[Med-privacy] The Quest to Protect Medical Privacy (the author is an attorney & journalist)

[DPeelMD@aol.com]

--part1_b4.1fe200a5.2c45943e_boundary
Content-Type: text/plain; charset="US-ASCII"
Content-Transfer-Encoding: 7bit

The Quest to Protect Medical Privacy
http://www.psychiatrictimes.com/p030701a.html

by Michael Jonathan Grinfeld 
Psychiatric Times  
July 2003  Vol. XX  Issue 7

All the U.S. Congress wanted to do was promote "administrative 
simplification" as      computer technology and electronic data systems promised to usher in 
a new age of more efficient, quality-controlled and cost-effective medical 
care. What it did instead was launch a seven-year battle over how to protect the 
privacy of medical records and the confidentiality accorded to patients 
seeking mental health and other treatments.

April's compliance deadline requiring implementation of standards for the 
protection of individually identifiable health information hasn't brought any 
peace. Instead, federal and state legislatures, the courts, and advocacy groups 
are bracing for the next round of assaults on the rules promulgated under the 
Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the 
process will likely get even more contentious.

Just days before the compliance deadline in April, Citizens for Health, a 
Washington, D.C.-based consumer group, and a coalition of advocacy groups, 
professional associations and individuals filed a federal lawsuit against the U.S. 
Department of Health and Human Services (HHS) in an effort to halt 
implementation of the HIPAA privacy regulations. The suit charges that the new rules 
"eliminate the right to privacy of individuals for their personal medical records 
and jeopardizes the privacy of past and future communications between patients 
and their physicians."

The litigation challenges a last-minute amendment that allegedly granted 
blanket regulatory permission to thousands of organizations and individuals--some 
claim as many as 600,000--to use and disclose health care records for routine 
purposes. By eliminating the "right of consent," according to the first 
amended complaint, the HIPAA rules violated constitutional protections against 
disclosure of patients' confidential medical information.

Joining the suit are a number of psychiatric organizations, including the 
American Psychoanalytic Association, the American Association of Practicing 
Psychiatrists, the American Mental Health Alliance-USA, the National Coalition of 
Mental Health Professionals; a psychiatrist and two psychologists also joined 
the suit. The failure of the American Psychiatric Association to join the 
litigation at the time of filing, however, renewed an internal debate over how best 
to confront the erosion of confidentiality and the resulting threat that 
poses to patients' health.

On paper at least, the APA's concerns mirror those of the organizations that 
joined the coalition suing HHS. In a position statement released in May, the 
APA declared that the prior consent requirement should be restored and 
marketing loopholes should be closed. Critics, however, claim that the APA stalls when 
it comes to backing up its statements with action. They assert that the APA 
misuses the confidentiality provisions of the attorney-client privilege to 
stanch public debate and silence membership views.

"There is a tremendous amount of anxiety and fear at the APA, and I think 
it's paralyzing to the organization," Robert L. Pyles, M.D., a Massachusetts 
psychiatrist who was a member of its joint commission on government relations 
until last year, told Psychiatric Times. He is currently the chair of the 
government relations committee for the American Psychoanalytic Association.

"The positions the APA takes are good," he said. All of that is absolutely 
fine, but the place where they really seem to get timid is when it comes to 
assertive litigation."

Efforts to raise privacy and confidentiality issues before the membership, 
Pyles said, are often stymied when APA officials and committee chairs refuse to 
allow public discussions of privacy and confidentiality issues, claiming that 
discussing a litigation option in the open will waive the organization's 
attorney-client privilege and subject the membership to discovery proceedings.

"They have put this cloak of secrecy over everything," Pyles said, adding 
that none of the other psychiatric associations take similar stances. "So that 
meant nothing could be discussed openly, and everything had to go back into 
committee. The committees then go into executive session and the net result is you 
can never find out who did what or what the decision was about ... The 
membership is really cut out from any kind of participation in the process."

Janis G. Chester, M.D., a Delaware psychiatrist who recently chaired the 
APA's government relations committee, attributes her failure to receive a routine 
reappointment to that position to her outspoken advocacy for a more assertive 
APA role in pursuing litigation and legislative fixes that address psychiatric 
practice issues. She said that the APA has missed opportunities to take a 
leadership role in a number of cases, including the HIPAA litigation and the 
Racketeer Influenced and Corrupt Organization (RICO) case filed against managed 
care companies in Florida, which recently resulted in a groundbreaking 
settlement with Aetna Inc.

"The APA has the right attitude and philosophy toward privacy, but they're 
very slow to act, and if they act at all, to do anything about it beyond writing 
articles and testifying before the legislature," Chester told PT. "They 
should be taking a more assertive role, and they should be taking a more active 
role. ... The committee on advocacy and litigation funding should be scouring for 
such cases and asking if they can join."

Jeffrey S. Janofsky, M.D., an associate professor of psychiatry at Johns 
Hopkins University School of Medicine who currently chairs that committee, 
declined to comment on the evaluation of the HIPAA litigation that is currently 
underway, other than to say the committee would complete its review quickly. 
Janofsky told PT, "Litigation matters at the APA, like at any major corporation, are 
covered by attorney-client privilege, and if I talk to you about it, we'd 
open up the doors to discovery in the lawsuit in the future."

He also bristled at claims that the organization did not view medical privacy 
as a priority issue. "Privacy is a major issue in American psychiatry and 
always has been, and the APA has always been at the forefront of this issue 
through multiple people, myself included," Janofsky said. "We've testified before 
Congress and at various administrative agencies. This has been a major effort 
at the APA. The APA's stance on confidentiality has been much stronger than any 
other medical organization that I know of and it will continue to be."

While some may be impatient with the process, Paul S. Appelbaum, M.D., the 
immediate past president of the APA and chair of the department of psychiatry at 
the University of Massachusetts School of Medicine in Worcester, Mass., told 
PT that there are reasons for the lengthy reviews. He declined to specifically 
comment on the HIPAA litigation, but he said that the threshold issue is 
whether litigation pursues an end that is in keeping with APA policy. Even if it 
does, consideration is then given to the likelihood of success, whether there 
are reasonable legal grounds that are worth pursuing, the potential costs and 
the availability of alternative mechanisms to achieve the same goals.

The delay is not without impact, however. In a high-profile case brought by 
the Maryland Board of Physician Quality Assurance against former APA president 
Harold I. Eist, M.D., the APA failed to timely join in an amicus brief filed 
by the Washington Psychiatric Society (Board of Physician Quality Assurance v 
Harold I. Eist, M.D.). The administrative law judge found that Eist did not 
obstruct an investigation when he refused to turn over patients' confidential 
medical records without their consent. The court also ruled that it could 
consider the arguments made in the amicus brief on Eist's behalf but rejected a 
supporting letter by Appelbaum as president of the APA, saying that it failed to 
meet the legal requirements. (For more information on Eist's case, please see 
"Confidentiality Under Fire" [p79] in the June issue of Psychiatric Times--Ed.)

Now that an appeal is underway, the APA has recently formally agreed to 
support Eist. "Certainly deference has to be given to the process," Eist told PT. 
"But I think they could find a way to speed it up."

In another privacy case, the APA is only now completing evaluation of a 
lawsuit brought by Pittsburgh psychiatrist Daniel S. Shrager, M.D., against 
Magellan Behavioral Health and others after the mental health carve-out terminated 
his provider agreement because he refused to turn over patients' records without 
their consent. He also recently won his case at the trial level, but only 
because he received financial support from the Maryland Psychiatric Association. 
His request for APA assistance has been outstanding for several years, but 
Shrager told PT that he had received no reply from the APA since December when he 
renewed his request for help with post-trial proceedings.

The friction within the APA ultimately boils down to a question of 
tactics--whether to be more or less aggressive and whether to use the courts or the 
legislatures to develop policy. The Stop Taking Our Health Privacy" (STOHP) Act of 
2003, introduced by Rep. Edward J. Markey (D-Mass.), for instance, is the 
latest legislative effort to restore the requirement that a patient provide prior 
consent before the release and use of confidential medical information.

For some, efforts to legislate confidentiality and privacy protections are a 
dead end, considering that after seven years, Congress has been unable to pass 
a bill enacting the HIPAA requirements. Deborah Peel, M.D., an Austin, 
Texas-based psychoanalyst who is now president of the Appeal for Privacy Foundation 
and former president of the Texas Society of Psychiatric Physicians, told PT, 
"The suit that the American Psychoanalytic Association has to restore the 
right to consent is the only possible thing right now that can restore every 
American's right to consent. There is no chance that the legislation in Congress is 
going to pass."

Peel added that state confidentiality laws that are more restrictive than the 
HIPAA rules are now under assault. In Texas, the legislature recently passed 
a bill that allows the Texas Commissioner of Health and Human Services to 
create rules consistent with those enacted under the HIPAA guidelines. At press 
time, it awaits the governor's signature.

Considering the threat to privacy, Peel said that the APA is too conservative 
in its approach.

"We all know that talking the talk is one thing, but that's different than 
walking the walk," she said. "There's a difference between talk and action, and 
the APA, as the wealthiest mental health organization in this nation, should 
use its resources because others do not have them."

Thus far, however, litigation has not worked. In April, the 4th Circuit U.S. 
Court of Appeals ruled against a group led by the South Carolina Medical 
Association, saying that Congress did not exceed its constitutional authority when 
it empowered HHS the rulemaking authority under HIPAA. In May, the 5th Circuit 
U.S. Court of Appeals upheld the dismissal of a suit brought by the 
Association of American Physicians & Surgeons, after it launched a similar challenge to 
the HIPAA rules. Nevertheless, Peel holds out greater hope for the current 
suit against the HHS, saying they've learned from the mistakes of the previous 
cases.

It will likely take years before the courts and Congress are done dealing 
with medical privacy issues. Meanwhile, whether mental health care advocacy 
groups will present a more united front is an open question.

At press time, an APA board member said a decision about whether to join the 
HIPAA litigation could be reached by October, or possibly sooner. 


--part1_b4.1fe200a5.2c45943e_boundary
Content-Type: text/html; charset="US-ASCII"
Content-Transfer-Encoding: quoted-printable

<HTML><FONT FACE=3Darial,helvetica><FONT  SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=
=3D"Arial" LANG=3D"0"><B>The Quest to Protect Medical Privacy<BR>
http://www.psychiatrictimes.com/p030701a.html</FONT><FONT  COLOR=3D"#000000"=
 style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=3D"A=
rial" LANG=3D"0"></B><BR>
<BR>
</FONT><FONT  COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3=
 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>by Michael Jonathan Grinf=
eld <BR>
Psychiatric Times&nbsp; <BR>
July 2003&nbsp; Vol. XX&nbsp; Issue 7</FONT><FONT  COLOR=3D"#000000" style=
=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=3D"Arial"=20=
LANG=3D"0"></B><BR>
<BR>
All the U.S. Congress wanted to do was promote "administrative simplificatio=
n" as&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; computer technology and electronic data=20=
systems promised to usher in a new age of more efficient, quality-controlled=
 and cost-effective medical care. What it did instead was launch a seven-yea=
r battle over how to protect the privacy of medical records and the confiden=
tiality accorded to patients seeking mental health and other treatments.<BR>
<BR>
April's compliance deadline requiring implementation of standards for the pr=
otection of individually identifiable health information hasn't brought any=20=
peace. Instead, federal and state legislatures, the courts, and advocacy gro=
ups are bracing for the next round of assaults on the rules promulgated unde=
r the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a=
nd the process will likely get even more contentious.<BR>
<BR>
Just days before the compliance deadline in April, Citizens for Health, a Wa=
shington, D.C.-based consumer group, and a coalition of advocacy groups, pro=
fessional associations and individuals filed a federal lawsuit against the U=
.S. Department of Health and Human Services (HHS) in an effort to halt imple=
mentation of the HIPAA privacy regulations. The suit charges that the new ru=
les "eliminate the right to privacy of individuals for their personal medica=
l records and jeopardizes the privacy of past and future communications betw=
een patients and their physicians."<BR>
<BR>
The litigation challenges a last-minute amendment that allegedly granted bla=
nket regulatory permission to thousands of organizations and individuals--so=
me claim as many as 600,000--to use and disclose health care records for rou=
tine purposes. By eliminating the "right of consent," according to the first=
 amended complaint, the HIPAA rules violated constitutional protections agai=
nst disclosure of patients' confidential medical information.<BR>
<BR>
Joining the suit are a number of psychiatric organizations, including the Am=
erican Psychoanalytic Association, the American Association of Practicing Ps=
ychiatrists, the American Mental Health Alliance-USA, the National Coalition=
 of Mental Health Professionals; a psychiatrist and two psychologists also j=
oined the suit. The failure of the American Psychiatric Association to join=20=
the litigation at the time of filing, however, renewed an internal debate ov=
er how best to confront the erosion of confidentiality and the resulting thr=
eat that poses to patients' health.<BR>
<BR>
On paper at least, the APA's concerns mirror those of the organizations that=
 joined the coalition suing HHS. In a position statement released in May, th=
e APA declared that the prior consent requirement should be restored and mar=
keting loopholes should be closed. Critics, however, claim that the APA stal=
ls when it comes to backing up its statements with action. They assert that=20=
the APA misuses the confidentiality provisions of the attorney-client privil=
ege to stanch public debate and silence membership views.<BR>
<BR>
"There is a tremendous amount of anxiety and fear at the APA, and I think it=
's paralyzing to the organization," Robert L. Pyles, M.D., a Massachusetts p=
sychiatrist who was a member of its joint commission on government relations=
 until last year, told Psychiatric Times. He is currently the chair of the g=
overnment relations committee for the American Psychoanalytic Association.<B=
R>
<BR>
"The positions the APA takes are good," he said. All of that is absolutely f=
ine, but the place where they really seem to get timid is when it comes to a=
ssertive litigation."<BR>
<BR>
Efforts to raise privacy and confidentiality issues before the membership, P=
yles said, are often stymied when APA officials and committee chairs refuse=20=
to allow public discussions of privacy and confidentiality issues, claiming=20=
that discussing a litigation option in the open will waive the organization'=
s attorney-client privilege and subject the membership to discovery proceedi=
ngs.<BR>
<BR>
"They have put this cloak of secrecy over everything," Pyles said, adding th=
at none of the other psychiatric associations take similar stances. "So that=
 meant nothing could be discussed openly, and everything had to go back into=
 committee. The committees then go into executive session and the net result=
 is you can never find out who did what or what the decision was about ... T=
he membership is really cut out from any kind of participation in the proces=
s."<BR>
<BR>
Janis G. Chester, M.D., a Delaware psychiatrist who recently chaired the APA=
's government relations committee, attributes her failure to receive a routi=
ne reappointment to that position to her outspoken advocacy for a more asser=
tive APA role in pursuing litigation and legislative fixes that address psyc=
hiatric practice issues. She said that the APA has missed opportunities to t=
ake a leadership role in a number of cases, including the HIPAA litigation a=
nd the Racketeer Influenced and Corrupt Organization (RICO) case filed again=
st managed care companies in Florida, which recently resulted in a groundbre=
aking settlement with Aetna Inc.<BR>
<BR>
"The APA has the right attitude and philosophy toward privacy, but they're v=
ery slow to act, and if they act at all, to do anything about it beyond writ=
ing articles and testifying before the legislature," Chester told PT. "They=20=
should be taking a more assertive role, and they should be taking a more act=
ive role. ... The committee on advocacy and litigation funding should be sco=
uring for such cases and asking if they can join."<BR>
<BR>
Jeffrey S. Janofsky, M.D., an associate professor of psychiatry at Johns Hop=
kins University School of Medicine who currently chairs that committee, decl=
ined to comment on the evaluation of the HIPAA litigation that is currently=20=
underway, other than to say the committee would complete its review quickly.=
 Janofsky told PT, "Litigation matters at the APA, like at any major corpora=
tion, are covered by attorney-client privilege, and if I talk to you about i=
t, we'd open up the doors to discovery in the lawsuit in the future."<BR>
<BR>
He also bristled at claims that the organization did not view medical privac=
y as a priority issue. "Privacy is a major issue in American psychiatry and=20=
always has been, and the APA has always been at the forefront of this issue=20=
through multiple people, myself included," Janofsky said. "We've testified b=
efore Congress and at various administrative agencies. This has been a major=
 effort at the APA. The APA's stance on confidentiality has been much strong=
er than any other medical organization that I know of and it will continue t=
o be."<BR>
<BR>
While some may be impatient with the process, Paul S. Appelbaum, M.D., the i=
mmediate past president of the APA and chair of the department of psychiatry=
 at the University of Massachusetts School of Medicine in Worcester, Mass.,=20=
told PT that there are reasons for the lengthy reviews. He declined to speci=
fically comment on the HIPAA litigation, but he said that the threshold issu=
e is whether litigation pursues an end that is in keeping with APA policy. E=
ven if it does, consideration is then given to the likelihood of success, wh=
ether there are reasonable legal grounds that are worth pursuing, the potent=
ial costs and the availability of alternative mechanisms to achieve the same=
 goals.<BR>
<BR>
The delay is not without impact, however. In a high-profile case brought by=20=
the Maryland Board of Physician Quality Assurance against former APA preside=
nt Harold I. Eist, M.D., the APA failed to timely join in an amicus brief fi=
led by the Washington Psychiatric Society (Board of Physician Quality Assura=
nce v Harold I. Eist, M.D.). The administrative law judge found that Eist di=
d not obstruct an investigation when he refused to turn over patients' confi=
dential medical records without their consent. The court also ruled that it=20=
could consider the arguments made in the amicus brief on Eist's behalf but r=
ejected a supporting letter by Appelbaum as president of the APA, saying tha=
t it failed to meet the legal requirements. (For more information on Eist's=20=
case, please see "Confidentiality Under Fire" [p79] in the June issue of Psy=
chiatric Times--Ed.)<BR>
<BR>
Now that an appeal is underway, the APA has recently formally agreed to supp=
ort Eist. "Certainly deference has to be given to the process," Eist told PT=
. "But I think they could find a way to speed it up."<BR>
<BR>
In another privacy case, the APA is only now completing evaluation of a laws=
uit brought by Pittsburgh psychiatrist Daniel S. Shrager, M.D., against Mage=
llan Behavioral Health and others after the mental health carve-out terminat=
ed his provider agreement because he refused to turn over patients' records=20=
without their consent. He also recently won his case at the trial level, but=
 only because he received financial support from the Maryland Psychiatric As=
sociation. His request for APA assistance has been outstanding for several y=
ears, but Shrager told PT that he had received no reply from the APA since D=
ecember when he renewed his request for help with post-trial proceedings.<BR=
>
<BR>
The friction within the APA ultimately boils down to a question of tactics--=
whether to be more or less aggressive and whether to use the courts or the l=
egislatures to develop policy. The Stop Taking Our Health Privacy" (STOHP) A=
ct of 2003, introduced by Rep. Edward J. Markey (D-Mass.), for instance, is=20=
the latest legislative effort to restore the requirement that a patient prov=
ide prior consent before the release and use of confidential medical informa=
tion.<BR>
<BR>
For some, efforts to legislate confidentiality and privacy protections are a=
 dead end, considering that after seven years, Congress has been unable to p=
ass a bill enacting the HIPAA requirements. Deborah Peel, M.D., an Austin, T=
exas-based psychoanalyst who is now president of the Appeal for Privacy Foun=
dation and former president of the Texas Society of Psychiatric Physicians,=20=
told PT, "The suit that the American Psychoanalytic Association has to resto=
re the right to consent is the only possible thing right now that can restor=
e every American's right to consent. There is no chance that the legislation=
 in Congress is going to pass."<BR>
<BR>
Peel added that state confidentiality laws that are more restrictive than th=
e HIPAA rules are now under assault. In Texas, the legislature recently pass=
ed a bill that allows the Texas Commissioner of Health and Human Services to=
 create rules consistent with those enacted under the HIPAA guidelines. At p=
ress time, it awaits the governor's signature.<BR>
<BR>
Considering the threat to privacy, Peel said that the APA is too conservativ=
e in its approach.<BR>
<BR>
"We all know that talking the talk is one thing, but that's different than w=
alking the walk," she said. "There's a difference between talk and action, a=
nd the APA, as the wealthiest mental health organization in this nation, sho=
uld use its resources because others do not have them."<BR>
<BR>
Thus far, however, litigation has not worked. In April, the 4th Circuit U.S.=
 Court of Appeals ruled against a group led by the South Carolina Medical As=
sociation, saying that Congress did not exceed its constitutional authority=20=
when it empowered HHS the rulemaking authority under HIPAA. In May, the 5th=20=
Circuit U.S. Court of Appeals upheld the dismissal of a suit brought by the=20=
Association of American Physicians &amp; Surgeons, after it launched a simil=
ar challenge to the HIPAA rules. Nevertheless, Peel holds out greater hope f=
or the current suit against the HHS, saying they've learned from the mistake=
s of the previous cases.<BR>
<BR>
It will likely take years before the courts and Congress are done dealing wi=
th medical privacy issues. Meanwhile, whether mental health care advocacy gr=
oups will present a more united front is an open question.<BR>
<BR>
At press time, an APA board member said a decision about whether to join the=
 HIPAA litigation could be reached by October, or possibly sooner. <BR>
</FONT><FONT  COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3=
 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
</FONT></HTML>
--part1_b4.1fe200a5.2c45943e_boundary--