Nurse files privacy suit against IT sections in stimulus spending law

Lawsuit, which is expected to be the first of many, alleges billions of dollars earmarked for creating electronic health records put personal data 'a mouse-click away from being accessible to an intruder.'

A New Hampshire nurse filed a lawsuit late last month against the Health and Human Services Department, claiming the health information technology sections of the 2009 stimulus bill violate her privacy protections in federal and state laws, including the Health Insurance Portability and Accountability Act and the Hippocratic oath.

Beatrice Heghmann, a nurse in Durham, N.H., alleged in the lawsuit that because the health IT sections of the 2009 American Recovery and Investment Act mandate every health care provider in the nation create an electronic health record for all patients, the law puts her personal health information "a mouse-click away from being accessible to an intruder."

In the complaint, filed in the U.S. District Court for the Southern District of New York, Heghmann asked for a preliminary and permanent injunction against the health IT sections of the stimulus bill to prevent "unconstitutional exposure of her personal health information."

The suit named Kathleen Sebelius, HHS secretary; Nancy-Ann DeParle, director of the White House Office of Health Reform; and Charlene Frizzera, acting administrator of the Centers for Medicare and Medicaid Services, as defendants. She also asserted the stimulus bill gives the HHS secretary wide latitude to determine the kind of "minimum necessary information" that can be extracted from a patients health care record and provided to third parties.

An HHS spokeswoman did not return a call for comment on the lawsuit.

The lawsuit highlights one of the key problems with the health IT sections of the stimulus bill, said Twila Brase, president of the Citizens' Council on Health Care, a nonprofit group in St. Paul, Minn., that advocates confidentiality of patient-doctor relationships. The law "facilitates creation and sharing of electronic medical records without consent," she said. Allowing the HHS secretary to set minimum standards for sharing health information "puts privacy in the hands of a political appointee," rather than a doctor, Brase added.

The stimulus law also takes away states' rights to enact tougher privacy protections than those contained in the federal statute. In an interview, Robert Heghmann, the lawyer who filed the suit and Beatrice's husband, said New Hampshire's privacy law has stricter provisions on the sharing of health care information than federal law.

Asked if the lawsuit had a slim chance of a judge ruling in favor of it, Robert Heghmann said, "This is not a long shot," and said they would prevail.

But the suit is "hyperbolic and a bit over the top," said Karl Thallner Jr., a partner at Reed Smith LLP law firm in Pittsburgh, who specializes in health care litigation.

Dr. Deborah Peel, founder of Patient Privacy Rights, a medical privacy watchdog group in an Austin, Texas, predicted more lawsuits against the health IT section of the stimulus bill would follow the Heghmann case. "Lawsuits over privacy rights will continue to be filed because Americans expect to control their electronic health information, just as they have always controlled their paper health records," she said.

Peel added that patient rights are reflected in state laws covering privacy protection, as well as common law, tort and contract law, the physician-patient privilege, the psychotherapist-patient privilege, and constitutional rights to health privacy. Congress must ensure consumer control over electronic health information, she added.

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