OMAHA, Neb. — An Adams County district judge has ruled that federal medical-privacy laws prohibit a former state psychiatric hospital from making public the names of people buried in the institution’s cemetery 50 to 100 years ago.
The Adams County Historical Society filed a lawsuit last summer asking the Hastings Regional Center to open records revealing the identities of 957 people buried in the hospital cemetery. Burials occurred from 1888 to 1959, but records date only to 1909. Small gravestones are distinguished only by patient numbers.
Thomas Burke, a San Francisco attorney and Hastings native who represents the historical society, said he planned to appeal District Judge Terri Harder’s ruling, filed Feb. 14.
“It’s not going away,” Burke said Feb. 15. “We intend to follow it to the end. We’re not there yet.”
State Health and Human Services, which administers the Hastings facility, had relied mostly on Nebraska privacy laws to support its argument against releasing burial records. HHS attorneys had given only brief mention to the 1996 federal Health Insurance Portability and Accountability Act.
But Harder cited HIPAA almost exclusively in her ruling. She said the law establishes a minimum level of protection for “individually identifiable health information” based on past, present or future physical or mental health condition.
“The Court finds that release of the information requested would be ‘individually identifiable information’ as defined under HIPAA,” Harder wrote. “If the requested records were released, the individuals buried would be named, and by virtue of the fact that the person was buried in the cemetery at HRC, release of these records would reveal that that individual was institutionalized for a mental illness or for a condition serious enough to require institutionalization.”
Burke said the ruling contradicts a 2004 state Attorney General’s opinion that said HIPAA could not be used as a reason to withhold burial information.
“What this now means is that the court has concluded that under federal HIPAA law … people buried (many) years ago can still have their right of privacy protected simply because they died and were buried at an institution where they were once institutionalized, as opposed to somebody who might have been buried at another cemetery,” Burke said.
In court papers, HHS attorney David McGath had written the “unrestricted release of medical information can subject a person and their families to ridicule, scorn, loss of employment and other harm” and that there is nothing in the public-records laws “that limit the medical records exception to a passage of time or the death of the person.”
Burke said the right to privacy dies with the person and that state law allows public access to death records, including burial information.
Burke said the historical society doesn’t want access to full patient records, only the names and dates of deaths.
Catherine Renschler, executive director of the historical society, said there should not be a stigma attached to families who may have a loved one buried at the regional center.
Renschler initiated legal action because of obstacles she has encountered when families have asked her to research the possibility that a family member is buried in Adams County. Burial records for other cemeteries are available, she said.
Regional center administrators have said that families can find out burial information on death certificates, which are public record. They also have said families also can obtain patient records by court order on a “need-to-know” basis.
“The notion that federal HIPAA law would require them to hire a lawyer to find out who’s buried in the Hastings Regional Center cemetery on an individualized basis is just plain wrong,” Burke said.