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Texas A.G.: State law overrides federal medical privacy act

By The Associated Press
02.16.04

DALLAS — Texas Attorney General Greg Abbott released his ruling late last week that the state's public information law takes precedence over a far-reaching federal medical privacy law, a legal opinion he called the strongest in the nation.

His Feb. 13 decision means Texas news-media outlets and individuals will have access to public information that some hospitals and authorities have declined to release under the federal Health Insurance Portability and Accountability Act, known as HIPAA.

"In Texas, government records are presumed open unless a specific exception applies. HIPAA is not an exception to the rule of openness in the state of Texas," Abbott told the board of directors of the Freedom of Information Foundation of Texas at The Associated Press' Dallas bureau, where he released his legal opinion.

HIPAA, a sweeping overhaul of the federal health care privacy laws that took effect last April, has frustrated journalists and others who have found most basic information hard to come by.

"What this means is, governmental bodies who've been using HIPAA as a shield just lost that protection," Abbott said.

Abbott said Texas authorities worked closely on the language of the ruling with the U.S. Department of Health and Human Services, which created the privacy regulations under the law. Still, he said, he wouldn't be surprised if the ruling were challenged in court.

"I would not be surprised if there was a lawsuit, but I don't see one imminently," he said.

Bill Pierce, a Health and Human Services spokesman, said the agency responded to Abbott's questions about disclosure requirements but had not reviewed the attorney general's opinion.

HIPAA itself says medical information is open if required under another law, Abbott said. He said the Texas Public Information Act is that law.

The ruling arose from a dispute between the Lubbock Avalanche-Journal and local officials.

The city attorney there initially declined to release information about murders and traffic fatalities under HIPAA, but later changed her position while awaiting the attorney general's ruling, said Randy Sanders, editor of the Lubbock newspaper and a member of the FOI board.

"We're just really excited about the attorney general's willingness to rule on this issue," Sanders said. "I never had any idea that this little deal would come up from our newspaper and maybe change the way other communities will rule on these things."

Joel White, a Houston attorney and president of the FOI board, said the decision will clear up a lot of confusion. He said interpretations of HIPAA have ranged from football coaches who believed they couldn't disclose player injuries to churches wondering why hospitals won't provide information about church members.

"HIPAA has been an enormous problem," White said, noting that he believes Abbott's decision would withstand legal challenges.

Some police investigators around the country have been stymied by hospitals under HIPAA. And some officers have stopped providing information to media on accident victims under the law.

"That's done away with, I hope," said Katherine "Missy" Minter Cary, head of the Texas agency's open-records division.

Authorities in Kentucky, Arkansas and Utah also have challenged HIPAA.

"This is by far the strongest opinion," she said.

Also on Feb. 13, Abbott said the attorney general's office has increased enforcement of public information laws by adding a prosecutor who pursues only those cases. Brandy Byrd, a former prosecutor in Dallas and Williamson counties, began work in November.

The Freedom of Information Foundation of Texas is a First Amendment organization that educates and promotes the rights and responsibilities of access to public records and meetings.


Update
Texas appeals court: State right-to-know laws override HIPAA
Case stems from complaints that federal law hampered journalists' pursuit of information previously accessible under state law. 06.19.06

Previous
Texas city attorney raises ire of open-government advocates
Lubbock prosecutor cites federal health-privacy rules in telling police to withhold information about murders, traffic fatalities from news media. 04.22.03

Related

Ohio justices consider whether state law trumps HIPAA

Newspaper sues Cincinnati Health Department after agency cites federal health-privacy rules in refusing to release data about homes with lead paint. 10.15.05

Ohio high court: State law trumps federal medical-privacy rules
Justices order Cincinnati Health Department to give Enquirer records on lead-paint hazards, saying federal agency clearly stated its intent that HIPAA would not override state law. 03.20.06

HIPAA & newsgathering


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