Pentagon Uses New Law to Keep Casualty Information from Families, Public and Press

Journal Sentinel (Wisconsin)

New law limits details on injured troops

Relatives, even Congress, can be left in the dark about casualties

A few days after enemy fire in Vietnam left him badly hurt, Wally Ladik’s story made the papers back home.  It was December 1965.

44711Medical Privacy

Wally Ladik


Wally Ladik was injured in Vietnam, and his friends and family followed his recovery in the paper.

What The Law Says

The Health Insurance Portability and Accountability Act of 1996:
“If the information identifies or provides a reasonable basis to believe it can be used to identify an individual, it is considered individually identifiable health information. . . . Individuals have the right to request a restriction on certain uses or disclosures.”
The Privacy Act of 1974:
“No agency shall disclose any record . . . by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.”

Ladik, who enlisted in the U.S. Marines after graduating from Milwaukee’s Marshall High School, felt a sense of pride as he recuperated in a military hospital that folks back home could read about his sacrifice.

“I knew all my friends were worried,” he recalls. “When they could see something in the paper, in a way they could connect with it.”

But stories of battlefield heroics are getting harder to come by, as heightened concerns about medical privacy constrict information about wounded U.S. soldiers.

The latest barrier to full disclosure: a federal law called the Health Insurance Portability and Accountability Act, or HIPAA.

Military families, veterans groups and even members of Congress are discovering that the new privacy law makes it difficult to get details about America’s mounting war casualties in Iraq.

“You’re creating a bit of a communications nightmare,” said Paul Burke of Seymour, family coordinator for a Wisconsin National Guard unit stationed in Iraq.

Implemented about a year ago, HIPAA prohibits hospitals and other health care providers from releasing information about a patient without consent from the patient or next of kin. It also is intended to give people more control over their health records.

But the law’s far-reaching implications have, in some cases, prompted public health officials to withhold information about communicable disease outbreaks, hospitals to refuse clergy information about ailing parishioners, and nurses to hesitate to leave information on a patient’s telephone answering machine.

Now, military officials are citing the law in refusing to identify soldiers wounded in Iraq or disclose details about their injuries.

When eight members of a Waukesha-based National Guard unit were hurt Sept. 12 by a suicide car bombing in Baghdad, the military, citing HIPAA, would say only that none of the injuries was life-threatening and that three soldiers had been hospitalized. Family members later revealed that one of the most seriously hurt was the unit’s commander and that another soldier had nearly lost a leg in the explosion.

Army spokesman Jaime Cavazos said soldiers have the same privacy rights as civilians under HIPAA.

“We don’t apply them any differently than any hospital would,” he said of the restrictions.

Even before HIPAA, military officials say, the Privacy Act of 1974 put severe restrictions on what information the Army, Navy and other armed services could disclose about soldiers wounded in combat.

But such privacy rules are enforced more universally today because of heightened concerns about lawsuits, identity theft and other pitfalls of disclosure, said John Peterson, chief information officer for the Army Medical Command, which oversees all Army hospitals.

Peterson said even members of Congress have been turned away when looking for details about wounded soldiers from their districts.

“There are a lot of heroes who want to maintain their privacy,” he said.

Secrecy suspected

Some critics question whether the military’s true intention in adhering so stridently to HIPAA is privacy – or secrecy.

A spokesman for U.S. Sen. Edward Kennedy (D-Mass.), one of HIPAA’s chief architects, said the senator never intended the law to keep Americans from learning about casualties in important military missions like the current war on terrorism.

Agreeing that soldiers have privacy rights, too, Kennedy spokesman Jim Manley said the military should be more assertive about obtaining consent from wounded soldiers so the public knows what is happening on the battlefields.

Asked whether the Pentagon might be exploiting the privacy law, Manley replied: “I have to be concerned that they are.”

Ladik, the Vietnam veteran, shared his skepticism. Now 58 and a retired police officer who lives near Madison, he noted that widespread news coverage of casualties in Vietnam turned public opinion against that war during the 1960s and ’70s.

The government’s strategy today, Ladik said, seems to be maintaining public support by restricting such information.

“That really turned on them in the Vietnam War,” he said.

Army spokesmen and other government officials deny such a theory, pointing out that fatal combat injuries are still disclosed publicly and often marked by widespread news coverage of funerals and memorials.

Bill Pierce, spokesman for the U.S. Department of Health and Human Services, said Kennedy and others in Congress could have structured the law to allow easier disclosure of military injuries.

Pierce described the current criticism from the Kennedy staffer as election-year politics.

“That’s just over the line,” he said. “We’re talking about medical privacy here.”

As of Friday, 1,055 members of the U.S. military have died since the beginning of the Iraq war in March 2003, and thousands more wounded.

Of the wounded, more than 400 have become patients at the Zablocki Veterans Affairs Medical Center in Milwaukee, where division manager Jean Bromley has no complaints about how information is being handled.

The hospital must protect patient privacy, Bromley said, but she added that nothing really has changed since the days of the Privacy Act.

Burke, family coordinator for the Waukesha-based 118th Medical Battalion Company B of the National Guard, got a first-hand brush with HIPAA when members of that group were wounded in the recent Baghdad car bombing.

Although being coordinator means he is supposed to disseminate information to families of Company B members, Burke found himself caught in an information bottleneck.

Military officials provided few details about the bombing and gave him explicit instructions on how information about the incident should be presented, Burke said. But many of the wounded soldiers contacted loved ones themselves and divulged details that were supposed to be kept under wraps.

In the end, Burke said, the military’s handling of the situation raised more questions than it answered for some families – and left him worried.

“In an effort to protect everyone’s privacy, we’re pseudo-censoring what information we put out,” he said. “It definitely seems that it’s having effects that the people who created it didn’t intend.”

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