Sunday, February 28, 2016

Professional athlete injuries, PHI & HIPAA. Should the media exercise better judgment?


On February 25, 2016, there was a significant discussion on the Dan Patrick Show on NBC Sports regarding Adam Schefter, ESPN and the suit filed by New York Giants football player Jason Pierre-Paul concerning the release of the image of his injured hand. If you click on the ESPN link above, it will take you to the press release and the allegations, so I won’t cover those here.

The live discussion was well reasoned, discussed and managed gracefully by Dan Patrick and the Danettes. They should all get kudos for their efforts.

I do need to be clear that reporters and media outlets no matter the channel are not covered entities under current law and regulation.  So when a provider employee leaks PHI which is a violation of HIPAA to the media, while the employee and employer are subject to penalties, reporters and media members for using that information are not.

So maybe a little education is needed regarding Protected Health information (PHI) and the Health Insurance Portability and Accountability Act (HIPAA).  As a reminder and this is taken directly from the website of HHS:

The HIPAA Privacy Rule

The HIPAA Privacy Rule establishes national standards to protect individuals’ medical records and other personal health information and applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically.  The Rule requires appropriate safeguards to protect the privacy of personal health information and sets limits and conditions on the uses and disclosures that may be made of such information without patient authorization. The Rule also gives patients rights over their health information, including rights to examine and obtain a copy of their health records, and to request corrections.
The Privacy Rule is located at 45 CFR Part 160 and Subparts A and E of Part 164
Click here to view the combined regulation text of all HIPAA Administrative Simplification Regulations found at 45 CFR 160, 162, and 164.
Is there a public right to know about an athlete’s injury when the information had not been previously released?

From my view, the answer is no; there is no public right to know when it comes to personal medical information about anyone regardless of profession or public status.  

One would hope that reasonable judgment and ethical behavior on the part of the reporter would be in play.  I know, that is Pollyannaish thinking when scoops, Q factors, Tweets, readership, professional jealousies and ratings are everything. Never mind the more than 15 minutes of fame. But still, aren’t reporters sometimes still seen as a trusted source for “my sources say” information? And isn’t the risk bigger for the writer losing the confidence and trust of players for releasing PHI?

Not so simple is it?

And it doesn’t matter either how stupid someone may think their action was resulting in the injury.

Where do we go from here?

Healthcare marketers and public relations professionals deal with this issue every day.  Many times it becomes a crisis communications issue when a provider employee or employees provide that athletes injury information to the press.

People engage in activities when they know it’s wrong for a variety of reasons tops of which are their 15 minutes of fame or for monetary reasons.  That is just the age that we live. But that doesn’t mean its right.

The opportunity for healthcare marketers here is to reach out to the print and electronic media in their markets and offer some refresher courses on PHI, HIPAA, and what to do if they receive from “confidential sources” protected health information.

I would also reach out to the media outlets and the teams as well and offer to provide PHI and HIPAA training to new employees during that organization new employee orientation.  No more than a few slides on the why of HIPAA, their responsibilities in this, and how to handle.

Build a strong relationship and everyone benefits. The provider. The sports media company and reporters. The professional team. And most importantly the individual athlete.

Protecting a person’s health information is everyone’s responsibility. Ignorance of the law, as well as poor judgment, is no excuse.

After all, would you want your health information released without your consent?


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