Porn, Privacy and the HIPAA

How can an industry that bears all to its consumers ever consider privacy to be a hot topic? The story of the possible infection spread rapidly throughout the community and even into mainstream press. I was personally contacted by Los Angeles’s Tribune affiliate KTLA for a quote after the reporters there picked up the story from the Los Angeles Times.

As I write this article, what did not make it into the press were the actual identities of the performers infected or exposed in this most recent outbreak.

Dr. Sharon Mitchell, director of the AIM Healthcare Foundation, declined to make the identities of those performers known, citing confidentiality issues.

What Mitchell was referring to was a rather unknown law within the industry, the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Within HIPAA are confidentiality provisions of the Patient Safety Rule that prevent, in certain circumstances, the public disclosure of private healthcare information of a patient by a medical provider, health plan and health care clearing houses.

However, HIPAA does not apply to employers. The Privacy Rule does not prevent your employer from asking you information about your health if your employer needs the information to administer sick leave, workers’ compensation, wellness programs or health insurance.

However, if your employer asks your health care provider directly for information about you, your provider cannot disclose the information in response without your authorization.

It should be noted that if your private medical information is disclosed by a medical provider, that medical provider or its employee may face civil as well as criminal liability.

Los Angeles woman was indicted under the federal HIPAA privacy law for accessing the private medical records of celebrity patients at UCLA Medical Center and selling information obtained from those files to a national media outlet. The celebrities whose records were breached reportedly included actress Farrah Fawcett, singer Britney Spears and California first lady Maria Shriver.

Many posters on adult message board, as well as performers I talked to immediately after AIM reported the outbreak, indicated that they were not pleased that more information was not released. Several performers indicated that they felt as though it was their right to know since they could also become infected.

Unfortunately, until an outbreak such as this becomes a matter of public health, the information must remain confidential. The Privacy Rule allows medical providers, such as AIM, to disclose protected health information, without authorization, to a public health agency that is legally authorized to receive such reports for the purpose of preventing or controlling disease, injury or disability.

In this case, the Los Angeles County Public Health Department would be such an agency. Generally, medical providers are required to limit the protected health information disclosed for public health purposes to the minimum amount necessary to accomplish the public health purpose.

Unfortunately, HIPAA prevents the public disclosure of those that are infected or who may have been exposed.

However, individual performers that might be afraid that they were exposed could still inquire into the identity of those exposed to determine if they in fact were. Private disclosure in the interest of public health may be allowable.

Under the Privacy Rule, a medical provider may disclose protected health information to a person who is at risk of contracting or spreading a disease or condition if other law authorizes the covered entity to notify such individuals as necessary to carry out public health interventions or investigations.

For example, a covered health care provider may disclose protected health information as needed to notify a person that (s)he has been exposed to a communicable disease if the covered entity is legally authorized to do so to prevent or control the spread of the disease.

Other posters on indicated that once a performer gained the knowledge of the identities of the infected and exposed individuals they should make it known to the rest of those in the industry.

Some even argued that this was allowable since HIPAA does not apply to individuals that do not have access to the medical records of those infected and or exposed. However, one must be aware that even though HIPAA may not prevent such a disclosure, there are common law torts that can result in a civil lawsuit if certain private facts are disclosed.

An infected performer that is outed by another individual can file a lawsuit under the common law theory of public disclosure of private facts. If a false report is made as to a performer’s HIV positive status, that performer may have a claim for false light.

This is where the plaintiff is placed into a false light in the eyes of the public that may damage his/her career and cause emotional distress. Obviously, if someone misreports that a performer is HIV positive or even exposed to HIV that can cause great distress as well as the loss of a career. Damages for both public disclosure and false light could be extensive.

Overall, in an adult industry that leaves itself open to all that consume its product, there is still a need for privacy within the industry. However, it is apparent that the manner in which this last situation was handled was not to the satisfaction of other performers, directors, agents and producers in the San Fernando Valley.

They felt as though they deserved to know which performers were actively infected and which were on the quarantine list so as to protect themselves. Immediately after the outbreak I talked with numerous performers. Some of which indicated that they would be either leaving the industry, no longer doing boy/girl scenes, or rethinking what sexual acts they will do from this point forward. Lack of information can breed resentment and doubt.

There is little doubt in this writer’s mind that sometime in the future, this issue will once again reappear.

How the industry handles it and what comes to light in the middle of a media storm will affect the industry’s ability to remain autonomous. There has been a push once again to regulate the industry through legislation and public policy. Failure to heed these warnings can result in the regulation of the industry by groups on a national level that do not have the industry’s best interest in mind.