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ACLU sues state, seeks return of medical records

Posted: December 28, 2011 - 1:01am
In this photo taken Friday, Dec. 16, 2011, Alaska Assistant Attorney General Dale House addresses Sitka Superior Court Judge David George, not pictured, during oral arguments in a case involving the state's seizure of medical records, in Sitka, Alaska. At left is Tom Stenson, legal director of ACLU of Alaska, and in foreground is Assistant Attorney General Cynthia Drinkwater.  (AP Photo/Daily Sitka Sentinel, James Poulson)  JAMES POULSON
JAMES POULSON
In this photo taken Friday, Dec. 16, 2011, Alaska Assistant Attorney General Dale House addresses Sitka Superior Court Judge David George, not pictured, during oral arguments in a case involving the state's seizure of medical records, in Sitka, Alaska. At left is Tom Stenson, legal director of ACLU of Alaska, and in foreground is Assistant Attorney General Cynthia Drinkwater. (AP Photo/Daily Sitka Sentinel, James Poulson)

SITKA — How private are your medical records, and does the state have a right to access them and keep them in pursuit of charges against a medical practitioner?

Those were some of the questions raised in more than two hours of oral arguments Friday in the Sitka courthouse.

The American Civil Liberties Union is representing a group of nine patients “and others similarly situated,” whose medical records were seized from A Woman’s Place, a Ketchikan health clinic, and are now in the state’s possession. The state is refusing to return the records to the patients or clinic.

The records were seized under a warrant issued in the investigation of the clinic owner for suspected Medicaid fraud.

Tom Stenson, legal director for ACLU of Alaska, argued patients’ rights to privacy were violated, that the records should be returned to the clinic or the patients, and that the medical records should not have been seized in the first place.

He further argued that the state should not be allowed to issue such broad search warrants in the future, since it was financial and prescription records, not the medical records, that were needed in the first place.

Assistant Attorney General Dale House, representing the Medicaid Fraud Control Unit, and Assistant Attorney General Cynthia Drinkwater, representing the state Division of Corporations, Business and Professional Licensing, argued separately for summary judgment dismissing the suit.

The civil suit was filed by former patients of Eileen Small, a nurse practitioner who operated a women’s health clinic in Ketchikan. Small’s license and prescription authority were suspended July 29, 2009, but the state alleges that after that time Small billed the state Medicaid program for services to 37 patients and that seven pharmacies had billed Medicaid for prescriptions she had written.

In January 2010 the state MFCU, assisted by Ketchikan police, seized a total of 398 patient files from Small’s clinic under a search warrant. In March 2010 the records were subpoenaed by the state professional licensing division for its own investigation. The files are still in the state’s possession.

After the state authorities turned down demands to return the records the ACLU filed suit on behalf of the women whose files were seized.

The case is Marie-Jeanne Cadle and Jane Does No. 1 through No. 8, versus the Department of Law and Division of Corporations, Business, and Professional Licensing. The case was filed in Ketchikan, but assigned to Superior Court Judge David George in Sitka. George heard the arguments on the summary judgment motions Friday afternoon.

House said that only a handful of people saw the files in question, the investigators followed the protocol for maintaining the privacy of the files, and that there was no evidence that the unit violated laws related to the privacy of medical records.

House said the plaintiffs have not shown any proof of harm nor risk of harm, which would be required for judicial relief. When asked by George why the files still hadn’t been returned, House said he didn’t know but expects that charges of Medicaid fraud against the clinic operator are still forthcoming.

House said he understands the concern of patients whose records were seized, but that their concern needs to be balanced with the state’s need to collect information to “ensure the integrity of the medical assistance program and welfare of the patients.”

House also argued that the plaintiffs lacked standing required to file the lawsuit because they are not the legal owners of the medical records.

“The case should be dismissed,” he said.

Stenson argued that the patients’ rights to privacy were violated when the medical records left A Woman’s Place, and were transferred among two state divisions. He said public disclosure of personal information is not the test of whether someone’s privacy has been violated.

“There’s nothing about the history of privacy that suggests the only right of privacy is against public disclosure,” he said. “The notion that no harm is done until the general public knows ... It’s not a public disclosure law, it’s a privacy law. ... It’s insulting that someone would say it’s not a real harm if the whole world doesn’t know.”

The original complaint said the record seizure is already causing patients not to disclose health information to medical providers because of fear that their records are not safe. One of the plaintiffs said she had panic attacks, knowing that her medical records were being held outside her provider’s office.

Stenson took exception to the search warrant, which he saw as a violation of the Fourth Amendment of the U.S. Constitution and the right to privacy in Article 1 of the Alaska Constitution. He said the warrant language “to include but is not limited to ...” is overly broad.

He asked the court to order that the items seized be returned, and that the judge grant injunctive relief demanding that the state stop using the “boilerplate language every time they get a warrant.”

“That language is used in every application for medical records,” he said, and has been a “course of conduct for the MFCU for 12 years.”

Stenson said, “We’re asking you to tell the MFCU to stop asking for illegal search warrants.”

Drinkwater said the information that her division sought through a departmental subpoena was business records, not medical files. She also spoke about the secure handling of the files that were seized, saying they were not available to the public and accessible to only a few people.

She said those who work in the division understand the rules related to the required privacy of the files.

“The bottom line is there was no improper release of documents, there was no evidence of that,” Drinkwater said. She said the files were needed to build a case of a license violation against the former nurse practitioner.

Stenson said if the division didn’t need the medical records for its case, the medical files should be returned.

All three attorneys said generally that there were not facts in dispute, and that a summary judgment could be issued by the judge. The judge said June was the earliest a trial could be held, if needed.

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