ATLANTA — It's been a trending topic on Twitter: Do vaccine passports violate HIPAA?
The claim is circulating in response to the idea of using an app to prove you've been vaccinated for COVID-19.
THE QUESTION
Do vaccine passports violate HIPAA?
THE ANSWER
No, we can Verify that is false.
WHAT WE KNOW
The Health Insurance Portability and Accountability Act of 1996, or HIPAA, established national standards for protecting personal medical information from being disclosed without a patient's consent. The federal law applies to "covered entities" like doctors, hospitals and insurance companies.
"All HIPAA really does is give you a right of access to your information," Professor Nita Farahany, who specializes in the intersection of law, science and technology at Duke Law School, explained.
"If you choose to voluntarily share your information with a third party, like if you use it to get onto an airplane or if you use it to go into a restaurant or something like that, you're consenting to sharing your medical information," she said.
Glenn Cohen, a professor at Harvard Law School, specializes in the intersection of bioethics, the law and health law. He said HIPAA is one of the most commonly misunderstood laws.
"It doesn't seem that there's going to be a HIPAA violation and the answer is pretty straightforward because HIPAA requires a covered entity," Cohen said. "That's one of the requirements for the statute."
"People are fixating on HIPAA but really what they're concerned about is this question about should we be allowed to require people to be vaccinated, what does that mean to move in society and how much pressure towards vaccination is appropriate," he added.
While vaccine passports may not violate HIPAA, Cohen said they could face other legal hurdles.
"HIPAA is not all there is out there, and there are other statutes that might be brought to bear on the question of the legality of vaccine passports," Cohen said. For example, he thinks it will be vital to understand how the Americans with Disabilities Act would interact with the digital vaccine passports.
Our experts said vaccine passports also raise other issues such as equity, potentially splitting Americans who are vaccinated from those who are not.
"If a vaccine passport is your ticket to be able to reintegrate into society, whether that's to get a job or to go to a restaurant or, you know, really just be able to be out and about to travel," Farahany said, "Then, we're really discriminating against people who can't get a vaccine passport and those are people who are already potentially the worst off based on the pandemic."
Cohen is also concerned when it comes to potential inequities.
"When you have a vaccination rollout that excludes some communities, and we have some communities not participating very much, the more pressure you put on these passports, more of those people are going to be left behind," Cohen said. "And that's not even think about the vast swaths of the world, people who come to the United States who may not be vaccinated till 2022, even if they want to be vaccinated."
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