Legal Preparedness to Share Information During Disasters Denise Chrysler, J.D., Director The Network...

Legal Preparedness to Share Information During Disasters

Denise Chrysler, J.D., DirectorThe Network – Mid-States Regional CenterUniversity of Michigan School of Public Health

Presented May 8, 2013National Disaster Epidemiology Workshop

Thank you!!

for your work to protect our community…..everyday and during extraordinarily conditions

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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.


Public Health 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

Working with experts around the country, the Network provides support on a variety of topics:

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Data flows like a river

Legal Preparedness to Share Information, May 8, 2013

State Public Health

Local Public Health

Media

Public

CDC

Emergency Responders

Red Cross

Other states

Patient Physician

Laboratory

- Determine the data sources and recipients- Identify the data elements- Analyze law that governs each transfer- Deal with data dams and data diverters

Law enforcement

Family

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Law governs every aspect of data


Law friend or foe?- How does law help you do your

job? - How is law a barrier?

UseCollection

Sharing Protection

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Wish list


Challenge Solution

Collecting data

Using data

Sharing data

Protecting data

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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.

The Fine Print


Surveillance Investigation Action

Collection


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


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 investigationso Evidence - Fourth Amendment warrant for search and seizure

o Interviews – Fifth Amendment right against self-incrimination

» Joint planning and trainingo Model Memorandum of Understanding

o Forensic epidemiologyLegal Preparedness to Share Information, May 8, 2013 11

Sharing Data


What?

With whom?

For what purpose?

Competing interests: protect individual privacy, protect the public, inform the public

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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

ˉ No reasonable basis to believe that the information can be used to identify an individual

ˉ Lack of statistical expert

»Media: Guidance on the release of information concerning deaths, epidemics or emerging diseases (AHCJ)

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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.


Nebraska’s communicable disease lawR.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.


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

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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

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Common exemptions


Information not subject to disclosure under another law

Personal privacy

Health information or records

Business information

Investigatory record

National and/or state security18 18


»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?

Your turn!

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Thank you for listening

Denise [email protected]

Legal Preparedness to Share Information During Disasters Denise Chrysler, J.D., Director The Network...

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