Public Health and Law Enforcement Cooperation

1. Public Health and Law Enforcement Cooperation Information Sharing Joint Investigations NYC DOHMH/NYPD/FBI Protocol Wilfredo Lopez, General Counsel for Health, NYC DOHMH

2. Possible Contextual Scenario • Health officer receives a report of possible smallpox case • Notifies law enforcement and a mutual sharing of information takes place • Jointly go to the hospital to interview and investigate • Possible or confirmed case needs to be isolated and civilly detained Wilfredo Lopez, General Counsel for Health, NYC DOHMH

3. Framework for Cooperation • Find or create authority in participating agencies’ enabling laws that will allow cooperation • Work strictly within the respective and applicable legal authorities • Don’t lose sight of each other’s main mission; avoid mission creep Wilfredo Lopez, General Counsel for Health, NYC DOHMH

4. Information Sharing • Authority probably exists to allow the sharing of information if such sharing will benefit the mission of the other • Example, NYC Health Code § 11.07(c): “(c) Subsections (a) and (b) of this section shall not prevent authorized personnel of the Department from furnishing appropriate information to a physician or institution providing examination or treatment to a person suspected of or affected with a disease or condition, to an agency approved by the Department for prevention, treatment or social care, or to any person when necessary for the protection of health. A person, institution or agency to whom such information is furnished or to whom access to records has been given, shall not divulge any part thereof so as to disclose the identity of the person to whom such information or record relates, except insofar as such disclosure is necessary for the treatment of a case or carrier or for the protection of the health of others.” Wilfredo Lopez, General Counsel for Health, NYC DOHMH

5. Information Sharing (cont.) • From the public health perspective, decisions about what information to share, when to share it and when to authorize re-disclosure, must remain with the health officer or a small group of authorized designees • Disclosure of information which is reported to public health (PH) must be treated as an exception Wilfredo Lopez, General Counsel for Health, NYC DOHMH

6. Information Sharing (cont.) • HIPAA is not an obstacle to covered entities, like hospitals or doctors, making disclosures to PH. HIPAA-permissible disclosures to PH are broad and include disclosures required by law (45 CFR §164.512(a)) and disclosures for authorized PH activities, including PH investigations (45 CFR §164.512(b)) • HIPAA-authorized disclosures to law enforcement (LE) are much more limited (45 CFR §164.512(f)) Wilfredo Lopez, General Counsel for Health, NYC DOHMH

7. Joint Investigations • In order to maintain the confidence and cooperation of the medical community, PH must in fact be, and be perceived as, the lead epidemiological investigator • Reporting “unusual manifestations of disease” will always be a medical judgment call (WNV, Smallpox) • If we lose the cooperation of the medical community, we will kill the goose that lays the golden egg of early warning Wilfredo Lopez, General Counsel for Health, NYC DOHMH

8. Joint Investigations (cont.) • PH has broad authority to conduct epidemiological investigations in order to ascertain the existence of disease outbreaks, to discover the source of infection, unreported cases and unknown contacts, and to take whatever action is necessary to mitigate morbidity and mortality • LE’s investigation into criminal potential or actual bioterrorist events will need to focus on the same areas, creating a mutuality of interest Wilfredo Lopez, General Counsel for Health, NYC DOHMH

9. Joint Investigations (cont.) • Joint investigations will save time, an important consideration in a potential or actual emergency. Utilizing each other’s investigative expertise can enhance the quality and outcome of investigations for both • Less disruptive to the health care community to have PH involved, utilizing existing relationships • If PH were perceived as an agent of LE, would we have to give Miranda warnings when interviewing a patient? Would civil detention for isolation and quarantine purposes be converted into a criminal arrest? Wilfredo Lopez, General Counsel for Health, NYC DOHMH

10. NYC DOHMH/NYPD/FBI Protocol • Benefits of joint investigations were acknowledged before 9/11 as a result many false “white powder jobs” • Initially bilateral protocol discussions were between DOHMH and the FBI • After 9/11 expanded to include NYPD through the JTTF Wilfredo Lopez, General Counsel for Health, NYC DOHMH

11. Protocol (Cont.) • Protocol acknowledges that, by statute, the NYPD can be called upon to assist DOHMH, that DOHMH is not an agent of LE, and that the joint activity is essentially an epidemiological investigation governed by public health confidentiality principles, including NYC Health Code §11.07(c) • Protocol was signed in October of 2004 • DOHMH is training the NYPD and FBI in the techniques and principles of epidemiological investigations • http://www.phppo.cdc.gov/od/phlp/phlegalresponse.aspand scroll down to “New York City” Wilfredo Lopez, General Counsel for Health, NYC DOHMH