Tiger King, HIPAA, the ADA, and Excuses for COVID-19

Every few years a TV show comes along that becomes a cultural phenomenon.  Tiger King is the latest one, because the main character, Joseph “Joe Exotic” Maldonado-Passage is a person who has brought drama and chaos to the lives of many.  He’s currently serving a federal prison sentence for attempting to hire people to murder Carole Baskin, amongst other charges.  She runs an animal rescue in Florida dedicated to saving big cats and endangered species from exploitation and cruelty and targeted his private zoo and shows.  He was also charged with murdering several tigers in his care and found guilty, proving her point.  While he was a charismatic leader, he did not have the best interests of the animals he was entrusted to care for or other people.  He only cared for himself.  When an employee of his lost their hand due to a mauling, he was more concerned about losing business than the person themselves.

Joe Exotic, like several of the other owners of private zoos across the US documented in Tiger King, used fear and intimidation to keep his team members silent.  He made them sign million-dollar non-disclosure agreements.  The people signing these agreements had little to no legal knowledge and were not aware of their rights.  Joe was not going to inform people who he was underpaying that were foraging for rotting food from dumpsters of additional rights they had.  When people are that downtrodden, fear works incredibly well to keep them in line.

An article in the Harvard Business Review, “NDAs Are Out of Control.  Here’s What Needs to Change”, by Orly Lobel, on January 30, 2018, brings up some excellent points.  NDAs cannot lawfully prohibit employees from officially reporting illegal conduct.  Title VII of the Civil Rights Act invalidates agreements that prohibit employees from filing charges with or assisting the Equal Employment Opportunity Commission in its investigation of any charges.  This means that Joe Exotic’s uses of million-dollar NDAs to prevent people from complaining about having to watch innocent animals get murdered, eat garbage, not get paid a living wage, or help him plot to kill Carole Baskin were illegal.

In much of the same vein, a number of people who do not want to wear masks or comply with restrictions meant to stop the spread of COVID-19 have been posting signs that indicate that because of HIPAA and the Americans With Disabilities Act (ADA), they do not have to disclose their medical conditions, and that they cannot be stopped from not wearing masks.

Some of the documents, especially the one posted by James Marter, a Congressional candidate from Illinois, threaten organizations with up to $150,000 ADA fines for non-compliance.  HIPAA and the associated HITECH Act are known for their maximum $1,500,000 penalties and the corresponding press releases.  These are designed to threaten business owners, already reeling from significant financial losses, into accommodating entitled people who do not want to follow the rules.

ADA lawsuits are considered legalized extortion of small businesses.  The most glaring example is that of Paul Hansmeier, a now-disbarred attorney serving a federal prison sentence for his actions as part of Prenda Law, an extortion/entrapment scheme.  After the income stream for extorting people using the court system for downloading adult videos he and his partners placed on the Internet dried up, he started a nonprofit called the Disability Support Alliance.  He and his wife began suing businesses for ADA compliance issues.  Instead of getting people to settle for fear of exposure and humiliation for downloading pornographic videos, they would settle for fear of receiving larger ADA fines and/or reputational damage for not accommodating disabled customers.

According to Smith Amundsen’s Labor & Employment Law Update, on the JDSupra blog in their May 11, 2020 update, the ADA allows restrictions when an individual would pose a direct threat to the health and safety of others.  COVID-19 meets that standard based on the guidance from the CDC and public health authorities.  This means that alternative methods of service can be used to meet the customer’s needs.

HIPAA only applies to Covered Entities and Business Associates, according to the US Department of Health and Human Services.  This means providers, health plans, clearinghouses, and the business entities that store or process Protected Health Information on behalf of covered entities.  This does not apply to your local supermarket or store.  The threats of HIPAA violations are empty.  The organizations that have received the massive HIPAA fines documented on the HHS website are there because they are Covered Entities or Business Associates that did not follow the guidelines of the Security Rule and/or Privacy Rule in handling patient information.  The threat of using HIPAA against a supermarket or store is empty.

The mask avoiders and Joe Exotic are very similar.  Both use willful ignorance of the rules and threats of penalties that look threatening based on dissimilar cases to scare people into compliance.  This is very similar to the work of sovereign citizens, who use convoluted interpretations of the law to attempt to avoid penalties or consequences.  For them, the media is full of cases where their attempts backfired spectacularly and landed them with prison terms right alongside Paul Hansmeier.  With the current COVID-19 pandemic, this means that there are numerous stories of people who have been refused service because of their refusal to use masks.  There are also numerous uncorroborated social media accounts of people successfully intimidating retail workers.

What Joe Exotic and the mask avoiders are doing was and is wrong.  They both used threats and intimidation with no legal backing to get their way with no consideration for others.  Tiger King glorified a gun-toting self-centered bully who made his own employees eat rotten meat and killed animals while making baseless legal threats to prevent anyone from speaking up.  Joe Exotic was obsessed with getting rid of his biggest critic who wanted to save animals, to the point of trying to have her killed.  The mask avoiders are obsessed with having their own way and preserving their perceived entitlement.  Retail employees have been attacked, and in some cases shot, by people who don’t want to wear masks.

Wearing a mask shows that you respect your fellow people by considering their health and safety.  The avoiders are going to come up with any plausible-sounding excuse not to and scream it out.  Just because you have First Amendment rights doesn’t empower you to lie about HIPAA and ADA to intimidate others to get your way because someone posted something on Facebook and said it worked.

People who want their own way and have no consideration for others are always going to construct a version of reality that benefits and is true to them.  It does not mean that it is, no matter how much they scream about what they found on social media.  Their “research” is there to support their view.  That doesn’t mean we have to support or be intimidated by it.  We can refuse them service.  We can have them removed from properties.  We can even tell them to call the ADA or HHS hotlines to report.  Showing consideration to others doesn’t mean deferring to entitled bullies.  It can mean standing up to them too, like Carole Baskin does.  Don’t give them the power or empower them to continue.  Treat them like the spoiled children they are and don’t reward them.  Take their toys away and send them to their rooms to sulk.  Don’t argue or debate them.  It will be used to make you look bad.

The more we let people misinterpret the ADA and HIPAA, or give excuses why they have to be special, the harder it is for us to do our jobs in protecting our patients.  We don’t need people spreading lies and fear about HIPAA.  This has effects on patients, who can become reluctant and scared to the point of not seeking treatment out of fear.  This also has effects on medical staff, who already have to deal with enough misinformation spread on social media, and who now cannot shop or travel safely due to the ignorance of others.  This affects everyone else, as there is a higher continued risk due to people not wanting to protect themselves.  We need to act to show respect to and protect others by refusing to play into the manipulations of those who want to act like spoiled children or Joe Exotic and protect their perceived entitlements.  We are all in this together.