HIPAA VS. ADA A Guest Post By Amie Gibbons
Come on. I’m a health law attorney and we have a giant shit show of violations of rights and dehumanizing of individuals under the guise of “medical science,” you knew I had to get to this eventually.
First up, lawyer hat’s on, so usual disclaimer. This is not legal advice. It is not to be taken as such. This is all very generalized and simplified legal ideas so y’all have a basic understanding of the difference here. Yes, I am a lawyer. NO, I am not your lawyer. And, since I want to keep my job, I have to make it very clear that none of this reflects the opinions or legal positions of my employer.
The main reason I’m writing this is because I am very much anti bullshit and anti using fear as a weapon en masse, as in the bullshit that’s been going on for a year and a half. Businesses were shut down, people were locked down, you couldn’t visit family in some places, and everyone had their faces covered (which is a very effective way to dehumanize people, but y’all probably already know that), and now there’s rules about who can do what if vaccinated or not, AND they’re back requiring fucking masks! (Don’t get me started, just read my last post on here about Creep Con).
Okay, that sentence got away from me there, what was I saying? Oh yeah, the point of all this is I want our side to argue properly against the massive mindfuck.
As in, everyone read this, and never, ever again argue against mask requirements, vaccine passports, or vaccines required to work somewhere by saying it’s a HIPAA violation.
I’m gonna say that again for the people in the back. All this bull around health requirements are not HIPAA violations. Oh, they’re violations, the obvious one would be ADA, I’ll touch on that later, but they are not HIPAA violations.
When you’re arguing for our side, you argue correctly or you don’t argue at all. (Oh, dear lord, I’m channeling my father right now.)
This is “The Health Insurance Portability and Accountability Act of 1996,” and it is not about individuals, or even businesses, asking you for private health info. Nope. Get that out of your head. It is a privacy law, and it is about health, but it’s about others who have access to your private health info spilling it.
HIPAA is the law that protects you from people like me (who can have access to your personal info by virtue of my job) from telling random others about it. If I know your name, social, that you’re in the hospital, you have herpes, and PTSD through my job, me spilling any of that, personally or on social media or to your friends and family, is a HIPAA violation.
If I have your consent to tell people about it, and I stay within whatever you allowed me to share, that’s no longer a HIPAA violation.
It’s your information, you have the right to control it. Along these lines, HIPAA is also about your right to access your own health info.
You give your name, social, and health info to your doctor when something’s wrong, because they need to know information to 1) charge your insurance; and 2) to figure out what’s wrong with you. Without that info, they can’t help you and they can’t get paid. So you hand over the info to help them help you. You do this, because you trust them not to spread it around. (There are some exceptions, but this is just a general info post.)
Then your doctor/hospital gets your consent to share your info with your insurance company and others who need to know, and tell you they won’t tell others who aren’t in the loop to know about your info. Those others in the loop are entities such as insurance, business partners who deal with other aspects of your care, possibly other doctors or institutions.
You also can give another person authorization to access to your health info, like me as an adult saying if anything happens to me, my emergency contact is my mom, here’s her info, and you are allowed to discuss HIPAA covered issues with her.
A big one people have gotten into trouble for doing in the past was hospital personnel taking pictures of celebrities when they’re in the hospital. Most of the ones who screwed up on this weren’t thinking when they took a selfie with their favorite actor/athlete/author (haha, we can dream about being famous enough for people to want to violate our privacy in that way) in the background in a hospital bed, and posting it on social media.
If there was absolutely nothing personal showing, it’s the celebrity in a hospital bed, but covered and you can’t see anything off about them or any kind of medical charts, so you have no clue from the picture why they’re in the hospital, you might think it’s not a violation of HIPAA.
Nope. It is. Because the mere fact that they are in the hospital is protected under HIPAA. If the celebrity says please take my picture and post it because I want my fans to know I’m okay, or whatever reason they’d ask you to post it, then you have permission to do that, BUT that wouldn’t mean you could say what they were in the hospital for.
You’re probably wondering about all those paparazzi photos of celebrities any time they’re doing anything, including going to the hospital. Well, the paparazzi aren’t restricted by HIPAA. They aren’t getting personal info through their job then sharing it; they’re busting in and violating privacy to get personal info for their job. Big difference.
Let’s say a nurse takes a pic with the celebrity in the background, but she doesn’t share it anywhere. (That’s getting into fine print of what exactly crosses the line for HIPAA. It may be a HIPAA violation or risk of one, and it’s just rude, so she shouldn’t have done it.) That one is a it depends what happens with that pic risk. If a photographer sneaks in and takes a picture and splashes it all over the news, that’s not a HIPAA violation, because he’s under no duty to protect that info. If the nurse takes a picture and sells it to the paparazzi, that’s a HIPAA violation. But, just to be clear, it’s not the paparazzi who printed it who’s in trouble under HIPAA, it’s the nurse who shared it, because she was the one with the duty to keep that info confidential.
In the health care field, we have access to info so that we can help people (that’s the heart of it, yes, it’s me looking at it in rosy light) so we have a duty to those people to keep their information safe. There’s a lot more that goes into HIPAA, like the measures hospitals and businesses have to take to keep health info private, especially electronically. It’s a huge tech area, people make big bucks to make sure those records can’t be hacked, and it’s a huge deal when they are hacked.
When there’s a HIPAA violation by accident or something like someone hacking in, then there’s steps the entity has to take to mitigate the damage, and there’s some hefty fines, especially if it’s done on purpose, like the nurse taking a selfie with the celebrity in the background and posting it on her Facebook page, but that’s not really the point for this article.
With vaccines or what illnesses you’ve had, whether you’re in the hospital, your social, and so on, generally your doctors/hospitals/insurance companies can’t tell others without your consent.
That’s the general HIPAA rule. It is a duty of us in the medical field to keep the info you give us in confidence to help you with your medical situation confidential, and to make sure you can access it since it’s your info.
That doesn’t mean these entities won’t ask you for your consent to share. They do all the time for a multitude of reasons. (My parents signed a HIPAA consent for my brother to be in a rehab facility’s brochure when he was 14 because he recovered so beautifully from two broken legs… skiing accident, whole other story, so he was a wonderful success story for them to highlight.) And it doesn’t mean others who have no reason to know it, like a store, asking you to prove you’ve been vaccinated against the C19 Zombie Virus or don’t have it/never had it/have been living in a bubble for two years, is a HIPAA violation.
It’s kind of like saying an individual deleting your comment off their Facebook page is a violation of your first amendment right to free speech. Nope, Constitution applies to what government may and may not do (whole other post on the violations going on these days may have to happen) and has nothing to do with an individual restricting your speech. That’s what saying a business asking you for personal health info is a HIPAA violation is like.
Great example in here of that principle. Me saying my brother broke his legs and was in the hospital for weeks, then rehab for months, isn’t a HIPAA violation, because I have that info from being his sister, not from having access to that info because I worked at one of the places that treated him, or the insurance company processing the claims.
So, are we clear on this now? No one on our side shall argue vaccine passports or mask requirements are a violation of HIPAA again. Let the other side argue using completely wrong facts, they’re much better at it than we are anyway.
Here is one law that should apply to all this vaccine passport, you have to wear a mask, and sign away your soul and individuality for the “greater good,” join the Borg because resistance is futile bullshit.
I say should, because as far as I can tell, when it comes to Covid restrictions, the ADA doesn’t exist. Everyone is ignoring it. I’m hoping that becomes a bunch of massive class action lawsuits in the near future.
This is the Americans with Disabilities Act. Basically, its job is to protect you against discrimination due to your disabilities. And this one does apply to businesses as well as government. It (very generally) says no discrimination against those with disabilities for employment, public accommodations in commercial facilities, and telecommunications.
The big issue we see these days is the part about public accommodations in commercial facilities. Public services and education (schools, courts, public transportation), restaurants, hotels, stores, and convention centers, to name a few, have to comply with the ADA.
As in, this one does apply to private businesses.
So all those people saying a private business can make it’s own decision about who to let in, wrong! No, they can’t. They aren’t allowed to discriminate. People arguing it’s a private business therefore it’s their choice, obviously don’t know about the cases stating businesses can’t refuse to serve you due to the color of your skin, and know shit all about the ADA.
Businesses aren’t allowed to discriminate against you based on certain things, such as race, and thanks to the ADA, they can’t discriminate based on a disability. They have to make reasonable accommodations for you to receive services if you can’t receive them the same way as others due to your disability.
A big, obvious example of this is all the handicap accessible retrofits you see in stores, restaurants, and hotels. They have to have ramps alongside stairs for people in wheelchairs to get in since they can’t walk up stairs, have to have handicap bathrooms so that people in wheelchairs can wheel in, and use the bars in there to lift themselves from wheelchair to toilet. If they can’t make something exactly the same for you as for a person without that disability, then they have to make reasonable accommodations. What those are can still be a grey area in more established areas. In Covid restrictions matters now? Half the businesses I know aren’t even trying, and their employees have no clue what medical exemptions and/or reasonable accommodations are when asked.
It’s pretty clear under a straightforward reading of the law that discriminating against people who can’t wear masks safely due to medical conditions, like asthma, is not allowed. Like the businesses that don’t let you in unless you’re wearing a mask are discriminating, and at the least have to offer reasonable accommodations to you to stay within the law. Most of them don’t even try. You have to push them, get managers, and threaten lawsuits most of the time for them to try to accommodate you, and they act like you’re being a ridiculous, entitled Karen. Take that situation and apply it to someone who can’t get in because they’re in a wheelchair and can’t get up the stairs, and the employees who have to lift up her chair to get her through the door saying she’s an entitled Karen demanding special treatment.
Yes, it is like that.
BUT the Covid restrictions aren’t about actual medical issues and health, disabilities, not discriminating, treating people fairly, or any of that. If they were, then businesses would establish policies on how to stay within the ADA with the Covid restrictions. Governments wouldn’t be able to demand you wear a mask to be in a government facility, like schools, city buildings, or courts. They would have to do the equivalent of providing a handicap ramp or at least carrying you and your chair up the stairs.
They don’t. Businesses don’t even worry about it, because the “rules” say anyone who can’t wear a mask is just being difficult, or making a political statement, or that if they really can’t wear one then they shouldn’t be in a place that requires it, and that’s that person’s problem.
They don’t worry about it, because the “good people,” wear masks, because the “good people” follow the rules. All of us not wearing masks. We’re the “bad people,” the “others,” we’re the people who don’t follow the rules.
And because of that, because we might inspire others to stop blindly following rules, because not wearing a mask might be about bucking the rules, we’re dangerous. And it’s okay to discriminate against the people who refuse to follow the rules, because then it’s not discrimination, you’re just making people follow the rules.
You see how they have that in a nice little bow.
When a business doesn’t comply with the ADA, you can file an ADA complaint. People have for being discriminated against under the Covid restrictions, but so far, as far as I have heard, nothing’s come from those. I’ll be filing one for the discrimination I dealt with at Creepy Con. I’m almost positive it’ll come to nothing, but hey, I don’t know much about the process since I’ve never filed an ADA complaint, never needed to, so at least I’ll be able to share what going through that process looks like.
Under the HHS fact sheet on the ADA, here’s who’s protected:
“Who Is Protected Under the ADA?
The ADA protects qualified individuals with disabilities. An individual with a disability is a person who has a physical or mental impairment that substantially limits major life activities; has a record of such an impairment; or is regarded as having such an impairment. Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. Under the ADA, a qualified individual with a disability is an individual with a disability who meets the essential eligibility requirements for receipt of services or participation in programs or activities. Whether a particular condition constitutes a disability within the meaning of the ADA requires a case-by-case determination.
Physical or mental impairments include, but are not limited to: visual, speech, and hearing impairments; mental retardation, emotional illness, and specific learning disabilities; cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; orthopedic conditions; cancer; heart disease; diabetes; and contagious and noncontagious diseases such as tuberculosis and HIV disease (whether symptomatic or asymptomatic).”
Does asthma make me a qualified individual? I don’t know. I guess I’ll find out.
But PTSD sure as shit puts you in that category. You know what a common trigger for rape victims is? Having their mouth covered, because, surprise surprise, most rapists want to keep their victims quiet and cover their mouths. So far, everyone I know who has talked about it (and it’s a shocking and saddening amount) who was raped, has a trauma response to having their mouths covered.
I hope that helps clarify a bit why you shouldn’t bring HIPAA to a discrimination fight. I hope it was helpful information. I hope a lot of things. When it comes to the rest of the country, I don’t have much hope. (Post on Biden’s latest edict will probably be coming soon.) When it comes to our side, I have some.
And until the world as we know it ends, we’ll act as though it intends to spin on. For authors, that means writing and selling books.
So, if you want books that aren’t full of leftist woke bullshit spreading the “virtues” of fear and victim points, then check out my books. I have book bundles and my 911 Remembrance Day sale going on for signed paperbacks. The best part of that, besides the whole they’re signed thing, is big tech like Amazon doesn’t get an extra piece of these.
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Bullet bookmarks are $4 each, 3 for $10, OR, you get one free for buying a book bundle.
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AND Brena Bock is doing a paperback sale (after being voluntold 😊 )
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