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Legislative Efforts of 2006

Summary

2006 was the most successful year to date for APsaA in terms of its influence on national health care policies; in fact, the association's involvement and impact on the issue of health information privacy was unmatched by any other organization of health care practitioners.

The year started out on an ominous note: the Senate passed a health information technology bill with few privacy protections, and the House seemed poised to follow. However, the tides changed dramatically as APsaA and other champions of patient privacy worked together to effect legislative change. APsaA made its stand on Capital Hill and in the Courts, serving as counselors, educators, and mediators. The association reached across partisan lines, and even worked with local candidates to make patient privacy an issue on the November elections. The result? Not only did Congress not enact the health IT bill, but House and Senate Democrats are now working with APsaA counsel to introduce comprehensive privacy legislation that incorporates all of APsaA's privacy principles.

In 2006, APsaA made itself heard in the political arena. The association should be proud of our achievements, but it is only the beginning. APsaA must continue its dedication to health information privacy and make 2007 an even more successful year.

Full Report

Overview

Calendar year 2006 was the most successful year that APsaA has had to date in influencing health care policy on a national level. APsaA was involved in many issues but APsaA's involvement and impact on the critical issue of health information privacy was unmatched by any organization of health care practitioners. In fact, on June 15, APsaA's arguments in defense of the right to health information privacy was pending before both Congress and the United States Supreme Court.

At the beginning of the year, the U.S. Senate had just passed a health information technology (IT) bill with few privacy protections, and the House of Representatives appeared poised to pass a health IT that not only had few protections, but also granted broad discretion to the Secretary of Health and Human Services (HHS) to establish national health information privacy standards preempting state health information privacy laws. It even appeared that the psychotherapist-patient privilege at the federal and state levels, as recognized in Jaffee v. Redmond could be in jeopardy.

By the end of 2006, the legislative environment had changed radically in APsaA's favor:

  • all Democratic members of the House and several Republican members had expressed their support for a health information privacy amendment to the health IT bill based largely on APsaA's Ethics Based Privacy Act;
  • the state law preemption provision of the House health IT bill had been dropped by House Republicans;
  • the health IT bills that passed the House and the Senate with few privacy protections failed to be enacted by Congress;
  • leadership of both the House and the Senate changed to Democrats who supported stronger privacy protections;
  • House and Senate Democrats have been working with APsaA counsel to introduce comprehensive health information privacy legislation that incorporates all of APsaA's privacy principles;
  • On the litigation front, the Court of Appeals for the Third Circuit refused to provide relief for privacy violations caused by the HIPAA Privacy Rule, but APsaA filed an amicus curiae brief in the Maryland Court of Special Appeals in support of a psychiatrist who refused to disclose his patients' psychiatric records over their objections and contrary to his standards of professional ethics. There is a good chance the the Maryland court will rule in favor of the position supported by APsaA.

In achieving these victories, APsaA and its counsel worked closely with other organizations such as Patient Privacy Rights (a national consumer organization founded by Dr. Deborah Peel) and the National Association of Social Workers. It is unlikely that APsaA would have experienced such success without the collaboration of these organizations.

Highlights

1. In late December of 2005, APsaA was invited to a meeting arranged by Congressman Patrick Kennedy (D-RI) with representatives of the Health Care Leadership Council (the group principally behind the House health IT bill) to see if a compromise could be reached between opposing views. APsaA was clearly seen as leading the effort to preserve the right to health information privacy. The HCLC refused all efforts at compromise and insisted on preemption of state privacy laws and adoption of the HIPAA "floor" of privacy protections as the new national privacy standards.

2. February 6, 9 and 11, APsaA was invited to brief the Republican Study Group (a large group of Republican Congressional staffers) on the importance of health information privacy protections in health IT legislation. APsaA was also invited to meetings with senior staff for the Health Subcommittee of Ways and Means to discuss changes in the health IT bill (H.R. 4157).

3. February 21, APsaA was the only health practitioner organization invited to a roundtable discussion by "stakeholders" (those affected by health IT legislation) with Republican and Democratic staffers of the House Energy and Commerce Committee.

4. March 16, APsaA was the only health practitioner group invited to present testimony at a hearing before the House Energy and Commerce Committee on the health IT bill.

5. March 29, APsaA counsel was invited to a closed door meeting of the Congressional members of the Health Subcommittee of the House Ways and Means Committee to debate a representative of the Health Care Leadership Council on whether HIPAA provided adequate protections a national health IT system.

6. April 3, APsaA counsel drafted and sent revised legislative language on behalf of the Privacy Subcommittee of the Mental Health Liaison Group to senior staff for the Ways and Means Health Subcommittee. On April 4, APsaA sent additional revised legislative language supported by APsaA.

7. May 16, June 5, June 13, June 14, July 6, and July 25, APsaA sent detailed letters to leadership of the House Ways and Means and Energy and Commerce Committees consistently contending that the privacy protections in HIPAA were inadequate for a national electronic health information system and setting forth basic privacy protections that would be essential in preserving access to quality health care and permitting the successful implementation of a national health IT system. APsaA also worked closely with Congressman Markey's staff to develop an amendment to the health IT bill that would add basic privacy protections.

8. In early June, APsaA counsel was invited to a luncheon with 6 Republican Congressmen to brief them on the importance of privacy protections in health IT legislation.

9. June 15, APsaA joined with NASW to provide a privacy briefing in the U.S. Capitol commemorating the ten-year anniversary of the landmark Supreme Court decision in Jaffee v. Redmond. That briefing included an appearance by Karen Beyer, the social worker whose refusal to disclose psychotherapy communications was the subject of the decision.

10. June 22, the National Committee on Vital and Health Statistics (NCVHS) issues a report to the Secretary of HHS based on hearings that included testimony by APsaA counsel and member Dr. Prudy Gorguechon. In that report, NCVHS advised HHS that the HIPAA Privacy Rule was inadequate to provide the privacy protections needed in a national health IT system and further defined privacy as including the right to control the disclosure of one's health information.

11. July 27, the House refused, by a close vote of 222-198, to allow the Markey privacy amendment to be considered. That amendment was introduced on four prior occasions as the health IT bill made its way through the House. Strong statements in favor of the amendment were made on the House floor by Congressmen Ed Markey (D-MA), Patrick Kennedy (D-RI), Lois Capps (D-CA), Anna Eshoo (D-CA), and Doris Masui (D-CA).

12. APsaA (and NASW) took a consistent position in support of the health privacy amendment throughout the debate on the House health IT bill and discovered later that the other major mental health practitioner organizations had ultimately supported the amendment as well.

13. APsaA worked with various political candidates to make health information privacy an issue in the November elections.

14. On November 10, three days after the Congressional elections, APsaA sent a memo to House and Senate Democrats emphasizing the importance of listening to the public's desire for strong privacy protections in any health IT system.

15. In December and January 2007, APsaA counsel has been working with members of the House and the Senate on health privacy legislation.

16. APsaA counsel worked with NASW to develop a set of Basic Privacy Principles, and those organizations have shared them with other mental health practitioner organizations and asked for their support.

17. On March 9, the United States Court of Appeals for the Third Circuit issued its decision in Citizens for Health v. Leavitt holding that while the health privacy of the plaintiffs had been violated by private entities as a result of the HIPAA Privacy Rule, no relief could be granted for the alleged Constitutional violations because the privacy violations were committed by private entities rather than directly by the government. On October 2, the United States Supreme Court denied the petition for certiorari.

18. On October 19, APsaA counsel filed an amicus curiae brief on behalf of 28 national and state mental health practitioner and consumer organizations, including APsaA, in Maryland State Board of Physicians v. Eist pending before the Maryland Court of Special Appeals. At oral argument held on December 8, the Court appeared to be favorably disposed to the position that psychiatrists should be able to honor their patients' requests that their psychiatric records not be disclosed to investigate a complaint by a third party.

19. APsaA also supported a bill sponsored by Senator McCain that prohibits the United States from engaging in the torture of enemy combatants.

20. APsaA also opposed a proposal that would have allowed insurers to condition issuance of health or life insurance on the applicant obtaining a genetic test. APsaA also opposed the inclusion of an individual's genetic information in a publicly accessible data base without the individual's informed consent.