HIPAA Regulatory Alert

Journalists complain about HIPAA privacy restrictions

The Radio-Television News Directors Association (RTNDA) says all journalists, and particularly those working for electronic media, have been hampered in their work by actual HIPAA privacy requirements and by interpretations of those requirements by some people and organizations.

In testimony before the National Committee on Vital and Health Statistics, RTNDA president Barbara Cochran said HIPAA as written and interpreted "is making it harder for electronic journalists to gather information and report on issues and events of local and national interest."

Cochran said the public’s interest in health care information should not be underestimated.

"There is a public interest," she said, "in knowing whether victims of crime or disasters are being treated in the hospital and what their general status is. There is a public interest in knowing the health of our public officials and its relationship to how those officials carry out their duties to the public. There is a public interest in uncovering corruption or mismanagement at the facilities where individuals receive medical care for themselves and their families. There is a public interest in learning about a wide range of health care issues that affect the community and being able to make informed decisions regarding those issues."

But, she said, unfortunately the HIPAA privacy rule was published without accommodation or even acknowledgement of journalists’ concerns about how the rule would cripple their ability to tell stories. People are afraid that giving out information will expose them to litigation, penalties, or fines, Cochran added.

"Hospitals, emergency medical services, and some fire departments that operate ambulances are among the affected sources," according to Cochran. "And because of the confusion surrounding the privacy rule, sometimes police, firefighters, sheriff departments, and even football coaches believe they no longer can talk about a sick or injured person in public."

Through word of mouth or misinterpretation, she said, a widespread belief has developed that the HIPAA guidelines prohibit release of any information about an individual’s medical condition or treatment by anyone if it is coupled with any information that can reasonably identify the individual. As a result, many noncovered entities, even including victims’ relatives, believe they must protect information obtained from health care workers about a patient or victim they have obtained first hand. A more skeptical view of the situation, Cochran said, is that law enforcement and government officials may be using the law’s privacy rule as an excuse to avoid disclosing information they simply wish to keep from the public eye.

The public record is shrinking’

In addition to problems caused by erroneous interpretations of the requirements, Cochran said journalists also face problems arising from application of the rule as written and intended. "The rule itself removes from public view a significant amount of truthful information that is vital for the public to have in order to make intelligent decisions," she declared. "By prohibiting the dissemination and publication of any individually identifiable health information — regardless of the public interest in that information — the HIPAA privacy rule effectively has censored both daily news reports on basic hospital information about patients who are victims of violent crime, accidents, or natural disasters, and investigative reporting concerning health care fraud, patient abuse, or environmental hazards. . . . Because of HIPAA, the public record is shrinking to include only sterile statistical reports and dry recitations of events stripped of the human element."