provide your full name or the name of the person w hose records are requested if you are acting for someone else. • Date of birth: Please include this information needed to identify you from persons w ith similar names. OPTIONAL INFORMATION to help locate records: • Former names: Include any other names that have been used w hen receiving benefits or services. • Client identification number: Provide any number that DSHS may have assigned. • Other identification number: Include any other identifier that could help locate DSHS records. Only provide a social security number if necessary. • Date and location of services: Provide this information to help DSHS identify and locate the records you w ant disclosed. PERSON RECEIVING RECORDS: • Identification: Please fill out this section as fully as possible so w e can contact the person or organization w ho w ill have access to your confidential information. • Reason for Disclosure: This information is required before DSHS can share drug and alcohol or mental health records. If you do not fill in this field, DSHS w ill note the reason for disclosure as being at your request. AUTHORIZATION: • Parts of DSHS: Please mark either the parts of DSHS you w ant to disclose records or mark the bottom box in this section if you w ant to give access to any records DSHS has about you. Write in the name of program in “Other” if not in the list. • Information disclosed: Indicate w hat records that you w ant disclosed. You may allow disclosure of all or part of your DSHS client or other confidential records. You may also limit disclosure to client records held only by the parts of the agency marked in the section above, or to specific records listed on this form or on an attachment you sign. If there are any limitations on w hat records you w ant disclosed, either list specific records or describe the limits, such as by date of services or type of record. • Restricted records: If any of the records may include information about HIV/AIDS or STD testing or treatment, mental health treatment, or substance use disorder services, you must check each item to allow DSHS to disclose these records. Use Psychotherapy Authorization, form DSHS 17-270, to authorize disclosure of psychotherapy notes (45 CFR 164.508(b) (3) (ii)). • Validity: This form is valid to give access to information currently held by DSHS. Your permission expires 180 days after signature or on any other date or event you provide. If you do not provide a date, the authorization w ill be valid for 180 days. You may revoke the authority to release records in w riting at any time but it w ill be too late to take back information already produced. • Cost: The public records act in RCW 42.56.120 and WAC 388-01-080 allow DSHS to charge for copies of records plus mailing costs. State hospitals and health care facilities may charge for patient records under Chapter 70.02 RCW. SIGNATURES: • If you are the subject of the records, sign and also print or type your name below . Insert the date you signed plus your telephone or contact number. • If you are signing for another person, indicate w hy you can do so on the last line and attach a copy of the court order or other document giving you legal authority. Children must also sign to give permission to disclose their ow n confidential records if they are over the age of consent (13 for mental health and drug and alcohol services; 14 for information about HIV/AIDS or other STDs; any age for birth control and abortions; 18 for health or other records). • Witness or notary: A w itness or notary may be needed to verify your identity if you do not submit this form in person or if a program requests verification. This person should sign and print his or her name. NOTICE TO DSHS: If these records contain HIV or STD information, DSHS must notify recipients that the information is confidential and that they may not further disclose the records w ithout a specific authorization as required by RCW 70.02.300. If DSHS sends copies of records regarding substance use disorder services under this authorization, DSHS must include the follow ing statement w hen disclosing information as required by 42 CFR 2.32: This information has been disclosed to you from records protected by Federal confidentiality rules (42 CFR part 2). The Federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the w ritten consent of the person to w hom it pertains or as otherw ise permitted by 42 CFR part 2. A general authorization for the release of medical or other information is NOT sufficient for this purpose. The Federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient. AUTHORIZATION DSHS 17-063 (REV. 12/2019) PAGE 2 OF 2 Doc ID: abc05c79503b7a7aa96cffa91becc29e2e122aa8 Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 12 of 14 EXHIBIT C Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 13 of 14 STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES Office of the Secretary Information Governance PO Box 45135 Olympia Washington 98504-5135 December 1, 2021 Johnny Trieu T-Scan Corporation 4200 23rd Avenue West Suite 200 Seattle WA 98199 Emailed to: johnny.trieu@tscan.biz and aminfo92@tscan.biz RE: Request for Public Records – DSHS Request ID # 202111 PRR 497 Dear Johnny Trieu: This letter responds to your request under the Public Records Act, Ch. 42.56 RCW. We received your request on November 29, 2021. Please use the above request ID number when contacting us about this request. You asked for client records regarding Matthew Munger. Any client records held by DSHS about this person would be confidential and privileged under RCW 74.04.060, and other state and federal laws that govern DSHS programs. We must have a valid authorization or court order to allow us to give you client records held by DSHS. Because some parts of DSHS are the health care components of a HIPAA-covered entity and/or are subject to Washington’s health care information access and disclosure law, authorizations must meet the requirements of 45 C.F.R. §164.508 and RCW 70.02.030(3). Court orders must be entered after notice to DSHS and must meet the requirements in any applicable confidentiality laws. You have not sent proof of legal authority to allow DSHS to give client records to you. We received the Letter of Administration you provided; however, due to the confidentiality laws that govern DSHS programs, we require legal documentation that details the authority of an appointed Administrator prior to processing requests for client records. In addition, you sent a stipulation related to this request signed by the attorneys in this case; however, the stipulation documents we received did not include the judge’s signature, required with a court order. The document you sent shows that the signer of the authorization has been appointed by the court as the Personal Representative of the Estate. It does not provide documentation regarding the personal representative’s specific authority as it relates to requesting or authorizing the release of confidential DSHS client records of the deceased. Due to the confidentiality laws that govern our programs, we require confirmation that the orders authorize the release of our confidential records before we can release records. Once we receive the documents that detail the extent of the legal authority of the Administrator, we may proceed with processing this request. Please send the requested documents to our office. Johnny Case 3:19-cv-05571-TSZ Document 88 Filed 05/23/22 Page 14 of 14 202111 PRR 497 December 1, 2021 Page 2 We must deny your request for client records and cannot process it further until we receive the documentation detailing the authority of the Administrator to permit us to disclose information to you. After you send this documentation, we will respond further with an estimate of the time needed to provide any client records that DSHS may hold for this person. If you do not submit this within two weeks, December 15, 2021, 2019, we will consider your request to be withdrawn and will no longer process the request. If you have any questions, please feel free to contact our office. Sincerely, Andrea Sterzer DSHS Public Records Specialist Phone: 360-902-8484/Fax: 360-902-7855 / DSHSPublicDisclosure@dshs.wa.gov

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