According to its founder, Dr. Sharon Mitchell, the Adult Industry Medical (AIM) Healthcare Foundation finds itself in the middle of a thorny dilemma involving the medical privacy of one of its patients.
"Patient Zero," as that person has come to be known, has filed a civil rights lawsuit against the state Occupational Safety and Health Administration (Cal-OSHA) to prevent the agency from learning the person's identity and work history—and even his/her gender—which OSHA is pressing AIM to reveal, in clear violation of provisions of the California Health and Safety Code.
"This is going to get really ugly and it's turning my stomach because none of it has to do with safety or health; it's doing nothing to keep the population safer," Mitchell told AVN. "This is terrible; it makes me so sick as a health professional to watch people behave in this manner, who have the same or higher degrees than I have."
Although AVN has been unable to obtain copies of the suit papers, reliable sources have said that the basis of the lawsuit is that "Patient Zero," the porn star whose HIV test came back as positive on June 6, has become aware of actions taken by Cal-OSHA to attempt to learn the person's identity, including but not limited to serving an administrative subpoena on AIM, which was the clinic which drew the blood for Patient Zero's HIV test.
However, both the privacy provisions of the federal Health Insurance Portability and Accountability Act (HIPAA) as well as California's own Health and Safety Code, make it illegal for OSHA even to ask for either the identity of Patient Zero or any information that could lead to the disclosure of his/her identity, and the California code makes it a crime for AIM to provide that information, even if served with a court order to do so.
Sec. 120975 of the California Health and Safety Code reads, "To protect the privacy of individuals who are the subject of blood testing for antibodies to human immunodeficiency virus (HIV) ... no person shall be compelled in any state, county, city, or other local civil, criminal, administrative, legislative, or other proceedings to identify or provide identifying characteristics that would identify any individual who is the subject of a blood test to detect antibodies to HIV."
Revealing someone's HIV status without their approval is a $2,500 fine, and if harm results from such a disclosure, the person responsible can face a year in jail and a $25,000 fine.
"Those sections [of the Code] essentially authorize disclosure only to one entity," stated Jeffrey Douglas, one of AIM's attorneys, "and in the case of L.A. County, that is the L.A. County [Department of Public Health, HIV Epidemiology], and that division is forbidden to give it to anyone else including other units of the L.A. County Department of Health. So the L.A. County Department of Health, except for that one division, does not know the identity of Patient Zero."
But according to Mitchell, OSHA has already served one subpoena seeking the identities of AIM clients who have tested positive for STDs, including HIV, and she fears that there may be more subpoenas on the way.
"Based on the information we've received, this was not a workplace exposure," Mitchell is quick to point out.
In fact, in mid-June, OSHA did do a surprise inspection of AIM's offices and found that the clinic was in compliance with all safety and health regulations, and Karen Tynan, one of AIM's attorneys, assures that AIM continues to cooperate with this state agency as far as workplace inspections of the AIM clinic. But OSHA still has no right, under the law, to see AIM's clients' medical records.
"They are demanding that AIM violate state law," Douglas stated. "The state law is so powerful and extensive, it bars AIM from doing it even if ordered to do so by a court. Now, OSHA has its own theory as to why this doesn't fall within the extraordinarily broad scope of the statute, and to me, their theory is essentially unintelligible."
"OSHA appears to me to have divided goals," he nonetheless continued. "Nominally, the investigation of AIM is of AIM as a clinic, which is to say, are they following appropriate procedures for the drawing of blood and the providing of medical services? But they've already done that inspection. They want follow-up documents and things, but there's no indication that there is any basis to believe that AIM is doing anything other than exactly what is appropriate of a medical clinic, following all workplace safety rules."
But Douglas hinted at darker motivations as well.
"The other component of it is, they are operating under the assumption, and hope to develop the data to prove a false theory, which is that AIM is a workplace employer, broadly defined in the world of Cal-OSHA, of the talent when the talent is engaging in shoots, and has employer responsibilities," he explained. "If AIM has employer responsibilities, then they could issue citations to AIM for activities that occur at a porn shoot, order AIM to do things, to comply with things, and that would be infinitely easier than OSHA going directly after the production companies. Because many performers choose to test at AIM, if they could turn AIM into an employer, then they could just order AIM to do things, like not allow people to perform without two condoms, a face mask and a plastic bag from ceiling to floor ... They're trying 15 different approaches to bring AIM under the 'employer' umbrella."
Mitchell likewise has concerns about OSHA's motives in seeking Patient Zero's identity.
"OSHA is hell-bound, along with the county, on closing this industry and getting it out of Los Angeles or California, one by one by one," she charged. "And the only thing that they cannot get to right now—they know who some of the talent are, which is why they're going back to people that have already been medicated, asking, 'Who did you work for and who are the producers?' and so forth. They don't know the production companies, and they think that if they can get our records, they are going to find out where the production companies are, who shoots for who, and they will continue to shut them down one by one by one by one. This is their agenda."
As things stand now, AIM has had to hire attorneys specializing in medical privacy and Cal-OSHA regulatory law to represent its interests in Patient Zero's lawsuit, to prevent OSHA, through its subpoena power, from forcing AIM to violate the state's health and safety laws by revealing the patient's medical records.
"We're being very cautious but we're being as compliant as we can be without compromising patient health and privacy," Douglas said. "But we are expending money and time and effort in providing them with data that they're not entitled to. But as long as no one's being hurt by it, we're playing along."
So far, OSHA has told the Court that it is not posing any identification questions to AIM, and based on that representation, the judge in the case has declined to issue a temporary restraining order against the agency. However, a hearing on a motion for preliminary injunction, which would prevent OSHA from attempting to gain such information in the future, is scheduled for July 31 in Oakland.
"At that hearing, the issue of whether or not OSHA is constrained by state law, as I think it is overwhelmingly clear, will be resolved," Douglas predicted, "and if the preliminary injunction issues, which I think it will and should, then one issue is resolved, though we still have all the others. But it will be really nice if OSHA is reminded that they have to follow the privacy law."
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