Legal Preparedness to Share Information During Disasters

1. Legal Preparedness to Share Information During Disasters Denise Chrysler, J.D., Director The Network – Mid-States Regional Center University of Michigan School of Public Health Presented May 8, 2013 National Disaster Epidemiology Workshop

2. Thank you!! for your work to protect our community…..everyday and during extraordinarily conditions Legal Preparedness to Share Information, May 8, 2013 2

3. Who are we and what do we do? • At no cost, the Network provides public health legal support: • Technical assistance • Resources • Opportunities to build connections • With a single point of entry to experts on a wide-range of topics, it’s practical, reliable and seamless. Legal Preparedness to Share Information, May 8, 2013 3

4. Public Health Topics Working with experts around the country, the Network provides support on a variety of topics: • Cross-border public health • Emergency legal preparedness and response • Environmental public health • Food safety • Health reform • Health information data sharing • Injury prevention and safety • Obesity prevention • Public health agency accreditation and shared service delivery • Public health statutes and regulatory information • Tobacco control • Tribal public health law • And other topics Legal Preparedness to Share Information, May 8, 2013 4

5. Other states CDC Data flows like a river Physician State Public Health Patient Law enforcement Laboratory Local Public Health Family Red Cross • Determine the data sources and recipients • Identify the data elements • Analyze law that governs each transfer • Deal with data dams and data diverters Emergency Responders Public Media Legal Preparedness to Share Information, May 8, 2013 5

6. Lawgoverns every aspect of data Collection Use Sharing Protection Law friend or foe? - How does law help you do your job? - How is law a barrier? Legal Preparedness to Share Information, May 8, 2013 6

7. Wish list Legal Preparedness to Share Information, May 8, 2013 7

8. The Fine Print This presentation is for informational purposes only. This presentation represents my understanding of various laws, and is not intended as a legal position or advice from the Network for Public Health Law or the University of Michigan School of Public Health. For legal advice, attendees should consult with their own counsel. Legal Preparedness to Share Information, May 8, 2013 8

9. Collection Surveillance Investigation Action Legal Preparedness to Share Information, May 8, 2013 9

10. Collection & use of data • Authority established by state law • Public health broad authority to collect data to prevent and control disease and protect public health (1977 S. Ct opinion, Whalen v Roe) • Corresponding duty to protect information • HIPAA should not impede public health data collection functions • HIPAA allows health care providers to provide identifiable health information to public health authorities and their agents for public health purposes • FERPA may be barrier to obtaining info from schools Legal Preparedness to Share Information, May 8, 2013 10

11. Public Health and Law Enforcement Datasharing:Benefits & Challenges • Law enforcement as “police” • Overlapping but distinct missions and approaches that are complementary and conflicting • PH as agent of police (2001 S. Ct opinion, Ferguson v. City of Charleston) • Joint investigations • Evidence - Fourth Amendment warrant for search and seizure • Interviews – Fifth Amendment right against self-incrimination • Joint planning and training • Model Memorandum of Understanding • Forensic epidemiology Legal Preparedness to Share Information, May 8, 2013 11

12. Sharing Data What? With whom? For what purpose? Competing interests: protect individual privacy, protect the public, inform the public Legal Preparedness to Share Information, May 8, 2013 12

13. Challenges in Sharing Data • PH data – state law mostly governs (varies) • Each data type may be controlled by own law • Legal interpretations necessary–when in doubt lawyers say “no” • De-identification (HIPAA’s influence) & re-identification risk • No reasonable basis to believe that the information can be used to identify an individual • Lack of statistical expert • Media: Guidance on the release of information concerning deaths, epidemics or emerging diseases (AHCJ) Legal Preparedness to Share Information, May 8, 2013 13

14. Michigan’s HIV confidentiality law Sec. 5131. (1) All reports, records, and data pertaining to testing, care, treatment, reporting, and research, and information pertaining to partner notification under section 5114a, that are associated with the serious communicable diseases or infections of HIV infection and acquired immunodeficiency syndrome are confidential. A person shall release reports, records, data, and information described in this subsection only pursuant to this section. Legal Preparedness to Share Information, May 8, 2013 14

15. Nebraska’s communicable disease law R.R.S. Neb. § 71-503.01 When case reports and positive lab results must be reported to a public health agency, “such reports or notifications and the resulting investigations shall be confidential except as provided in this section, shall not be subject to subpoena, and shall be privileged and inadmissible in evidence in any legal proceeding of any kind or character and shall not be disclosed to any other department or agency of the State of Nebraska.” The section allows non-identifiable information to be reported to CDC to further the protection of public health and identifiable information to be provided to other health departments to ensure that investigations deemed necessary are made. Legal Preparedness to Share Information, May 8, 2013 15

16. State Privacy Laws: • Laws vary in addressing privacy concerns and scope of permissible sharing • ASTHO Legal Barriers Project Public Health and Information Sharing Toolkit – use State Analysis Guide to identify relevant privacy laws and conditions for disclosure Legal Preparedness to Share Information, May 8, 2013 16

17. Protection of data • Freedom of Information laws (a/k/a Sunshine laws, Public Records laws) • Ensure open government • Government limited in ability to restrict access to data • General rule: Must provide information requested unless an exemption applies • May be problematic in the event of a public health emergency Legal Preparedness to Share Information, May 8, 2013 17

18. Information not subject to disclosure under another law Common exemptions Personal privacy Health information or records Business information Investigatory record National and/or state security Legal Preparedness to Share Information, May 8, 2013 18

19. Your turn! • What data challenges do you face? • How have you resolved datasharing concerns? • Is law a barrier to data collection, use, sharing, or protection needed to protect the public? • Do you have legal counsel available who assists you in meeting datasharing needs? • What is on your wish list to make your job easier? • How can we (CSTE, Network for Public Health Law and ASTHO) help? Legal Preparedness to Share Information, May 8, 2013 19

20. Thank you for listening Denise Chrysler dchrysler@networkforphl.org