Life, liberty, and the pursuit of health information

Due to a recent motion in the 22nd Judicial Circuit Court on behalf of the McHenry County Department of Health seeking the lifting of a temporary restraining order, the story filed here is fluid and may change rapidly. You may check the Sun Day website on COVID-19 for updates.

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A slow erosion of our liberties is a price we’re paying for coming out the other end on the coronavirus pandemic. Some of our civil liberties may be eroded; it’s just too early to tell for how long. However, the list of what we are not allowed to do seems to be getting longer based on the governor of each state reacting to the numbers of coronavirus cases. Right or wrong, our fundamental belief in medical privacy called HIPAA is the latest target for eroded rights.

Known as the Health Insurance Portability and Accountability Act, HIPAA protection under certain circumstances may be lifted from people testing positive for COVID-19 in McHenry County. When requested, McHenry County Sheriff’s Police and municipal law enforcement may now receive names of people testing positive for COVID-19. Before COVID-19’s fallout from a growing death toll, HIPAA rules protected one’s name.

The pandemic has forced social change with six feet of separation (social distancing) and the wearing of a mask. As the numbers of people suffering hit a peak, the McHenry County Department of Health felt it had reason for refusing a Sheriff’s Police request to provide names of COVID-19 positives. McHenry County Circuit Judge Michael Chmiel ruled on a Sheriff’s Police request for a temporary restraining order against the Health Department on its HIPAA stand and reluctantly the health department agreed not to stand in the way of the judge’s decision. As a point of clarification, Sheriff’s Police would not actually hold or maintain a list of names. The Premise Alert System and the Computer Automated Dispatch/RMS System with the McHenry County Emergency Telephone System Board (ETSB) would be the recipient of names. The ETSB oversees the dispatch of 9-1-1 calls and would provide the information to police officers only on a call-by-call basis.

“Law enforcement would only receive a warning notification if they were on a call with a resident who tested positive,” according to the Community Message.

Sun Day news will refer to “Community Message” as an official letter from McHenry County Law Enforcement and authorized by Sheriff Bill Prim, McHenry Chief John Birk, Algonquin Chief John Bucci, Lake-in-the-Hills Chief Dave Brey and Woodstock Chief John Lieb, dated April 14, 2020. For their part, police officers shall be tasked with keeping confidential this normally HIPAA protected medical information. As a step further, in-house training will be provided all officers on the sensitivity and confidentiality requirements of the information.

The McHenry County Department of Health’s main contention for resistance rested with what health officials have considered a false sense of security. The health department reasoned if a police officer has the name of a person testing positive for COVID-19, would the officer only then take necessary steps or precautions to protect him or herself? What about officers’ self-protection as they respond to people where no one is positive for coronavirus? We know that in some cases, a person testing positive is already in quarantine, while in other cases, it’s not as obvious yet. The symptoms haven’t manifested. That’s the reason the McHenry County Department of Health consulted with the Centers for Disease Control and the Illinois Department of Public Health. The effort produced guidelines for all county law enforcement agencies, fire departments, and emergency medical providers on how best to protect first responders. In the Community Message, Sheriff’s Police wanted clarity in the information provided them. Police insisted at no time did they request specific name information so officers could avoid contact.

“Receiving this information before arriving on a scene or during early interaction will allow officers to take additional precautions to reduce risk of exposure and make informed determinations as to whether to use additional limited PPE.”

The Community Message further expressed how the additional information (address and name of COVID-19 positive) will allow every police department and the Sheriff’s Correctional Facility to properly monitor and treat an exposed officer or correctional officer so they do not spread the exposure through the ranks, facilities, take it home to their families or worse, spread it through the community.”

Through its efforts to work with law enforcement in a collaborative way, health officials with McHenry County recognized that HIPAA and the Illinois privacy law allow for release of only “a minimum necessary” of protected health information during this time. How much information for release became a legal point of contention for the McHenry County State’s Attorney’s Office representing police in this matter. The McHenry County Chiefs of Police Association also supported the request for names of COVID-19 residents. The Health Department had believed the release of information should fall short of individual names, though it could allow for the release of addresses of confirmed COVID-19 cases as “the minimum necessary.”

As the McHenry County Department of Health explained in a news release, “the general lack of testing, epidemiological data and the stay-at-home order, providing the personal names of cases exceeds the minimum information needed to protect law enforcement.”

The McHenry County Sheriff’s Office believed on March 31 the Health Department would provide names as expressed in a community message authorized by Sheriff Bill Prim. But a few days later, the Health Department reportedly rescinded their cooperation, according to the Community Message. Sheriff’s Police with the backing of four local police departments disagreed with the McHenry County Department of Health and filed a suit.

In filing the lawsuit on behalf of law enforcement, McHenry County State’s Attorney Patrick Kenneally said, “This was a no-brainer for the Health Department, a common-sense, confidential, and entirely lawful way they could have worked collaboratively with police departments to assist in enhancing the safety of officers and the community in these dangerous times, and they strangely refused.”

In the Community Message of April 14, Sheriff’s Police said the U.S. Department of Health and Human Services (Office of Civil Rights) published on March 25 that the names and addresses can be supplied to law enforcement. Also on the same date, the Illinois Attorney General similarly found that the names and addresses of COVID-19 affected individuals were not HIPAA protected.

As a counter move, the McHenry County Department of Health and its Board of Health issued a request for Judge Chmiel to dissolve the temporary restraining order. County health officials restated a commitment to the protection of the private healthcare records of McHenry County residents.

“The medical community is learning new information about the COVID-19 virus daily. One of the most concerning facts about the virus is that people infected with COVID-19 may be asymptomatic. They will not display any symptoms. These asymptomatic individuals can unknowingly spread the disease to others,” according to the McHenry County Department of Health news release dated April 15. Sun Day awaits a court response on which way Chmiel will rule on the temporary restraining order.

While many of us are sheltering in place under state directed orders, police and fire are still required to do their jobs and come in contact with people as they have in the past.

“Police activities often fall within the ‘close contact’ range rather than six feet or more,” according to CDC guidelines. As of April 13, more than 90 law enforcement agencies in Illinois have been hit by COVID-19, resulting in 229 positive cases, 379 quarantine officers and two deaths. Police are described as our warriors, rushing into the unknown, putting their lives on the line every day. With COVID-19 as a new threat to them, police officers had sought additional protection for themselves, their families, and the general public. This sets the stage for a jumping off point to seek comments and move a step beyond the news releases and court rhetoric as Sun Day news is reporting on a very significant decision and the aftermath.

The Health Department in a news release indicated they must disclose the names of those currently infected with COVID-19 to the ETSB within 24-hours of being notified. The court ordered that any names received shall be purged from ETSB records “seven days after the Department of Public Health deems these individuals to no longer be contagious.” Sheriff’s Police believe these are assurances that the information won’t be available for longer than necessary and won’t leak out to the general public.

Could adding more information to what police are already receiving potentially add to response time? This seems a logical conclusion based on more information, more time to sort through. McHenry County Sheriff’s Office answered, “response time will not be increased.”

Huntley Police Deputy Chief Michael Klunk explained that as a whole, collecting background information during a response is not new.

“Dispatchers regularly run a check on an address and provide responding units with any known information, so that the responding units can prepare accordingly.” Huntley Police further stated, “provided COVID-19 information does not in itself adjust the response time to a call for assistance.

The Health Department demonstrated concern over law enforcement lowering their guard if they don’t treat every response as though people are positive for COVID-19. Klunk feels the additional information of someone’s name will provide “a little more added protection for the responders.” Besides wearing Personal Protective Equipment (PPE) for all public contact, Huntley Police are going an extra step.

“With a known case, we are now completing exposure documentation to protect our employees and monitor their health. This information is for the safety and well-being of the community as a whole. It also needs to be understood that this information is not being collected, it is being ‘tagged’ to a residence, and is provided to the responding units if they respond to the ‘tagged’ residence,” Klunk said.

Only at the time of dispatch will this information be given by the McHenry County Emergency Telephone System Board (9-1-1 Dispatch) to police.

The McHenry County Sheriff’s Office has a limited supply of N95 masks for use.

“We most recently were provided by the state a supply of 4,000 masks that are not FDA approved and are to be treated as surgical masks for our employees use,” according to a statement provided for Sun Day news. In the April 14 Community Message, Sheriff’s Police say McHenry County law enforcement is still faced with a shortage of PPE and is forced to extend the use of masks up to 30 days unless there is a known exposure. “PPE is not securely fixed in place on an officer when being used and is easily detached during physical encounters, pursuits and other unforeseen circumstances that police officers often encounter,” according to the Community Message. N95 masks offer more protection than the surgical masks because the N95 masks fit tighter and reduce the likelihood of airborne particles reaching their wearer. Putting this in perspective, as of late last month, thousands of police officers had been working without protective gear around the country, while many have only one or two surgical masks. If an officer comes in contact with someone with COVID-19, will the officer be under quarantine until determined safe or get right back on the street? Every action sparks another question because the whole approach seems unprecedented.

To the Reader:

As a journalist, our job is to present as accurate a picture as is humanly possible. If we are doing our job well, we do not take anything at face value. We are meant to question even the most mundane. This story lends itself to more scrutiny because it touches on our freedom as a people. Any diminishment of our liberties deserves a very long look and serious debate, even if our liberties are only temporarily lifted. For its part, law enforcement in the Community Message stated clearly “as a profession, we believe in everyone’s right to privacy and hold this right in the highest regard.” Sheriff Prim and the four police chiefs further stated, “McHenry County Law Enforcement is committed to maintaining the frontline in support of our citizens and businesses and we will continue to work side by side with all public safety organizations so that we can stop the spread of COVID-19.”

In its concluding statement, the McHenry County Department of Health said, “We have the utmost respect for our first responders and front line healthcare workers and its staff has worked tirelessly to provide the best resources available in this fight against COVID-19. As the public health experts for the county, we will continue to strive to protect McHenry County residents’ private health information, while balancing the safety needs of all of our professional first responders.”

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