Now a defender of personal freedom, Mastriano wanted to lift privacy rules in pandemic’s early days
In statements no longer available on his Senate website, the GOP governor hopeful said HIPAA regulations ‘are threatening the lives of our citizens’
Sen. Doug Mastriano, R-Franklin, speaks with attendees on the Capitol steps of a rally for gun rights on September 29, 2020. (Capital-Star photo by Stephen Caruso)
In March 2020, Doug Mastriano was a back-bench Republican state senator who was a year into his first term after winning a central Pennsylvania special election.
That month, COVID-19 lockdowns swept the nation. By late April, Mastriano, of Franklin County, arose as a powerful voice opposing Democratic Gov. Tom Wolf’s use of executive power.
In nightly live videos, he spoke to people’s sense of frustration and anger with business closures and mask orders, and the isolation of being locked up at home amid the turmoil.
Now, Mastriano is running for governor largely on the brand he built in those early days of the pandemic, telling his supporters to “walk as free people,” downplaying the risk of COVID-19, and vocally opposing vaccine mandates, among other positions.
“The most important thing after protecting life is restoring your private personal freedom,” Mastriano said in a stump speech in Harrisburg last month. “Under Gov. Mastriano you will live life as you see fit, not as I see fit.”
But, for a brief moment in March 2020, before his transition to a lockdown opponent and COVID skeptic was complete, Mastriano seemed to take the issue deadly seriously.
In a series of press releases, legislative memos and interviews throughout March 2020, Mastriano proposed the state and the federal government roll back medical privacy protections for COVID-19 patients.
Doctors and employers typically cannot disclose medical information to anyone other than the patient without their consent under a mix of federal laws, including the Health Insurance Portability and Accountability Act of 1996, popularly known as HIPAA.
“We have to protect their privacy, but when it comes to a contagious disease, we should be able to know, ‘yes, this person had it,’ and so then the word will go out if I’ve had contact with him or her,” Mastriano told ABC-27 in Harrisburg at the time.
Failure to do so, Mastriano added, would mean that Wolf and then-Secretary of Health Rachel Levine have “blood on their hands.”
Researchers, as well as Mastriano’s opponents, have pointed out that this stance on medical privacy is, at best, off base, and at worst, dangerous.
Mastriano himself would, later that year, not follow the spirit of his own proposals. After leading a crowded November 2020 Gettysburg hearing on election fraud, he tested positive for COVID-19 when visiting the White House to meet with Trump and discuss efforts to overturn the November general election.
Mastriano did not reply to requests for comment from multiple news organizations at the time, and only acknowledged his diagnosis in a quickly deleted Facebook Live video.
But whatever the outcome, that position is fundamentally at odds, his opponents add, with his public image as an advocate for personal freedom.
“Directing the government to broadcast the personal medical information of private citizens is a dangerous idea that should never even be considered,” Tim Murtaugh, an advisor to gubernatorial rival Lou Barletta, said in a statement to the Capital-Star.
Barletta, Murtaugh added, “wants to keep the government out of people’s lives as much as possible, not create a frenzy by slapping a ‘Scarlet C’ on people who contract COVID-19.”
Mastriano first made the call to suspend the medical privacy rules for COVID-19 in a press release on March 17, 2020 — his first official release referencing COVID-19.
At the time, the state had reported just under 100 total COVID cases. Wolf would order non-“life-sustaining” businesses to shutter in two days’ time; schools had only been ordered closed until March 30, and no one had yet died of the virus.
In the release, which has since been removed from his official Senate website, Mastriano said that the HIPAA regulations “are threatening the lives of our citizens and depriving Pennsylvania residents of knowing if – and when – they were exposed to a contagious person.”
As an emergency measure, this information should be made available to “those who may have been subjected to this dangerous virus.”
In his ABC-27 interview, Mastriano said he made the call for a rollback after a Democratic Capitol staffer was tested for the virus earlier that week.
At the time of the interview, the staffer didn’t have a result. Later that day, they announced that they had tested negative on social media.
“My first question to the leadership was, ‘Well, who was it, because I want to know if my people were exposed to this person,” Mastriano said. “Did they go to meetings together? Did they work out in the same gym? Did they eat together?’”
Making more personal medical information public, Mastriano added, would help others control their risk of, unbeknownst to them, catching or spreading COVID-19.
“We have people walking around in gleeful bliss and not knowing they might have a contagious disease on them,” Mastriano said. “So, this is common sense.”
The senator followed up the interview with at least two more similar official releases, including a March 19 letter to then-President Donald Trump calling for the suspension of HIPAA, as well as a bill that would eliminate state-level confidentiality protections under Pennsylvania’s 1950’s-era disease control law during a gubernatorial disaster declaration.
Mastriano said the latter was needed, citing the Wolf administration’s frequent citation of the law to deny the release of COVID-19 data.
The current disease control law “allows the Health Department to keep records and reports of contagious diseases strictly confidential. Unfortunately, the Health Department has been using this outdated law to withhold life-saving information during the ongoing pandemic,” Mastriano wrote in the March 24 memo.
Many of these statements also were no longer on Mastriano’s official state website as of March 2022.
Mastriano’s campaign and Senate office did not reply to a request for comment.
The challenge of juggling medical privacy and the developing needs of the pandemic was, and continues to be a pressing question, privacy experts noted.
“Overreacting to a situation is easy,” Ronda Goldfein, executive director of the Philadelphia-based AIDS Law Project, told the Capital-Star. “It takes some disciplined thinking to identify what’s the goal, what’s the risk, what’s the least intrusive thing to achieve that goal and minimize that risk without throwing out the protections essential for people’s health care.”
And whether it’s a sexually transmitted disease or an airborne virus, if the results are made public through carelessness or a lack of patient protections, Goldfein noted, people might not seek medical care to avoid “painful and illegal” health based discrimination, such as being fired from your job.
While limited, she said her organization heard of a handful of cases early in the pandemic of EMS providers not answering 911 calls after seeing in medical records that a patient with an unrelated condition, such as a broken leg, lived with someone who tested positive for COVID-19.
While it’s important that those responders have the right context, Goldfein added, it should be addressed with universal precautions and generalized data, not through individually identifiable information that confidentiality provisions protect.
“We have to give people safe spaces to be tested and treated without our neighbors peeking in the windows,” she said.
Pam Dixon, executive director of the California-based World Privacy Forum, a public interest research center focused on privacy issues, added that the Trump administration actually did suspend parts of HIPAA.
For 72 hours starting on March 13, 2020, and ending just before Mastriano’s call, the federal government waived any penalties for hospitals that did not obtain a patient’s agreement to speak with family or friends about their condition, the need to distribute privacy practices to patients, or notify patients of their right to have confidential communications with staff.
The suspension applied not just to COVID-19 cases, but to anyone seeking treatment. And even in that small span of time, Dixon noted, people were hurt by revoking HIPAA.
For instance, she said her organization received calls from victims of domestic violence who said that the perpetrator had tracked them down as they sought medical treatment without those protections.
Meanwhile, three smaller HIPAA suspensions remain, Dixon noted, that have allowed telehealth to use less secure communications platforms and lowered the privacy standards for community-based testing sites.
The latter “gives hackers a field day with our public health and personal data; those testers can do what they want with it.”
While some of the suspensions, on telehealth for instance, have had a positive effect, Dixon is still looking to the federal government to lift its waivers in the near future.
“Medical privacy is especially important in the middle of a pandemic. If people do not trust the system and there’s a pandemic, then we have a problem because then the pandemic will be harder to solve because then people aren’t getting the treatment they need,” Dixon said.
“And trust is so fragile,” she added. “Once it’s gone, it’s really hard to get back.”
As for Mastriano, his efforts to roll back the state’s medical privacy law, officially introduced on April 20, 2020, never advanced out of committee.
That same day, Mastriano was also one of the thousands of people who appeared outside the Pennsylvania state Capitol for the first reopen rally calling for the end to pandemic-related business closures and stay-at-home orders.
Before then, Mastriano’s statements walked a fine line, asking Wolf to be mindful of the “unintended consequences” of his actions but also offering solidarity amid “unique and challenging times.”
“Let’s look out for each other and our neighbors during these times that try our souls,” Mastriano said in an April 1, 2020 statement after Wolf extended stay-at-home orders statewide. “We are Pennsylvania. This is our time, we will – by God’s grace – get through this together.”
But at the rally, Mastriano’s embrace of his new identity as a warrior for personal freedom appeared complete.
“I’m sick of being mislabeled by the left,” he said, talking with rally organizer Chris Dorr, at the start of a nearly three-hour live stream. “You disagree with them, suddenly you become an enemy of the people.”
“Actually, their policy is destroying Pennsylvania,” he added, “and they are becoming an enemy.”
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