February 2004

AG clarifies agencies covered under HIPAA

Police departments are not subject to the privacy provisions in HIPAA and cannot withhold records on crime scenes or accidents simply because a person has been injured, Attorney General Greg Abbott said.

In a much anticipated ruling, the attorney general’s office issued Open Records Decision 681 on Feb. 13 and clarified what entities and government records are covered by privacy provisions in the Health Insurance Portability and Accountability Act (HIPAA).

The provisions in the federal act went into effect April 14, 2003 and have hampered the newsgathering process ever since.

Over the last 10 months reporters across Texas hit roadblocks while trying to gather the news in their communities as many officials over interpreted the HIPAA provisions and shut down the flow of information.

The city of Lubbock took one of the narrowest views and initially said police officers could not talk to reporters.

With the AG’s ruling, now entities should have a clearer picture of how HIPAA and the Public Information Act apply to open government.

In short, the ruling confirms what media attorneys and newspaper industry leaders have been preaching the last 10 months — HIPAA does not affect police or fire departments and does not apply to the press. The ruling also says first responders are not bound by HIPAA.

It does, however, re-clarify that EMS, paramedics, hospital personnel and insurance providers are covered.

The full text of the AG’s opinion can be read online at www.oag.state.tx.us/opinions/or50abbott/ord-681.htm. Here is a summary of the decision:

HIPAA Facts

Personnel affected:
• hospital media relations officers
• nurses
• doctors
• private physicians
• social workers
• paramedics
• insurance companies

Not affected:
• police
• firefighters
• patients
• parents of patients
• first-responders


AG ORD. 681 Highlights:

• A record created by a police officer, including a record that documents an officer’s observation of the medical condition of an individual or a record that contains health information obtained from a covered entity, is not subject to the Privacy Rule since a police department is not a covered entity.

• A first responder organization must release protected health information to the public when the information is requested under the PIA and no exception to disclosure in subchapter C of the PIA applies.

• Read the full text at www.oag.state .tx.us/opinions/or50abbott/ord-681.htm.

“When a covered entity that is a governmental body subject to the Public Information Act is presented with a request under the PIA for protected health information from a member of the public, it must evaluate each disclosure under the PIA as it does now under current procedures.  The Privacy Rule does not make information confidential for the purpose of section 552.101 of the Government Code.  

“A governmental body that is subject to both the PIA and the Privacy Rule must comply with the Privacy Rule in disclosing protected health information that is not requested under the PIA.

“A record created by a police officer, including a record that documents an officer’s observation of the medical condition of an individual or a record that contains health information obtained from a covered entity, is not subject to the Privacy Rule since a police department is not a covered entity under the rule.  

“A first responder organization must release protected health information to the public when the information is requested under the PIA and no exception to disclosure in subchapter C of the PIA applies.  

“For disclosures of protected health information that are not requested under the PIA, the AG’s office will

address the preemption of particular state laws in preparing an analysis for the legislature that identifies the laws that the attorney general believes are preempted by HIPAA and the Privacy Rule.  

“We advise the City of Lubbock to seek a ruling from this office when it receives a request for information under the PIA and it seeks to withhold

requested records under section 159.002(c) of the Occupations Code or chapter 773 of the Health and Safety Code.”

State Sen. Robert Duncan, chairman of the Senate Committee on Jurisprudence, requested the opinion and listed six specific questions on HIPAA, including three targeted at the city of Lubbock’s policy.