Board Report and Appeal

                                  APRIL 2004 

SAVE MEDICAL PRIVACY!

by Patricia Dowds, PhD, Vice-President, and David Byrom, PhD, President

The lawsuit to restore patient’s rights in privacy has been kicked upstairs to the Federal Appeal level. This means that the panel of judges - the 3rd District Court of Appeals will hear the entire case as if the case is being heard for the very first time. PLUS, they will now look at all the submitted evidence. It seems that personal rights have to be maintained by the many and by our dollars! The Appeal must have $85,000 by May 20, 2004—in a combination of firm commitments and/or paid donations on hand. The Coalition has set its goal as one of the co-plaintiff organizations to raise and supply at least $20,000 in firm pledges and/or paid donations.

The following is an updated (April 25, 2004) report on the status of the litigation in Citizens for Health v. Thompson (Civil No. 03-2267) pending in Federal District Court for the Eastern District of Pennsylvania. The original complaint was filed on April 10, 2003, four days before the compliance date for the Amended Health Information Privacy Rule, and an amended complaint was filed on May 5, 2003, 21 days after the compliance date.

Currently, the case has 17 plaintiffs—organizations and individuals—representing nearly 750,000 health care consumers and practitioners. The suit seeks to enjoin and declare invalid the provision in the Amended Health Information Privacy Rule that eliminated the right of individuals to decide whether their personal health information would be used or disclosed (the "right of consent").

On April 2, 2004, U.S. District Court Judge Mary McLaughlin issued a decision and order in our case in Citizens for Health v. Thompson. She has ruled in our favor on standing but, unfortunately, against us on the other issues.The decision is poorly reasoned and essentially repeats and endorses the government’s arguments without substantive rationale. She denies our constitutional claims, for example principally for the reason that: "The Amended Rule is wholly permissive with respect to whether a covered entity should seek consent from a patient before using his or her information for routine purposes."

This was precisely our argument in the suit. The patient’s ability to exercise his or her right to medical privacy has been transferred by the federal government to covered entities. This is a disappointment, on this round—as you have been seeing in related cases, Federal District and Appeals Courts, and the Supreme Court, do rule on the side of the people. And, we have been expecting a struggle. Solid protections, rights, and reform merit only our best, and over the long haul.

WE MUST GET THE APPEALS PROCESS UNDERWAY NOW!

The appeals process takes funding—fundraising efforts are necessary by all who care and who are able to help. Please consider all the ways we can make a major push for Donations—money is definitely needed- the legal, amicus briefs and media work for the Appeals process is still ongoing, and is required for those highly specialized and competent professionals who are doing the work.

We volunteer public interest activists are the resources for fundraising for these costs. The National Coalition volunteered to initiate this further appeal for funds, and to be the receiving organization for donations—please:

•  When donating as business expenses: to NCMHPC - P.O. Box 438, Commack, New York 11725, or on our website to be payable to NCMHPC with memo "Privacy Legal Defense Fund."

•  When donating as charitable contributions to the non-profit, 501(c)3 - Please make checks payable to: Foundation for the Coalition of Mental Health Professionals & Consumers, with the memo notation of "Citizens Lawsuit" and use this mailing address: Foundation, c/o NCMHPC, P.O. Box 438, Commack, New York 11725.

It is essential that we fund all the superb legal research, case development and representation by the most expert legal teams, that we fund all the expenses for the excellent, effective media and publicity/educational, and amicus curiae brief work, which has been –and will continue to be - done with the teamwork of the lawsuit paid professionals and the co-plaintiff representatives (us volunteers with very strained treasuries and very frugal budgets already!). You are all familiar with the great work on all these components done so far—the legal and media accomplishments are strikingly public and generating more serious attention now. Consciousnesses are being raised about the losses of our vital rights to health care privacy.

We are committed to seeing this struggle through to the U.S. Supreme Court. We must be prepared with funding for the next phase—the appeals process - in the 3rd District Court of Appeals in Philadelphia - where our Rights began and where our Rights can end!  Solid protections, rights, and reform do demand and do merit only our very best, and over the long haul struggle.  

Thank you for your help. Together we are already making a difference.

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