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Medical privacy regulation could hinder reporting

FOI Alert Volume 5 Issue 3 (1999-2000)

If medical records privacy standards proposed by the U.S. Department of Health and Human Services go into effect next year without revision, it could mean new barriers for news organizations trying to obtain the most basic information about patients from the nation•s hospitals.

On Oct. 29, HHS Secretary Donna E. Shalala proposed the first-ever set of national standards to protect personal health information after Congress failed to enact specific rules. Under a 1996 law, HHS is required to issue final regulations by Feb. 21, 2000. The proposed Standards for Privacy of Individually Identifiable Health Information would prohibit disclosure of health information without patient consent except to health researchers and law enforcement officials.

The rules fail to recognize the current routine releases of patient condition information to news organizations and the public interest in that information. Widespread hospital policies that allow release of information about patients who are victims of violent crime, traffic accidents and disasters would likely be overturned by the new regulations.

For example, if the proposed rules would had been in effect it is likely that journalists covering the recent bonfire stack collapse in Texas, the Columbine shootings in Littleton, Colo., or Oklahoma City bombings would have been blocked from obtaining names of victims and their medical conditions without victims’ consent.

While those are certainly high-profile incidents, the rules could also preclude thorough reporting on more common topics including shootings or other violence that results in injury, traffic accidents, and the hospitalization of public officials and public figures.

Such reporting is widespread. A one year search from Nov. 19, 1998, to Nov. 19, 1999, of U.S. newspapers available on the electronic Dow Jones News Retrieval database showed approximately 28,400 articles which reported either a "serious" or "critical" medical condition of victims of accidents, victims of crime and of public figures or officials.

Central to the HHS proposal is patient consent before hospitals or medical providers release any "personally-identifiable" medical information. The unintended result may be the ending of the current practice of releasing the most basic of medical information to journalists such as condition and types of injuries.

The rules could create a bureaucratic nightmare for those at health care facilities -- usually public relations staff -- charged with gathering patient consent and releasing information to the media. In practice, it would simply be easier to stop giving out the information. Especially since there is steep fines proposed for those who violate the rules. Civil monetary penalties of up to $25,000 per person, per year, per standard violation are proposed. Journalists could also be subject to severe criminal fines for obtaining "protected" health information. Journalists who obtain and print conditions of patients could conceivably be subject to a $250,000 fine and up to 10 years in prison for "selling or transferring" such information.

Hospital information officers question the need for tighter restrictions. One public relations director for a large Salt Lake City hospital said he has never had a patient who had been involved in a serious accident ever complain that their name and medical condition appeared in the newspaper.

Outside of daily reporting, privacy issues raised by the standards might also raise new roadblocks for release of information journalists may need for investigating health-care fraud, patient abuse or misprescription of drugs. Individual stories and names are often key to such investigations. And such stories need a human face to be effectively told .

SPJ proposes that HHS include language that would protect access to so-called "public record information." Modeled after hospital association guidelines now in use, SPJ asks that hospitals and other health care providers be allowed to release information without patient consent when:

-- Patients are under arrest or held under police surveillance.
-- They were transported to the hospital by a public safety agency.
-- Patients were involved in shootings, stabbings, poisonings, injury by automobile, bites and other cases which are reportable to government agencies or unusual industrial accidents.
-- Disclosure is warranted during times of disaster or emergencies.
-- Public officials are hospitalized.

The SPJ FOI committee encourages news organizations, local chapters and/or state Sunshine Chairs to submit comments to HHS requesting the rules allow access to public record information as outlined above. You might include examples from your local area where access to such information is critical in daily crime and accident reports as well as reporting about disasters. Please email a carbon copy to Joel Campbell at joelc@desnews.com or via fax at 801-237-2121. Comments on the proposed rules are due no later than 5 p.m. on Jan. 3, 2000.

A summary of the proposed rule can be viewed at an HHS web site at:

Electronic comments can be submitted at the following web site:

Comments (1 original, 3 copies, and, if possible, a floppy disk ) can be mailed to the following address:
U.S. Department of Health and Human Services
Assistant Secretary for Planning and Evaluation
Attention: Privacy-P
Room G-322A, Hubert H. Humphrey Building
200 Independence Avenue SW
Washington, DC 20201.

What follows are some examples from only two days of recent reports which include names and conditions of patients as reported by hospitals or medical centers. These kinds of stories would likely be incomplete under new HHS rules:

Bonfire stack falls, kills Texas students
St. Petersburg Times, 11/19/1999. Eleven die and 28 are injured when the tower, a Texas A&M tradition, collapses. A creaking sound and then a loud crack like a tree trunk snapping was the only warning 70 students had that the ...

Shooting is just the latest tragedy
St. Petersburg Times, 11/19/1999. The shooting of Lisa Erickson and its fallout are blows to families who are no strangers to tough times. At age 79, Marion McElhaney is raising a toddler and a teenager. She's strong, she ...

Clemson player wounded
The Columbian, 11/18/1999. CLEMSON, S.C. (AP) Clemson running back Javis Austin is in critical condition Wednesday night after a gunshot wound to the head. Austin was admitted to the neuro-intensive care unit of the ...

Donations accepted for crash victims
The Atlanta Journal - The Atlanta Constitution, 11/18/1999. The Stephenson High School PTSA has set up a memorial fund and a survivors fund for the families of the Stephenson High. School students killed or injured in a crash Oct. 25. ...

Family Injured in Downtown Oakland Collision / Police say drunk driver hit ...
The San Francisco Chronicle, 11/18/1999. Two young sisters and their father were critically injured yesterday when their car was broadsided in downtown Oakland by a driver police said was drunk. .

Transplanted Texan struck in N.Y.
Deseret News, 11/18/1999. NEW YORK -- Last year, Nicole Barrett made a spur-of-the-moment decision: She was trading in her Texas roots to join the frenetic life in New York. ...

Deranged man hits woman with brick
The Kansas City Star, 11/18/1999. NEW YORK - A Texan who moved to New York a year ago was fighting for her life Wednesday after a deranged man bashed her in the head with a brick in a random, unprovoked attack in the middle of the day ...

Area youth struggles for life after attack in Oklahoma
The Kansas City Star, 11/18/1999. An Independence youth, who was attacked with baseball bats while on a weekend trip in Oklahoma, lay in critical condition Wednesday in a Tulsa hospital. ...

Woman on oxygen seriously burned while trying .
The News Tribune Tacoma, WA, 11/18/1999. A 73-year-old Tacoma woman suffered third-degree burns on her face when she tried to smoke a cigarette while breathing through tubes hooked up to a combustible oxygen tank. ...

Allentown Morning Call, 11/17/1999. Three of the four survivors of a fatal car crash on Route 309 in Rush Township Monday were in critical condition late Tuesday. The fourth, a 4-year-old girl whose grandmother was killed in the ...

Family Injured in Downtown Oakland Collision / Police say drunk driver hit ...
The San Francisco Chronicle, 11/18/1999. Two young sisters and their father were critically injured yesterday when their car was broadsided in downtown Oakland by a driver police said was drunk. ...

Greensboro News & Record, 11/17/1999. An Eden woman was killed and her husband injured in an accident 4:24 p.m. Monday three miles southwest of Eden on N.C. 135. Johnie Junior Brown, 65, of 518 Early Ave., is in critical…

Crash kills school girl on east side
The Detroit News, 11/17/1999. DETROIT -- Four teen-agers fleeing police in a stolen car caused a crash that killed a young girl walking home from school and seriously injured two other children. ...

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