Issued to: Representatives Karla Rose Hanson and Zachary Ista
Request: Does state or federal law preclude a defendant from disclosing a patient’s PHI?
Conclusion: Although a patient’s PHI may not be required to prove an affirmative defense in all cases, it is reasonable to anticipate some defendants would need to disclose a patient’s PHI to satisfy the elements of one or more affirmative defenses under the statute. State and federal law do not preclude a defendant from disclosing a patient’s PHI in order to assert an affirmative defense to N.D.C.C. § 12.1-31-12, however, the requirements of the applicable disclosure provision under the HIPAA Privacy Rule need to be met prior to disclosure.