LOS ANGELES—In yet another attempt to corner the STD testing "market" of the adult entertainment industry, if not to shut down the industry completely, AIDS Healthcare Foundation (AHF) has petitioned the U.S. Department of Health and Human Services (HHS) to investigate the Adult Industry Medical Healthcare Foundation (AIM) for allegedly violating patient confidentiality laws—and according to an AHF press release, HHS has agreed to look into the matter.
The investigation was prompted by a letter AHF wrote to several state and federal agencies in February, claiming that AIM's standard release, signed by adult performers when being tested at AIM, which allows AIM to release the performer's STD information to adult producers who may wish to hire that performer for a movie or web production, is legally flawed—except that, according to AIM owner Dr. Sharon Mitchell, the release AHF cited in its letter was several generations removed from the release AIM currently uses, which according to at least one attorney familiar with the Health Insurance Portability and Accountability Act (HIPAA) is in full compliance with the law.
AHF's Feb. 22 letter states, in pertinent part, "As we understand it, adult film producers have conferred on AIM a virtual monopoly with respect to STD testing. An actor who wants to work in the industry first needs to be tested at AIM. Before testing, AIM requires the actor to agree to waive all confidentiality with respect to his or her test results, which AIM then publishes on a website where the highly confidential test results can be viewed by producers. ... It has come ot our attention that AIM has been using the attached 'Authorization to Release Test Results' to obtain privacy waivers from the actors. The Authorization does not appear to conform to the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), California's Confidentiality of Medical Information Act, or its AIDS testing laws. Most disturbingly, it conditions testing on the receipt from the actor of (a) an overbroad, irrevocable consent to disclosure of the actor's STD test results by AIM to whomever AIM feels appropriate, in perpetuity and (b) an indemnification of AIM for any damages resulting from its disclosures."
In fact, none of AHF's claims about the AIM Authorization is true.
"A number of experts in federal privacy law have vetted all of AIM's procedures," stated Jeffrey Douglas, attorney for AIM, "and we are extremely confident that AIM complies with or exceeds all federal and state HIPAA medical privacy standards."
Douglas also affirmed that the Authorization to Release Test Results currently being used by AIM also meets or exceeds those same standards.
However, not having that current information, but only AHF's false statements of the AIM documents and procedures, a HHS official, according to AHF's press release, responded to the organization, stating, "Your allegation could reflect a violation of the general rules for impermissible uses and disclosures of protected health information at 45 C.F.R., Section 164.502 (a)," and "Based on the facts that you have alleged we have decided to accept your case for investigation."
However, a look at the referenced section of the Code of Federal Regulations (C.F.R.) shows that a "covered entity" such as AIM can disclose such information to a third party under a number of circumstances.
For example, 45 C.F.R. Sec. 164.510 states, "A covered entity may use or disclose protected health information, provided that the individual is informed in advance of the use or disclosure and has the opportunity to agree to or prohibit or restrict the use or disclosure, in accordance with the applicable requirements of this section. The covered entity may orally inform the individual of and obtain the individual's oral agreement or objection to a use or disclosure permitted by this section. ... A covered health care provider must inform an individual of the protected health information that it may include in a directory and the persons to whom it may disclose such information (including disclosures to clergy of information regarding religious affiliation) and provide the individual with the opportunity to restrict or prohibit some or all of the uses or disclosures permitted by paragraph (a)(1) of this section."
In fact, AHF's own press release makes its intentions clear, and they have little to do with medical privacy.
"AIM’s testing clinic has long been the industry’s fig leaf attempt at self-regulation," wrote AHF president Michael Weinstein. "In fact, AIM is simply a ploy to deflect needed public scrutiny and responsible government regulation—a ploy that is perpetrated at the expense of the actors’ health and privacy rights."
In other words, AHF wants all adult performers to wear condoms (and possibly dental dams and plastic goggles) when performing in adult movies and web content, and apparently is willing to use anything from bogus Health Department statistics to misinterpretations of the law to gain its objective.
No representative of AIM itself was available for comment at press time.