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Health Freedom Watch
September 2010

Contents:

Health Care Reform: Why I’m Suing to Get Back My Freedom

By Matt Sissel

(Iowa City, Iowa)—Since the new federal health care law was enacted in March, some 21 states have joined or filed legal challenges. Everyday Americans have, too. 

I’m one of them. 

I filed a federal lawsuit at the end of July. Depending on how the briefing is scheduled, oral argument could take place in the first quarter of 2011. 

I’m a 29-year-old veteran and small business owner, with no political involvement or ambitions. So, why would I take this dramatic step? 

Individual Mandate 

The answer starts with explaining what exactly I’m challenging: the constitutionality of the health care law’s “individual mandate.” Beginning in 2014, nearly everyone will be required to purchase a private health insurance plan if he or she isn’t already covered by an employer.

Not just any health insurance will be allowed. For example, because I’ll be older than 30 when the mandate kicks in, I won’t be given an option to buy low-cost, high-deductible insurance that would pay only for “catastrophic” medical situations. Instead, I’ll have to buy a more costly plan with a broad range of federally prescribed coverage. 

The government should not limit our choices about such intensely personal matters, or burden us with expensive and inflexible mandates. 

Consider my situation. I’m a healthy young man fresh out of art school. I’m starting a small business, based in Iowa City, as a fine artist specializing in realistic drawing and painting. I have limited means and struggle to achieve my modest dreams. Every penny counts in the service of my career goals, but the federal government is intent on slowing down my progress and the progress of every other productive man and woman in this country in its drive to socialize the American health care system.

As a business person, I intend to cover my own medical expenses, and I want the freedom and flexibility to do my own budgeting, including setting aside money for medical needs.

I don’t want the federal government dictating my personal financial decisions.

It can’t even run its own budget!

Founding Principles

My principles, I believe, are the same ones held by our founding fathers. To defend individual freedom, they tried to limit the size of the federal government and what it could do. They could not have conceived of the federal entanglement in people’s personal, private choices that “Obamacare” represents.

In my lawsuit, I’m represented by lawyers with the Pacific Legal Foundation, a watchdog organization for limited government. We are invoking the Constitution’s Commerce Clause, a provision that both gives the federal government power and draws boundaries around that power. 

Congress is authorized to “regulate commerce ... among the several states.” But that is not a license to compel anyone to engage in commerce, or to force us to buy federally dictated products. 

As Luke Wake, one of my attorneys, says: “Never before has the federal government ordered citizens to buy a good or service on pain of financial punishment. The Constitution, properly interpreted, simply doesn’t permit this kind of micro-management of people’s lives by bureaucrats in Washington.” 

I proudly served our country in the Iowa Army National Guard as a combat medic, spending two years in Iraq and eventually being awarded the Bronze Star. I mention that experience in order to drive home this point: While I am proud to have served my state and my country as a volunteer, I object to being conscripted into a federal health-care program that is at odds with basic constitutional principles of individual rights and limited government. 

I see my lawsuit as a battle for my liberty – my freedom to live out my life to the fullest without costly, one-size-fits-all dictates from the government. I am fighting the command-and-control health-care plan in order to safeguard the health of our Constitution and the freedoms it protects for me and for all Americans. 

Iowa City resident Matt Sissel served eight years in the Iowa Army National Guard. His lawsuit, Sissel v. US Department of Health & Human Services, has been filed in the US District Court in Washington. The complaint is posted at the Pacific Legal Foundation’s website: http://community.pacificlegal.org/Document.Doc?id=458 

Source: “Christian Science Monitor Runs PLF Client’s Op-Ed on Health-Insurance Mandate,” Pacific Legal Foundation press release, September 14, 2010: http://community.pacificlegal.org/Page.aspx?pid=1386

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Massachusetts Requires Doctors, Insurers to Submit Data on Postpartum Depression

Starting next year, Massachusetts health care providers and insurers will have to submit screening data for postpartum depression to state government health officials.  Democratic Governor Deval Patrick signed the legislation (H. 4859) on August 19. 

The new law (Ch. 313), “An Act Relative to Postpartum Depression,” includes these provisions (emphasis added): 

  • “The department of public health may consult with health care providers, including, but not limited to, obstetricians, gynecologists, pediatricians and primary care providers, non-profits and health insurance carriers regarding postpartum depression to develop a culture of awareness, de-stigmatization and screening for perinatal depression so that residents of the commonwealth may be assured of the most effective and affordable provision of public health services possible.”
  • “The department shall develop standards for measuring effective screening for postpartum depression using recognized clinical standards and best practices and shall make recommendations for health plan and health care provider data reporting.”
  • “The department shall issue regulations that require providers and carriers to annually submit data on screening for postpartum depression.”
  • “Following the receipt of the data, the commissioner of public health shall issue an annual summary of the activities related to screening for postpartum depression, including best practices and effective screening tools.” 

It is important to note that the HIPAA privacy rule permits public-health workers to use and disclose individually identifiable health data without patients' authorization. The Institute for Health Freedom has warned for many years that this major loophole allows patients’ personal health information to be shared with many others—without their consent.  (See 45 CFR Subtitle A, Subpart E—Privacy of Individually Identifiable Health Information; section 164.512 “Uses and disclosures for which an authorization or opportunity to agree or object is not required.”)

And since Massachusetts appears to be the model for much of ObamaCare, citizens across the country should pay close attention to what happens to our privacy rights under mandatory health insurance.  

Sources:

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Proposed Changes to Privacy Rule Won’t Ensure Privacy

The federal government once again is modifying the HIPAA privacy rule.  This time around it’s modifying the rule to incorporate legal requirements in the economic stimulus law passed in 2009.   But since that law does not require consent before health information is shared for most purposes (including treatment, payment, and health-care operations), the modifications will fail to truly protect health privacy rights.  IHF first reported on this in March 2009: http://forhealthfreedom.org/Newsletter/March2009.html#Article2  

IHF noted that while the stimulus law aimed to prohibit the sale of electronic health records, the exceptions are so broad that it fails to meet its purported objective.  In fact, the stimulus law actually permits the selling of Americans’ electronic health records for public-health and research purposes—without patients’ consent.  The stimulus law also limits insurers’ access to health data, but only if patients pay out-of-pocket and forgo insurance reimbursement. 

Additionally, the stimulus law expanded the number of people authorized to access patients’ personal health information without patients’ consent.  Previously HHS estimated that about 600,000 covered entities (and their employees) would have access to patients’ data for many purposes.  However, the stimulus law added some 1.5 million “business associates” who can legally access patients’ health records—without patients’ consent.  Now over 2 million health-related organizations and their business partners will have legal access to patients’ health data without consent in many circumstances (see table below).  

Number of Health-Care Entities and Business Associates With Access to
Patients’ Health Information under HIPAA Privacy Rule

Health-Care Entity

Number

Business Associates* (conduct business on behalf of entities listed below)

1,500,000

Office of MDs, DOs, Mental Health Practitioners, Dentists, PT, OT, ST, Audiologists 

419,286

Durable Medical Equipment Suppliers

107,567

Pharmacies

88,396

Nursing Facilities**

34,400

Home Health Service Covered Entities

15,329

Outpatient Care Centers***

13,962

Medical Diagnostic, and Imaging Service Covered Entities 

7,879

Other Ambulatory Care Service Covered Entities (Ambulance and Other)

5,879

Hospitals (General Medical and Surgical, Psychiatric, Substance Abuse, Other Specialty)

4,060

Third Party Administrators Working on Behalf of Covered Health Plans 

3,522

Health Insurance Carriers 

1,045

Total Entities and Business Associates

2,201,325

* According to HHS, examples of business associates include third-party administrators or pharmacy benefit managers for health plans, claims processing or billing companies, transcription companies, and persons who perform legal, actuarial, accounting, management, or administrative services for covered entities and who require access to protected health information. 

** Includes nursing care facilities, residential mental retardation facilities, residential mental health and substance abuse facilities, community care facilities for the elderly, and continuing care retirement communities. 

*** Includes family planning centers, outpatient mental health and drug abuse centers, other outpatient health centers, HMO medical centers, kidney dialysis centers, freestanding ambulatory surgical and emergency centers,  and all other outpatient care centers.

Source: “Modifications to the HIPAA Privacy, Security, and Enforcement Rules Under the Health Information Technology for Economic and Clinical Health Act,” RIN: 0991–AB57, Federal Register, Vol. 75, No. 134, July 14, 2010 (see pages 40872, 40906, 40907, 40911).


Thus, the stimulus law expanded the number of people who can access patients’ health information but still failed to give patients the final say in who may—and may not—see their most personal health records. Rather than tinkering around the edges modifying the weak HIPAA privacy rule (as required by the stimulus law), it’s time to call on Congress to change the law to ensure that patient consent is required before personal health information is shared for any purpose, including public health. 

What’s more, although the stimulus law doesn’t give patients the right to control the electronic flow of their health information, it does require the secretary of HHS to post a list of breaches of “unsecured protected” (HHS’s term!) health information affecting 500 or more individuals.  The breaches are posted here: http://www.hhs.gov/ocr/privacy/hipaa/administrative/breachnotificationrule/breachtool.html 

Sources:

“How the Economic Stimulus Law Affects Your Health Privacy Rights,” Health Freedom Watch newsletter published by the Institute for Health Freedom, March 2009: http://forhealthfreedom.org/Newsletter/March2009.html#Article2

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Goldwater Institute Files Suit Against Federal Health Care Bill

The following is a press release from the Goldwater Institute:  

(Phoenix, August 12) – The Goldwater Institute filed a lawsuit [on August 12] to strike down the 2010 federal health care reforms as a fundamental attack on individual freedom and the rights guaranteed to all Americans by the U.S. Constitution. 

The lawsuit filed in U.S. District Court in Phoenix is a private challenge to the health care bill championed by President Barack Obama. Arizona and 21 other states are pursuing public lawsuits against the federal law, based in large part on preserving their traditional authority to regulate health insurance. This new lawsuit, known as Coons v. Geithner, argues the federal health care bill exceeds the powers of Congress, violates individual rights, interferes with the authority of states, and violates the separation of powers by setting up a new bureaucracy without meaningful congressional oversight or judicial review. 

“This lawsuit is our effort to bring down one of the most sweeping invasions of individual liberty and state sovereignty in American history,” said Clint Bolick, litigation director for the Goldwater Institute. “The federal health care bill is a sledgehammer to solve a problem that needs the precision of a scalpel. This is the most overbearing and intrusive way possible to try to address America’s rising health care costs.” 

Nick Coons serves as the lead plaintiff in the lawsuit. A small business owner from Tempe, Mr. Coons pays for all of his medical care out of his own pocket and he wants to continue making his own health care decisions. Under the federal health care bill, Mr. Coons will face significant fines from the IRS if he doesn’t buy a health insurance plan that has been approved by the government by 2014. 

“The government is making me spend money on something that I don’t want,” Mr. Coons said. “Is a stranger who works for the government in some other part of the country really going to know what I need? I am the best qualified to make these decisions for myself.” 

The new federal law also violates Mr. Coons’ medical privacy by forcing him to disclose his medical records to an insurance company, and those records could be accessed by the federal government and others without his permission. 

Mr. Coons has been joined as plaintiff in this case by U.S. Representatives Jeff Flake, Trent Franks, and John Shadegg, all of Arizona. The federal bill created a powerful board, called the Independent Payment Advisory Board, to assure cost containment. The board will have no meaningful oversight from Congress or the courts and can’t be repealed, except during a short time in 2017. This provision of the law violates the separation of powers doctrine essential to America’s system of government. 

Other plaintiffs represented by the Goldwater Institute include Arizona state House Speaker Kirk Adams and 28 other Arizona legislators. Earlier this year, these lawmakers tried to resolve the state’s budget deficit in part by voting to reduce the state’s relatively generous benefits for people receiving health care through Medicaid. But the passage of the federal health care bill forced the Legislature to restore all benefits they had reduced or risk losing $7 billion in federal funding for the program. This federal coercion violates the First Amendment rights of these lawmakers to vote solely in the best interests of Arizona citizens. 

To overturn the federal health care bill, the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation is suing President Obama in his official capacity as head of the executive branch and Timothy Geithner, who as secretary of the Department of Treasury oversees the IRS and its task of fining individuals who don’t buy health insurance by 2014. The other two defendants are Secretary of Health and Human Services Kathleen Sebelius, whose department would implement the health care bill; and Attorney General Eric Holder, who oversees the Justice Department and other agencies set to enforce other provisions of the health care bill. 

The Obama administration is expected to ask that this lawsuit be dismissed on the grounds that the federal bill won’t be fully implemented until 2014. But last month, U.S. District Judge Henry Hudson rejected that argument against the state of Virginia’s legal challenge to the federal health care bill. Judge Hudson said Virginia deserves its day in court because the bill “radically changes the landscape of health insurance coverage in America.” 

For more information about the lawsuit see:  http://www.goldwaterinstitute.org/coonsvgeithner 

Source:  “Goldwater Institute Files Lawsuit Against Federal Health Care Bill,” Goldwater Institute press release, August 12, 2010: http://www.goldwaterinstitute.org/article/4927

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Health Freedom Watch is published by the Institute for Health Freedom. Editor: Sue Blevins; Assistant Editor: Deborah Grady. Copyright 2010 Institute for Health Freedom.