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THE “HIPAA” MEDICAL PRIVACY RULES AND BROADCASTERS
James C. Rawls
Eric P. Schroeder

On April 14, 2003, new federal privacy rules governing the release of “protected health information”, or “PHI”, took effect. The rules, referred to collectively as “HIPAA” (an acronym for the “Health Insurance Portability and Accountability Act”), change the playing field for obtaining and broadcasting medical information and should be of concern to broadcasters.
The HIPAA rules provide a baseline of national privacy protections for sensitive health information. They prohibit health care providers, their employees and business associates from disclosing any health information that relates to the provision of health care, payment for health care, or the health status for any identifiable individual unless advance written authorization from that person is obtained. Information prohibited from disclosure includes names, the city, county or neighborhood an individual is from, age, Social Security numbers, and vehicle identifiers that may uniquely identify an individual. Violators face severe criminal penalties, including fines ranging from $100 to $25,000, as well as potential jail time.
The “covered entities” directly regulated by the new rules are limited by HIPAA’s text to health care providers such as hospitals, physicians’ groups, health care plans and health care clearinghouses that transmit medical information. Whether the rules will be interpreted to apply to broadcasters, and to prevent television and radio news programs from reporting truthful medical information, is not clear.

The Supreme Court has ruled in decisions such as Florida Star and Bartnicki that the First Amendment protects any disclosure of truthful information by broadcasters if it is legitimately obtained. Still, though, a court could be persuaded that a patient’s privacy rights outweighs First Amendment concerns and rule that HIPAA applies equally to broadcasters.

Our advice is for broadcasters to be cautious when disclosing medical information on air, unless it is the patient who has provided the information to the broadcaster.
The First Amendment applies most strongly when the topic addressed is of great public concern. As a rule of thumb, then, broadcasters should only disclose medical information when it is about a “public figure” and it is “newsworthy” -- that is, information about a public official, celebrity or well-known local resident that is related to an event of great interest to the public -- and when it is true. The information should also be obtained in a legitimate matter. For example, we believe that news that a local politician was diagnosed with cancer, and this news was imparted from an official source at the hospital at which the politician is being treated, would safely be broadcast under HIPAA.
Even if the rules do not affect broadcasters, however, the sanctions associated with improper disclosure of patient information may cause traditional news sources to be reluctant to disclose, to the media, information relating to the health of an individual. Moreover, as HIPAA is merely a “floor” of national privacy protections, states may have stricter requirements and more severe penalties for disclosure of PHI. For example, in Georgia it is illegal to disclose the identity of any person who is HIV-positive without first getting permission from that person.

The HIPAA medical privacy rules represent a landmark change in how medical information is disseminated. Until courts begin to address whether the HIPAA rules conflict with the First Amendment, broadcasters should be very careful when reporting medical information.