COVID-19 and the next step in the process of privacy rights

Deputies with McHenry County Sheriff’s Police, municipal law enforcement officers, and other first responders will not continue receiving names of people infected or testing positive for COVID-19.

The Appellate Court of Illinois Second District has ruled the McHenry County Department of Health can stop sending HIPAA protected information to EMS (Emergency Telephone System Board) dispatchers immediately. This is part of the legal outcome of what started out a few months ago with a request of the McHenry County Department of Health (MCDH) by Sheriff Bill Prim for what he considered the safety and health of his deputies. The Sheriff wanted his deputies notified when they’d encounter an infected person. This he believed would allow his officers time to take precautions and minimize their risk of contracting COVID-19.

McHenry County Department of Health Administrator Melissa Adamson, however opposed what she believed was an infringement of HIPAA Privacy Rights. The Health Department would provide addresses but opposed providing names to law enforcement through EMS. Adamson argued the information sought by Sheriff’s Police is protected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). She put forward several points in court in opposition including the thought that officers might get a false sense of security in their response to someone they were interacting with that they thought was not infected but was in fact infected, just not yet tested or may be asymptomatic. Sheriff’s Police wanted both names and addresses. The case of the McHenry County Sheriff’s Police (Plaintiff) versus McHenry County Department of Health (Defendant) went before Circuit Judge Michael Chmiel in the 22nd Judicial Circuit in April. Sheriff’s Police sought a temporary restraining order to force the Health Department to provide HIPAA related information.

Chmiel moved in an expedited way to reduce into a few months what might have taken six months to a year of legal decision making. Early in the process, four municipal police chiefs (Algonquin, Lake-in-the-Hills, Woodstock, and McHenry) joined Sheriff’s Police with similar requests. After the police departments and Health Department could not reach an out-of-court resolution, the court approved the temporary restraining order. A few days later, the Health Department filed their motion for Chmiel to reconsider his decision. In June, Chmiel denied the reconsideration and dissolution of the temporary restraining order. The judge also called for “a fresh set of eyes that can afford the parties an opportunity to factor all issues, updates, and considerations, with hope for a thorough and more enduring result,” Chmiel wrote. He sought mediation for police and the Health Department.

Almost immediately upon the circuit court’s decision, the Health Department through the law firm, Daniels, Log & Pinsel, LLC in Waukegan, filed an appeal with the Illinois Appellate Court. A little over a week later, Presiding Justice Joseph Birkett delivered the judgment with Justice Kathryn Zenoff and Justice Liam Brennan concurring. In summary, Birkett ruled, “The trial court abused its discretion in denying the Health Department’s motion to dissolve the temporary restraining order because, not only was there no fair question as to the existence of the Sheriff’s right to the information sought to be compelled in the temporary restraining order, it was beyond question that Sheriff’s Police had no right to the information.”

In looking for arguments on both sides during Chmiel’s efforts in his McHenry County courtroom at taking the case under advisement, Sun Day sought out the ACLU of Illinois and a leading authority on HIPAA compliance. ACLU of Illinois Legal Director Nusrat Choudhury indicated that the sharing of data about who has tested positive for COVID-19 raises concerns about privacy and effectiveness.

“Sharing names and addresses would seem to do little to protect first responders. The virus can be spread from people who are asymptomatic or are symptomatic and simply have not been tested,” Choudhury said. C. Steven Tucker felt the case was “cut and dry.” Tucker is founder and principal broker at heathinsurancementors.com and Small Business Insurance Services Incorporated and his knowledge of HIPAA and medical insurance reform is sought by The Wall Street Journal and various television and radio stations.

“Law enforcement and other first responders do indeed have the ability to access personal health information when it pertains to COVID-19 infections,” Tucker said.

Chmiel cited the opinion of the Office of the Attorney General of the State of Illinois favoring a release of COVID-19 information as he worked to make a ruling. He also considered what he called strong arguments from both sides.

“While judgment on the scientific challenges of COVID-19 is well-placed with the MCDH, judgment on the tools needed by first responders to perform their duties is well-placed with the plaintiffs (Sheriff and police chiefs),” Chmiel said.

From the Appellate Court’s 20-page document, Birkett concluded the trial court’s judgment on the motion to dissolve.

“It’s apparent that police (plaintiff) had no right to the information sought, but that the Health Department (defendant) had the authority and discretion to allow the release of the information sought. Sheriff’s Police (plaintiff) could not establish even an arguable right to the information, the temporary restraining order was patently improvidently granted (court should not have accepted the case). As a result, the trial court clearly abused its discretion in denying the Health Department’s motion to dissolve the temporary restraining order,” Birkett wrote. The Appellate Court decision called for reversing the judgment of the circuit court of McHenry County and dissolved the temporary restraining order.

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