According to the Lansing State Journal in an article appearing only its print edition, Michigan’s Republican Attorney General Mike Cox– who incidently is a candidate for the Republican nomination for Governor in 2010– has ruled Lansing City Attorney Brigham Smith did not violate HIPPA when he released the HIV status of a man arrested in May.
The man was arrested for indecent exposure by undercover officers of the Lansing Police Department during a sex sting operation in Fenner Nature Center. When officers searched his car after he was apprehended, they found his HIV medications and asked him what they were for. The man disclosed he was HIV positive. Officers included this information in the police report, which subsequently released without redactions of this information to Michigan Messenger.
Because the article appears only in the print edition of the LSJ, I am typing it out for readers:
LANSING CLEARED IN MEDICAL PRIVACY CASE
The Michigan Attorney General’s Office has cleared the city of Lansing of an alleged violation of the federal Health Insurance Portability and Accountability Act (HIPPA), which protects people’s medical privacy. The complaint arose when the city released a police report about a man who had been arrested for indecent exposure in the Fenner Nature Center in May.
The report said the man disclosed he was HIV positive and the information wasn’t blacked out when it was released as part of a Freedom of Information Act request. Groups such as Detroit-based Triangle Foundation and the Lansing Association for Human Rights objected to the release of the information, and Mayor Virg Bernero requested the Attorney General’s office look into the matter.
David Tanay, criminal division chief of the Attorney General’s office, found there was no violation.
“The rule only applies to ‘covered entities’ whoucl would generally include health plans, medical providers and health care clearinghouse– not the city of Lansing,” he wrote in a letter dated Friday.
“I am pleased that the (Attorney General’s office) concluded, as I did, that no laws were violated,” city attorney Brig Smith said, adding that he and other city officials will craft a new policy to better handle personal medical information.
Now here are a couple of concerns from this report.
First, the city police already have a policy to better handle personal medical information– Policy 200-9 passed in 2005. That policy specifically prohibits the released of HIV status, unless done via MCL 333.5131. That law makes it a misdemeanor to release HIV status except as provided by the law.
Second, MCL 333.5131 comes into play, because the Mayor’s letter seeking an investigation specifically stated:
“I have serious concerns about the propriety of releasing this information, concerns I share with many members of the community. In particular, although I realize FOIA has a policy of broad disclosure, I want to ensure that release of this information did not violate the Health Insurance Portability Accountability Act (HIPAA) or the Michigan Public Health Code, 1978 PA 368 (MCL 333.1531) [sic] and to obtain your guidance for future reference.
“Although the City Attorney has opined that this FOIA release violated neither HIPAA nor the Public Health Code, I believe an independent investigation by your office is warranted. I hereby request that you independently investigate this matter to determine whether the release of this information pursuant to FOIA violated either HIPAA or the Michigan Public Health Code.” [emphasis in original]
But the way this story comes out, the AG’s office did not review this for its implications for the Michigan Public Health Code, or whether it was legal under FOIA.
Third is the wide ranging impact of this ruling. Remembering that the police found out about the man’s HIV status subsequent to a search of his vehicle in which they found his medication, it raises the specter that anyone with private medical related information– from prescriptions to lab orders to even the paper work provided by the pharmacy when a prescription is filled– could find that information public information and without their consent.
In short, the Attorney General’s office just gave police another way to violate your personal privacy.
So, I noted yesterday that there is a heated battle over health care reform going on in this country. It has been nasty, with groups organized by American for Prosperity and other conservative groups disrupting townhall meetings with various elected officials. Or protesting at Congressional district offices, with swastika signs and statements from elected Republican officials that Obama is like Adolf Hitler.
But the cake goes to Thaddeus McCotter, a Republican from Livonia. McCotter, aside from supporting a $3,500 tax break for pet costs and opposing health care reform, has been one of the loudest proponents of the concept that health care legislation pending in the Congress would create death panels which would determine which seniors would be euthanized. That claim has been soundly proven to be an outright lie. And in fact, McCotter voted for a similarly written proposal in 2003. The only difference was that one was produced by a Republican administration (that of W. Bush whom McCotter later accused of being a communist for attending the summer Olympics in China), and not a Democratic administration.
So when word broke yesterday that the Obama administration was paying a company to send unsolicited emails countering the lies Rep. McCotter and others are spewing in the right wing jabber system, McCotter felt it his civic duty to speak up:
“This is yet another ominous chapter in the administration’s rabid campaign to jam its radical health care scheme onto an unwilling public by any means necessary,” Rep. Thaddeus McCotter of Michigan said in a statement.
Hey Thad? How about worrying about the ominous chapter of American history wherein Republicans, lead by you as Republican Policy Chair, have poisoned an essential conversation for the American public with lies and scare tactics. Even your fellow Michigan delegate Rep. Mark Schauer, D-Battle Creek, has called you out on it.
In case you have missed it, the country has been embroiled in a heated, and often misleading battle over health care reform. The following advertisement shows how nasty it is becoming:
The following press release just dropped in my e-mail and it is more than a little disconcerting.
As we know, in one Detroit zip code the HIV prevalency rate is 6%, in the majority of the other zip codes it is 3-5%. We also know that living with HIV, and fighting to prevent HIV, in states like Michigan, Indiana, Nebraska, North Dakota, South Dakota, Iowa and Ohio is a very different ball of wax than when you look at places like New York, Washington DC, and other locations.
This is geographic discrimination and ignores a large swath of the country.
It is a complaint I have had about HIV issues and strategies for years. the fly overs get represented not by the vast majority of people who live in those regions, but by people who live in extremely liberal, open large cities like Chicago and Minneapolis. This unfortunate fly over mentality contributes to the crisis by creating programs for prevention and intervention based on skewed data set which do not represent the real life experiences of a vast majority of residents in the region. So the question becomes what can we do about it?
I have written about PrEP before, but Dr. Joseph Sonnabend makes some particularly interesting arguments in his recent blog post on Poz magazine’s website.
Let me preface this post with this note: I believe PrEP is a logical answer, particularly here in the Midwest where HIV positive men who have sex with men are far less likely to disclose an HIV positive serostatus than they are along the East and West coasts of the country. PrEP has been shown, in some clinical studies, to be effective in preventing HIV infections.
The concerns raised by Sonnabend, I believe, certainly need to be used to inform further conversations about PrEP, but they ought not become the death dirge for the PrEP movement.
First I conquer this little issue:
Of course, the idea of preventing an illness by taking some precautionary action is not new. People with less than 200 CD4 cells take Bactrim to prevent Pneumocystis pneumonia; if we visit an area where there is a risk of getting malaria we take drugs to prevent this from happening. At the recent teleconference PrEP to prevent HIV infection was compared to taking drugs to prevent malaria, and even to the use of suntan lotion to prevent sunburn!
I have to say I was taken aback by this absurd comparison. Malaria is curable.
Um, excuse me but Malaria is still killing people all over the world. Why? Lack of access to medicine. The argument is a purely western context and is absurd on that merit point alone. PCP is still killing people, and sun tanning is still causing deadly skin cancers. We know that Malaria is treatable, if you have access to the drugs, and PCP is preventable, if you have access to the drugs and skin cancer is preventable if you don’t lay about in the sun blistering your skin with ultraviolet light. If PrEP shows to as successful as it has proven in some clinical studies, then we will be able to say HIV is not treatable, but it is preventable by using condoms and taking PrEP.
Next is this little gem:
The essential problem of trials of the efficacy of PrEP is an ethical one, and it is inescapable. The best known effective prevention means must be provided when a new prevention strategy is being tested.
can we have a reality check for Dr Sonnabend please?
Condoms are the best known prevention means– BUT the reality is they are not being used correctly consistently and every time sexual activity is happening, nor are sterile syringes in use in shooting galleries everytime. So we know that they are the best, but that does not mean they are being used.
We know that your chances of surviving a car accident is wearing your seat belt. But did that stop the auto industry and safety industry from developing air bags? Absolutely not. There was no ethical quandry with that and we now know wearing a seat belt and driving a car with air bags is the safest thing you can do in car to prevent being killed in an accident.
We cannot live in a world of ethical concepts and philosophy. We have to live in the real world, where, according to the CDC, a person is infected with HIV every 9 minutes in the U.S. If taking a pill is going to prevent some one else from getting this virus, then we should be breaking our asses to get it approved and on the market.
According to the Lansing State Journal in an article appearing only its print edition, Michigan’s Republican Attorney General Mike Cox– who incidently is a candidate for the Republican nomination for Governor in 2010– has ruled Lansing City Attorney Brigham Smith did not violate HIPPA when he released the HIV status of a man arrested in May.