Congressman signs on
to sue government

August 31, 2001

A Republican congressman has joined a respected physicians group in a lawsuit against the Department of Health and Human Resources for issuing regulations plaintiffs say violate constitutional privacy protections.

“Rep. Ron Paul, R-Texas, has joined the Association of American Physicians and Surgeons as a plaintiff in a lawsuit filed today in Houston against HHS and Secretary Tommy Thompson to overturn new federal medical privacy regulations as unconstitutional,” said Kathryn Serkes, a spokeswoman for the AAPS.

The libertarian-minded Paul – a surgeon by profession – has long opposed the HHS regulations because they allegedly open up a patient’s medical records to unreasonable invasions of privacy by government and private entities.

“Far from protecting privacy, these rules give government officials and certain private interests a new federal right to access medical records without consent,” Paul said in a statement released by the organization.

“AAPS deserves the gratitude of every American for fighting to stop these regulations, and I am pleased to support their efforts,” he added.

In its suit, the organization claims the rules – written under the authority of the Health Insurance Portability and Accountability Act of 1996, or HIPPA – violate the First, Fourth and 10th Amendments to the U.S. Constitution, as well as the Paperwork Reduction and Regulatory Flexibility Acts.

The agency’s privacy regulations “expressly reiterate the traditional expectation of privacy by patients in their medical records,” said the complaint. But they also “simultaneously allow government virtually unrestricted access to those same records without a warrant.”

Furthermore, the suit claims that HHS failed to promulgate the final regulations within the time period specified under HIPAA.

The lawsuit seeks declaratory judgments that the regulations:

Violate the Fourth Amendment by requiring physicians to allow government access to personal medical records without a warrant or patient consent, and authorizing the government construction of a centralized database of personal medical records with personal health identifiers;
Violate the First Amendment to the extent they chill patient-physician communications “by requiring them to be subject to warrantless review by government”;
Violate the Tenth Amendment to the extent they govern purely intrastate activities by physicians in using and maintaining medical records for patients;
Violate HIPAA and lack statutory authorization to the extent they regulate medical records other than electronic transmissions, were not promulgated within the time period expressly required by Congress, and increase administrative costs.

The suit also describes how the regulations violate a number of state laws and constitutional protections that “grant a specific right to privacy.”

“Law enforcement agencies will have unrestricted access to all records – including notes about drug use, family interactions and other confessions. But it gets even worse,” said the statement. “Not only can doctors be fined or imprisoned – up to $50,000 and one year – for withholding records, patients can be denied treatment if they refuse to sign the consent form.”

“We’ve tried everything else. We’ve appealed to Congress; we’ve testified at HHS; we’ve generated tens of thousands of public comments and frozen up the HHS e-mail server with public response. None of it has done any good,” said the group’s executive director, Dr. Jane Orient, in explaining why AAPS resorted to a lawsuit.

“We had nothing left to do short of leaving our patients to the mercy of government spies or resorting to civil disobedience by refusing to violate our ethical code and our patients’ privacy, or file a lawsuit. We choose to work through the courts,” she added.

Joining in the suit are Dawn Richardson, Rebecca Rex and Darrell McCormick.

Richardson, a patient from Austin, Texas, is president of a group known as Parents Requesting Open Vaccine Education, or PROVE, a non-profit association. Rex is a patient from Houston, Texas, and is vice president of PROVE. McCormick is a patient who resides in Gainesville, Fla., and a former billing manager for about 500 physicians at the Shands Healthcare System at the University of Florida, also in Gainesville.

Serkes said even Paul was showing signs of desperation.

“Sometimes, even a member of Congress has to sue the government to get anything done,” she said.

She added that some analysts have said they believe the suit may succeed.

“They say the Tenth Amendment issue is probably the strongest,” she told WND.

AAPS is a non-partisan association of physicians in all specialties. Established in 1943, the group says it exists “to protect the sanctity of the patient-physician relationship from third-party intrusion” and accepts no “government grants or contracts.”

“Our organization doesn’t extort our member physicians to the tune of tens of millions of dollars a year in membership fees,” Serkes said, “so we don’t do lawsuits for the ‘public relations’ benefit of it. The leadership just didn’t feel there was any other choice.”