Last month, PE Partners shared with our members the Memorandum of Understanding between the Tennessee Department of Health and local law enforcement about protected health information regarding COVID-19 cases. The legal counsel for the COVID-19 Unified Command & Economic Recovery Group has provided an update to that memorandum, which was shared by the Tennessee Association of Chiefs of Police to all police chiefs in the state. Please keep in mind the importance of safeguarding and maintaining the confidentiality of any PHI to which your organization may have had access.
RE: Memorandum of Understanding Regarding the Disclosure of Protected Health Information between the Tennessee Department of Health and your agency (“MOU”)
Dear PHI Disclosure Recipient,
The State of Tennessee recognizes and values the contributions of first responders, law enforcement officers, and health and mental health personnel and notes their tireless efforts to protect and serve the public during an unprecedented emergency. The safety of your agency’s personnel has been paramount to us, as COVID-19 has presented unique challenges for those on the front-line of emergency response, law enforcement, and healthcare. As you know, during the early response to COVID-19 it became difficult for first responders, health care providers, and law enforcement agencies to locate and source adequate personal protective equipment (“PPE”).
In an effort to address these challenges, the Tennessee Department of Health (“Health”) executed an MOU to share with your agency limited protected health information (“PHI”) regarding COVID-19 cases. Health agreed to provide the PHI disclosures pursuant to the authority provided in federal law and regulations, including 45 CFR Part 164, and based on guidance from the U.S. Department of Health and Human Services Office for Civil Rights.
As the supply chain for PPE has stabilized, and our understanding of COVID-19 has increased, Health has determined the continued disclosure of PHI regarding COVID-19 cases is no longer warranted. Therefore, effective Sunday, May 31, 2020, Health will cease disclosing to your agency the list of names and addresses of individuals documented as having tested positive, or received treatment, for COVID-19 during the prior 30 days.
Throughout the implementation of the MOUs, meant to responsibly disclose PHI to control and prevent the spread of COVID-19 in the state, Health has tried to maintain a balance between respecting patient privacy rights and preventing and lessening a serious health threat to first responders and law enforcement. Even as we continue to address many COVID-19 challenges, two developments make this an appropriate time for Health to cease these COVID-19 PHI disclosures.
First, PPE is now more readily attainable for first responders and law enforcement. In addition to securing PPE through normal purchasing means and supply chain channels, your agency should work with your local EMA Directors for PPE needs. TEMA has been supporting local procurement efforts, and, to date, TEMA’s logistics efforts around PPE have resulted in the shipment of over 1.4 million PPE items to first responders and law enforcement around the state. Supplemental to these existing efforts to supply PPE to agencies across Tennessee, TEMA will be shipping KN95 masks to LEAs and other first responder organizations and N95 respirators to emergency medical personnel to bolster on hand supplies.
Second, the prevalence of asymptomatic COVID-19 cases may be creating a false sense of security. Individuals who have COVID-19 but who have not sought testing because they do not have symptoms may unintentionally transmit the virus to your personnel because the need to wear appropriate PPE was not apparent. Therefore, first responders and law enforcement are encouraged to treat all close interactions with individuals with appropriate precautions. These precautions include wearing appropriate PPE, maintaining social distancing where possible, and following U.S. Centers for Disease Control and Prevention recommendations for first responders and law enforcement, available at https://www.cdc.gov/coronavirus/2019-ncov/community/first-responders.html.
Thank you for your efforts to safeguard and maintain as confidential the PHI Health has disclosed to your agency. Your obligations under the MOU continue, particularly with respect to maintaining the confidentiality of this PHI, limiting its re-disclosure except as permitted in the MOU, and using PHI only as the MOU authorizes. Within 30 days, you must delete and/or shred any existing copies, or any portion thereof, of the PHI disclosed by Health in your agency’s possession. Also, you must immediately notify Health if the PHI in your possession has been, or is suspected of having been, disclosed in an unauthorized manner, regardless of when the disclosure occurred.
Again, thank you for your service to the people of the State of Tennessee, and for your dedication to public service.
cc: County EMA Directors
Todd B. Skelton
Legal Counsel, COVID-19 Unified Command & Economic Recovery Group
Office of the Governor
Tennessee State Capitol