From the Spring 2003 issue of The News Media & The Law, page 12.
By Gil Shochat
When University of Texas Longhorn running back Cedric Benson hurt his big toe last fall, university officials refused to release information about the injury, citing the Health Insurance Portability and Accountability Act. The new federal law designed to protect patient privacy went into effect April 14.
In the case of Benson’s toe, rumors about his condition were running rampant, available everywhere but from an official source.
Other universities joined the University of Texas in keeping player injuries secret in an effort to align their policies on releasing health information with soon-to-be-implemented federal regulations.
“Paranoia and gamesmanship have set in nicely within universities all over the country,” the Houston Chronicle noted in an Oct. 11, 2002, op-ed.
But the restrictions on release of medical information go beyond the playing field.
In an April 2002 Amtrak train derailment in Florida, in which four people died, officials took several days to release even vague information such as the number of dead and extent of the injuries suffered by train passengers. The Washington Post, which covered the accident extensively, reported that it did not receive information about the deceased from the hospital, but from a Florida Highway Patrol lieutenant.
With HIPAA now in effect, journalists will see new limits on their sources of medical information. Journalists who routinely have called hospitals for information on a patient’s status or to find out whether someone was at a particular hospital, will have to find new sources for that information.
HIPAA, written during the Clinton Administration and designed in part to protect medical privacy, applies to institutions that provide medical services and transmit billing information in electronic form.
For example, under HIPAA, instead of getting detailed information about the condition of a hospital patient, journalists can get only a one word condition of a patient, such as whether the patient is in stable, critical or unstable condition. And that information will be provided only if the patient has consented to having his information released to the public and only if the journalist has the patient’s full name.
“Everyone’s greatest concern is that it could be unworkable in a breaking news scenario,” said Ron Czakowski, a representative for the New Jersey Hospital Association. “Reporters’ ability to get details and confirmation about a patient’s condition could be handcuffed.”
Anyone who unlawfully discloses medical information faces massive penalties of as much as $250,000 in fines and 10 years in prison. As a result, hospitals have “gotten pretty conservative about what [information] they supply,” said Tonda Rush, a legal consultant to the National Newspaper Association.
“Most are cutting back on information quite a bit more than the law asks them to do,” Rush added.
Journalists must now turn to other sources to get the same information. Some first responders, coroner’s offices, fire fighters and police officers are not in most cases covered by the new regulations.
“These entities should not ordinarily be regulated as subject to HIPAA because they do not in many circumstances provide healthcare and they do not transmit health information in electronic form,” according to an April 14 study by the Media Law Resource Center, a group that specializes in First Amendment law.
While there is some difference of opinion on this point among HIPAA experts, most agree that these sources will remain open.
“Fire departments in most cases probably are not covered by HIPAA, they do provide healthcare services but they don’t seek electronic reimbursement for those services,” said Bryan Wyatt, a HIPAA expert with the law firm Ropes & Gray who helped draft the new HIPAA guidelines for the Greater New York Hospital Association.
Police records should remain open to the public under HIPAA. Law enforcement provides emergency health care only in rare circumstances and very rarely bills for this, according to Czakowski.
HIPAA also does not apply to coroners’ offices and they should be a journalist’s first stop for autopsy records.
“Coroner records are not covered by HIPAA,” said Greg Frost, a lawyer with Adams and Reese in Baton Rouge who has spent years working on HIPAA implementation issues. “Reporters are almost always better off going to coroners to get this information.”
Medical error reports and physician disciplinary records also are not covered by HIPAA and should remain open. Many states require hospitals to file these with public health authorities, which should release these records unless local laws say otherwise.
If they are “reported to a public health authority [and] can be released by [that department under] state law” then they are accessible. “If the record has private [patient] information the hospital won’t release it,” said Richard Marks, a lawyer with the Washington, D.C., office of Davis Wright Tremaine.
Another source for reporters could be the clergy. Under HIPAA, the clergy will be given a listing of all patients that are in the hospital with a one-word summary describing a patient’s condition. Journalists and the clergy could, in theory, share these lists and neither would be in violation of HIPAA.
“What the clergy does with [the hospital lists] is their business. They could even publish this information on the Internet, to use an extreme example,” Frost said
Despite HIPAA’s limited scope, some government bodies around the country seem to be overreacting even though they are probably not covered by the legislation.
For example, an April 21 report in the Lubbock Avalanche-Journal stated that citing HIPAA, “Lubbock police plan[ned] to withhold information about murders and traffic fatalities from the public.”
The article went on to quote a Health and Human Services official who said that HIPAA was “not ever intended” to apply to this type of information.
Meanwhile, “most hospitals are cutting back quite a bit more [on the release of information] than the law asks them to,” which will make the jobs of journalists more difficult, Rush said.
Although alternative sources for information will still be available, journalists will be increasingly frustrated when they try to get information from hospital employees.
“Specific details that are newsworthy will no longer be available,” added Czakowski, who admits to “lots of concerns” about keeping too much information from the media under HIPAA.