Sunday, April 23, 2006

HIPAA vs. the US Patriot Act

[Posted by ClinkShrink]
In the course of reviewing for my forensic recertification exam I am struck by the dramatic and divergent changes in patient privacy issues since I did my fellowship ten years ago. When I was in training the standard assumption was that psychiatric records were private and that a written release was required from the patient to disclose any information. That was pretty simple. We didn't have to think about electronic medical records, email, faxes, telepsychiatry or many other forms of electronic communication either because they just didn't exist or weren't in common use. Then came HIPAA. Enough said.

The latest and most counter-intuitive twist in patient privacy is now the U.S. Patriot Act. What this means for psychiatrists is that if the government wants your records, you give it to them. Period. And you can't tell your patient. Ever. A request for records under the U.S. Patriot Act comes in the form of a National Security Letter (NSL). According to the Foreign Intelligence Surveillance Act (FISA), an NSL must be approved by a judge of the Foreign Intelligence Surveillance Court. However, there is no requirement for any standard of proof that a national security issue is at risk---no "reasonable suspicion", no "probable cause"---and no mechanism to challenge the letter or appeal the granting of the NSL.

If you receive a National Security Letter you may not tell your patient that you received it or that you have turned their psychiatric records over to government investigators. This gag order is permanent. And the request is not limited to any particular physical location---keep this in mind if you have a home office.

As you struggle every day to interpret and comply with HIPAA regulations, it's ironic to know that the government could suddenly decide to rifle through your home office filing cabinet and there's really nothing you can do about it.

For those of you interested in learning more about the ramifications of NSL's and the Patriot Act on your practice, download the ACLU's pdf file on this issue:

Unpatriotic Acts: The FBI's Power to Rifle Through Your Records and Personal Belongings Without Telling You


Anonymous said...

Pretty chilling document to read, that ACLU link. I wasn't aware that we would be prevented from telling our patients that the FBI requested their records. Their complete lack of accountability reminds me of the Md Board of Physicians assertion that no court has any authority to review their subpoena requests. [See Psychiatric News]

Anonymous said...

For a long time, I've argued (against deaf walls, generally) that HIPPA is a drastic DECREASE in protection for psychiatric records when compared against what we had as a standard previously. What amazes me is the extent to which our psychiatric organizations have failed to realize this, have failed to speak out about it, and have really failed to represent the needs of their members and our patients. But that's nothing new. The same thing is in progress with such things as the push to electronic records (before the technology is really capable of making the record more efficient), the lack of outrage from the medical establishment about "medical marijuana" laws, the fact that multiple drugs are being approved for treatment of alcohol dependence despite the complete lack of evidence that they are of ANY value (amazing, isn't it?), and on and on.

Anonymous said...

Hello, ClinkShrink. I am writing an article about this issue for the Daily Pennsylvanian. I would like to quote you, and would like to attribute your name to the quote. Please ASAP e-mail me @ Thanks.