The Reporters Committee for Freedom of the Press (RCFP), recently clarified the rules for journalists reporting protected health information after a recent media storm following a potential HIPAA violation by a sports reporter.
In July, a sports reporter for ESPN heard a story about a famous athlete who had suffered a serious injury. That reporter, Adam Schefter, sent a tweet sharing a picture of the athlete together with his name and some Protected Health Information: Details of his injury. The athlete had lost his right index finger in a July 4, fireworks accident.
Protected Health Information or PHI is covered by Health Insurance Portability and Accountability Act (HIPAA) Rules. The Privacy Rule does not permit the unauthorized sharing of PHI, of which medical diagnoses are included, along with personal identifiers such as names and photographs.
However, while accusations flew around the internet, no HIPAA violation could have been caused, at least not by the reporter, as neither the reporter nor his employer are HIPAA covered entities.
RCFP clarified the rules for journalists reporting protected health information: “ESPN is very much in the clear here. HIPAA does not apply to journalists—it only applies to covered health entities,” says Kimberly Chow, a legal fellow at RCFP. She went on to say, “Whoever released the medical information is the one who is under the gun, so to speak, and they’re the one who can be punished for that law theoretically.”
She also said of information given to reporters, “as long as they [reporters] did not aid in the leaking or facilitate it, if they just received it, then they are in the clear to report on it and publish it.”
Reporting on Protected Health Information
The rules covering the disclosure of protected health information to the public is not a matter covered under HIPAA unless the covered entity discloses the information; but journalists do have an ethical code to follow. Health information should not be disclosed, unless there is a valid reason for alerting the public to that information.
Chow says, “The law allows reporters, often, to do a lot more than most reporters would feel comfortable with doing ethically. So, we help them to figure out those boundaries, but in the end, it’s a question for the reporter and editors about what they feel is in the public interest. In this case, it seems like ESPN thought it was in the public interest for the public to find out what happened after this fireworks accident.”
There are boundaries between the protection of patient privacy and the disclosure of information ‘in the public interest’. RCFP offers guidance to journalists on privacy matters – including the rules for journalists reporting protected health information – and how best to proceed with a story so as not to violate the rights of individuals, while providing the public with necessary information.