Appeals Court Hears Arguments About HIPAA Privacy Rules

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit on Wednesday heard testimony to determine to what extent patient information can be shared under the Health Information Portability and Accountability Act, the Philadelphia Inquirer reports (Smith/Fallik, Philadelphia Inquirer, 3/10).

The HIPAA Federal Privacy Rule allows health care providers to share patient records for the purposes of treatment and other "health care operations." Providers do not have to obtain written consent before they disclose medical records but are required to inform patients of their rights and make a "good-faith effort" to obtain written acknowledgment from patients that they have received the information. Providers must obtain consent from patients before they can disclose medical records in "nonroutine" cases. Last year, Philadelphia U.S. District Judge Mary McLaughlin dismissed a lawsuit filed against HHS by doctors and consumer advocates seeking an injunction against privacy regulations.

Attorneys for the plaintiffs -- including groups representing about 750,000 consumers and medical professionals -- argued that the new regulations are written so broadly that patients do not have a say in how their medical information is used or shared by health plans, billing companies, drug companies and consultants and lawyers who do business with medical providers. In addition, plaintiffs objected to patients being required to sign HIPAA consent forms that they say clear medical providers of liability for wrongly disclosed patient information.

McLaughlin said in a pretrial ruling that the plaintiffs failed to show that HIPAA regulations were enacted improperly or were unconstitutional. "Because the Amended Rule is not compulsory in nature, it does not affirmatively interfere with any right," McLaughlin wrote (California Healthline, 4/5/04).

At Thursday's hearing of an appeal of the ruling, Deborah Peel, a psychiatrist and plaintiff in the case, said, "You can have your information disclosed for 'routine purposes' with no consent, no notice, no recourse. Excuse us, you have just eliminated a fundamental constitutional right" (Smith/Fallik, Philadelphia Inquirer, 3/8). Plaintiffs' attorney James Pyles argued that patients would not even know information about them had been released to a third party under current HIPAA rules. He added that the right to privacy is key to the Hippocratic oath.

However, Department of Justice lawyer Charles Scarborough said HIPPA rules represent "a tough balancing between efficiency and privacy." He added, "To say it upsets privacy is just not correct." The judges did not indicate when they would rule in the case (Philadelphia Inquirer, 3/10).