In a Feb. 13 opinion, Texas Attorney General Greg Abbott wrote that a federal law intended, in part, to ensure the privacy of individual medical information doesn’t necessarily pre-empt the state’s Public Information Act. At issue is a portion of the federal Health Insurance Portability and Accountability Act, which sets the “national standards for the privacy and security of individually identifiable health information,” Abbott wrote. The various HIPAA privacy restrictions – which depend on the type of information involved – apply to health plans, health care “clearinghouses,” and any health care provider who “transmits any health information in electronic form” – which includes EMS personnel responding to accidents or other calls. However, Abbott opined, the restrictions do not apply to police, who do not fit into any of HIPAA’s health care provider categories. “A police department is not a covered entity,” he wrote, in part because police are not “health providers” as defined by federal rules, since they do not bill for services and are not paid for health care “in the normal course of business.”
Since taking effect last year, HIPAA’s privacy restrictions have caused headaches for journalists – among others – seeking information about accident and crime victims as well as suspects. Abbott’s decision was prompted by an opinion request submitted by state Sen. Robert Duncan, R-Lubbock, after that city’s attorney ruled that the city’s police were forbidden under federal law to reveal any identifiable information about any suspect or victim. (Most cities, of course, including Austin, make such information available on a daily basis.) In his opinion, Abbott made clear not only that HIPAA does not apply to police, but that the law does not, in and of itself, make any information confidential under state law. Each request for public information from a Texas agency, Abbott wrote, must be evaluated on its own merit and through the lens of the Texas PIA.
This article appears in February 20 • 2004.