New health privacy rules hinder newsgathering, reporting process

In Lubbock, officials issued a mandate requiring police officers to withhold certain information about murders and traffic fatalities, the Avalanche-Journal reported.

In Nocona, hospital officials cautioned the News about the use of certain medical emergency photos after the weekly took a photo of a student who collapsed on a school athletic field.

And in San Antonio the Express-News reported that the city has quietly pulled its online site that kept a running log of where fire and EMS units are dispatched.

Across the state one big acronym is wreaking havoc on the way journalists cover the news. It’s called HIPAA (Health Insurance Portability and Accountability Act). The act itself is not new but new privacy provisions that were implemented April 14 are having unintended consequences for newspaper reporters trying to gather information for stories.

In Lubbock the interpretation local officials carved out of the HIPAA provisions generated so much controversy that they backpedaled a week later and killed the policy that would have prevented release of some crime and accident information, even if a killer were on the loose.

“It seems to be an absolute abomination of the intent of the legislation,” Donnis Baggett, chairman of the Legislative Advisory Committee, told the Avalanche-Journal. “It stretches the imagination.”

Paul McMasters, First Amendment ombudsman at the Freedom Forum’s First Amendment Center, told the newspaper that press advocates predicted and feared the act would be misinterpreted.

“It shows just how shortsighted the implementation of these regulations can be,” he said. “Critical information is going to be withheld from the public.”

The city attorney told the Avalanche-Journal that she believed the HIPAA provisions require city officials, including police officers, to protect medical information obtained from health-care workers.

Nocona News publisher Tracy Mesler said a hospital administrator told him that it is a violation of federal law to take a photograph of a patient being wheeled in or out of a hospital, but he added that the official did not imply that the restriction applied elsewhere.

The newspaper took the photo on school property, where it had permission to cover events, and published it. The 13-year-old boy was transported by ambulance to the hospital and was taken off life support a few days later.

The HIPAA provisions do restrict what information certain sources can release but misconceptions may be growing that newspapers can no longer report on accidents or medical emergencies.

That’s not true, says David Donaldson, an Austin attorney who works with freedom of information issues. Donaldson wrote a HIPAA guideline backgrounder for TPA in October.

Only recently has the U.S. Department of Health and Human Services created privacy regulations for HIPAA, which was originally passed in 1996, and 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,” Donaldson said.

A spokesman for the Texas Medical Association agreed and said even if members of the media were entrusted with medical information they would not be subject to the HIPAA regulations. He said only health plans, health care clearinghouses and health care providers that transmit health information electronically in association with a HIPAA standard - have to comply with HIPAA.

HIPAA directly affects hospital personnel including media relations officers, nurses, doctors, private physicians, social workers, paramedics and insurance companies.

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, Donaldson said.

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,” Donaldson said.

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, Donaldson said. Patients or their parents or guardians or legal representatives also can consent to release information, he said.

The Newspaper Association of America, National Newspaper Association and American Society of Newspaper Editors in May 2002 filed comments with the health and human services department opposing the new provisions.

“Certainly, an individual has a right to guard his or her own medical records from abusive releases,” the newspaper groups wrote. “But when matters of public concern demand the telling of the individual’s story to expose a wrongdoing, to inform a community of a disaster or to hold the medical system accountable, some use of individual information is necessary and justified — and protected by the Constitution.”