HIPAA cited as reason to keep confidential lawmakers’ health insurance benefits

The erroneous idea that the Health Insurance Portability and Accountability Act (HIPAA) makes confidential the amount of money that governments in Tennessee pay to buy employee health insurance comes up occasionally, the latest after a controversial decision by a state legislative committee to reject the governor’s Insure Tennessee proposal.

The state of Tennessee is not alone in also paying for elected officials or lawmakers’ health insurance benefits.  Nashville Metro Council members get to be on the city’s health care plan, and they and their families can keep the coverage for their entire life if they want.

These benefits can be good deal for the recipient, and for some who have had trouble finding affordable health insurance, it’s a job perk to envy.

After the legislative committee’s vote, a handful of news organizations and supporters of the failed Insure Tennessee plan submitted public records requests to see which lawmakers were receiving health insurance through state government, according to a story today by Dave Boucher of The Tennessean. Some wanted to know how much the state paid for those benefits. News articles were published showing many lawmakers were on the state plan, including most who voted down Haslam’s Insure Tennessee plan. (WPLN Nashville Public Radio published a story showing that even ex-lawmakers are on the plan — 150 of them, including two felons.)

The general counsel for the Office of Benefits Administration affirmed that whether or not a lawmaker is enrolled in the state’s health plan was not protected under HIPAA, but the director of the Office of Legislative Administration disagreed and said she would not have released names of lawmakers who receive health insurance from the state.

HIPPA protects health information of individuals by restricting what health plans, health care providers and health care clearinghouses can reveal. It does not protect government information that is otherwise open under a state’s open records laws, such as in Tennessee how much a government entity spends to purchase health insurance for its employees — or in this case, members of the Legislature. What HIPPA would protect would be any payment by a health plan to a health provider for a particular individual’s health care.

Here is an excerpt from the U.S. Health and Human Services’ web page about what information is protected under HIPAA:

What Information is Protected

Protected Health Information. The Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. The Privacy Rule calls this information “protected health information (PHI).”12

“Individually identifiable health information” is information, including demographic data, that relates to:

  • the individual’s past, present or future physical or mental health or condition,
  • the provision of health care to the individual, or
  • the past, present, or future payment for the provision of health care to the individual,

and that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual.13  Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number). 

The payment of a government entity to buy health insurance for an employee is not the same as the payment by a health plan to a doctor to provide health care.  The purpose of the act is to protect individual health information, and payment to a doctor for particular services could reveal something about the individual’s private health information, which is why that is confidential.

Here are some helpful links, provided by the Reporters Committee for Freedom of the Press, about HIPAA regulations:

How does the HIPAA privacy rule relate to state open government laws?

Who is covered by the privacy rule?

Some of the organizations who had requested information about the lawmakers’ health care benefit have since withdrawn their records request. Some of the lawmakers didn’t think it was fair to attack their health benefit package just because they voted down an expansion of the TennCare program.

Here is part of Boucher’s story:

Days after the plan’s defeat, The Associated Press reported six of the seven lawmakers who officially voted against Insure Tennessee are enrolled in public health care plans themselves. The report references a Chattanooga Times Free Press story that said 88 of the 99 members in the House and 28 of the 33 senators receive state health insurance. Other media outlets reported similar information as well.

New information obtained by The Tennessean shows one state agency believes some of that information would never have been released in the past, and releasing it now could be a violation of the federal Health Insurance Portability and Accountability Act — HIPPA.

Connie Ridley, director of the Office of Legislative Administration, said as much in an email Thursday morning to Senate members warning them that more information about their health coverage could become public. She said the office would never release the name of a lawmaker who receives coverage, and a different agency, the Office of Benefits Administration, must have changed its own policy by releasing those names.

In an interview, Ridley confirmed she sent the email. She said that the Benefits Administration first advised her office in 2005 not to release names or other “personally identifying information.”

That’s very different from what the general counsel for the Benefits Administration told Ridley in response to questions she sent it about that information.

In a Feb. 11 letter Ridley also sent to lawmakers, Benefits Administration General Counsel Martha Nichols wrote that federal health officials say HIPPA does not supersede state public records laws.

Nichols acknowledges in the letter that some medical or health information is exempt from public records requests.

“However, that exception does not exclude from production non-medical information, such as name and whether or not the individual is enrolled in state supplied health benefits,” Nichols wrote.

Ridley sent her letter to Nichols in connection to a records request made by the Nashville Scene. In her letter to lawmakers, Ridley warned that the Benefits Administration could make a similar decision to release information in response to other pending records requests.

At the bottom of her letter, Ridley lists details of six pending records requests: two filed by The Tennessean, one each from the Chattanooga Times Free Press and WPLN and two from organizations that advocated for the passage of Insure Tennessee.

Hall Strategies led the public relations campaign for the coalition of businesses, health care providers and other groups advocating for Insure Tennessee. Since the plan’s defeat, the coalition has publicly blasted those who voted against the plan, in interviews and on social media.

On Feb. 6, Hall Strategies requested health insurance information on all six of the state senators who voted against Insure Tennessee and receive public insurance, according to Ridley’s letter. The request asked for the number of years the lawmakers have been on the plan, how much they paid on the plan each year and how much the state paid for their insurance.

Hall Strategies — the same company that helped plan the governor’s inauguration ceremonies this year — also requested the same information for House Republican Caucus Chairman Glen Casada, House Minority Whip Jeremy Durham, Rep. Sheila Butt and Rep. Dennis Powers, according to the letter.

Casada and Durham, both R-Franklin, were some of the most outspoken critics of Insure Tennessee in the General Assembly. Both are enrolled in the state health plan, according to The Associated Press analysis.

Reached Thursday, Joe Hall of Hall Strategies said the firm never meant to make a formal records request and declined further comment.

Ridley wrote that the chief operating officer of the Tennessee Health Association, a member of the coalition who fought for Insure Tennessee, requested information as well.

Mary Layne Van Cleave asked for all lawmakers covered and the total cost to the state. That doesn’t mean the group plans to publicly attack lawmakers who voted against the plan, THA spokesman Joe Burchfield said.

“On the Friday of the week of the special session — a difficult week for many of us — THA did make an initial inquiry about what information would be available from Benefits Administration,” Burchfield said in an email, adding there is no longer any pending request for that information.

“However, upon further internal discussion that same day, the decision was made to not pursue additional information from the state because it was not an appropriate or necessary request for us to make.”

Ridley said she did not believe the state should release the names or specific cost information about lawmakers’ health insurance. Even releasing dollar amounts spent on one or all insurance plans by the state could provide identifying information, she argued.

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