In 1932 a remarkable correspondence took place between Albert Einstein and Sigmund Freud entitled “Why War?” At the heart of the dialogue is the mutual understanding that individual freedom is in perpetual conflict with the often destructive and exploitative wishes of those in power.
With that in mind, the Committee on Government Relations would like to update you on the HIPAA (Health Insurance Portability and Accountability Act) suit, in which our Association is a participant. As you may recall, this is a suit against the Department of Health and Human Services of the current administration and seeks to restore the right of patient consent regarding the release of health records, which the Amended HIPAA Rule removed.
Both the Third Circuit Federal Court and the Appeals Court acknowledged that the privacy of the plaintiffs had been damaged by the Amended Rule and that the plaintiffs had standing to bring the suit. However, both courts found a way to rule against us on different, and narrow, legal grounds, while failing to address the major constitutional questions we raised. In the latest development, our petition for all of the Third Circuit judges to review the decision was denied. The next step is a petition for certiorari, which would bring the case before the Supreme Court.
The case continues to enjoy widespread support among professional organizations and individuals. Among the participants in the case are such groups as the National Association of Social Workers (NASW) and the Harvard Program for Psychiatry and the Law. Scores of attorneys have reviewed and contributed to the case, including such notables as Arthur Miller of Harvard Law School.
The latest positive news is that the entire cost of the petition for certiorari has been contributed by a member of the MacArthur family, of MacArthur Foundation fame, who has been impressed by our efforts on Capitol Hill to protect patient privacy.
So, why would we bring such a suit, which was obviously an uphill battle from the beginning, and persist in it despite these losses?
The current and imminent legislation pending in the House on electronic medical records specifically aims to preempt stronger state laws, and establish HIPAA as the national “ceiling,” not the “floor” for privacy.
The answer is that what has happened subsequent to the establishment of the Amended HIPAA Rule is exactly what we thought would happen. The rule itself did away with patient consent, but left some meager safeguards in place. These were: (1) that HIPAA constituted a “floor” for privacy, and stronger state laws still prevailed; (2) “psychotherapy notes” required specific written authorization by the patient (our Association was largely responsible for achieving this protection); (3) the proverbial “country doctor” exclusion existed for paper-based practices; and (4) Medicare exempted small practices.
We anticipated that as soon as the first major step was in place, the loss of patient consent, these other safeguards would come under attack, and would begin to melt away like the winter snow. This is exactly what is now happening.
The current and imminent legislation pending in the House on electronic medical records specifically aims to preempt stronger state laws, and establish HIPAA as the national “ceiling,” not the “floor” for privacy. This legislation, if passed unmodified, would gut all the protections listed above, and might very well invalidate the Jaffee-Redmond privilege.
Combined with “Pay for Performance” (government and industry established treatment protocols which would determine reimbursement), the Orwellian vision of a totally controlled health network (first introduced in the Clinton Health Plan) will have been achieved.
This is the reason our Association established a three-pronged coordinated strategy, consisting of legislative efforts, legal action, and media interaction, to deal with these dire threats to our patients and our profession.
Our Association has become well known and respected on Capitol Hill as a leader in this fight. We are regularly consulted by major media sources, members of Congress, and attorneys involved in related cases (such as the Ashcroft abortion records cases).
Because of the magnitude of the issues, every chance is worth pursuing. Courts are unpredictable, and one never knows when judges will find the courage to make a cause their own. As one famous coach remarked, “You'll miss 100 percent of the shots you don't take.”
We have achieved, and continue to achieve many successes, such as the Shrager, Eist, and RICO cases, in the protection of individual freedom. The issue at stake in the HIPAA suit is nothing less.
Robert Pyles, M.D., is chair of the Committee on Government Relations and Insurance and a former president of APsaA.