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 PT, "The suit that the American Psychoanalytic Association has to restore the right to consent is the only possible thing right now that can restore every American's right to consent. There is no chance that the legislation in Congress is going to pass."
Peel added that state confidentiality laws that are more restrictive than the HIPAA rules are now under assault. In Texas, the legislature recently passed a bill that allows the Texas Commissioner of Health and Human Services to create rules consistent with those enacted under the HIPAA guidelines. At press time, it awaits the governor's signature.
Considering the threat to privacy, Peel said that the APA is too conservative in its approach.
"We all know that talking the talk is one thing, but that's different than walking the walk," she said. "There's a difference between talk and action, and the APA, as the wealthiest mental health organization in this nation, should use its resources because others do not have them."