This week’s headlines read: “Scalia’s death probably linked to obesity, diabetes and coronary artery disease, physician says” and “Scalia suffered from many health problems”. An article from a couple of weeks ago, immediately following reports of Justice Scalia’s February 13th death, reported that Scalia’s doctor said he had chronic cardiovascular disease.
These articles do not say whether the physician(s) who released Scalia’s health information did so in compliance with HIPAA, or whether any subsequent release of this information was HIPAA-compliant. The HIPAA regulations make it clear that the death of an individual does not mean the death of that individual’s right to have his or her individually identifiable health information protected under HIPAA (at least, not until the individual has been deceased for more than 50 years).
Justice Scalia’s status as a public figure, and the public’s general interest in the news of his death, also does not affect his HIPAA rights. As noted in Bill Maruca’s post about New York Giants’ defensive end Jason Pierre-Paul’s injuries last summer, there is no “public figure exception” to HIPAA. Bill also accurately noted, in his blog about the Ebola cases treated in Texas in 2014, that there is no HIPAA exception for “newsworthy or unusually terrifying medical conditions.”
HIPAA permits a covered entity to disclose protected health information (PHI) to a coroner or medical examiner for the purpose of identifying a cause of death, but does not authorize the coroner or medical examiner to further disclose the PHI. Because HIPAA also permits an executor, administrator, or other person who has authority to act on behalf of a deceased individual to act as the deceased person’s personal representative, such an authorized person might have provided a HIPAA-compliant authorization to Scalia’s health care providers to disclose Scalia’s PHI to third parties. In addition, there are other ways in which PHI of someone who has died might be disclosed in compliance with HIPAA, but none of the articles I read provide the detail needed to see whether these circumstances existed.
The articles do, however, make it clear that the late Justice suffered an array of health issues that were not publicized prior to his death.
What would Justice Scalia have said, if, in fact, his PHI was disclosed improperly? His decisions involving the Fourth Amendment may provide some clues, but they are not precisely on point, and we cannot ask the Justice. We can simply remind covered entities that HIPAA protections have an after-life — and deserve (in fact, require) post-mortem respect.