After losing an appeal challenging the constitutionality of portions of the HIPAA privacy regulations, a group of physicians led by the South Carolina Medical Association plan to take their case to the Supreme Court.
"We are going to ask the U.S. Supreme Court if they are going to hear the case," South Carolina Medical Society CEO William Mahon told Modern Physician on Friday.
On Tuesday, the federal Fourth Circuit Court of Appeals in Richmond, Va., upheld a trial court's ruling last August that the 1996 HIPAA legislation did in fact give HHS the proper authority to create and enforce healthcare privacy regulations.
A three-judge panel notes in its ruling that the Supreme Court has not struck down a law for an unconstitutional delegation of legislative power since 1935. The judges say that Congress did, in fact, set clear limits of HHS rulemaking authority within the HIPAA legislation and that HHS acted within the scope of that power.
The court also notes that Congress still has the constitutional authority to change the law at any time.
Furthermore, the judges dismiss the argument that the privacy regulations only apply to personal health information stored in electronic form.
"If coverage were limited to electronic data, there would be perverse incentives for entities covered by the rule to avoid the computerization and portability of any medical records," effectively defeating the intent of HIPAA, the judges write.
The South Carolina Medical Association is joined in its suit against HHS and Secretary Tommy Thompson by six physicians and by the Louisiana State Medical Society as plaintiffs. The medical societies of Alabama, New York, Connecticut, North Carolina and Idaho are supporting the case.
The AMA and national specialty medical societies are not participating.