"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.