Health care journalists' access to hospitals curtailed under HIPAA

For health care journalists, the Health Insurance Portability and Accountability Act has changed the way they do their jobs and made telling the stories of patients and those who provide their care more difficult.

Reporters say they devote more time than ever before negotiating for access for health-related articles, often to no avail.

"From stories our members tell us, some hospitals use HIPAA as a convenient way to obstruct reporters. Journalists are spending more time arguing over inaccurate interpretations of the law with hospital media relations specialists," said Carla K. Johnson, a board member of the Association of Health Care Journalists.

On the other side of the issue is the American Hospital Association. Alicia Mitchell, a spokeswoman for the AHA, says most of the time hospitals will work to make sure important health care stories get told despite HIPAA.

"If somebody is coming to profile the pediatrics unit, then the hospital would need to work kind of hard to do that. And HIPAA, quite frankly makes it harder than it was in the past," Mitchell said.

Hospitals are constantly concerned about patient privacy, she said, pointing out that people in hospitals are ill, there to recuperate, and not always prepared to deal with reporters.

"Some patients would be happy to talk with reporters but even when there's a patient that wants to talk with a reporter, there may be one in the same hallway that doesn't," Mitchell said. That, in most cases, is what the hospital staff is worried about when dealing with the media and access, she said.

Deborah Shelton, who covers health care issues for the St. Louis Post-Dispatch, said rather than negotiate for insufficient access to health care institutions, she has simply not reported some stories.

For example, at St. Louis University Hospital, medical students set up a clinic to provide health care to uninsured people. When the public affairs office pitched a story to Shelton about a fundraising auction for the clinic, she suggested a story profiling the clinic.

She wanted to spend a day there, walking around and talking with the students and patients. With a patient's consent, she also wanted to be in the exam room to see how the students interacted with the patient. But the hospital told her the patient's consent did not relieve them of their HIPAA responsibilities.

Shelton said that is not true. "Clearly, if the patient signs a HIPAA form allowing me to be there, there's no reason I can't be there," she said.

She was not able to persuade the hospital to give her more access and never wrote the story. Shelton said she doubts HIPAA was the problem. Instead, she believes that hospital officials were citing the law because they were concerned she would see something they did not want her to, such as the potentially awkward moments that occur when a medical student is just learning how to work with patients.

Such problems have increased in the past year, she said.

"It's not because there's a lack of clarity," Shelton said. "It's because HIPAA is an excuse."

Shelton also pointed to another experience she had writing about a neonatal unit at St. Louis Children's Hospital. She had three meetings with hospital staff to work out logistics, a tactic many people recommend, to head off HIPAA problems before they arise. But it did not work.

One important procedure for Shelton was that she, rather then the hospital staff, approach each family and ask their permission to be in the story. At a meeting, hospital staff agreed to this condition, she said, and everything went well on the first day -- until 5 p.m.

"All of a sudden, one nurse decides she wasn't comfortable with it," Shelton said.

The ground rules she had worked out seemed to fly out the window, she said. The next day, the hospital's public relations staff took over asking families to be in the story. Not another family agreed.

"Everything I got, the story we ended up running, came from everything I got the first day," she said.

Afterward, she had several meetings with staff to express how upset she was with the way things turned out.

Mitchell said the hospital association advises its members that they should be the ones asking for patient permission, just as the association advises members to always escort a reporter inside of a hospital.

"The responsibility is on the hospital and it's because the hospital is the entity with responsibility of protecting the patient's privacy rights," Mitchell said. "When the reporters are on campus, they're supposed to be accompanied by members of the media team, really in order to protect the patient's privacy, which is paramount."

Tonda Rush, a media attorney and director of public policy for the National Newspaper Association, said it is not necessarily advisable to commit to any contract or agreement to writing. To make the agreement legally binding, the reporter would have to also make promises to the hospital, which would provide little flexibility for the reporter.

"If I were the attorney for the media, the last thing in the world I'd want is a contract for that," she said.

Rush said when it comes to entering hospitals, there is little a reporter can do.

"Hospitals are a problem area because there's not really a legal access right," she said.

The information and access reporters enjoyed before HIPAA was more a matter of tradition than a right, she pointed out.

Reporters have to be more creative in getting information now, Rush said. For example, if a reporter is being escorted around the hospital by public affairs staff and not allowed to talk to patients, the reporter can write down patient names, room numbers, and other information they observe and follow up later.

"There's nothing to stop a reporter from approaching a patient," Rush said. "They just can't do it at the hospital."

She also said reporters can have patients willing to share their own medical records request them and then share the copies with the reporters. That is more access then reporters had before HIPAA, when patients had trouble getting their own records, Rush said.

Shelton has her own way of dealing with uncooperative hospitals. Now, she says, if she wants to do a story similar to her profile of the neonatal unit, she will turn to another hospital, one that will want the attention and will be more flexible.

Shelton emphasizes she has a choice of where she reports these types of enterprise stories, which hospitals don't seem to recognize.

"In their attempt to control, they really damage the relationship and they damage journalism," she said.