AAPS doctors sue to halt HHS privacy regs

The Association of American Physicians and Surgeons (AAPS) recently announced a new lawsuit against the Department of Health and Human Services (HHS) to halt implementation of the new medical privacy regulations written under the Health Information Privacy and Accountability Act (HIPAA) of 1996.

Unlike another lawsuit filed by the South Carolina Medical Association that seeks judgment that Congress’ authorization to HHS to promulgate the regulations is an unconstitutional delegation of its legislative authority, this lawsuit challenges the actual constitutionality of the regulations themselves based on the content and outcomes. The lawsuit claims that the regulations are illegal since they violate the Constitution and its amendments, as well as the Paperwork Reduction Act, explains AAPS public affairs counsel Kathryn Serkes, JD. The lawsuit seeks declaratory judgments based on these allegations:

  • The regulations violate the Fourth Amendment by requiring physicians to allow government access to personal medical records without a warrant and authorizing the government construction of a centralized database of personal medical records with personal health identifiers.
  • They are unconstitutional to the extent they govern purely intrastate activities by physicians in using and maintaining medical records for patients, and disrupt state laws.
  • They violate HIPAA and lack statutory authorization to the extent they regulate medical records other than electronic transmissions.
  • The regulations violate the Paperwork Reduction Act and Paperwork Flexibility Act and are unenforceable and incomplete.

Serkes says the most heavy-handed aspect of the new federal rules is the unprecedented government access to everyone’s private medical records.

"While masquerading as patient protection, the rules would actually eliminate any last shred of patient confidentiality," she says. "When it comes to government prying, these rules obliterate any remote notion of patients’ rights. Doctors are required to disclose all patients’ records to thousands of federal bureaucrats — with or without consent. That includes handwritten notes and psychiatric records."

Law enforcement agencies will have unrestricted access to all records — including notes about drug use, family interactions, and other confessions, Serkes says.

"But it gets worse. Doctors be not only fined for withholding records, but the feds can order them to refuse treatment to patients who won’t consent to government disclosure," she says. "If patients expect the government to protect them from marketing efforts, they’re in a for a rude surprise. It was government employees who sold patients medical records from government databases to HMO recruiters in Maryland a few years ago."

Serkes says the regulations are so flawed that they should be scrapped altogether and a new plan devised from scratch.