Big Doctor Is Watching

As of April 14, the national security police can monitor your medical records without your knowledge. So can the local police.

Although the Supreme Court has found that psychiatric records enjoy the privilege of physician-patient confidentiality, HIPAA extends that privilege only to the actual notes in which a mental health professional records "the contents of conversation during a private counseling session," and only if those notes are kept separately, i.e., not sprinkled about in the rest of a patient's file. HIPAA does not recognize the existence of a psychiatrist-patient privilege (which is similar to the lawyer-client privilege) for "medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date."

This is a shattering change in the classical protections extended to mental health information, says Appelbaum. "For many years, we could say to the police, the FBI, the Secret Service that we don't release information without patient consent or a court order. Law enforcement learned not to ask for such records.

"HIPAA makes it much more likely that doctors and medical facilities will be approached by police and intelligence agencies, and now we have less ammunition to use in the battle to protect patient confidence. The use of administrative subpoenas is a profound change. Police can search medical records without ever having to step before a judge to demonstrate the reasonableness of their request."

Dennis Scott is San Francisco's HIPAA czar.
Paolo Vescia
Dennis Scott is San Francisco's HIPAA czar.
Ron and Loren Morgan of Bernal Heights are worried 
about government access to their family's medical 
Paolo Vescia
Ron and Loren Morgan of Bernal Heights are worried about government access to their family's medical records.

Recently, the American Psychoanalytic Association (a national group of 3,500 psychoanalysts not to be conflated with the larger American Psychiatric Association) joined with the Congress of California Seniors, a nonprofit interest group based in Sacramento, in a lawsuit against the federal government. The lawsuit says that HIPAA destroys constitutional protections against governmental abuse of its police powers while it undermines public trust in the integrity of the physician-patient relationship.

Bill Powers of the Congress of California Seniors says that his group's 600,000 retirees are afraid that improper disclosures of their medical and psychiatric records will negatively affect their chances to get jobs, health insurance, and loans. "Under the guise of protecting our privacy rights," says Powers, "the Bush administration is imposing on our rights."

On the congressional front, conservative Texas Republican Ron Paul is sponsoring a bill in the House of Representatives to repeal HIPAA. Liberal Democrats are backing a brace of bills in the House and the Senate that would make some changes in HIPAA, but that appear to leave the government's nearly unlimited power of intrusion into medical files largely intact.

Until and unless legislation or a court decision significantly changes HIPAA's privacy rules, their use will probably differ from state to state. HIPAA says state laws that are more protective of privacy will trump HIPAA regulations that have weaker privacy provisions. But deciding which law is more protective can be a tricky judgment call.

Should Californians fear that state troopers or local police will use administrative subpoenas to grab their medical records? The state Constitution has a "right to privacy" enshrined in its first paragraph; it requires that the government show probable cause for the search and seizure of personal papers. And in years past, the Legislature has passed strong privacy protections. For instance, California has a statute that says state agencies cannot disclose medical data that identify individual patients without being served with court-approved search warrants.

Oddly, the state government seems intent on weakening those protections.

The California Office of HIPAA Compliance (CALOHI), which is part of the state Health and Human Services Agency, recently spent $2 million comparing hundreds of state laws to HIPAA. The office hasn't completed its work, but state lawyers have concluded that the strong search powers that HIPAA grants to law enforcement seem to overrule California laws. These lawyers wrote a bill that would bring state laws into conformity with HIPAA. The bill is sponsored by the Senate Committee on Insurance, chaired by state Sen. Jackie Speier (D-Hillsborough).

Richard Turkington, a professor at Villanova University School of Law in Pennsylvania, is a national expert in privacy and constitutional law and HIPAA. He reviewed CALOHI's work at the request of SF Weeklyand subsequently said he was surprised that the state did not address the privacy and search and seizure protections written directly into the California Constitution, which, he says, "give greater privacy rights than HIPAA."

"The federal government made the landmark choice not to write strong Fourth Amendment protection into HIPAA," Turkington observes, "but left the states with the discretion to do so. The practical effect of Speier's bill would be to nullify current California legislation that provides more protection for medical records than HIPAA."

Dana Mitchell, legal counsel to the California state Legislature, agrees with Turkington that Speier's bill allows HIPAA to swallow up the more protective state laws. "We should rewrite it," she says, adding that she hopes someone will light a fire under the Legislature to do so.

A spokesman for Speier, Michael Ashcraft, says that the bill is not likely to move beyond the confines of the Senate Committee on Insurance. "The purpose of the bill was to clarify which law to follow, state or federal, in regard to medical records," Ashcraft says. "But CALOHI could not come up with language that was not controversial." He declines to say what position Speier takes on the possibility of HIPAA prevailing over stronger state privacy laws.

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