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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