Background
Jennifer Fleece sued the Board of Trustees of Hancock Regional Hospital in state court over allegations concerning the disclosure of patient health information through tracking technology associated with an online patient portal. The hospital removed the case to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1).
The hospital argued that it was “acting under” the Department of Health and Human Services because federal regulations implementing the HITECH Act encouraged healthcare providers to establish electronic access to health records. The district court rejected that jurisdictional theory and remanded the case. The Seventh Circuit consolidated the hospital’s appeal with similar appeals involving other healthcare providers.
The Court’s Holding
The Seventh Circuit affirmed the remand orders. It held that the healthcare providers were not “acting under” a federal officer or agency when they created and operated their patient portals. Although federal regulations incentivized electronic access to health records and conditioned Medicare reimbursement on compliance, the providers were complying with regulation rather than carrying out a delegated federal governmental task.
The court also found no unusually close relationship involving detailed federal direction, monitoring, or supervision. The applicable regulations stated what electronic access providers had to make available but did not control how they designed or maintained their portals, and the government’s nonbinding patient-engagement guidance supplied only tips and best practices. Because the “acting under” requirement was not met, the court did not decide whether the challenged conduct related to federal authority or whether the providers had a colorable federal defense.
Key Takeaways
- Federal incentives and extensive regulation do not, without more, make a private healthcare provider a person “acting under” a federal officer for purposes of § 1442(a)(1).
- Operating a private patient portal advances federal policy but is not a basic governmental task delegated to healthcare providers.
- The Seventh Circuit affirmed remand without addressing the merits of the underlying state-law health-data claims.
Why It Matters
The decision limits healthcare providers’ ability to remove patient-portal privacy suits to federal court merely because federal programs encouraged or required electronic access to health records. A provider must show more than regulatory compliance or receipt of federal incentives; it must establish the kind of delegated responsibility and close federal supervision associated with the federal officer removal statute.