NJ anti-HCR activists cry vindication on search and seizure of medical records

The two New Jersey men suing against the health care reform bill always said that it violates the Fourth Amendment. And now, they say, the government has proved that for them.

The latest proposal

Kathleeen Sebelius, Secretary of Health and Human Services, has proposed a new rule. Under it, all insurers must put all their clients’ medical records on-line, and HHS will manage them. Technically, the rule lays out three different options for the vast medical database:

1. One centralized federal database,
2. Fifty databases, one for each State, or
3. Records staying in insurers’ hands, with insurers taking orders from the government.

Any way they do it, this will put patient medical records in government hands. Representative Tim Huelskamp (R-KS-1) objected strongly in The Washington Examiner four days ago. His objections are more practical than fundamental:

1. HHS has lost confidential information before this.
2. The government now asks too much about private business practices.

(See also Michael Tennant’s essay at The New American.)

But two New Jersey activists noted a third reason a year ago: this is an unreasonable, and unwarranted, search and seizure. They noted this in their fifteen-count lawsuit against the health care reform bill.

What does the health care reform bill say?

Nick Purpura and Donald R. Laster Jr noticed a key part of the health care reform bill (HR 3590). It is Section 1128J: Medicare and Medicaid Program Integrity Provisions (pp. 1687-1692ff). This section creates an “Integrated Data Repository” to include “claims and payment data” from:

1. Existing Medicare and Medicaid programs.
2. The Veterans’ Affairs hospital and other systems.
3. The Social Security program.
4. The Indian and Contract Health Services program.

The Inspector General’s office will have access to any medical record that he deems necessary to investigate.

Notwithstanding and in addition to any other provision of law, the Inspector General of the Department of Health and Human Services may, for purposes of protecting the integrity of the programs under titles XVIII and XIX, obtain information from any individual (including a beneficiary provided all applicable privacy protections are followed) or entity that—

(A) is a provider of medical or other items or services, supplier, grant recipient, contractor, or subcontractor; or

(B) directly or indirectly provides, orders, manufactures, distributes, arranges for, prescribes, supplies, or receives medical or other items or services payable by any Federal health care program (as defined in section 1128B(f)) regardless of how the item or service is paid for, or to whom such payment is made.

(Source: NJ plaintiffs warn of warrantless search and seizure of medical records - Newark Essex County Conservative | Examiner.com http://www.examiner.com/essex-county-conservative-in-newark/nj-plaintiffs-warn-of-warrantless-search-and-seizure-of-medical-records#ixzz1ZC600n00)

Kathleeen Sebelius’ new rule now makes real what was only hypothetical until now. The title of the new rule refers to the health care reform bill by name. This is clearly part of the plan that Purpura and Laster noticed. They noticed it because they did what Congress would not: they read the bill.

How might this affect Purpura and Laster’s lawsuit?

This Examiner spoke to both men today. Purpura, with a hearty laugh, said, “I could not ask for a better gift than this.” Purpura said that the proposed rule directly violates the Constitution and the current HIPPA Privacy Rule. In fact, Purpura said that by proposing this rule, Sebelius now “open[s] the door for further litigation.”

Laster agreed, and quickly pointed out that theirs is the only pending lawsuit that even mentions this obvious violation of the Fourth Amendment to the Constitution.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The case of Purpura v. Sebelius is now before the Third Circuit Court of Appeals. A lower court dismissed the case by saying that Purpura and Laster had no standing. But the proposed rule weakens that argument, by subjecting all medical records to immediate search and seizure.

In related news, Purpura said that the Obama administration walked into a trap yesterday. The case of Florida ex rel. Bondi et al. v. HHS et al. will go directly to the Supreme Court, not to an en banc rehearing before the Eleventh Circuit. The split in the circuits between the Eleventh and Sixth Circuits almost forces the Supreme Court to take the Florida case. Purpura would not speculate on why the administration wanted an immediate Supreme Court hearing.