Privacy law affects reports on drownings
| • | Lifeguards stress leap's dangers |
| • | Three die in apparent drownings on O'ahu |
By Jan TenBruggencate
Advertiser Kaua'i Bureau
Some Hawai'i fire departments are cutting back on the information they release about drownings and other accidents because of concerns about a federal law designed to protect patient privacy.
The Health Insurance Portability and Accountability Act of 1996 is written so broadly and has such severe penalties — up to $250,000 and 10 years in prison for cases in which information was sold — that fire officials have decided to shut down access to information on cases in which medical treatment is involved.
On the Big Island, ambulances are run by the Fire Department, making the county department a healthcare provider subject to the privacy law, said Fire Chief Darryl Oliveira. So, for example, if a series of drownings occurred at a particularly dangerous beach, the Fire Department would not reveal that any drowning occurred, or any information about the victim, he said.
Jon Van Dyke, a University of Hawai'i constitutional law professor, said this development is clearly not in the public interest.
"(A drowning) is a public sort of event. Obviously, we need to know where the dangers are and what sort of people are falling into trouble," Van Dyke said.
Oliveira said he has asked Hawai'i County attorneys to review its press release forms for compliance with the act. As it reads the law, the Fire Department even feels it must withhold information from police, he said.
Capt. Kenison Tejada, information officer for the Honolulu Fire Department, said, "The HIPAA does have everybody reining back and erring on the side of caution." He said, however, that his department never released the names of drowning victims and will continue not to.
The act's provisions to prevent health agencies from revealing personal medical information took effect April 14. The federal law has strict controls on what kind of information healthcare providers can release and to whom they can release it. There are even restrictions on what medical-care providers can share with one another.
Several Hawai'i state agencies that deal with health records, led by the state Department of Health, are reviewing their policies in light of the act.
A patient entering a hospital for medical care has an expectation of privacy, but a person injured in a public place does not, said Tom Brislin, professor of communications at the University of Hawai'i- Manoa.
"I don't have a reasonable expectation of privacy if I go to a public beach and get in trouble and require rescue," he said.
Kaua'i Fire Chief Charles Hiramoto has determined that although his agency provides lifeguard services and some emergency medical attention, the department doesn't charge for it, and thus has concluded it does not fall under the act. He said his agency will collect information about the people it rescues until the moment it turns them over to an ambulance crew. Firefighters are generally unable to gather more information once patients have been transferred to the custody of the ambulance paramedics.
Despite not falling under the act, the Kaua'i Fire Department will further limit the amount of information it releases, probably revealing no more than gender, general age classifications and circumstances, he said. But he concedes it's a tricky point, and like others, he is consulting with county attorneys.
"I think there is a lot of confusion about it," Hiramoto said.
Since hospitals may not be authorized to tell the Fire Department the cause of death of people who die along the shore, that could mean the end of good statistics on beaches where drownings occur, Hiramoto said.
Much of the information collected by government entities at public accident scenes was specifically protected as public information under Hawai'i's Uniform Information Practices Act, said Les Kondo, director of the state Office of Information Practices.
Before HIPAA, "there would be information about the accident that the agency would have to disclose," Kondo said. "HIPAA changes a lot of things. It trumps our statute."
Some agencies are still waiting for any effects of HIPAA.
"We haven't heard the impact of it yet, although we've been warned that it may come," said Kaua'i Police Chief George Freitas.
Van Dyke said HIPAA seems to run counter to openness in government.
"There has always been some tension between what the public has a right to know and the interests of privacy. This statute is a swing of the pendulum in the direction of privacy," he said.
Reach Jan TenBruggencate at jant@honoluluadvertiser.com or (808) 245-3074.
