Lawsuit Status Memo -
Government admits HIPAA
strips medical privacy!

C L I C K   T O   C O N T R I B U T E   N O W

From: Jim Pyles

Sent: Wednesday, December 17, 2003 4:29 PM

Subject: Comments on the Government's position in Citizens for Health v. Thompson

Dear all, 

This is to follow up on my prior brief summary of the oral argument in Citizens for Health v. Thompson that I presented last Wednesday, December 10, 2003 before Judge Mary McLaughlin of the U.S. District Court for the Eastern District of Pennsylvania. My impression, which is shared by those in attendance including several of the Plaintiffs and two attorneys from the law firm that served as local counsel, was that Judge McLaughlin believes that the case presents serious legal issues which she plans to address carefully. (She expressly stated on two occasions that the issues presented were quite serious.)  She did not, however, indicate when she might issue a decision.

During the four months of briefing and three and a half hours of oral argument, both the issues in the case and the government's position on them became clearer in new and disturbing ways.  (I do not believe that it is wise or appropriate to comment on the merits of the arguments in the case, particularly in a memorandum intended for public dissemination, until the court has ruled.   … The positions taken by the government during the course of the litigation should cause increased concern among all mental health practitioners.

First, the government conceded or admitted the premises for our central argument, that the right to health privacy had been eliminated in a 2-step approach.  (a) HHS eliminated the ability for individuals to protect their medical privacy by eliminating their right of consent and ability to have any control over the use and disclosure of their health information for routine purposes.  (b) HHS conferred express federal authority on covered entities to use and disclose the health information of individuals without notice or consent and against their will when it gave  covered entities "regulatory permission" to make such routine uses and disclosures.  In response, HHS conceded that it had "always" been its intent to permit uses and disclosures of all health information for routine purposes to occur "with little or no restriction" and that there should be a "free flow" of health information for these purposes. Thus, HHS intends to eliminate the individual's ability to have any control over all health information, including mental health information (other than perhaps psychotherapy notes), that is to be used and disclosed for treatment, payment and health care operations. Further, HHS admitted that "regulatory permission" was a new express grant of federal authority to covered entities to use and disclose an individual's personal health information regardless of their wishes and against their will.

Second, HHS acquiesced in our allegation that the Amended Rule permits and authorizes the use and disclosure of the very type of psychotherapist-patient communications that the Supreme Court found in Jaffee v. Redmond were protected from disclosure by the therapist-patient privilege.  The preamble to the Original Privacy Rule had stated that consent under the Rule would not waive any privilege under federal, state or local law. 65 Fed. Reg. at 82,513.  There was a concern as to whether privileges would remain intact after consent was eliminated and HHS gave "regulatory permission" for the use and disclosure of all health information for routine purposes.  It appears that HHS' position is that the privilege does not survive. In briefing, the government dismissed the Jaffee v. Redmond case as only establishing a privilege in the judicial setting and only in cases not involving the federal government. Thus, it appears that the therapist-patient privilege is in serious jeopardy under the Amended Rule.

Third, we raised the concern, which HHS never disputed, that the Amended Privacy Rule would permit and authorize the use and disclosure of personal health information even for services where the patient paid out-of-pocket. 

Forth, we noted, and HHS confirmed, that the Amended Rule permits the use and disclosure of personal health information that was created or placed in the medical record long before the compliance date of the Amended Rule and even before the enactment of HIPAA, even if the information were placed in the medical record with the understanding and expectation that it would not be used or disclosed without the patient's consent.  

We also showed, and the government did not dispute, that, since April 14, 2003, providers are eliminating consent processes that they have used in the past and are adopting the privacy practices described in the Amended Rule that provide for the use and disclosure of health information without notice or permission.   Undisputed evidence shows that this is occurring in even in states that have laws that require consent and despite the fact that applicable standards of medical ethics provide for consent. 

Undisputed evidence in the case also shows that all efforts to obtain a consent process by means of filing requests for restrictions have been summarily denied or simply ignored.  Further, the evidence shows that some providers have adopted policies of never granting requests for restriction.

Based on the evidence in the case which the government has accepted as true, it is difficult to see how any health information privacy in routine circumstances has survived after April 14, 2003. 

Jim Pyles 

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