The Quest to Protect Medical Privacy

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