CBS Compliance Corner – October

CBS recently wrote about protected health information as it related to a consumer’s request for the production of evidence during litigation. More frequently, however, requests for protected health information (PHI) come from CBS in the form of further inquiry into the availability of additional minimum necessary PHI.

As previously discussed in our August 2016 newsletter, PHI includes, amongst other elements, individually identifiable health information that relates to payment for healthcare services, “with respect to which there is a reasonable basis to believe the information can be used to identify the individual.” 45 C.F.R. § 160.103.

The minimum necessary PHI needed by CBS to complete its collection services often includes information concerning the patient’s spouse, because, while a husband or wife generally is not liable for the contracts or obligations of the other spouse, there is an exception to this rule when the contract is for expenses that arose to pay for “necessities of the family.” Mont. Code Ann. § 40-2-106(1).

Necessities of the family, or necessary articles, “includes all goods and services that are reasonably required to provide for the health, welfare, comfort, and education of the married person, the person’s spouse, and minor children, taking into consideration the earnings, resources, and general standard of living of the persons.” Mont. Code Ann. § 40-2-210.

The Montana Supreme Court has addressed whether a non-contracting spouse is liable to pay for health care services provided to the other spouse, and the Court has consistently held that the non-contracting spouse is obligated to pay for such services since they are necessities of the family. Specifically, the Court has held that sections 40-2-106 and 40-2-210 “make a person liable for the medical expenses of [his or her] spouse and child.” Serrania v. LPH, Inc., 379 Mont. 17, 24 (2015).

The Montana Supreme Court has also observed that the definition of “necessary articles” is expansive, and can even include attorney’s services incurred by the other spouse to obtain an order of protection against an abusive non-contracting spouse. Missoula YWCA v. Bard, 295 Mont. 260, 267 (1999). In reaching this decision, the court reasoned that necessaries “includes ‘things indispensable, or things proper and useful, for the sustenance of human life,’” which is not limited to “only food, clothing, shelter, transportation and medical care.” Missoula YWCA, 295 Mont. at 263-264.

Since many of our medical clients provide services that may be considered necessary articles, CBS would ask our clients to remember that minimum necessary PHI also includes information concerning spouses, which may be used to obtain payment from the non-contracting spouse as a necessity of the family.

As always, this column should not be construed as legal advice and CBS would recommend that our clients consult their own legal counsel.