In which of the following scenarios would enforcement of specific performance be appropriate

45 CFR 164.502(b), 164.514(d)   (Download a copy in PDF)

Background 

The minimum necessary standard, a key protection of the HIPAA Privacy Rule, is derived from confidentiality codes and practices in common use today. It is based on sound current practice that protected health information should not be used or disclosed when it is not necessary to satisfy a particular purpose or carry out a function. The minimum necessary standard requires covered entities to evaluate their practices and enhance safeguards as needed to limit unnecessary or inappropriate access to and disclosure of protected health information. The Privacy Rule’s requirements for minimum necessary are designed to be sufficiently flexible to accommodate the various circumstances of any covered entity.  

How the Rule Works

The Privacy Rule generally requires covered entities to take reasonable steps to limit the use or disclosure of, and requests for, protected health information to the minimum necessary to accomplish the intended purpose. The minimum necessary standard does not apply to the following:  

• Disclosures to or requests by a health care provider for treatment purposes.  
• Disclosures to the individual who is the subject of the information.  
• Uses or disclosures made pursuant to an individual’s authorization.  
• Uses or disclosures required for compliance with the Health Insurance Portability and Accountability Act (HIPAA) Administrative Simplification Rules.  
• Disclosures to the Department of Health and Human Services (HHS) when disclosure of information is required under the Privacy Rule for enforcement purposes.  
• Uses or disclosures that are required by other law.  

The implementation specifications for this provision require a covered entity to develop and implement policies and procedures appropriate for its own organization, reflecting the entity’s business practices and workforce. While guidance cannot anticipate every question or factual application of the minimum necessary standard to each specific industry context, where it would be generally helpful we will seek to provide additional clarification on this issue in the future. In addition, the Department will continue to monitor the workability of the minimum necessary standard and consider proposing revisions, where appropriate, to ensure that the Rule does not hinder timely access to quality health care. 

Uses and Disclosures of, and Requests for, Protected Health Information

For uses of protected health information, the covered entity’s policies and procedures must identify the persons or classes of persons within the covered entity who need access to the information to carry out their job duties, the categories or types of protected health information needed, and conditions appropriate to such access. For example, hospitals may implement policies that permit doctors, nurses, or others involved in treatment to have access to the entire medical record, as needed. Case-by-case review of each use is not required. Where the entire medical record is necessary, the covered entity’s policies and procedures must state so explicitly and include a justification. For routine or recurring requests and disclosures, the policies and procedures may be standard protocols and must limit the protected health information disclosed or requested to that which is the minimum necessary for that particular type of disclosure or request. Individual review of each disclosure or request is not required. For non-routine disclosures and requests, covered entities must develop reasonable criteria for determining and limiting the disclosure or request to only the minimum amount of protected health information necessary to accomplish the purpose of a non-routine disclosure or request. Non-routine disclosures and requests must be reviewed on an individual basis in accordance with these criteria and limited accordingly. Of course, where protected health information is disclosed to, or requested by, health care providers for treatment purposes, the minimum necessary standard does not apply. Reasonable Reliance. In certain circumstances, the Privacy Rule permits a covered entity to rely on the judgment of the party requesting the disclosure as to the minimum amount of information that is needed. Such reliance must be reasonable under the particular circumstances of the request. This reliance is permitted when the request is made by: 

• A public official or agency who states that the information requested is the minimum necessary for a purpose permitted under 45 CFR 164.512 of the Rule, such as for public health purposes (45 CFR 164.512(b)).
• Another covered entity.
• A professional who is a workforce member or business associate of the covered entity holding the information and who states that the information requested is the minimum necessary for the stated purpose. 
• A researcher with appropriate documentation from an Institutional Review Board (IRB) or Privacy Board.

The Rule does not require such reliance, however, and the covered entity always retains discretion to make its own minimum necessary determination for disclosures to which the standard applies. 

Please review our Frequently Asked Questions about the Privacy Rule.

OCR HIPAA Privacy 

December 3, 2002 Revised April 4, 2003

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There are a few different legal remedies a party may consider when another party has allegedly breached its contractual obligation, including lawsuits and arbitration. However, sometimes a monetary remedy doesn't quite make the plaintiff whole, which is the goal of any civil remedy.

Courts can order defendants in contract disputes to actually perform the contractual duties as originally agreed if it is determined that money alone cannot resolve the issue. This is called specific performance

Specific Performance: Overview

Specific performance is a specialized remedy used by courts when no other remedy (such as money) will adequately compensate the other party. If a legal remedy will put the injured party in the position he or she would have enjoyed had the contract been fully performed, then the court will use that option instead. The most common reason courts grant specific performance is that the subject of the contract is unique, when it's not merely a matter of money or where the true amount of damages is unclear. When a contract is for the sale of a unique property, for instance, mere money damages may not remedy the purchaser's situation.

Example: Rina offers to buy Beth's house and Beth accepts, but later decides to keep the property. Real estate is considered to be unique. Since there is no other piece of property or house exactly like Beth's, Rina may be entitled to specific performance on the contract. Beth would be compelled to go through with the sale.

Specific Performance and 'Replevin'

The term replevin -- commonly referred to as "claim and delivery" -- refers to a legal action in which actual property (not its monetary value) must be transferred to the plaintiff in a dispute. It is similar to specific performance and often used interchangeably in statutes. For instance, the UCC states that a buyer "has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing..."

In other words, a court may order specific performance in the form of replevin (transfer of actual goods) as a remedy in a contractual dispute when cash damages are not sufficient.

When is Specific Performance Ordered?

Courts will enforce specific performance only if the underlying contract was fair and equitable. Other commodities that courts have found to support specific performance include works of art, custom-made products, and goods in short supply. Nearly all states have adopted the Uniform Commercial Code (UCC), which addresses specific performance. For example, California law states that specific performance may be compelled if:

1. Specific performance would otherwise be an appropriate remedy;  and

2. The agreed counterperformance has been substantially performed or its concurrent or future performance is assured or, if the court deems necessary, can be secured to the satisfaction of the court.

As you can see, an order for specific performance is largely left up to the discretion of the courts. The second requirement is meant to ensure that the other party (the plaintiff) also has performed or will perform its obligations as specified by the contract.

Talk to an Attorney About Your Breach of Contract Case

The best time to hire an attorney typically is before you are faced with a legal action, since lawyers are trained to help clients avoid such legal vulnerabilities. But if you or your business has been named in a contract breach lawsuit, or you need to file such a suit, it's in your best interests to work with an attorney. Protect the integrity and future success of your business by contacting a local small business attorney today.

Introduction:

The courts of the United States normally grant only monetary damages to a claimant in litigation. Indeed, there is overwhelming authority that the courts are only to grant monetary damages except in unique and specified circumstances. 

There are times, however, when the courts will grant orders requiring a party to perform some act or transfer some asset rather than grant monetary damages and those times are usually related to circumstances in which monetary relief would not afford the plaintiff an adequate remedy.

The classic examples are sales of real property since each parcel is considered unique and performance of a concert by an artist of unique talent.

In certain circumstances, courts can order defendants in contract disputes to actually perform the contractual duties as originally agreed if it is determined that money alone cannot resolve the issue. Thus, a singer X can be compelled to attend a concert and perform, or the seller of real estate can be compelled to transfer title.

This is called specific performance and this article discusses the basic law that applies.

The Basic Law:

Specific performance is a disfavored remedy utilized by courts when no other remedy (such as monetary damages) will adequately compensate the party seeking relief. If a monetary (commonly called “legal remedy”) will not put the injured party in the position he or she would have enjoyed had the contract been fully performed, then the court will use an order requiring action by the defendant, instead (commonly called “equitable remedy.”)  The most common reason courts grant specific performance is that the subject of the contract is unique and adequate just relief requires more than a transfer of money and/ or where the true amount of damages is unclear. When a contract is for the sale of a unique property, for instance, mere money damages may not remedy the purchaser's situation.

             Requirements for Specific Performance:

Courts will enforce specific performance only if the underlying contract was “fair and equitable.” It is up to the plaintiff to demonstrate that the contract was an appropriate one, legal, with each party receiving fair consideration for performance.

Since monetary damages are awarded whenever possible, it is also vital for the plaintiff to demonstrate that the unique nature of the asset at issue requires specific performance and that monetary damages would not suffice. Commodities that courts have found to support specific performance include works of art, custom-made products, and goods in extremely short supply.

Most states have adopted the Uniform Commercial Code (UCC), which addresses specific performance criteria, including California.

California law states that specific performance may be compelled if:

1. Specific performance would otherwise be an appropriate remedy; and
2. The agreed performance by the plaintiff has been substantially performed or its concurrent or future performance is assured or, if the court deems necessary, can be secured to the satisfaction of the court.

Note that an order for specific performance is largely left up to the discretion of the courts. Even in those situations in which specific performance may be allowed, the court has discretion not to grant it. For example, if a plaintiff is purchasing a two-bedroom condo in a large project, the defendant breaches, but other identical condos are available, the court may conclude that monetary damages are sufficient, even though real property is at issue.

Specific performance is an alternative equitable remedy to a cause of action for breach of contract. Hence, the statement of a cause of action in a suit for specific performance calls for two kinds of allegations: those that establish the right to recover for breach of contract, as well as those that are essential to the granting of the equitable remedy of specific performance.

The equitable remedy sought in an action for specific performance is a court order requiring the defendant to perform the action he or she promised to perform. For example - where a contract is for purchase of real estate, an action for specific performance asks the court to order the defendant to sell the property to the plaintiff on the terms stated in the contract.

When specific performance is impossible, or the pleading or proof does not justify that remedy, the court may grant monetary damages in lieu of specific performance if the complaint sufficiently alleges the pecuniary loss suffered.

Thus, a complaint for specific performance should allege:

1. 1. The making of a specifically enforceable type of contract, sufficiently certain in its terms and with legally competent parties;
   2. Adequate mutual consideration;
   3. Just and reasonable contract;
   4. Plaintiff's performance, tender, or excuse for nonperformance;
   5. Defendant's breach of the agreement
   6. Inadequacy of the remedy at law (monetary damages).

Inadequacy of monetary damages is a fundamental condition of any kind of equitable relief. Accordingly, the complaint must set forth facts to show that the breach cannot be adequately compensated for in damages. (Flood v. Templeton (1905) 148 C. 374, 378, 83 P. 148; Morrison v. Land (1915) 169 C. 580, 586, 147 P. 259; Sheppard v. Banner Food Products (1947) 78 C.A.2d 808, 813, 178 P.2d 455; 11 Summary (9th), Equity, §21; infra, §§760, 761.)

             Illustrative Examples:

Contract Concerning Personal Property: Specific performance of an agreement to transfer personal property depends on pleading and proof of the facts of inadequacy of remedy, e.g., the unique nature of the property or its lack of determinable market value. (See Emirzian v. Asato (1913) 23 C.A. 251, 256, 137 P. 1072)

Contract to Purchase Real Property: In the case of a contract for the transfer of land, or an interest in land, whether by sale or lease, it is presumed that damages would not adequately compensate. The plaintiff need not establish inadequacy of the legal remedy in the particular case; historically, land is treated as unique, and specific performance will therefore be granted as a matter of course unless some other equitable reason for denial is shown. In the case of a single-family dwelling that the party seeking performance intends to occupy, this presumption is conclusive. In all other cases, this presumption is one affecting the burden of proof. (C.C. 3387; see Remmers v. Ciciliot (1943) 59 C.A.2d 113, 119, 138 P.2d 306; Fleishman v. Woods (1901) 135 C. 256, 261, 67 P. 276; Pike v. Hayden (1950) 97 C.A.2d 606, 612, 218 P.2d 578 [agreement to lease service station and cafe]; Ellison v. Ventura Port Dist. (1978) 80 C.A.3d 574, 579, 145 C.R. 665, citing the text; Abadjian v. Superior Court (1985) 168 C.A.3d 363, 374, 214 C.R. 234

Entertainment by Unique Performer:

The seminal case was Lumley v. Wagner, decided 101 years ago.  This case involved an opera singer but is now used routinely in theatre and movie contracts. The following is a typical recital of provisions found in many motion picture contracts today:

During the term hereof the artist will not render his services as an actor, nor will he pose, act, appear, write, direct or render any other services in any way connected with motion pictures or photoplays, nor will he render any services of any kind or character whatsoever in any way connected with dramatic, theatrical, musical, vaudeville, radio, television or other productions, shows, performances and/or entertainment, nor will he render any other similar services to or for himself or to or for any other person, firm or corporation other than the producer without the prior written consent of the producer. The artist further agrees that he will not consent to nor permit any other person to advertise, announce or make known, directly or indirectly, by paid advertisements, press notices, or otherwise, that he has contracted to do or perform any act or services contrary to the terms of this agreement. The producer shall have the right to institute any legal proceedings in the name of the artist or otherwise to prevent such acts or any of them. It is distinctly understood and agreed that the services to be rendered by the artist hereunder and the rights and privileges herein granted to the producer by the artist are of a special, unique, unusual, extraordinary and intellectual character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law and that a breach by the artist of any of the provisions contained herein will cause the producer irreparable injury and damage. The artist expressly agrees that the producer shall be entitled to injunctive or other equitable relief to prevent a breach of this agreement by the artist.

As can be seen, the wording specifically refers to those criteria which would normally grant specific performance, in this case an injunction. Note the court would still have discretion to determine if such relief was justified.

Conclusion:

Courts are loathe to grant orders since monetary damages are a far easier means to afford compensation. If a court grants an order, it often must enforce it with additional orders should the party fail to perform, and such involvement can be complex and long lasting. Alternatively, awarding monetary damages finishes the court’s involvement since the party can seek to enforce that judgment via writs of execution that do not require constant court participation.

The party seeking such equitable relief must be prepared to overcome the reluctance of most courts to go beyond monetary damages. It is certainly possible and in the case of real property transactions, almost routine, but proper preparation of pleadings is essential.