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Would HIPAA stop mandatory COVID-19 testing for nursing home employees? Lawyer weighs in

Coronavirus

ROCHESTER, N.Y. (WROC) — On Thursday, Hurlbut Care Communities argued the government or a private company couldn’t mandate COVID-19 testing, saying it would violate The Health Insurance Portability and Accountability Act, or HIPAA.

“Any government agency or official who attempts to mandate universal testing of our nursing home employees, or any company’s employees, would be directly violating federal HIPAA law. Those who try to mandate universal testing are politicizing the worst healthcare crisis that our country has faced in more than a century,” company president and CEO Robert Hurlbut said.

Hurlbut said it provides testing to employees who want it, or to employees who show symptoms.

News 8 spoke with a lawyer about what HIPAA does and does not cover.

“HIPAA would not apply in the employer-employee relationship, the employer would not be deemed a covered entity subject to HIPAA, unless the employer was obtaining confidential medical information from their employees as part of a health benefit or health insurance plan,” said Mike Burger, a local attorney.

“Telling a public health authority that you have x number of employees who have tested positive for COVID should not be barred by HIPAA, and asking employees to take those tests in these times should certainly pass muster under HIPAA,” Burger said.

“I’m not aware of any statutory provision or regulatory provision that would prevent the government from mandating testing during a pandemic,” said Burger.

“I think everyone is trying to strike this balance between safety and privacy, particularly in this unusual time where we’re dealing with a pandemic,” Burger added.

MORE: Lawmakers want NYS to investigate Hurlbut Nursing Home in Avon

State Senator Patrick Gallivan (R-59) and State Assembly Representative Marjorie Byrnes (R-133), lawmakers from the Avon area, want the state to investigate Hurlbut.

“I’m not looking to find things wrong,” said Gallivan, “I want to know that things are being done right, and I don’t have the confidence that they are right now. And that’s what I think an investigation will uncover.”

“I am just exceedingly concerned that this is going to lead to a lot more positive patients and staff members,” said Burns.

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