[Med-privacy] Psych News: HIPAA Privacy Rule Legal, Federal Court Says

[Jeff Williams]

Debra and all,

  Your right IMHO that this ruling is very disturbing, especially to
Elderly
folks seeking counciling or families with children with some special
counciling needs...  Release of such information without the consent
of the individual in writing at any stage of such counciling can be
very harmful to them for a very long time in the wrong hands...

DPeelMD@aol.com wrote:

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>  Similar articles found in:
> Psychiatric News
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> Psychiatric News May 21, 2004
> Volume 39 Number 10
> © 2004 American Psychiatric Association
> p. 4
>
>
>
> Legal News
>
>
> HIPAA Privacy Rule Legal, Federal Court Says
> Ken Hausman
> A judge’s rejection of a challenge to the constitutionality of a
> federal rule
> governing patients’ right to control access to their medical records
> has some
> psychiatrists worried about the future of the therapist-patient
> relationship.
> A federal judge has dismissed a lawsuit in which several organizations
> and
> individuals concerned with protecting medical-record confidentiality
> sued Health
> and Human Services Secretary Tommy Thompson over the privacy rule,
> whose
> creation was mandated by the Health Insurance Portability and
> Accountability Act
> (HIPAA).
> The rule at issue governs patients’ right to keep third parties from
> having
> access to their medical records—whether electronic or paper—unless
> the
> patients consent to divulge the records. The original wording required
> patient
> consent before patients’ confidential records could be used for
> "treatment, payment,
> and health care operations." When the Bush administration amended the
> rule,
> it deleted the patient-consent requirement (Psychiatric News, January
> 16) and
> instead allowed—but did not require—consent forms to be signed
> before
> treatment can begin or payment initiated, for example. The consent
> became an implied
> rather than explicit requirement, as it was in the original rule.
> The change gives health care providers the option of having patients
> sign a
> consent form before initiating treatment. Once patients begin
> treatment, they
> should assume that they are consenting to allow others involved in
> their
> medical care or payment for it to have access to their records.
> In her April 2 ruling, Judge Mary McLaughlin of the U.S. District
> Court in
> Philadelphia stated that the privacy rule did not violate the
> plaintiffs’
> constitutional rights "because the amended rule does not compel anyone
> to use or
> disclose the plaintiffs’ health information for routine purposes
> without the
> plaintiffs’ consent." That is, the Constitution doesn’t give
> patients, or others,
> all the privacy rights they think are crucial, though laws can be
> enacted
> that do bestow such rights, she said.
> The rule never gave patients the right to decide whether their records
> were
> to be released as part of judicial proceedings or for public-health
> purposes.
> The American Psychoanalytic Association was one of the lead plaintiffs
> in the
> case, Citizens for Health v. Tommy Thompson, as was Texas psychiatrist
> and
> APA member Deborah Peel, M.D. The plaintiffs argued that the HIPAA
> privacy rule
> allows individuals in government agencies, private corporations, and
> even
> patients’ employers to gain access to records of medical treatment.
> Are Privacy Rights Guaranteed?
> Chief among the several issues on which the plaintiffs based their
> case was
> that the privacy rule violates privacy rights that patients and others
> are
> guaranteed in the First Amendment of the U.S. Constitution.
> When patients lack the security of knowing that what they tell their
> therapist will remain confidential, the plaintiffs maintained, it is
> difficult to
> build trust and thus provide an optimal therapeutic experience. Some
> patients will
> refuse to take medications if pharmacists have access to their medical
>
> records, they claimed, while many others will shun all mental health
> treatment out
> of fear of who may be able to read their medical records.
> The amended rule does not, however, permit disclosure of patient
> medical
> information that was prohibited before the original rule was written.
> Thompson Says Rules Followed
> Thompson, who was named as the defendant because he heads the agency
> that
> promulgated the privacy rule, argued that amending the rule was done
> according to
> required procedures—a charge the plaintiffs disputed—and was the
> result of a
> substantial amount of public comment protesting "unintended
> consequences" of
> the original rule’s patient-consent requirement, according to
> Thompson. Many
> of the comments suggested that allowing patients to keep their records
> from
> certain third parties could "substantially impair delivery of health
> care" by
> depriving those parties of "information necessary for quality
> assurance,
> accreditation, and fraud and waste detection."
> The judge ruled that Thompson had met federal rule-making requirements
> by
> considering "the relevant factors Congress intended the agency to
> consider,
> namely, the efficiency and effectiveness of the health care system and
> the privacy
> of health information."
> She pointed out that Thompson "took the privacy interests of patients
> into
> account by permitting health care providers to obtain prior consent"
> for limited
> release of medical records.
> As for the constitutional violation charges, the judge ruled for
> Thompson,
> saying that "the amended rule does not compel anyone to use or
> disclose the
> plaintiffs’ health information for routine purposes without the
> plaintiffs’
> consent."
> She continued, "Even assuming that the plaintiffs have a
> constitutional right
> to privacy over their medical records and to patient–health care
> provider
> communications, the amended rule does not violate those rights," since
> it is
> "wholly permissive" regarding whether an entity covered by HIPAA
> "should seek
> consent from a patient before using his or her information for routine
> purposes.
> The amended rule neither requires nor prohibits that practice."
> Moreover, the
> rule does not "place obstacles in the paths of patients seeking to
> have
> confidential communications with their health care providers," since
> it does not
> require that clinicians breach confidentiality.
> In giving strong weight to Thompson’s argument, the judge stated,
> "To the
> extent the amended rule mandates any actions, it protects the
> plaintiffs’
> putative rights. For example, [it] prohibits covered entities from
> disclosing and
> using health information for reasons unrelated to health care without
> proper
> authorization."
> Peel, who is president of the organization Appeal for Patient Privacy,
> called
> McLaughlin’s ruling "very disturbing."
> "In the end," she said, "somehow the judge came to the tortured
> conclusion
> that every citizen’s constitutional rights to privacy were not
> violated."
> Peel said that the battle over the HIPAA privacy rule is not over.
> Appeal for
> Patient Privacy has already raised $35,000 to fund an appeal, which
> must be
> filed by June 2. It will take a legal victory "to wake up Congress"
> about the
> need to undo parts of the privacy rule, she said.
> Additional information about the appeal of the HIPAA ruling, including
> how to
> contribute to the appeal, is posted online at
> www.patientprivacyrights.org.
> McLaughlin’s ruling is posted at
> www.paed.uscourts.gov/documents/opinions/04d0102p.pdf.
>
>  Similar articles found in:
> Psychiatric News
>  Download to Citation Manager
>

Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
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