Robbins: HIPAA and the president
Sean Conely is between a rock and a hard place.
No, no, this Sean Conely is not to be confused with Sean Connery, of the James Bond/007 variety. Sean Conely — not Sean Connery — has got it even worse.
Now while it’s not likely that the particular scenario in which Commander Dr. Sean Conely finds himself will include lovelies painted gold, sick cars with wicked defense mechanisms, or guys with deadly Frisbees in their hat brims, there may, in fact, be stuff that blows up, in particular Dr. Conely’s patience or his head.
Dr. Conely is the president’s physician. “Ah,” you say. “Oh, that guy!”
Yes, indeed and Dr. Conely has had the recent unenviable task of juggling kittens and live chainsaws at the same time. While standing on his head. And whistling all orchestral and vocal scores of Carmina Burana between his teeth while smiling before the press.
What exactly am I talking about?
Well, it’s this.
As you know, the president recently took ill. By some reports — and the sight of him gasping from the Truman balcony — the president was one sick puppy. With COVID-19. Perhaps you’ve heard of it?
In any event, as you might expect, the president’s state of health stirred a bit of interest. As such, inquiring minds wanted to know, “How’s the old boy doing?” But Dr. Conely, Navy commander and physician to the president, was tight-lipped. He mumbled something about not wanting to “go backwards,” something else about keeping spirts high, and then he dropped back and let fly (not surprisingly perhaps for a graduate of Notre Dame) a Hail Mary pass, the particular variety of which was, gee he’d really like to say more but HIPAA won’t permit him. And with that, he shifted his own hipaas and led the procession of be-masked Navy doctors back inside Walter Reed where the president had been a recent temporary resident. On oxygen, some say. Gasp!
Besides the natural tension between the public’s right to know and what has heretofore been the general transparency regarding the chief executive’s health (well maybe not including complete forthrightness about Woodrow Wilson, FDR, JFK, and others) and a patient’s right to privacy about his/her health affairs, what Dr. Conely breathed out from his lectern raised some eyebrows; other than a dangerous species sunk in the river bottoms of the Masai Mara, what, goodness gracious, is a HIPAA?
Well, it’s this: the Heath Insurance Portability and Accountability Act. You can see quite quickly why an acronym was adopted to refer to it.
Enacted into law in 1996 what HIPAA was intended to do was to modernize the flow of health care information, stipulate how personal information maintained by health care providers and insurance should be protected from fraud and theft, and address limitations on healthcare insurance coverage.
The act consists of five main sections know as titles.
Title I protects health insurance coverage for workers and their families when they change or lose their jobs. Title II known as the Administrative Simplification provisions, requires the establishment of national standards for electronic health care transactions and national identifiers for providers, health insurance plans, and employers. Title III sets guidelines for pre-tax medical spending accounts (known as health savings accounts or HSAs). Title IV sets guidelines for group health plans. And Title V governs company-owned life insurance policies.
So what’s this got to do with Dr. Conely smiling for the cameras and refusing to give the press the low down as to what condition the president’s condition is in?
It has to do with what is known as the “privacy rule.” The rule is composed of various regulations related to the use and disclosure of protected health information in health care treatment, payment, and operations by covered entities. The privacy rule regulates the use and disclosure of PHI held by “covered entities” which includes medical services providers. PHI is any information that is held by a covered entity regarding health status, provision of health care, or health care payment that can be linked to any particular individual. All of this is interpreted rather broadly and includes any part of an individual’s medical record or payment history.
In short, when it comes to my health stuff, your health stuff, or even the president’s, the health care provider simply can’t disclose the details except with the patient’s express permission.
Here, apparently, the president wanted to play things close to the vest. If he barked, “What’s mine is mine and you’re not to share it!” then what’s the good doctor to do? However smacked around by the press and The People’s want to know, his hands were as tied as if knotted to his belt loops with the tubing of his stethoscope.
The public interest
There are good reasons for the public to know: He is, after all, the president, the free world is affected by his health, and — oh by the way — is he, notwithstanding his desire to resume campaigning — still infectious? Oh, yeah … that.
Perhaps they chose the good doctor for his steady sea legs. Nonetheless, although he seemed to be hopping about like popcorn kernels on a hot, greased skillet, he was only doing what he must. What HIPAA says is not even the president gives up every inkling of his privacy when he assumes what looks ever more like a throne.
Do you really want to know about the president’s every last wart and hemorrhoid? For me at least, I’ll take a pass. But about this COVID-19 stuff? Well, that may be altogether different.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926.4461 or at his e-mail address: Rrobbins@CELaw.com. His new novel, "How to Raise a Shark (an apocryphal tale)", is available at Amazon.com.
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