When Hanke Gratteau, metro news editor for the Chicago Tribune, got word that the third-story porch of a Chicago apartment collapsed under the weight of several partygoers and crushed others beneath it, the editor knew the Tribune news team faced a very compelling story with significant public interest.
But when Gratteau dispatched reporters to gather information on the status of victims and the extent of injuries, they found tight-lipped hospital officials. Only a few even agreed to confirm if they treated any patients from the accident.
“There were a couple of the big hospitals that at least gave us counts,” Gratteau said.
In the past, most health-care providers have displayed sensitivity to medical privacy issues while maintaining the ability provide information the public needs to know.
But a year-old law called HIPPA — the Health Information Portability and Accountability Act — now causes consternation throughout the U.S. health-care system and causes many to balk at providing information that in the past, the public and journalists relied on.
The law, intended to protect privacy, comes with many unintended consequences.
In the case of the porch accident, the Tribune reporters could not identify victims or their conditions. Getting a helpful story to the paper’s readers proved challenging, even when a man who claimed to have been injured in the collapse went to the Tribune to share his story.
Vetting his story proved difficult.
When a reported called the hospital the man said had treated him, officials would not confirm it, citing HIPAA.
“We fretted a great deal about what to do and how to use his story,” Gratteau said.
“(There was) a lot of mad scrambling and real stomach aches about how we could confirm and legitimize his story.”
Eventually, reporters confirmed the story when the source provided hospital discharge papers.
Tom Grote, editor of the Star News of McCall, Idaho, and serving the communities of West Central Idaho, recalled a story about a juvenile injured in an all-terrain vehicle accident.
The boy’s parents consented to release their son’s condition, but after the story ran the next day, they withdrew consent.
The paper could not follow with a story that told what happened. Grote said staff discussed options, including waiting until a death notice was issued.
“It was kind of a hanging chad in our readers’ minds as to what happened to the kid,” he said.
The Star News never found out what happened and dropped the story.
But even when a victim volunteers information, hospital officials remain apprehensive about releasing it.
And who could blame them?
A $250,000 fine and 10-year jail sentence awaits anyone found guilty of abridging HIPPA regulations.
Rebecca Daugherty, director of the Freedom of Information Service Center of the Reporters Committee for Freedom of the Press, frowns at HIPPA’s impact, issues that go beyond simple inconvenience.
“Whistle-blowers who give out patient information are facing exorbitant fines, and I’m certain that that chills their willingness to help reporters,” she said.
So a year after the advent of HIPAA regulations (see the September 2003 Quill), the public and journalists still struggle when coping with the law.
“I think all of us wonder what greater good is being served,” Gratteau said.
For example, after the attacks on the World Trade Center on Sept. 11, 2001, New York hospitals posted directories on doors in an effort to help people locate victims.
Yet, some argue that today those postings would breach HIPAA compliance.
“That (posting) couldn’t be done, in my reading of the HIPAA regulations,” Daugherty said. “I have a feeling that in a disaster like that, any self-respecting hospital would also do something similar. But it’s a shame that it would be breaking the law doing it. It seems to me that it’s clear that the public interest outweighs personal privacy in some of these cases.”
Brian Wyatt, an attorney who advises health-care providers on HIPAA issues, helped draft model HIPAA privacy and security guidelines for the Greater New York Hospital Association.
Since HIPAA dictates that a patient gets authority to disclose medical information, a patient could “opt-in” to such a posting, he said.
“Should that happen again, HIPAA, at least to me, would permit that sort of registry to be set up,” Wyatt said.
However, Wyatt admitted that often victims arrive from a disaster with injuries that make opt-in impossible. Then medical officials must decide, and because of the stiff penalties that come with HIPAA violations, that’s a tough decision for health-care officials.
Richard Campanelli is director for the Office for Civil Rights with Health and Human Services. The office maintains responsibility for ensuring HIPPA compliance.
He said HIPAA would not prevent postings to help locate victims.
“Section 5-10B (of HIPAA) explicitly provides that covered entities can disclose information to help loved ones locate the individual,” he said.
Meanwhile, Gratteau and other editors face challenges determining whether to even pursue a story.
Many times information that would help make this decision, such as the name of a public official or a patient count, is restricted by HIPAA. She said stories of great public interest might get derailed for lack of information.
“That’s how readers relate to everything — with names and faces and occupations,” Gratteau said. “It’s not some nameless victim somewhere; it’s your neighbor. It’s those reader connections that you miss.”
Robert Gellman, a privacy and information privacy consultant and proponent of HIPAA, said reporters are just going to have to get over it.
“Reporters hate (HIPAA) because they want to put a face on their stories, and the answer is ’tough,’ ” he said. “If you can find out who it is, you can go report it. But you’re not going to get it from a hospital.”
The battle to ease the pains of HIPPA may be “tough,” but public access advocates intend to keep fighting, including Tonda F. Rush, Counsel to the National Newspaper Association.
In early September, she wrote a letter to Dr. Mark Rothstein, chairman, and to members of the Subcommittee on Privacy and Confidentiality, National Committee on Vital Health Statistics, Department of Health and Human Services. Several public access advocacy groups signed onto the letter, including the Society of Professional Journalists.
The letter emphasized these points:
• The privacy rule makes no attempt to balance the benefits of general public disclosure against patient privacy.
• Disclosures of malpractice, fraud or abuse within health care institutions by whistle-blowers are too tightly constricted.
• Death should not be protected health information, and its occurrence should extinguish most privacy rights.
In conclusion, Rush wrote:
“. . . Even simple requests for clarification about HIPAA’s relationship to state public records laws have gone unanswered . . . our organizations stand ready to discuss these concerns further or to consider remedies other than those proposed here. We believe, however, that it will take emphatic recommendations from your subcommittee to open a door for discussion between news media and the agency.”
Ryan Heath is a 2004 Pulliam/Kilgore First Amendment Intern.
