Southern docs pledge to appeal court decision upholding HIPAA

Physicians contend provisions unconstitutional

The long-running legal battle between a group of southern doctors and the federal government over the constitutionality of the Health Insurance Portability and Accountability Act turned against the citizens group last month when a lower court upheld HIPAA's constitutionality. But the resisters are not giving up. Instead they are hatching plans to take their case to the U.S. Supreme Court.

The 4th U.S. Circuit Court of Appeals upheld on April 25 an August 2002 ruling against the physicians, finding that Congress had acted appropriately in delegating legislative power to the Department of Health and Human Services to draft and enforce the HIPAA regulations. The three-judge circuit court stated that Congress had "laid out an intelligible principle to guide agency action."

The physicians maintain, however, that certain provisions of the rules exceed the authority of the HHS. They argue that privacy regulations should apply only to electronic health information. But the circuit court stated that such a narrow interpretation would achieve the opposite of the rule's intent by discouraging providers from computerizing personal health information.

The South Carolina Medical Association originally filed suit in federal court in South Carolina in July 2001 against the HHS, seeking to overturn the HIPAA privacy rules developed by the Clinton administration and enacted under the Bush administration. The HHS issued the final HIPAA privacy rule last August. It took effect April 14 (SCAN 4/30/03).

The SCMA had hoped to keep this from happening. The decision in August 2002 by a federal judge to dismiss their lawsuit led the group and a new ally, the Louisiana State Medical Society, to file an appeal in the 4th Circuit Court in January. Their next and final step is to file an appeal with the U.S. Supreme Court.

The basis of their argument is that Section 264 of HIPAA "unlawfully allowed the Secretary to create patient privacy regulations with virtually no congressional guidance, nor even the legislative establishment of a federal patient privacy program." They are also challenging a HIPAA provision that permits state laws to govern disclosures and use of medical information where state laws are deemed to be more stringent than the federal regulations. They argue that determining whether state laws are more stringent is "no easy task" and, therefore, the regulations are too vague to be enforced.