HomeMy WebLinkAbout2021_6_30 AHuenke COVID responseFrom:Tom Locke
To:Annette Huenke
Cc:Board of Health; Glenn Gilbert
Subject:Re: vaccination status
Date:Thursday, July 1, 2021 11:30:04 AM
Ms. Huenke,
Your question is a legal one and best addressed to legal experts. This issue has been
addressed extensively at a national level and I refer you to those references, including 3028 - If
my employer requires proof of my COVID-19 vaccination status, does that violate my rights
under HIPAA? | HHS.gov . Only "covered entitites" are bound by HIPAA requirements.
Jefferson Healthcare clearly is a covered entity and cannot release personal health
information without written consent or one of the exemptions to written consent. Employers
and business owners, in contrast, are not covered entities under HIPAA and have a compelling
reason to determine vaccination status -- to maintain a safe workplace by protecting
unvaccinated individuals from infection. Business owners, likewise have a legitimate reason to
ask for this information but, unlike employers, are not required to do so. People are free to
decline COVID vaccination but that decision has consequences -- increased risk of infection
and of transmitting that infection to others and the requirement that they continue to mask
indoors in order to limit transmission of SARS-CoV-2 to children, unvaccinated adults, and
those who are immunosuppressed.
Thomas Locke, MD, MPH
Jefferson County Health Officer
From: Annette Huenke <amh@olympus.net>
Sent: Wednesday, June 30, 2021 7:03 PM
To: Jay.Inslee@gov.wa.gov; doh.secretary@doh.wa.gov; CivilRights@lni.wa.gov
Cc: jamila.thomas@gov.wa.gov; Board of Health; Tom Locke
Subject: vaccination status
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To all concerned —
I just read the Governor’s statement about reopening the state, and L&I’s Requirements and
Guidance for employers. Some months ago, I filed a Public Records Request with Jefferson
Healthcare in Port Townsend, inquiring as to the vaccination status of an individual said to
have died from Covid while in hospital there. Here is the response I received:
The information you are requesting is considered to be individually identifiable information relating
to the past health status of an individual and not a Public Record as defined by RCW 42.56. Health
information such as whether a patient received a Covid 19 vaccine is protected health information
because the individual could be identified from the information and is protected under the Health
Insurance Portability and Accountability Act of 1996 (HIPAA) patient privacy laws.
FOR YOUR CONSIDERATION:
HIPAA is in place to protect individual health information. If the vaccination status of a
hospital patient is not subject to public disclosure because it is protected by HIPAA as a legally
enforceable matter of individual privacy (RCW 42.56), as asserted above by Jefferson
Healthcare in Port Townsend, then public disclosure of every individual’s vaccination status —
including business employees and customers — is similarly protected.
Pursuant to RCW 42.56.594 (b) Any agency that violates, proposes to violate, or has violated RCW 42.56.590 may be enjoined and be subjected to a
consumer civil action. Additionally, "Any waiver of the provisions of RCW
42.56.590 or 42.56.592 is contrary to public policy, and is void and
unenforceable. (RCW 42.56.594)
RCW 42.56.590
Personal information—Notice of security breaches.
(10)(a) For purposes of this section, "personal information" means:
(H) Any information about a consumer's medical history or mental or
physical condition or about a health care professional's medical diagnosis
or treatment of the consumer;
RCW 42.56.010
Definitions.
The definitions in this section apply throughout this chapter unless the
context clearly requires otherwise.
(1) "Agency" includes all state agencies and all local agencies. "State
agency" includes every state office, department, division, bureau, board,
commission, or other state agency. "Local agency" includes every county, city, town, municipal corporation, quasi-municipal corporation, or special
purpose district, or any office, department, division, bureau, board,
commission, or agency thereof, or other local public agency.
RCW 42.56.594
Personal information—Consumer protection.
(1) Any waiver of the provisions of RCW 42.56.590 or 42.56.592 is contrary to public policy, and is void and unenforceable.
(2)(a) Any consumer injured by a violation of RCW 42.56.590 may institute
a civil action to recover damages.
(b) Any agency that violates, proposes to violate, or has violated RCW
42.56.590 may be enjoined
(c) The rights and remedies available under RCW 42.56.590 are
cumulative to each other and to any other rights and remedies available
under law.
RCW 42.56.592
Personal information—Covered entities.
A covered entity under the federal health insurance portability and
accountability act of 1996, Title 42 U.S.C. Sec. 1320d et seq., [HIPAA] is
deemed to have complied with the requirements of this chapter with
respect to protected health information if it has complied with section
13402 of the federal health information technology for economic and clinical health act, P.L. 111-5 as it existed on July 24, 2015. Covered
entities shall notify the attorney general pursuant to RCW 42.56.590(7) in
compliance with the timeliness of notification requirements of section
13402 of the federal health information technology for economic and
clinical health act, P.L. 111-5 as it existed on July 24, 2015,
notwithstanding the timeline in RCW 42.56.590(7). [emphasis added]
On what legal basis/theory does the governor’s office via the WA State Dept of Labor and
Industries, any state health agencies, their subsidiaries or county health departments acting
pursuant to direction from such offices and state agencies, claim to waive the provisions of
RCW 42.56.590 or 42.56.592 or to be exempt from court orders orders barring ("enjoined
from") such proposals?
I look forward to your reply.
sincerely,
Annette Huenke
Port Townsend