HIPAA and the President

This has already come up a couple of times, but it seems to be a bone of contention that everyone wants to gnaw on for a while this week. The issue at hand is once again the question of why President Trump’s doctor isn’t as forthcoming during the briefings at Walter Reed as he might be (to put it charitably). Jumping into this debate is our friend Jim Geraghty from National Review, writing about this question in today’s edition of the Morning Jolt. In this column, Jim offers up some key portions of the Health Insurance Portability and Accountability Act along with the American Medical Association’s code of ethics, offering them as reasons why Dr. Sean Conley can’t provide “too many details” about the President’s recent medical situation.

In 1996, Congress passed the Health Insurance Portability and Accountability Act, or HIPAA, which took steps to ensure patient privacy and set rules for the handling of “protected health information.” Personal health information is exactly what it sounds like — medical history, test and laboratory results, clinical notes, insurance information and other data that a health-care professional collects in the process of providing care. HIPAA applies to the president’s doctors, and under the law, the president is entitled to the same right to privacy as every other American citizen. We can argue about whether that should be the case, but that is indeed the law right now; there is no presidential exception to HIPAA.

In addition to HIPAA limitations, the American Medical Association’s code of ethics declares, “Physicians have an ethical obligation to preserve the confidentiality of information gathered in association with the care of the patient . . . In general, patients are entitled to decide whether and to whom their personal health information is disclosed.”

I want to focus on two points that Jim brings up here in terms of how they relate to the current situation. Point number one is his claim that “there is no presidential exception to HIPAA.” You won’t get any argument from me on that one. There clearly is no carveout in the HIPAA laws saying that Presidents surrender their right to privacy in terms of their medical records. Now, with that one out of the way, I’ll move on to the more important point.

Jim also reminds us that both HIPAA and the AMA code of ethics ensure that “patients are entitled to decide whether and to whom their personal health information is disclosed.” And that’s exactly the point we should be focusing on. I’m going to commit the cardinal sin among writers of quoting myself and point to something I wrote only this morning.

And let’s not pretend that this has anything to do with HIPAA privacy guidelines. Presidents (and presidential candidates) pretty much give up their privacy about their medical records the moment they step into the spotlight. And neither the President nor his doctors have invoked any sort of privacy issues when discussing this situation.”

Yes, the President could stake the claim that his medical records are private and nobody would have a legal leg to stand on if they wanted to gainsay him. But as with virtually all presidents and presidential candidates, Donald Trump voluntarily released his medical records via his personal doctor when running against Hillary Clinton in 2016. (The less said about that the better.) Since that time he has released the results of his annual checkups. Nobody could force him to do it legally, but the American people have come to expect that information and he’s delivered it just as his predecessors have. Most of us give permission for someone else to access our records, but it’s generally a spouse, child, parent, or other relatives. The President does the same thing, but he gives that level of permission to the entire world.

This current medical situation is no different. Trump could have put out a statement saying that he was keeping his records private. And let’s admit it… he wouldn’t be afraid to do that if he wished. Have you seen his tax records yet? But the point is that he didn’t.

Alternately, he could have had Dr. Conley come out on Saturday morning and say that he hadn’t received permission from his patient to release him from his obligations under HIPPA so he would be unable to answer any questions on specifics of Trump’s medical situation. He didn’t do that either. He stepped up to the microphone and began revealing all manner of things which could have been off-limits if the President had chosen to invoke his privacy rights. It’s possible that when reporters repeatedly asked him when the President’s last negative COVID test had been conducted or whether or not he’d received supplemental oxygen, Conley could conceivably have said that he hadn’t received permission to reveal those specific facts. But he didn’t do that either.

Of course, treating this as a political question, he really couldn’t have done that, now could he? Clearly, he had Trump’s permission to discuss things like his blood-oxygen levels, his temperature and his COVID test results on Thursday evening because he’d already emptied the bag on those specific details. But if he turned around and invoked HIPPA privacy guidelines or his code of ethics only on the questions of previous negative tests and supplemental oxygen, the only headlines to be seen around the world would have accused Trump of covering up some serious part of his diagnosis while hiding behind privacy laws.

So with all due respect to Jim, neither HIPAA nor the AMA code of ethics is the solution to this mystery. We’re still left with a doctor who is trying to suddenly adopt the tactics of a politician and play it cute by demurring on some questions while answering others. And that’s arguably creating a worse set of optics than telling the public nothing at all about Trump’s health.