HIPAA Privacy-Rule Opponents Get Their Day in Court

Psychiatrists and other medical privacy advocates are waiting to hear whether a federal judge will rule in their favor in their suit against the U.S. Department of Health and Human Services (HHS) over privacy rules in the Health Insurance Portability and Accountability Act (HIPAA).

The psychiatrists and other plaintiffs contend that HIPAA’s rules regarding the release of patients’ medical records constitute an egregious breach of patients’ constitutional privacy rights.

The federal government insists that the rules in fact go a long way toward controlling who can access electronic medical records and under what circumstances.

The suit focuses on a section of the HIPAA law that HHS amended late in the regulatory process. The plaintiffs maintain that this change negated a requirement in the original notice of proposed rule making that patients had to consent to the release of their medical records in most instances if the release was to extend beyond the doctor’s office or hospital in which they were being treated.

The plaintiffs filed suit in U.S. District Court for the Eastern District of Pennsylvania, which is located in Philadelphia. They chose that location, attorney Jim Pyles said in an interview with Psychiatric News soon after the suit was filed, because “there are fundamental constitutional issues at stake, and we thought they either ought to be preserved or come to end where they began.”

Pyles is the counsel for the American Psychoanalytic Association, part of the coalition of organizations that brought the suit, which is known as Citizens for Health v. Tommy Thompson (Psychiatric News, May 16, 2003).

The coalition of plaintiffs consists of 10 state and national associations and nine individuals.

Texas psychiatrist Deborah Peel, M.D., heads one of those coalition members, Appeal for Patient Privacy, and has been a vocal advocate on behalf of the suit and of patients’ rights to control the fate of their medical records. In a December 10 press release coinciding with a hearing on the plaintiffs’ request for the judge to grant summary judgment in their favor, Peel stated that the case addresses the foundation on which health care is built—that is, “whether patients can get back their right to control who sees and uses the most personal information that exists: medical records about their minds and bodies.”

As a result of the HIPAA rules, she asserted, patients have been forced to cede control of their medical records to “employers, private corporations, and government agencies.”

The plaintiffs’ suit argues that not only do the weak confidentiality protections constitute a violation of individuals’ constitutional privacy rights guaranteed in the Fifth Amendment, but that President George W. Bush and HHS Secretary Tommy Thompson “misled the public about the extent to which their medical records could be disclosed—even without the patient’s consent.”

They also allege that the final HIPAA rules violate Congress’s legislative intent in passing the law, which was to enhance protections for the content of electronic medical records. The plaintiffs charge as well that the amended HIPAA rule violates federal rulemaking requirements by failing “to consider relevant factors and evidence when HHS reversed its position on the right to medical privacy and consent.”

The December federal court hearing marked the first time the court heard oral arguments on both sides’ motions for summary judgment. A decision by the judge is likely early this year, since the case is on an expedited schedule. The government wants summary judgment based on its contention that the plaintiffs do not have standing to file this suit, since the amended rule has not caused them any direct harm. ▪