Beatrice M. Heghmann, RN, has filed a class action lawsuit against Secretary of Health and Human Services (HHS) Kathleen Sebelius, White House Office of Health Reform Director Nancy-Ann Deparle and Administrator of the Centers for Medicare and Medicaid Services Charlene Frizzera, alleging the Stimulus Act's health IT stipulations unconstitutionally violate the HIPAA privacy rule, Privacy Act and Federal Common Law.
Title XIII of the American Recovery and Reinvestment Act (ARRA) aims to have the medical histories of all Americans into an EHR system by 2014, and therefore, their personal health information would be a "mouse-click away from being accessible to an intruder," according to lead plaintiff Heghmann of Durham, N.H., who has never been covered by Medicare and Medicaid.
"Since Medicare and Medicaid now cover only about 23 percent of the population, the Stimulus Act by design affects the privacy of the personal health information for the 65 percent of the population such as the plaintiff and all those similarly situated who are covered by private health insurance," according to the lawsuit.
According to the suit, the initiative would allegedly threaten the privacy of anyone who enrolled in the public health plan established by Sebelius, those not covered by Medicare or Medicaid and anyone who ever has or will provide personal health information to his or her medical provider. Heghmann sued on behalf of members of this purported class.
The ARRA also requires HHS to issue guidance on how to properly implement the requirements for de-identification of HIPAA protected health information, according to the suit.
"Thus, the Secretary is empowered to totally vitiate (impair) the privacy provisions under HIPAA and link medical information contained in the plaintiff's personal health record directly to the Plaintiff and all others similarly situated," the suit stated.
The suit also alleges that the $22 million allotted for health IT could also infringe upon Heghmann's privacy rights.
It stated that "technology will be used to deprive the plaintiff and others of her fundamental right to privacy by requiring that her medical records be released by her healthcare providers and upon entry into the health IT maintained under the supervision of the Secretary will be made available without the permission of the plaintiff to an unknown and potentially unlimited number of persons. Further, this health IT will be used by the White House Office of Health Reform to monitor, interfere and limit the medical information and medical options provided by the plaintiff's healthcare providers in violation of the plaintiff's fundamental right to personal security."
The suit, Heghmann et al v. Sebelius et al, was filed in U.S. District Court for the Southern District of New York and assigned to Judge Barbara Jones. The case number is 09-CV-5880. Attorney Robert Heghmann, husband of Beatrice, is representing his wife.