A small but politically active physicians' group says it is gathering more support before filing its threatened lawsuit challenging the constitutionality of the medical privacy regulations of the Health Insurance Portability and Accountability Act of 1996.
The conservative-leaning Association of American Physicians and Surgeons announced plans in late July to file the lawsuit against HHS and Secretary Tommy Thompson. But nearly a month later, the doctors have yet to make good on their threat.
The group has yet to file its complaint, said Executive Director Jane Orient, M.D., because several other potential plaintiffs are planning to join the group's lawsuit. So far, the Tucson, Ariz.-based organization, which claims about 4,500 members, has enlisted the support of two individuals and one patient group.
"We're waiting for answers from potential co-plaintiffs," said Orient, explaining the delay.
The lawsuit contends that HIPAA's privacy regulations in fact provide for "virtually unrestricted" government access to medical records. "The privacy regulations," according to the group's draft complaint, "require physicians to aid and abet governmental searches of patient medical records in violation of the Fourth Amendment rights of the patient."
It also contends that the regulations "facilitate the construction of a centralized database by (the) government of personal medical records with unique individual identifiers, without patient consent."
The lawsuit would be the third filed in federal court against the regulations, which took effect in mid-April. Earlier this year, separate complaints were filed in federal court in Columbia, S.C., by the South Carolina Medical Association and the Louisiana State Medical Society.
HHS published the final privacy regulations in April, but they don't take effect until 2003.
Orient's group announced its plans for the suit July 31, during a press conference in Washington to release a survey showing that one in five physicians admitted lying to protect a patient's privacy. On another question, 78% of the 334 physicians polled by the AAPS said that they have withheld information from a patient's record because of privacy concerns.