National Coalition of Mental Health Professionals and Consumers, Inc.

an educational foundation and advocacy organization serving mental health consumers and professionals

Note from Jim Pyles about the appeals decision in our lawsuit

I have just been informed this morning that the Third Circuit Court of Appeals has affirmed the District Court's decision in the Citizens for Health case. I  have not have a chance to study the decision carefully but it appears to hold that (a) the Plaintiffs have standing because they have suffered injury in fact that is fairly traceable to the Amended Rule, and that the injury would be redressed by judgment for the Plaintiffs, (b) the case is "justiciable", that is, the issue is concrete and appropriate for judicial resolution, and (c) there is no constitutional violation because the Amended Rule does not authorize action (disclosure without consent) that was not permissible as a matter of federal law prior to the rule. (The court then quickly dismisses the statutory and APA claims with little analysis.)  So we overcame the additional hurdles raised by the government and the Court (standing and justiciability) but did not prevail on the coercive nature of the rule point. The Court found that the District Court's analysis here was not adequate and went further to find that the defect in the constitutional claim was that the rule did compel covered entities to do something that they could not have done prior to the issuance of the Rule.  This would seems to ignore the Constitutionally protected right to health information privacy recognized in Whalen v. Roe, Ferguson v. City of Charleston and a string of Circuit Court cases. The holding in this cases appears to be even more narrow than that in the District Court case. The bottom line is that the Court of Appeals appears to have ducked the constitutional issue on even narrower grounds.

I will provide a more thorough analysis once I have had a chance to review the decision more carefully. I suggest that we hold a telephone conference of the Plaintiffs and amici on Friday, November 4 at 12:00 noon to discuss the holding and decide on a further course of action. We have 90 days to file a petition for certiorari requesting Supreme Court review.

Jim