December 2003

Citizens’ groups attack HIPAA in court,
battle for privacy restoration

HIPAA — enacted in 1998 to protect the privacy of the U.S. citizenry — actually takes away the rights of every American, contends a group of concerned organizations and private citizens who made oral arguments against the Department of Health and Human Services in federal district court on December 10. The lawsuit asks Judge Mary A. McLaughlin to set aside the HIPAA regulations that went into effect in April 2003.

The plaintiffs include the Foundation for Health Choice and its president Tedd Koren, DC. Other plaintiffs named in the lawsuit include the Citizens for Health and the Appeal for Patient Privacy Association, along with several other state and national associations and individuals.

One of the plaintiff attorneys, James Turner, is partner in the law firm Swankin and Turner, which specializes in areas of federal regulation. He is also chairperson of Citizens for Health. Turner explained to Chiropractic Economics that HIPAA rules for privacy, developed in the last days of the Clinton administration, were adopted by the Bush administration early in 2001. The rules contained a requirement that none of the health data collected from patients could be transferred from a practitioner to anybody else without the consent of the patients.

However, in August 2002, prior to the rules’ going into effect in April 2003, HHS Secretary Tommy Thompson reconsidered the regulations and decided that health data could be transferred from practitioners to covered parties and then to a secondary tier of people who may work with covered parties — without the explicit consent of patients.

“The administration stepped forward and said, ‘We can waive this [privacy] right as stand-ins for the American citizens’,” said Turner.

“To understand the situation,” said Turner, “the kind of data we are talking about is about disease diagnosis. Up until now, [that data] has been held by the practitioner and could only be released if the patient said it was all right to release it. Now, that information gets uploaded every time you send information to Medicare or to an insurance company.”

HHS actions illegal for three reasons

The lawsuit — Citizens for Health vs. Tommy G. Thompson, Secretary of the U.S. Department of Health and Human Services, No. 03-2267 (MAM) — was filed days before HIPAA went into effect in April. It contends that the actions of the HHS secretary were illegal for three reasons:

1. They violated the Administrative Procedures Act. “The law states it is incumbent upon a regulatory agency to seriously consider the comments and participation of the public in relation to the rule,” said Turner. In this case, comments from groups representing an aggregate membership of 120 million Americans were ignored, he said.

2. The legislation requires privacy to be protected. The failure of the secretary to require consent violates the actual statute, said Turner.

3. The secretary’s actions violate the constitutional protection of privacy. This protection has been affirmed by the Supreme Court for 35 years.

“This will be a very big battle,” Koren told Chiropractic Economics. “I am proud that the chiropractic profession is represented in this fight for healthcare privacy and healthcare freedom. It is where we should be. Our profession should be very sensitive to the unbridled power of government regulators.”

Koren said that in addition to the lawsuit, legislative remedies are also being sought. He said that the bi-partisan bill, HR 1709, introduced by Rep. Edward Markey (MA-7) would restore key privacy protections taken away by the HHS modifications. That bill, known as the STOHP (Stop Taking Our Health Privacy) Act, has 20 sponsors.

Another bill, HR 1699, introduced by Re. Ron Paul (TX-14) would repeal the modifications as well as the entire privacy rule.

Attorneys for the plaintiffs argued for a summary judgment, stating in their documents that the government’s egregious violations were “so blatantly obvious and severe to warrant a decision on the merits and facts of their lawsuit that a trial would not be necessary.”

Lawyers representing HHS have asked the judge to dismiss the case.

Sources: James Turner, Swankin and Turner, 202-462-8800; Dr. Tedd Koren, Foundation for Health Choice, www.foundationforhealthchoice.com; Citizens for Health, www.citizens.org; American Psychoanalytic Association, www.apsa.org; Appeal for Patient Privacy Association, www.patientprivacy.info.

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