The American Psychoanalytic Association just completed its most successful year in its efforts to preserve the right to health information privacy, essential for effective psychotherapy and psychoanalytic treatment. Unfortunately, serious threats remain, and the next eight months may determine whether the right to health information privacy survives.
At the Winter 2008 Meeting in New York, President Lynne Moritz inaugurated Campaign 2008! with a symposium by honorary member Drew Westen, author of The Political Brain. At the conclusion of his talk, Moritz brought the importance of being politically active home by awarding a Special Presidential Commendation to Congressman Ed Markey (D-MA). [See article on page 5.] Congressman Markey has worked closely with APsaA to preserve privacy protections in the context of health information technology legislation in Congress. Markey has fought to protect the patient's right to health information privacy for most of his 32 years in Congress. The Congressman noted in his acceptance remarks that the American Psychoanalytic Association has become the “number one” organization of health-care professionals in the United States fighting for health information privacy. The Congressman pledged to work with APsaA to introduce “comprehensive privacy legislation” to attach to health information technology legislation in this session of Congress.
Over the past year, intensive efforts were made by Senators Ted Kennedy (D-MA), Hillary Clinton (D-NY), Michael Enzi (R-WY), and Orrin Hatch (R-UT) to push through a health information technology (health IT) bill, the Wired for Health Care Quality Act (S. 1693), lacking health information privacy protections. APsaA was able to work closely with numerous members of the Senate to help ensure that the bill did not pass without basic protections for the patient's right to health information privacy. Senators Patrick Leahy (D-VT) and Olympia Snowe (R-ME) played the most prominent roles in ensuring that the bill did not pass without privacy protections. Many APsaA members contacted their senators, particularly Senator Chuck Schumer (D-NY), to inform them of the importance of including privacy protections in health IT legislation. These efforts by APsaA members proved to be of critical importance.
James C. Pyles, J.D., is a founding partner of Powers, Pyles, Sutter & Verville, a health-care law firm in Washington, D.C. He is legislative counsel for APsaA and a leading expert in privacy law.
APsaA also worked closely with the members of the Mental Health Liaison Group (a Washington based coalition), which includes representatives of the American Psychiatric Association, the American Psychological Association, and the National Association of Social Workers. The Mental Health Liaison Group sent a letter to the Senate majority and minority leaders signed by 28 mental health consumer and professional organizations. The letter stated that any health IT legislation passed by the Senate should “at a minimum” include the following four privacy protections:
acknowledgement that patients have a right to health information privacy;
a right of consent for the disclosure of identifiable health information in routine situations;
notice to the patients when their right to health information privacy is breached; and
strong enforcement measures for violations of the patient's right to privacy.
All of these protections are contained in privacy principles approved by APsaA. A similar letter was sent by Patient Privacy Rights (a watchdog group founded by APsaA member Deborah Peel) which was signed by more than 45 consumer associations spanning the political spectrum.
Senate sponsors of the Wired for Health Care Quality Act have stated that they will try again during the first eight months of 2008 to get the bill passed without privacy protections. Fortunately, members of the Senate who have stood with APsaA and other mental health organizations in protecting the right to privacy have stated that they will continue to insist on those protections.
There was also significant success on the litigation front in 2007. The Maryland Court of Special Appeals issued its decision in Maryland State Board of Physicians v. Eist, holding that a state licensing board could not override the constitutionally protected right to health information privacy of psychiatric patients without
first showing a “compelling state interest.” The court further held that a psychiatrist could assert his patients' constitutional right to privacy and that the burden was then on the state to show in court why that right should be overridden. The constitutional analysis endorsed by the court was entirely consistent with the arguments made by APsaA and 27 other organizations that signed onto an amicus curiae (friend of the court) brief. [See “Politics and Policy,” page 10.]
Unfortunately, the Maryland Court of Appeals (the highest court in the state) granted the state's request to review the decision. So far, more than 40 mental health and medical associations have joined APsaA in agreeing to sign on to an amicus curiae brief to be submitted to the Maryland Court of Appeals in March of 2008. The Court of Appeals is likely to hear arguments in the case in April. This case seems sure to become a landmark case in the law defining the privacy rights of patients in inquiries by governmental agencies.
The first eight months of 2008 could determine whether the health information privacy essential for quality mental health care will be preserved or eroded. Members of Congress are beginning to understand that health IT can be a tool for great good but also poses an imminent threat to the privacy necessary for quality health care. They are also beginning to appreciate that no health IT system is secure. Health IT makes it possible, for the first time in the history of medicine, to steal, disclose, or corrupt health records from anywhere in the world without having physical access to those records. Unlike paper records, health information privacy that is breached electronically can never be restored.
Congressional leaders from both parties have announced that they will try to pass health IT legislation in 2008. The Maryland Court of Appeals could issue a pivotal decision that could be reviewed by the U.S. Supreme Court. APsaA members can once again take the lead in preserving the patient's right to health information privacy by contacting their congressional representatives. This is the year to do it. We may not get another chance to preserve access to effective psychotherapy and psychoanalysis. The stakes are high but the opportunity has never been better.