HIPAA Regulatory Alert

Texas court allows info release despite HIPAA

Statistics about sexual assaults must be released

A four-judge Texas Court of Appeals panel has ruled the state Department of Mental Health and Mental Retardation must release statistics about alleged sexual assaults at state mental hospitals that were requested by journalists. The judges said the Texas Public Information Act allows release of the data and state officials can't withhold it because they believe it is protected health information under HIPAA.

"This opinion gives important guidance to every Texas governmental body that is faced with a public information request for medical information where HIPAA applies," said state attorney general spokesman Tom Kelley.

The department had refused to release the information citing HIPAA requirements, and then asked the attorney general for an opinion. The attorney general concluded the information had to be released because the HIPAA privacy rule allows disclosure of health information "if required by law." The department appealed and a Texas county district court judge sided with the agency. The attorney general then appealed to the Court of Appeals.

The Appeals Court judges said they believed the information requested — statistics on alleged sexual assault and abuse incidents at state hospitals, subsequent investigations, the names of facilities where incidents occurred, and the outcome of any investigations — does not fall under the definitions of protected health information in either HIPAA or the privacy rule.

"Statistical information regarding allegations of abuse and subsequent investigations does not seem to relate to issues regarding health or condition, in general, and certainly does not relate to the health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual" the judges wrote. They noted their interpretation of "protected health information" is supported by decisions in other courts, including an Ohio Supreme Court ruling dealing with copies of lead contamination notices sent to residences of children whose blood tests had indicated elevated lead levels.

However, the judges said, since both parties had taken positions based on the belief that the requested information was protected, their ruling was based on the same assumption. The judges rejected the department's position that the records law is not included in the "required by law" exception to non-disclosure in the HIPAA rules because the commentary on the rules did not specifically list open records laws as laws requiring disclosure.

Court rejected several arguments

Justice David Puryear wrote for the court that "nothing in the definition of 'public information' expressly exempts health information" from the open records law and that the "commentary merely provides a range of possible areas of law that might require disclosure." He said the commentary also makes clear that in a federal Freedom of Information Act request, agencies should look to the law's exemptions, rather than to HIPAA's, to decide if the information should be released.

The court also rejected the department's argument that although the information requested was not explicitly deemed confidential under HIPAA rules, it should be considered confidential because HIPAA does not provide for its disclosure. "We cannot adopt this circular logic," Puryear wrote. "Our construction of the statutes properly balances the need for privacy under HIPAA… and the need for disclosure under the Public Information Act and correctly reconciles these two statutes."

Meanwhile, members of Congress have been debating a need for HIPAA to preempt state laws. The Health Information Technology Promotion Act of 2005 introduced by Rep. Nancy Johnson (R-CT) and Rep. Nathan Deal (R-GA) would establish federal privacy protections that could override inconsistent and varying state privacy laws. Observers have noted that many state laws are more stringent than HIPAA and other federal privacy rules, and rules in one state often conflict with rules in another state.

The override provision drew praise from American Medical Informatics Association CEO Don Detmer, who said he doesn't believe it is possible to get to common standards and interoperability that underlie the widespread adoption of electronic health records without federal preemption of conflicting state laws. He said he was pleased the legislation calls for an HHS study of standards adopted after HIPAA.

"If the study shows that varying state laws and requirements have a negative impact on health care delivery, quality, and access," he said, "and that HIPAA has established meaningful privacy and security protections, it makes sense to move forward without delay on federal preemption for all adopted HIPAA standards."

But that position was challenged by Consumers Union senior policy analyst William Vaughan, who said the American public will not support, fully use, or benefit from the great potential of electronic medical records until more is done to ensure the privacy, security, and appropriate use of medical information. "This requires enabling patients to decide when, with whom, and to what extent their medical information is shared," he said.

He said the American public needs to be given meaningful control over their medical rights, having a right to keep their records private and not be forced to give up control of their most private medical information as a condition of treatment. He called for more aggressive enforcement of privacy violations, saying current penalties are inadequate and have major gaps.

And Vaughan said states "should have the right to enact privacy laws above and beyond HIPAA's absolutely minimal provisions and that right must not be preempted. Privacy needs to be strengthened, not weakened, and we urge you to oppose legislation that would preempt stronger state laws or delegate to the secretary of HHS authority to preempt such laws. These state laws offer extra protection and peace of mind to patients with mental health, sexually transmitted disease, cancer, and other treatment issues."