Patient privacy goes for a ride

Waukesha Freeman columnist Tim Schilke has an interesting column in today's paper (always worth the 50 cents) taking a hard look at Attorney General JB Van Hollen's unofficial opinion regarding patient privacy when an ambulance is called.

Wisconsin Statutes Section 146.50(12)(a) clearly states that “All records made by an ambulance service provider ... in administering emergency care procedures to and handling and transporting sick, disabled or injured individuals shall be maintained as confidential patient health care records ... ” So the basis for the debate, according to Wisconsin law, begins from an assumption of patient privacy.

But section 146.50(12)(b) provides a loophole, stating, “an ambulance service provider ... may make available, to any requester, information contained on a record of an ambulance run ... ” The released information may contain the patient’s name, age and gender, and the reason for the dispatch, but may not contain the “details of the medical history, condition or emergency treatment of any patient.”

Federal HIPAA laws attempt to balance state laws against patient privacy requirements, allowing the public release of patient information only when a state law mandates the release of such information, which brings us back to the word “may.”

Clearly, the word “may” is not a mandate. It’s not the same as “will” or “must” or “is hereby mandated to.” The word “may” appears to be used in order to provide legal cover for ambulance service providers that choose to release selected ambulance record information at their own applied discretion.

This language hardly appears to qualify as a clear public records mandate, which would be necessary to create a HIPAA exception, using the language provided by the U.S. Department of Health and Human Services.

Van Hollen disagrees. Instead of abiding by Wisconsin law as written, Van Hollen chose to interpret the word “may” in a manner that can only be described as judicially creative. In his September 27 opinion, Van Hollen cited an 18-year old opinion from former Wisconsin Attorney General Don Hanaway, which essentially interpreted the word “may” as a public records mandate. Van Hollen also added his own twist: “Disclosure of the information specified in section 146.50(12)(b) instead is subject to the public records law and that custodians do not have total personal discretion to grant or deny access.”

By issuing such an opinion, Van Hollen is outright ignoring the base assumption of patient privacy of ambulance records in Wisconsin on which the statute is built.

I think Tim is a little quick to dismiss the public interest in ambulance calls. Repeated calls to a same address, or a call to the residence of a public official, or a sudden rash of calls from a certain area, may all trigger some legitimate public curiousity. On the other hand, as a {ahem} local celebrity (hey, stop laughing, every teachers union boss knows who I am) I'm not sure I want the newspaper following my ambulance to the hospital. Given Van Hollen's opinion, I guess I'm going to need my peeps in my posse protecting my privacy. Entourage, whatever.