[Med-privacy] HIPAA Privacy Suit to Go Before Federal Court

[pmarshall]

   HIPAA Privacy Suit to Go Before Federal Court

   December 10, 2003

                                A HIPAA-related lawsuit filed against
HHS Secretary Tommy Thompson in May by a
                                group of physicians, psychotherapists
and consumer and health organizations is set to
                                go before a federal court judge on
Wednesday in Philadelphia, the Wall Street
                                Journal reports. Among other claims, the
suit alleges that the agency violated
                                patients=92 privacy rights and failed to
follow the intent of Congress in implementing the rule.

   At issue is HIPAA=92s =93routine use=94 exception, which allows insure=
rs
and medical providers to distribute
   medical information for =93treatments, payment or health care
operations.=94 This language means that
   hospitals could send patient medical information to a marketing
company that the hospital has hired for its
   own purposes, such as researching patient satisfaction or marketing
new services, the Journal reports.
   The plaintiffs are seeking an injunction against the rule changes.
The government wants the case dismissed.
   HHS in court filings said the rules balance HIPAA=92s goal of improvin=
g
efficiency while maintaining privacy.


   Plaintiffs, however, say that patients don=92t know if their
information is being shared for =93routine use,=94
   because HIPAA does not require patient consent or notice, the Journal
reports. HHS said the patient
   consent requirement was removed from HIPAA because it would have
=93substantially delayed and interfered=94
   with health care delivery in many circumstances, which could in some
cases be detrimental to patients=92
   health.

   HHS also stressed that third parties who receive medical information
are required to sign privacy
   agreements with the provider and adhere to the same disclosure rules
that providers must follow. Also,
   only the =93minimum necessary=94 information is allowed to be shared w=
hen
medical data is used for payment and
   health care operations. Marcy Wilder, an attorney at Hogan & Hartson
in Washington, D.C. who worked as
   deputy counsel for HHS when HIPAA was first drafted, said HIPAA
protects patient privacy, despite the
   fact that the rule does not go as far as some wanted. =93People are
arguing around the edges,=94 she said.

   But privacy advocates see otherwise. The rules =93intend to allow
personal information to be used and
   disclosed freely, without any control by the individual, for these
routine purposes,=94 said James Pyles, an
   attorney for the plaintiffs. =93Consumers are pretty much left
defenseless by this rule.=94

   According to Lawrence Gostin, a Georgetown University law professor
and director of the Center for Law
   & the Public=92s Health, the language of the routine use exception =93=
can
be used to really swallow up the whole
   protection of privacy.=94

   The plaintiffs include the Congress of California Seniors, the
American Association of Practicing
   Psychiatrists and the American Psychoanalytic Association (Francis,
Wall Street Journal, 12/10).

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HealthCare Foundation by The Advisory Board Company.
                                               =A9 2001 The Advisory Boar=
d
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   December 10, 2003

                                A HIPAA-related lawsuit filed against
HHS Secretary Tommy Thompson in May by a
                                group of physicians, psychotherapists
and consumer and health organizations is set to
                                go before a federal court judge on
Wednesday in Philadelphia, the Wall Street
                                Journal reports. Among other claims, the
suit alleges that the agency violated
                                patients=92 privacy rights and failed to
follow the intent of Congress in implementing
                                the rule.

   At issue is HIPAA=92s =93routine use=94 exception, which allows insure=
rs
and medical providers to distribute
   medical information for =93treatments, payment or health care
operations.=94 This language means that
   hospitals could send patient medical information to a marketing
company that the hospital has hired for its
   own purposes, such as researching patient satisfaction or marketing
new services, the Journal reports.
   The plaintiffs are seeking an injunction against the rule changes.
The government wants the case dismissed.
   HHS in court filings said the rules balance HIPAA=92s goal of improvin=
g
efficiency while maintaining privacy.


   Plaintiffs, however, say that patients don=92t know if their
information is being shared for =93routine use,=94
   because HIPAA does not require patient consent or notice, the Journal
reports. HHS said the patient
   consent requirement was removed from HIPAA because it would have
=93substantially delayed and interfered=94
   with health care delivery in many circumstances, which could in some
cases be detrimental to patients=92
   health.

   HHS also stressed that third parties who receive medical information
are required to sign privacy
   agreements with the provider and adhere to the same disclosure rules
that providers must follow. Also,
   only the =93minimum necessary=94 information is allowed to be shared w=
hen
medical data is used for payment and
   health care operations. Marcy Wilder, an attorney at Hogan & Hartson
in Washington, D.C. who worked as
   deputy counsel for HHS when HIPAA was first drafted, said HIPAA
protects patient privacy, despite the
   fact that the rule does not go as far as some wanted. =93People are
arguing around the edges,=94 she said.

   But privacy advocates see otherwise. The rules =93intend to allow
personal information to be used and
   disclosed freely, without any control by the individual, for these
routine purposes,=94 said James Pyles, an
   attorney for the plaintiffs. =93Consumers are pretty much left
defenseless by this rule.=94

   According to Lawrence Gostin, a Georgetown University law professor
and director of the Center for Law
   & the Public=92s Health, the language of the routine use exception =93=
can
be used to really swallow up the whole
   protection of privacy.=94

   The plaintiffs include the Congress of California Seniors, the
American Association of Practicing
   Psychiatrists and the American Psychoanalytic Association (Francis,
Wall Street Journal, 12/10).

                       iHealthBeat is published daily for California
HealthCare Foundation by The Advisory Board Company.
                                               =A9 2001 The Advisory Boar=
d
Company.