Our office has been receiving calls from troopers who are encountering problems getting information from paramedics following accidents. For example, in one major metropolitan county, we were told that emergency medical personnel are no longer allowed tell the officer to which hospital the paramedics are taking a victim--including the driver who happens to be a suspect for DWI. Nor will they give any information regarding a victim's physical condition--not even that the person is so severly injured he or she is likely to die. Obviously, this makes it difficult for an officer to meet the requirements of Transportation Code section 724.012(b) for getting mandatory blood specimens in DWI accident cases, particularly when the victim has already been transported by the time our trooper gets to the scene--not uncommon in more rural areas.

Have you heard of problems from your local police agencies concerning how HIPPA is being applied to accident investigations or other situations?

Janette Ansolabehere

Janette, it appears we are all now going to have to become experts in interpreting and applying the "Standards for Privacy of Individually Indentifiable Health Information", 45 CFR Parts 160 and 164 HIPAA Privacy Rule. May God help us. The real problem is that under this rule, even where disclosure is permitted, it is not required. There will have to be a period of wrangling before everyone decides how best to deal with the problem. The rule says, however, that disclosure is permitted for legitimate law enforcement purposes: "Covered entities may disclose protected health
information to law enforcement officials for law enforcement purposes under
the following six circumstances, and subject to specified conditions: (1) as
required by law (including court orders, court-ordered warrants, subpoenas)
and administrative requests; (2) to identify or locate a suspect, fugitive,
material witness, or missing person; (3) in response to a law enforcement
official's request for information about a victim or suspected victim of a
crime; (4) to alert law enforcement of a person's death, if the covered entity
suspects that criminal activity caused the death; (5) when a covered entity
believes that protected health information is evidence of a crime that
occurred on its premises; and (6) by a covered health care provider in a
medical emergency not occurring on its premises, when necessary to inform
law enforcement about the commission and nature of a crime, the location of
the crime or crime victims, and the perpetrator of the crime." (Taken from OCR summary of the regulation)
The regulation shows some common sense, the people worried about disclosure may not.

[This message was edited by Martin Peterson on 04-21-03 at .]

I have an intoxication manslaughter case right now with no blood test because when the trooper called the hospital, they wouldn't tell him what the victim's prognosis was. She died a couple of days later. Since he didn't feel he had a reasonable belief that the victim "would die" under 724.012, he didn't feel he could get a blood sample. Janette, if you'd like more info about when and where this happened, e-mail me.

There is a bill before the Leg now that would lower the burden for the officer. He could obtain the blood sample based on a belief that there was SBI or likely death.

Frankly, the test should be: was the person a driver of a vehicle that was involved in a collision with a person or vehicle?

You can download the 25 pages of regulations at
http://www.os.dhhs.gov/ocr/index.html

As has been previusly stated there are clear law enforcement exceptions to the rule against disclosure and I fear that we will all have to carry a copy of this with us.

We have a trial in one of our misd courts right now where this was raised by a visiting criminal defense attorney out of Houston (Wise) but the judge saw through the attack and all is well.

Our office was informed today by Cook's Childrens Hospital in Ft. Worth that all subpoena duces tecum will require that the custodian of records for the hospital appear in Court with the records and be ordered to turn them over by the judge. Previously, on many occasions our investigator would serve the subpoena duces tecum and pick up the records.

I feel sorry for whoever gets that job.

With respect to grand jury subpoenas, the hospital stated that they would continue to turn the records over to the investigator at the time the grand jury subpoena was served.

Richard are you saying Wise (maybe Wice) was arguing the records had been obtained in violation of the federal regulation? If that is true, then indeed we will all have to become experts on this provision.

For an article on how law enforcement is, perhaps, overreacting to the new rules, check out today's Statesman.

I wasn't in the courtroom to hear it but that is my understanding. I think the key is for everyone who prosecutes these cases to download and keep a copy of the regulations. The exceptions/exclusions are clearly stated and cover all the situations where we or law enforcement typically use those records. If someone disagrees with my reading of the regulations please let me know. Everyone should read the Statesman article John refers to as it seems to bear out that law enforcement has nothing to worry about.

It's nice to know that one is not alone in thinking a lot of people are going overboard when interpreting HIPPA! Maybe the Department of Health and Human Services will release some type of opinion memo that clears this up. Then all our officers will have to do is carry one with them to waive in the face of the paramedics and hospital personnel.

Janette Ansolabehere

For a discussion of how the rule came to be and a ruling upholding its constitutionality you may wish to read S.C. Med. Assoc. v. Thompson, No. 02-2001 (4th Cir. 04/25/03)

The HIPPA topic is of special interest to me because my father and wife are both Texas physicians.

As Martin correctly noted, disclosure of health information to law-enforcement is often PERMISSIVE under HIPPA, not mandatory.

Remember, because of the medical malpractice crisis and related hysteria, many physicians truly fear any contact with the legal system--especially with attorneys. And they don't care that we are prosecutors who generally "don't sue doctors." We're all suspect in their eyes merely because we're attorneys. And, various medical organizations have put physicians in grave fear of the legal consequences that could flow from non-compliance with HIPPA.

So, a bit of empathy and patience, possibly combined with a bit of education on the law, will go a long way in coaxing a reluctant physcian to comply with your request for information under HIPPA. Please, please DON'T threaten the physician with jail for contempt of court, or that sort of thing, as an idiot in my office recently did! You won't help matters--trust me on that.

I also think it would help a great deal if we as an organization met with legal counsel from the Texas Medical Association to work out some guidelines and policies regarding HIPPA compliance. The TMA has already promulgated a form letter for physicians to use when replying to law-enforcement information requests, but it essentially states that information not required to be disclosed under HIPPA will be kept private. If we approach the TMA diplomatically, we could probably persuade them to adopt a less-cautious position. In my experience, most physicians in Texas will follow the TMA's lead on medical-legal matters.

That's my 2 cents worth on HIPPA.

[This message was edited by Richard Dulany on 06-11-03 at .]

TDCAA needs to sit down with legal counsel for the TMA as soon as possible to work these problems out with the doctors. Otherwise, what recourse do we have other than hauling the doctor (or at least the custodian of records) up to the grand jury room.

We really should meet with the TMA folks about HIPPA. The new TMA president is the ultimate overachiever: a JD-MD. His father was too!