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Friday, May 15, 2020

Health Departments and the Disclosure of COVID-19 Patient Identifying Information

The Health Insurance Portability and Accountability Act (HIPAA) privacy rule generally prevents the disclosure of a patient’s personal health information without the patient’s HIPPA authorization. However, an exception to HIPPA permits disclosing this information to first responders in certain circumstances, including lessening a serious and imminent threat to health and safety of the public, first responders and inmates. 

The Illinois Attorney General has advised that sharing COVID-19 patient identifying information with first responders is permissible under the HIPPA exception, but has left decision to local health departments. The Illinois Department of Public Health (“IDHP”), however, issued guidance on April 1, 2020, recommending that local health departments not disclose COVID-19 patient identifying information to law enforcement. The IDHP based this guidance on its opinion that disclosing COVID-19 identifying patient information to first responders would have limited value and provide first responders with a false sense of security because of a high number of asymptomatic cases may not have been tested yet and people who have tested positive may no longer be contagious. Instead, the IDPH recommended that first responders take appropriate protective precautions when responding to all calls. 

Illinois counties have responded in different ways to this issue. DuPage and Will County Health Departments have voluntarily provided COVID-19 patient addresses to first responders. However, other Illinois counties have refused to provide information to first responders, sparking several lawsuits, a few of which are discussed below.

Cook County

The Northwest Central Dispatch System, a consolidation of 911 dispatchers, filed a lawsuit on April 20, 2020 against the Cook County Department of Public Health, its administrators and Cook County Board President Toni Preckwinkle. The lawsuit sought a temporary restraining order (TRO) forcing the county to disclose the names and addresses of COVID-19 patients. On May 1, 2020, Cook County Judge Anna Demacopoulos denied the TRO. During the hearing, the judge reiterated the IDHP’s guidance and voiced concerns over maintaining the privacy of medical information and whether police would respond more slowly if they knew they could be exposed to the virus. The judge also questioned whether releasing this information would make first responders safer, reasoning that because of the high number of asymptomatic cases and testing gaps, first responders are no more safe if they know a person’s name. Addressing discrimination concerns, the judge said that disclosing COVID-19 patient identities threatens stigmatizing infected people and harming minorities and undocumented residents who have complicated relations with the police. She also noted that some might feel discouraged from getting tested for fear of appearing on the list, which could exacerbate the virus’s prevalence in those communities. The judge set another hearing for early June.

McHenry County

On April 10, 2020, McHenry County Judge Michael Chmiel entered a TRO requiring the McHenry County Department of Health to disclose COVID-19 patient names to emergency dispatchers. The TRO requires COVID-19 patient names to be purged from the dispatch system seven days after the health department deems the patients are no longer contagious and also requires all information received by the dispatch system to be kept confidential. The judge’s order comes after a lawsuit filed by the McHenry County Sheriff and a separate lawsuit filed by Algonquin, Lake in the Hills, McHenry City, and Woodstock Police Departments. The Sheriff’s Office claims that the names of infected COVID-19 patients will only be shared by dispatchers on a call-by-call basis to protect the health of officers responding to emergency calls. The County Department of Health has filed a reconsideration request and a motion to dissolve the temporary restraining order, which is slated to be considered on May 18, 2020.

Lake County

On April 28, 2020, the Lake County Sheriff’s Office filed a lawsuit to force the Lake County Health Department to provide the names and addresses about COVID-19 patients in the county after the Health Department refused the Sheriff's request to confidentially disclose this information. The matter was heard by Judge Daniel Jasica on May 1, 2020, who urged both parties to engage in settlement discussions. Similar to the legal challenge in McHenry County, the Lake County Sheriff’s Office claims that receiving this information is vital to preventing the spread of the virus and protecting first responders and the community. In response, the Health Department reiterates the IDHP’s recommendation that disclosing patient identifying information gives law enforcement a false sense of security, because the county has many asymptomatic individuals who have not been tested and increases the risk of mishandling private medical information. This case is ongoing.

Post Authored by Eugene Bolotnikov, Ancel Glink


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