Court Considers Challenge of Patient Privacy Regulations

Federal regulations that took effect two years ago have made it harder for people to keep their medical files private, a lawyer for a group of health care advocates told a federal appeals court Wednesday.

The U.S. Department of Health and Human Services implemented the regulations in 2003 with the intent of strengthening patient privacy and eliminating bureaucratic barriers to the flow of information between medical professionals involved in a patient’s care.

But some critics have assailed a portion of the rules that allow doctors and other health care workers to circulate records on a limited basis without consulting patients first.

James Pyles, an attorney for the Washington-based consumer group Citizens for Health, told a three-judge panel of the 3rd U.S. Circuit Court of Appeals that patients have a right to control who sees their records and who doesn’t.

“The right to medical privacy is deeply rooted in this nation’s history,” he said. “All we are asking for in this case is a restoration and recognition of the right to say no.”

The 3rd Circuit panel is considering whether to overturn a judge’s decision last April to throw out a lawsuit that contended that the new rules were unconstitutional.

Government attorney Charles Scarborough told the judges that the regulations haven’t done anything to alter long-standing ethical practices regarding the secrecy of medical files. The new rules placed a host of restrictions on who could access private medical data, and they don’t require doctors to share more information that they have in the past, he said.

“The privacy rule, if anything, ratchets up the level of privacy,” he said.

The judges hearing arguments in the case Wednesday questioned the attorneys at length about the practical impact of the rules.

Judge Theodore McKee asked what would happen if, for example, he was seeking medical care for HIV, the virus that causes AIDS, and didn’t want anyone to know he had tested positive. If he was paying for the treatment out of his own pocket, he asked, could he instruct his doctor not to release any information about his condition to anyone else, under any circumstances?

Probably not, Scarborough said.

But, he added, the new regulations would expressly forbid the doctor from sharing that medical data with anyone who wasn’t involved in treating the patient, paying for his treatment, or coordinating health care operations at the facility where he received his care.

McKee asked whether a particular type of medical information might be shared on the basis that it was being used for “health care operations.” Scarborough said he wasn’t sure.

“Well, if you don’t know that, how is the patient going to know that?” McKee said.

The court did not indicate when it would rule in the case. It could let the lower court decision stand, rule that the new privacy regulations are unconstitutional, or send the case back to a U.S. District judge for further review.

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