Oakland police says they don’t collect COVID-19 vaccination rates. Legal experts call foul.

Oakland police do not collect COVID-19 vaccination rates. Neither is the city.

That’s what a spokesman for the Oakland Police Department said when SFGATE asked to provide “vaccination rates to officers and staff” if available.

“The department and the city are not holding data, this would be a HIPA violation,” the spokesman said in an email sent last Thursday to SFGATE. The spokesman clarified in an email later: “OPD and the City of Oakland do not collect immunization data from employees. If an employee would like to volunteer the information is their personal choice. HIPAA protects people’s records, identification and personal health information. “Therefore, we do not collect this information.”

But that explanation, according to multiple legal experts, does not make a whole lot of sense.

HIPAA, or the Health Portability and Accountability Insurance Act, has emerged as a common phrase as businesses and states begin to push more people to provide vaccination evidence or require masking. As of late, it has been used as a cup by a variety of people – NFL player Dak Prescott and Conservative lawmaker Marjorie Taylor Greene among them – to close valid questions about the vaccination status.

“What’s happening a lot these days is … everyone sort of has a vague idea what HIPAA means to protect health information,” said attorney and UC Hastings health care conference R. Gregg Cochran in an interview with SFGATE. “So they threw it on like, you know, they know what that means.”

But that deployment of the term is flawed and misleading, experts say.

A basic explanation of HIPAA: HIPAA is a law passed in 1996 that essentially protects individually identifiable data from being provided to health care entities. The three types of entities that HIPAA applies to, explains Cochran and Michigan health care attorney Rolf Lowe, are health care providers, hospitals and doctors; health plan or insurance company; and what Cochran calls a “rare entity” known as the health care clearinghouse.

Oakland police likely do not fall under these three categories.

Further, SFGATE will request information from the total – not requiring vaccination documents of an individual officer. The latter is protected under HIPAA; the former is not. Thus, in the event that HIPAA in fact applies to Oakland police, the information requested would not violate any individual privacy warrants.

“Protected health information is the kind of information covered by HIPAA,” said Cochran. “This should be vaccination records, individually. So for example, if you said Officer Smith was vaccinated, and you’re a covered entity, then that could be a HIPAA violation.”

And in total, that data is not only very important to share publicly – as was the case with Immunization rate of the New York Police Department last week – but vital to keep track of. As the Delta Variant continues to spread across the country, police have an obligation to prevent the spread of COVID-19 to each other, and more importantly, to protect the public they serve.

There are some warnings, and Oakland police could very well have some protections that would exempt them from providing this information. Some medical information, Lowe explained, could be protected under other federal employment laws such as the Americans with Disabilities Act or the Family Medical Leave Act.

“But [vaccination information is] no, it has nothing to do with HIPAA, “he said.” They just want to know who got vaccinated, who didn’t. “

Cochran also explained that there could be a California privacy law that protects Oakland police from disclosing this information.

And, to be fair, you don’t need to provide your data, but you can’t use HIPAA as your defense. That goes for athletes, politicians and the police department.

“I would be hard pressed to think that I came up with anything that would protect something general,” Cochran said. “And it sounds like a bull-t answer.”

This story will be updated if Oakland police provide more information.

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