Second Suit Targets Privacy Rules

The South Carolina Medical Association is not the only medical organization turning to the courts to halt the implementation of the HIPAA regulations on medical-record privacy (see story on page 2). On August 30 the Association of American Physicians and Surgeons (AAPS) filed suit against HHS in U.S. District Court in Houston. Based on different grounds than the SCMA suit, the AAPS claims that the medical-privacy regulations are illegal because they violate the First, Fourth, and Tenth amendments of the U.S. Constitution, as well as the law known as the Paperwork Reduction Act.

The organization alleges that the rules violate the First Amendment by interfering with the rights of physicians and patients to speak confidentially to one another about treatment, the Fourth Amendment by requiring physicians “to aid and abet searches of patient medical records” without a warrant to do so, and the Tenth Amendment by “disrupt[ing] traditional state law governing. . .confidential, intrastate activity.” The suit contends that the regulations violate the Paperwork Reduction Act by placing a mandatory, unfair regulatory burden on small medical practices without having examined “more cost-effective alternatives.”

The AAPS objects primarily to the intrusive nature of the regulations and their potential for breaching patient confidentiality. Its public affairs counsel, Kathryn Serkes, said at a Washington, D.C., news conference announcing the suit, “When it comes to government prying, these rules obliterate any remote notion of patients’ rights. [Under the HIPAA rules] doctors are required to disclose all patients’ records to thousands of federal bureaucrats—with or without consent. That includes handwritten notes and psychiatric records. . . . While some of the rule’s specifics could be ironed out down the road, no amount of fine-tuning can fix a flawed approach. Only a fresh start will head off irreparable damage to patients and their trust in the system.”