[Med-privacy] Phil. Inquirer story: JUDGE WEIGHS FATE OF PATIENT PRIVACY PROVISION

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[Philadelphia Inquirer]

Posted December 10, 2003

JUDGE WEIGHS FATE OF PATIENT PRIVACY PROVISION

By JOSEPH A. SLOBODZIAN


PHILADELPHIA - It is arguably one of the greatest threats to liberty in
the history of the Republic, say patient and privacy advocates, who
describe it as forcing Americans to choose between access to medical
care or control of personal medical information.

On the contrary, say federal officials, it is an imperfect but careful
balancing of patient privacy against the needs of the health care
industry to provide Americans with "efficient and effective" access to
quality care.

It is HIPAA - the Health Insurance Portability and Accountability Act. A
legal dispute centers on one provision that took effect in April and
forced Americans to sign a flurry of information consent forms as they
went to doctors or drugstores.

The future of that rule is now in the hands of U.S. District Judge Mary
A. McLaughlin, who Wednesday heard two hours of often impassioned
arguments by lawyers on both sides before holding the case for further
review.

The privacy rule created by U.S. Health Secretary Tommy G. Thompson
gives patients power to approve release of medical information to
employers and life insurers.

But patients have no say about how the information is used or shared by
health plans, billing companies and some groups doing business with
medical providers such as consultants, lawyers or drug companies. That's
why patients are now asked to sign the HIPAA consent forms.

While patients may refuse to sign the HIPAA form, their likely option is
finding another doctor. Since the rule, privacy advocates say, most
doctors or medical providers refuse to assume civil and criminal
liability for wrongly disclosed patient information and require patients
to sign.

"As of April 14, there is no ability of an individual to control the
disclosure of personal information," said James C. Pyles, a Washington
lawyer specializing in health law, who filed the suit challenging the
HIPAA provision for Citizens For Health and 17 other individuals and
groups representing about 750,000 consumers and medical professionals.

"We as plaintiffs have a right to not have the federal government grant
express federal authority to third parties to release our private
information to other members of the public," Pyles said.

Justice Department lawyer James J. Gilligan argued that Pyles had
overstated the threat to personal privacy. Pyles [sic]told McLaughlin the
privacy provision for the first time specifies which groups may receive
medical information and for what purposes - forbidding all other uses.

Gilligan argued that Thompson had to "strike a balance" between personal
privacy and the health insurers and medical providers who complained it
would be too expensive and cumbersome to obtain patient consent every
time an insurance company or medical specialist needed patient data.

Gilligan argued that federal law says a judge should not reverse a
ruling by a federal agency official unless it clearly "arbitrary and
capricious."

"In the final analysis," Gilligan added, "plaintiffs have a different
policy agenda than the Congress or the Secretary has."

Wednesday's oral arguments were on motions for "summary judgment," with
each side asking McLaughlin to rule in their favor without a trial. The
judge gave no indication when or how she will rule, though she had
pointed questions for both sides.

>From Gilligan, the judge wanted to know how the law protected a patient
from illegal disclosure of personal information if their doctor or other
medical provider did not have to seek consent: "How would they know?"

Yet, reviewing the thousands of comments Thompson received in the
tortuous path to approving the new rule, McLaughlin seemed skeptical of
Pyles' argument that Thompson simply capitulated to health industry
lobbyists and was "determined to eliminate consent."

"You're telling me that the court should ignore this, that the Secretary
really didn't consider these comments," McLaughlin said, adding that she
was uncomfortable with judges "supplanting" federal official's
decision-making.

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<DIV>
<DIV>[Philadelphia Inquirer]<BR><BR>Posted December 10, 2003<BR><BR>JUDGE WE=
IGHS FATE OF PATIENT PRIVACY PROVISION<BR><BR>By JOSEPH A. SLOBODZIAN<BR><BR=
><BR>PHILADELPHIA - It is arguably one of the greatest threats to liberty in=
<BR>the history of the Republic, say patient and privacy advocates, who<BR>d=
escribe it as forcing Americans to choose between access to medical<BR>care=20=
or control of personal medical information.<BR><BR>On the contrary, say fede=
ral officials, it is an imperfect but careful<BR>balancing of patient privac=
y against the needs of the health care<BR>industry to provide Americans with=
 "efficient and effective" access to<BR>quality care.<BR><BR>It is HIPAA - t=
he Health Insurance Portability and Accountability Act. A<BR>legal dispute c=
enters on one provision that took effect in April and<BR>forced Americans to=
 sign a flurry of information consent forms as they<BR>went to doctors or dr=
ugstores.<BR><BR>The future of that rule is now in the hands of U.S. Distric=
t Judge Mary<BR>A. McLaughlin, who Wednesday heard two hours of often impass=
ioned<BR>arguments by lawyers on both sides before holding the case for furt=
her<BR>review.<BR><BR>The privacy rule created by U.S. Health Secretary Tomm=
y G. Thompson<BR>gives patients power to approve release of medical informat=
ion to<BR>employers and life insurers.<BR><BR>But patients have no say about=
 how the information is used or shared by<BR>health plans, billing companies=
 and some groups doing business with<BR>medical providers such as consultant=
s, lawyers or drug companies. That's<BR>why patients are now asked to sign t=
he HIPAA consent forms.<BR><BR>While patients may refuse to sign the HIPAA f=
orm, their likely option is<BR>finding another doctor. Since the rule, priva=
cy advocates say, most<BR>doctors or medical providers refuse to assume civi=
l and criminal<BR>liability for wrongly disclosed patient information and re=
quire patients<BR>to sign.<BR><BR>"As of April 14, there is no ability of an=
 individual to control the<BR>disclosure of personal information," said Jame=
s C. Pyles, a Washington<BR>lawyer specializing in health law, who filed the=
 suit challenging the<BR>HIPAA provision for Citizens For Health and 17 othe=
r individuals and<BR>groups representing about 750,000 consumers and medical=
 professionals.<BR><BR>"We as plaintiffs have a right to not have the federa=
l government grant<BR>express federal authority to third parties to release=20=
our private<BR>information to other members of the public," Pyles said.<BR><=
BR>Justice Department lawyer James J. Gilligan argued that Pyles had<BR>over=
stated the threat to personal privacy. Pyles [sic]told McLaughlin the<BR>pri=
vacy provision for the first time specifies which groups may receive<BR>medi=
cal information and for what purposes - forbidding all other uses.<BR><BR>Gi=
lligan argued that Thompson had to "strike a balance" between personal<BR>pr=
ivacy and the health insurers and medical providers who complained it<BR>wou=
ld be too expensive and cumbersome to obtain patient consent every<BR>time a=
n insurance company or medical specialist needed patient data.<BR><BR>Gillig=
an argued that federal law says a judge should not reverse a<BR>ruling by a=20=
federal agency official unless it clearly "arbitrary and<BR>capricious."<BR>=
<BR>"In the final analysis," Gilligan added, "plaintiffs have a different<BR=
>policy agenda than the Congress or the Secretary has."<BR><BR>Wednesday's o=
ral arguments were on motions for "summary judgment," with<BR>each side aski=
ng McLaughlin to rule in their favor without a trial. The<BR>judge gave no i=
ndication when or how she will rule, though she had<BR>pointed questions for=
 both sides.<BR><BR>From Gilligan, the judge wanted to know how the law prot=
ected a patient<BR>from illegal disclosure of personal information if their=20=
doctor or other<BR>medical provider did not have to seek consent: "How would=
 they know?"<BR><BR>Yet, reviewing the thousands of comments Thompson receiv=
ed in the<BR>tortuous path to approving the new rule, McLaughlin seemed skep=
tical of<BR>Pyles' argument that Thompson simply capitulated to health indus=
try<BR>lobbyists and was "determined to eliminate consent."<BR><BR>"You're t=
elling me that the court should ignore this, that the Secretary<BR>really di=
dn't consider these comments," McLaughlin said, adding that she<BR>was uncom=
fortable with judges "supplanting" federal official's<BR>decision-making.<BR=
><BR><BR></DIV></DIV></BODY></HTML>

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