Concerns raised over sharing patient data
Gov. Bill Lee’s request for Tennessee to share some private health data with police is drawing ire from both sides of aisle, making the controversy a rare issue generating bipartisan opposition to the Republican governor’s policy.
At the direction of Lee, according to memos sent to police chiefs and sheriffs last month, the Tennessee Department of Health is providing law enforcement a daily list of names and addresses of individuals who have tested positive for the coronavirus. Those individuals are not informed that their information is being shared with police.
As of Friday, at least 68 law enforcement agencies across the state have entered memoranda of understanding with the Tennessee Department of Health to receive the list, according to department spokeswoman Shelley Walker.
Other agencies that work with first responders, such as emergency communications centers, are also receiving the information and had requested that the governor’s office instruct state health officials to provide it to them, Lee spokesman Gillum Ferguson said.
A number of Republicans and Democrats alike agreed Monday the practice raises serious concerns about liberty and privacy and should be reconsidered, if not immediately suspended.
Tennesseans from blue and red counties — and motivated by different concerns — have reached out to lawmakers over what they see as unnecessary sharing of private data that may serve as a deterrent to receive coronavirus testing.
Despite support of Lee, Republicans raise questions
Republicans hesitant to criticize the governor’s policy and who said they were blindsided about not knowing about it prior to media reports have expressed initial skepticism about how necessary the information-sharing practice is.
The agreement between state health officials and law enforcement was first reported Friday by Tennessee Lookout, a new nonprofit news organization.
“I trust our governor and I trust decisions being made, but this raises concerns for me,” said Rep. Jason Zachary, R-knoxville, who learned about the policy Friday by talking with legislative colleagues about the news stories.
“It’s my understanding that there are some gray areas around the releasing of HIPAA information, but I think that is a very slippery slope when you begin to release people’s private health information to anyone, for any reason, without their consent,” he said.
The governor’s office sent a memo to legislators April 3 informing them of a COVID-19 information-sharing agreement between state health officials and 911 districts, though it did not mention similar agreements for police chiefs and sheriffs, which came later, according to state Department of Health documents.
Zachary and House Republican Caucus Chairman Jeremy Faison, R-cosby, said Monday they would be reaching out to the governor’s office for more information about why the policy was implemented.
“People are just frustrated,” Faison said of feedback he received from constituents who approached him over the weekend about the practice of sharing test results with other first-responder agencies. “They’re saying, ‘We didn’t know the government could just share all our information like that with local law enforcement and EMS.’”
In a letter to fellow legislators Monday, Rep. Scott Cepicky, R-culleoka, urged the House and Senate speakers to advise Lee to immediately halt both the sharing of COVID-19 patient information with law enforcement, as well as the state’s contact tracing program.
His letter was prompted by his concern over “the infringement of personal privacy and liberty that is happening right now in Tennessee,” the memo stated.
“I am concerned that these lists and reports will have an adverse effect on testing,” Cepicky wrote. “As a result, Tennesseans will stop getting tested to protect their privacy.”
Cepicky’s letter, however, which also cast doubt on the seriousness of COVID-19 by describing the virus as “no more threatening than our common flu season every year,” illustrates the differences in the ideologies behind Republicans and Democrats even when they find themselves in agreement on a particular policy position.
Democrats have said the governor has not acted swiftly enough in his overall coronavirus response, while many Republicans have urged Lee to relax restrictions even sooner than he did.
Rep. Dan Howell, R-georgetown, also said Monday he would be reaching out to the legislature’s legal services department about the legality of the practice of sharing testing lists with police, which gives him “a little bit of pause” due to privacy concerns.
He, like other Republicans members, want to learn more about the agreement.
Lee and state health officials have pointed to guidelines published by the federal Department of Health and Human Services, which permit some health entities to release protected health information to first responders “to prevent or lessen a serious and imminent threat to the health and safety of a person or the public.”
Some General Assembly members from both parties have questioned whether those guidelines absolve the state from running afoul on privacy issues based on the way they’re currently providing and using the information.
The Beacon Center of Tennessee, a conservative-leaning nonpartisan think tank, is among a range of ideological groups opposed to the practice. Others include the American Civil Liberties Union of Tennessee and the Tennessee Immigrant and Refugee Rights Coalition, which both issued statements against it on Friday.
“Giving out the personal health information of Tennesseans should be the absolute last resort, even in a crisis,” Stephanie Whitt, Beacon’s executive vice president, said Monday. “Doing so could have an adverse impact on our ability to test effectively and may diminish trust between the public and health departments.”
Democrats cite distrust in minority communities
Rep. G.A. Hardaway, D-memphis and chairman of the Tennessee Black Caucus, has called for the state government to immediately halt its current practice of sharing coronavirus patient information with police. He said he is in talks with the governor about how to modify the policy to improve privacy concerns.
“I don’t think it’s any secret that the communities of color, and that means the black and the brown and the other communities of color, have always and do have a healthy distrust of government, uniformed police officers and law enforcement in general,” Hardaway said.
Hardaway and Lee spoke over the weekend, he said, but he declined to address specifics of the call or how Lee said he would proceed given the pushback.
The governor’s office confirmed the call took place, but did not comment on the conversation.
Like House Democratic Caucus chairman Mike Stewart, D-nashville, Hardaway noted that first responders — along with the general public — should treat everyone they encounter as if they could have the virus.
Lee has said the policy is needed to help protect the lives of law enforcement.
The state should be helping law enforcement secure adequate personal protective equipment, Hardaway said.
“If they’re only looking for this information because they don’t have personal protective equipment, we ought to be ashamed of ourselves,” he said.
He questioned what message is being sent by trying to impress upon the public the importance of being vigilant everywhere for potential carriers of coronavirus, even the asymptomatic, while also insisting it’s important that law enforcement take additional precautions in certain cases.
Among the compromises Hardaway and the black caucus are trying to present to Lee is only sharing the address of a person who has tested positive for the virus with 911 operators, but not their name.
That means if a first responder is dispatched to a call at a house with a coronavirus-positive patient, the 911 operator can alert them someone in the home has had it, but not release specific identifying information.
Another option requires health officials receive a signed consent form from a person taking a test on whether they agree to share the results with law enforcement and first responders. Such a policy would make the information sharing option for the person being tested, Hardaway said.
Rep. John Ray Clemmons, D-nashville, said as the policy currently stands, he suspects many in minority communities will be less inclined to seek out testing for fear of sharing information with law enforcement.
Reach Natalie Allison at nallison@tennessean.com. Follow her on Twitter at @natalie_allison.