Whether you’re living in a co-op apartment building in Manhattan, a condo on Chicago’s Gold Coast, or a townhouse community or HOA in Boston, issues of legality and liability are always a concern for owners, board members, and management. And that’s especially true in these challenging times, as American homeowners confront a crisis for which the vast majority of us have no prior experience or frame of reference. We all care about and want to help our neighbors get through the pandemic. The question is: how can we do that while staying on the right side of current legal, ethical, and personal health parameters?
Liability and HIPAA
The law causing the most consternation for multifamily community residents trying to cope during this crisis was passed in 1996 with the best of intentions. The Health Insurance Portability and Accountability Act—commonly known as HIPAA—makes it illegal to divulge or disseminate the particulars of any individual’s health information without their prior consent. According to the U.S. Department of Health and Human Services (HHS), HIPAA “establish[ed] national standards to protect individuals’ medical records and other personal health information...The Rule requires appropriate safeguards to protect the privacy of personal health information, and sets limits and conditions on the uses and disclosures that may be made of such information without patient authorization.”
While few would argue that keeping people’s personal health information private is a good move for an array of reasons, there are times when the regulations can seem cumbersome, or even counterproductive. As the COVID-19 pandemic has spread and intensified, attorneys, managers, and New England Condominium itself have been inundated with questions from residents, board members, and others expressing concern—and sometimes anger—that they cannot be informed by name of neighbors in their building or association who have tested positive for the novel coronavirus. Their argument is that knowing who and where the infected individuals are would enable others in the community to take more effective steps to protect themselves and their families from the virus.
While this may seem to be common sense, legal pros point out that compromising privacy in such a way could open boards, associations, and individuals to serious liability, regardless of whether an infected resident became the target of ‘public ridicule or shame’ (to borrow language from several of the responses to this question in our Legal Q&A section) or any other negative treatment as a result of their status being improperly disclosed.
Howard Goldman, an attorney and partner specializing in community law at the Needham, Massachusetts-based firm of Goldman & Pease, explains that the rule governing community notification in Massachusetts is fairly simple: “An association may tell the members that a resident is in self-quarantine, but they may not identify them,” by name, unit number, or address, and “there can be no public shaming.” Goldman further advises his association clients that the boards should notify state and local health boards of such a situation privately and discreetly.