A Legal Question & Answer feature from the TPA Bulletin, a monthly publication for Texas Press Association members
David H. Donaldson Jr. is a media law attorney with Graves, Dougherty, Hearon & Moody in Austin. Contact him at 512-480-5760 or ddonaldson@gdhm.com.
October 2002 -- HIPAA restricts flow of medical information
QUESTION: I read recently where new federal regulations prevented disclosure of medical information. Is this something new?
ANSWER: While the federal legislation itself is not new, the federal regulations governing privacy were finalized in August 2002.
The legislation is called HIPAA, which stands for Health Insurance Portability and Accountability Act. Congress passed it in 1996 to improve health insurance coverage.
Only recently has the U.S. Department of Health and Human Services created privacy regulations to implement HIPAA?s provisions. These privacy regulations severely restrict what health and medical professionals may disclose about a patient unless they have specific consent from the patient or the patient's parent or guardian.
The privacy rule does not directly affect the press in the sense that it does not prohibit press disclosure of the information if you can obtain it, but your sources of information may be affected by the limitations imposed by HIPAA.
HIPAA directly affects hospital personnel including media relations officers, nurses, doctors, private physicians, social workers, paramedics and insurance companies. Even those entities that exchange electronic medical information, marketing and research entities also are controlled by HIPAA.
Under HIPAA most medical information is restricted from disclosure, although hospitals can confirm the presence of a patient and a one-word statement of condition, but only if the patient has not opted out of the directory and only if the reporter already knows the patient's name.
Texas law had already provided restrictions on the disclosure of medical information, but it has now adopted the HIPAA standards, Texas Health & Safety Code, 181.001, et. seq.
These restrictions do not prevent reporters from asking questions, but you can expect the hospital administrators to be fairly closed-lipped. HIPAA will make it much more difficult for hospital and medical personnel to post lists of injured persons in a public place during an emergency or release lists of admitted persons unless proper notification and consent where necessary had been obtained.
HIPAA does not control or affect police or fire departments. If they have information concerning the medical condition, they can be used as a source. Patients themselves or their parents or guardians or legal representatives can effectively consent to the release of information.
The new federal regulations on disclosure of medical information are still being sorted out. Recent reports even raised questions whether football coaches could report on a player?s condition after an injury in a game.
The HIPAA regulations will make it much more challenging to cover stories involving medical issues and medical providers.
HIPAA Facts
• Health Insurance Portability and Accountability Act; passed in 1996 to improve health insurance coverage. Full effective date: April 2003
• New privacy regulations severely restrict what health and medical professionals may disclose about a patient unless they have specific consent from the patient or the patient's parent or guardian.
• Does not prohibit press disclosure of the information if it can be obtained.
Personnel affected:
• hospital media relations officers
• nurses
• doctors
• private physicians
• social workers
• paramedics
• insurance companies
Not affected
• police
• firefighters
• patients
• parents of patients
Resources
American Hospital Assoc., www.aha.org
Health and Human Services http://www.hhs.gov/ocr/hipaa/