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.