EMS can be full of interesting and tricky legal scenarios. While you can’t have an attorney ride with you, it behooves providers to have at least some familiarity with the principles, precedents, and major issues of EMS law. To that end EMS World is pleased to offer the EMS Legal Lesson of the Month.
These cases are presented by prominent attorneys in the EMS field. This month’s comes from Larry Bennett, program chair for fire science and emergency management at the University of Cincinnati. Bennett’s department publishes a monthly Fire & EMS and Safety Law newsletter; subscribe to that by e-mailing Lawrence.firstname.lastname@example.org or read the latest edition here. Find this case and more in his section on EMS cases.
Case: Rachel L. Dissell v. City of Cleveland
Decided: December 2018
Verdict: A special master appointed by the Ohio Court of Claims determined 9-1-1 computer-aided dispatch records—including the addresses to which EMS responded—were public records and could be released under the Ohio Public Records Act.
Facts: In 2017 local reporter Rachel Dissell made a public-records request for Cleveland fire and EMS CAD records for any calls dispatched for overdoses involving opioids or opioid mixtures. An initial response told her the city “generally cannot determine whether an incoming 9-1-1 emergency call is an opioid-related call,” then, after an amended request, the city claimed HIPAA protection and refused to release the information.
The special master found state and federal laws in conflict, noting, “The Ohio Public Records Act requires disclosure of information unless prohibited by federal law, while federal law allows disclosure of protected health information if required by state law.” However, the secretary of HHS has explained that the relevant federal legislation covering exceptions to protected health information, 45 CFR 164.512(a), was crafted to preserve access to information considered important enough for state or federal authorities to require its disclosure by law, and the federal Freedom of Information Act is a law that requires disclosure of records under this exception.
Key quote: “Even if HIPAA were applicable, the city does not cite any federal or Ohio statute, regulation, or case law recognizing an agency providing transport/paramedic services as a ‘covered entity’ under 45 CFR 160.103… Nor has the city shown that street addresses to which units were dispatched are ‘individually identifiable’ health information… Finally, the code SDO reflects only that the caller identifies the reason for his/her call as a suspected drug overdose. It does not reflect a medical professional’s history, diagnosis, prognosis, condition, or treatment information.”
Legal lesson: The city here may appeal the special master’s decision. But always, in producing CAD or other records on EMS calls, be sure to exclude any protected health information.