United States of America v. State of North Carolina

Filing 34

CONSENT PROTECTIVE ORDER - Signed by Chief Judge James C. Dever III on 6/6/2018. (Briggeman, N.)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

THE UNITED STATES OF AMERICA,
Plaintiff,

Case No. 5:12-cv-557-D

v.
STATE OF NORTH CAROLINA,
Defendant.

CONSENT PROTECTIVE ORDER
After due consideration of the United States' and the State of North Carolina's joint
motion for a protective order pursuant to Rule 26(c)(1) of the Federal Rules of Civil Procedure to
govern the disclosure, treatment, and maintenance of, as well as access to, confidential
information, and ensure that such information is not improperly disclosed, it is hereby
ORDERED that:

1. The United States and the State of North Carolina have agreed to share Confidential
Information, as defined below, to further implementation of the Settlement Agreement,
D.E. 2-2, which aims to "prevent inappropriate institutionalization and to provide
adequate and appropriate public services and supports identified through person centered
planning in the most integrated setting appropriate to meet the needs of individuals with
[Serious Mental Illness], who are in or at risk of entry to an adult care home." Id., liLA.
2. Toward this end, this Protective Order shall govern the treatment of all Confidential
Information that has been or will be produced in connection with this action, whether in
response to a formal discovery request under the Federal Rules of Civil Procedure or in

response to an informal request for information. This Protective Order governs the
parties' use of any Confidential Information received, informally or otherwise, from nonparties for the purpose of furthering implementation of the Settlement Agreement.
3. Confidential Information is defined as information, including electronically stored
·information, that:
a. Reveals the identity of: (i) any individual residing in a state psychiatric hospital or
adult care home ("institutionalized individuals"), (ii) any individual who currently
receives or has in the past received services through the State's Medicaid or other
health programs ("service recipients"), or (iii) any guardian, next friend, or parent
of such institutionalized individuals or service recipients, if disclosure of the
guardian, next friend, or parent's identity would allow determination of the
identity of such institutionalized individuals or service recipients (collectively, the
"Protected Individuals"); and
b. Is confidential pursuant to federal or state law, including but not limited to the
Medicaid Act and its implementing regulations, 42 U.S.C. § 1396a(a)(7) and 42
C.P.R. §§ 431.300-.307; the Health Insurance Portability and Accountability Act
(HIPAA) and its implementing regulations, 42 U.S.C. §§ 1320d-1 to 1320d-7, 45
C.P.R. Parts 160, 162, and 164; the Health Information Technology for Economic
and Clinical Health (HITECH) Act, 42 U.S.C. §§ 17921-53; the Privacy Act, 5
U.S.C. § 552a; North Carolina General Statutes§§ 122C-52, 108A-80, and 131D,
Art. 3; and 45 C.P.R.§ 160.103.
4. Confidential Information produced in this matter shall be used by the receiving party only
for purposes of this matter.

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5. Confidential Information produced in this matter shall be maintained by the receiving
party in a manner that precludes access by persons who are not Authorized Recipients.
6. Authorized Recipients are defined as:
a. The Court and Court personnel;
b. Attorneys for the

Unit~d

States and their investigative, paralegal and support staff,

and contractors;
c. Attorneys for the State of North Carolina and their investigative, paralegal and
support staff, and contractors, as well as public officials and employees of
relevant state agencies;
d. The Independent Reviewer in this matter, and any staff or support employed by
the Independent Reviewer; and
e. Staff at the State-contracted agency or agencies serving the Protected Individual
whose Confidential Information has been disclosed.
7. Confidential Information produced in this matter shall not be disclosed by the receiving
party to any person who is not an Authorized Recipient, except with the written consent
of the relevant Protected Individual.
8. In the event of inadvertent disclosure of Confidential Information to an individual who is
not an Authorized Recipient, the party making the disclosure shall, upon learning of the
disclosure: (a) promptly notify the person or entity to whom the disclosure was made that
it contains Confidential Information subject to this Order; (b) promptly make all
reasonable efforts to retrieve all copies of the Confidential Information from, and
preclude dissemination or use by, the person or entity to whom disclosure was
inadvertently made; and (c) promptly notify the party or non-party that produced the

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Confidential Information that the inadvertent disclosure occurred, the circumstances of
the disclosure, and the steps taken to retrieve and prevent the dissemination or use of the
Confidential Information.
9. Anyone producing a document containing Confidential Information shall identify it by
using the following designation on the information itself: "CONFIDENTIAL." When
designation on the information itself is not practicable, the designation shall appear in an
accompanying cover letter or disc label. However, the failure to designate Confidential
Information as provided in this paragraph shall not constitute a waiver of the assertion
that the materials are subject to this Protective Order, nor shall such a failure alter the
parties' obligations to maintain Confidential Information in accordance with this Order.
10. Ifthe receiving party disagrees with the designation of Confidential Information, the
receiving party shall so notify the producing party or non-party, and they shall attempt to
resolve the dispute in good faith on an informal basis. If the dispute cannot be informally
resolved within 10 business days following the identification of the objection, the
receiving party may file an appropriate motion with the Court. In the event of a dispute
regarding the designation of Confidential Information, the information shall be treated as
Confidential until the dispute is resolved.
11. In the event any party wishes to use Confidential Information in any affidavits, briefs,
memoranda of law, exhibits to motions, or other papers filed in Court in this action, such
party shall conceal the identity of the subject of the Confidential Information by coding
such documents to substitute initials for the identities of the individuals, or by redacting
identifying information. Counsel for a party filing any documents containing coding or
redactions shall provide the other parties with copies of such documents that do not

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contain coding or redactions. In the event the Court wishes to review the material that
was coded or redacted, this Court may review that material in camera or order that the
uncoded or unredacted documents containing Confidential Information be filed under
seal according to Local Rule 79.2 and Section V.G of the Electronic Case Filing
Administrative Policies and Procedures Manual.
12. No party, counsel, or witness shall disclose designated documents containing
Confidential Information in open court, unless said documents have been coded or
redacted to remove Confidential Information. No party, counsel, or witness shall disclose
Confidential Information orally in open court.
13. This Protective Order shall remain in force and effect until modified, superseded, or
terminated by consent of the parties or by Order of this Court, or upon the expiration of
the Settlement Agreement as amended, D.E. 30-1. When this Protective Order, and any
superseding Protective Orders, are no longer in force and effect, Confidential Information,
including all copies, must, in accordance with 45 C.F.R. § 164.512(e)(1)(v), either be
returned to the party or third party that produced the Confidential Information, or be
destroyed.
14. This Protective Order shall serve as a qualified protective order under HIP AA and its
implementing regulations, 45 C.F.R. § 164.512(e), and shall serve as an order allowing
covered entities (as defined in 45 C.F.R. § 160.103), including State psychiatric hospitals,
adult care homes, and other health care providers, to produce documents and medical
records requested in the above-captioned action.
15. Statistical information, compilations, and analyses of information based in whole or in
part upon Confidential Information may be disclosed without violating this Protective

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Order, so long as information from which the identity of any Protected Individual may be
determined or records that are confidential under applicable law are not disclosed without
the consent of the individuals to whom the information pertains.
16. Nothing in this Protective Order prohibits the parties from disclosing Confidential
Information to the extent required by North Caroljna public records law, North Carolina
General Statutes§§ 122C-52, 108A-80, or the Freedom oflnformation Act, 5 U.S.C.

§ 522 et seq. (FOIA), or demanded via subpoena, other process, or order, provided that
the parties shall act in good faith to defend against demands to disclose to non-parties
Confidential Information by subpoena, process, or FOIA to the fullest extent permitted by
law and regulation.
17. The designation, production, or receipt of Confidential Information does not constitute an
admission that the information is confidential, relevant, material, discoverable, authentic,
or admissible.
18. This Protective Order shall not affect the right of any party to raise any permissible
objection to the production or use of any Confidential Information in the above-captioned
action.
19. This Protective Order may be modified, amended, or supplemented by written agreement
of the parties or by order of the Court. A party may file a motion for modification of, or
relief from, this Protective Order after conferring with counsel.

SO ORDERED this __s_ day of ::fvr-.e...

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'2018.

CONSENTED TO BY:
FOR THE STATE OF NORTH CAROLINA:

Is/ Michael T. Wood
MICHAEL T. WOOD
Special Deputy Attorney General
North Carolina Department of Justice
114 West Edenton Street
P.O. Box 629
Raleigh, NC 27602-0629
[e-mail]
Tel. [phone]
Fax [phone]
FOR THE UNITED STATES:

Is/ Norman Acker III
REBECCA B. BOND
Chief
Disability Rights Section
. Civil Rights Division

G. NORMAN ACKER III
Assistant United States Attorney
Eastern District ofNorth Carolina

ANNES. RAISH
Principal Deputy Chief
Disability Rights Section
Civil Rights Division
ELIZABETH S. WESTFALL
Deputy Chief
Disability Rights Section
Civil Rights Division

Is/ Julia M. Graff
JULIA M. GRAFF
Trial Attorney
Disability Rights .Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave NW-NYA
Washington DC 20530
julia.graff@usdoj .gov
Tel. [phone]
Fax [phone]
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