A federal court judge in Philadelphia is considering arguments in a lawsuit that contends that the new HIPAA privacy regulations are a “broad and serious” breach of Americans’ right to medical privacy. The suit, which takes on the federal Department of Health and Human Services, criticizes the new rules for not requiring health-care providers to obtain patients’ consent before sharing their medical information with third parties for research, marketing, billing, law enforcement and a host of other “routine purposes.” The judge heard arguments in December.
“If someone has received psychotherapy for an emotional disorder or has a homosexual experience and says to their doctor, ’I really don’t want this information disclosed further,’ it goes out anyway,’” says James C. Pyles, the attorney representing the 18 plaintiffs, who include patients and doctors as well as organizations such as the American Association of Practicing Psychiatrists. The purpose of the suit, Pyles says, is to force HHS to return to HIPAA wording proposed by the Clinton administration, which required health-care entities to obtain patients’ consent before sharing their medical information with third parties.
In court filings, HHS attorneys assert that the new rules adequately balance HIPAA’s demands for improving health-care efficiency via electronic records with protecting privacy. They say the consent requirement was removed from the regulations, which went into effect last April, because it “would have substantially delayed and interfered with the delivery of health-care services in a wide variety of circumstances.”
The federal agency has previously noted that third parties that receive patient information must sign privacy agreements with the medical provider and abide by the same disclosure restrictions that providers must observe.
However, as more health-care providers move toward electronic medical records that they can easily share via the Internet, the potential for abuse grows, Pyles says. “Remember that hospital in San Francisco,” he says, referring to the University of California at San Francisco Medical Center. The hospital sent patient records, via a subcontractor, to a medical transcriber in Pakistan. “That was a covered entity under the new HIPAA rules?and look what happened,” he says. “A clerk for the Pakistani business threatened to post that information online if she didn’t get [paid].”