what you can do about the restrictions

Since the introduction of new medical privacy rules adhering to the federal Health Insurance Portability and Accountability Act of 1996, journalists nationwide report difficulties in securing medical records and information for their deadline and investigative efforts.

The good news is, the rules themselves -- the Standards for Privacy of Individually Identifiable Health Information -- do not go into full effect until April 14, 2003, offering journalists more than nine months to explore ways to combat ill effects of the rules.

Here are some strategies:

1. Comment on the rules.

Perhaps the most obvious tactic to stave off the effects of the rules is to go after the rules themselves. The Department of Health and Human Services in April closed a second round of public comments concerning the rules.

More are expected.

Charles Davis, executive director of the Freedom of Information Center at the University of Missouri, said frequent rule revisions are likely over the next year and noted that journalists must be prepared to weigh in on the rules before they hit the code books.

While the first round garnered more than 52,000 comments, only a couple, including a set from the Reporters Committee for Freedom of the Press, espoused the community interest in keeping certain records open for newsgathering purposes. During the second round, press groups, including the Reporters Committee and the Society of Professional Journalists , offered comments.

More comments are needed.

2. Work with hospitals and medical associations to encourage the release of information during emergencies, tragedies, accidents and other newsworthy situations.

The rules don't specifically address the legalities of releasing certain medical records, particularly hospital directory information, for newsgathering purposes or for the community good.

"I don't believe the drafters of the rules intended for the media to be shut out because there is no mention of the community interest," said Ian Marquand, who follows freedom-of-information issues for SPJ. "But if you don't give them permission and you have harsh penalties, I think the interpretation will be: We're not allowed to give that information out."

When the public and journalists express interest in accidents or emergencies, hospital officials might turn to the rules for guidelines and discover that none exist. The default response: We cannot release that.

"I think newsrooms need to take a proactive role and work with major health care providers, especially in the smaller communities and make sure that you talk to those folks and try to work out situations where, in the worst-case scenarios, you get the information," Marquand said.

A number of press associations, including the New Jersey Press Association and the Hoosier Press Association, have done just that, initiating conversations with hospital groups to ensure that information long open to the public remains open.

3. Support legislation protecting whistle-blowers.

Because so many medical stories rely on knowledgeable insiders compelled to expose wrongdoings, the rules threaten one of the most significant sources of medical reporting.

Joan Mazzolini, a reporter at The Plain Dealer in Cleveland, said the true test of the new HIPAA regulations might be the first attempt by authorities to prosecute a whistle-blowing doctor or nurse. For Mazzolini, a Pulitzer-Prize finalist, a concerned nurse often has been the source of invaluable information.

"I think the first time that someone goes after them for that, that is going to have a chilling effect," Mazzolini said. "I think that's a detriment to medical care in the United States as a whole. It will take some time to know how whistle-blowing laws and privacy laws will coincide."

4. Encourage lawmakers to approve openness laws.

Success in persuading state lawmakers to support a community interest in disclosure of certain hospital and medical records is as difficult as it sounds.

"Any time you talk privacy and medical records, it hits a nerve," said Steve Key of the Hoosier Press Association. "No one thinks these records should be made public, but the public doesn't consider how medical records help reporting. They think in terms of themselves as opposed to the community good."

Key suggests that securing the support of state lawmakers, particularly those who've experienced problems with nondisclosure, might help the cause of openness.

He notes that in Indiana, state Sen. Rose Antich (D-Merrillville) became an especially vocal advocate for opening ambulance records to the public after rescue workers in her hometown failed to respond to a heart attack call for her husband, who died soon after.

Antich may be an exception, Key said, noting that it is difficult to persuade politicians to debate against privacy.

"It's very easy for legislators to make points by closing things off and not worrying so much about the balance, because it's very popular to say, 'I protected your privacy.'"

5. Challenge nondisclosure.

Whenever hospital officials refuse to release directory information, make the case for openness.

"As journalists, we have to be really vigilant and be squeaky wheels about records," Mazzolini said. "We've got to say, 'You've got to show us where in the law,' it cannot be just: 'The law allows us not to.'

"Journalists give up too quickly on records already," she said. "I hope the rules don't make them less inclined to get them. We don't fight hard enough for things clearly open to the public right now."

6. Strive for top-notch reporting.

Fred Schulte of the South Florida Sun Sentinel said nothing in medical reporting tops pounding the hospital and health beats and wearing out a little shoe leather. Even if records are public, the best investigative stories rarely rely on information found from a single source. Agencies usually only have a partial role in any issue and rarely talk to each other. The investigative reporter often is the one who puts the pieces together.

"We've been doing that for years," Schulte said. "The investigative reporters have always had to plow around these things anyway."