Wednesday, July 29, 2020

Major League Baseball Struggles to Deal with HIPAA Privacy Obligations as More Players and Coaches Come Down with Virus

Last week, major league baseball finally started its Covid-19 shortened baseball season.  Unlike the NBA and NHL, MLB did not choose to play the games in a "bubble" or "bubbles" to limit travel and exposure in hotels, restaurants, etc.  But extensive precautions were taken nonetheless, including daily testing w/immediate results.  It thus far has not worked as several MLB players, coaches, and other personnel have contracted the virus.  This includes the Miami Marlins which had at least 15 players and other personnel returned positive tests, resulting in the, at least, week suspension of the Marlin's season.

My Cincinnati Reds have not been spared.  One game into the season, backup infielder/DH Matt Davidson was placed on the injured list for testing positive.  Two games into the season, the Reds lost centerfielder Matt Senzel and second baseman Mike Moustakas.  The Reds though were being real cagy about saying why Moustakas was placed on the IL and Senzel disappeared from the lineup.  Moustakas and Senzel are integral to the Reds' success this season.  Unfortunately, members of the
Reds bullpen, which has proven to be horrific this season, have been spared the virus.  Sorry, bad joke.

When Senzel and  Moustakas went down, I looked for an explanation as to what happened to them.  It was several days later that the news leaked that both players had self-reported Covid-19 symptoms.  (It is unclear whether they actually tested positive for Covid-19.)  They are both appealing the league mandate that they sit out games. 

Why did that information about players sitting for Covid-19 concerns have to "leak out" instead of being reported publicly when it happened?  Because MLB, which provides health care services for its players, is considered a provider under HIPAA, which protects patient's privacy.  While players have waived HIPAA confidentiality restrictions as to baseball-related injuries, they have not waived those confidentiality provisions when it comes to an illness, which may, or may not, be related to playing baseball.  While Health and Human Services has indicated it is waiving HIPAA fines as to certain situations when Covid-19 information is released, those situations are very limited and do not include the dilemma MLB faces in reporting.

Obviously, not being able to reveal which players test positive for Covid-19, makes it hard to do contract tracing for others who were exposed to the virus.   Players should have been required to waive the confidentiality rule as to Covid-19 test results as condition to participate in the baseball season.  Nonetheless it remains that, for the general population, HIPAA remains a major obstacle to controlling the virus.  While reporting general numbers about the spread of Covid-19 is helpful, it is much more helpful to know the exact individuals who test positive so people who come into contact with them can be notified.  Many people infected with Covid-19 are not going to waive the confidentiality provisions of HIPAA.

OOP's short takes:

  • Speaking of Covid-19, guess who in Congress has now tested positive?  Louie Gohmert.  The Texas Republican has been adamant about not wearing a mask, claiming he did not need one because he was tested regularly for the virus.  He told CNN in June, that if he gets Covid-19, he will never be seen without a mask.   Gohmert is running neck-to-neck with Florida's Matt Gaetz for dumbest person in Congress. Both are attorneys.  Gohmert is even a former judge.  Does not speak well for my chosen profession.
  • Yesterday, Donald Trump admitted he has never brought up with Russian President Vladimir Putin intelligence he has received that Putin had paid Taliban fighters bounties for every American soldier killed in Afghanistan.  This included eight phone conversations with Putin, including a call last Thursday, long after the bounties was publicly reported.  During the Axios interview, Trump also defended Putin's arming of the Taliban to kill American soldiers using the "we do bad things too" defense.  Can we please stop pretending Donald Trump is some sort of "patriot" and is putting America's interests first.  Donald Trump is a traitor.
  • News this morning is that Trump is sending federal law enforcement officials to quell violent crime in three cities, Milwaukee, Detroit and Cleveland.  What is the common thread with all those three cities?  They are all heavily Democratic cities in swing states - Wisconsin, Michigan, and Ohio - that Trump needs to win the election.
  • Regarding the presence of federal law enforcement, most crimes are governed by state law. My understanding is that federal law enforcement officials sent to these cities have to be protecting federal buildings or federal monuments, or somehow enforcing federal criminal law.  Are they straying from that mission?  Is the Pope Catholic?
  • Attorney General Bill Barr said he will leave his position if the election result is "clear."   Is anyone else bothered by that answer?  As I've said before, there is no more contemptible person in the Trump administration than Attorney General Bill Barr. 

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