Planned Parenthood subpoena stokes fear among reproductive rights, LGBT and HIV activists
Officials with Texas’ Health and Human Services’ Office of Inspector General subpoenaed three Planned Parenthood administrative offices on Oct. 23, requesting the medical records of all Medicaid recipients that visited the Texas clinics between Nov. 2010 and Sept. 30, 2015. And some people with HIV are concerned that if the records are handed over, it will give the state access to their own personal medical situations.
The investigation purportedly stems from videos released by the anti-abortion group Center for Medical Progress over the summer alleging Planned Parenthood clinics received reimbursements for fetal tissue from clinics where abortions were performed.
Critics of the videos have said some were heavily edited and skewed executives’ statements. The Center for Medical Progress has denied those claims.
While the videos were criticized for being heavily edited, many conservatives still latched onto the opportunity to investigate the organization. Texas is just the latest to seize on the opportunity.
The state’s request was sweeping, including all patient records, clinic notes, test results and other confidential information. The goal, the state wrote in the subpoena, was to ensure all services billed to Medicaid “were medically necessary, provided in a quality manner and billed appropriately.”
Medicaid recipients also are not required to consent either, according to a provision in the Health Insurance Portability and Accountability Act of 1996, known as HIPAA, which guarantees doctor-patient confidentiality.
Under the law, federal and state authorities do not need authorization or consent from Medicaid recipients if the protected health information (PHI) is requested for investigative purposes. The burden of protecting certain confidential information falls on the provider.
That could spell disaster for numerous Medicaid recipients, including individuals living with HIV or AIDS who have not disclosed their status publicly, as well as closeted LGBT individuals.
“We will make every effort to comply with the state’s on-going requests. Protecting the confidentiality of our patients is paramount. We will do everything we can to ensure their confidentiality as we cooperate with the state’s request,” Ken Lambrecht, president and CEO of Planned Parenthood of Greater Texas, has said.
Yet even as Planned Parenthood executives promise to protect patients’ records, activists are worried about the precedent set by the state.
Marsha Jones, executive director and co-founder of The Afiya Center, a Dallas organization for black women living with HIV and AIDS, is alarmed by the request. Because the state will have access to the records, she worries HIV-positive and trans women will be outed.
“It could have devastating effects,” Jones said.
Stacey Long Simmons, director of public policy and government affairs at the National LGBTQ Task Force, pointed out that patient records should be secure.
“While certain health care entities are permitted to respond to court orders, HIPAA places constraints on what is allowable,” she said. “While there may be a scenario where a patient’s HIV status or gender transition is not kept confidential, that really should not be the case. For one thing, there are limitations on the release of individually identifiable ‘protected health information’ by health care providers.”
But there’s a larger issue at stake, said Ghazaleh Kinney Moayedi, an OBGYN in El Paso. It could allow to state to set a precedent for investigations.
“This move is unprecedented. [Records requests] have never been used like the state has,” Moayedi said.
HIPAA specifically is geared toward addressing public safety and health threats like bioterrorism, or if someone was in explicit danger. In this case, the state is treating abortion and specifically fetal tissue research as a public safety issue.
“The state is spreading this interpretation pretty thin,” Moayedi said.
Jones, who did not previously know about the HIPAA clause allowing information to be released without consent, is concerned that her clients likely may not know about it either.
“HIPAA is in place so people do not have to be concerned their health records will be shared,” Jones said. “This sets a precedent that is cause for concern. It can open so many doors.”
“I think it’s important for the government to have the ability to access records. But the state’s interpretation is loose at best,” she said.
While it may not be true that all private information will be accessible to the government, Jones fears the perception, coupled with fear, will increase the stigma of HIV and AIDS.
If someone is outed, people may not maintain their relationship with their treatment provider for fear of their lives. Outing someone may prevent them going to any remaining treatment sessions. “It’s like the stigma that comes from abortion. People go to back alleys,” Jones said.
“Disclosure is 100 percent ownership to a patient. This puts their life in jeopardy,” she continued. “If other people know without their consent, it changes everything. People have the right to live with the assurance their information is confidential and they do not have to share it.”
The same situation applies to transwomen. Treatments now make transitioning possible without visible signs, and “the only one who should know is the doctor providing the treatment,” Jones said.
“Privacy is a treasure and not up for grabs, especially if everyone isn’t ready to come out yet,” she insisted.
Public perception may be that reproductive rights are only an issue to cisgendered women, but everyone is impacted when women’s health providers are under attack, advocates said.
“It’s why reproductive rights and the LGBT rights communities must work together. These are issues of autonomy and privacy,” Moayedi said.
This article appeared in the Dallas Voice print edition November 6, 2015.