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Privacy Law May Block Cops

Sgt. Andrew Gallagher knew the 9-year-old boy was hospitalized, but that was about all. The Stamford police investigator tried to reason with a nurse: He was investigating a car accident. He needed to know the boy's condition.

Not a chance, he was told. The hospital could not even confirm the boy was in the building.

So Gallagher drove to the hospital, 45 minutes away, figuring a uniformed officer would have better luck in person. A Yale-New Haven Hospital security guard stopped him in the lobby and said Gallagher needed to see a hospital attorney in another building.

This is life under the Health Insurance Portability and Accountability Act, a sweeping overhaul of the federal health care privacy laws that took seven years to craft.

Since the law took effect in April, some investigators who once had easy access to hospital emergency rooms have found even the most basic information hard to come by.

A small-town Kansas police chief says he could not verify the whereabouts of two patients, even though both were wanted for murder.

Nurses in South Carolina refused to tell a detective whether a shooting victim was alive, and said that even if he was he could not be questioned without his family's approval.

Privacy advocates say police have the same access to information as before the law took effect and can get anything they need with a warrant. But police predict it is only a matter of time until a case falls apart or a suspect escapes because of bureaucratic roadblocks.

HIPAA specifically allows hospitals to release information if police believe a crime has been committed. But legal experts say the new rules are so dense and the threat of liability so great that most hospitals are choosing silence in the name of HIPAA.

"I said, 'Do you want somebody who has just been charged with first-degree murder walking around your city after walking out of your hospital?'" Great Bend, Kan., Police Chief Dean Akings remembers asking a nurse in May, while trying to locate two suspects wounded in a shoot-out.

Akings said the nurse responded: "That's our problem."

A hospital is the first stop for many police investigations. Medical records can pinpoint a suspect — or clear one. Family and friends gather at the victim's bedside, all but lined up to be interviewed while their memories are fresh. Witnesses and suspects who might disappear tomorrow can be found in a hospital emergency room.

Before HIPAA, access to these sources was not a legal question because health care privacy was not spelled out. Now that it is a matter of law, hospitals are guarding information that used to flow freely.

"In staff training, you're told that if you don't know the answer, if you don't know whether you can answer, send them to so-and-so. Send it back upstream for someone else," said Kimberly Greaves, a Georgia health care attorney who provides HIPAA training and advice to doctors and hospitals.

Still, she predicted that both sides will get used to the new rule.

The HIPAA coordinator at Yale-New Haven Hospital declined to comment for this story, saying she needed to review the questions with other departments.

Gallagher said Yale-New Haven's attorney eventually reached the 9-year-old's mother, who agreed to be interviewed. He said he has no idea what would have happened if she had declined.

North Charleston, S.C., Detective Chris Widmer was investigating a shooting during a botched robbery in June. The victim could help identify the shooter, but hospital administrators refused even to say whether the man had survived.

"Here you have somebody who's shot, who's the victim of a crime, and we have to get authorization from the victim and the victim's daughter to talk to him?" Widmer said.

Peter Swire, who served as former President Clinton's counselor on HIPAA policy and helped craft key parts of the law enforcement exceptions, said patients are getting the benefit of the doubt that investigators used to enjoy.

If police find that frustrating, he said, they can get a warrant for a patient's arrest or for any evidence they need.

"Many people don't want to talk to police, and we have due process before they have to talk," Swire said.

Doctors see a medical benefit to the law. If medical records are potential police records, patients will be less likely to see a doctor and more likely to lie, said Dr. Donald Palmisano, president of the American Medical Association.
By Matt Apuzzo

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