CCFOI testimony: HB 5047

HIPAA must yield to state laws that govern the disclosure of public records. Courts across the country have ruled, without exception, that public records required to be disclosed under state FOI laws are not protected by HIPAA.

CCFOI opposes a section of HB5047 that would change that.

See Michele Jacklin’s testimony on HB5047 here and below.

HB 5047, AN ACT IMPLEMENTING THE GOVERNOR’S RECOMMENDATIONS FOR

GENERAL GOVERNMENT
Appropriations Committee
March 15, 2024

Good afternoon Sen. Osten, Rep. Walker, Ranking Members Berthel and Nuccio and Honorable Members of the Appropriations Committee:

My name is Michele Jacklin, and I am legislative co-chair of the Connecticut Council on Freedom of Information (CCFOI). We are a 69-year-old organization comprised of CT news media outlets and First Amendment supporters. Our mission is to advocate and promote government transparency, public access, strong Freedom of Information laws and other measures that guarantee the rights of individuals and journalists under the First Amendment to the United State Constitution and the state Constitution.

CCFOI is confining its remarks to one section of HB 5047. We oppose Section 24, which deals with health information. This provision seeks to reverse a state Supreme Court ruling in which a majority of justices concluded that police reports and other incidents in public hospitals cannot be kept secret, citing the importance of government transparency and the public’s right to know what happened. The ruling involved an attempt by state officials to block the release of a police report about a patient who reportedly choked to death on food in 2016 while being restrained by staff members at the Whiting Forensic Hospital in Middletown, Connecticut’s only maximum-security psychiatric hospital for the criminally insane. The hospital is operated by the state Department of Mental Health and Addiction Services (DMHAS).

DMHAS officials had argued that the report was confidential under the psychiatrist-patient communication privilege as well as under the federal medical privacy law – the Health Insurance Portability and Accountability Act, commonly known as HIPAA. But the court rejected those arguments, writing, “we must… acknowledge the unfortunate and undeniable reality that governmental secrecy can be used to
conceal governmental abuse, corruption, and neglect.” In ordering the release of the report, the justices said some patient information could be redacted.

The original request for information about the patient’s death was made by a Hartford Courant reporter under the state’s Freedom of Information Act (FOIA). Given that the only statement made by DMHAS was that the person had died “due to a medical event,” The Courant appealed the agency’s refusal to give out the report to the Freedom of Information Commission (FOIC). The commission concluded that the report was subject to public disclosure and ordered its release. That decision was appealed to Superior Court and then appealed again to the Supreme Court.

First, as the court determined, the psychiatrist-patient privilege did not come into play because, by the time the police report was written, the DMHAS police were not involved in the patient’s diagnosis and treatment and, instead, were investigating the patient’s untimely death.

Second, the justices said that HIPAA must yield to state laws that govern the disclosure of public records and that courts across the country have ruled, without exception, that public records required to be disclosed under state FOI laws are not protected by HIPAA.

If the court had ruled otherwise, the public would not have known that the staff at Whiting improperly restrained the patient because they thought he was becoming aggressive and failed to respond to his obstructed airway for nearly 2 1⁄2 minutes. In other words, wrongdoing by the staff would have been kept secret.

CCFOI believes Section 24 of HB 5047 represents an end-run around the Supreme Court ruling, which was correct and appropriate in deciding that the public’s right to know should trump a governmental agency’s attempt to conceal misconduct by its staff.

CCFOI agrees with the court’s findings. Section 24 of HB 5047 should be deleted.

Thank you for your consideration.

Michele Jacklin
CCFOI Legislative Co-Chair