With first responders on the front lines of helping to fight the coronavirus, sharing information about potential exposure to COVID-19 is critical to protecting them and preventing further spread. In these situations, the information shared is most often “protected health information” (PHI) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule. To help clarify when PHI can be shared in these circumstances, the Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) issued guidance relating to sharing PHI about individuals who have been infected with or exposed to COVID-19 to law enforcement, paramedics, other first responders, and public health authorities.

The idea is to make clear when PHI can be given to first responders and others so they can take extra precautions or use personal protective equipment (PPE), and to remind covered entities to follow the “minimum necessary” rule in the process.

According to the guidance, the HIPAA Privacy Rule permits a covered entity to disclose PHI of an individual who has been infected with, or exposed to, COVID-19, with law enforcement, paramedics, other first responders, and public health authorities without the individual’s HIPAA authorization, in certain circumstances, including the following:

  • To provide treatment. For example, a nurse in a skilled nursing facility can alert emergency medical transport personnel that the individual they are transporting to a hospital’s emergency department has COVID-19.
  • When required by law. An example is a hospital making a disclosure of positive COVID status pursuant to a state law requiring the reporting of confirmed or suspected cases of infectious disease to public health officials.
  • When first responders may be at risk for an infection. Covered entities authorized by law to notify persons as necessary in the conduct of a public health intervention or investigation may inform first responders who may be at risk of infection. For example, HIPAA permits a covered county health department, in accordance with a state law, to disclose PHI to a police officer or other person who may come into contact with a person who tested positive for COVID-19, for purposes of preventing or controlling the spread of COVID-19. Similarly, a covered entity, such as a hospital, may provide a list of the names and addresses of all individuals it knows to have tested positive, or received treatment, for COVID-19 to an EMS dispatch for use on a per-call basis. The EMS dispatch would be allowed to use information on the list to inform EMS personnel who are responding to any particular emergency call so that they can take extra precautions or use PPE.
  • When the disclosure of PHI to first responders is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public. For example, a covered entity may, consistent with applicable law and standards of ethical conduct, disclose PHI about individuals who have tested positive for COVID-19 to fire department personnel, child welfare workers, mental health crisis services personnel, or others charged with protecting the health or safety of the public if the covered entity believes in good faith that the disclosure of the information is necessary to prevent or minimize the threat of imminent exposure to such personnel in the discharge of their duties.

These are just some of the examples in which PHI about an individual’s COVID-19 infection can be shared with first responders. The primary authority for these exceptions to the general rule of nondisclosure without an authorization is for treatment disclosures (45 CFR 164.502(a)(1)(ii)), legal requirements (45 CFR 164.502(a)(2)), and other purposes (45 CFR 164.512). Note, however, that unless the disclosure is required by law, for treatment purposes, or for certain other purposes, the covered entity must make reasonable efforts to limit the information used or disclosed to that which is the “minimum necessary” to accomplish the purpose for the disclosure.

Remember also that state laws may be more stringent than HIPAA concerning uses and disclosures of PHI. Thus, covered entities should consult other applicable laws (e.g., state and local statutes and regulations) in their jurisdiction prior to using or making disclosures of individuals’ PHI, as such laws may place further restrictions on disclosures that would otherwise be permitted by HIPAA.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Mr. Lazzarotti also is a member of the firm’s Employee Benefits Practice Group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Mr. Lazzarotti counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Mr. Lazzarotti’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Mr. Lazzarotti speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Mr. Lazzarotti served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.