How the Health Insurance Portability and Accountability Act (HIPAA) and Other Privacy Laws Affect Public Transportation Operations (2014)

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The Problem and Its Solution The nation’s 6,000 plus transit agencies need to have access to a program that can provide authoritatively researched, specific, limited-scope studies of legal issues and problems having national significance and applica- tion to their business. Some transit programs involve legal problems and issues that are not shared with other modes; as, for example, compliance with transit- equipment and operations guidelines, FTA financing ini- tiatives, private-sector programs, and labor or environ- mental standards relating to transit operations. Also, much of the information that is needed by transit attorneys to address legal concerns is scattered and fragmented. Con- sequently, it would be helpful to the transit lawyer to have well-resourced and well-documented reports on specific legal topics available to the transit legal community. The Legal Research Digests (LRDs) are developed to assist transit attorneys in dealing with the myriad of initia- tives and problems associated with transit start-up and operations, as well as with day-to-day legal work. The LRDs address such issues as eminent domain, civil rights, constitutional rights, contracting, environmental con- cerns, labor, procurement, risk management, security, tort liability, and zoning. The transit legal research, when con- ducted through the TRB’s legal studies process, either collects primary data that generally are not available else- where or performs analysis of existing literature. Applications This research project examines privacy legal issues in public transportation and para-transit services arising from the Health Insurance Portability and Accountabil- ity Act (HIPAA) and other privacy laws. Public trans- portation agencies, including para-transit services, maintain some medical information about their clients. Legal Research Digest 46 TRansiT CoopeRaTive ReseaRCh pRogRam sponsored by the Federal Transit administration July 2014 how The heAlTh InSurAnce PorTAbIlITy And AccounTAbIlITy AcT (hIPAA) And oTher PrIvAcy lAwS AffecT PublIc TrAnSPorTATIon oPerATIonS This report was prepared under TCRp project J-5, “Legal aspects of Transit and intermodal Transportation programs,” for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Larry W. Thomas, The Thomas Law Firm, Washington, DC. James B. mcDaniel, TRB Counsel for Legal Research projects, was the principal investigator and content editor. responsible Senior Program officer: Gwen chisholm Smith These include application materials filed by clients or their health professionals during the eligibility process; records created during the review of these applications; and databases, updated as service is provided, which record customers’ destinations, including clinics, hos- pitals, doctors’ offices, and dialysis centers. HIPAA includes a privacy rule that provides fed- eral protections for personal health information held by covered entities. According to guidance available from the United States Department of Health and Hu- man Services, a “covered entity” is • a health care provider that conducts certain transac- tions in electronic form, • a health care clearinghouse, or • a health plan. On the face of it, transit agencies that provide public transportation, including para-transit services, would not normally be covered entities and the HIPAA privacy rule would not apply to them. However, many transit agen- cies have been advised by attorneys that HIPAA does apply, at least for certain types of information. Regard- less of whether HIPAA itself applies, various state laws or other federal laws also may limit transit agencies’ abil- ity to share sensitive health-related information. Differing understandings of what HIPAA requires have been known to limit the ability to coordinate Medicaid and Americans with Disabilities Act para- transit trips. There is also an issue of whether basic trip information like origin, destination, date, time, and the need for an accessible vehicle is medical in- formation that triggers HIPAA requirements. This digest should be helpful to attorneys, transit and para-transit providers, medical providers, planners, transit administrators, and the community at large. TRanspoRTaTion ReseaRCh BoaRD OF THE NATIONAL ACADEMIES