Flu vaccination by government mandate: A violation of HIPAA

We guard the privacy of patients in my hospital zealously — we take care of a lot of celebrities since we’re right in the shadow of Beverly Hills.  And of course we live in terror of HIPAA violations, those federally mandated HHS rules that protect individually identifiable health care information and could bring down “civil money penalties” upon us if we don’t keep our patients’ medical records strictly confidential.

But for health care workers — physicians, nurses, technicians, even medical supply vendors — in LA County, the usual privacy rules don’t apply any more.  Now everybody gets to know at least some of our medical history:  whether or not we’ve been vaccinated against influenza.

How will anyone know whether or not I’ve had this year’s flu vaccine?  Because policy dictates that I must publicly say so, whether I want to “out” that information or not.

As of October 2013, all health care workers in Los Angeles County must be vaccinated against influenza or wear a protective mask any time they might have contact with patients or stray into patient care areas.  This is an order that came down by fiat from Dr. Jonathan Fielding, the director of the LA County Department of Public Health, and now applies in LA County to every hospital and care facility.

You might think that sounds like a reasonable idea.  After all, the flu is a dangerous disease that may even lead to death.  My personal choice is to take the flu vaccine every year, in the hope that I’ll make it through another winter without the high fever, bone-rattling chills, racking cough, and other miserable symptoms that characterize classic flu.

But I choose to take the flu vaccine realizing that the vaccine won’t necessarily protect me against all the different strains of the flu virus, and knowing too that I could suffer severe side effects.  Those side effects can range from mild fever and chills to a potentially devastating condition called Guillain-Barré syndrome, which causes muscle weakness and even paralysis, and may leave its victims with permanent nerve damage.

I’ve always agreed with the general recommendation that people who work in health care should be vaccinated against the flu, but that still needs to be a personal decision, not a government mandate.  Each person has individual responsibility to make decisions about safety issues of all kinds — whether or not to smoke, to eat that second piece of cake, to get the tires checked on the car before the road trip.  While we acknowledge that bad decisions may put others at risk to a greater or lesser degree, in America we still believe that personal decisions are just that:  personal.

Not in LA County, however.  In other southern California counties, health care personnel may still decide whether the risks of the flu vaccine outweigh the potential benefits, and keep that decision to themselves with the same right to medical privacy that everyone else has.  But in LA County, you either get the vaccine or wear a mask, even if you’re perfectly healthy and haven’t got the slightest symptom of the flu.  Because that’s what Dr. Fielding has ordered.

In fairness, many hospitals across the country already have the same policy in place:  get the flu vaccine or wear a mask in patient care areas.  One hospital in New York City puts a small red sticker on the badges of health care workers who’ve been vaccinated.  USC University Hospital uses a little yellow dot.  Other hospitals simply use an honor system, with random checks for compliance.  My hospital handed out new badges for everyone to wear along with their ID badges:  either a green badge or an orange one.  Green means that the wearer has been vaccinated for flu; orange means the wearer has declined the vaccine for whatever reason, and must wear a mask. The individual may even be barred from receiving this year’s flu vaccine because of a previous severe reaction — such as Guillain-Barré syndrome — but he or she still gets the orange badge.

Let me point out the obvious flaws in this system.  If I should become ill with a strain of influenza that hasn’t been covered by this year’s vaccine, since I’ve been vaccinated I don’t have to wear a mask though I could be quite contagious for at least a day before I develop overt symptoms.  No hospital (to my knowledge) is requiring patients’ visitors and families to provide evidence of flu vaccination or wear masks, though they go in and out of patient care areas at will. If we are really to be logical and scientific about flu transmission, either we all should wear masks or none of us should bother.

Many of us in clinical health care have good reason to resent the obvious HIPAA violation that is taking place when health care workers are required to divulge whether or not they’ve been vaccinated against this year’s most likely influenza strains.  Apparently, HIPAA only applies to some patients, not to all.  Patient privacy, it seems, only matters when the government wants it to, and confidentiality doesn’t extend to those of us who come to work every day to take care of our patients.

I’ll carry my green badge in my pocket, thanks.

Karen S. Sibert is an associate professor of anesthesiology, Cedars-Sinai Medical Center.  She blogs at A Penned Point.

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  • Ron Smith

    Hi, Karen,

    It seems that in all areas of our lives, we are ‘encouraged’ to be tolerant, and are acceptable only when our actions are what those expounding the ‘virtues’ of tolerance ‘expect’ them to be.

    Tolerance, noun. The ability or willingness to tolerate something, in particular the existence of opinions or behavior that are the same as those who define tolerance.

    Warmest regards,

    Ron Smith, MD
    www (adot) ronsmithmd (adot)

  • David Lawrance

    You may not like the requirement of having this particular immunization requirement. Perhaps it is wise and perhaps it is foolish (though I personally feel it is an ethical responsibility to get my flu shot.) But, it isn’t a HIPAA violation when you disclose your own protected health information to others, voluntarily or coerced by wearing your badge and/or wearing your mask.

  • Chiked

    It is amazing how much kool aid doctors will drink these days. How can a vaccine whose overall effectiveness is really no better than a coin toss be forced on people.

    Oh I forgot. You call that established but not perfect. However getting plenty of rest, adequate Vit D levels on the other hand are just personal remedies.

    What a joke.

  • Coral

    If I were immuno-compromised I would simply insist that every healthcare worker wear a mask around me to examine me….it’s not just the flu that you are susceptible to but millions of other diseases that there are no vaccines for. The flu shot isn’t going to protect you from those.

  • RenegadeRN

    Two words- Slippery Slope!
    Two more- Monetary gain.

  • adh1729

    PIMD: I have some serious news for you: you and all your patients are possible carriers of the
    parainfluenza virus! There is no vaccine for this deadly virus. You also may become carriers, at any time and without any advance symptoms, of adenoviruses, coxsackieviruses, noroviruses, enteroviruses, and many other deadly pathogens. My advice to you is urgent: don the closest N-95 masks and use them 24/7, to avoid either propagating these pathogens to others, or in turn becoming infected yourselves. Also, I would advise you and all the rest of your fellow infectious reservoirs to don the closest 6-pointed yellow stars that you can find. You, of course, should resign at once from the medical profession, lest you infect some 95 year old lady in a nursing home, and thus become the immediate cause of her demise.

  • adh1729

    The hysteria of the last decade regarding influenza, has not come from “healthcare institutions”. There is a central source, and anyone with a brain should know such.
    Since you and yours are terrified of respiratory infections, and regard anyone who can transmit respiratory pathogens as a “danger to public health”, then I recommend that you lead by example. You are capable, without warning, of transmitting multitudes of viruses against which there is no vaccine — adenoviruses, parainfluenza viruses, noroviruses, coxsackieviruses, ad infinitum — so, wear your N-95 masks 24/7/365. Don’t just wear them in the hospital — is the hospital the only place where viruses spread? — wear them to the mall, the theater, the church, the bowling alley. Show your faith by your works. Compel everyone, small and great, rich and poor, free and bond, to wear N-95 masks constantly.

    • PoliticallyIncorrectMD

      Don’t be so cryptic! You know what the source is – say it!

    • PoliticallyIncorrectMD

      Pathogens vary in virulence. Flu is much more dangerous. In addition, there is no point in protecting each other from the pathogens which are ubiquitous, which is not the case with flu.

  • Chiked

    When you are told that the flu vaccine is 50 – 60% effective, it means that of a 100 people with flu like symptoms who were vaccinated against the flu, 50 – 60 of them will not test positive for influenza….a coin toss in my opinion.

    But this gets to the heart of the conversation. The numbers are extremely if not purposefully deceptive. 60% reduction sounds good until you realize that they are only referring to those with flu like symptoms….not the general population.

    So if you account for the fact that only 5 – 10% (I am being generous) will contract the flu in a given year, then that effective rate plummets to under 5% if not less. Really hard to scare everyone to rush out and get a flu shot when you can only boast of 1 or 2% effectiveness.

    That is the stats. So I will say it again. What a joke.

    • PoliticallyIncorrectMD

      This is not the stats! This is your interpretation of them which is “extremely if not purposefully deceptive”. I encourage everybody to go straight to the CDC site at look it up for themselves!

  • PoliticallyIncorrectMD

    I am baffled by many of the comments here (few have been deleted) of people being in complete denial about dangers of influenza. To make matters worse, some of them come from health care professionals (or so they claim). Are you out of your mind! This is not some hypothetical scenario or paranoia! My critical care unit is full of patents in their prime, on life support secondary to influenza infection. Many of them will not make it. This is not the time for posturing or pushing ones political agenda. Lets do the best we can to limit the damage, even if it herts our egos.

  • Chiked

    It is about the money. Do you think drug companies lavish gifts on doctors and sponsor their medical conferences because they are generous. They do so because it actually works. Physician behavior can be manipulated by good marketing.

    As for your comment on alternative remedies. Here is my bottom line on medicine today. When you are sick, a physician is who you want in your corner. However for day to day management, they are horrible if not downright dangerous. The flu shot is just one example.

  • drjoekosterich

    The hysteria about flu is completely out of control. It is in the vast majority of cases a mild self-limiting illness.Couple that with a faith in a vaccine which is of questionable benefit (when independent analysis is done) and you have to ask who and what is driving this agenda? And to cap it off according to an analysis in the BMJ only one in six cases of flu symptoms are caused by influenza virus and an even smaller number by those in the vaccine.

    • PoliticallyIncorrectMD

      I am not sure what your work setting is, but “mild self-limiting illness” is not what I am seeing. This is not some kind of academic discussion. Real people are suffering. Even assuming you are right, would it hurt you to take a shot or to wear a mask, just given a small chance that you are wrong?

      • drjoekosterich

        FYI each winter I see hundreds of people with mild self limiting flu like illness in suburban practice

        • PoliticallyIncorrectMD

          Great! My point still stands.

          • FEDUP MD

            And I see kids die every year from it. One year 3 in several weeks, and one left with horrible disabilities afterwards. Some have underlying medical problems but many are just normal kids.

      • rheumdoc

        Depending on if one has an autoimmune predisposition, being a Rheumatologist, I have seen at least a half dozen cases of autoimmune disease onset and/or flare starting after getting a vaccine such as the flu shot (Gardasil is the other one that comes to mind). There are real risks to vaccines, however small, and everyone has the right to decide which risk they’d rather take — the risk of potentially life-threatening flu infection if their immune system goes into overdrive when infected with the real virus, or potentially any number of minor to serious “side effects” of getting vaccinated. Of course studies will never prove cause and event for these type of anecdotal things, but we all see different views depending on which health care setting we work in. Critical care folks will see the critically ill flu patients. Suburban family docs will see the minor “flu-like illnesses.” Rheumatologists like me will see the lupus patients whose disease started after getting a vaccine. These all temper our belief systems and whether we choose, for ourselves, whether to get vaccinated. Just as I wouldn’t expect the government to force my patients to be compliant with taking their meds (even when obviously in their best interest), I also believe the government has no right to force this on all healthcare workers. We are all smart enough to leave health care and work some other easier job, and there is already a physician and nurse shortage. Would be wise to stop with mandates and respect that we ALL are patients, health care workers alike. As patients, we all have the right to privacy of our health choices etc., per HIPAA, as this well-written article alludes to.

  • Mindanoiha

    Regarding masks: we did microbiological studies on masks at our hospital and found that the degree of bacterial contamination after a short time was the same on the insides as outsides of the masks.
    Additionally but at least as relevant: as bacteria were shown to pass
    through the pores of the masks it is logical to assume that viruses which are smaller than bacteria pass freely through the masks.

    • Chiked

      Interesting. Was this published? If it was, can you send the link?