It is no use saying, “We are doing our best.” You have got to succeed in doing what is necessary.
Through its committees on confidentiality and government relations, APsaA has been working on a number of key legal cases. Here are some examples.
A group of high-powered law firms brought this suit against nine managed care companies under the RICO (Racketeer Influence and Corrupt Organizations) Act. The American Psychoanalytic Association, Massachusetts Psychiatric Society, American Psychiatric Association, and American Association of Practicing Psychiatrists have all signed on as organizational plaintiffs, as have over a dozen state medical societies. In the suit, the “class” of American physicians charge the managed care companies with nothing short of racketeering. The legal action seeks to recoup financial losses and, more importantly, to change the way these companies are allowed to do business.
The attorneys are working on a contingency basis. The attorneys need individual psychiatrists to act as plaintiffs. At this point the suit includes physicians only, though if it is successful all mental health practitioners will benefit.
Amendments buried deep within thousands of pages of HIPAA regulations will mark the end of more than 2,400 years of doctor/therapist–patient confidentiality. The Bush amendments to the HIPAA regulations stipulate that patient consent is no longer required prior to release of health information to the government, insurance companies, and related businesses. “Related businesses” have been so broadly defined that they number in the hundreds of thousands.
The regulations force health-care professionals into the position of acting as agents of the insurance industry. If left unchallenged, they will allow unfettered access to every citizen's entire health record. Access will be retroactive forthe entire life of the individual. Out-of-pocket payment will offer no protection. The HIPAA regulations took effect April 14 and must not go unchallenged.
There appear to be solid legal arguments on both Constitutional and procedural grounds. APsaA has filed a suit along with a coalition of interested groups and individuals against the Department of Health and Human Services. Our Association is also centrally involved in bipartisan legislative efforts to restore consent and correct other privacy incursions under the HIPAA amendments.
Along with allied organizations, we are supporting through an amicus brief Harold Eist's principled objection to a Maryland BPQA (Board of Physicians Quality Assurance) demand that he forward confidential patient records, against the express instructions of the patient and the patient's attorneys. In the course of treating the wife and two children of a divorcing couple, Eist upheld both medical ethics and the law in objecting to the release of confidential records. A false complaint was made by a vengeful husband and father, a non-patient attempting to gain an advantage in a custody proceeding. Both the children's mother (who does have this right and privilege) and the court-appointed attorney ad litem for the children did not want the records released, and so informed the board. The BPQA insisted on viewing the records anyway on behalf of the children's father Again Eist objected. The board brought charges against Eist. The case was decided resoundingly in his favor by an administrative law judge, who wrote that Eist upheld the highest principles of medical ethics. The judge chastised the board for violating its own procedures.
The board sidestepped this legal judgment, appealed the decision internally, and reversed it. Eist was fined $5,000 and sanctioned. He responded by appealing the decision of the board, bringing the proceeding back into a court of law. The case continues in appeals. The principle at stake is crucial to each of our practices: the right of consent must not be overridden by state agencies or others without legal standing.
Robert Pyles, M.D., is chair of the Committee on Government Relations and Insurance, and a former president of APsaA. He would be very pleased to discuss any of these cases further, preferably by phone at 781 -235-6211 or by email at . This is his regular column for TAP on politics and public policy.
Daniel Shrager is a psychiatrist in practice in Pittsburgh. He is on the panel of providers of Magellan, a large managed care company. Magellan demanded to see entire patient records, citing that Shrager was a “high volume provider” and that this triggered a “quality review.” Shrager refused to turn over records in the absence of patient authorization and advised Magellan that he would comply if the company supplied him with a signed consent. Magellan responded by removing him from its panel and informing his patients of its action. Shrager obtained an injunction preventing his removal from the panel.
The fundamental principle being heard in court is whether an insurance company can use a blanket consent signed at the time of enrollment to obtain unlimited access to patient records without specific authorization. Both Jim and Bob Pyles testified extensively as legal and clinical experts in this case. The case resulted in a resounding and precedent-setting victory for Schrager and the mental health profession.
In this case a young woman accused a man of raping her; she then received counseling at a rape counseling center. His lawyers attempted to subpoena her records from the mental health center, which refused. The judge, contrary to legal precedent, ordered the records to be turned over. The center has appealed directly to the Massachusetts Supreme Court, bypassing the Court of Appeals. The attorney in the case, Wendy Murphy, is a well-known women's rights activist and is in contact with Jim Pyles concerning whether an amicus brief might be helpful.