[Med-privacy] Lawsuit challenges HIPAA amendment

[DPeelMD@aol.com]

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>From MassPsy.com: 
http://www.masspsy.com/leading/0310_hipaa.html
October 2003 Vol. 11, No. 8 

Lawsuit challenges HIPAA amendment
By Jennifer Brewer

In April 2003, amendments were put into effect to alter the Health
Insurance Portability and Account-ability Act (HIPAA) Privacy Rule
enacted in 2001. According to the plaintiffs in a lawsuit against the
Department of Health and Human Services (HHS), these amendments
violate longstanding medical codes of ethics and were enacted
illegally.

"The HIPAA Privacy Rule deals with the fundamental right to
privacy," says Bob Pyles, M.D., chairperson of the government
relations committee for the American Psychoanalytic Society (APS)
and its past president. "And that's a constitutional right."

The central issue for Pyles and others, including Deborah Peel, M.D.,
president of The Appeal for Patient Privacy (a 501c3 nonprofit
dedicated to supporting the lawsuit), is that the amendments allow for
entire medical records to be shared without specific patient consent.
Further, they believe that the way HIPAA is worded makes it difficult
to understand the depth of privacy violation that will be possible.

"HIPAA compliance has become a huge industry for advising
lawyers," says Pyles. "Nobody can figure out what it means and you
can get different readings." Peel adds, "Therapists don't want to have
to become legal experts in order to practice."

Pyles points out that the original HIPAA rules were written with
privacy in mind, as a safeguard against wholesale sharing of
information through electronic means, and that the APS worked with
the Clinton administration to help form the rules and special
exceptions specifically for mental health records. But the amendments
reverse much of HIPAA's original content, say Pyles and Peel.

Peel also believes the amendments were enacted unlawfully. "By
federal law there has to be a comment period. They received 11,000
comments from the public and 80% of them said not to eliminate the
consent requirement. HHS clearly ignored the public's preference to
retain consent. And, because HHS did not notify the public that the
proposed amendments would eliminate consent, many pro-consent
organizations did not even submit comments."

Pyles and Peel say there are effective means to protect patient privacy,
whether or not therapists are covered entities under HIPAA. They
believe, however, that the aim of HHS is to compel all health
professionals to become covered entities, so that it will become more
difficult to protect privacy if legal action isn't taken. "HHS already
has moves underway to close the 'country doctor' loophole, and will
use tremendous pressure to bring state laws into compliance with
HIPAA," says Pyles. Because HIPAA was originally written to
protect electronic information transfer, a therapist can avoid being a
covered entity by avoiding electronic claims. According to Pyles,
however, an entity with 10 or more employees is covered by HIPAA
even if they do not submit any data or claims electronically.

It is essential for therapists to be familiar with individual state laws,
which Pyles and Peel point out, are stronger than the HIPAA and
HIPAA amendment regulations. HIPAA asserts the primacy of state
laws, so that therapists may cite these laws as basis for not complying
with information requests.

While a third party may request the full medical record of a patient
and receive it without the patient's specific consent, therapists are not
required to submit their psychotherapy notes if the notes are kept
separately from the primary medical record that includes basic
information such as diagnosis and treatment plan.

As Peel puts it, as long as you are dealing with a third party payer,
"you have to tell them what they are paying for." But she believes that
released information should be limited to basics of diagnosis and
treatment and not include notes that stem from a patient's most private
revelations. She considers the potential for release of these notes as a
serious threat to trust, the foundation of the patient-therapist
relationship.

Peel says that even when a therapist is following legal practices, third
parties can exert significant financial pressure for more information
and she believes that the HIPAA amendments will make it more likely
that they will succeed in getting private information released. "But if
someone is a licensed physician or psychotherapist, a health plan
shouldn't be able to decide on the standard of care," she adds.

The lawsuit, Citizens for Health et al vs Tommy G. Thompson,
Secretary, U.S. Department of Health and Human Services, was filed
in federal court in Philadelphia on April 10, 2003. The plaintiffs' first
brief was filed on September 4, and amicus briefs are expected by
early October. A decision is expected by early 2004.

Whichever way the decision goes, Pyles expects there will be an
appeal process and he would like to see the case end up in the
Supreme Court. "I see it as a precedent setting case. It deals with the
fundamental right to privacy. That's a constitutional right and I would
like to see this case at the highest level possible," he says.

Possibly because primarily psychiatrists originated the lawsuit, Pyles
reports that there are fewer therapists from other disciplines involved.
He believes strongly, however, that the HIPAA amendments affect all
mental health professionals and is actively seeking further
involvement from such professionals as clinical psychologists and
social workers.

Further information, including the text of the lawsuit, updates and
ways that practitioners can support its efforts, may be found at
www.patientprivacy.info. Practitioners interested in discussing the
HIPAA amendments or the lawsuit may also contact Pyles directly at
781-235-6211 or rpylesmd@comcast.net.

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<DIV><FONT size=3D3>From MassPsy.com:=20
<DIV><A href=3D"http://www.masspsy.com/leading/0310_hipaa.html"><FONT size=
=3D3>http://www.masspsy.com/leading/0310_hipaa.html</FONT></A></DIV></FONT><=
/DIV>
<DIV><FONT size=3D3>October 2003 Vol. 11, No. 8</FONT> </DIV>
<DIV>&nbsp;</DIV>
<DIV><FONT size=3D3>Lawsuit challenges HIPAA amendment<BR>By Jennifer Brewer=
</FONT></DIV>
<DIV><BR><FONT size=3D3>In April 2003, amendments were put into effect to al=
ter the Health<BR>Insurance Portability and Account-ability Act (HIPAA) Priv=
acy Rule<BR>enacted in 2001. According to the plaintiffs in a lawsuit agains=
t the<BR>Department of Health and Human Services (HHS), these amendments<BR>=
violate longstanding medical codes of ethics and were enacted<BR>illegally.<=
/FONT></DIV>
<DIV><BR><FONT size=3D3>"The HIPAA Privacy Rule deals with the fundamental r=
ight to<BR>privacy," says Bob Pyles, M.D., chairperson of the government<BR>=
relations committee for the American Psychoanalytic Society (APS)<BR>and its=
 past president. "And that's a constitutional right."</FONT></DIV>
<DIV><BR><FONT size=3D3>The central issue for Pyles and others, including De=
borah Peel, M.D.,<BR>president of The Appeal for Patient Privacy (a 501c3 no=
nprofit<BR>dedicated to supporting the lawsuit), is that the amendments allo=
w for<BR>entire medical records to be shared without specific patient consen=
t.<BR>Further, they believe that the way HIPAA is worded makes it difficult<=
BR>to understand the depth of privacy violation that will be possible.</FONT=
></DIV>
<DIV><BR><FONT size=3D3>"HIPAA compliance has become a huge industry for adv=
ising<BR>lawyers," says Pyles. "Nobody can figure out what it means and you<=
BR>can get different readings." Peel adds, "Therapists don't want to have<BR=
>to become legal experts in order to practice."</FONT></DIV>
<DIV><BR><FONT size=3D3>Pyles points out that the original HIPAA rules were=20=
written with<BR>privacy in mind, as a safeguard against wholesale sharing of=
<BR>information through electronic means, and that the APS worked with<BR>th=
e Clinton administration to help form the rules and special<BR>exceptions sp=
ecifically for mental health records. But the amendments<BR>reverse much of=20=
HIPAA's original content, say Pyles and Peel.</FONT></DIV>
<DIV><BR><FONT size=3D3>Peel also believes the amendments were enacted unlaw=
fully. "By<BR>federal law there has to be a comment period. They received 11=
,000<BR>comments from the public and 80% of them said not to eliminate the<B=
R>consent requirement. HHS clearly ignored the public's preference to<BR>ret=
ain consent. And, because HHS did not notify the public that the<BR>proposed=
 amendments would eliminate consent, many pro-consent<BR>organizations did n=
ot even submit comments."</FONT></DIV>
<DIV><BR><FONT size=3D3>Pyles and Peel say there are effective means to prot=
ect patient privacy,<BR>whether or not therapists are covered entities under=
 HIPAA. They<BR>believe, however, that the aim of HHS is to compel all healt=
h<BR>professionals to become covered entities, so that it will become more<B=
R>difficult to protect privacy if legal action isn't taken. "HHS already<BR>=
has moves underway to close the 'country doctor' loophole, and will<BR>use t=
remendous pressure to bring state laws into compliance with<BR>HIPAA," says=20=
Pyles. Because HIPAA was originally written to<BR>protect electronic informa=
tion transfer, a therapist can avoid being a<BR>covered entity by avoiding e=
lectronic claims. According to Pyles,<BR>however, an entity with 10 or more=20=
employees is covered by HIPAA<BR>even if they do not submit any data or clai=
ms electronically.</FONT></DIV>
<DIV><BR><FONT size=3D3>It is essential for therapists to be familiar with i=
ndividual state laws,<BR>which Pyles and Peel point out, are stronger than t=
he HIPAA and<BR>HIPAA amendment regulations. HIPAA asserts the primacy of st=
ate<BR>laws, so that therapists may cite these laws as basis for not complyi=
ng<BR>with information requests.</FONT></DIV>
<DIV><BR><FONT size=3D3>While a third party may request the full medical rec=
ord of a patient<BR>and receive it without the patient's specific consent, t=
herapists are not<BR>required to submit their psychotherapy notes if the not=
es are kept<BR>separately from the primary medical record that includes basi=
c<BR>information such as diagnosis and treatment plan.</FONT></DIV>
<DIV><BR><FONT size=3D3>As Peel puts it, as long as you are dealing with a t=
hird party payer,<BR>"you have to tell them what they are paying for." But s=
he believes that<BR>released information should be limited to basics of diag=
nosis and<BR>treatment and not include notes that stem from a patient's most=
 private<BR>revelations. She considers the potential for release of these no=
tes as a<BR>serious threat to trust, the foundation of the patient-therapist=
<BR>relationship.</FONT></DIV>
<DIV><BR><FONT size=3D3>Peel says that even when a therapist is following le=
gal practices, third<BR>parties can exert significant financial pressure for=
 more information<BR>and she believes that the HIPAA amendments will make it=
 more likely<BR>that they will succeed in getting private information releas=
ed. "But if<BR>someone is a licensed physician or psychotherapist, a health=20=
plan<BR>shouldn't be able to decide on the standard of care," she adds.</FON=
T></DIV>
<DIV><BR><FONT size=3D3>The lawsuit, Citizens for Health et al vs Tommy G. T=
hompson,<BR>Secretary, U.S. Department of Health and Human Services, was fil=
ed<BR>in federal court in Philadelphia on April 10, 2003. The plaintiffs' fi=
rst<BR>brief was filed on September 4, and amicus briefs are expected by<BR>=
early October. A decision is expected by early 2004.</FONT></DIV>
<DIV><BR><FONT size=3D3>Whichever way the decision goes, Pyles expects there=
 will be an<BR>appeal process and he would like to see the case end up in th=
e<BR>Supreme Court. "I see it as a precedent setting case. It deals with the=
<BR>fundamental right to privacy. That's a constitutional right and I would<=
BR>like to see this case at the highest level possible," he says.</FONT></DI=
V>
<DIV><BR><FONT size=3D3>Possibly because primarily psychiatrists originated=20=
the lawsuit, Pyles<BR>reports that there are fewer therapists from other dis=
ciplines involved.<BR>He believes strongly, however, that the HIPAA amendmen=
ts affect all<BR>mental health professionals and is actively seeking further=
<BR>involvement from such professionals as clinical psychologists and<BR>soc=
ial workers.</FONT></DIV>
<DIV><BR><FONT size=3D3>Further information, including the text of the lawsu=
it, updates and<BR>ways that practitioners can support its efforts, may be f=
ound at<BR></FONT><A href=3D"http://www.patientprivacy.info"><FONT size=3D3>=
www.patientprivacy.info</FONT></A><FONT size=3D3>. Practitioners interested=20=
in discussing the<BR>HIPAA amendments or the lawsuit may also contact Pyles=20=
directly at<BR>781-235-6211 or </FONT><A href=3D"mailto:rpylesmd@comcast.net=
"><FONT size=3D3>rpylesmd@comcast.net</FONT></A><FONT size=3D3>.<BR></FONT><=
/DIV></BODY></HTML>

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